civ3701 notes, questions and answers

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CIV3701 NOTES, QUESTIONS AND ANSWERS [Document subtitle]

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2020 – SEMESTER 1 – ASSIGNMENTS WITH MEM0S

QUESTION 1

Peter is domiciled in Pretoria. While on a holiday in Durban, Peter is involved in a motor

vehicle accident with Portia who failed to stop at a stop street. Portia is domiciled in

Johannesburg and owns a flat in Cape Town. Peter suffered damages to this vehicle due to

the collision in the amount of R500 000.

Bear these facts in mind and answer the following questions. Give full reasons for each

answer.

(a) May Peter institute proceedings for damages against Portia in the Johannesburg

High Court? (2)

When a defendant is domiciled or resident within the Republic, he or she is an incola of the Republic, and the court where the defendant is domiciled, or resident will have jurisdiction to hear the matter based on the principle actor sequitur forum rei. In this instance, the defendant is domiciled in Johannesburg and therefore, the Johannesburg court will have jurisdiction ratione domicilii. (See study guide unit 6.1 and 8.2.)

(b) May Peter institute proceedings for damages against Portia in the Durban High

Court? (1)

Under common law, a court will be vested with jurisdiction in respect of monetary claims ratione rei gestae if the delict on which the claim is based was committed within a court’s area of jurisdiction. On the given facts, the delict (a motor vehicle accident) occurred in Durban, and Peter may thus institute proceedings. The Durban court will have jurisdiction ratione delicti commissi. (See study guide unit

6.1.) (1)

(c) May Peter institute proceedings for damages against Portia in the Cape Town High

Court? (2)

Where a defendant is neither domiciled, nor resident in the jurisdictional area of the court concerned, such defendant is a peregrinus of that particular court, but because he or she is still domiciled or resident somewhere in the Republic, such defendant is termed a local peregrinus, and the usual common-law jurisdiction principles still apply. On the given facts, Peter may not institute action in the Cape Town High Court, as there is no jurisdictional nexus to the court (the defendant is neither domiciled, nor resident in Cape Town and the cause of action did not arise within the court’s area of jurisdiction). The mere fact that Portia’s property is situated in the court’s area of jurisdiction provides no nexus, as the claim is one sou nding in money, and not a property claim. (See study guide unit 8.3.)

(d) Will the Pretoria High Court be competent to exercise jurisdiction if, on the same facts,

Portia is now an American citizen who is domiciled in New York and the flat is situated

in Pretoria? (4)

Where a defendant is neither domiciled nor resident within the borders of the

Republic, such defendant is a foreign peregrinus. In instances where the defendant

is a peregrinus of the whole Republic, a court will assume jurisdiction only if

attachment of the defendant’s property occurs. One such form of attachment is

when the plaintiff is an incola of the court concerned and attachment of the

defendant’s property has taken place (this is known as attachment ad fundandam

iurisdictionem). For an order of attachment to found

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ANNEjuXrUisRdiEct1ion, it is not necessary for the cause of action to have arisen within

the

court’s area of jurisdiction: attachment ad fundandam iurisdictionen alone

constitutes the ground on which the assumption of jurisdiction is justified.

On the given facts, the defendant is a peregrinus of the Republic of South Africa and

has attachable immovable property (a flat) situated within the Pretoria High

Court’s jurisdictional area. Therefore, the Pretoria High Court will have jurisdiction to

hear the matter ad fundandam iurisdictionem. (See study guide unit 8.4.2.) (4)

COMMENT:

From the above, you will note that a particular approach was adopted in answering the

questions: we started off by stating the applicable legal principle(s), then we applied the

legal principle(s) to the given facts, and finally we reached a conclusion. This method

ensures a logical and well-constructed answer, and we strongly suggest that you adopt

this approach when answering all problem-type questions.

QUESTION 2

Donald, who lives in Pietermaritzburg, buys electronic equipment from Sipho, who lives in

Pretoria. The contract is concluded in Johannesburg and the equipment is stored in a

warehouse next to the harbour in Durban, where delivery mu st take place. Donald pays

Sipho R180 000 for the equipment, but Sipho, despite demand, fails to deliver the equipment

to Donald. Bearing these facts in mind, answer the following questions. Give full reasons for

each answer.

(a) Will the magistrates’ court situated in Johannesburg have jurisdiction to hear the

action instituted by Donald against Sipho? (3)

Section 28(1)(d) of the Magistrates’ Court Act 32 of 1944 provides that a magistrates’

court will have jurisdiction over a person if the cause of action arose “wholly” within

the area of a district or regional division. Case law has interpreted this to mean that

in respect of contractual claims, not only must the contract have been concluded

within the district or regional division concerned, but the breach must have occurred

there as well for the court to have jurisdiction.

On the given facts, the contract was concluded in Johannesburg, but the breach of

contract occurred in Durban. Therefore, the Johannesburg (district) magistrates’ court

will not have jurisdiction in terms of section 28(1)(d) of the Act, as the cause of action

did not “wholly” arise within this court’s area of jurisdiction. (See study guide unit

11.4.2.) (3)

(b) Will the magistrates’ court situated in Pretoria have jurisdiction to hear the action

instituted by Donald against Sipho? (1)

Section 28(1)(a) of the Magistrates’ Court Act 32 of 1944 provides that a magistrates’

court will have jurisdiction to hear the matter in respect of any person who “resides,

carries on business or is employed” within its district or regional division.

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On the given facts, the defendant “resides” in Pretoria, and therefore, the Pretoria

(district) magistrates’ court will have jurisdiction in terms of section 28(1)(a) of the Act

to hear the matter. (See study guide unit 11. 4.2.)

(c) Will the magistrates’ court situated in Durban have jurisdiction to hear the action

instituted by Donald in terms of section 28(1)(g) of the Magistrates’ Courts Act 32 of

1944? (2)

Section 28(1)(g) of the Magistrates’ Court Act 32 of 1944 provides that the

magistrates’ court will have jurisdiction to hear a matter in respect of any person who

owns immovable property within the district or regional division in actions in respect

of such property or in respect of the mortgage bonds thereon (our emphasis).

On the given facts, the matter is clearly of a contractual nature and does not relate to

immovable property within the district or regional division as required by section

28(1)(g) of the Act. Therefore, the Durban magistrates’ court will not have jurisdiction

in terms of this section. (See study guide unit 11.4.2.)

(d) Will any magistrates’ court have jurisdiction to hear the action instituted by Donald to

force Sipho to deliver the equipment to him without claiming damages in the

alternative? (2)

A magistrates’ court is prohibited by section 46 of the Magistrates’ Court Act 32 of

1944 to adjudicate matters in which specific performance is sought without an

alternative claim for payment of damages. However, this prohibition is subject to

the exceptions contained in section 46(2)(c)(i)-(iii), and does therefore not apply

when the delivery or transfer of property, movable or immovable, and not exceeding

in value of the amount determined by the Minister from time to time by notice in the

Gazette, is claimed. “Specific performance” has been interpreted by the courts to

refer to the performance of a contractual act only.

Equipment is clearly movable property, and as its delivery falls within the exception

provided for in section 46(2)(c)(ii), the court may, on the given facts, make an order

directing a defendant to deliver the equipment. (See study guide unit 11.2.3.2.) (2)

QUESTION 3

Z wishes to issue summons against his neighbour, B, for defamation. Answer the following

questions. Give reasons for your answers where required.

(a) Explain why Z may not use an ordinary application to institute action against B.

(2)

When legislation or the rules of court neither prescribe nor prohibit the use of application

proceedings, the final test to apply is whether there is a material dispute of fact. If there is a material dispute of fact (or can be reasonably anticipated), the use of application proceedings is inappropriate and will normally be penalised by way of an adverse costs order. In the present matter, use of the application procedure is clearly inappropriate, as it stands to reason th at a defamation case will involve a material dispute of fact. Since such a dispute can only be resolved by hearing oral evidence, summons proceedings will be appropriate. (See study guide unit 12.6.2 and

12.6.3.)

(b) If B gives notice of intention to defend within the dies induciae, explain fully why Z

may not apply for summary judgment. (2)

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Rule 32 of the Uniform Rules of Court and magistrates’ courts rule 14 set out the types of claim in

respect of which summary judgment may be applied for. Damages are claimed in a defamation

case, and the nature of such a claim is unliquidated. (These types of claim also fall within the

definition of a “debt or liquidated demand”.) A claim for damages clearly falls outside the categories

of claims contained in the said court rules, and therefore Z may not apply for summary judgment.

Furthermore, the rules of court provide that a plaintiff may only after receipt of a plea on the merits

apply for summary judgment. This provides a second reason why Z cannot apply for summary

judgment. (See study guide unit 23.4.)

(c) B does not wish to continue litigating, and wishes to end the litigation as soon as

possible, but without paying the full amount of the claim. Advise B how to achieve this

objective. (1)

B may offer to settle either in terms of Uniform Rule 34 or magistrates’ courts Rule

18.

(d) Briefly explain to Z and B what the purpose is of a pre-trial conference in terms of

Uniform Rule 37. (1)

The primary purpose of Uniform Rule 37 is the shortening of the trial (thus promoting the effective

disposal of litigation). (See study guide unit 24.4.2.)

(e) When the trial starts, Z learns that an important witness is in the hospital and unable

to testify in court. Advise Z of any two possible methods by which a witness may place

his or her evidence before court. (2)

(a) Other methods by which evidence may be given if a witness cannot give evidence in

person, are – • by affidavit;

• on commission; and • by way

of interrogatories.

Note: Naturally, factual and practical considerations will determine the most appropriate method to be used

in practice. (See study guide unit 24.5.2.)

ASSIGNMENT 02

QUESTION 1

Indicate the most accurate statement:

(1) The South African High Courts are creatures of statute because they are subject to

the provisions of the Superior Courts Act, 2013.

(2) The Uniform Rules of Court are a common set of rules that uniformly regulate the

conduct of proceedings in the magistrates’ courts.

(3) Since the rules exist for the courts, a court may condone a litigant’s non-

compliance with its rules.

(4) The Minister of Justice and the Rules Board may make rules relating to the manner

in which the Constitutional Court may be engaged.

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ANSWER

The most accurate statement is: (3)

The rules exist for the sake of a court. This means that the rules of court are intended to

facilitate the work of the courts. Therefore, a court may condone any procedural mistakes

or determine any point of procedure. However, this does not mean that parties may be

slack in observing the rules of court, but generally the court will not be overly formalistic

and will assist parties where there is no prejudice. (See Pete et al 11 and study guide

unit 2.3.2.)

Statement (1) is incorrect. The South African High Courts are said to exercise “inherent

jurisdiction”, meaning its jurisdiction is derived from common law and not from statutes

(although statutes, in certain cases, may limit or increase this jurisdiction). Lower courts

are sometimes called “creatures of statutes” simply because their exercise of jurisdiction

depends on the extent to which their enabling statutes permit them to exercise

jurisdiction. (See Pete et al 11-12 and study guide unit 2.3.1.)

Statement (2) is incorrect. The Uniform Rules of Court are a common set of rules that

regulate the conduct of proceedings in the High Court uniformly (hence, “Uniform Rules”)

and the name is of historic origin. The rules regulating the conduct of proceedings of the

magistrates’ courts are simply referred to as the magistrates’ courts rules. (See Pete et

al 12 and study guide unit 2.3.1.)

Statement (4) is incorrect. Previously, it was provided that the President of the

Constitutional Court in consultation with the Chief Justice were to make rules relating to

the manner in which the Constitutional Court may be engaged. This position has since

changed, and in terms of section 29(1) of the Superior Courts Act, 2013 (SCA) the Chief

Justice, after consultation with the Minister, may now make such rule.

QUESTION 2


(1) Unlike the Supreme Court of Appeal, the Constitutional Court may never be

approached directly.

(2) Disputes concerning the constitutional status, powers or functions between

organs of state in the national or provincial spheres may only be adjudicated

by the Constitutional Court.

(3) The Supreme Court of Appeal is competent to hear only non-constitutional matters.

(4) A magistrate’s court is not competent to adjudicate upon the validity of any legislation

but may pronounce upon the validity of the exercise of executive powers by the

President.

ANSWER


Section 167(4)(a) of the Constitution of the Republic of South Africa, 1996 (“the

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Constitution”) specifically contains this provision, and it is one of the matters that fall

within the exclusive jurisdiction of the Constitutional Court. (See Pete et al 9 and study

guide unit 4.1.)

Statement (1) is incorrect. Section 167(6)(a) of the Constitution provides that the

Constitutional Court may, when it is in the interests of justice and with leave of the

Constitutional Court, grant direct access. On the other hand, the Supreme Court of

Appeal is a court of appeal only and is approached only after leave to appeal has been

granted. (See Pete et al 9 and study guide unit 4.1 and 4.2.)

Statement (3) is incorrect. In terms of section 168(3) of the Constitution, the Supreme

Court of Appeal may hear appeals in any matter arising from a High Court (or a court of

similar status), which includes both constitutional and non -constitutional matters. (See

Pete et al 9 and study guide 4.2.)

Statement (4) is incorrect. The Constitution, 1996 does not confer any constitutional

jurisdiction upon magistrates’ courts but provides that legislation may confer

constitutional jurisdiction on these courts, provided that they may not enquire into or rule

on the constitutionality of “any legislation or any conduct of the President”. Furthermore,

section

110 of the Magistrates’ Courts Act 32 of 1944 provides that these courts may not pronounce on

the validity of “any law” or on the validity of any conduct of the President.

QUESTION 3


A High Court may exercise jurisdiction to obtain an order for:

(1) Attachment ad confirmandam iurisdictionem if the defendant is a peregrinus of the

court concerned, the plaintiff is an incola of the court concerned, and attachment has

taken place.

(2) Attachment ad confirmandam iurisdictionem if both the plaintiff and the defendant are

incolae of the court concerned and attachment has taken place.

(3) Attachment ad fundandam iurisdictionem if the plaintiff is a peregrinus of the court

concerned, the defendant is a peregrinus of the whole Republic, the cause of action

occurred within the area of jurisdiction of the court concerned, and attachment has

taken place within the jurisdictional area of the court.

(4) Attachment ad fundandam iurisdictionem if the plaintiff is an incola of the court concerned, the defendant is a peregrinus of the Republic, the cause of action took place outside the jurisdictional area of the court concerned, and attachment has taken place.

ANSWER


This statement satisfies all the requirements for attachment ad fundandam jurisdictionem. In regard to

attachment ad fundandam jurisdictionem, the following requirements must be met:

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• the 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, even in instances where the cause of action

has arisen outside the court's area of jurisdiction. (See Pete et al 110-111 and study guide

unit 8.4.2.)

Statement (1) is incorrect. Attachment ad confirmandam jurisdictionem occurs where the defendant is

a foreign peregrinus, the cause of action arose within the court’s area of jurisdiction and attachment

of defendant’s property has taken place. A “peregrinus of the court concerned” implies that the

defendant is a local peregrinus, not a foreign peregrinus. Section 28 (SCA) also prohibits the

attachment of the property of an incola of the Republic. (Note that in this form of attachment, the status

of the plaintiff is irrelevant.) (See Pete et al 110-111 and study guide unit 8.3.)

Statement (2) is incorrect. See comments under statement (1) above.

Statement (3) is incorrect. For attachment ad fundandam jurisdictionem the plaintiff must be an incola

of the court concerned, not a peregrinus. Where the cause of action arose is irrelevant in this instance.

(1) Section 2(1) of the Divorce Act, 1979 read with section 1(1) of the Domicile Act, 1992

provides that a court may exercise jurisdiction only if the wife is domiciled and resident

in the area of jurisdiction of a High Court on the date when the action is instituted.

(2) The Roman-law rule actor sequitur forum rei means that the plaintiff must institute

action against the defendant in the High Court within whose area of jurisdiction the

defendant is a citizen.

(3) The High Court in whose area of jurisdiction immovable property is situated, has

exclusive jurisdiction in an action for the delivery of such property.

(4) A High Court will accept submission to its jurisdiction in regard to a claim sounding in

money if both parties to the action are foreign peregrini and the cause of action

occurred outside the particular court’s area of jurisdiction.

QUESTION 5


(1) A magistrates’ court may only exercise jurisdiction over the person of a defendant if

the defendant is domiciled in its area of jurisdiction.

(2) The magistrates’ court for the district of Pretoria is competent to exercise jurisdiction

if the conclusion of the contract occurred in Pretoria and the contract was breached

in the magisterial district of Johannesburg,

(3) A magistrates’ court would be competent to exercise jurisdiction if the cause of action did not occur wholly within its district, but there is compliance with the provisions of sections 29 and 46, and the defendant raises no objection.

(4) Section 31 of the magistrates’ Courts Act 32 of 1944 provides that an interdict

prohibiting the removal of furniture or other effects from the leased premises only

becomes effective after application is made to court in this regard.

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ANSWER


Section 45 of the Magistrates’ Courts Act 32 of 1944 (MCA) gives parties the opportunity to consent

to a magistrate’s court hearing a matter between them, despite the fact that such a court does not

have jurisdiction in terms of either section 28 or 29 of the Act. However, it is important to note that

this section clearly provides that parties cannot consent to a court hearing a matter that is excluded

from jurisdiction by section 46. (See study guide unit 11.6.3.)

Statement (1) is incorrect. Section 28(1)(a) provides that a magistrates’ courts will have jurisdiction

over a defendant who “resides, carries on business or is employed” within its area of jurisdiction.

The section does not provide for domicile! In fact, domicile as a jurisdictional factor is used only in

the High Court, and students will be penalised for using incorrect terminology in the examination.

(See study unit 11.4.2.)

Statement (2) is incorrect. Section 28(1)(d) (MCA) provides that a magistrate’s court may exercise

jurisdiction if the “whole cause of action” arose in the district or regional division of a court. This

phrase has been interpreted by our courts to mean that both conclusion of contract and breach

thereof must occur within the same jurisdictional area of a particular court for the cause of action

to occur “wholly”. Therefore, neither of the courts mentioned has jurisdi ction in terms of this section

of the Act. (See study unit 11.4.2.)

Statement (4) is incorrect. The purpose of section 31 (MCA) is precisely to avoid having to approach

a court to obtain an interdict, and therefore a notice prohibiting the removal of household effects

from the leased premises is included in the summons: this notice acts as an interdict and becomes

effective when a summons is issued (hence the name “automatic rent interdict”).

QUESTION 6

D, who lives in Gauteng, wishes to divorce her husband, F. F lives in a caravan and drifts

around the KwaZulu-Natal south coast where he works as a handyman, doing repairs to

holiday homes. D does not know his exact whereabouts. The summons must be served on

F by way of -


(1) Substituted service

(2) Normal service

(3) Edictal citation

(4) A combination of substituted service and edictal citation.

ANSWER

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Substituted service is used when normal service cannot be effected on a defendant who

is believed to be within the borders of the Republic, but whose exact whereabouts are

unknown. In the given facts, the defendant (F) is believed to be within the Republic

(KwaZulu-Natal south coast). However, D does not know his exact whereabouts as he

“drifts” around. (See Pete et al 141; study unit 14.2.2; and Uniform Rule 4(2).)

Statement (2) is incorrect. Normal service is effected when the defendant’s whereabouts

are known within the Republic and the sheriff is able to deliver a copy of the summons

to the defendant (often personally). In the given facts, normal service in terms of the rules

of court by a sheriff will not be possible, since the defendant’s whereabouts are unknown.

(See Pete at al 134-140 and study units 14.1 and 14.2.1.)

Statement (3) is incorrect. Edictal citation is a form of service that is effected on a

defendant who is believed to be outside the Republic, even when his/her exact

whereabouts are known, and personal service is possible. The service is effected by a

person in the foreign country who is authorised by the law of such country to serve

processes and documents. On the given facts, the defendant is believed to be within

the Republic, and therefore, edictal citation will not be appropriate. (See Pete et al 141

and study unit 14.2.3.)

Statement (3) is incorrect. There is no provision for such service method in the rules of

court. See also the discussion of edictal and substituted service above under options (1)

and (3) above.

QUESTION 7


(1) The basic rule for the drafting of pleadings is that the material facts upon which the

claim or defence is based must be fully pleaded. Evidence is thus also pleaded.

(2) A notice of intention to defend is the first pleading delivered by a defendant who

wishes to defend an action.

(3) Whether an action is instituted by way of a combined or a simple summons, the

prescribed dies induciae for the delivery of a plea (with or without a

counterclaim) is the same.

(4) In the High Court, pleadings are deemed to be closed as soon as the plaintiff has

delivered a replication.

ANSWER


The rules of court lay down the dies induciae for the delivery of a plea on the merits,

regardless of the summons by which action is commenced. It is merely the starting point

for calculating the dies induciae which differs according to the summons used: thus,

either after service of a declaration, or after delivery of a notice of intention to defend, as

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the case may be. (See Uniform Rule 22; rule 17 of the magistrates’ courts rules; Pete et

al 202-203; and study guide unit 20.3.)

Statement (1) is incorrect. The basic rules for the drafting of pleadings require that the

material facts upon which a claim, defence or reply is based, must be clearly and

concisely stated, and evidence must not be pleaded. (See Uniform Rule 18; magistrates’

courts rules 17 and 20; and study guide unit 19.4.)

Statement (2) is incorrect. A notice of intention to defend is a notice that informs the

plaintiff that the defendant intends to defend the action. It is therefore not a pleading, but

a process, as it contains no averments by the defendant to an action relating to the

factual basis of his or her defence. (See Pete et al 198-199 and study guide unit 20.2.

See also study guide unit 19.2 for a discussion of the distinction between a pleading and

a process.)

Statement (4) is incorrect. Uniform Rule 29(b) specifically states that pleadings are considered closed if the last day allowed for filing a replication or subsequent pleading has elapsed and filing has not taken place.

QUESTION 8

“A court has a wide discretion when awarding costs after passing judgment.” This statement

implies the following:


(1) A party who loses a case will be ordered to pay the winner’s costs.

(2) A party who wilfully destroys documents beneficial to his opponen t’s case, may be

ordered to pay costs de bonis propriis.

(3) A party who continues to defend a matter during trial despite knowing that he or she is liable for payment of the full amount claimed, may be ordered to pay attorney- and-client costs.

(4) A party may be awarded party-and-party costs if the court is of the opinion that it is

unreasonable to deprive such a party of costs reasonably incurred before issue of

summons.

ANSWER


Attorney-and-client costs is awarded to a party when the party has conducted himself or herself in a

reckless, vexatious or malicious manner, or where the party has been dishonest or fraudulent in

conducting the trial. Therefore, a party who continues to defend a matter during trial despite kn owing

that he or she is liable for full payment, is conducting himself or herself in a reckless or vexatious

manner and may be ordered to pay attorney- and-client costs. (See Pete et al 333 and study guide

unit 25.4.1.)

Statement (1) is incorrect. That the party who loses a case will automatically be ordered to pay the

winner’s costs, is by no means a foregone conclusion. The awarding of costs is in the court’s

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discretion. Thus, a “successful party” (that is usually awarded costs) is not necessarily the party in

whose favour judgment is given. (See Pete et al 327 and study guide unit 25.4.)

Statement (2) is incorrect. Costs de bonis propriis is awarded against a person who acts in a

representative capacity (such as a legal representative or an executor). Therefore, a party (not acting

in a representative capacity) who wilfully destroys documents beneficial to his opponent’s case may

be ordered to pay attorney-and-client costs, not costs de bonis propriis. (See Pete et al 335 and study

guide unit 25.4.3.)

Statement (4) is incorrect. Party-and-party costs are costs that have been incurred by a party during

legal proceedings which the court orders the other party to pay him or her. The costs are awarded for

legal proceedings that have commenced. Therefore, costs incurred before the issue of summons are

costs incurred for a party’s own account and payable to his or her attorney in terms of the mandate

given to the attorney.

QUESTION 9

In the High Courts the position is as follows --

(1) Pleadings are deemed closed only after the plaintiff has filed his or her replication.

(2) In reply to a defendant’s counterclaim, a defendant in reconvention may file a

replication in reconvention.

(3) An exception may be raised only against a declaration or the particulars of claim.

(4) It is possible to inspect a clearly specified document or tape recording in a party’s possession and relating to a reasonably anticipated issue in the action before the close of pleadings.

ANSWER


Uniform Rule 35(14) specifically provides for this situation where an opponent refers to

documents or tape recordings in pleadings and affidavits, and a party would need copies

thereof for purposes of pleading. This provision forms an exception to the rule that

discovery is possible only after close of pleadings. (See Pete et al 226; Uniform Rule

35(14); and study guide units 24.3.6 and 24.4.4.)

Statement (1) is incorrect in two respects. Uniform Rule 29 sets out four instances when

pleadings are deemed closed. Therefore, it is clearly incorrect to state that pleadings are

deemed closed “only” (after a certain event occurs). Be careful of so- called absolute

statements. (Statements containing words such as “only”, or “always” are absolute

statements and should be carefully considered, because, depending on the statement,

more often than not exceptions may apply or there may be several options, etcetera

available, thus rendering the statement incorrect.) Furthermore, Uniform Rule 29(b)

specifically states that pleadings are considered closed if the last day allowed for filing a

replication or subsequent pleading has elapsed and filing has not taken place. This

particular instance was thus stated in too narrow terms, and this option could only have

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been eliminated had students consulted the particular court rule. (See Pete et al 223-

224 and study guide unit 20.4.)

Statement (2) is incorrect. When a defendant files a counterclaim, the claim in

reconvention is introduced. The plaintiff (who is now the defendant in reconvention),

should respond to the counterclaim of the defendant (now the plaintiff in reconvention),

by filing a plea on the merits in reconvention (and not a replication in reconvention!). As

in the case in convention where a defendant must respond to the plaintiff’s claim, so must

a defendant in reconvention also respond to the claim in reconvention. If not, he or she

runs the risk of having a default judgment being granted against him or her. Note: a

replication is used only when a defendant (either in convention or reconvention) raises

new facts in a plea on the merits which require a response from the plaintiff (either in

convention or in reconvention). (See Uniform Rule 25(1) and (2), as well as study unit

20.4.)

Statement (3) is incorrect. A party may in terms of the court rules raise an exception to any pleading if

that pleading is (a) vague and embarrassing, and/or (b) does not disclose a cause of action or defence.

Clearly the ambit of the statement is too narrow, as a defence is raised in a plea on the merits. Again, note

the word “only”!

QUESTION 10


(1) The heads of argument, as the name suggests, simply consists of the advocate’s

main points of argument to the court.

(2) Both appeals and review proceedings are instituted by way of notice of motion.

(3) A party who is dissatisfied with the result of a trial may take the matter on review. (4)

Only proceedings of lower courts and quasi-judicial bodies are subject to

review.

ANSWER


Section 21(1)(b) of the Superior Courts Act, 2013 authorises the High Court to review the

proceedings of lower courts, while the High Courts have inherent jurisdiction to entertain

all causes arising within their jurisdictional areas. This includes the reviewing of

proceedings of any body or tribunal empowered to perform statutory duties, as well as

of quasi-judicial bodies. (See study guide units 27.3.1 and 27.3.2.)

Statement (1) is incorrect. The heads of argument comprise the main points to be made

in counsel’s address to court, as well as a list of the authorities to be quoted in support

of each point. Clearly, heads of argument comprise more than the option statement

suggests. (See study guide unit 28, activity question (4)).

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Statement (2) is incorrect. An appeal must be noted and prosecuted according to

statutory provisions, supplemented by the rules of court. Reviews, on the other hand, are

brought on notice of motion. (See s 16 and 21 of the Superior Courts Act, 2013; Pete et

al 362- 365; and study guide units 27 and 28.)

Statement (3) is incorrect. An appeal is aimed at the result of a trial, whereas a review is aimed at the

method by which results is obtained (in other words, the proceedings of a court are reviewed). Consequently, a party who is dissatisfied with the result of a trial must lodge an appeal

2019-ASSIGNMENT 1

SEMESTER 1

QUESTION 1

Briefly explain in which important respects ADR processes are distinguished from formal

litigation. [7]

ADR processes are distinguished from formal litigation in the following important

respects:

• Unlike the process of litigation which is based on strict rules of procedure for the

conduct of proceedings, ADR processes are informal as the disputants

themselves determine the rules for the specific process

• ADR processes are flexible in the sense that they can be adapted to suit the

needs of types of disputes, whereas litigation processes are not only formal, but

highly technical

• Except where ADR processes are court connected, they are described as

voluntary because the disputants choose to enter the process, unlike in

litigation

• In ADR processes the outcome is reached through the consent of both

disputants (it is thus consensual), whereas the outcome in litigation (typically

the judgment) is imposed on the litigants by a judicial officer (and is enforced by

execution proceedings)

• ADR processes deal with the interests of the disputants, while in litigation the

rights of litigants are protected and enforced

• ADR processes emphasis the relationship between the disputants 9 is thus

relational) and strive to maintain such relationships. Litigation is often criticized

for its adversarial nature and the consequent breakdown in relationships that

often occur

• Apart from arbitration, ADR processes do not concentrate on and apportion

blame for past events, but rather seek to establish or re-establish future

relationships between disputants. It is thus future orientated. By contrast, the

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purpose of litigation is to obtain a judgment against the litigant who caused the

injury or other wrong.

COMMENT:

From the above it is evident that because litigation is a process that is provided by the

state through the court system, it may be characterized as a public process.

By comparison, ADR processes are clearly private processes.

QUESTION 2

X, who lives in Cape Town, owns a fishing trawler. Y, who provides several restaurants and

hotels in Durban with pre-packaged fish, lives in Durban. X and Y conclude a contract in Durban

in terms of which X has to deliver 800kg of fish to Y in Durban on the first day of every month.

After keeping strictly to the agreement for six months, X suddenly fails to deliver sufficient fish,

and two months later fails to deliver any fish. As a result of X’s breach of the terms of the

contract, Y suffers damages in the amount of R440 000 and wishes to sue X.

Answer the following questions, giving full reasons for each answer.

(a) Could Y institute proceedings against X in –

(i) the Cape Town High Court (1)

Under common law, when a defendant is an incola of the Republic, the

court in whose jurisdiction area the defendant is either domiciled or

resident has jurisdiction to hear a claim sounding in money. This is known

as the exercise of jurisdiction ratione domicilii.

On the given facts, X, the defendant, is a resident of Cape Town.

Therefore, Y can institute proceedings against him/her in the Cape Town

High Court ratione domicilii.

(ii) the Durban High Court (1)

In regard to a claim relating to a contract, the court in whose area of jurisdiction the contract was concluded, or where the contract was to be performed, or where the contract is breached, will have jurisdiction. This is known as the exercise of jurisdiction ratione contractus. (Under common law, this falls within the ambit of ratione rei gestae). On the given facts, not only was the contract concluded in Durban, it was also where performance had to take place and where breach of contract occurred. Therefore, Y could institute the proceedings in the Durban High Court, ratione contractus.

(b) If the Durban High Court has jurisdiction, could Y –

(i) obtain an order for the attachment of X’s trawler for jurisdictional purposes? (1)

(i) Section 28(1) of the Superior Courts Act, 2013 (hereafter SCA) prohibits the attachment of the

property of a person domiciled or resident anywhere within the Republic for jurisdictional

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purposes. Stated differently: the attachment of the property of an incola of the Republic is

prohibited by this section.

On the given facts X is an incola of the Republic (X is a resident of Cape Town). Therefore, Y may

not obtain an order for the attachment of X’s trawler for jurisdictional purposes, as it is prohibited.

(ii) issue the summons out of the Durban High Court and have it served on X in

Cape Town? (1)

Section 42(2) of the SCA provides that a civil process of a Division runs

throughout the Republic and may be served or executed within the

jurisdiction of any Division within the Republic. This means that the process

issued by a particular court (such as a summons or a notice of motion) may

be served within the jurisdiction of any (other) Division of the High Court

within the Republic. It also means that the judgment or order of a particular

court is enforceable within the jurisdiction of any Division of the High Court

within the Republic.

On the given facts, Y may therefore issue summons out of the Durban High

Court and have it served on X in Cape Town.

COMMENT:

Although in this instance, Durban was the centre for the conclusion, breach and the

required performance, any one of these occurrences is normally sufficient to establish

jurisdiction.

Question 2

If the action concerned a dispute over the trawler which is docked in Cape Town harbour

and X lives in Pretoria, could Y institute proceedings against X in either of the High Courts

situated in these areas? (3)

(a) Where the object of relief is a movable property, the court within whose territorial

area the movable property is situated has jurisdiction

• to determine the title of the property

• for delivery of the movable property

• to determine a real right in respect of such property

Whether the jurisdiction is exclusive, is unclear, and it is considered that the

forum domicilii of the possessor should also exercise jurisdiction.

On the given facts, the movable property (the trawler) is situated in Cape Town.

Therefore, Y may institute proceedings in Cape Town High Court ratione rei

sitae. Y may possibly also institute proceedings in the Pretoria High Court as the

defendant (as owner of the trawler) resides in the court’s area (the forum

domicilii).

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COMMENT:

Our courts have not yet pertinently decided the question whether the forum rei sitae

is exclusive as far as movable property is concerned.

Question 3

(a) C wishes to institute action against D in the High Court in the amount of R500 000 for

goods sold and delivered to D. On the basis of these facts, determine whether the

procedures used by either C or D are correct or incorrect. Give reasons for each answer

and state what the correct procedure should be.

(i) C issues a combined summons against D. (1)

(i) The procedure is incorrect (a combined summons is used in respect of

unliquidated claims). A claim for goods sold and delivered is a claim

which falls within the definition of a “debt or liquidated demand”.

Therefore, C should have issued a simple summons.

(ii) D alleges that C owes him an amount of R40 000 in his plea on the

merits. (2)

(ii) The procedure is incorrect. A plea on the merits contains the basis for the

defendant’s defence to the plaintiff’s claim as set out in the particulars of claim or

declaration. D’s allegation amounts to a claim against the plaintiff. D should

therefore have alleged that C owes him money in a counterclaim.

(iii) C raises an exception to D’s plea on the merits because it contains an allegation

that “C is a liar and a cheat”. (2)

(iii) The procedure is incorrect. An exception is raised when a pleading is vague or

embarrassing or does not disclose a cause of action or a defence. The statement

(that C is a liar and a cheat) may be termed “scandalous, vexatious or irrelevant”.

Therefore, C should have made an application to strike out the offending portion

of the pleading, instead of raising an exception.

(iv) D makes an offer to settle the matter over the telephone in order to achieve a

settlement of C’s claim in terms of Uniform Rule 34(1). (1)

(iv) The procedure is incorrect. Uniform Rule 34(1) provides that in any action in which

a sum of money is claimed, the defendant may at any time unconditionally or without

prejudice make a written offer to settle the plaintiff’s claim. Therefore, an offer to

settle the matter over the telephone (an oral offer) cannot be made in terms of this

Rule.

(v) D fails to file his plea on the merits within the required time limits. C immediately

applies for default judgment. (1)

The procedure is incorrect. In the first instance, a plea on the merits is a pleading. Secondly, in terms of Uniform Rule 26, if a party fails to deliver “any other pleading” (that is, other than a replication or subsequent pleading)

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within the required dies inducia, the other party may deliver a notice to the defaulting party (the so-called notice of bar), requiring him or her to deliver such pleading within 5 days. Failure to do so will only then result in default judgment. Therefore, C first has to serve a notice of bar on D requiring delivery of the plea on the merits before applying for a default judgment.

COMMENT:

Please note that a notice of bar applies only to pleadings, and thus not to processes.

For example, should a defendant fail to timeously deliver a notice of intention to

defend, a notice of bar is not required prior to a request for default judgment, as a

notice is not a pleading.

(b) ) X, a plaintiff, and Y, a defendant, prepare for a trial in the magistrates’ court. Name

the procedure which must be followed in each instance.

(i) X notices a factual error in his summons and wishes to correct it. (1)

(i) X may file a notice of intention to amend the factual error and serve it on

Y.

(ii) Y wishes to find out what documents X intends using to prove her case.

(1)

Y may require X to discover the documents relating to any matter in the

action.

(iii) X wishes to ensure that a witness will be present in court to give evidence on his

behalf. (1)

X may serve a subpoena on the witness to ensure his/her presence at the

trial.

(iv) Y wishes to obtain more particulars from X regarding the matter to enable her to

prepare for trial. (1)

Y may request further particulars to enable him to prepare for trial.

COMMENT:

Please note the instruction in the question. You were simply required to name the

applicable procedure. Adding a discussion in the examination in such an instance will

take up time that you could rather have spent on questions requiring full reasons for

answers.

2. ASSIGNMENT 02

QUESTION 1


(1) The Supreme Court of Appeal is competent to hear only non-constitutional matters.

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(2) Only the Constitutional Court may adjudicate on any alleged violation of a fundamental

right entrenched under Chapter 2 of the Constitution, 1996.

(3) A magistrate’s court is not competent to adjudicate upon the validity of any legislation

but may pronounce upon the validity of the exercise of executive powers by the

President.

(4) Disputes concerning the constitutional status, powers or functions between

organs of state in the national or provincial spheres may only be adjudicated by

the Constitutional Court.

ANSWER


Section 167(4) of the Constitution, 1996 sets out the matters in respect of which the

Constitutional Court has exclusive jurisdiction. The disputes referred to in this

particular instance is contained in section 167(4)(a) and may thus only be heard by

the Constitutional Court.

Statement (1) is incorrect. Section 168 of the Constitution, 1996 provides that the

Supreme Court of Appeal may decide appeals in any matter arising from the High

Court or a court of similar status (except in respect of labour or competition matters),

provided it is an appeal. Also, section 167(5) of the Constitution, 1996 provides that

any finding regarding the constitutionality of legislation or the conduct of the President

will only have any force after the order has been confirmed by the Constitutional Court.

The wording of this section clearly envisages such a finding by a court other than the

Constitutional Court.

Statement (2) is incorrect. Section 167(4) of the Constitution, 1996 does not make

provision for exclusive jurisdiction in this regard. In fact, section 8 of the Constitution,

1996 specifically provides that the Bill of Rights “applies to all law, and binds … the

judiciary …”. Furthermore, section 8(3) provides that when applying a provision of

the Bill of Rights in order to give effect to a right in the Bill, “… a court

…” must apply (and develop, if necessary) the common law.

Statement (3) is incorrect. Section 170 of the Constitution, 1996 does not confer any

constitutional jurisdiction upon magistrates’ courts but provides that legislation may

confer constitutional jurisdiction of these courts, provided that it does not confer

jurisdiction to determine the validity of “any legislation or any conduct of the

President”. Furthermore, section 110 of the Magistrates’ Courts Act 32 of 1944

provides that these courts may not pronounce on the validity of “any law” or on the

validity of any conduct of the President.

QUESTION 2


(1) Small claims courts have inferior status because the amount of the claim is so low.

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(2) The principle of party presentation applies in the small claims court because the

commissioner plays an active role in assisting the litigants to present their case during

the trial.

(3) In small claims courts a party is entitled to cross-examine his or her opponent.

(4) A small claims court may entertain an action for the delivery of movable property

not exceeding R15 000.

ANSWER 2


Section 15(a) of the Small Claims Courts Act 61 of 1984 provides for actions for the

delivery or transfer of any property, movable or immovable, which does not exceed

the quantitative jurisdiction of the court. The quantitative jurisdiction is currently set at

R15 000.

(See section 15 of the Small Claims Courts Act 61 of 1984; and Study Guide unit

4.5.)

Statement (1) is incorrect. Small claims courts are not inferior courts; they are simply

courts that appear lower down in the hierarchical structure of the court system. The

low value of the claims can also not be seen to indicate an inferior status – the purpose

of these courts is to improve access to justice by creating a forum for the settling of

minor civil disputes in a speedy and cost-effective manner. A wide range of matters

are heard in these courts, and the legal issues involved are not necessarily simple,

despite the low value.

Statement (2) is incorrect. Party presentation is one of the cornerstones of the

adversarial system. Although the relationship between the litigants in a small claims

court remains adversarial, compared to the other courts, the small claims courts are

more inquisitorial by nature, inter alia because the commissioner plays an active role

in assisting the litigants to present their respective cases at the trial.

Statement (3) is incorrect. In terms of section 26(3) of the Small Claims Courts Act 61

of 1984 a litigant in a small claims court may not question or cross-examine any other

litigant to the proceedings (or a witness called by such litigant).

QUESTION 3


(1) A court may exercise divorce jurisdiction only if both or either of the parties are/is

domiciled in the Republic on the date on which the action is instituted.

(2) A court may exercise divorce jurisdiction only if both or either of the parties are/is

resident in its area of jurisdiction on the date on which the action is instituted and

has/have been ordinarily resident in the Republic for a period of not less than one year

immediately prior to the institution of the action.

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(3) A court may exercise divorce jurisdiction if both or either of the parties are/is ordinarily resident in its area of jurisdiction on the date on which the action is instituted and has/have been ordinarily resident in the Republic for a period of not less than one year immediately prior to the institution of the action.

(4) A court may exercise divorce jurisdiction if both or either of the parties are/is domiciled

in the Republic on the date on which the action is instituted and the parties are/is

resident in its area of jurisdiction on the date on which the action is instituted and

has/have been ordinarily resident in the Republic for a period of less than one year

immediately prior to the institution of the marriage.

ANSWER 3


A careful reading of section 2(1)(b) of the Divorce Act 70 of 1979 indicates that

statement (3) accurately reflects the content of the said section. It is important to read

sections attentively – in this instance you should note that this particular section

requires compliance with the requirement of “ordinarily resident” in two distinct

situations: in the particular court’s area of jurisdiction (when commencing action) and

in the Republic (for a particular period). Both these aspects must be addressed when

answering an examination question.

Statement (1) is incorrect, because the wording in section 2 of the Divorce Act 70 of

1979 clearly requires either domicile, or ordinary residence for the establishing of

divorce jurisdiction. Note the word “or” which separates section 2(1)(a) and section

2(1)(b): this indicates that domicile and residence are alternative grounds for divorce

jurisdiction. It is therefore incorrect to state that “only” domicile establishes

jurisdiction.

Statement (2) is incorrect in two respects. In the first instance, as in the commentary

under statement (1) above, it is incorrect to state that there is “only” one ground for

jurisdiction (in this instance, residence). Secondly, section 2(1)(b) does not refer to

“resident”, but “ordinarily resident”. Again, read legislation accurately.

Statement (4) is incorrect, because the two jurisdiction grounds (domicile and ordinary

residence) are not stated in the alternative – see the comments under statement (1)

above. Due to the use of the word “and”, the impression is created that both grounds

are required for a court to exercise jurisdiction, which is clearly incorrect.

QUESTION 4


(1) A magistrate’s court within whose area of jurisdiction a defendant resides, is vested with

jurisdiction solely by virtue of the common -law principle actor sequitur forum rei.

(2) A claim for delivery of specific movable property without an alternative claim for

damages, even though the claim does not exceed R400 000, cannot be instituted in any

magistrate’s court because it is a claim for specific performance.

(3) Splitting of claims occurs when more than one claim, each based on a separate cause

of action, is contained in a single summons.

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(4) The jurisdictional connecting factor ratione rei sitae is relevant only in respect

of property claims in the High Court.

ANSWER 4


The jurisdiction grounds that apply in the High Court are based on the common law,

and do not apply in the magistrates’ courts – ratione rei sitae is one such jurisdiction

ground. Magistrates’ courts are so-called “creatures of statute”, which means that their

competencies (such as the grounds upon which they may exercise jurisdiction), are

contained in particular sections of the Magistrates’ Courts Act 32 of

1944. In this instance, the approximate jurisdiction ground is contained in section

28(1)(g) which provides that a magistrates’ court will have jurisdiction if the defendant

owns immovable property within the court’s area and the action is in respect of such

property or in respect of mortgage bonds thereon.

Statement (1) is incorrect. It has already been pointed out above under the

commentary relating to statement (4) that the common law jurisdiction grounds do not

apply in the magistrates’ courts. In this instance, the approximate jurisdiction ground

is contained in section 28(1)(a) which provides that a magistrates’ court will have

jurisdiction if the defendant “resides, carries on business or is employed” within the

court’s area of jurisdiction. Note: Students may under no circumstances refer to ratio

domicilii or actor sequitur forum rei (nor to an incola or peregrinus) when answering

jurisdiction questions relating to jurisdiction in the magistrates’ court. Such answers

are wrong, and no marks are awarded.

Statement (2) is incorrect. Section 46(2)(c)(i)-(iii) of the Magistrates’ Courts Act 32 of

1944 clearly sets out three exceptions to this position, and the statement specifically

falls within the ambit of section 46(2)((c)(ii).

Statement (3) is incorrect. Splitting of claims occurs in the exact opposite situation

described in the statement. Section 40 of the Magistrates’ Courts Act 32 of 1944

prevents one cause of action from being split in such a way that separate claims can

be brought in separate actions, each of which falls within the district or regional court’s

jurisdiction.

QUESTION 5

C and D enter into a con tract in Durban in terms of which C has to deliver goods to D’s

business premises in Bloemfontein. Despite demand C fails to deliver the goods. C lives in

Pietermaritzburg and D lives in Johannesburg. D intends issuing summons against C for

delivery of the goods.

Indicate the statement which is the most accurate:

(1) only the magistrates’ courts of Johannesburg and Pietermaritzburg will hear the matter.

(2) only the magistrates’ courts of Durban and Pietermaritzburg will have jurisdiction to hear

the matter.

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(3) only the magistrates’ courts of Durban, Pietermaritzburg and Bloemfontein will have

jurisdiction to hear the matter.

(4) only the magistrate’s court of Pietermaritzburg will have jurisdiction to hear the

matter.

ANSWER 5


The magistrate’s court of Pietermaritzburg has jurisdiction based on section 28(1)(a)

of the Magistrates’ Courts Act 32 of 1944 (the Act) which provides that a court has

jurisdiction over a defendant who “resides, carries on business or is in the employ”

within that court’s area of jurisdiction. In this instance the defendant, C, lives in

Pietermaritzburg, and therefore “resides” in terms of this section. Because the cause

of action did not “wholly” arise in either Durban or Bloemfontein (see below),

Pietermaritzburg is the only court vested with jurisdiction in terms of section 28 of the

Act.

Statement (1) is incorrect. Although Pietermaritzburg does have jurisdiction to hear

the action (see statement (1) above), there is no ground of ju risdiction on which the

magistrate’s court of Johannesburg can exercise jurisdiction. Although section 28 of

the Act refers to “any person”, in all instances referred to in this section, “person”

means the defendant only – the position of the plaintiff is not relevant for jurisdictional

purposes.

Statement (2) is incorrect. Although Pietermaritzburg does have jurisdiction to hear the action

(see statement (1) above), there is no ground of jurisdiction on which the magistrate’s court of

Durban can exercise jurisdiction. Section 28(1)(d) of the Act provides that a magistrate’s court

will have jurisdiction over an action “if the cause of action arose wholly” within the court’s area

of jurisdiction. The meaning of “wholly” has been held by the courts to mean, in the case of a

contract, that the conclusion of the contract, as well as the breach of contract must occur within

the same court’s area of jurisdiction. In this instance, only the conclusion of the contract occurred

in Durban, and therefore the cause of action did not “wholly” arise within the Durban court’s area

of jurisdiction.

Statement (3) is incorrect. As discussed in the commentary above, although the

magistrate’s court of Pietermaritzburg has jurisdiction, the Durban magistrate’s court

does not. The Bloemfontein magistrate’s court also does not have jurisdiction in terms

of section 28(1)(d), because only breach of contract (the failure to deliver the goods)

occurred in Bloemfontein. Again, the cause of action did not arise “wholly” in the

court’s area of jurisdiction.

QUESTION 6

Indicate the most accurate statement.

(1) Whether a material dispute of fact exists between parties is the only factor which

determines whether proceedings may be instituted by way of application proceedings,

or by way of summons proceedings.

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(2) The three sets of affidavits which are usually exchanged between the parties in

application proceedings are the supporting affidavit, the answering affidavit and the

replication.

(3) A power of attorney usually seeks to define the extent of an attorney’s mandate.

(4) Urgent applications are used when the relief sought is a preliminary step in the

proceedings.

ANSWER 6


Most litigants instruct an attorney to act on their behalf in litigation proceedings, and

these instructions are confirmed and set out in a document known as a “power of

attorney”. Should an attorney’s mandate be disputed, a properly executed power of

attorney will offer proof of such mandate.

Statement (1) in incorrect, as other factors also need to be considered. Legislation or

the Uniform Rules of Court may in certain instances prescribe the use of application

proceedings, while summons proceedings are compulsory in instances such as

divorce and claims for damages. When a matter falls outside the ambit of these

instances (i.e., it is neither prescribed nor forbidden), application proceedings may be

used if there is no material dispute of fact (or is there is such a dispute, it can

satisfactorily be decided without the necessity of oral evidence).

Statement (2) is incorrect. The third type of affidavit in the set of affidavits that may be

exchanged between the parties, is called the “replying affidavit” – a replication is a

pleading which is only used in summons proceedings, never in application

proceedings.

Statement (4) is incorrect. Urgent applications are used when relief is needed urgently

and there is not enough time to obtain the relief by following the prescribed procedures

to place the matter before court. An example is when a person wishes to stop the

imminent demolition by a neighbor of a high boundary wall that could collapse onto a

building on his adjoining property, causing its possible destruction. On the other hand,

an ex parte application is used if the relief sought is a preliminary step in the

proceedings and necessary in order to bring the other party before court. An example

is when an order for the attachment of the property of a peregrine of the Republic is

sought to vest a court with jurisdiction.

QUESTION 7


(1) An interlocutory application is brought by way of a notice of motion.

(2) If a party wishes to oppose an application, he or she must deliver a notice of intention

to defend within the stated dies induciae.

(3) Ordinary application proceedings always commence with a notice of motion.

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(4) An ex parte application is used when after a divorce, one of the parents applies for an

amendment of access rights in respect of the minor children.

ANSWER 7


Uniform Rule 6 and magistrates’ courts rule 55 both prescribe the use of a notice of

motion when using application proceedings to commence proceedings.

Statement (1) is incorrect. An interlocutory application does not commence

proceedings but is used when proceedings have already commenced. This

application is therefore not brought on notice of motion, but only “on notice”.

Statement (2) is incorrect. If a party wishes to oppose an application, he or she must

deliver a notice of intention to oppose. A notice of intention to defend is used only in

respect of action/summons proceedings.

Statement (4) is incorrect. An ex parte application is used only when the rights and

interests of the applicant is affected by the relief sought. In this instance the access

rights of one of the parents are clearly in danger of being affected negatively, and the

audi alteram partem principle dictates that such a party must be given notice of the

proceedings to enable him or her to heard in the matter. Clearly an ordinary

application would be the correct application to use in these circumstances.

QUESTION 8


Summary judgment is relevant in the following circumstances:

(1) Where a claim is for breach of contract and the defendant gives notice of intention to

defend simply to delay proceedings.

(2) Where the claim is for goods sold and delivered and the plaintiff contends that

the defendant does not have a bona fide defence and that appearance to defend

was simply entered to gain time.

(3) Where the claim is for specific performance and the defendant does not have a bona

fide defence.

(4) Where the claim is for the delivery of ten specially marked items and the defendant fails

to timeously deliver a notice of intention to defend.

ANSWER 8


Uniform Rule 32(1) and magistrates’ courts rule 14(1) set out the types of claim which

would allow the bringing of an application for summary judgment. One such claim is

for “a liquidated amount in money”. The claim referred to in the statement is for the

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payment of a specified amount (usually as per an invoice) and can thus be described

as a claim for a liquidated amount of money. Note that the types of claim contained in

the above court rules, are examples of claims falling within the definition of a “debt or

liquidated demand”.

(See Uniform Rule 32(1) and magistrates’ courts rule 14(1); Study Guide unit 23.4;

and Pete et al 252-259.)

Statement (1) in incorrect. In a claim for breach of contract damages are normally

claimed. Damages are by their nature unliquidated and fall outside the ambit of the

claims set out in the court rules above.

statement (3) in incorrect. A claim for specific performance falls outside the ambit of

the court rules above. However, summary judgment could be brought in the

magistrates’ court on a claim for specific performance, provided the claim fell within

the exceptions set out in section 46(2)(c)(i)-(iii).

Statement (4) is incorrect. Although the claim is for the delivery of specified movable

property as provided for in Uniform Rule 32 and magistrates’ courts rule 14, summary

judgment is only considered once notice of intention to defend is delivered. Where a

defendant fails to deliver such notice timeously, the plaintiff may thus consider

applying for default judgment, not summary judgment.

Question 9

In the High Courts the position is as follows --

(1) Pleadings are deemed closed only after the plaintiff has filed his or her replication.

(2) In reply to a defendant’s counterclaim, a defendant in reconvention may file a

replication in reconvention.

(3) An exception may be raised only against a declaration or the particulars of claim.

(4) It is possible to inspect a clearly specified document or tape recording in a party’s possession and relating to a reasonably anticipated issue in the action before the close of pleadings.

ANSWER 9


In term of Uniform Rule 35(14), after an appearance to defend has been entered, any

party may for purposes of pleading require from the other party to make available for

inspection within five days, a clearly specified document or tape recording in his or

her possession which is relevant to a reasonable anticipated issue in the action, and

to allow a copy or transcription to be made. This rule thus facilitates inspection before

the close of pleadings, but it must be noted that it is for a very specific purpose –

therefore, do not confuse this with inspection to assist with the preparation for trial

which occurs only after close of pleadings.

Statement (1) is incorrect in two respects. Uniform Rule 29 sets out four instances

when pleadings are deemed closed. Therefore, it is clearly incorrect to state that

pleadings are deemed closed “only” (after a certain event occurs). Be careful of so-

called absolute statement. Statements containing words such as “only”, or “always”

are absolute statements and should be carefully considered, because, depending on

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the statement, more often than not exceptions may apply or there may be several

options, etcetera available, thus rendering the statement incorrect. Furthermore,

Uniform Rule 29(b) specifically states that pleadings are considered closed if the last

day allowed for filing a replication or subsequent pleading has elapsed and filing

has not taken place. This instance was thus stated in too narrow terms, and this option

could only have been eliminated had students consulted the particular court rule.

Statement (2) is incorrect. When a defendant files a counterclaim, the claim in

reconvention is introduced. The plaintiff (who is now the defendant in reconvention),

should respond to the counterclaim of the defendant (now the plaintiff in

reconvention), by filing a plea on the merits in reconvention (and not a replication in

reconvention!). As in the case in con vention where a defendant must respond to the

plaintiff’s claim, so must a defendant in reconvention also respond to the claim in

reconvention. If not, he or she runs the risk of having a default judgment being granted

against him or her. Note: a replication is used only when a defendant (either in

convention or reconvention) raises new facts in a plea on the merits which require a

response from the plaintiff (either in convention or in reconvention).

Statement (3) is incorrect. A party may in terms of the court rules raise an exception

to any pleading if that pleading is (a) vague and embarrassing, and/or (b) does not

disclose a cause of action or defence. Clearly the ambit of the statement is too narrow,

as a defence is raised in a plea on the merits.

QUESTION 10


(1) A High Court derives the power to review the proceedings of inferior courts from

the Superior Courts Act, 2013.

(2) The Constitutional Court is the highest court of appeal in respect of certain civil matters.

(3) Lower court proceedings are reviewed by way of the summons procedure.

(4) Both appeal and review must take place within a reasonable time.

ANSWER 10


The proceedings of a lower court and quasi-judicial bodies are subject to review.

Section 21(1)(b) of the Superior Courts Act of 2013 authorises the divisions of the

High Court to review only proceedings of the lower courts. The procedure pertaining

to review is set out in Uniform Rule 53.

Statement (2) is incorrect. The Constitution Seventeenth Amendment Act, 2012

provided that the Constitutional Court is the so-called apex court or the highest court

in all matters. This means that the Constitutional Court may decide not only

constitutional matters, but also any other matter. The Supreme Court of Appeal is no

longer the court of final instance in non-constitutional matters, and a matter can now

be appealed from the Supreme Court of Appeal to the Constituti onal Court.

28

Statement (3) is incorrect. Uniform Rule 53 provides that “an application” (thus motion

proceedings) must be used when the review of a decision of any inferior court or

quasi-judicial body is sought.

Statement (4) is incorrect. Only review mu st take place within a reasonable time. In

the case of an appeal, very specific time limits are set out in the rules of court – for

example, see Uniform Rule 49(1)(b) and Uniform Rule 50(1).

2019 – SEMESTER 2 - ASSIGNMENT 01

QUESTION 1

Briefly explain why the introduction of the small claims courts was successful in increasing

access to justice for litigants in South Africa. (6)

The introduction of the small claims court is successful in increasing access to

justice for litigants in South Africa for the following reasons:

• It makes the administration of justice more accessible to all South Africans;

• It provides a forum for the settling of minor civil disputes;

• It removes time-consuming, formalistic and expensive procedures;

• It introduces informal and simplified procedures to reduce the cost of litigation

and provide for a speedy determination of small claims;

• It establishes a consumer-oriented court.

COMMENT:

When using the expression “administration of justice”, one generally understands it

to refer to the process by which a legal system provides for the just and fair

treatment of individuals.

QUESTION 2

(a) An action for damages for breach of contract which occurred in Johannesburg is instituted

in the Johannesburg High Court. The plaintiff is an incola of the court, and the

defendant is an American businessman resident and domiciled in America. The

defendant owns a flat in Johannesburg.

(i) Will the plaintiff succeed with an application for the attachment of the defendant’s

property in the Johannesburg High Court? Explain fully. (3) Where the defendant

is a peregrinus of the whole Republic (in other words, a foreign peregrinus), a South

African court will exercise jurisdiction over such a person only after attachment of his

or her property has taken place, either as attachment ad confirmandam iurisdictionem

(requiring the cause of action to have occurred within the particular court’s area of

jurisdiction apart from the attachment), or attachment ad fundandam iurisdictionem

29

(where the plaintiff is an incola of the court and the attachment of the defendant’s

property has taken place).

On the given facts, the defendant is a peregrinus of the whole Republic as

he is resident and domiciled in America. He also owns attachable property (a

flat in Johannesburg, thus within the court’s area of jurisdiction). Furthermore,

the plaintiff is an incola of Johannesburg.

Therefore, the Johannesburg High Court will have jurisdiction on the basis of:

- Attachment ad confirmandam (cause of action within the area of the

court concerned) plus attachable property; and Attachment ad

fundandam iurisdictionem (plaintiff an incola of the court concerned)

plus attachable property.

(See Pete et al 110-112 and study guide unit 8.4.3.)

(i) Would your answer to (i) change if the defendant was no longer living or domiciled in

America, but was a South African citizen permanently living in

Cape Town? Explain fully. (2)

Yes. In this instance, the defendant is now an incola of the Republic and therefore,

the common law rules relating to jurisdiction will be applicable. Accordingly,

when dealing with a claim relating to a contract, the court in wh ose area of

jurisdiction the contract was concluded or breached or where the contract

was to be performed, will have jurisdiction. This is known as the exercise of

jurisdiction ratione contractus. (Under common law, this falls within the ambit

of ratione rei gestae). Also, a court in whose area of jurisdiction a defendant

is an incola, will have jurisdiction ratione domicilii (based on the principle

actor sequitur forum rei). Finally, section 28(1) of the Superior Courts Act,

2013 prohibits the attachment of property for jurisdictional purposes of a

person domiciled or resident anywhere in South Africa.

On the given facts, the breach of contract occurred in Johannesburg and

therefore, the Johannesburg High Court will have jurisdiction for instituting

the proceedings ratione contractus. However, since the defendant resides in

Cape Town, this court will also have jurisdiction, ratione domicilii.

The answer will thus differ from that in (i) above, both in respect of the particular court having jurisdiction, and the jurisdiction grounds applicable.

(b) Determine whether the following statements are true or false in regard to the exercise of jurisdiction in the magistrates’ court. Explain the reasons for your answers.

(i) Where a contract has been concluded in Pietermaritzburg, but performance has to

take place in Bloemfontein, the magistrates’ courts situated in both

Pietermaritzburg and Bloemfontein will have jurisdiction to hear an action arising

from the breach of contract in terms of section 28(1)(d) of the

Magistrates’ Courts Act 32 of 1944. (2)

30

False. Section 28(1)(d) of the Magistrates’ Court Act 32 of 1944 provides that a

magistrates’ court will have jurisdiction over any person if the cause of action arose

“wholly” within the area of a district or regional division. This has been interpreted by

the courts to mean that not only must the contract have been concluded within the

area of the district or regional division concerned, but also that the breach of contract

must have occurred there as well for the court to have jurisdiction.

On the given facts, the contract was concluded in Pietermaritzburg, but breach of

contract occurred in Bloemfontein. Therefore, neither the Pietermaritzburg

magistrates’ court, nor the Bloemfontein magistrates’ court will have jurisdiction to

hear action in terms of section 28(1)(d) of the Act, as the cause of action did not

“wholly” arise within either court’s area of jurisdiction.

(i) A magistrate’s court is prohibited by section 46 of the Magistrates’ Courts Act 32

of 1944 from making an order directing a defendant to deliver 10 cattle in terms

of a contract after the defendant failed to do, without an alternative claim for

damages. (2)

False. A magistrate’s court is prohibited by section 46 of the Magistrates’

Court Act 32 of 1944 to adjudicate matters in which specific performance is

sought without an alternative claim for payment of damages. However, this

prohibition is subject to the exceptions contained in section 46(2)(c)(i)-(iii),

and does therefore not apply when the delivery or transfer of property,

movable or immovable, and not exceeding in value of the amount determined

by the Minister from time to time by notice in the Gazette, is claimed. “Specific

performance” has been interpreted by the courts to refer to the performance

of a contractual act only.

As cattle are clearly movable property, and as their delivery falls within the

exception provided for in section 42(2)(c)(iii), the court may, on the given

facts, make an order directing a defendant to deliver the cattle.

QUESTION 3

(a) Q is a landlord and Z his tenant. Z is in arrears with his rental. Q issues a summons

against Z for the arrear rental. With regard to these facts, determine –

(i) the appropriate summons with which to institute the action. (1) Simple summons.

A simple summons is employed when the plaintiff’s claim is for a debt or

liquidated claim/demand, as is the case when rental is in arrears (in other

words, is owing).

(ii) the form of service of the summons if Z vacates the property in the dead of night

without leaving a forwarding address but is believed to be living somewhere in the

same province. (1)

Substituted service.

Substituted service is used where a person is believed to be within the

Republic, but service cannot be effected on him or her in terms of the rules

of the court, because it is not known precisely where such person is to be

found.

31

(iii) the procedure that Q could use if Z fails to respond to the summons within the time

stated in the summons. (1)

Q may apply for default judgment against Z.

(iv) the procedure that Q would use if Z files a notice of intention to defend within

the time stated in the summons, and Q believes that Z has done so for no

good reason but simply to delay the proceedings. (1)

(ii) Q may apply for summary judgment.

The summary judgment procedure is designed to protect the plaintiff who has

a claim against the defendant who simply entered an appearance to defend

for the purpose of gaining time and preventing the plaintiff from obtaining the

relief he or she seeks and deserves.

(v) whether it is necessary for Q’s attorney to file a power of attorney with the

court when instituting the action on Q’s behalf. (2)

Q’s attorney is not required to file a power of attorney when issuing a summons. The filing of a power of attorney is, however, required for the conduct or defence of a civil appeal in terms of Rules 7(2) and 7(3) in the High Court.

(b) ) In terms of section 167 of the Constitution of 1996, the Constitutional Court is only a

court of appeal in constitutional matters and is also the only court which may hear

appeals in constitutional matters. Discuss this statement [4]

The statement is incorrect in so far as the Constitutional Court is not “only a court of

appeal in constitutional matters”:

- It is the highest court of appeal in respect of both constitutional and non-

constitutional matters (s 167(3)(a));

- It is the “only” court, only in that it has exclusive jurisdiction to hear

disputes between organs of state at national or provincial level; hear

certain applications by the legislature over the constitutionality of

parliamentary and provincial bills and Acts; take decisions on whether

parliament or the President has failed to comply with a constitutional

duty; and certify provincial constitutions (s 167(4));

- The court may, in exceptional circumstances, grant anyone direct

access when it is in the interests of justice to do so (s 167(6)(a);

- Where the Supreme Court of Appeal, High Court or court of a similar

status has made an order of invalidity in respect of an Act of Parliament,

the Constitutional Court must confirm such an order made by other

courts otherwise it has no force (s 167(5)).

COMMENT:

It is important to note that, in view of the above, the Constitutional Court can function

as either a court of first instance or as a court of appeal.

32

2019 – SEMESTER 2 - ASSIGNMENT 02

QUESTION 1

Indicate the most accurate statement relating to attachment ad confirmandam jurisdictionem:

(1) Where both the plaintiff and the defendant are foreign peregrini of the court and

attachment has taken place.

(2) Where the plaintiff is an incola of the court, the defendant is a foreign peregrinus of the Republic, the cause of action arose within the courts’ area of jurisdiction and attachment has taken place within the court’s area.

(3) The defendant is a peregrinus of the court concerned, the plaintiff is an incola of the court concerned and attachment has taken place.

(4) Both the plaintiff and the defendant are incolae of the court concerned and attachment has taken place.

ANSWER 1


Attachment ad confirmandam iurisdictionem is permissible where the defendant is

(a) a peregrinus of the whole of the Republic; (b) attachment of the defendant’s

property has taken place within the particular court’s area of jurisdiction; and (c) the

cause of action has occurred in this court’s area of jurisdiction. Although the plaintiff

may be an incola of the court concerned, it is not a requirement, and it thus makes no

difference whether the plaintiff is an incola or a peregrinus of this court.

Statement (1) is incorrect. For a court to be vested with jurisdiction in respect of such

parties, the cause of action must have arisen within its jurisdiction area. The

statement does not include this requirement, and therefore attachment cannot in any

event confirm partial or imperfect jurisdiction.

Statement (3) is incorrect. The statement does not specify that the defendant is a

foreign peregrinus, and therefore he or she may very well be a local peregrinus, in

which event attachment is prohibited under section 28 of the Superior Courts Act of

2013. This section prohibits the attachment of property of an incola of the Republic.

Statement (4) is incorrect. In view of the comments regarding (3) above, attachment

cannot take place as it is prohibited. Furthermore, since the defendant is an incola of

the court concerned, this court would have jurisdiction ratione domicilii, also rendering

attachment unnecessary, apart from being prohibited.

(See study guide unit 8.2.)

QUESTION 2


33

In terms of the provisions of section 2(1) of the Divorce Act of 1979 read with section 1(1) of

the Domicile Act of 1992, a court may exercise divorce jurisdiction on the following grounds:

(1) if the wife is resident in the jurisdictional area of the same High Court where her husband

is resident;

(2) if the wife is domiciled and resident in the area of jurisdiction of a High Court at the time

of the institution of the action;

(3) if one spouse is domiciled in the area of jurisdiction of a High Court on the date

on which the action is instituted;

(4) if both or either of the spouses are ordinarily resident in the area of jurisdiction of a High

Court on the date on which the action is instituted and have or has been ordinarily

resident in the area of the court for one year immediately prior to the institution of the

action.

ANSWER 2


The wording of section 2(1) of the Divorce Act 70 of 1979 makes it clear that a court

shall have jurisdiction if both or either of the parties comply or complies with the

domicile or the residence requirements: see section 2 that provides “… if the parties

are or either of the parties is …”.

COMMENT:

It is important to note that only one spouse needs to comply for the court to jurisdiction

in divorce matters in terms of section 2(1)(a) and (b) of Divorce Act 70 of 1979.

Statement (1) is incorrect. The wife does not necessarily have to reside in the same

jurisdiction area for the court to have jurisdiction. It is important to note that a court

may exercise jurisdiction in the case of a divorce if only one of the parties is either

domiciled or resident in its area of jurisdiction.

Statement (2) is incorrect. Domicile and residence are alternative grounds for

jurisdiction: note the wording of section 2 which refers to domicile ‘’or’’ residence as

jurisdiction grounds.

Statement (4) is incorrect. The provisions of section 2(1)(b) of Divorce Act 70 of 1979

requires that both or either of the parties must be an ordinary resident in the area of

jurisdiction of the court on the said date and must have been ordinary resident “in the

Republic for a period of not less than a one year immediately prior to that date”.

COMMENT:

It is important that the precise wording of the Act is followed, and it is therefore

incorrect to state that the requirement is” one year”.

QUESTION 3

34

(1) The district magistrates’ courts can adjudicate on divorce matters according to the

jurisdiction of the Regional Magistrates’ Courts Amendment Act.

(2) A court may exercise divorce jurisdiction only if the wife is resident in the jurisdictional

area of the court and the husband is resident outside the Republic.

(3) Section 28(1A) of the Magistrates’ Courts Act provides the regional magistrates’

courts with divorce jurisdiction.

(4) A court may exercise divorce jurisdiction only if the wife is domiciled in the court’s area

of jurisdiction at the time of the institution of the action.

ANSWER 3


Section 28(1A) of the Magistrates’ Court Act 32 of 1944 provides that a regional

magistrates’ court shall have divorce jurisdiction over both parties who are or either

party who is domiciled in the court’s area of jurisdiction on the date on which the

proceedings are instituted, or ordinarily resident in the court’s area of jurisdiction on

the said date and has or have been ordinarily resident in the Republic for a period of

not less than one year immediately prior to that date.

Statement (1) is incorrect. Section 28(1A) confers divorce jurisdiction on the regional

magistrates’ court, and not on the district magistrates’ court. The district magistrates’

court does not have jurisdiction to adjudicate divorce matters.

Statement (2) is incorrect as it is not “only” the wife’s residence that determines

jurisdiction. The regional magistrates’ court shall have divorce jurisdiction over both

who are or either party who is domiciled in the court’s area of jurisdiction on the date

on which the proceedings are instituted or ordinarily resident in the court’s area of

jurisdiction on the said date and has been ordinarily resident in the Republic for a

period of not less than one year immediately prior to that date.

Statement (4) is incorrect. Again, it is not “only” the wife’s domicile that determines

jurisdiction. The regional magistrates’ court shall have divorce jurisdiction over both

or either party who are or is domiciled or resident as stipulated in the section.

QUESTION 4

(1) When it is said that a court exercises “inherent jurisdiction”, this means that its

jurisdiction is derived from statute.

(2) South African civil procedure is inquisitorial in nature.

(3) The jurisdictional connecting factor (nexus) ratione rei sitae is relevant only in respect

of money claims.

35

(4) The doctrine of effectiveness means that a court will be competent to exercise

jurisdiction if compliance with the judgment can be expected.

ANSWER 4


The doctrine of effectiveness is one of the common law principles on which the

exercise of jurisdiction is based. A court will not exercise jurisdiction unless it is able

to give an effective judgment; in other words, unless compliance with the judgment

can be expected. Although the purpose of the doctrine of effectiveness is to ensure

that court proceedings are not completely futile from the start, it is important to note

that it does not guarantee compliance with all judgments.

Statement (1) is incorrect. The term “inherent jurisdiction” means that the court’s 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’s

exercising its inherent jurisdiction is that it has discretion regarding its own procedure.

Statement (2) is incorrect. The South African system of civil procedure adheres to the

adversarial system of litigation because it forms part of the Anglo-American system of

civil procedure. All South African courts, except the small claims court, apply

adversarial principles and procedures.

Statement (3) is incorrect. The jurisdiction ground ratione rei sitae is relevant only in

respect of property claims. Under common law the court where the property is situated

is the court that has jurisdiction to hear claims relating to such property. If the property

is immovable, the relevant court will have exclusive jurisdiction.

QUESTION 5


(1) The Roman-law rule actor sequitur forum rei means that the plaintiff must institute

action against the defendant in the High Court within whose area of jurisdiction the

defendant is a citizen.

(2) The ratione rei gestae applies when a court, in whose area of jurisdiction property or a

person is situated/resident, has exclusive jurisdiction over that property or person.

(3) An application for attachment must be brought before the main action

commences, and the applicant must show that, prima facie, he or she has a cause

of action.

(4) On the basis of the ratione domicilii, a High Court may not exercise jurisdiction unless

the defendant is physically present within its area of jurisdiction.

ANSWER 5


36

The correct procedural stage for such an application is before the main action

commences, and the applicant must show that, prima facie, he or she has a cause of

action. This application is separate from the main action and is thus decided

separately.

Statement (1) is incorrect. The Roman-law rule actor sequitur forum rei means that

the plaintiff must institute action against the defendant in the area in which the

defendant is domiciled or resident. (Its literal meaning is that one must follow a

defendant to his or her court.) Citizenship of a country is not relevant for purposes of

jurisdiction when determining whether someone is an incola or a peregrinus.

Statement (2) is incorrect. The jurisdiction ground ratione rei gestae under common

law applies in respect of monetary claims in the following instances: if the contract

that is the subject of 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. 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 commissi.

Clearly this jurisdiction ground does not relate to property or to a person, nor does it

give exclusive jurisdiction. The jurisdiction grounds ratio domicilii relates to a person,

and ratione rei sitae relates to property. Only when the latter applies to immovable

property, does a court have exclusive jurisdiction.

Statement (4) is incorrect. Ratione domicilii does not require the physical presence of

a defendant, but requires that the defendant must technically “reside” within a court’s

area of jurisdiction. This amounts to more than mere physical presence, but less than

domicile and speaks to a defendant’s intention as it relates to his or her place of

residence.

COMMENT:

Please remember that common law jurisdiction grounds apply only to superior courts

(in particular, the High Court), and never to the magistrates’ courts. These common

law jurisdiction grounds may thus never be used to describe jurisdiction grounds in a

magistrates’ court, and you will be penalised in the examination for doing so.

Remember, magistrates’ courts are creatures of statute, so therefore the Magistrates’

Courts Act 32 of 1944 contains the various grounds for exercising jurisdiction in a

particular instance.

QUESTION 6


If the plaintiff’s claim is based on a dishonoured cheque, the action may be instituted by way

of the following type of summons:

(1) only the simple summons

(2) either the provisional sentence summons or the simple summons

37

(3) the combined summons

(4) only the provisional sentence summons

ANSWER 6


A cheque is an example of a liquid document. Although the provisional sentence

summons was specifically designed for use when a claim is based on a liquid

document, Uniform Rule 32(1) and magistrates’ courts rule 14(1) provide that, where

the defendant has delivered a notice of intention to defend, the plaintiff may apply to

court for summary judgment on each of such claims in the summons as is only-

(a) on a liquid document;

(b) for a liquidated amount in money;

(c) for delivery of specified movable property; or

(d) for ejectment; together with any claim for interest and costs.

Clearly both procedures may be used.

COMMENT:

In practice a plaintiff’s choice between the two procedures will be determined by the

question which procedure in the particular circumstances provides the quickest and

cheapest relief.

Statement (1) is incorrect. See the explanation in respect of option (2) above. Although

a simple summons may be used, it is clearly not the “only” procedure available.

Statement (3) is incorrect. The combined summons is used where the plaintiff’s claim

is unliquidated, that is, where it is not a claim for a debt or liquidated demand. Matters

for which a combined summons is used often involve serious factual disputes that

require the leading of oral evidence to prove the quantum of the claim.

Statement (4) is incorrect. See the explanation in option (2) above. Although a

provisional sentence summons may be used, it is clearly not the “only” procedure

available.

QUESTION 7


(1) An offer to settle in terms of Uniform Rule 34 can be used in both

summons and application proceedings.

38

(2) A judgment can only be delivered at the end of a trial, because the court is only

competent to deliver a judgment after hearing and properly considering the

evidence.

(3) If a party intends instituting an action and a document which is vital in support

of the claim is in the possession of a party who is to become the defendant in

such an action, the prospective plaintiff may request the prospective defendant

to make discovery thereof in terms of Uniform Rule 35.

(4) Only viva voce evidence may be given by a witness in open court.

ANSWER 7


The Uniform Rules 34(14) provides that this rule shall apply mutatis mutandis where

the relief is claimed on motion or a claim in reconvention or in terms of Rule 13. An

offer to settle is thus clearly applicable also in application (motion) proceedings.

Statement (2) is incorrect. Judgment is not “only” delivered at the end of a trial. There

are various instances in which a party may approach the court for judgment prior to a

trial, such as consent to judgment; default judgment and bar; summary judgment and

summary dismissal.

Statement (3) is incorrect. In terms of Uniform Rule 35(14) and magistrates’ courts

rule 23 discovery may not be requested until after the close of pleadings. Discovery

relates to all documents and tape recordings relevant to any matter in dispute in the

action.

Statement (4) is incorrect.

Although the general rule is that a witness must give evidence viva voce (orally) and

in open court (Uniform Rule 38(2)), there are exceptions to the rule where special

circumstances exist. A witness may then be allowed to give evidence in the following

ways: on commission; by way of interrogatories and by way of affidavit.

QUESTION 8


(1) The discovery of documents in the magistrates’ courts is important because it allows a

litigant to set down his or her case for trial.

(2) A defendant may consent to judgment for a smaller amount than claimed in the

summons, but he or she may then defend the action in respect of the balance of

the claim.

(3) A party may request further particulars for purposes of pleading in the magistrates’

courts in terms of rule 16 of the Magistrates’ Courts Rules.

(4) In terms of rule 21A of the Magistrates’ Courts Rules, the court only may declare

pleadings closed, and parties may not agree that pleadings have closed.

39

ANSWER 8


A defendant may consent to judgment for a smaller amount than claimed in the

summons, but he or she may then defend the action in respect of the balance of the

claim.

Statement (1) is incorrect. Discovery is not only important in the magistrates’ court,

but also in the High Court because it enables a litigant to prepare for his or her trial.

The procedure does thus not in any way relate to the setdown of a matter for trial.

Statement (3) is incorrect. Magistrates’ courts rule 16 clearly provides that unless such

further particulars as are strictly necessary to enable the requesting party to prepare

for trial is sought, further particulars may not be requested. Furthermore, it follows that

a request for further particulars may be requested only after close of pleadings.

Statement (4) is incorrect. Apart from the fact that parties may agree in writing that

pleadings are closed (magistrates’ courts rule 21A(c)), pleadings shall be considered

closed if

- either party has joined issues without alleging any new matter, and without

adding any further pleading;

- the last day allowed for filing a replication or subsequent pleading has elapsed

and it has not been filed; or

- the parties are unable to agree as to the close of pleadings, and the court

upon the application of a party declares them closed.

QUESTION 9

Bar may be raised in the following circumstances:

(1) The defendant does not timeously give notice of intention to defend

(2) A party fails to appear at the trial

(3) A party fails to timeously deliver a declaration

(4) A party fails to timeously request further particulars for purposes of trial

ANSWER 9


Bar applies only to pleadings (see Uniform Rule 26 and magistrates’ courts rule 21B).

A declaration is of course a pleading (as opposed to a process – see study unit 19 for

the various definitions!). Hence, a plaintiff who fails to timeously deliver a declaration

40

and persists in such failure after receiving a notice of bar, will be in default in respect

of such a declaration and ipso facto barred (magistrates’ courts rule 15(5)).

COMMENT:

It is important that you are able to distinguish between a pleading and a process.

Within this context, “process” refers to a document, and not to an ongoing state (such

as a litigation process which would refer to litigation from start to finish). The distinction

is important, inter alia, because certain rules and procedures apply only to pleadings

(such as bar).

Statement (1) is incorrect. A notice of intention to defend is a process and not a

pleading. Bar applies only to pleadings.

Statement (2) is incorrect. Failure of a party to appear at a trial may result in default

judgment.

Statement (4) is incorrect. A party is not compelled to request such particulars, nor

may a party as a matter of course request it – he or she may only do so in very

particular circumstances (see the feedback in respect of Question 8, option (3)

above). However, if a party may request such particulars and fails to do so, there are

certain consequences for his or her case. A party who fails to timeously request further

particulars places himself or herself at risk of not being fully and properly prepared for

trial. The purpose of the request for further particulars is to inform a party more fully

about what facts the opponent intends to prove, and to put to him or her in a position

to prepare for trial.

QUESTION 10


(1) The proceedings of all courts and quasi-judicial bodies are subject to review.

(2) A court hearing an appeal from a lower court, as in the case of a court of first instance,

consists of a single judge.

(3) A litigant who is dissatisfied with the outcome of a matter in a magistrates’ court

always has one appeal as of right.

(4) Both appeal and review must take place within a reasonable time.

QUESTION 10


Section 83 of the Magistrates’ Court Act 32 of 1944 provides a party with a right to

appeal, which means leave to appeal need not be obtained.

Statement (1) is incorrect. The proceedings of all courts are not subject to review. In

terms of section 21(1)(b) of the Superior Courts Act, 2013 the High Court is authorised

to review the proceedings of lower courts. Superior courts also have inherent

jurisdiction to entertain all causes arising within their area of jurisdiction. This means

41

that a superior court has the jurisdiction to review the proceedings of any body or

tribunal empowered to perform statutory duties, as well as to review the proceedings

of quasi-judicial bodies.

Statement (2) is incorrect. Section 14(3) of the Superior Courts Act, 2013 provides

that a court hearing an appeal from a lower court consists of two judges.

Statement (4) is incorrect: The rules governing civil appeals provide that an appeal

must be noted within a stipulated number of days, and that the steps to prosecute it

must be taken within a further limited period. However, there is no fixed period within

which the review of proceedings must be brought, but it must be done within a

“reasonable time”.to keep our students up to date with new developments, so that

they are aware of these changes when they enter practice. This is particularly

important for students who are currently in their final year of study, or who are entering

practice shortly.

In some instances, the amendments published in the Government Gazettes amount

to cosmetic changes (improved wording; the removal of sexist language; the

replacement of Latin phrases with plain language; etcetera) and these changes will

not be indicated below. We confine this notification only to substantial changes to the

court rules. We reiterate, amendments that must be studied for examination purposes

are clearly indicated.

4.1 Amendments to the Study Guide

4.1.1 Ad study unit 3.8

Since its publication in the Government Gazette ( GG No 38022 of 22 September

2014), the Legal Practice Act 28 of 2014 has come into operation piecemeal. This Act

provides, inter alia, for the restructuring of the legal profession; the establishment and

functioning of a single South African Legal Practice Council and Provincial Councils

in order to regulate the affairs of legal practitioners and their conduct to ensure

accountable conduct; and the admission and enrolment of legal practitioners.

The South African Legal Practice Council was only recently established, and in future

attorneys and advocates will be admitted and enrolled in terms of this Act. As the Act

repeals the Attorneys Act, 1979 as well as the Admission of Advocates Act, 1964 in

toto, any reference to these repealed acts or to law societies and bar councils (in

particular in study unit 3.8), should be read to refer to the Legal Practice Act, 2014

and the South African Legal Practice Council and Provincial Councils respectively.

Please note that while the Act refers to attorneys and advocates, section 24 makes

provision only for the admission and enrolment of a “legal practitioner”, and all legal

practitioners must comply with the requirements contained in section 24(2), read with

section 26 regarding the required qualifications.


The quantitative jurisdiction limit for the small claims courts has been increased with

effect from 1 April 2019: see GG No 42282 of 5 March 2019.

Delete the reference to “R15 000” in line 17, page 25, and replace with “R20 000”.

Study this amendment for purposes of the examination. Ad study unit 21.8

42

Note the following:

Uniform Rule 30A no longer only enforces compliance with the Uniform Rules, but

now also provides that an order or direction made in a judicial management process

referred to in Uniform Rule 37A be complied with. As in the case of a court rule, failure

to comply with such an order or direction may lead to the striking out of the claim or

defence (as the case may be).


Please note that the procedure regarding summary judgment in the High Court has

undergone a drastic amendment.

Rule 32(2) now provides that a plaintiff may, after a defendant has delivered a plea

on the merits (no longer a notice of intention to defend!), apply for summary judgment.

In the accompanying affidavit, the plaintiff must no longer aver that the defendant has

no bona fide defence and that appearance has simply been filed to delay the action.

Instead, the plaintiff must now (a) verify the cause of action (and the amount claimed);

(b) identify any point of law relied upon and the facts upon which the claim is based;

and (c) briefly explain why the defence as pleaded does not raise any issue for trial.

The rest of the procedure has essentially remained the same, and the information in

the textbook in this regard is self-explanatory.

4.1.4 Ad study unit 24.3.4

Note that the timeframes for giving notice of intention to call an expert and for delivery

of the summary of an expert’s opinion and the reasons therefor have changed. In both

cases, the time periods for compliance start to run after close of pleadings (and are

no longer determined with reference to the trial date). However, both must be

delivered on the opposing party before a first case management conference is held

in terms of Uniform Rule 37A.

In keeping with the objective of the Rule, Rule 36(9A) now requires that the parties

must endeavour to appoint a single joint expert and to file a joint minute of experts.


Insert the following as a new study unit 24.3.7:

“24.3.7 Judicial case management

A new Uniform Rule 37A now introduces a judicial case management system into our

system of civil procedure. This is an attempt to alleviate congested trial rolls, and to

address the problems that cause delays in the finalisation of cases. In other words,

this system aims to improve the efficiency of the civil judicial system by expediting

adjudication and thus, in so doing, improve access to justice.

This system shall apply at any stage after a notice of intention to defend has been filed

in –

43

(a) those categories of defended actions as determined by the Judge President of

any Division in a Practice Note or Practice Directive; and

(b) in any other proceedings that the Judge President determines of own accord or

upon the request of a party to be appropriate for case management (Rule 37A

(1)).

It should be noted that the provisions of Rule 37 relating to a pre-trial conference do not

apply to matters under case management (Rule 37A (3)) which is understandable,

since both these procedures aim to expedite adjudication.

Should a party in a defended matter which falls within a category designated by the

Judge President, apply for a trial date after close of pleadings, the Registrar must

issue an electronic notice to all parties, informing them –

• of the date, time and place of a case management conference to be presided

over by a case management judge;

• that they must hold a meeting (similar to a pre-trial conference) prior to the case

management conference and must consider the issues identified in Rule 37A

(10) relating to the conduct and trial of the action. These issues relate to matters

such as soliciting admissions with a view to narrowing issues and curtailing the

need for oral evidence; expert witnesses and the feasibility of the appointment

of a single expert; the identity of witnesses; discovery, and other matters that

may expedite the trial-readiness of the case;

• that the plaintiff must, not less than two days before the case management

conference, ensure that the court file has been ordered, secured, paginated and

indexed, and that a minute of the preceding meeting referred to above, has been

delivered, detailing what had transpired at that meeting and what further steps,

if applicable, remain to be taken to render the matter trial-ready with a timetable

indicating when these steps will be taken.

In addition to the above minute, the parties are also required to deliver a detailed

“statement of issues” setting out the issues not in dispute, as well as issues in dispute

and the parties’ respective contentions in this regard (Rule 37A (9)). The Rule allows

a judge a wide scope to engage at a case management conference to enable him or

her to explore settlement of all or some of the issues, including enquiring whether

mediation has been considered; to try and limit the number of witnesses by

agreement; to eliminate unnecessary evidence; and identify and record the issues to

be tried (Rule 37A(11)).

Rule 37A(12) empowers the case management judge to act in a number of ways at

the case management conference, such as certifying the case as trial-ready; refuse

certification; direct that a further case management conference be held; strike the

matter from the case management roll; give a variety of directions, and make any

order as to costs (including de bonis propriis). Unless a matter has been certified trial-

ready, it may not proceed to trial (rule 37A(6)(a)).

A matter will not be certified as trial-ready until the case management judge is satisfied

that

• the case is indeed ready for trial;

44

• the unresolved issues have been adequately defined;

• the requirements regarding discovery and expert testimony (Rules 35 and 36)

have been complied with; and

• any potential causes of delay in commencing or conducting the trial have been

pre-empted as far as possible (Rule 37A(12)).

The record of the case management conference, the minutes submitted by th e parties

and any directions issued by the case management judge, must be included in the

court file and placed before the trial judge (who will ordinarily be a different judge).

However, no record of any settlement discussion or offers may be placed in the file.

Otherwise, the trial judge is entitled to have regard to all documents included in the

court file during the conduct of the trial and in considering any application for

postponement and issues of cost. Failure to comply with the requirements of Rule

37A may attract an adverse costs order. (Rule 37A(13)-(16)).


Note that the pre-trial conference now applies only in cases not subject to case

management as contemplated in Rule 37A.


Make a note of the following on page 147 of the Study Guide:

Uniform Rule 38(1) previously referred to “any deed, instrument, writing or thing”

which a party had in his or her possession or over which the party had control. This

description of the object has now been extended to refer to “any deed, document,

book, writing, tape recording or electronic recording” (collectively referred to as a

“document”) or “thing”. The procedure for the production and inspection (as well as

the copying or photographing thereof) of the document or thing is now provided for in

this Rule.

4.2 Amendments to certain rules of court for general noting

Amendments to the Uniform Rules of Court as well as the magistrates’ courts rules

were published in Government Gazette No 42064 of 30 November 2018, well after

the print date of the current Study Guide for CIV3701.

Although you are not required to study these amendments for purposes of the coming

examinations, our policy is to keep our students up to date with new developments,

so that they are aware of these changes when they enter practice.

This is particularly important for students who are currently in their final year of study,

or who are entering practice shortly. In some instances, the amendments amount to

cosmetic changes (improved wording; the removal of sexist language; the

replacement of Latin phrases with plain language; etcetera) and these changes will

not be indicated below. We confine this notification to substantial changes to the court

rules.

4.2.1 Uniform Rules of Court

45

• Rule 16 Representation of parties

Rule 16(2)(b) now provides that when a party terminates his or her attorney’s authority

to act for him or her, but does not appoint a further attorney to act, such party must

appoint an address within 15 kilometres of the office of the Registrar for the service

of all documents in the proceedings.

When an attorney ceases to act for a party, such attorney may now give notice to the

party by facsimile or electronic mail (instead of by registered post): Rule 16(4)(a). The

formerly represented party must within 10 days after the notice of withdrawal notify

the Registrar of a new address for service. Failure to do so will render such party

liable for the payment of costs occasioned by subsequent service (Rule 16(4)(b).

• Rule 31 Judgment on confession and by default and rescission of judgments

In respect of Study Guide unit 23.3.2, please note that Uniform Rule 31 has been

amended by the insertion of Rule 31(6). The heading of the Rule has also been

amended to include “and rescission of judgments”.

Further instances of rescission of a default judgment is now provided for. This Rule

provides, first, that if a plaintiff consents in writing to a default judgment being

rescinded (set aside), any person affected by such judgment that has been granted,

may apply to court to have the judgment rescinded (Rule 31(6)(a)). Secondly,

provision is now also made that a judgment debtor against whom a default judgment

has been granted (or any affected person) may apply for rescission if the judgment

debt plus interest plus costs granted in the judgment have been paid (Rule

31(6)(b)). An application for rescission in this instance must be accompanied by

“reasonable proof” of such payment and may, after service of the application on the

judgment creditor, be heard by a judge in chambers (Rule 31(6)(c) and (d)).

• Rule 38 Procuring evidence for trial

In the event of a subpoena duces tecum, the description of that which the witness is

required to produce at trial has been redefined: previously the Rule referred to “any

deed, instrument, writing or thing”, and Rule 38(1)(a) now refers to “any deed,

document, book, writing, tape recording or electronic recording (hereinafter referred

to as a “document”) or thing”.

The request for the production of a document must be done by using a new form,

Form 16A, which has been included in the First Schedule. The procedure for the

production of a document or of a thing is con tained in Rule 38(b) and Rule 38(c)

respectively and provides for the Registrar to be informed of the whereabouts of the

document or thing; the conditions upon which inspection, copying or photographing

may take place; and the return of the document or thing.

• Rule 43

This Rule has been substituted for a new Rule 43.

While the procedure contained in this Rule is not specifically included in the syllabus

of this module, you need to take note that the title of the Rule has been changed from

“Matrimonial matters” to “Interim relief in matrimonial matters”, which more accurately

describes the procedure. Importantly, you should also note that “interim custody” has

been substituted for “interim care” (Rule 43(1)(c)) and “interim access” to “interim

46

contact” (Rule 43(1)(d)). The changed terminology will in particular affect the phrasing

used in pleadings and settlement agreements in divorce matters.

4.2.2 Magistrates’ courts rules

In recent years, the Rules Board has sought to start aligning the court rules for the

High Courts and the magistrates’ courts. To this end, rule 52A was inserted after rule

52 to provide for the withdrawal, appointment or substitution of an attorney of record.

• Rule 52A Notice of withdrawal, appointment or substitution as attorney of record

When an attorney ceases to act for a party, provision is now made in rule 52A(1)(a)

for an attorney to inform such party of the fact by delivering a notice at the party’s last

known address, the registrar/clerk of the court, and all other parties to the

proceedings.

Rule 52A(1)(b) requires the attorney to inform the said party to appoint within 10 days

a physical address for service within 15 kilometres of the courthouse, and notify all

other parties and the registrar/clerk of the court of the fact, as well as of a postal

address, facsimile and electronic address. As in the case of Uniform Rule 16, failure

to do so will render the said party liable for the payment of the costs occasioned by

subsequent service (rule 52A(1)(d).

47

2018 - SEMESTER 1

ASSIGNMENT 01

QUESTION 1

(a) X and Y conclude a contract in Pretoria. Y is to sell his car to X for an amount of R500 000. X is a resident of Benoni, Johannesburg. According to the contract, Y is supposed to deliver the car to X in Benoni and Y is to make payment of the purchase price to X upon delivery. X delivers the car and Y fails to pay the agreed amount. X wants to sue for the damages suffered. With these facts in mind answer the following questions:

(i) May X institute proceedings in the South Gauteng High Court, Johannesburg?

(1)

Under common law, the court where the defendant is either domiciled or

resident has jurisdiction to hear a claim sounding in money. This is known as

the exercise of jurisdiction ratione domicilii.

On the given facts, X is a resident of Johannesburg and therefore, South

Gauteng High Court, Johannesburg will have jurisdiction to institutes the

proceedings ratione domicilii. See TL 501/3/2018 unit 2.2.1 and page 100 of

the textbook.

(ii) May X institute proceedings in the North Gauteng High Court, Pretoria (1)

In regard to a claim relating to a contract, the court in whose area of jurisdiction the contract was

concluded or where the contract was to be performed, or where the contract is breached will have

jurisdiction. This is known as the exercise of jurisdiction ratione contractus. (Under common law,

this falls within the ambit of ratione rei gestae).

On the given facts, the contract was concluded in Pretoria, therefore, North Gauteng High

Court, Pretoria will have jurisdiction to institute the proceedings ratione contractus.

(b) Q is a citizen of Namibia residing in Namibia and he also owns a house in Cape Town. Q is invited to a business conference in Durban. Whilst in Durban on his way to the conference, Q collides with another car driven by Y. Y resides in Pretoria and is also attending the conference. Y alleges that the sole cause of the collision is Q. Y suffers damages in the amount of R500 000. Y wants to sue Q for the damages suffered.

(i) Advise Y as to whether the KwaZulu-Natal Local Division, Durban will have jurisdiction to

hear the matter? (2)

(i) Where the defendant is a peregrinus of the whole Republic (foreign

peregrinus), a South African court will exercise jurisdiction over such a person

only after attachment of his or her property has taken place, attachment ad

confirmandam jurisdictionem (requiring the cause of action to have occurred

within the particular court’s area of jurisdiction apart from the attachment).

48

On the given facts, the defendant is a peregrinus of the whole Republic (he

resides in Namibia). The High Court in whose area of jurisdiction the cause of

action (collision) occurred will be able to exercise jurisdiction ad

confirmandam jurisdictionem, provided that the defendant has attachable

property within the Republic, especially within the particular court’s area of

jurisdiction. In this instance it is irrelevant whether the plaintiff is an incola or

peregrinus of the court. The attachment confirms or strengthens the partial or

imperfect jurisdiction that the court has by reasons of the fact that the cause

of action arose within its area.

Therefore, KwaZulu-Natal Local Division, Durban does not have jurisdiction on

the basis of attachment ad confirmandum, since the attachable property is

situated within the Cape Town court’s area of jurisdiction, and not within the

Durban High Court’s area. See TL 501/3/2018 unit 2.2.3 and page 110 of

textbook.

COMMENT:

Although the cause of action arose in the court’s area of jurisdiction, it only has partial

jurisdiction as we are dealing with a foreign peregrinus. It will thus not be competent to

exercise jurisdiction unless attachment (ad confirmandum jurisdictionem) has also taken

place. Please note that the attachment has to happen with the court where cause of action

arose. The attachment strengthens the partial or imperfect jurisdiction that the court has

by reason of the fact that the cause of action (delict) arose within its area of jurisdiction.

(i) Advise whether the Western Cape Division Cape Town will have jurisdiction?

(2)

(ii) Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a

South African court will exercise jurisdiction over such a person only after attachment

of his or her property has taken place, eith er in the form of attachment ad fundandam

jurisdictionem (requiring the plaintiff to be an incola of the court concerned apart from

the attachment) or attachment adconfirmandam jurisdictionem (requiring the cause of

action to have occurred within the particular court’s area of jurisdiction, apart from the

attachment).

On the given facts, the defendant is a peregrinus of the whole Republic. The property (the house) is located in the Western Cape Division, Cape Town. Furthermore, the plaintiff is an incola of Pretoria. However, the court does not meet the requirements for either attachment ad fundandam and ad confirmandam jurisdictionem. Therefore, the Western Cape Division, Cape Town will not have jurisdiction on the basis of attachment.

(ii) Suppose the issue related to the house Q owns in Cape Town, would your answer

to (ii) above change? (2)

(iii) In regard to a claim relating to immovable property, the court where the immovable

property is situated has exclusive jurisdiction in actions to determine the title to

immovable property or the transfer of property. This is known as the exercise of

jurisdiction ratione rei sitae.

On the given facts, the immovable property is situated in Cape Town.

Therefore, the Western Cape Division, Western Cape has jurisdiction ratione

rei sitae. This answer will be different from (ii) above as the issue now involves

immovable property. It does not matter that the defendant is a foreign

peregrinus. See TL 501/3/2018 unit 2.3.1 and page 106 of textbook.

49

COMMENT:

Exclusive jurisdiction applies only to immovable property, as the question whether the

forum rei sitae is exclusive in terms of movable property has not been settled: see study

guide unit 16.

(c) X and Y have been married to each other for 2 years. They both reside in Botswana. Y is sent to Durban by his work. Whilst in Durban for 8 months, Y decides to divorce X. With these facts in mind answer the following question:

(i) Will the KwaZulu-Natal Local Division, Durban have jurisdiction on the matter?

(2)

(b) There are two main grounds on which South African courts may exercise divorce

jurisdiction, namely:

• domicile OR

• residence, based on either section 2(1)(a) or (b) of the Divorce Act 70

of 1979

Section 2 provides that, a court shall have jurisdiction in a divorce action if the

parties are or either of the parties is domiciled in the area of jurisdiction of the

court on the date on which the action is instituted (s 2(1)(a) or ordinarily

resident in the area of the jurisdiction of the court on the said date and have or

has been ordinarily resident in the Republic for a period of not less than one

year immediately prior to that date (s 2(1)(b).

On the given facts, X is domiciled in Botswan a. However, Y has been

ordinarily resident in Durban (the Republic) for a period of 8 months. However,

this is less than one year, as required. Therefore, an action for divorce cannot

be brought in the KwaZulu-Natal Local Division, Durban as neither, s 2(1)(a)

or (b) applies.

QUESTION 2

Y rents a flat from X. When Y’s contract expires, Y refuses to vacate the flat. X approaches the court for an ejectment order. Answer the following questions. (Please note because your understanding of only procedu ral principles is tested, you should ignore the provisions of the so-called “PIE” legislation.)

(a) Name the type of summons that X should use to obtain the above order. (1)

A simple summons. A claim for ejectment is a claim for a fixed or definite thing. As

such, it can be classified as a liquidated claim (demand or a debt). See page 254 of

textbook.

(b) Y gives notice of intention to defend within dies induciae. Name the procedure that

X may now use. (1)

X may apply for summary judgement within 15 days of receiving the notice of intention

to defend. See page 255 of the textbook.

(c) Explain in detail what action Y may take in response to the procedure referred to in

(b) above. (3)

50

Y may give security to the plaintiff to the satisfaction of the registrar or clerk of the court (as the case may be) for any judgment including costs, which may be given or satisfy the court by affidavit or with leave of the court by oral evidence that he has a bona fide defence to the action.

(d) Explain in detail the procedure X may follow if Y fails to file a notice of intention to defend

within dies induciae. (2)

X may apply for a default judgement. In terms of High Court rule 31(2) and Magistrates’ Courts

rule 12(1)(a), default judgment may be granted against a defendant if he fails to deliver a notice

of intention to defend within the time set out in the summons (dies induciae).

(e) Explain in detail whether the combined summons is a pleading or a process. (3) A

combined summons is regarded as a pleading. However, although the summons part is

strictly speaking a process and the particulars of a claim a pleading, these two parts are

inseparably linked (hence a “combined” summons), thus forming a single unit.

[10]

QUESTION 3

(a) X enters into a contract with Y in Pretoria. Y will build a house for X in Soweto. X pays Y

R400 000 for the project. Y resides in Krugersdorp. Y fails to finish building the house

and refuses to do so. X wants Y to finish the building the house. Will any magistrates’

court mentioned herein be competent to force X to finish building the house? (5)

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 (i.e. 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) Name the way in which a defendant, in his plea on the merits, must deal with the material

averments contained in the plaintiff’s particulars of claim. (3)

Magistrates’ courts rule 17(2) provides that the defendant shall in his plea either

admit, or deny, or confess and avoid all material facts alleged in the combined

summons or declarations. See page 203-206 of the textbook.

(c) Briefly explain the purpose of the pre-trial conference in the magistrates’ courts. (2)

A pre-trial conference in the magistrates’ court is regulated by section 54 of the

Magistrates’ Courts Act read with Magistrates’ Courts rule 25. Its purpose is to shorten

the trial. To achieve this, the following issues should be dealt with the simplification of

the issues; the necessity to amend pleadings; the possibility of obtaining admission of facts and avoid delays; the limitation of the number of expert

witnesses and any issue which may aid in the disposal of the matter expeditiously and

in a less costly manner.

51

2018 – ASSIGNMENT 2

QUESTION 1

X and Y are involved in a car accident. X alleges that the accident was solely caused by the

negligence of Y. X has suffered bodily injuries in the amount of R50 000 and damages to

the car in the amount of R100 000. With the above facts, choose the most appropriate

statement:

(1) X can institute a civil claim against Y for damages suffered.

(2) When instituting the claim for damages, X is regarded as the plaintiff and Y is regarded

as the accused.

(3) Y is found liable for damages and is ordered to pay a fine.

(4) In Civil Proceedings, the liability of a defendant or respondent needs to be

proved only on the balance of probabilities.

ANSWER 1


The onus of proof in civil proceedings is on a balance of probabilities. Therefore, the court

must be satisfied that the version put forward by the plaintiff is more probable than that put

forward by the defendant. See page 1 of the prescribed textbook and TL

501/3/2018 unit

1.4 and page 1 of the textbook.

Statement (1) is incorrect. The subject matter of the court proceedings can either be of a

civil or criminal nature. In this instance, either criminal or civil proceedings may be used.

From the given statement, it seems to suggest that P may not “only” institute a claim for

damages arising out of the delict (motor collision), but P may also lay criminal charges in

respect of S’s contravention of the National Road Traffic Act. See page 1 of the textbook.

Statement (2) is incorrect. The parties in criminal proceedings are the complainant or victim

(the party who lays the criminal charges), represented by the state, and the accused (the

party against whom the charge is laid). The parties in civil proceedings (in action

proceedings) are the plaintiff (the party who initiates the proceedings by issuing the

summons) and the defendant (the party against whom the claim is instituted). In application

proceedings, the parties are the applicant (the party bringing the application) and the

respondent (the party opposing the application). Therefore, when instituting the claim for

damages, X, is regarded as the plaintiff and Y is regarded as the defendant. See page 1

of the textbook.

Statement (3) is incorrect. An accused who is found guilty of a criminal offence is usually

punished by means of either a fine or imprisonment or both. A defendant or respondent

who is found liable in a civil matter usually pays damages. Therefore, Y if found liable will

be ordered to pay damages. See page 1 of the textbook.

52

17

QUESTION 2

Choose the most appropriate statement

(1) The three primary processes of alternative dispute resolution are arbitration,

mediation and litigation.

(2) Because mediation is a primary process, it is also regarded as a command process.

(3) Arbitration is an alternative dispute resolution process that has much in

common with litigation.

(4) A mini trial is a derivative of the processes of litigation and mediation.

ANSWER 2


Arbitration is an alternative dispute resolution process that has much in common with

litigation. See page 505 of the textbook.

Statement (1) is incorrect. The three primary ADR processes are negotiation, mediation

and arbitration. Litigation is the mainstream model of dispute resolution, against which

ADR processes are posed as an alternative. See TL 501/3/2018 unit 4.1.

Statement (2) is incorrect. Mediation is a process. The fact that mediation lacks the formalities of a process does not detract from the fact that is a process. It is not a command process as it requires the intervention of a neutral third party to assist the parties to reach a mutually acceptable resolution to their dispute. See page 504 of textbook.

Statement (4) is incorrect. A mini trial is a derivative of the processes of litigation and

negotiation. See page 507 of textbook.

QUESTION 3

Indicate the most accurate statement regarding the small claim’s courts:

(1) Legal representation is now allowed in the small claim’s courts.

(2) A small claim court is not regarded as a court of record.

(3) In the small claims court, the summons are the first documents to be changed between

the parties.

(4) The small claim court does not have jurisdiction to deal with the dissolution of

marriages or customary marriages.

ANSWER 3

53


Section 16 of the Small Claims Courts Act,1984 (hereinafter the “SCCA”) provides that the

small claims court does not have jurisdiction in matters of dissolution of marriages or

customary unions. See page 485 of the textbook and section 16 of the SCCA.

Statement (1) is incorrect. Section 7(2) of SCCA provides that a plaintiff must appear in

person before the court and may not be represented by any person during proceedings.

This means that legal representation is prohibited in the small claims court. See

TL501/3/18 unit 1.2.5 and page 484 of the textbook.

Comment

Note that the section does not prohibit a plaintiff to seek legal assistance prior to the

commencement of the proceedings.

Statement (2) is incorrect. A small claims court is not a court of record. This means that

during trial, the proceedings are not put into writing. However, the commissioner must

record his or her judgment or order and sign it. See page 487 of the textbook.

Statement (3) is incorrect. The letter of demand is the first document to be delivered to the

defendant in the small claims court. In terms of section 29(1)(a) of the SCCA, the defendant

is given 14 days to satisfy the plaintiff’s claim. Section 29(2) confirms that a summons is

not the first document in small claims court proceedings. See TL501/3/2018 unit 1.2.5 and

page 487 of the textbook.

QUESTION 4


(1) The constitutional court may not confirm a decision regarding the constitutionality of

any legislation of the High Court before such legislation can acquire force.

(2) The decisions on whether parliament or President has failed to comply with a

constitutional duty may be adjudicated by the Constitutional Court.

(3) The Supreme Court of Appeal is the highest court of appeal and also the highest court

in respect of all causes of action.

(4) In exceptional circumstances, the Supreme Court of Appeal may be approached

directly.

ANSWER 4


Section 167(4) of the Constitution provides that the Constitutional Court has exclusive

jurisdiction on decisions whether parliament or President has failed to comply with a

constitutional duty. See TL 501/3/2018 unit 1.2.1 and page 10 of the textbook.

Statement (1) is incorrect. Statement (3) is incorrect. The Constitutional Court must confirm

a decision by the High Court or a court of similar status regarding the constitutionality of

an Act of Parliament or of a province before such decision has any force. See section

54

167(5) of the Constitution, as amended by the Constitution Seventeenth Amendment Act

of 2012. Also see section 167(4) of the Constitution and page 9 textbook.

Statement (3) is incorrect. The Supreme Court Appeals is the in termediate appeal court.

It can hear appeals on both constitutional and non-constitutional matter. See page 9 and

TL 501/3/2018 unit 1.2.2.

Statement (4) is incorrect. The Supreme Court of Appeal may never be approached

directly.

QUESTION 5


(1) The Rules Board has the power to amend or repeal rules for both the High Courts and

lower courts.

(2)

(3) Since the rules exist for the courts, a court may not condone a litigant’s non-

compliance with its rules.

(4) Magistrates’ courts rules are referred to as Uniform Rules of the court.


“The rules exist for a court and not the court for the rules”. This means that the rules are

not an end in themselves, but rather a means to an end. The rules of court have statutory

force and are binding on a court. However, the purpose of the rules is to facilitate

inexpensive and efficient litigation, and not to obstruct the administration of justice. See TL

501/3/2018 unit 1.6

Statement (1) is incorrect. The Rule Boars have powers to make, amend or repeal rules

for the efficient, expeditious and uniform administration of justice in the Supreme Court of

Appeal, The High Court and the Magistrate’s courts. See TL501/3/2018 unit 1.6 and

section 6(1) Rules Board).

Statement (3) is incorrect. A court may condone any procedural mistakes or determine any

point of procedure. This means that a cou rt, subject to its competence to do so, may

condone non-compliance with procedure that would lead to substantial injustice to a

litigant, or grant relief for a matter that is not covered by a rule or where a rule is so strict

that it causes substantial prejudice to a litigant. See TL 501/3/2018.

Statement (4) is incorrect. The Magistrates’ Courts Rules are referred to as Magistrates’

Courts Rules. High Court Rules are the referred to as Uniform Rules of Court. See

TL501/3/2018 unit 1.5.1.

QUESTION 6


(1) An interlocutory application is brought by way of a notice of motion.

(2) If a party wishes to oppose an application, he or she must deliver a notice of intention

to defend within dies induciae.

(3) Ordinary application proceedings always commence with a notice of motion.

The rules of the court are a means in themselves rather than an end to the

means .

55

(4) Ex parte application is always brought after a divorce when one of the parents applies

for an amendment of access rights in respect of minor children. The most accurate statement is: (3)

Ordinary application proceedings are used when notice of the proceedings must be given to

other parties. Such notice must conform to Form 2(a) of the Uniform Rules of Court and it is

brought on Notice of Motion. See TL 501/3/2018 unit 6.2 and page 155 of textbook.

Statement (1) is incorrect. An interlocutory application does not initiate proceedings and is

therefore brought only by notice. See page 156 of the textbook.

Statement (2) is incorrect. If a person wishes to oppose an application, he or she must deliver

a notice of intention to oppose the application. A notice of intention to defend applies only to

action proceedings. See page 166 and 167 of textbook.

Statement (4) is incorrect. An ex-parte application is brought were the order sought will not

affect someone else’s interest. Therefore, an application for the amendment of access

QUESTION 7


Judgment by default is relevant in the following circumstances:

(1) If the defendant fails to give timeous notice of his intention to defend.

(2) If a party fails to deliver an exception.

(3) If a party fails to deliver a special plea timeously.

(4) If a party fails timeously to request further particulars for the purposes of trial.

Question 7


A default judgment order can be obtained if the defendant has failed to deliver a notice of

intention to defend within the time stipulated in the summons. (Default judgement may also be

granted where the defendant fails to appear at the trial in terms of rule 32(2) of the Magistrates’

Court rules). No other instances apply. See textbook page 243-249.

Statement (2) is incorrect. See Comment for statement (1) above.



QUESTION 8


The following are all examples of a “debt or liquidated demand”:

56

(1) A claim for the payment of an amount reflected in a written quotation.

(2) A claim for a divorce order.

(3) A claim for the payment of an amount reflected in a taxed and finalised bill of

costs.

(4) A claim for delivery of ten farm animals.

Question 8


A claim for a debt or liquidated demand is where the claim is for a fixed, certain or ascertainable

amount or thing. A claim for payment of an amount reflected in a taxed and finalised bill of

costs is a debt or liquidated demand as the amount on the bill is fixed or ascertainable. See

page 182 of the textbook.

Statement (1) is incorrect. A claim for payment of an amount reflected on a written quotation is

not a claim for a debt or liquidated demand. The amount claim must be fixed or ascertainable,

and a quotation reflects an estimate amount. See comments to statement (3) above.

Statement (2) is incorrect. A claim for a divorce order is a claim for an unliquidated claim. An

unliquidated claim refers to a claim in respect of which the quantum must be determined or

where status of the parties is affected. See page 181 of the textbook.

Statement (4) is incorrect. Ten farm animals could refer to any animals or even a combination

of animals. “Ten specifically selected and marked cows” would for example, have been “fixed

and definite” as per definition. See page 182 of the textbook.

QUESTION 9


(1) The rules of court allow only for three sets of affidavits to be exchanged between the

parties in opposed application proceedings.

(2) If the plaintiff’s claim is based on a duly executed acknowledgment of debt, the

action may be instituted by way of a provisional sentence summons.

(3) The commencement of action proceedings must always be preceded by a letter of

demand.

(4) In accordance with the audi alteram partem maxim, and in order to satisfy defendants

of the proceedings instituted against them, notice of motion and summonses must be

served on the defendants personally.

ANSWER 9


A provisional sentence summons is used in cases where the plaintiff’s claim is based or founded on a

liquid document such as an acknowledgment of a debt. See page 185 of the textbook.

Statement (1) is incorrect. The rules generally provide for three sets of affidavits. However, further

affidavits may be filed. Therefore, the rules do not only allow three sets of affidavits to be exchanged

between the parties in an opposed application. See pages 166-168 of the textbook.

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Statement (3) is incorrect. The summons itself may constitute a legal demand and it need not be

preceded by a letter of demand. However, there are circumstances wh ere a demand must be made.

See page 122-123 of the textbook.

Statement (4) is incorrect. There are different types of service used to accord with the maxim of audi

alterm partem. The maxim means that every person is entitled to be heard before an order or

judgment is granted against him or her. The fundamental rule is that the court must be satisfied that

the defendant or respondent has received the document and is aware that legal proceedings are

being brought against him or her. See TL501/3/2018 unit 5.5, 5.7 and page 143 of the textbook.

QUESTION 10


(1) A combined summons is a unique document because the summons and the

declaration are inextricably linked.

(2) In action proceedings, a counterclaim is always served with aa plea on the merits.

(3) A power of attorney usually seeks to define the extent of an attorney’s mandate.

(4) As an attorney, it is not possible to represent the client without first producing a power

of attorney in all courts Question 10


A power of attorney usually seeks to define the extent of an attorney’s mandate. See page 55 of the textbook.

Statement (1) is incorrect. The combined summons consists of the summons and particulars of claim which are

inextricably linked. See page 181 of the textbook.

Statement (2) is incorrect. Obviously the defendant must deliver his counterclaim to plaintiff’s claim together with

the plea if he or she has a counterclaim. If there is no counterclaim such a step would not make sense. See page

219-222 of the textbook.

Statement (4) is incorrect. A legal representative of a party need not, as a general rule, file a power of attorney in

order to prove that he/she possesses the necessary authority to act. However, should the mandate of the attorney

be disputed, it must be proved.See page 56- 58 of the textbook.

SECOND SEMESTER

ASSIGNMENT 01

QUESTION 1

Briefly explain why it can be said that court-annexed mediation contributes to the reform of the

adversarial system of civil procedure in the Anglo-American legal system.

Court annexed mediation was introduced into the legal system to enhance access to justice

in civil claims. It is said to contribute to the reform of the adversarial system of the civil

procedure in the Anglo-American system in that:

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• It helps litigants to determine at an early stage of litigation whether formal litigation is in

their best interests; this assist in that dispute can be submitted to mediation prior to and/or

after commencement of litigation.

• It facilitates expeditious and cost-effective resolution; this is because the delay of formal

litigation is avoided and as a result curb costs of litigation. • It helps to phase out bad claims. See TL 501/3/2018 unit 4.2 and Pete et al 504.

X has a claim against Z in the amount of R600 000 on the grounds of breach of contract which occurred in Cape Town. X is an incola of Cape Town and Z is an incola of Pretoria. With these facts in mind, answer the following questions. Give detailed reasons for your answers.

(a) Explain why X can institute proceedings against Z in the Cape Town High Court. (2) In

regard to a claim relating to a contract, the court in whose area of jurisdiction the contract was concluded or where the contract was to be performed, either in whole or in part will have jurisdiction. This is known as the exercise of jurisdiction ratione contractus. (Under common law, this falls within the ambit of ratione rei gestae).

On the given facts, the breach of contract occurred in Cape Town, therefore, the

Western Cape High Court, Cape Town will have jurisdiction to institutes the

proceedings ratione contractus. See unit 2.2.2 in TL501/3/2018 and Pete et al 103.

COMMENT:

Please note the presentation of the answer, as well as the content thereof. Also note that

a specific conclusion was arrived at, based on the relevant question. Read questions

carefully and ensure your answer addresses the question!

(b) If Z is on holiday in Durban for three weeks, may X issue summons out of Cape

Town High Court, and have the summons served on Z while in Durban? (3)

Section 42(2) of the SCA, 2013 provides that a civil process of a Division runs throughout the Republic and may be served or executed within the jurisdiction of any Division. This

means that the process issued by a particular court (such as a summons or notice of motion)

may be served within the jurisdiction of any division of the High Court in the Republic. It

also means that the judgment or order of a particular court is enforceable within the

jurisdiction of any division of the High Court in the Republic

On the given facts, X may issue summons in the Western Cape High Court and

have them served on Z whilst on holiday in Durban.

COMMENT:

Please note that court processes were interpreted in the case of Dorfman v Deputy

Sherriff, Witwatersrand 1908 TS 703as something which proceeds from the court;

some step-in legal proceedings which can only be taken with the court or with one

of its officers. (eg subpoenas, summons, notice etc.)

(c) Would your answer to (a) differ if Z was a peregrinus of the Republic and the cause of

action arose in Durban? (3) Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a South African court will exercise jurisdiction over such a person only after attachment of his or her

59

property has taken place, attachment ad confirmandam jurisdictionem (requiring the cause of action to have occurred within the particular court’s area of jurisdiction apart from the attachment).

On the given facts, the defendant is a peregrinus of the whole Republic (he resides

in Namibia). The High Court in whose area of jurisdiction the cause of action

(collision) occurred will be able to exercise jurisdiction ad confirmandam

jurisdictionem, provided that the defendant has attachable property within the

Republic, especially within the particular court’s area of jurisdiction. In this instance

it is irrelevant whether the plaintiff is an incola or peregrinus of the court. The

attachment confirms or strengthens the partial or imperfect jurisdiction that the court

has by reasons of the fact that the cause of action arose within its area.

Therefore, KwaZulu-Natal Local Division, Durban will not have jurisdiction on the

basis of attachment ad confirmandum, since there is no attachable property within

the Republic especially in the Durban area of jurisdiction and not within Durban.

COMMENT:

Although the cause of action arose in the court’s area of jurisdiction, it only has

partial jurisdiction as we are dealing with a foreign peregrinus. It will thus not be

competent to exercise jurisdiction unless attachment (ad confirmandum

jurisdictionem) has also taken place. Please note that the attachment has to

happen with the court where cause of action arose. The attachment strengthens the

partial or imperfect jurisdiction that the court has by reason of the fact that the cause

of action (breach of contract) arose within its area of jurisdiction.

d)Would your answer to (a) differ if the claim related to the registration of fixed

property, and the property was situated in Johannesburg? (2)

In regard to a claim relating to immovable property, the court where the immovable property

is situated has exclusive jurisdiction in actions to determine the title to immovable property

or the transfer of property. This is known as the exercise of jurisdiction ratione rei sitae.

On the given facts, the property is situated in Johannesburg. Therefore, South

Gauteng High Court, Johannesburg for the claim on registration of the house ratione

rei sitae. This will be different from (a) above as the issue now involves property. It

does not matter whether the defendant is a foreign peregrinus. See TL501/3/2018

unit 2.3.1 and Pete et al 106.

COMMENT:

Exclusive jurisdiction applies only to immovable property, as the question whether

the forum rei sitae is exclusive in terms of movable property has not been settled.

QUESTION 3

(a) C disputes the mandate of D’s attorney because no written power of attorney was filed

with the Registrar of the High Court. Briefly di scuss the merits of C’s contention.

(3) In terms of Rule 7(1) of the Uniform Rules, the filing of a power of attorney is not required to

issue summons or to enter an appearance. It also provides that a power of attorney to act

need not be filed unless the authority to act is disputed. If the authority is disputed, the legal

60

representative may file the power of attorney with the Registrar of the High Court within 10

days after it has come to his/her notice.

In terms of the given facts, C disputes the mandate of D’s attorney due to the fact

that the power of attorney has not been filed with the Registrar. Rule 7(1) of the

Uniform Rules does not require that a power of attorney be filed in certain

circumstances as stated above. Therefore, D’s attorney must only file a power of

attorney if his/her mandate is disputed. If C disputed the authority of D’s attorney to

act, then D’s attorney needs to file his/her power of attorney with the Registrar of

the High Court. See page 56 of the textbook and pa.

(b) Briefly explain how the audi alteram partem principle finds application in the ordinary

application procedure. (2)

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

QUESTION 4

N, who lives in Johannesburg, buys a truck for R190 000 from T in Bloemfontein. T lives in

Bloemfontein. N pays T R160 000 of the purchase price and undertakes to pay the balance

of R30 000 on delivery of the truck. T delivers the truck to N’s home, but despite demand, N

fails to pay the balance of the purchase price. Will any magistrates’ court in all the centres

mentioned above have jurisdiction to hear an action instituted by T against N

for the return of the truck? Give detailed reasons for your answer. (5)

Section 28(1)(a) of the MCA provides that a magistrate’s court will have jurisdiction over

any person who resides, or carries on business, or is employed within its district or regional

division.

Section 28(1) (d) of the MCA provides that a magistrate’s court may exercise jurisdiction

over any person, whether or not he or she resides, carries on business or is employed

within the district, if the cause of action arose wholly within the particular jurisdictional area

or district of the court. For the cause of action to have arisen “wholly” in the particular

jurisdictional area of district of a court, conclusion of a contract and breach of contract must

have occurred within the same jurisdictional area.

On the given facts, N (the defendant) resides in Johannesburg. The contract (to purchase a truck) was concluded in Bloemfontein. However, the breach (failure to pay the balance) occurred in Johannesburg. Therefore, in terms of section 28(1)(a) Johannesburg district magistrate’s court will have jurisdiction as N reside there. However, in terms of section 28(1)(d), neither the Bloemfontein nor the Johannesburg district magistrate’s court where a part of the cause of action arose will have jurisdiction.

QUESTION 5

61

S wishes to sue R in the amount of R120 000 for goods sold and delivered, which R, despite

demands, refuses to pay. Answer the following questions.

(a) Briefly discuss the type of summons S may use to commence the action. (2)

A simple summons. A claim for good sold and delivered is a claim for a fixed or definite

thing. As such, it can be classified as a liquidated claim (demand or a debt). See Pete et

al 254.

(b) Briefly explain the purpose of a pre-trial conference in the magistrates’ courts. (3)

Pre-trial conference in the magistrate’s court are dealt with by section 54 of the Magistrates’ Courts

Act read with Magistrates’ Courts rule 25. Its purpose is to ascertain the simplification of the

issues, for the necessity to amend pleadings, the possibility of obtaining admission of facts and

avoid delays, the limitation of number of expert witnesses and any issue which may aid in the

disposal of the matter expeditiously and less costly manner. 2018 -

ASSIGNMENT 02

QUESTION 1


(1) The court may interfere with civil proceedings during the pre-trial and trial

stages on the request of either of the parties.

(2) The state has an interest in civil proceedings since it provides the parties with

infrastructure and court time.

(3) Every citizen is able to afford litigation because court time and administration are

paid by the state.

(4) The objective of civil proceedings is to establish liability beyond reasonable doubt.


Although the court generally plays a passive role during both the pre-trial and the trial

stages in the adversarial system of civil procedure (such as our system) and does not

interfere in the proceedings, it may do so upon the request of one of the parties. This is of

course contrary to the position in the Continental systems which follow the inquisitorial

system where the cou rt participates directly in the process of litigation, from the

commencement of the proceedings until the conclusion of the hearing.

Statement (2) is incorrect. Civil proceedings are entirely voluntary and at the discretion of

an aggrieved party. It is up to a party to either institute, defend, abandon or settle a matter,

and parties to civil proceedings conduct these proceedings independently and without

interference by the state. The state merely provides the infrastructure within which

disputes may be resolved, and if necessary, may enforce a court order or judgment.

However, this does not mean that the state has an interest in civil proceedings. See Pete

et al 1-2.

62

Statement (3) is incorrect. Unfortunately, although the state provides the infrastructure and

the court time, it does not mean that litigation is affordable to all: parties are liable to pay

the costs incurred by their lawyers who conduct litigation on beh alf of their clients.

Although a litigant may appear in person, the complexity of legal issues and the intricacy

of court procedure normally make representation by a lawyer essential. The fees charged

for these professional services often place litigation beyond the means of the average

citizen. See Pete et al 1-2.

Statement (4) is incorrect. In civil proceedings the burden of proof is on a balance of probabilities. This

means that the court must be satisfied that the version put forward by the plaintiff/applicant is more probable

than that put forward by the opposing party. “Beyond all reasonable doubt” is the burden of proof in criminal

matters

Question 2

Indicate the most accurate statement relating to attachment ad confirmandam

jurisdictionem:

(1) Where both the plaintiff and the defendant are foreign peregrinus of the court and

attachment has taken place.

(2) Where the plaintiff is incola of the court, the defendant is a foreign peregrinus of the Republic, the cause of action arose within the courts’ area of jurisdiction and attachment has taken place within the court’s area.

(3) The defendant is a peregrinus of the court concerned, the plaintiff is an incola of the

court concerned and attachment has taken place.

(4) Both the plaintiff and the defendant are incola of the court concerned and attachment has taken place. Question 2


Attachment ad confirmandam iurisdictionem is permissible where the defendant is (a) a

peregrinus of the whole of the Republic; (b) attachment of the defendant’s property has

taken place within the particular court’s area of jurisdiction; and (c) the cause of action has

occurred in this court’s area of jurisdiction. Although the plaintiff may of course be (or

happen to be) an incola of the court concerned, it is not a requirement, and it thus makes

no difference whether the plaintiff is an incola or a peregrinus of this court. See Pete et al

110-112.

Statement (1) is incorrect. For a court to be vested with jurisdiction in respect of such

parties, the cause of action must have arisen within its jurisdiction area. The statement

does not include this requirement, and therefore attachment cannot in any event confirm

partial or imperfect jurisdiction. See Pete et al 110-112.

Statement (3) is incorrect. The statement does not specify that the defendant is a foreign

peregrinus, and therefore he or she may very well be a local peregrinus, in which event

attachment is prohibited under section 28 of the Superior Courts Act of 2013. This section

prohibits the attachment of property of an incola of the Republic. See Pete et al 110.

Statement (4) is incorrect. In view of the comments regarding (3) above, attachment cannot

take place as it is prohibited. Furthermore, since the defendant is an incola of the court

63

concerned, this court would have jurisdiction ratio domicilii, also rendering attachment

unnecessary, apart from being prohibited. See Pete et al 100-110.

QUESTION 3

Indicate the most accurate statement

(1) The district magistrates’ courts can adjudicate on divorce matters according to the

jurisdiction of the Regional Magistrates’ Courts Amendment Act.

(2) A court may exercise divorce jurisdiction only if the wife is resident in the jurisdictional

area of the same court where the husband is resident.

(3) Section 28(1A) of the Magistrates’ Courts Act provides the regional

magistrates’ courts with divorce jurisdiction.

(4) A court may exercise divorce jurisdiction only if the wife is domiciled in the court’s

area of jurisdiction at the time of the institution of the action.


Section 28(1A) of the Magistrates’ Courts Act 32 of 1944 expressly provides that a regional

magistrate’s court may exercise divorce jurisdiction. To this end the definition of “court” in section

1 of the Divorce Act of 1979 includes a reference to a regional magistrate’s court division. See

TL501 unit 2.4. Statement (1) is incorrect. The Jurisdiction of Regional Courts Amendment Act 31 of 2008

extended divorce jurisdiction to regional courts only, and not to district courts. Districts courts

may thus not adjudicate divorce matters. See TL501 unit 2.4. Statement (2) is incorrect. Both section 2 of the Divorce Act of 1979 and section 28(1A) of the

Magistrates’ Courts Act of 1944 make it clear that domicile and residence are separate and

alternative grounds for jurisdiction and establishes the independent domicile or residence of

either the husband or the wife as grounds for jurisdiction. Clearly not “only” the wife is required to

be resident in a court’s area of jurisdiction, and she certainly is not required to be so where the

husband is resident. See TL501 unit 2.4 Pete et al 113-114.

Statement (4) is incorrect. In view of what has already been stated in respect of statement (2), it is incorrect to require “only” the wife to be domiciled in the court’s area of jurisdiction. Furthermore, residence is an alternative ground for jurisdiction

QUESTION 4


(1) The three primary ADR processes are litigation, arbitration and mediation.

(2) Arbitration permits disputants more control over the process than in the case

of litigation.

(3) Facilitation, final-offer arbitration and arb/med are all derivative ADR processes.

(4) ADR processes are formal and involuntary.


Litigation is primarily based on rules and statutory provisions that prescribe how

proceedings must be conducted. Litigation also takes place within the formal court

structure. In comparison, arbitration is an extremely flexible process, making it possible to

adapt the process to suit the needs of different situations, and it allows a great deal of party

64

control over the process. The disputants may select the arbitrator on the grounds of his or

her expertise; choose the rules of arbitration that must be applied by the arbitrator;

determine the issues in their submission to arbitration; and arrange matters relating to the

arbitration venue, the date for the hearing and the payment of costs. See Pete et al 505.

Statement (1) is incorrect. Because ADR processes are dispute resolution processes

which are alternatives to litigation as a dispute resolution process, it is clearly incorrect to

include litigation in the processes referred to as primary ADR processes. Negotiation,

arbitration and mediation are in fact the primary ADR processes. See Pete et al 504.

Statement (3) is incorrect. A derivative process can be traced back to a primary process.

Thus, facilitation is a derivative of mediation, and final-offer arbitration can be traced back

to arbitration. However, arb/med is a hybrid process, and original within the system of

ADR. (A hybrid process is formed when elements of one primary process is combined with

elements of another process to form a completely new process.) See Pete et al 504.

Statement (4) is incorrect. ADR processes are in fact the complete opposite: they are informal (neither

bound by strict rules of procedure, nor constrained by technicalities) and voluntary (disputants are not

compelled to enter into the process).

QUESTION 5



(2) The principle of party representation does not apply in the small claims court

because the commissioner plays an active role in assisting the litigants to

present their case during the trial.

(3) A small claims court can adjudicate a claim for wrongful imprisonment or for wrongful

arrest.

(4) A small claims court can entertain an action for the delivery of movable property not

exceeding R17 000.


Party presentation refers to the competence of a litigant to not only investigate his or her

own cause or defence and to formulate the issues in dispute, but also to present and

conduct his or her case before a court. This is done without judicial interference. However,

although the plaintiff in the small claims court institutes the action and formulates his or her

claim, no pleadings are required, and the commissioner plays an active role in the

proceedings. He or she acts inquisitorially to establish the facts, and in so doing, the

commissioner may question any litigant or witness at any stage of the proceedings. It is

also the commissioner, and not the litigant, who decides that sufficient evidence has been

adduced on which a decision can be made, and that no further evidence may be led. See

Pete et al 486.

Statement (1) is incorrect. The small claims court should not be regarded as inferior to

other courts because of the low value of the claims submitted. The legal issues involved in

these matters are not necessarily simple; in fact, the opposite is often true: complex issues

of law may arise in any civil matter, and the value of a claim is no indication of complexity

or simplicity. See TL501/3/2018 unit 1.2.5.

65

Statement (3) is incorrect. Section 16(f) of the Small Claims Courts Act of 1984 specifically

places a matter in which damages in respect of wrongful imprisonment or wrongful arrest

is claimed, beyond the jurisdiction of the Small Claims Court. See section 16 of the Small

Claims Courts Act of 1984; Pete et al 485.

Statement (4) is incorrect. Although the court can entertain an action for the delivery of movable

property, the quantitative jurisdiction limit is R15 000, and not R17 000.

QUESTION 6

Indicate the most accurate statemen t:

Summary judgment is relevant in the following circumstances:

(1) Where a claim is for breach of contract and the defendant gives notice of intention to

defend simply to delay proceedings.

(2) Where the claim is for goods sold and delivered and the plaintiff contends that the

defendant does not have a bona fide defence and that appearance to defend was

simply entered to gain time.

(3) Where the claim is for specific performance and the defendant does not have a bona

fide defence.

(4) Where the claim is the delivery of ten specially marked items and the defendant fails

to timeously deliver a notice of intention to defend.


The claim for goods sold and delivered constitutes a claim for the payment of a

“liquidated amount of money” as contained in Uniform Rule 32(1) (mcr 14(1)). As such it is

one of the types of claim upon which summary judgment may be requested if the plaintiff

is of the opinion that the defendant does not have a bona fide defence and has defended

the matter simply to delay proceedings. Note that summary judgment may be requested

only in respect of the four types of claim set out in the above court rules. See Pete

et al 252.

Statement (1) is incorrect. A claim for breach of contract would be a claim for damages,

and damages constitute an unliquidated claim. In other words, the amount of the claim is

not fixed or definite and will only be determined by the court after hearing evidence to prove

the amount payable. Therefore, regardless of the intention of the defendant when

defending the claim, summary judgment cannot be applied for as the claim does not fall

within the ambit of Uniform Rule 32(1) or magistrates’ courts rule 14(1). See Pete et al

252-253.

Statement (3) is incorrect. See the comments above in (1) and (2) regarding the claims

specified in the particular court rules.

Statement (4) is incorrect. Although the claim falls within the ambit of the court rules referred to above,

summary judgment is not the correct procedure to follow when a defendant fails to timeously deliver a

notice of intention to defend. In such an instance a plaintiff may request default judgment under Uniform

Rule 31 or magistrates’ courts rule 12. Please ensure that you carefully distinguish between these two

judgments: although they are both pre-trial judgments, the circumstances under which each may be

sought are completely different.

QUESTION 7

66


B wants to evict his tenant C from a residential property that B rents in terms of a contract of

lease. The exact nature of the claim that B will have against C is …

(1) an illiquid claim.

(2) a liquid claim.

(3) a debt or liquidated demand.

(4) an unliquidated claim.


The expression “liquidated claim” has been interpreted as ‘‘a claim for a fixed or definite

thing, as, for instance, a claim for transfer or ejectment, for the delivery of goods, for

rendering an account by a partner, for the cancellation of a contract or the like’’. The courts

have also indicated that the debt is liquidated where it is admitted or where the monetary

value is capable of being ascertained speedily. The meaning of the phrase “liquidated

demand” may be understood more fully if it is contrasted with what is known as an

“unliquidated claim”. Simply stated, an unliquidated claim is incapable of speedy

ascertainment or mathematical calculation. Often a trial court is able to dispose

speedily of the legal aspects relating to liability since the relevant law is clear and settled.

However, a great deal of time is consumed by leading evidence to ascertain the quantum

of damages, which in most instances involves highly technical evidence that is adduced

from expert witnesses. See Pete et al 182.

Statement (1) is incorrect. There is no such thing as an “illiquid claim”. The illiquid summons

proceedings are instituted by means of a simple summons or a combined summons. The

simple summons and the combined summons may be distinguished from each other on

the basis of the nature of the claim in respect of which each is applied for.

The simple summons is used where the plaintiff’s claim is for a debt or a liquidated demand

and the combined summons is used where the plaintiff’s claim is unliquidated; hence the

concept of an illiquid summons procedure. See Pete et al 181-184.

Statement (2) is incorrect. A liquid claim must be based on a liquid document such as a

cheque. A liquid document may be defined as a document in which the debtor

acknowledges by means of his/her signature (or a duly authorised representative), his/her

liability for the payment of a certain and ascertainable amount of money, or is legally

deemed to have acknowledged such liability without signature in question having in reality

been appended thereto. See Pete et al 185.

Statement (4) is incorrect. An unliquidated demand or claim refers to any demand or claim

where the quantum must be determined, such as a claim for damages or where the status

of the parties is affected, such as a divorce action. The nature of the claim is unliquidated,

because the damages are determined by the court after hearing evidence. A claim for

ejectment falls within the definition of a “debt or liquidated demand” (see the discussion

under (3) above) and is thus clearly incorrect. See Pete et al 181.

QUESTION 8


(1) A rule nisi applies only to ex parte applications.

67

(2) An affidavit in application proceedings may, as a rule, not contain hearsay evidence,

and if it does, it may not on application be amended.

(3) An interlocutory application is brought by way of a notice.

(4) All types of application must be served by the sheriff.


Interlocutory applications are brought purely by way of a notice. It is brought where a party

approach the court for a relief in respect of a matter relating to the proceedings that have

already been instituted. Therefore, only a notice is used to institute the proceedings. See

Pete et al 155 and Uniform Rule 6(11).

Statement (1) is incorrect. A rule nisi applies to ex parte applications as well as in urgent

applications. Where the right of other persons may be affected by any order granted in

terms of ex parte application, the court will not grant a final order, but it will issue a rule

nisi. The rule nisi is an order calling upon the respondent, or all other interested persons

to show cause on a day fixed in the rule known as “a return day of the rule nisi” why relief

stated in the rule nisi should not be made final. See Pete et al 155-157.

Statement (2) is incorrect. An affidavit may not save in exceptional cases of urgency

contain hearsay evidence and if it does, the opposing party may apply to have the

application struck out of court. See Pete et al 161.

Statement (4) is incorrect. Notice of legal proceedings is facilitated by service of the

documentation personally by a party or his legal representative or by the sheriff. An urgent

application or ex parte application is the exception to the audi alteram partem rule that

notice of the litigation should be given to everyone whose rights may be affected by any

order in the legal proceedings or who has an interest in any such order. Uniform Rule 6(4)

provides that every application brought ex parte shall be filed with registrar and set down.

The application does not have to be served as only the interest of the applicant are affected

by the order. Uniform Rule 6(12)(a) provides that in an urgent application the court may

dispense with forms and service provided for in the rules and may dispose such matter at

such time and place and in a manner and in accordance with such procedure as it seems

meet. Therefore, all types of application are not served by the sheriff. See Pete et al 157.

QUESTION 9

D lives in Pretoria, South Africa. D wishes to divorce his wife, F. F lives and works as a model

in New York, USA and D knows her exact whereabouts. The summons must be served on

F by way of …

(1) Substituted service.

(2) Personal service.

(3) Edictal citation.

(4) Service at F’s employment.


68

Edictal citation service is effected on a defendant who is believed to be outside the

Republic, even when his/her exact whereabouts are known and where personal servi ce

is possible. See Uniform Rule 5; mcr 10 and Pete et al 142.

Statement (1) is incorrect. Substituted service is effected on the defendant who is believed

to be in the Republic however his or her exact whereabouts are unknown. See Uniform

Rule 4(2); mcr 10 and Pete et al 141-143.

Statement (2) is incorrect. Person al service is effected when the defendant whereabouts

are known and he or she is within the Republic and the sheriff of the court delivers a copy

of the summons to the person (personally). In the given facts, personal service by a South

African sheriff will not be possible since the defendant is outside the Republic. See Uniform

Rule 4(1); mcr 10(1) and Pete et al 134.

Statement (4) is incorrect. Uniform Rule 4(1)(a)(iii) (mcr 9(3)(c)) provides that service may

be effected at defendant’s place of employment. This falls under the provisions of personal

service and as mentioned in statement (2) above, this service will not be possible by a

South African sheriff. See Pete et al 135.

QUESTION 10


(1) Where a temporary interdict is sought, the court is approached by way of the

summons procedure.

(2) It is an accepted rule that offer to settle in terms of Rule 34 and a tender may not be

disclosed in court before judgment has been given.

(3) The failure by an advocate to sign the particulars of a claim renders the document

defective and the defendant may raise a special plea to rectify the defect.

(4) A party may lawfully in terms of Uniform Rule 35 refuse to disclose

correspondence exchanged “without prejudice”.


Uniform Rule 35(2)(b) provides that a party must separately specify in his or her discovery

notice the “documents and tape recordings in respect of which he has a valid objection to

produce”. A party may validly object to the discovery of a document if he or she is able to

claim privilege for its contents. Examples are communications made “without prejudice”,

documents which fall under legal professional privilege, incriminating documents and

documents that affect the security of the state. (Privilege is usually seen as a matter falling

within the law of evidence, so see your study guide for the Law of Evidence in this regard.)

See Uniform Rule 35(1) and (2) an d Pete et al 266.

Statement (1) is incorrect. Where a temporary interdict is sought, the applicant always

approaches the court by way of notice of motion, and thus the application procedure is

used. Final interdicts are usually sought by way of action, but they may also be sought by

way of notice of motion where the facts are not in dispute. See Pete et al 464.

Statement (2) is incorrect. Although an offer to settle under Uniform Rule 34 may not be

disclosed to the court prior to judgment (see Rule 34(10)), tender (common-law tender)

must be pleaded. See Pete et al 416.

69

Statement (3) is incorrect. While it is correct that the failure by counsel to sign the

particulars of claim renders the pleading defective (see Uniform Rule 18(1)), it amounts to

an irregular proceeding under Uniform Rule 30 which may be set aside on application by

the defendant, provided he or she has not taken a “further step” in the proceedings. See

Uniform Rule 30(1) and 30(2)(a) and Pete et al 211.

2017 - SEMESTER 1

GENERAL PRINCIPLES

QUESTION 1

Briefly explain why it can be said that court-annexed mediation contributes to the reform of the

adversarial system of civil procedure in Anglo-American legal systems. [5]

The purpose of the reform of the adversarial system is inter alia, to address perceived

shortcomings such as lack of access to justice and to make it less adversarial. Court-annexed

mediation contributes to the reform in this regard in that it introduces a process of mediation into

all litigation matters, promotes restorative justice, facilitates expeditious and cost-effective

resolutions and phases out bad claims from the court system. It should curb the high costs of

litigation as disputes can be submitted to mediation prior to and after commencement of litigation,

provided that a judgment or order has not been made.

COMMENT:

You were only asked to discuss how court-annexed mediation contributes to reforming the

adversarial system in the Anglo-American legal system, and therefore any discussion of other

arears where reform is needed in the system was ignored.

JURISDICTION OF THE HIGH COURTS

QUESTION 2

X has a claim against Z in the amount of R600 000 on the ground of breach of contract which occurred in Cape Town. X is an incola of Cape Town and Z is an incola of Pretoria. With these facts in mind, answer the following questions. Give full reasons for your answers.

(a) Explain why X can institute proceedings against Z in the Cape Town High Court. (2) • In regard to a claim relating to a contract, the court in whose area of jurisdiction the cause

of action arose will have jurisdiction. In other words, the place where the contract was

concluded, breached, or was to be performed, will vest a court with jurisdiction. This is

known as the exercise of jurisdiction ratione contractus. (Under common law, this falls

within the ambit of ratione rei gestae).

On the given facts, the cause of action arose in Cape Town and therefore the Cape

Town High Court will have jurisdiction ratione contractus. See study guide units 10.1

and 13.3.

COMMENT:

70

Please note that in regard to contractual claims no further requirement needs to be met

before a court in whose area the cause of action arose may exercise jurisdiction. In this

instance, the cause of action arose when the breach of contract occurred. Unless a claim

relates to immovable property (exclusive jurisdiction), one jurisdictional ground is not

superior to another, and therefore, the fact that ratione domicili does not apply here does

not prevent the Cape Town High Court from exercising jurisdiction.

(b) If Z is on holiday in Durban for three weeks, may X issue summons out of the Cape Town

1

High Court, and have the summons served on Z while in Durban? (3) Section 42(2) of the Superior Courts Act, 2013 provides that a civil process of a division runs throughout the Republic and may be served or executed within the jurisdiction of any Division (Service thus need not only take place within the court’s area of jurisdic tion). This is a procedural enactment to make execution and service of process more convenient.

On the given facts, section 42(2) therefore enables X to institute proceedings against

Z in the Cape Town High Court and to have them served on Z in Durban (where

he/she temporarily visits). See TL 102/3/2017 and s 42(2) of SCA, 2013.

COMMENT:

Please see the definition of domicile and residence in study unit 10.2. Note that being on

holiday does not meet the requirements of domicile or residence.

(c) Would your answer to (a) differ if Z was a peregrinus of the Republic and the cause of action

arose in Durban? (3) • Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a South


or her property has taken place, either in the form of attachment ad fundandam


the attachment) or attachment ad confirmandam jurisdictionem (requiring the cause of

action to have occurred within the particular court’s area of jurisdiction apart from the

attachment).

On the given facts, the defendant is a peregrinus of the whole Republic. The High

Court in whose area of jurisdiction the cause of action (breach) occurred, will be able

to exercise jurisdiction ad confirmandam jurisdictionem, provided that the defendant

has attachable property within the Republic, especially within the particular court’s

area of jurisdiction. In this instance it is irrelevant whether the plaintiff is an incola or

peregrinus of the court.

Therefore, Durban High Court will have jurisdiction on the basis of attachment ad

confirmandum, provided there is an attachable property within the court’s area of

jurisdiction. Accordingly, the answer to (a) will differ as attachment of property takes

place, and the court will no longer have jurisdiction on the basis of common law rules

(ratione contractus), but of attachment ad confirmandam jurisdictionem. See TL

102/3/2017.

COMMENT:

71

Although the cause of action arose in the court’s area of jurisdiction, it only has partial

jurisdiction as we are dealing with a foreign peregrinus. It will thus not be competent to

exercise jurisdiction unless attachment (ad confirmandum jurisdictionem) has also taken

place. The attachment strengthens the partial or imperfect jurisdiction that the court has by

reason of the fact that the cause of action (the breach of contract) arose within its area of

jurisdiction.

(d) )

Would your answer to (a) differ if the claim related to the registration of fixed property, and

the property was situated in Johannesburg? (2)

(a) In regard to a claim relating to immovable property, the court where the immovable property is situated has exclusive jurisdiction in actions to determine the title to immovable

property or the transfer of property. This is known as the exercise of jurisdiction ratione rei

On the given facts, the property is situated in Johannesburg. Cape Town High Court would

therefore no longer have jurisdiction, as the court where the relevant immovable property is

located will have exclusive jurisdiction. X may institute proceedings against Z in the

Johannesburg High Court for the transfer and registration of the house in Johannesburg

ratione rei sitae. See study guide unit 16.2.

COMMENT:

Exclusive jurisdiction applies only to immovable property, as the question whether the forum rei

sitae is exclusive in terms of movable property has not been settled: see study guide unit 16.

QUESTION 3

B and D marry each other in Lesotho. Their communal home is in Lesotho where both parties are domiciled. B, the husband, resides in Pretoria where he has been working for over 10 years. The couple later decide to divorce. On the basis of these facts, determine

(a) whether B may institute proceedings in the High Court, Pretoria; (2)

There are two main grounds on which South African courts may exercise divorce jurisdiction,

namely:

• domicile OR

• residence, based on either section 2(1)(a) or (b) of the Divorce Act 70 of 1979

Section 2 of the Act provides that a court shall have jurisdiction in a divorce action if the

parties are or either of the parties is domiciled in the area of jurisdiction of the court on the

date on which the action is instituted (s 2(1)(a)) or ordinarily resident in the area of the

jurisdiction of the court on the said date and have or has been ordinarily resident in the

Republic for a period of not less than one year immediately prior to that date (s 2(1)(b)).

On the given facts, the parties are domiciled in Lesotho. However, B is ordinarily resident within the North Gauteng High Court, Pretoria and has been ordinarily resident in the Republic (Pretoria is in the Republic) for a period of “not less than” one year (10 years). Therefore, an action for divorce can be brought in the North Gauteng High Court, Pretoria. See study guide unit 18.3.

72

(b) whether D may institute proceedings in the High Court, Pretoria; (1)

Section 2(1) of the Divorce Act, as mentioned above, stipulates that the domicile or residence of

“either” spouse is sufficient to confer jurisdiction, even if the other spouse is domiciled or

resident outside the Republic. Therefore a spouse who is domiciled or resident outside the

Republic and who has never had any personal links with the Republic may, as a plaintiff, institute

divorce proceedings in a particular court in South Africa on the grounds that the other spouse

resides or is domiciled within that court’s area.

Therefore, in terms of section 2(1) of the Act, D will be able to institute divorce

proceedings in the High Court, Pretoria, since B (the other spouse) has been

ordinarily resident within the court’s area and in the Republic for a period of “not less

than” one year in the Republic (Pretoria is in the Republic). See study guide unit 18.3.

3

(c) whether D may institute proceedings in the High Court, Lesotho for the declaration of

nullity of the marriage. (2)

In terms of the common law, the court of the place where the marriage was entered into or

the court where the plaintiff or defendant (or both parties) is/are domiciled at the time when

nullity proceedings are instituted will have jurisdiction as forum loci celebrationis.

On the given facts, the marriage was entered into in Lesotho and both parties are domiciled

in Lesotho. Therefore, D may institute the proceedings for the declaration of nullity of the

marriage in the High Court, Lesotho. See study unit 18.4.

COMMENT:

Note that the declaration of nullity of marriages falls outside the scope of the definition of divorce.

See the definition in section 1 of the Divorce Act, 1979. Therefore, in terms of common law, only

the domicile of the parties is taken into account, and residence is not included.

LOWER COURTS JURISDICTION

QUESTION 4

N who lives in Johannesburg, buys a truck for R190 000 from T in Bloemfontein. T lives in

Bloemfontein. N pays T R160 000 of the purchase price and undertakes to pay the balance of

R30 000 on delivery of the truck. T delivers the truck to N’s home, but despite demand, N fails to

pay the balance of the purchase price. Will any magistrate’s court in all the centres mentioned

above have jurisdiction to hear an action instituted by T against N for the return of the truck?

Give full reasons for each answer. [5]

Section 28(1)(a) of the Magistrates’ Courts Act, 1944 (MCA) provides that a magistrate’s court

will be competent to exercise jurisdiction over any person who “resides, carries on business or is

in the employ” within the court’s jurisdictional area/district.

Section 28(1)(d) of the MCA provides that a magistrate’s court may exercise jurisdiction over any

person whether or not he resides, carries on business, or is employed within the district if the

cause of action arose wholly within the particular jurisdictional area or district of the court. To

have arisen “wholly”, conclusion of the contract as well as breach of contract must have occurred

within the same jurisdictional area.

73

On the given facts, N “resides” in Johannesburg, the conclusion of the contrac t (to purchase a

truck) occurred in Bloemfontein and the breach occurred in Johannesburg (failure to pay the

balance).

The Johannesburg district magistrate’s court will have jurisdiction in terms of section 28(1)(a)

of the Act as N “resides” there. The court will not have jurisdiction in terms of section 28(1)(d) as

only breach of contract occurred there (thus not “whole” cause of action).

The Bloemfontein district magistrate’s court does not have jurisdiction, as not only is it

irrelevant that T, the plaintiff lives there, but also as only conclusion of the contract occurred there

(thus also not “whole” cause of action). See study guide units 22.2.1 and 22.2.4.

COMMENT:

Please note that although the Act (s 28) refers to “a person”, it means the defendant only, not

either of the parties. In other words, the situation of the defendant, not the plaintiff, will give a

court jurisdiction.

2017 - ASSIGNMENT 02 QUESTION 9 QUESTION

1

P and S are involved in a car accident. S drives though a red traffic light whilst texting on his

cellphone. P sustains damages in the amount of R120 000 in respect of his motor vehicle and his

medical costs amount to R100 000. P alleges that his damages are due solely to S’s negligence.

Indicate the statement which is the most ACCURATE:

(1) P may institute a claim for damages arising out of a delict.

(2) If P laid criminal charges, he would be called the plaintiff and S would be known as the

respondent.

(3) P is compelled by the state to institute civil proceedings against S.

(4) In civil proceedings between P and S, the court may interfere in the manner in

which they conduct proceedings during the pre-trial stage.

The most accurate statement is (4).

The state has no direct interest in civil proceedings and simply provides the infrastructure for

dispute resolution. This is because the parties to a civil dispute conduct the proceedings

independently without interference from the state. The state will only interfere during the pre-trial

stage on application of one of the parties to the proceedings. This illustrates the principles of

party prosecution and party presentation, which underpin the adversarial process. See study

units 2.6 and 5.2.1.

Statement (1) is incorrect. The subject matter of the court proceedings can either be of a civil or

criminal nature. In this instance, either criminal or civil proceedings may be used. P may not “only”

institute a claim for damages arising out of the delict (motor collision) but may also lay criminal

charges in respect of S’s contravention of the National Road Traffic Act. See study unit 2.3 in the

study guide.

Statement (2) is incorrect. The parties in criminal proceedings are the complainant or victim (the

party who lays the criminal charges), represented by the state, and the accused (the party

against whom the charge is laid). The parties in civil proceedings (in action proceedings) are the

74

plaintiff (the party who initiates the proceedings by issuing the summons) and the defendant (the

party against whom the claim is instituted). In application proceedings, the parties are the

applicant (the party bringing the application) and the respondent (the party opposing the

application). Therefore, J would be called the complainant and P would be called the accused.

See study unit 4.3.2 in the study guide.

Statement (3) is incorrect. Civil proceedings are voluntary in the sense that the aggrieved party is

not compelled to commence the proceedings. Instituting civil proceedings is entirely at the

discretion of the aggrieved party. Because the state has no direct interest in civil proceedings, P

is not compelled by the state to institute such proceedings. See study guide unit 2.6.

QUESTION 2


(1) The three primary ADR processes are litigation, arbitration and mediation.

(2) Arbitration permits disputants more control over the process than in the case of

litigation.

(3) Facilitation, final-offer arbitration and arb/med are all derivative ADR processes.

(4) ADR processes are formal and involuntary.


Arbitration allows a great deal of party control over the process. The disputants may select the

arbitrator, determine the issues and arrange matters. Litigation, by contrast, does not allow party

control in that it is regulated and controlled by external rules. See study guide units 6.1.2 and 6.2.4.

Statement (1) is incorrect. The three primary ADR processes are negotiation, mediation and

arbitration. Litigation is the mainstream model of dispute resolution, against which ADR

processes are posed as an alternative. See study guide units 6.1.2 and 6.2.

Statement (3) is incorrect. Facilitation and final-offer arbitration are derivative ADR processes

whereas arb/med is a hybrid process. A derivative process is one in which the form of a primary

process has been retained, but its function has been adapted to suit specific circumstances. A

hybrid processes is one in which the elements of one primary process are combined with the

elements of another process to form a completely new process. Facilitation, final-offer arbitration

and arb/med are therefore not all derivative processes. See study units 6.3 and 6.4.

Statement (4) is incorrect. ADR processes are informal, not bound by strict rules and voluntary,

because the disputants are not compelled to enter into the process. See study guide unit 6.1.1.

QUESTION 3

75



(2) The principle of party presentation does not apply in the small claims court because

the commissioner plays an active role in assisting the litigants to represent their case

during the trial.

(3) A small claims court can adjudicate a claim for wrongful imprisonment or for wrongful arrest.

(4) A small claims court can entertain an action for the delivery of movable property not

exceeding the value of R12 000.


Party presentation refers to the competence of a litigant to investigate his/her own cause/defence,

to formulate issues in dispute, as well as to present the material facts concerned and to prove these

facts and raise legal arguments in support of them before court. The principle confirms that a litigant

has control over the content of his/her cause or defence, as the case may be. The principle follows

the Anglo-American system of civil procedure, in which the presiding QUES

oT

ffIiO

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r 9

plays

a mostly passive role during proceedings. However, section 26(3) of the Small Claims Courts

Act 61 of 1984 introduces elements of the inquisitorial system into the small claims courts that

allow the commissioner to play an active role (such as allowing the commissioner to question the

witness or put questions to any witness to establish relevant facts). Therefore, party presentation

does not apply in the small claim’s courts. See study guide units 5.2.4 and 7.7.

Statement (1) is incorrect. Small claims courts should not be regard ed as inferior to other courts

because of the low value of the claims allowed as low value does not indicate that complex legal

issues cannot be adjudicated by these courts. See study guide unit 7.1.

Statement (3) is incorrect. Section 16(f)(iii) and (iv) of the Small Claims Courts Act, 1984, expressly

provides that a court shall have no jurisdiction in matters in which is sought damages in respect

of wrongful imprisonment and/or wrongful arrest. See study guide unit 7.5.

Statement (4) is incorrect. Section 15(a) of the Small Claims Courts Act, 1984, provides that a

court shall have jurisdiction in respect of causes of action for delivery of any property, movable or

immovable, not exceeding in value the amount determined by the Minister from time to time. The

value currently is R15 000. See study guide unit 7.5 and TL 102/3/2017.

QUESTION 4


(1) In Continental civil procedure, the judicial officer is only actively involved during the trial

stage of the proceedings.

(2) In Anglo-American civil procedure, the judge is never active during the pre-trial stage of the

proceedings.

(3) Orality is a dominant characteristic of Anglo-American civil procedure.

76

(4) The principle of bilaterally means in theory and in practice that both litigants have a

fair and balanced opportunity to present their respective claims or defences.


The principle of bilaterality assumes that both litigants will have a fair and a balanced opportunity

to present their respective claims or defences. The belief inherent in the principle is that the truth

will emerge if each party presented his or her own biased view of the issues in dispute. See study

guide unit 5.2.2.

Statement (1) is incorrect. In Continental civil procedure, the judicial officer participates directly in

the process of litigation, from the commencement of the proceedings to the conclusion of the

hearing. See study unit 5.1.

Statement (2) is incorrect. In Anglo-American civil procedure, the judge plays a passive role during

the pre-trial and trial stages. The judicial officer is passive in the system and can only interfere in

the proceedings at the request of one of the parties. See study guide unit 5.1.

Statement (3) is incorrect. The trial in Anglo-American civil procedure is marked by its orality.

The proceedings are characterised by distinct pre-trial and trial stages; during the pre-trial stage

pleadings are exchanged between the litigants in order to define the issues in dispute that will

7

have to be presented (orally) and proved at trial. Therefore, the Anglo-American system is not

dominated by its oral characteristics only.

QUESTION 5


Determine which one of the following situations a High Court will be competent to exercise

jurisdiction.

(1) The plaintiff is an incola of the court in which the cause of action arose, and the

defendant is an incola of the Republic.

(2) Both parties to the action are peregrini and the cause of action arose outside the court’s

jurisdictional area. The defendant submits to the jurisdiction of this court.

(3) A spouse who is domiciled in the United Kingdom may not independently institute

proceedings in a South African High Court in which the other spouse is domiciled.

(4) A contract is concluded between X and Z in Bloemfontein for the sale of property

situated in Durban. X may institute proceedings against Z in the Durban High

Court for registration of the property in his name.


The jurisdictional connecting factor ratione rei sitae is a common-law principle relevant only in

respect of property claims in the High Court. With regard to immovable property, a court in whose

77

area of jurisdiction the immovable property is situated have exclusive jurisdiction to hear

claims relating to such property. Therefore, when instituting proceedings for registration of

property situated in Durban, X may institute such proceedings against Z in the KwaZulu-Natal

High Court, Durban, only. No other court will have jurisdiction. See study guide units 10.1 and

16.2.

Statement (1) is incorrect. The general principles of jurisdiction regarding claims sounding in

money are that the courts of the area where a defendant is resident OR is domiciled (ratione

domicili), or where the cause of action arose (ratione rei gestae), will have jurisdiction. The plaintiff’s

domicile or residence is therefore irrelevant for jurisdiction purposes. See study guide unit 10.1.

Statement (2) is incorrect. If the defendant is a peregrinus of the whole Republic (foreign

peregrinus), a South African court will exercise jurisdiction over such a person only after

attachment of his or her property has taken place, either in the form of attachment ad fundandam

jurisdictionem (requiring the plaintiff to be an incola of the court concerned, apart from the

attachment) or attachment ad confirmandam jurisdictionem (requiring the cause of action to have

occurred in the particular court’s area of jurisdiction, apart from the attachment), provided that the

defendant has attachable property in the Republic (specifically in the particular court’s area of

jurisdiction). A foreign peregrinus can submit to a court’s jurisdiction, provided the cause of action

arose within the court’s area of jurisdiction. Therefore, a division of the South African High Court

would not have jurisdiction if both parties were peregrini and the cause of action arose outside

the court’s area of jurisdiction, and neither could submission take place. See study guide unit 15.2.4

and Tutorial Letter 102/3/2017.

Statement (3) is incorrect. Section 2(1) of the Divorce Act 70 of 1979 provides that a court may

exercise jurisdiction if “the parties are or either is” domiciled or resident in the court’s area of

jurisdiction. Thus, the domicile or residence of one spouse alone is sufficient to confer competence

on the court to exercise divorce jurisdiction over the other spouse, even if the other spouse is

domiciled or resident outside the Republic. Therefore, a spouse who is domiciled in the United Kingdom may independently institute proceedings in a division of the South African High

CT

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whose area the other spouse is domiciled. See study guide unit 17.3.

QUESTION 6


A High Court may exercise jurisdiction on the basis of an order for attachment ad confirmandam

iurisdictionem if -

(1) the defendant is a peregrinus of the court concerned, the plaintiff is an incola of the court

concerned and attachment has taken place;

(2) both the plaintiff and the defendant are incolae of the court concerned and attachment has

taken place;

(3) the plaintiff is a peregrinus of the court concerned, the defendant is a peregrinus of the whole Republic, the cause of action occurred within the area of jurisdiction of the court concerned, and attachment has taken place within the jurisdictional area of the court;

(4) attachment has taken place; the defendant is a peregrinus of the Republic and the cause

of action took place outside the jurisdictional area of the court concerned.


78

This statement satisfies all the requirements for attachment ad confirmandam jurisdictionem. In

regard to attachment ad confirmandam jurisdictionem, the following requirements must be met:

• The defendant must be a peregrinus of the Republic (foreign peregrinus) • The cause of action must have arisen within the area of jurisdiction of the court • The property of the defendant must be attached within the court’s area of jurisdiction

The status of the plaintiff is irrelevant for the purposes of attachment ad confirmandam

jurisdictionem. The plaintiff may be either an incola or a peregrinus of the court or the Republic.

See Tutorial Letter 102/3/2017.

Statement (1) is incorrect. The defendant must be a foreign peregrinus, and not a local peregrinus.

Furthermore, the cause of action must have arisen within the court’s area of jurisdiction. See

Tutorial Letter 102/3/2017.

Statement (2) is incorrect. The defendant must be a foreign peregrinus and the attachment of the

defendant’s property must have occurred within the court’s area of jurisdiction. An order for

attachment to found jurisdiction is not permissible in respect of an incola of the Republic. See

Tutorial Letter 102/3/2017 and section 28 of the Superior Courts Act, 2013.

Statement (4) is incorrect. The cause of action must have arisen within the court’s area of

jurisdiction.

QUESTION 7


(1) The Constitutional Court cannot be approached directly, even in exceptional

circumstances.

(2) A High Court may hear a dispute of a constitutional nature between organs of state.

(3) The Constitutional Court need not confirm a decision regarding the constitutionality of any

legislation by a High Court before such decision can acquire force.

(4) Although the Supreme Court of Appeal may hear appeals in respect of both

constitutional and non-constitutional matters, it is not the final court of appeal in

the case of constitutional matters.


The Supreme Court of Appeal may hear an appeal on both constitutional and non-constitutional

matters, but a decision on a constitutional matter may be taken on further appeal to the

Constitutional Court. See Tutorial Letter 102/3/2017.

Statement (1) is incorrect. Section 167(6)(a) of the Constitution provides that the Constitutional

Court may, when it is in the interests of justice, grant any person direct access to the Court. See

Tutorial Letter 102/3/2017.

79

Statement (2) is incorrect. The High Court of South Africa may hear any matter that it is not

prohibited from hearing by the Constitution or an Act of Parliament. The Constitutional Court has,

in certain instances, exclusive jurisdiction in terms of section 167(4), which provides inter alia that

only the Constitutional Court may adjudicate disputes concerning the constitutional powers or

functions of organs of state. Therefore, the High Court may not hear a dispute of a constitutional

nature between organs of state. See study guide unit 17.2 and Tutorial Letter 102/3/17.

Statement (3) is incorrect. The Constitutional Court must confirm a decision by the High Court or

a court of similar status regarding the constitutionality of an Act of Parliament or of a province

before such decision has any force. See section 167(5) of the Constitution, as amended by the

Constitution Seventeenth Amendment Act of 2012. Also see section 167(4) of the Constitution

and Tutorial Letter 102/3/2017.

QUESTION 8

X, a resident of Bloemfontein, wishes to institute proceedings against Y, a resident of Durban, for

an amount of R70 000 being damages sustained to his truck arising from a collision between his

vehicle and Y’s vehicle which took place in Johannesburg. The collision was due solely to Y’s

negligence. Y is the owner of a holiday home in Cape Town and carries on business in

Pietermaritzburg.

Indicate the statement that is most ACCURATE:

(1) only the magistrates’ courts of Cape Town, Durban and Pietermaritzburg will have

jurisdiction;

(2) only the magistrates’ courts of Durban and Cape Town will have jurisdiction;

(3) only the magistrates’ courts of Durban, Pietermaritzburg and Johannesburg will

have jurisdiction;

Q(4U) ESToInOlyNth9e magistrates’ courts of Bloemfontein and Durban will have jurisdiction.


According to the given facts, the defendant is a resident of Durban and therefore, in terms of section

28(1)(a) of the Magistrates’ Courts Act 32 of 1944, the Durban magistrate’s court has jurisdiction

as Y” reside” there. The accident (delict/the cause of action) took place wholly in Johannesburg,

so in terms of section 28(1)(d) of the Act the Johannesburg magistrate’s court has jurisdiction.

Pietermaritzburg magistrate’s court has jurisdiction in terms of section 28(1)(a) of the Act as Y

“carries on business” there. The amount of R70 000 falls within the jurisdictional limit of the

magistrates’ courts in terms of section 29 of the Act. See study guide units 21 and 22.

Statement (1) is incorrect. The magistrates’ courts in Durban and Pietermaritzburg will have

jurisdiction in terms of sections 28(1)(a) of the Act, but the magistrate’s court in Cape Town will

not have jurisdiction, because the holiday home in Cape Town is not related to the claim for

damages. See section 28(1)(g) of the Magistrates’ Courts Act, which requires the action to be in

respect of that particular immovable property or in respect of a mortgage bond registered

over the property, which is not the case here. See study guide unit 22.2.7.

Statement (2) is incorrect. See the comments in statement (1) above.

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Statement (4) is incorrect. The magistrate’s court in Durban may be competent to exercise

jurisdiction in terms of section 28(1)(a). However, section 28 applies to defendants only, and

not to plaintiffs, so no magistrate’s court (i.e. neither a district nor a regional court) in

Bloemfontein will have jurisdiction, as the plaintiff, X, is resident in Bloemfontein. See study

guide unit 22.

QUESTION 9


(1) A magistrate’s court within whose area of jurisdiction a defendant resides, is vested with

jurisdiction by virtue of the common -law principle of actor sequitur forum rei.

(2) A claim for delivery of specific movable property without an alternative claim for

damages, even though the value of the property does not exceed R200 000 cannot be

instituted in any magistrate’s court.

(3) Splitting of claims occurs when more than one claim, each based on a separate cause

of action, is contained in a single summons.

(4) The jurisdictional connecting factor ratione rei sitae is relevant only in respect of

property claims in the High Court.


The jurisdictional connecting factor ratione rei sitae is a common-law principle relevant only in

respect of property claims in the High Court. Common law principles do not apply to claims in the

magistrates’ courts, as the magistrate’s court is a “creature of statute” which means that

jurisdictional grounds are contained in the MCA. See study guide units 10.1 and 16.2.

Statement (1) is incorrect. Actor sequitur forum rei is the Roman-law maxim on which the common-

law ground of jurisdiction known as ratione domicilii is based but applies only to claims sounding

in money in the High Court. Also see comments under statement (4) above. See study guide units

10.1.

Statement (2) is incorrect. Section 46(2)(c) of the Magistrates’ Courts Act, 1944, provides that a

court shall have no jurisdiction in matters in which specific performance is sought without an

alternative claim of the payment of damages, except when claiming the

(i) rendering of an account; or (ii) delivery or transfer of property, movable or immovable; and (iii) delivery or transfer of property, movable or immovable, exceeding in value the amount

determined by the Minister from time to time, where consent has been obtained in terms of

section 45. Therefore, a claim for delivery of specific movable property without an alternative of the payment

of damages, even though the value of the property does not exceed R200 000, can be instituted

in any magistrate’s court as it falls within the exception provided for in section 46(2)(c)(iii).

Statement (3) is incorrect. Section 40 of the Magistrates’ Courts Act, 1944, prohibits one cause of

action from being split in such a way that separate claims are brought in separate actions, each

of which falls within the district or regional court’s jur isdiction. Splitting claims occurs when more

than one claim based on the same cause of action is instituted.

QUESTION 10

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Indicate the statement that is the most ACCURATE:

(1) A claim instituted by a registered company in the small claims court may not exceed the

quantitative jurisdiction of R15 000 imposed by the Small Claims Courts Act, 1984 as amended.

(2) In small claims courts, a party is entitled to cross-examine his or her opponent.

(3) A small claims court can hear an action for seduction or breach of promise to marry.

(4) Proceedings in a small claims court must be commenced by a letter of demand.

The most accurate statement is (4). The letter of demand is the first document to be delivered to the defendant in the small claims

court. In terms of section 29(1)(a) of the Small Claims Courts Act 61 of 1984, the defendant is given

14 days to satisfy the plaintiff’s claim. Section 29(2) confirms that a summons is not the first

document in small claims court proceedings.

Statement (1) is incorrect. Only natural persons are allowed to institute actions in small claims

courts. A juristic person (such as a company and a close corporation) may not commence

proceedings in the small claims courts as a plaintiff. A juristic person can become a party to the

action only as a defendant.

Statement (2) is incorrect. A party may not question or cross-examine any other party to the

proceedings in question or a witness called by such party. Only the commissioner may proceed

inquisitorially to establish the relevant facts. However, in terms of section 26(3) of the Small

Claims Courts Act, 1984, the commissioner may, in his or her discretion, allow any litigant to

put a question to the other litigant or to any witness.

Statement (3) is incorrect. In terms of section 16(f) of the Small Claims Courts Act, 1984, a small

claims court is not competent to hear an action for damages in respect of seduction or breach of

promise to marry. Section 16 set out the matters in which a small claims court has no jurisdiction.

82

JURISDICTION: HIGH COURT

CASE STUDY: 1

Facts

An action for damages on the grounds of breach of contract was instituted in the then

Witwatersrand Local Division (WLD). The plaintiff, Ewing McDonald & Co Ltd, was an incola

of the WLD; the defendant, M & M Products Co, was a peregrinus of the whole Republic.

The contract was concluded outside the Republic but it was implemented throughout the

Republic so that Johannesburg was the locus solutionis (i.e. place of performance of an

obligation) and the WLD, the forum solutionis. The plaintiff obtained an order in the WLD

authorising the attachment ad fundandam jurisdictionem, (and in the alternative, attachment

ad confirmandam jurisdictionem) of the defendant's right and title to certain trade marks

registered in the Republic. The trademarks were subsequently attached in accordance with

the order, by the sheriff for the jurisdictional area of the then Transvaal Provincial Division

(TPD).

The defendant challenged the order of attachment, arguing that all the trademarks were

registered in Pretoria and as such, outside the area of jurisdiction of the WLD. The

defendant's application was granted and the order of attachment set aside.

The plaintiff appealed against the order setting aside the attachments on the following

grounds, inter alia, that section 26(1) of the Supreme Court Act of 1959 permitted an order of

one division to be executed on assets found outside the jurisdictional area of that division,

thereby rendering its judgment effective. Because an attachment after judgment would render

that court's judgment effective, an attachment before judgment would endow the court with

the required jurisdiction to adjudicate the matter.

Source: Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A)

ANALYSIS

(1) What are the requirements for an order for attachment ad fundandam

jurisdictionem?

A court will assume jurisdiction over a peregrine defendant of the whole Republic if

attachment of the defendant’s property ad fundandam jurisdictionem has taken place

within the court’s area and the plaintiff is an incola of the court concerned.

In this instance, the attachment founds or establishes jurisdiction. It is on the basis of

the attachment that the court assumes jurisdiction over the peregrine defendant. That

the cause of action occurred outside the jurisdiction of the court is not relevant. For

details regarding the formulation of this requirement through the decided cases, see pg

110of the textbook and study unit 2.2.3 of Tutorial letter 501/3/2018.

(2) What are the requirements for an order for attachment ad confirmandam

jurisdictionem?

In an instance where the defendant is a peregrinus of the whole Republic, a court may

exercise jurisdiction if the cause of action has taken place within the court's area of

2. CASE STUDIES

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jurisdiction and attachment ad confirmandam jurisdictionem of the defendant’s property

has occurred. On account of the fact that the cause of action has arisen within the

court's jurisdictional area, the attachment confirms (ie in the sense of completing) the

already existing, but imperfect, jurisdiction of the court. In this instance, it is irrelevant

whether the plaintiff is an incola or peregrine of the court.

(3) In terms of the given facts, is an order of attachment ad confirmandam

jurisdictionem competent in view of the fact that the contract was concluded

outside the Republic?

At common law it is not required that the whole cause of action must arise within the

jurisdictional area of a court. Section 28(1)(d) of the Magistrate’s Courts Act of 1944

waives the common law in this respect. However, in the High Court, the common law

rule applies. Therefore, for the purposes of the exercise of jurisdiction in the High Court,

it is sufficient that either the conclusion of a contract, its performance or its breach

should have occurred within the jurisdictional area of a division; any one of these events

will establish a valid cause of action.

In terms of the given facts, it is irrelevant that the contract was concluded outside the

Republic. The fact that the place of performance of the contract was within the

jurisdictional area of the WLD establishes a cause of action that could justify an order

for attachment ad confirmandam jurisdictionem.

JURISDICTIONAL ISSUE

May an order of attachment for the purposes of jurisdiction be executed outside the

jurisdictional area of a division in terms of section 26(1)?

On the facts, the order of attachment granted by the WLD was executed by the Deputy- Sheriff

for Pretoria in respect of trademarks registered in the jurisdictional area of then Transvaal

Provincial Division. The order for attachment was subsequently set aside on appeal by the

WLD per Nienaber AJA on the ground that section 26(1) did not extend the jurisdiction of a

division so as to enable it to order an attachment of property situated outside its own

jurisdictional area which it otherwise was not competent to do so.

Section 26 therefore only applies to the service of a process outside a division, once it has

been established that the division concerned is competent to exercise jurisdiction, for

example the service of a summons.

Note: For the benefit of those students who have not yet studied the Law of Things, we point

out that trademarks can be classified as incorporeal matter and therefore can be attached.

Note further: Section 26(1) of the Supreme Court Act 59 of 1959 has now been replaced by

section 42(2) of the Superior Courts Act 10 of 2013. See Tutorial letter 501/3/2018 which

explains the historical context of this case.

JURISDICTION: LOWER COURTS

CASE STUDY: 2

Facts

The plaintiff (Rotary Motors (Pty) Ltd) issued summons against the defendant (Seyer) for

goods sold and services rendered, alleging that the whole cause of action arose within the

jurisdictional area of the magistrate's court for the district of Mariental. The defendant raised

a special plea in the following terms (620 G-J):

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Special plea

Defendant raises the following special plea to plaintiff’s summons as amplified by the further

particulars thereto. Defendant avers that this honourable court does not have jurisdiction in

this action over the person of the defendant inasmuch as plaintiff’s cause of action did not,

as is required by the provisions of section 28(1)(d) of Magistrates’ Courts Act 32 of 1944, as

amended, arise wholly within the district of this honourable court as is alleged by plaintiff, by

reason of the fact that plaintiff agreed to accept payment from defendant for the goods and

services allegedly supplied by plaintiff to defendant, in the form of a cheque payable to plaintiff

drawn by defendant on the George branch of Trust Bank.

Plaintiff accordingly agreed that it was a material term of the contract between the parties that

payment for the goods and services on which plaintiff’s claim is based would have been made

in George, outside the jurisdiction of the above honourable court.

At the hearing of the special plea, the plaintiff stated the following under cross-examination:

"Ek het voorwaardelik aanvaar dat tjek betaal sal word deur die bank."

The magistrate dismissed the special plea and the defendant took the matter on appeal.

Source: Seyer v Rotary Motors (Edms) Bpk 1989 (4) SA 619 (SWA)

ANALYSIS

(1) State the provisions of section 28(1)(d) of Magistrates’ Courts Act.

Section 28(1)(d) provides that a district magistrate's court (or regional magistrate’s

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, irrespective of whether or

not the defendant resides, carries on business or is employed in the district or regional

division (ie, whether the provisions of s 28(1)(a) apply or not). Hence, the cause of

action (and not the physical presence of the defendant) forms the nexus between the

defendant and the area of the court.

(2) What is the meaning of the term "whole 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.

You must study the McKenzie's and King's Transport case in this context.

(3) If a court does not have jurisdiction in terms of section 28(1)(d) to hear a matter,

does it mean that the court cannot hear the matter at all?

No, nor does it necessarily mean that no other court (ie a court for another district or

regional division) can hear the matter. It is important to realise 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.

85

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 (eg, one in terms of s 28(1)(a),

another in terms of s 28(1)(d) or even s 28(1)(b)). In such an instance, the circumstances of

the case (such as costs, convenience, etc) will dictate in which court the plaintiff, as master

of the suit, will choose to institute action.


Did the whole cause of action arise within the jurisdictional area of the district

magistrate's court of Mariental for the purposes of section 28(1)(d)?

On the facts, the conclusion and performance of the contract occurred in Mariental. The

important question is whether its breach occurred in Mariental or in George, the cheque being

drawn at a bank in George.

On evidence under cross-examination, the plaintiff stated that he had accepted the cheque

subject to the condition that it would be paid by his bank in Mariental. The implication was

that if the cheque were dishonoured, the breach would occur in Mariental.

On appeal, the court found that the whole cause of action had arisen within the district of

Mariental and that the magistrate had correctly dismissed the special plea.

CASE STUDY: 3

Facts

Badenhorst bought Theophanous' café, situated in the magisterial district of Albertinia.

Clause 11 of the written deed of sale contained a restraint of trade clause forbidding

Theophanous directly or indirectly to compete with Mrs Badenhorst within a 10 km radius of

Albertinia.

Approximately nine months later, Theophanous began trading in a café 300 metres from the

café he had sold to Mrs Badenhorst. Mrs Badenhorst accordingly brought an urgent

application on notice of motion in the Albertinia magistrate's court for an order restraining

Theophanous from directly or indirectly doing business for his own benefit or managing any

business on the specified premises.

At the hearing, Theophanous raised a point in limine (ie a preliminary point at the outset of

the hearing) that a magistrate's court did not have jurisdiction to grant the order requested by

Badenhorst.

The magistrate upheld Theophanous' argument on the ground that Badenhorst was seeking

an order for specific performance, even though her claim was couched in the form of a

prohibitory interdict, and because there was no claim in the alternative for damages, section

46(2)(c) prohibited a magistrate's court from granting such an order. The application was

dismissed with costs.

On appeal to then Cape Provincial Division (CPD), Badenhorst contended that the

magistrate's decision was incorrect because the order sought was for an interdict, and that in

terms of section 30(1), a magistrate's court is competent to grant such an order,

notwithstanding the provisions of section 46(2)(c).

Source: Badenhorst v Theophanous 1988(1) SA 793 (C)

86

ANALYSIS

(1) What is the jurisdictional purpose of section 46 of the Magistrates’ Courts Act?

The purpose of section 46 is to exclude totally the competence of a lower court to

exercise jurisdiction in respect of the specific causes of action stated therein.

(2) What are the particular requirements of section 46(2)(c)?

Subject to the exceptions stated in section 46(2)(c) (i)-(iii), a district magistrate's court

is prohibited from granting an order for specific performance unless the payment of

damages is also sought in the alternative. The implication is that a magistrate's court

may grant an order for specific performance only if the payment of damages is sought

as an alternative. Example: "The plaintiff prays that the defendant be directed to build

the wall as agreed, alternatively, payment of damages in the sum of R160 000."

(3) What is a prohibitory interdict?

A prohibitory interdict is an order restraining a person from committing a threatened

wrong or from continuing to commit an existing wrong.

(4) In what instances is a court reluctant to issue an order for specific performance?

The answer is adequately set out in study unit 3.2.3 of Tutorial letter 501/3/2018 and

pages 81-83 of prescribed textbook. Further comment is unnecessary.

(5) What is an order ad factum praestandum?

Literally translated, the term ad factum praestandum means the performance

(praestandum) of an act (ad factum). Hence an order ad factum praestandum refers to

a judgment in which a person is ordered to perform or to refrain from performing some

act.

In context, an order ad factum praestandum is associated with an order for specific

performance. It is important to realise that specific performance is one of the

established remedies for breach of contract. However, judicial practice is not clear on

this. Should the specific performance mean only the order given for the fulfilment of a

contractual obligation and whether, in relation to specific performance, a distinction

should be made between a claim ad factum praestandum and a claim ad pecuniam

solvendam (ie the payment of an amount which is due and payable?). See further

question 6 below.

(6) Does the decision in Tucker's Land and Development Corporation (Edms) Bpk v

Van Zyl 1977 (3) SA 1041 (T) in any manner relate to the above facts?

In Tucker's Land, a distinction was drawn between orders ad factum praestandum and

orders ad pecuniam solvendam, and the conclusion was correctly drawn that in relation

to the performance of a contract, an order ad pecuniam solvendam is not an order for

specific performance, whereas an order ad factum praestandum is an order for specific

performance, thereby falling beyond the scope of jurisdiction of a magistrates' court.

On the given facts, Badenhorst, under the guise of a prohibitory interdict, is in fact

requesting the enforcement of a contractual obligation, that is, the restraint-of-trade

agreement contained in clause 11 of the contract. In terms of Tucker's Land, the

granting of such an order is an order ad factum praestandum, and therefore in reality

an order for the specific performance of a contractual obligation that falls beyond the

jurisdictional competence of a district magistrate’s court.

87


Do the provisions of section 46(2)(c) prohibit the exercise of jurisdiction by a district

magistrate's court in respect of the enforcement of a restraint-of-trade agreement,

notwithstanding the provisions of section 30(1)?

The competence of a district magistrate's court to grant an interdict in terms of the provisions

of section 30(1) is subject to the jurisdictional limitations prescribed by the Magistrates’ Courts

Act 32 of 1944. Section 46(2)(c) provides that a magistrate's court is prohibited from granting

an order for specific performance without an alternative for damages.

On the facts, Badenhorst's application for a prohibitory interdict to restrain Theophanous from

trading in Albertinia in terms of a restraint-of-trade agreement in fact amounts to a request for

the enforcement of a contractual obligation. An order so granted would be one ad factum

praestandum and hence, in practice, be the equivalent of an order for specific performance

without the alternative for damages. Such an order would therefore be contrary to the

provisions of section 46(2)(c), and therefore beyond the jurisdictional competence of a district

magistrate's court.

CASE STUDY: 4

Facts (in brief)

The appellant (Oosthuizen) sustained serious bodily injuries as a result of a motor vehicle

collision on 1 March 2003. The appellant issued summons in the magistrate’s court in respect

of a claim of damages against the respondent (the Fund) in the Pretoria magistrate’s court a

year later (2004). The claim was found to exceed the monetary jurisdiction of the magistrate’s

court (then R100 000). However, the plaintiff was unable to withdraw the case from the

magistrate’s court and issue fresh summons in the North Gauteng High Court, Pretoria, as

the claim had prescribed. The appellant then applied to have the case transferred from the

magistrate’s court to the High Court having jurisdiction.

The High Court found in favour of the Fund. The court held that there is no statutory provision

authorising such transfer. Section 173 of the Constitution of the Republic of South Africa,

1996, was found not to be applicable to the case. The case went on appeal.

The appellant contended that the “interests of justice” required the High Court to use its

inherent jurisdiction to order a transfer of the case to the High Court. The appeal court found

that section 173 does not give any court, including High Courts, carte blanche to meddle or

interfere in the affairs of inferior courts. A High Court may not use its inherent jurisdiction to

create a right. It was found that the appellant has a right to institute action in the appropriate

forum to the full extent of his claim. It was found that the appellant’s attorneys were to blame

for the prescription of part of his claim. However, the appellant was not without a remedy and

he could institute a claim for compensation against his attorneys to recover the difference

between what might be recovered in the magistrate’s court and the full extent of his claim.

The appeal was dismissed with costs.

Source: Oosthuizen v Road Accident Fund (258/10) [2011] ZASCA 118 793 (C); 2011 (6)

SA 31 (SCA) ANALYSIS

(1) State the provisions of section 50(1) of the Magistrates’ Court Act.

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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. Read section

50(1).

(2) Does the plaintiff have recourse to the transfer of a case from the lower courts to

the High Court?

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.

(3) State the provisions of section 173 of the Constitution.

This section states that the Constitutional Court, Supreme Court of Appeal and the High

Court of South Africa (or a Division of the High Court) have the inherent power to

protect and regulate their own process, and to develop the common law, taking into

account the interests of justice.


Was the appellant successful in transferring the case from the magistrate’s court to

the High Court having jurisdiction?

The appellant was not successful and his appeal was dismissed with costs. The Supreme

Court of Appeal found that a High Court may not use its inherent jurisdiction to create a right.

Therefore, section 173 was not applicable to the case. The appellant had a right to institute

action in the appropriate forum to the full extent of his claim. It was found that the appellant’s

attorneys were to blame for the prescription of part of his claim. However, the appellant could

institute a claim for compensation against his attorneys to recover the difference between

what might be recovered in the magistrate’s court and the full extent of his claim.

COURT PROCEDURE

CASE STUDY: 5

Facts

In its summons a commercial firm, Neves Builders, claimed the following (540-541

B):

(a) Payment of the sum of R6 500, being plaintiff’s fair and reasonable charge for

work done and materials supplied by plaintiff for and on behalf of defendant at

defendant's specific instance and request during December and January 1984 and

which amount defendant has despite demand refused and/or neglected to pay

although the said amount is due and payable; (b) interest at the rate of 11% per

annum a tempore morae;

(c) alternative relief;

(d) costs of suit.”

89

De la Cour, the defendant, entered an appearance to defend whereupon the plaintiff

applied for summary judgment which the defendant opposed. The defendant’s

opposing affidavit contained the following allegations summarised as follows (541 B-

F):

In outline the defence is as follows. The plaintiff is a builder. In November 1983

defendant engaged him to do some alteration work at a block of flats which is divided

into sectional titles. The work was not undertaken on the basis of a "fair and

reasonable" charge as alleged by plaintiff, but in terms of two quotations for R1 360

(alterations to office accommodation) and R2 600 (alterations to a flat). The work was

required to be finished before 1 January 1984. The defendant avers that the

alterations did not go well. Plaintiff’s workmen did some damage; some of the work

was poorly executed and had to be re-done by another contractor; some of the work

was not done at all; work continued beyond 1 January 1984, exposing defendant to

a damages claim by an incoming tenant; and various items were removed from the

site by plaintiff or his workmen. Annexed to the papers is a detailed list of the

"damages" which defendant claims to have suffered by reason of the aforegoing.

He subtracts the total damages from the aggregate of the two contract prices and

arrives at a balance in favour of the plaintiff in the sum of R2 708,10. He then says

in his affidavit:

“I am accordingly prepared to acknowledge liability to plaintiff in the

amount of R2 708.10, which I accordingly tender him in full and final

settlement of his claim."

At the hearing plaintiff’s counsel moved for summary judgment in the amount of R2

707,90 on the basis that the defendant in his opposing affidavit had acknowledged

his liability to that amount, had shown no defence to that portion of the claim and that

the tender to pay in full and final settlement was ineffective.

Source

Neves Builders & Decorators v De La Cour 1985 (1) SA 540 (C)

ANALYSIS

NOTE: Please note the date of the judgment – the quantitative jurisdiction for

courts was then much lower than today! Your focus should be on the

principles illustrated, not the amount in dispute!

(1) Judging from the nature of the claim set out above, what type of summons

did the plaintiff issue?

The plaintiff issued a simple summons, the reason being that on the face of it the claim

is for a liquidated demand.

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(2) Why does the plaintiffs claim only set out the bare essentials and not

describe all the material facts of the claim? (Rules 17 and 20)

The Uniform Rules of Court simply do not require a description of all the material

facts of the claim. Rule 17 requires that all such material facts be described only in

respect of an unliquidated claim. The reason is clear: in the case of a simple

summons, the claim is fixed or easily determinable. These claims are often left

undefended thereby allowing default judgment to be granted against the defendant

or if defended, would sustain an application for summary judgment. It is therefore

unnecessary to give a full statement of the claim and all that is required is that the

cause of action be concisely described in the summons. Details of the claim only

become necessary if the defendant has entered an appearance to defend and an

application for summary judgment has been refused. (Obviously the same applies

where the matter is defended by agreement between the parties and where an

application for summary judgment was not made timeously.) Only at this stage is

the plaintiff compelled to furnish the defendant with a declaration. (See Uniform Rule

20(1).) The declaration must state the nature of the claim and those conclusions of

law that the plaintiff is entitled to deduce from the facts. (See Uniform Rule 20(2).)

(3) What is the purpose of an application for summary judgment?

The purpose of an application for summary judgment is to obtain judgment speadily

against a defendant who has no bona fide defence against the plaintiffs claim and

who has entered an appearance to defend solely for the purpose of delaying the

action.

(4) What types of claim can give rise to an application for summary

judgment? (Rule 32)

The types of claim are set out in Rule 32 of the Uniform Rules of Court and need not be

repeated. However, it is important to understand the following.

Application for summary judgment is restricted to these types of claim. Moreover,

each of the grounds for summary judgment fall within the scope of a "debt or

liquidated demand". As has been stated in (1) above, a simple summons must be

issued if the claim is for a "debt or liquidated demand". This indicates the procedural

relationship between a simple summons and the application for summary judgment.

What is also evident is that application for summary judgment cannot be brought on

an unliquidated claim.

(5) Why is a notice of intention to defend particularly important for an

application for summary judgment?

Uniform Rule 32(2) states that an application for summary judgment may only be

brought after the defendant has entered an appearance to defendant. The underlying

reason is that defendant indicates by entering the notice of intention to defend that

he plans to raise a defence against the claim stated in the plaintiff’s simple summons.

Only at this stage is the plaintiff sufficiently informed about the defendant's true

intentions and may protect his interest by means of an application for summary

judgment to show that the defendant does not have a bona fide defence and that he

is raising a defence merely as a tactic to delay the action. However, the plaintiff has

a choice: on receipt of the notice of intention to defend

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he or she can either apply for summary judgment or may accept the said notice and

file a declaration within the prescribed time, in which case the normal litigation

process will follow.

(6) Does the defendant’s opposing affidavit described above, disclose a bona

fide defence?

Obviously, every bona fide defence raised against an application for summary

judgment must be assessed on its own merits.

In the present instance, the bona fide defence raised by the defendant attempts to

show that the plaintiff’s claim is unliquidated. If you read the summary of the

defendant’s opposing affidavit carefully, you will notice that the defendant raised the

following issues in this respect:

(a) The terms of the contract are in dispute; the plaintiff contends that the contract

price is for a fair and reasonable charge whereas the defendant alleges that the

contract price was based on two quotations in fixed amounts.

(b) The defendant lists a number of complaints about the quality of work performed

by the plaintiff (e.g., damages done, work not done, work done late, items

removed, etc) that are relevant to the nature and extent of the plaintiffs claim.

What may also be inferred is that the contract was not in writing and therefore its

terms would have to be proved. These issues show that the defendant could raise

a bona fide defence in the main action. (See, further, 7 below.)

(7) Is the plaintiff’s claim capable of speedy and prompt ascertainment?

The defence raised by the defendant indicates that the plaintiff’s claim is not capable

of speedy and prompt ascertainment. Oral evidence would have to be heard in order

to clarify the areas of dispute between the parties and to determine the amount of

the claim. (See further PROCEDURAL ISSUE below.)

PROCEDURAL ISSUE

Does the plaintiff's claim sustain an application for summary judgment?

On account of the issues raised in the defendant’s opposing affidavit (see (6) above),

it is clear that proof of the plaintiff’s claim would be difficult and protracted and that it

would be necessary to rely on oral evidence. The plaintiff’s claim is therefore not

expressly capable of speedy and prompt ascertainment which is an essential

requirement for a claim to be liquidated. A liquidated claim is one of the grounds for

an application for summary judgment and formed the basis of the application in the

present instance. Because the plaintiff’s claim is not liquidated, the application for

summary judgment should be set aside.

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CASE STUDY: 6

Facts

In a contested application the applicant sought the ejectment of the respondent

company from certain premises in Laudium. In the founding affidavit the deponent

of the applicant company alleged that it was the owner of certain premises situated

in Bengal Street, and that the respondent was in unlawful possession thereof, in that

it unlawfully occupied a portion thereof. The resolution which empowered the

deponent of the applicant company to proceed with this application provided, inter

alia, that the lease between the applicant company and the present tenant of the

promises, one M, not be renewed and that should the tenant not vacate the premises,

that the necessary steps be taken to evict such tenant and anyone else occupying

the premises.

A notice of motion was served on the respondent to which the latter replied by way

of a lengthy answering affidavit. The court was consequently confronted with a vast

number of pages of conflicting testimony. At the hearing of the matter counsel for the

respondent addressed argument in limine in terms of which he sought the dismissal

of the application. Counsel argued in the first instance that a proper cause of action

had not been disclosed in the founding papers as respondent was a sub-lessee of

M and the company resolution referred expressly to M. He submitted that motion

procedure was inappropriate where ejectment is sought. Secondly, it was argued

that if an applicant sought an alternative order that the matter be referred for viva

voce evidence, the applicant must make its election at the outset.

Source

Abaany Property Investments Ltd v Fatima Ayob & Sons Ltd 1994 2 SA 342

(T)

ANALYSIS

(1) On the facts of the matter, what type of application did the applicant use

to commence proceedings?

The applicant used an "ordinary" application (Form 2(a)) as notice of the proceedings

to another person was necessary because that party’s rights or interest are

affected by the relief claimed. (A claim for ejectment threatens a person's

occupational rights and therefore notice of such proceedings is obviously necessary.)

(2) Identify the documents which the parties are allowed to exchange in

opposed proceedings in terms of the Uniform Rules of Court.

Rule 6 provides for the following documents: (a) A notice of motion to which the

supporting affidavit is attached; (b) the answering affidavit (Rule 6(5)(ii)); (c) the

replying affidavit (Rule 6(5)(e)). (The court has the discretion to permit the filing of

further sets of affidavits, but only in exceptional circumstances: see Rule 6(5)(e).)

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(3) Are the documents referred to in question (2) above classified as

"pleadings" or as "processes"?

They are classified as “processes". The textbook explains the courts’ definition of a

process and i t is therefore not repeated here. It is necessary to distinguish these

concepts as different rules and principles apply in each instance, and certain steps

to rectify technical mistakes in documents can only be taken in respect of either of

these types of documents.

(4) The court indicated that action proceedings are the usual form of

proceedings where ejectment is sought. What type of summons would be

appropriate in such an event and why

The simple summons, as ejectment falls within the definition of a "debt or liquidated

demand". This is confirmed by the fact that ejectment is one of the grounds for

summary judgment as set out in Rule 32 of the Uniform Rules of Court.

(5) When does a dispute of fact arise?

It arises when

(a) the respondent denies material allegations made on the applicant’s behalf and

produces positive evidence to the contrary

(b) the respondent admits the allegations contained in the applicant’s affidavit, but

alleges other facts which the applicant disputes

(c) 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

to prove the main facts, are untrue.

(6) Did a real dispute of fact arise on the facts of this matter?

Although the court does not expressly rule on this point, it would appear that it did

not: despite the fact that the respondent denied the cause of action (as set out in the

founding affidavit), it produced no positive evidence to the contrary. In fact, the

court specifically indicated that the allegation of the existence of a sublease

(and the applicant’s denial thereof) did not establish a different cause of action; nor

was there a conflict between the founding affidavit and the applicant company’s

resolution.

(7) What orders may a court make where a genuine dispute of fact arises

which cannot be settled without the hearing of viva voce evidence?

The court may:

(a) dismiss the application.

(b) order that oral evidence be heard on specified issues

(c) order the parties to trial with appropriate directions as to pleadings, et cetera.

(Rule 6(5)(g)).

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PROCEDURAL ISSUE

Is motion procedure inappropriate if ejectment is sought?

Deciding the correct form of procedure to use is by process of elimination. Neither

the Uniform Rules of Court nor the Supreme Court Act prescribes or prohibits a

particular procedure in this instance. Consequently, one has to determine whether

or not there is a real dispute of fact regarding any material question of fact, or, if

such a dispute does exist, whether or not it can nevertheless be satisfactorily

determined without the aid of oral evidence.

In the present instance the court was of the opinion (at 343J) that although action

may be the usual form of proceedings where ejectment is sought, there is no

indication in reported cases that motion proceedings are incompetent; it would

depend on the facts of the particular case.

The court also pointed out that the practice of using motion proceedings has in recent

years been extended, rather than limited. Turning to the facts of the case, the court

pointed out that even though respondents answering affidavit referred to the

existence of a sublease and the applicant's replying affidavit denied such allegation,

this was not sufficient to establish a different cause of action: it is still the applicant's

ownership and the respondent's alleged unlawful occupation which is in issue. (Note:

The applicant is prima facie entitled to possession by virtue of his/her ownership. The

cause of action arises out of the fact that the applicant is owner and therefore entitled

to possession.)

SAMPLE EXAMINATION PAPER

CIVIL PROCEDURE

Duration: 1 hour Marks: 50

PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN ANSWERING THE SAMPLE

EXAMINATION PAPER:

Answer all THREE questions:

(a) Please ensure that you give FULL reasons for each answer.

(b) Please ensure that the time you devote to each question is proportionate to the marks allotted.

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HIGH COURT PROCEDURE

QUESTION 1 (a)

(b)

(c)

(d)

(e)

Ace Bank is liquidated due to fraud committed by its directors. Two hundred and thirty-four plaintiffs, each of whom has a legally valid claim, get together because they do not want to institute individual claims against the liquidators of Ace Bank, for financial reasons. With these facts in mind, advise these potential plaintiffs on the manner in which they could litigate against the liquidators of Ace Bank.

The provisional sentence summons procedure is an executory procedure which may be used after hearing prima facie only. Name and discuss the three protective mechanisms built into the procedure for the sake of the defendant.

Determine whether the following are pleadings or process documents –

(i) a combined summons

(ii) a declaration

X issues a combined summons against Y for damages arising out of breach of contract. Y responds with a notice of intention to defend. With these facts in mind, answer the following questions.

(i) May X bring an application for summary judgment in response to Y’s notice

of intention to defend?

(ii) Discuss the procedure that X may follow if Y fails to file a plea on the

merits.

(iii) Discuss the procedure that X may follow if Y fails to file a plea on the

merits, despite the procedure discussed in (ii) above.

M issues a combined summons against N for damages arising out of breach of

contract. N responds with a notice of intention to defend. Thereafter, within

(6)

(6)

(2)

(2) [4]

(2)

(3)

(5) [10]

the dies induciae N files a plea on the merits along with a counterclaim. With these facts

in mind, answer the following questions.

(i) Name the pleading that must be filed by M if N in his plea on the merits responds to one

of the allegations contained in M’s particulars

of claim by means of confession and avoidance. (1)

(ii) Name the pleading that M must file in response to the allegations

contained in N’s counterclaim. (1)

(iii) Name the pleading that N may use if M’s pleading referred to in (ii)

above does not disclose a valid defence. (1)

(iv) Name the procedure that M may use if M believes that N is in possession of a tape

recording of the negotiations between M and N

and which gave rise to the conclusion of the contract. (1)

[4]

[30]

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MAGISTRATES' COURTS PROCEDURE

QUESTION 2

(a) Set out the requirements for the content of an offer to settle as contained in

rule 18 of the Magistrates’ Courts Rules. (5)

(b) Name the three requirements for the supporting affidavit that must be filed by the

plaintiff together with the notice for the summary judgement. (5) [10]

APPEAL, REVIEW AND VARIATION OF JUDGMENT

QUESTION 3

(a) Name the four grounds for review. (4)

(b) Discuss the circumstances when judges will entertain an application for leave to appeal against a decision of a High Court. (4)

(c) Name the procedure that must be followed when variation of judgment is sought

(i) in terms of Rule 42 of the Uniform Rules of Court; (1) (ii) in terms of the common law. (1) [10]

[50]

ANNEXURE B: COMMENTARY

ANSWERS TO QUESTIONS ABOVE

Question 1(a)

They can be voluntarily joined as plaintiffs. The requirements are that each person must have a claim,

against the same defendant, and one or more of the plaintiffs must be entitled to institute a separate action.

The claim must depend upon substantially the same question of law or fact and this question must arise

in each potentially separate action. (Joinder can also occur conditionally, in other words, if an action of

any other plaintiff fails.) (Study unit 4.3.2)

Question 1(b)

• The judgment is provisional: the defendant can therefore within two months of date of judgment

enter into the main action (provided he paid the judgment debt and the taxed costs)

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• Although payment can immediately be required, the plaintiff can only do so against security de

restituendo • Although execution can be levied against the property of the defendant if he/she fails to pay

the judgment debt, this can only be done against security de restituendo. (Study unit 7).

Question 1(c)

(i) A combination of the two: the summons itself is a process (it simply represents a step in the

process), while the particulars of claim is a pleading (it contains the material facts which are relied

upon in support of the claim).

(ii) A pleading: it contains the material facts which are relied upon in support of the claim.

See study unit 8.1 for a full discussion of these concepts. Please note that each answer has been fully

substantiated. It should be clear that an answer without full reasons is generally not worth more than half

a mark.

Question 1(d)

(i) No. An application for summary judgment can only be brought if the claim falls within the provisions

of Rule 32 of the Uniform Rules of Court. Each of these types of claims falls within the definition of

a debt or liquidated demand. In casu the nature of the claim falls within the definition of an

unliquidated claim, and therefore it falls outside the ambit of Rule 32(1). (Study unit 12.4.1 read

with study unit 6.3.2.)

(ii) If Y fails to file a plea on the merits, X must first serve and file a notice of bar on Y in terms of which

Y is directed to serve and file his plea within the stated further dies induciae. Should Y persist in

his failure to do so, he will be in default and ipso facto barred from delivering his plea. (Study unit

12.3.1.)

(iii) The plaintiff may set the matter down and apply for default judgment. As the claim is unliquidated,

judgment will only be given after presentation of evidence to prove the quantum. (The court also

has the discretion to make any other order.) (See Rule 31(2) and study unit 12.3.2.1.)

Question 1 (e)

(i) Replication

(ii) Plea in reconvention (or also called the plea on the counterclaim)

(iii) Exception

(iv) Inspection in terms of Rule 35(14) of the Uniform Rules of Court. (Study unit 10.2)

Question 2

Question 2(a)

The following must be set out:

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• Whether the offer is unconditional or without prejudice as an offer to settle • Whether it is accompanied by an offer to pay all or only part of the costs of the party to whom

the offer or tender is made, and further whether it shall be subject to such conditions as may

be stated therein • Whether the offer or tender is made by way of settlement or both claim and costs or of the claim

only; and • Whether the defendant disclaims liability for the payment of costs or for part thereof, in which

case the reasons for such disclaimer shall be given (and the action may then be set down on

the question of costs alone).

(See rule 18.)

Question 2(b)

The three requirements are:

• It must be signed by the plaintiff personally and he/she must state that he/she has personal

knowledge of the facts. In the case of a legal person, it must be signed by a duly authorised

person who must also allege that he/she has personal knowledge of the facts • The plaintiff must confirm the amount or cause of action • The deponent must state that in his/her belief the defendant has no bona fide defence and that

appearance has been entered solely for the purpose of delaying the action.

(See rule 14(2) as well as activity question 2 at the end of study unit 22.)

Question 3

Question 3(a)

The grounds are:

• Absence of jurisdiction on the part of the court • Interest in the cause, bias, malice or corruption on the part of the presiding officer • Gross irregularity in the proceedings • The admission of inadmissible or incompetent evidence or the rejection of admissible or

competent evidence (section 22(1) of the Superior Courts Act, 2013)

(These grounds are set out verbatim in study unit 31.2.1.)

Question 3(b)

It is important to note that leave to appeal will only be given if the judge(s) concerned is/are of the

opinion that

• the appeal would have a reasonable prospect of success, or that there is some compelling

reason why the appeal should be heard • it cannot be said that the issues are of such a nature that the decision will have no practical

effect or result, and • the appeal would lead to a just and prompt resolution of the real issues between the parties (s

17(1) of the Superior Courts Act, 2013).

(Study unit 32.3.1; Tutorial letter 102/3/2017)

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Question 3(c)

(i) Application proceedings

(ii) Action proceedings

(See study unit 30, specifically activity questions 5 and 6 at the end of the study unit.)

100

CIVIL PROCEDURE QUESTIONS AND ANSWERS PACK

GENERAL DIRECT QUESTIONS:

1. Answer the following questions.

(a) Discuss representation by power of attorney, including when a

power of attorney is necessary and why a power of attorney is

drawn up. (5)

Every natural person who is a party to civil proceedings is entitled

to represent himself personally. Such a person would usually

instruct an attorney to act on his behalf.

These instructions are confirmed and specified in a document

known as a power of attorney.

A power of attorney is a written document in which an agent is

given the authority to act on behalf of his principal either in a

specified situation or to act on behalf of such principal in respect

of all actions which the principal could perform himself. A client

may terminate his mandate to an attorney at any time, but an

attorney may, after accepting a client’s brief, withdraw only with

sound reasons.

When is a power of attorney required in litigation?

There is no need for a power of attorney for issuing a summons or

a notice of intention to defend, but is required to conduct or

defend a civil appeal. The rules of the Supreme Court provide that

a power of attorney need not be filed with the registrar unless the

authority of a legal practitioner to act on behalf of a party is

disputed.

Why is a power of attorney drawn up?

A carefully drawn up power of attorney is essential for the

protection of both the attorney and the client, and to determine

the extent of the attorney’s brief. Therefore, there should always

be a power of attorney kept on the client’s file. The power of

attorney generally contains details of the action to be instituted

and of the relief to be claimed.

The client does not wish to be involved, unknowingly or

unwillingly, in expensive litigation, or in an appeal which he never

contemplated.

On the other hand, the attorney is entitled to protection as far as

his own costs are concerned. Should the attorney conduct

litigation without the authority of the client, he will not be

entitled to recover the costs incurred from his client, since there

is no contractual relationship will exist.

101

(b) State the four requirements laid down in Rule 34(5) with which an

offer to settle must comply.

(8)

Ito Rule 34, a defendant may, at any time, unconditionally or

without prejudice, offer to settle a plaintiff’s claim where

1. payment of a sum of money is claimed, or

2. the performance of an act is claimed

Claim for payment of a monetary sum

The offer to pay a monetary sum must be in writing and must be

signed by the defendant or by the defendant’s duly authorized

attorney.

For the purposes of this Rule, a defendant includes any person

joined as a defendant or as a third party, as well as a defendant in

reconvention or a respondent in application proceedings. In terms

of the Rule, the following expressions have the following

meanings:

• unconditional = liability in respect of the claim is accepted

• without prejudice = liability is denied

The plaintiff may, within 15 days of receiving the notice of the

offer, accept the offer by delivering a notice of acceptance at the

address of the defendant indicated for the purposes hereof. If the

plaintiff fails to accept the offer within the period, it may

thereafter be accepted only with the written consent of the

defendant, or with the courts consent.

The defendant must, within 10 days of delivering the acceptance,

effect payment as offered.

If he fails, the plaintiff may, after giving 5 day’s written notice to this effect, apply through the registrar to a judge for judgment in

terms of the offer, plus costs,

To receive payments, the plaintiff would then have to take steps

to obtain execution against the defendant.

2. Answer the following questions. Ensure that your answer is in

proportion to the marks allotted.

(a) Set out the processes and pleadings in convention and

reconvention exchanged in opposed proceeding where the claim

is unliquidated. (Do not deal with pre-trial judgments). (10)

A claim which is unliquidated means no quantum has yet

been determined, and thus a combined summons must be

issued and served by the pl, attached to which is a POC, to

set out the pl’s claim. A combined summons is served for a

divorce or a claim for damages. The summons is served on

the defendant who has the dies induciae to send his NOITD

(a process). This is not a means of raising a defence but to

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state to the pl that he intends defending the action. The

def must then, after the dies induciae in the NOITD, send

his plea on the merits (a pleading), which sets out the def’s

defence, which may be one of admit, deny, or confess and

avoid. This plea answers the claims in the pl’s POC. If

issues are joined in the plea, pleadings are closed and

preparation for trial may begin, however, if a defence of

confess and avoid was pleaded by the def, or if issues are

not joined in the plea, the pl may respond to a new issue in

the plea by sending a replication. To which the def may

answer with a rejoinder. Pleading are then closed. The def

may add to his plea on the merits (or in a separate doc)

send a counter claim. Pleadings then go from “in

convention” to become “in reconvention”. Thus the pl in

convention becomes the def in reconvention and the def in

convention becomes the pl in reconvention. The def in

reconvention then needs to answer the pl in reconvention’s

claim with a plea on the counterclaim (or a plea in

reconvention). Pleadings in convention then continue in

reconvention.

(b) Discuss the differences between the special plea and the

exception. (8)

Difference between the special plea and the exception

An exception is limited to an attack on the allegations in

the pleading as a whole, on the assumption that such

allegations are true.

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.

It differs from an exception in 2 aspects.

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) State the various ways in which evidence may be placed before

the trial court. (6)

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(a) The plaintiff will issue a combined summons to the defendant – this is the summons (process) and the POC (pleading) attached (setting out the pl’s claim). The defendant has the choice then to defend the action by sending a NOITD (process) within the dies induciae stated in the summons (or thereafter pays the costs of the pl’s application for DJ and within 20 days of the summons being served), or the defendant can ignore the summons and run the risk of DJ being granted against him, or he can offer to settle. The defendant has to then send his plea on the merits – which sets out the defendants defence. Pleadings are then usually closed, but if the def raises a new issue in his plea, or issues are not joined in the plea, the pl can reply with a replication (pleading), and if new issues are raised in the replication, the def may send a rejoinder (pleading). The defendant can also send, along with, or after, the plea on the merits, a special plea (which raises an issue totally unconnected with the facts of the action – raising an issue like no jurisdiction, or res iudicata), or he can attach to or send after the plea on the merits, a counterclaim (if he has a claim against the plaintiff) and this creates pleadings in reconvention, where the defendant in convention becomes the plaintiff in reconvention, and the plaintiff in convention becomes the defendant in reconvention. The defendant in reconvention must then answer the CC with a plea on the counterclaim, setting out his defence to the CC. If the plaintiff in convention wishes to answer this, he may send a replication on the CC etc.

(b)

i. A special plea is raised only against the declaration or the particulars of claim.

ii. An exception is raised against any pleading.

iii. An exception is raised on matters in pleading, while a special plea raises facts outside pleadings.

(c) Unless special circumstances exist, a witness must give evidence viva voce and in open court.

If a person is within the republic, such person can be compelled to attend any high court in the republic by using a subpoena from the office of the registrar and by having it served on the witness required by the sheriff. Where a witness is required by a subpoena to make available at the trial a document, instrument or object, which is in his possession, such a subpoena is termed a subpoena duces tecum.

104

If a witness cannot give evidence in person, and if the necessary circumstances are present, he may be allowed to

give evidence in the following ways: o on commission

o by way of interrogatories

o Interrogatories differ from commissions in that, while in the latter case evidence is given generally, in the former case specific evidence only is taken and for this purpose specific questions are formulated which must be put to the witness by the commissioner. o by way of affidavit

The courts are reluctant to grant such leave, and are usually disposed to do so only when the evidence so required is of a formal nature.

Rule 38(2) states

The witness at the trial of any action shall be examined viva voce but the court can for sufficient reasons order evidence to be given on affidavit (unless the witness is needed for cross-examination).

3. Name four instances in which an ex parte application may be used.

(8)

(1) When the applicant is the only person who is interested or affected by the relief sought, for example an application for admission as a sworn translator.

(2) Where the relief sought is a preliminary step in the proceedings, for example an application to sue by edictal citation or to attach property ad fundandam jurisdictionem.

(3) Where this procedure (ie an ex parte application) has been laid down by Act of Parliament or the Uniform Rules of Court.

(4) Where, though other persons may be affected by the order sought, immediate relief is essential because a delay could be dangerous, or because, if notice were given to the person affected, such notice would in fact lead to the very harm which the application is endeavouring to prevent, for example an application for an urgent interdict.

(5) Sometimes, even though other parties could be affected by the order, a court will grant an order without notice to the respondents where they are so numerous that it would be highly inconvenient, very expensive and time-consuming to serve the application on them all.

When any application is made ex parte, an onerous duty rests upon the applicant to disclose fully all material facts which may affect the decision of the court, even though such facts could be detrimental to the success of the application.

4. Explain substituted service. (6)

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Where a person is believed to be in the Republic, but service cannot be effected on him in terms of the Rules of the court because it is not known precisely where such person is to be found, an application may be made to the High court for leave to sue by substituted service, and the court will then give

directions as to how such service is to be effected.

Substituted service is an extraordinary method of service.

It deviates from the normal method of service provided for in

the Rules.

Consequently, an application to court must be made on notice of motion seeking the court’s permission to serve the summons by means of substituted service, and requesting the court to give directions as to how the summons must be

served.

The abbreviated summons must accompany the application for

consideration thereof by the court.

On hearing the application, and on being satisfied that it is a

proper case for substituted service, the court will give direction

as to how service is to be effected, for example by publication

in the government gazette, service on a relative, registered mail

or a combination of the abovementioned.

5. State the grounds for summary judgement. (4)

Rule 32(1) states:

Where a defendant has delivered a NOITD, the plaintiff can apply to court for summary judgment, only if the summons is on a liquid document or for a liquidated amount in money, for delivery of movable property or ejectment. Thus, it should be clear that an application for summary judgment may follow only from a simple summons. Procedure and content of affidavit: Rule 32(2) provides that the plaintiff must, within a specified period after receipt of a notice of intention to defend, deliver a notice of application for summary judgment, together with an affidavit made by himself, or by someone else who can confirm the fact upon which the cause of action and the amount (if any) are based.

The affidavit must indicate

** that, in his opinion, there is no bone fide defence to the action

** that the purpose of entering appearance is merely to delay the action.

No further averments are permitted.

6. Briefly discuss in what two important ways attorney and client costs

and party and party and costs differ from each other. (6)

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Attorney and client costs arise out of the contractual relationship between client and attorney and are not at all related to possible litigation. Party and party costs, however, are those costs which a party incurs on taking legal steps and which are payable by an opposing party in terms of a court order. However, these costs are only estimated costs and expenses, while attorney and client costs are remuneration for all professional services and expenses flowing from the attorney's mandate and are not statutorily fixed. Party and party costs are taxed by the Taxing Master in accordance with a fixed prescribed scale, thus ensuring that only such charges and costs actually incurred in the course of litigation are allowed. Attorney and client costs are a form of punitive measure for improper behaviour.

7.

(a) Discuss the following:

(i) ex parte applications

(ii) Ordinary applications

(iii)Urgent applications

(iv) Interlocutory applications (10)

(i) An ex parte application can be heard by a court without notice being given to anyone, it can be said that in this respect, this form of application is an exception to the general rule. When any application is made ex parte, an onerous duty rests upon the applicant (and equally so on the applicant's attorney and counsel) to disclose fully all material facts, which may affect the decision of the court, even though such facts could be detrimental to the success of the application.

(ii) Notice of the application is given to another person or persons. Such person or persons receive notice of the application in that it is served on them after it has been issued, that is, a copy of the application is handed to them

(iii) Relief is needed urgently but that there is simply not enough time for following prescribed procedures in placing a matter before court. This does not mean that an applicant may disregard the usual requirement for applications entirely. The principle is that, as far as possible, the normal rules of procedure should be followed, and that any departure from such normal rules of procedure must be justified by the urgency of the matter. In other words, the mere fact that an applicant views the matter as urgent does not mean that he or she may bring the application in any form and at any time and place, or

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with too short a time limit for responses by the respondent. If a departure cannot be justified, the court may strike the application off the roll with costs, or may postpone the matter to afford the respondent more time to respond to the application.

(iv) In the preceding sections we looked at the two forms of notice of motion used to institute legal proceedings. However, often a party may want to approach the court for relief in respect of matters related to proceedings that have already been instituted. This is particularly the case in respect of summons proceedings.

Interlocutory applications are therefore brought purely by way of notice. As a result, the parties are not bound by the severity of the Rules.

8. Name the four methods by which normal service can be affected.

(4)

* service must, if possible, be personal; * If personal service cannot be affected, the summons may be serviced at the defendant’s place of residence or business by leaving a copy thereof with the person in charged of the premises. This person must be older than 16; * service may be effected at the defendant’s place of employment; * service on a company may be effected by the service on a responsible employee at the company’s registered office or at its principal place of business within the courts jurisdiction, or , if the foregoing is not possible, by affixing a copy to the main door of such office or place of business; * service on a partnership, firm or voluntary association is effected in terms of Rule 4(1) * As regards matrimonial actions, the Rules make no specific mention of service in such actions. Personal service is preferred.

9. Compare the plea on the merits and the special plea. (4)

A plea on merits deals with the merits of the plaintiff’s case as set out in the plaintiff’s particulars of claim or declaration, as the case may be. In a plea on merits, the plaintiff’s allegations are admitted, are denied, are placed in issue, or are confessed or avoided, and all the material facts upon which the defendant relies are stated clearly and concisely. In brief, a plea on merits raises a defence against the plaintiff’s claim. On the other hand, a special plea is a means of raising an objection on the basis of certain facts, which do not appear in the

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plaintiff’s declaration or particulars of claim, and has the effect of destroying the action.

10. Discuss the nature and purpose of the exception. (8)

An exception is a legal objection to the opponent’s pleading in terms of Rule 23(1) of the Uniform Rules of court. The exception contends that there are some defects or incompleteness inherent in the pleading; the pleading does not disclose either a cause of action or a defence, or the pleading is vague and embarrassing. The exception is taken to the pleading as a whole and not to a portion of the pleading as is the case with striking-out. The purpose of an exception is twofold: in the case of a pleading that is vague and embarrassing, an exception is taken in order to prevent the person excepting from being taken by surprise or being prejudiced in his pleading, or at the trial. Where the pleading discloses no cause of action or defence, an exception provides a speedy method of determining the issue without having to embark on the lengthy and expensive procedure of a full trial. See unit 10.5.

11. Indicate what is meant by “sound reasons” in regard to setting

aside an order for default judgment. (3)

The courts have held that ‘sound reasons’ mean that (1) A reasonable explanation must be given for the failure

(2) The application must be bona fide and not merely a delaying tactic

(3) The defendant must have a bona fide defence

12. Describe fully the grounds for a temporary interdict. (7)

1. There must be a clear right or, if it can’t be established, 1 that is prima facie established, though open to some doubt.

2. If the right is established only prima facie, the applicant must show in addition, that, if the interdict is refused, he will suffer irreparable harm, whereas, if the interdict were to be granted, the respondent would suffer such irreparable harm.

3. The balance of convenience must favour the granting of the interdict. The court must weigh up the prejudice that each party will suffer if the interdict is granted or refused.

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4. There must be no other statutory remedy available to the applicant.

13. Distinguish between automatic bar and notice of bar; (7)

NOB is sent by the plaintiff if the defendant’s plea on the merits is not filed within the dies induciae, for simple and combined summons procedures, and for a simple summons procedure, the defendant may send a NOB to the plaintiff if his declaration is not filed on time. The automatic bar applies when the day for the filing of the replication or subsequent pleading has come and gone and this doc has not been filed. This means the party whose doc is late (the plaintiff for the replication and the def for the rejoinder) is automatically barred from sending it, and pleadings are deemed to be closed (ipso facto barred).

14. Discuss the ways in which evidence may be placed before the trial

court; (7)

Unless special circumstances exist, a witness must give evidence viva voce and in open court.

If a person is within the republic, such person can be compelled to attend any high court in the republic by using a subpoena from the office of the registrar and by having it served on the witness required by the sheriff. Where a witness is required by a subpoena to make available at the trial a document, instrument or object, which is in his possession, such a subpoena is termed a subpoena duces tecum.

If a witness cannot give evidence in person, and if the necessary circumstances are present, he may be allowed to give evidence in the following ways:

o on commission o by way of

interrogatories

o Interrogatories differ from commissions in that, while in the latter case evidence is given generally, in the former case specific evidence only is taken and for this purpose specific questions are formulated which must be put to the witness by the commissioner. o by way of affidavit

The courts are reluctant to grant such leave, and are usually disposed to do so only when the evidence so required is of a formal nature.

Rule 38(2) states

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The witness at the trial of any action shall be examined viva voce but the court can for sufficient reasons order evidence to be given on affidavit (unless the witness is needed for cross-examination).

15. Discuss party and party costs; (7)

Party and party costs are those costs which have been incurred by a party to legal proceedings and which the court orders the other party to pay him or her. These differ from attorney and client costs, in that they do not include all the costs which the party to litigation may have incurred, but only such costs, charges and expenses as were incurred in the actual litigation and which are allowed by the Taxing Master.

The Taxing Master is a civil servant who is attached to the office of the Registrar of each Supreme Court and whose function it is to check bills of costs. This he or she does according to a tariff, in which is laid down the maximum fee permitted for each item in the litigation process (for example taking instructions to sue, issue of summons, attending court, per hour etc. According to this Taxing Master's view of the complexity of the case, he or she decides whether or not the fee charged by the attorneys is reasonable. Once a reasonable figure has been

ascertained, the bill of costs is then presented to the other party for payment.

16. The different types of interdicts and the purpose of each. (7)

Prohibitory interdict: This is an interdict in the more literal

and restricted sense of the word, and may be described as an

order requiring a person to abstain from committing a

threatened wrong, or from continuing an existing one.

Mandatory interdict: It’s an order compelling a person to

perform some positive act in order to remedy a wrongful

state of affairs which the respondent has brought about, or

to do something which he is in law obliged to do if the

complainant is not to be deprived of his rights. Where the

act is to be performed by a public official, the order is called

a mandamus. Restitutory interdict: Where a person is

unlawfully disturbed in the possession of property, he is

entitled to immediate restitution – even before the merits of

the dispute are investigated by the court. This order restores

the status quo and is known as a mandamenten van spolie.

17. Explain the purpose of the third party procedure contained in

Rule 13 of the Uniform Rules of Court. (3)

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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 at the same time that the liability of the other party is determined. Any party (ie a 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 (ie 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.

18. Explain fully whether a subpoena is a pleading or a process. (5)

Process: 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 Dorfman to mean “something which ‘proceeds’ from the court; 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.

19. Briefly indicate the requirements which an offer to settle must

meet in terms of Rule 34(5) of the Uniform Rules of Court. (4) *

unconditional = liability in respect of the claim is

accepted

* without prejudice = liability is denied

The plaintiff may, within 15 days of receiving the notice of the offer, accept the offer by delivering a notice of acceptance at the address of the defendant indicated for the purposes hereof. The plaintiff fails to accept the offer within such period, it may thereafter be accepted only with the written consent of the defendant, or with the court's consent.

The defendant must, within 10 days of delivery of the notice of acceptance, effect payment as offered. If he or she fails to do so, the plaintiff may, after giving five days' written notice to this effect, apply through the Registrar to a judge for judgment in terms of the offer, plus costs. To receive payment, the plaintiff would then have to take

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steps to obtain execution against the defendant, which is an unsatisfactory aspect of this procedure (compared to the situation prior to the November 1987 amendments where the amount offered was actually paid into court). Not only may finalisation of the matter be delayed, but a plaintiff may find in the end that a defendant does not have sufficient means to satisfy the judgment. Apart from these matters, such further steps also have cost implications for both parties. An offer has been made may not be disclosed in court before judgment has been given, and no reference to such offer may appear on any file in the office of the Registrar containing the papers of the case. Any party acting contrary to this Rule will be liable to have costs given against him or her, even if he or she is successful in the action. The offer is, however, brought to the attention of the judge concerned before any order as to costs is made, since the fact that an offer was made is relevant to the apportionment of costs.

20. Indicate and discuss under what circumstances a court will use

it’s discretion to set aside a default judgment in terms of Rule

31 of the Uniform Rules of Court. (4)

In terms of Rule 31(2)(b) a defendant may, in respect of a claim not for a debt or liquidated demand, within 20 days after he or she has knowledge of a default judgment, apply to court to set aside such judgment. In terms of Rule 31(5)(d) a defendant may, in respect of a claim for a debt or liquidated demand set the matter down for reconsideration by the court. The court has a discretion whether or not to set aside a judgment. The defendant must also advance sound reasons for the failure concerned. The courts have held that sound reasons mean that

(1) a reasonable explanation must be given for the failure (2) the application must be bona fide and not merely a delaying tactic (3) the defendant must have a bona fide defence. Application refers to a notice + SA (interlocutory).

20. Describe the information that must be contained in a

discovery affidavit. (4)

(1) those documents relating to the matter in dispute in the action which are in his possession or under his control

(2) those documents, although relating to the matters in dispute in the action and being in the party’s control

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or possession, the party objects to producing, and the reasons for such objection must be stated

(3) those documents which he had in his possession or which were under his control, but which he does not now have in his possession or which are now not under his control. Such party must also state when such documents were last in his possession or under his control, and where such documents now are.

HIGH COURT:

1. Betty wishes to sue her husband, Koos, for a divorce in a High

Court.

(a) (i) Why is it appropriate for Betty to issue a combined summons

in this instance?

(2)

A combined summons is used for divorce and damages. A simple summons is only used when the claim is for a debt or liquidated demand. Thus, here, there is a divorce and the claim will thus be unliquidated (which means the judge decides on the amounts claimed in the court) and is not a liquidated claim where one would have to use a simple summons.

(ii) Name the usual processes and pleadings that will be

exchanged between the parties if the action is opposed.

(8)

The plaintiff sends the summons attached with the POC.

The defendant sends his NOITD within the dies induciae. The defendant then sends the plea on the merits which answers the POC (within the dies induciae). If a new matter is raised in the plea, the plaintiff can respond

with a replication.

(c) Koos, the husband, has always refused to settle down in any

one place and prefers to travel around South Africa doing

odd jobs and selling homemade pizza. Briefly identify and

discuss the procedure that Betty will have to follow to effect

service of summons upon Koos under these circumstances.

(8) Plaintiff will have to apply for substituted service. Where a person is believed to be in the Republic, but service cannot be effected on him in terms of the Rules of the court because it is not known precisely where such

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person is to be found, an application may be made to the High court for leave to sue by substituted service, and the court will then give directions as to how such service is to be effected.

Substituted service is an extraordinary method of service.

It deviates from the normal method of service provided

for in the Rules.

Consequently, an application to court must be made on notice of motion seeking the court’s permission to serve the summons by means of substituted service, and requesting the court to give directions as to how the summons must be served.

The abbreviated summons must accompany the application for consideration thereof by the court. On hearing the application, and on being satisfied that it is a proper case for substituted service, the court will give direction as to how service is to be effected, for example

by publication in the government gazette.

(c) Koos fears that Betty may leave the country, taking their two

minor children with him. Koos approaches the court for a

temporary interdict to prevent such an occurrence.

(i) Name the type of proceedings that Koos would use to obtain the

interdict. (1)

Ordinary application. Notice of motion attached with an

affidavit.

(ii) Name the documents that the parties must exchange if B

opposes the proceedings. (5)

Applicant sends a NOM and supporting affidavit. Respondent sends an answering affidavit to the supporting affidavit. The applicant can answer with a replying affidavit. The court, in its discretion can allow the filing of more affidavits upon application.

(24)

2. Cammy issues and serves summons in a High Court against

Dodgy for Dodge’s ejectment from certain property owned by

Cammy. With these facts in mind, point out on the correctness of

the procedure followed. Give reasons for your answers and where

necessary, state what the correct procedure should be and why.

(a) Although Dodge fails to serve and file a notice of intention to

defend within the stipulated dies induciae, Cammy serves and

files his particulars of claim. (5)

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This step is incorrect. The type of claim above is for a debt or liquidated demand (ejectment) and thus a simple summons must be issued to the defendant and not a combined summons. A POC is only attached to a combined summons and thus Cammy serving and filing his POC is incorrect. If the defendant fails to send his NOITD within the dies induciae, the plaintiff should apply for default

judgement.

(b) Dodge reacts to the summons by serving and filing a notice of

intention to defend outside the stipulated dies induciae. Cammy

immediately responds by claiming Dodge has ipso fact

(automatically) been barred from delivering the notice of

intention to defend. (6)

The defendant can serve and file his NOITD outside the dies induciae provided its within 20 days of the summons being served, that he pays the plaintiffs costs for the application for DJ and that the NOITD was notes before default JUDGEMENT was granted. The court may then allow the filing of the late NOTID. The plaintiff may then apply to have the NOITD set aside as an irregular proceeding.

(c) Dodge reacts to the summons by serving and filing a notice of

intention to defend within the stipulated dies induciae. Cammy

reacts

by applying for default judgment. (4)

This step is incorrect as the plaintiff may only apply for DJ if the NOITD has not been received within the dies induciae or is late. The defendant sent his NOITD on time. Thus, the next

correct step would be for the plaintiff to send his declaration.

(d) The matter proceeds to the trial phase. After close of pleadings

and for purposes of shortening the trial, Cammy requests

Dodge to make discovery in terms of Rule 35 of the Uniform

Rules of Court of all documents pertaining to the action.

Discuss discovery briefly. (3)

Discovery may not be requested until after the close of

pleadings.

The purpose is to ascertain from other parties what

documents and tape recordings are in existence which might

be relevant to the action.

This enables a party to prepare fully and properly for trial and

prevents him from being taken by surprise.

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Discovery is obtained by written notice addressed to any party

to the action to make discovery under oath within 20 days of

such request.

Discovery related to all documents relevant to any matter in dispute in the action which are, or have at any time been, in the possession or under the control of such other party.

Discovery must be made within 20 days, and is made by

disclosing the necessary information in an affidavit – known

as a discovery affidavit.

In this discovery affidavit the party making the discovery must

set out

(1) those documents relating to the matter in dispute in the

action which are in his possession or under his control

(2) those documents, although relating to the matters in dispute in the action and being in the party’s control or possession, the party objects to producing, and the reasons for such objection must be stated

(3) those documents which he had in his possession or which were under his control, but which he does not now have in his possession or which are now not under his control. Such party must also state when such documents were last in his possession or under his control, and where such documents

now are.

A party may validly object to the discovery of a document if he

is able to claim privilege for its contents.

Examples are incriminating documents, or documents which

affect the security of the state.

3. F intends to sue G for damages in the amount of R200 000 arising

from breach of contract.

(a) Explain why F should use a combined summons and not a

simple summons to institute his action against G. (4)

The claim for damages is an unliquidated claim. This means that the quantum still has to be proved by the leading of evidence. Only then can a court make a finding. Consequently, the combined summons is the correct summons to use. A simple summons is only used if a claim falls within the definition of a “debt or liquidated demand”; in other words, this refers to a claim that is fixed and definite or easily ascertainable. If you

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did not do well in this question, you gave too little detail or only partially answered the questions.

(b) Explain why it would not be correct for F to institute the action

by way of application procedure. (3)

There would clearly be a real dispute of fact which cannot satisfactorily be settled without hearing oral evidence. Please note that we refer to a real dispute of fact – far too many of you simply referred to a dispute of fact. Logically speaking, this cannot be correct, as it would mean that the existence of frivolous factual disputes would prohibit application proceedings.

(c) Name the options available to G if he wishes to respond within

the prescribed period stated in the summons. (3) The

defendant has various options and can:

a) Obviously admit the claim and pay the amount claimed

b) Give notice of his intention to defend

c) consent to judgment.

If other courses of action were mentioned, they were treated on merit. Payment into court and tender are not options; the first is only an option in the magistrate’s court and the latter must of course be pleaded.

(d) Explain the procedures that F must follow if G fails to deliver

his plea on the merits. (6)

The plea on the merits is not a pleading as envisaged by Rule 26; namely, a “replication or subsequent pleading”. The defendant is therefore not automatically barred; the plaintiff first had to deliver a notice of bar to the defendant in which he or she is instructed to deliver his or her plea on merits. Should the defendant fail to do so, he/she is in default and is automatically barred. The plaintiff can now request default judgment. Please note that one cannot apply for a notice of bar; a party simply issues a notice and this explains the phrase “give notice to”.

4.

(a) Carol and Tony enter into an agreement of sale in terms of

which Carol has to deliver 15 specific bulls to Tony. The agreed

purchase price is R500 000. Tony pays the purchase price by

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cheque. Carol fails to deliver the bulls and Tony issues

summons against Carol for the delivery of the bulls.

(i) Discuss the procedure that Y may use if X delivers a

notice of intention to defend and Y is of the opinion that X

did this to gain time and to prevent Y from obtaining the

relief. (6)

This is a claim for a debt or liquidated demand and thus a simple summons is used. Summary judgement may only be used as an extraordinary remedy be a plaintiff in a claim for a debt or liquidated demand, and only after the NOITD has been delivered. This has happened in this question and thus Y may apply for SJ if he feels the NOITD was delivered by the defendant with the sole purpose of wasting time or if he knows the defendant does not have a proper defence (a bona fide defence). Rule 32(1) states:

Where a defendant has delivered a NOITD, the plaintiff can apply to court for summary judgment, only if the summons is on a liquid document or for a liquidated amount in money, for delivery of movable property or ejectment. Thus, it should be clear that an application for summary judgment may follow only from a simple summons. Rule 32(2) provides that the plaintiff must, within a specified period after receipt of a notice of intention to defend, deliver a notice of application for summary judgment, together with an affidavit made by himself, or by someone else who can confirm the fact upon which the cause of action and the amount (if any) are based.

The affidavit must indicate

(1) that, in his opinion, there is no bone fide defence to the action

(2) that the purpose of entering appearance is merely to delay the action

No further averments are permitted.

If the claim is based on a liquid document, a copy thereof must be attached to the application.

In addition, the application must contain a date on which the application will be heard.

(ii) During the court proceedings referred to in (i) above, but

before the court delivers its judgment, Tony is informed

that Carol is finalising arrangements to leave the country.

Explain which remedy is available to Tony under these

circumstances as well as its purpose. (5)

Arrest suspectus de fuga: This order is available to a creditor who fears that a debtor is about to leave the country to avoid payment of a debt.

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The arrest prevents the debtor from leaving the jurisdiction of the court – unless he can give security for the debt – so that the court can give an effective judgment. The arrest of the debtor remains in force only until judgment is given.

It is thus an arrest to abide by the judgment of the court and not to perform the judgment. This order will only be granted if that court has jurisdiction to hear the creditor’s action, while an arrest to found or confirm jurisdiction serves to vest a court with jurisdiction.

(iii) Name the process that Tony may use in order to

commence the proceedings referred to in (ii) above. (1)

The procedure cannot be used unless the claim has a minimum value of R400.

Arrest may take place before or after summons has been issued.

A writ of arrest is issued by the registrar of the court, and an application to the court is not necessary.

The writ authorizes the sheriff to arrest the debtor and also authorizes the officer commanding the prison to which the sheriff takes the debtor, to keep him imprisoned until security has been provided, or until the date on which the court hears the creditor’s action.

(iv) If X delivers the bulls but Tony’s cheque is dishonoured

by his bank, name the two types of summons which Carol

may select to institute the action. (2)

A simple summons (as the claim is for a debt or liquidated demand) or a provisional sentence summons as the claim is liquidated and thus liquid summons proceedings may be used.

5. S issues a simple summons against T in which a decree of

divorce is requested. With these facts in mind, answer the

following questions, giving reasons for each answer. (8)

(i) If T is of the opinion that the incorrect form of summons has

been used, can T make use of any procedure to correct the

situation? (2)

An application to set aside the summons as an irregular proceeding is the correct step to take.

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(ii) When does the period commence within which the applicant

must act? (4)

The period within which the applicant must act commences as soon as a party takes notice that a step has been taken or that a proceeding has occurred, and not once the irregularity thereof has come to his notice.

(iii) If T files a notice of intention to defend prior to the taking of

other steps, will this prevent him from using the procedure

you have referred to in your answer (i) above? (2)

No, as the NOITD is not deemed to be a further step. A further step would therefore include the next sequential exchange of pleadings and any objection to the content of a pleading.

It would not include the filling of a notice of intention to defend.

The courts have held that this is merely an act done to enable the defendant to put forward his defence.

(iv) What form of proceeding must T use in order to approach

the court for relief? (2)

Rule 30(2) provides that an application in terms of this Rule must be accompanied by notice to all parties. Such an application is naturally also interlocutory in nature.

6. Zola wishes to obtain a divorce from her husband Venesh.

Merely state the correct answer to each of the questions that

follow. You must not give reasons for your answers.

(a) What pleading must be attached to the summons? (1) POC

(b) What form of service is necessary to serve the summons on

Venesh who is at a known address in South Africa? (1) Normal /

ordinary service

(c) What form of service is necessary if venesh is living overseas at

the time when summons is issued? (1)

Edictal citation

(d) What form of proceedings must Zola follow to obtain permission

to use the form of service referred to in (c) above? (1)

Application proceedings, ex parte

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(e) What is the first document that Venesh must file if he wishes to

oppose the divorce action? (1)

NOITD

(f) What step must Zola take if Venesh files the document referred to in (e) above but fails to file a plea? (1) NOB-send the defendant a notice that if he does not send the relevant doc within 5 days, he will apply for DJ

(g) What further step may Zola take if Venesh still fails to respond to

the document referred to in (f) above? (1) Apply for DJ

(h) What procedure should be used if the name of one of the minor

children is stated incorrectly in the plea? (1) Notice of intention

to amend

(i) Which party is responsible for using the procedure referred to in

(h) above? (1)

Defendant

(j) What procedure can Zola use if Venesh files a plea that

contains vexatious statements about Zola? (1) Strike out

(k) What pleading can Venesh use if he has already issued summons

in another court in which he has instituted divorce

proceedings against Zola? (2)

Special plea, dilatory, lis pendens

(l) What pleading can Zola file if Venesh raises new matter in is plea?

(1)

Replication

(m) What may Zola do immediately after pleadings have closed to

ensure a speedy allocation of trial date? (1) Set down

(n) What procedural step can Zola take, after close of pleadings, if

she feels that the pleadings contain insufficient information to

enable her to prepare for trial? (1)

Request for further particulars

(o) What proceeding are Venesh and Zola compelled to arrange and

attend before the trial in order to attempt to shorten the trial.

(1)

Pre trial conference

7. Connie and Donald enter into a contract for the sale of an

ostrich. Donald breaches the contract and Connie wishes to

issue summons against Donald. With these facts in mind,

answer the following questions, giving adequate reasons for

your answer in each instance.

(i) What type of summons should Connie, the plaintiff, use for

repayment of the contract price, being in the amount of R400

000? (2)

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The simple summons, the repayment of the contract price falls within the definition of a “debt or liquidated demand” since it is, inter alia, “fixed” and “definite”.

(ii) What type(s) of summons could Connie use if Donald paid the

contract price by cheque but Donald’s cheque was dishonoured

by his bank because of insufficient funds? (4)

The simple summons because a liquid document is an example of a debt or liquidated claim as well as the provisional sentence summons since it was specifically designed to address claims flowing from liquid documents

(iii) What type of summons should Connie use in regard to a claim

for damages in the amount of R120 000 arising from Donald’s

breach of contract. (2)

The combined summons. Damages constitute an unliquidated claim, the extent of which will only be determined or quantified after a court has heard evidence proving the claim and has given a ruling

8. Samuel issues a summons against Thomas for containers

sold and delivered in the amount of R150 000, which Thomas

refuses to pay despite demand. With these facts in mind,

answer the following questions, giving adequate reasons for

your answer where necessary.

(i) What should Thomas, the defendant, do if he acknowledges

that part of the claim is due and owing and wishes to settle

this part of the claim immediately? (2)

A written offer to settle in terms of Rule 34

(ii) What procedure should Samuel, the plaintiff, use if

Thomas does not respond to the summons within the

period stated

in the dies induciae? (1)

Default judgment

(iii) Should Samuel deliver a notice to bar to Thomas before

Samuel can apply for the procedure stated in (ii) above? (1)

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No, the reasons are twofold: since the defendant did not give a notice of intention to defend, he is not a party to the matter and therefore does not need to be involved in the matter any further. Secondly, the notice of intention to defend is not a pleading and bar applies only in respect of pleadings

(iv) Name the procedure that Samuel may use if Thomas files

a notice of intention to defend within the period stated in

the dies induciae but does so merely to delay the action?

(1)

Application for summary judgment

(v) Indicate the steps that Thomas can take to defend the

proceedings instituted by Samuel in (iv) above. (2)

T can convince the court by way of affidavit that he has a bona fide defence or, with the leave of the court, by way of oral evidence.

(vi) Discuss the difference in the nature of evidence presented

by both Samuel and Thomas at the hearing of the

proceedings

instituted by Samuel in (iv) above. (3)

The plaintiff may not include evidence in support of his claim in the affidavit, while the defendant must fully disclose the nature and grounds of his defence.

9. Louis and Manny are involved in a motorbike accident. Louis

suffers some serious injuries to his neck and has to have a

number of major operations. Louis sues Manny and claims

damages. At this stage, the pleadings have closed and both

parties begin to prepare for the trial. With these facts in mind,

answer the following questions.

(i) Name two procedures that may be used to prevent the

parties from being caught unprepared at the trial. (2)

Discovery, request for further particulars for trial, notice of expert witness, the production of plans, diagrams, models and photographs, inspection or production of documents and tape recordings

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(ii) Name two steps that may be taken to shorten the trial a

required under the Uniform Rules of Court. (2)

The pre-trial conference and the exchange of the summaries of expert testimony by experts

(iii) Name two methods by means of which the parties may

present their evidence in court. (2)

Personal or viva voce evidence; otherwise on commission, by way of interrogatories or on affidavit.

10. D and F enter into a lease agreement, whereby D leases a

portion of his farm to F. However, after the lease is signed, F

refuses to pay the rent since D refuses to give F access to the

rented portion of his farm. F contends that the lease

agreement is subject to a servitude of a right of way, which D

denies. Determine the type of proceedings that F should use

in order to approach the court. (6)

There is a dispute of fact in this question and thus when there is a dispute of fact, the correct proceedings to use is an action proceeding. An application by means of a notice of motion may be made if (1) there is no real dispute over any fundamental question of facts or (2) if there is such dispute, it can nevertheless be decided without the necessity of oral evidence. When is there a dispute of fact?

There is a dispute of fact when

1. respondent denies material allegations made by the deponents on the applicants behalf, and produces positive evidence by deponents to the contrary

2. respondent admits the allegations contained in the applicants affidavit, but alleges other facts which the applicants disputes

3. respondent concedes that he/she has no knowledge of the main facts stated by the applicant, but may deny them, putting applicant to the proof and himself/herself giving, or proposing to give, evidence to show that the applicant and his/her deponents are biased and untruthful, or otherwise unreliable, and that certain facts upon which the applicant and his/her deponents rely to prove the main facts are untrue.

A dispute of fact does not arise were the respondent merely states that he disputes the truth of the applicants statement, but offers no evidential reply to them.

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In other words, where there is bare denial. A real dispute has to occur

Mere fact that the parties are not in agreement on all the facts does not mean that a real dispute has occurred. Thus, an action proceeding is applicable.

11. B is totally shocked when he is informed that an order for default

judgment has been granted against him. The claim is for goods sold

and delivered to him in the amount of R140 000 and in respect of

which B has written to the supplier stating that he was withholding

payment because the goods were defective. To B’s knowledge a

summons had not been served on him. However, B’s 18yr old

daughter confesses that she accepted service of the summons and

was so busy with her WITS exams that she forgot to give the

summons to B She finds the summons hidden between her study

material. B consults with you.

i) Explain whether proper service was effected; (2)

Yes, normal service is:

Service must, if possible, be personal.

If personal service cannot be affected, the summons may be serviced at the defendant’s place of residence or business by leaving a copy thereof with the person in charged of the premises. This person must be older than 16.

service may be effected at the defendant’s place of employment.

service on a company may be effected by the service on a responsible employee at the company’s registered office or at its principal place of business within the courts jurisdiction, or if the foregoing is not possible, by affixing a copy to the main door of such office or place of business.

ii) What steps can be taken to assist B (4)

Ito Rule 31(2) (b) a defendant may, within 20 days after he has knowledge of a default judgment, apply to court to set aside such judgment. The court has a discretion whether or not to set aside a judgment.

The defendant must also advance sound reasons for the failure concerned.

The courts have held that ‘sound reasons’ mean that:

• A reasonable explanation must be given for the failure

• The application must be bona fide and not merely a delaying tactic

• The defendant must have a bona fide defence

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12. You are acting for the defendant in a divorce matter. On behalf of

your client you receive a summons, attached to which is a

supporting affidavit. With these facts in mind:

i. Explain why summons the is defective; (2)

The summons is defective because this is an action based on an unliquidated claim of divorce and thus, a combined summons should be issued, attached to it a particulars of claim and NOT a supporting affidavit (this is for a NOM application).

ii) Describe the procedure that you would use to remedy the defect;

(5)

Application to set it aside as an irregular proceeding. Where the party has taken an irregular step during the course of litigation, Rule 30 provides the other party with a mechanism by means of which the irregularity may be set aside or dealt with. Rule 30(2) states that an application to set aside an irregular proceeding shall be on notice to all the parties specifying the particulars of the irregularity and made only if: the applicant himself has not taken a further step with knowledge of the irregularity. The applicant has within 10 days of becoming aware of the step by giving notice to his opponent a chance to remove the complaint within 10 days and application was delivered within 15 days. The meaning of an ‘irregular proceeding’: the irregularity concern formal irregularities. In other words, the noncompliance with formal requirements in respect of procedural matters. Examples of irregularities are the failure by an advocate to sign the particulars of claim, the premature set-down of a case, and the use of the wrong type of summons. The period within which the applicant must act commences as soon as a party takes notice that a step has been taken or that a proceeding has occurred, and not once the irregularity thereof has come to his notice.

iii) Explain whether the filing of a notice of intention to defend

constitutes a “further step”. (3)

A further step would therefore include the next sequential exchange of pleadings and any objection to the content of a pleading. It would not include the filling of a notice of intention to defend. The courts have held that this is merely an act done to enable the defendant to put forward his defence. Rule 30(2) provides that an application in terms of this Rule must be accompanied by notice to all parties.

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13. X consults with you in regards to a cheque he received from his bank

marked “return to drawer” because there were insufficient funds in

Y’s current account. During the consultation you learn that X had

sold computers to the value of R500 000 to Y and that X needs to

recover the money urgently from Y in order to finance other

transactions. With these facts in mind:

i. Determine whether you could commence proceedings by means of

either a simple summons or a provisional sentence summons; (3)

X could commence proceedings using either simple summons proceedings or provisional sentence summons proceedings as both may be used regarding a claim based on a liquid document – simple summons is used for a debt or liquidated demand (which a cheque is) and the PSS is used for a claim where a plaintiff is armed with a liquid document. The PSS procedure is quicker and easier for the plaintiff to use as its a provisional sentence and he gets his claim paid once he has paid in to court security de restituendo.

ii. Explain the implications for your client in regard to the use of the

simple summons; (4)

A simple summons is issued in respect of a liquidated claim, it is not accompanied by any other document setting out the details of the claim.

The amount and the nature of the claim are set out in the summons.

In the case of a simple summons, the defendant has formally indicated that he intends to defend the action.

The plaintiff files his declaration only at this stage. Before a plaintiff delivers a declaration, he will consider whether or not to apply for summary judgment. Where such an application is unsuccessful, or where the application is abandoned, a declaration must be delivered.

Once the summons has been served and, the defendant wishes to defend the action, he must, within the stipulated time in the summons, deliver and file a notice of intention to defend. (If the plaintiff has filed a simple summons, he will now file his declaration).

Thereafter, the defendant must raise his defence by filing his plea on the merits.

Alternatively, the defendant may raise a special plea to object to an issue not apparent in the plaintiff’s declaration or particular of claim, as the case may be. The defendant may, together with his pleadings, file a counterclaim.

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By means of the counterclaim, the claim in reconvention is introduced.

The pleadings in reconvention are usually filed with the pleadings in convention which might follow.

The plaintiff (now defendant in reconvention) responds to the defendant’s (now plaintiff in reconvention) counterclaim by means of a plea in reconvention.

Usually, the pleadings close after the defendant’s plea has been delivered and filed, but this need not necessarily be the case.

Plaintiff could respond to the defendant’s plea by means of a replication.

If the issues are not joined hereby, the defendant may reply to the replication by means of a rejoinder.

The matter is than set down for trail and the pre-trail preparation stage commences. In the normal course of pleadings, certain irregularities might need to be corrected, rectified or be objected to in this respect.

Prior to the trail stage, it is possible to obtain a judgment known as a pre-trail judgment.

Should the defendant not file a notice of intention to defend or a plea, as the case may be, timeously, the plaintiff may apply for default judgment to be granted against the defendant.

If the defendant has in fact filed a notice of intention to defend but has no bona fide defence and has done so merely to delay proceedings, the plaintiff may apply for summary judgment. When the plaintiff has failed to deliver timeously his declaration and has been barred from doing so, the defendant may have the matter set down for hearing; the court may grant absolution from the instance, or make any order it deems fit. Lastly, the defendant may consent to judgment.

This is a long, protracted expensive method of obtaining a claim.

iii. Explain the implications for your client in regard to the use of the

provisional sentence summons. (5)

Provisional sentence summons is an extraordinary procedure. The exceptional nature of this procedure lies in the fact that it could be decided before trail, and the court is concerned with only prima facie proof.

Therefore judgment is given on the assumption that the documents submitted are genuine and valid.

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It accelerates the procedure for granting judgment – although such judgment is provisional – and entitles a successful plaintiff to execute the judgment immediately, subject to giving the defendant the necessary security de restituendo.

Thus it provides the creditor who has sufficient documentary proof (i.e. a liquid document) with a reedy for recovering his money without it being necessary to resort to the more cumbersome, more expensive and frequently protracted illiquid summons proceedings.

The plaintiff is of right entitled to payment, or, failing such payment, to take out a writ of execution against the defendant’s property under security de restituendo. Security de restituendo is the security which the plaintiff must give for the restitution of the money he has received from the defendant in terms of the judgment in the event of defendant defending and succeeding in the main case.

The judgment is provisional. The defendant may still defend the main trail, but only within 2 months of the granting of provisional sentence, and then only if he has paid the judgment debt and costs.

A defendant who may and who wishes to enter into the principle case must deliver notice of his intention to do so within 2 months after provisional sentence has been granted, in which case the summons will be deemed to be a combined summons on which the defendant must deliver a plea within 10 days. In default of such notice or plea, the provisional sentence automatically becomes a final judgment and the security given by the plaintiff falls away.

iv. State the claims that give rise to an application for summary

judgment. (4)

Rule 32(1) states:

Where a defendant has delivered a NOITD, the plaintiff can apply to court for summary judgment, only if the summons is on a liquid document or for a liquidated amount in money, for delivery of movable property or ejectment. Thus, it should be clear that an application for summary judgment may follow only from a simple summons. Rule 32(2) provides that the plaintiff must, within a specified period after receipt of a notice of intention to defend, deliver a notice of application for summary judgment, together with an affidavit made by himself, or by someone else who can confirm the fact upon which the cause of action and the amount (if any) are based. The affidavit must indicate

• that, in his opinion, there is no bone fide defence to the action

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• that the purpose of entering appearance is merely to delay the action. No further averments are permitted. If the claim is based on a liquid document, a copy thereof must be attached to the application.

In addition, the application must contain a date on which the application will be heard

14. Explain the meaning of the phrase “claim in reconvention”. (1) (4)

This is where the claim by the plaintiff, who initiated the case, is answered by the defendant with a counterclaim. The plaintiff who initially issued summons is called the plaintiff in convention and initiated the action by issuing summons = in convention. The defendant indicated his intention to defend by sending a NOITD and other pleadings may have been exchanged (whether the case is one for simple or combined summons) – the defendant then together with his plea on the merits, or just after, sends the plaintiff a counterclaim, which then swaps over the proceedings into reconvention – the plaintiff in convention now being the defendant in reconvention and the defendant in convention being the plaintiff in reconvention. Pleadings exchanged in convention are not exchanged in reconvention.

15. In terms of section 2(1)(b) of the Divorce Act of 1979, either of the

spouses is competent to institute divorce proceedings. N issues a

summons for divorce against his wife, P, out of the Johannesburg

High Court. P is so infuriated when she learns that N wants to

divorce her, that she instructs her attorney also to issue summons

against N out of the Durban High Court. As N’s attorney, describe

how you would respond to the combined summons issued by P.

(2)

One would still send the NOITD as well as the plea on the merits (because if these are not send, the risk of DJ), but then send a special plea – one of lis pendens dilatory plea. Lis pendens. If an action is already pending between the parties, and the plaintiff brings another action against the defendant or relating to the cause and in respect of the same subject- matter, whether in the same or different courts, the defendant can take the objection of lis pendens

16. You are acting for the defendant. Summons is issued against the

defendant for damages arising out of breach of warranty. Your client

acknowledges that the product is defective and admits full liability.

Furthermore, your client requests you to keep costs to a minimum.

Describe how you would respond to your client’s instructions. (8)

Common law tender: A party to litigation is not obliged to

offer a settlement in terms of the Rules.

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A tender can be made even before proceedings are instituted. If such a tender is satisfactory, it will provide a defendant with protection against costs, which accrue from the summons stage.

The concept of tender is derived from common law. A tender is equivalent to payment by way of an offer of settlement.

Common law requires that payment be made in money. The amount offered in settlement need not be paid into court, and need be available in the form of money or a cheque.

The plaintiff must be notified of the manner of payment.

If the defendant wants to use a tender in order to protect himself against costs, he must plead a tender, which must be proved like any other fact.

Where a tender is raised as a defence, it is done to show that the tender is accepted or that the plaintiff is not entitled to costs from the date on which the tender is made. It’s important to know that a tender must be unconditional. If the tender is not accepted, the tendered amount must be paid back. If it is accepted, the plaintiff may not sue for the balance of the claim.

17. State the information that must be contained in a discovery

affidavit. (6)

Done above

18. Judgment is granted against the defendant. Upon the

defendant’s failure to pay the judgment debt, you issue a writ of

execution

against the defendant’s moveable property. The Sheriff furnishes

you with a nulla bona return. What is the next step that you may

take to enforce judgment? (2)

Immovable property can only be attached and sold in the following 3 cases:

1. Where a writ has been issued against the movables and the Sheriff has made a nulla bona return, that is, has indicated that no movable property exists which can be attached.

2. Where a special order, setting out that there is no movable property which can be attached and sold in execution, has been made by the court on notice of motion to the debtor.

3. At the time when judgment was obtained, the court made a special order declaring certain property

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executable, for example in the case of provisional sentence in respect of a mortgage bond.

A debtor’s rights in respect of incorporeal property may also be attached in execution.

19. Jackpot Bank is liquidated due to fraud committed by its

directors. Two hundred and thirty-four plaintiffs, each of whom

has a legally valid claim, get together because they do not want

to institute individual claims against the liquidators of Ace Bank,

for financial reasons. With these facts in mind, advise these

potential plaintiffs on the manner in which they could

litigate against the liquidators of Ace Bank. (6)

Each person (plaintiff) must have a claim + must act against the same defendant(s) + one or more of the plaintiffs must be entitled to act against the defendant(s) in a separate action.

The legal claim must depend on substantially the same question of law or fact. This question of law or fact must be one, which would have originated in each individual action, which could have been instituted (and which is now not being instituted on account of the intended joinder).

A further circumstance is that where joinder occurs conditionally, that is, where joinder occurs only if the claim of any other plaintiff fails.

Thus, each plaintiff (customers of the bank) have a claim against Jackpot Bank (one defendant) based on substantially the same question of law / fact (liquidation of Jackpot Bank due to fraud by its directors).

20. i) Discuss the meaning of the term “debt or liquidated demand”.

(8)

‘a claim for a fixed or definite thing, as, for instance,

i) a claim for transfer, ii) ejectment, iii) for the delivery of goods, iv) for rendering an account by a partner, v) for the cancellation of a contract or the like’.

Courts have also indicated that a debt is liquidated where it is admitted, or where the monetary value is capable of being ascertained speedily. In order to be a ‘liquidated demand’, the demand must be described in such a way that the amount thereof may be determined merely by mathematical calculation. What ‘ascertained speedily’ embraces is a question of fact, and the court will thus exercise their discretion in deciding whether or

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not a particular claim is capable of being ascertained speedily. Neither an action for divorce nor an action for damages constitute a claim for a debt or liquidated demand. It is therefore clear that the nature of the claim determines whether a simple summons must be employed.

ii) Describe the type and form of the summons that must be

issued if the claim is for a ‘debt or liquidated demand”.

(2)

A simple summons should be employed (although a provisional sentence summons may be employed for a liquid doc, as can a simple summons). As regards the form of the summons, such summons must be drawn up so as to correspond as closely as possible to Form 9 of the First Schedule of the Rules. From an examination of Form 9 it clearly appears that only the cause of action need be set out concisely. In practice, this means that the nature of the relief requested must be set out.

21. The provisional summons procedure is an enforcement

procedure, which may be used after hearing prima facie evidence

only. Name and discuss the three protective

mechanisms built into the procedure for the sake of the

defendant. (6)

The plaintiff's claim is based on a liquid document, and the defendant is not able to provide such counter-proof as to satisfy the court that the probabilities of success in the principal action will probably not be in the plaintiff's favour. Although after the granting of sentence, the plaintiff can immediately go to the enforcement thereof, this can only happen if the plaintiff provides the defendant with the necessary security de restituendo.

22. Determine whether the following are pleadings or process

documents -

i) A combined summons (2)

Both a pleading (POC attached to the CS) and a process (the summons).

ii) A declaration (2)

A pleading. This is a written document containing averments by the parties to an action in which the material facts on which they rely in

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support of their claim or defence are concisely set out, and which is exchanged between such parties.

23. C issues a summons against D for damages arising out of a

breach of contract. With these facts in mind answer the following

questions:

(i) Name the procedure that D must follow if C issues a simple

summons against D. (1)

Application to have it set aside as an irregular proceeding. Interlocutory application – notice and SA.

(ii) Discuss briefly the period within which D must commence

the procedure identified in (i) above. (3)

The period within which the applicant must act commences as soon as a party takes notice that a step has been taken or that a proceeding has occurred, and not once the irregularity thereof has come to his notice.

(iii) Name the type of proceedings that D must follow. (1)

Application proceeding, interlocutory, notice and supporting affidavit, notice to other side.

(iv) Briefly explain why D acts correctly be serving and filing a

notice of intention to defend, despite the procedure that is

followed in (i) above. (3)

Filing and serving the NOITD is not deemed to be a “further step”. A further step would therefore include the next sequential exchange of pleadings and any objection to the content of a pleading. It would not include the filling of a notice of intention to defend.

The courts have held that this is merely an act done to enable the defendant to put forward his defence. Rule 30(2) provides that an application in terms of this Rule must be accompanied by notice to all parties. Such an application is interlocutory in nature. Rule 30(4) provides that, until the party against whom the order was made has complied with it, he may take no further steps in the main action.

(v) Name the orders that a court may make. (2)

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That notice or request be complied with,

Or 2. That the claim or defence be struck off The court may, in its discretion, grant such an order.

24. X issues a combined summons against Y for damages arising out

of breach of contract. Y responds with a notice of intention to

defend. With these facts in mind, answer the following questions.

i) May X bring an application for summary judgment in

response to Y’s notice of intention to defend? (2)

No, he may ot bring an application for SJ. SJ may only be applied for if the initial claim by the pl was for one of a quantified amount, thus only if he had a claim for a “debt or liquidated demand”, thus upon issue of a simple summons. This question deals with a claim for damages arising from breach of contract and is thus not a claim for a quantified amount, but an unquantified amount for damages.

ii) Discuss the procedure that X may follow if Y fails to file a

plea on the merits. (3)

If Y fails to file a plea on the merits, X should first issue and serve a notice of bar on Y, notifying him of his late plea and giving him 5 days to then send the plea. If he doesn’t after the 5 days, X may apply for DJ as Y will be ipso facto barred from sending his plea.

iii) Discuss the procedure that X may follow if Y fails to file

a plea on the merits, despite the procedure discussed in (ii)

above. (5)

X may then apply for DJ. Interlocutory application, notice and SA. Where defendant is in default of notice of intention to defend or plea, the plaintiff can file with the registrar an application for judgment against the defendant. The registrar may:

(1) grant the judgment required (2) grant judgment for part of it (3) refuse it in whole or in part (4) request oral or written submissions (5) Require the matter be set down for hearing in open court. When judgment by default is requested in respect of unliquidated claims, and the defendant is in default of delivery of a notice of intention to defend or of a plea, judgment by default may be granted only once evidence has been led in respect of the amount of the claim.

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25. M issues a combined summons against N for damages arising

out of breach of contract. N responds with a notice of intention

to defend. Thereafter, within the prescribed time-limit, N files a

plea on the merits along with a counterclaim. With these facts in

mind, answer the following:

i) Name the pleading that must be filed by M if N in his plea

on the merits responds to one of the allegations contained

in M’s particulars of claim by means of confession and

avoidance. (1)

Replication

ii) Name the pleading that M must file in response to the

allegations contained in N’s counterclaim. (1)

Plea on the counterclaim (in reconvention)

iii) Name the procedure that N may use if M’s pleading referred

to in (ii) above does not disclose a valid defence.

(1)

Exception

iv) Name the procedure that M may use if M believes that N is

in possession of a tape recording of the negotiations

between M and N and which gave rise to the conclusion of

the contract. (1)

Inspection (Rule 35(14)).

26. X has a claim of R250 000 for payment of goods sold and

delivered to B, which despite demand, B refuses to pay. X has no

option but to institute proceedings in the local High Court. In

each of the instances set out below, the procedure followed

by X is incorrect. State briefly what the correct procedure should

be, giving reasons for each answer.

(i) X issues a provisional sentence summons against B.

(1) (2)

Provisional sentence summons in issued for a liquid document – thus when the pl is armed with a liquid doc. The simple summons is served when the claim is one of a debt or liquated demand, which is relevant in our question, as a claim for goods sold and delivered is a debt or liquidated demand. One would use the provisional sentence summons is one was armed with, eg. A cheque.

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(ii) B raises a defence on the merits by means of a notice of

intention to defend. (2)

B must notify X of his intention to defend by sending a process called a notice of intention to defend. A defence on the merits is raised solely in a plea on the merits which the defendant will only send after he has received the plaintiff’s declaration – as the declaration sets out the plaintiff’s claim and the plea on the merits sets out the defendants defence.

(iii) Although B has entered his notice of intention to defend

within the time stated in the summons, X applies for

judgement by default. (2)

X may not apply for DJ if the defendant’s (B’s) NOITD is on time, if he, however, feels that the defendant’s NOITD was sent solely to waste time or does not have a bona fide defence, he may apply for summary judgement. But the correct procedure for a plaintiff who has received a defendant’s NOITD on time in reply to a simple summons, is to send a declaration.

iv) X files a replication to B’s counterclaim. (2)

This step is incorrect as one files a replication to a plea on the merits if the plea contains a new allegation / issue (if issues were not joined in the plea). The correct answer to a defendant’s counterclaim is a plea on the counterclaim.

v) Because it appears that B wishes to flee the country so as not

to abide the judgement of the court, X applies for the arrest

of B’s person ad fundandam iurisdictionem. (2)

This is incorrect as the arrest ad fundandum jurisdictionem is an arrest of a foreign peregrenus for the purposes of giving a relevant court jurisdiction to hear the action. The correct procedure to have a defendant arrested for trying to flee to avoid paying his debts is the arrest tanquam suspectus de fuga – urgent application ex parte.

27. B issues summons against C for R200 000 for defamation.

Answer the following questions.

(i) Name the procedure that C must follow is B issues a simple

summons against C. (1)

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C should apply to have this set aside as an irregular proceeding – under Rule 30.

ii) Discuss briefly the time period within which C must institute the

procedure referred to in (i) above. (3)

The period within which the applicant must act commences as soon as a party takes notice that a step has been taken or that a proceeding has occurred, and not once the irregularity thereof has come to his notice. The applicant has within 10 days of becoming aware of the step by giving notice to his opponent a chance to remove the complaint within 10 days and application was delivered within 15 days.

iii) Name the type of proceeding that must be used by C. (1)

Rule 30(2) provides that an application in terms of this Rule must be accompanied by notice to all parties. Such an application is interlocutory in nature.

iv) Briefly indicate why C acts in the correct manner by

serving and filing a notice of intention to defend despite

the procedure being followed in (i) above. (3)

A further step would therefore include the next sequential exchange of pleadings and any objection to the content of a pleading.

It would not include the filling of a notice of intention to defend.

The courts have held that this is merely an act done to enable the defendant to put forward his defence.

v) Name the step that B can take if C fails to file a plea on the

merits timeously. (1)

Send B a Notice of Bar giving him 5 days to send the plea on the merits and a warning that if he does not, C will apply for default judgement.

vi) Name the pleading that B will deliver if C’s plea on the

merits discloses no defence. (1)

Replication.

28. X and Y, with their toddler, emigrate from Poland to South Africa.

After six months X, the husband, decides to leave SA and settles

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in Namibia. The wife, Y, remains behind and later decides to

institute divorce proceedings. Answer the following questions,

giving full reasons for each answer where appropriate.

(a) Why is it inappropriate for Y to issue a simple summons in this

instance? (2)

Y would like to divorce X and thus is a claim for a change in status and the appropriate summons is then the combined summons, used for divorce and damages claims – unquantified claims. The simple summons is used for a debt or liquidated demand.

(b) Why is it inappropriate for Y to use application proceedings to

institute action? (1)

One uses applications when: (1) there is no real dispute over any fundamental question of facts or (2) if there is such dispute, it can nevertheless be decided without the necessity of oral evidence. A divorce requires oral evidence and the court to quantify the monetary claims and the change in the status of the parties.

(c) In matrimonial actions it is the practice of most courts to insist on

personal service. Does this mean that Y will not be able to

sue X for divorce in SA? (3)

Rule 5 prescribes how service must be affected on a defendant who is, or is believed to be, outside the Republic.

This is so even when his exact whereabouts are known and even when personal service is possible.

Such a person can not be summonsed before our courts in any manner other than by means of edictal citation. The consent of the court must be obtained to serve o any process or document which initiates proceedings, or

o any process or document which does not initiate proceedings

(d) Why would it be necessary for Y to deliver a replication if X’s

defence is one of confession and avoidance? (1)

A replication contains the plaintiff’s reply to the defendant’s plea. Rule 25(2) states that no replication or subsequent pleadings which would be a mere joinder of issue or bare denial of allegations in the previous

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pleadings shall be deemed necessary and issue shall be deemed to be joined and pleadings closed. A replication will be typically relevant in the case where the defendant’s defence is one of confession and avoidance. A plaintiff who fails to deliver a replication within the prescribed dies induciae is barred from replicating. If the plaintiff raises new averments of fact in the replication, the defendant is given an opportunity of reacting thereto by way of rejoinder.

(e) In the Deed of Settlement X has undertaken to pay Y an amount

of R500 000, but pending a divorce order Y is strapped

for cash. Can she make use of the procedure contained in Rule

34A to obtain an interim payment? (3)

X can offer to use Rule 34A. The offer to pay a monetary sum must be in writing and must be signed by the defendant or by the defendant’s duly authorized attorney. For the purposes of this Rule, a defendant includes any person joined as a defendant or as a third party, as well as a defendant in reconvention or a respondent in application proceedings. The plaintiff may, within 15 days of receiving the notice of the offer, accept the offer by delivering a notice of acceptance at the address of the defendant indicated for the purposes hereof.

If the plaintiff fails to accept the offer within the period, it may thereafter be accepted only with the written consent of the defendant, or with the courts consent. The defendant must, within 10 days of delivering the acceptance, effect payment as offered.

If he fails, the plaintiff may, after giving 5 day’s written notice to this effect, apply through the registrar to a judge for judgment in terms of the offer, plus costs.

(f) If X wishes to claim financial support from Y, may he do so in his

plea on the merits? (3)

He will have to do so in a counterclaim, which can be sent in a separate document, or attached to the plea on the merits.

(g) Y is successful in obtaining an order for divorce. Explain whether

the court is compelled to award Y party and party

costs. (5)

1. As a general rule, the successful party is entitled to his costs.

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2. In determining who the successful party is, the court must look to the substance of the judgment and not merely its form.

3. The court may in its discretion, deprive the successful party of part, or all, of his costs.

In the exercise of this discretion, the judge will take into account the following circumstances in connection with the successful party’s conduct:

(a) whether the demands made are excessive

(b) how the litigation was conducted

(c) the taking of unnecessary steps or adoption of an incorrect procedure

(d) misconduct

29. Q is a landlord and Z is his tenant. Z is in arrears with this

rental. Q issues a summons against Z for the arrear rental and

ejectment. With regard to the given facts, determine the

procedure that Q would use if:

i. Z failed to respond to the summons within the time stated in the

summons (3)

Default judgement application.

ii. Z files a notice of intention to defend within the time stated in the

summons but fails to file his plea on the merits timeously.

(4)

Q has to serve Z with a notice of bar, giving him 5 days in

which to send his plea on the merits, failing which, Q will

apply for default judgement against Z.

30. ZY (Pty) Ltd, trading as a furniture dealer, approaches the local

High Court for the sequestration of C’s estate. B, the authorised

official in the employ of ZY (Pty) Ltd, in his supporting affidavit

states, inter alia, that C is a cheat and a rogue.

i. Indicate briefly why ZY (Pty) Ltd may not use an ex parte

application to institute legal proceedings. (2)

ii. C wishes to oppose the proceedings. Indicate how C must set

about opposing the application. (1)

iii. C is offended at the personal remarks contained in B’s

supporting affidavit. Advise C in this regard. (2)

31. In each of the instances given below, indicate briefly in what

way the pleading or process concerned is defective, and

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whether there is any procedure the defendant may use to raise

an objection against it.

i. In his particulars of claim, the plaintiff alleges that the parties

concluded an agreement on 1 February 2070, instead of on 1

February 2007. (2)

ii. The plaintiff institutes an action for divorce against the

defendant by way of a simple summons. (2)

iii. The plaintiff claims payment of a specific amount from the

defendant in terms of an agreement on which the defendant

would be liable for such payment if a certain Z were to fail to

pay this amount. In the particulars of claim the plaintiff does not

allege that Z has failed to pay the amount. (2)

iv. The plaintiff issues summons against the defendant in the Cape

High Court to the amount of R500 000 for damages resulting

from a motorcar collision. The court grants judgment to the

amount of R300 000. The defendant subsequently moves to

Pretoria and is sued by the plaintiff in the Pretoria High Court

for the balance of the claim, namely R200 000. (2)

32. In terms of an order for divorce, custody of the minor children is

awarded to the wife, B. The ex-husband is C. A few years after

the divorce, C learns that B has decided to immigrate to

Canada. C receives this information 24 hours before B intends

to depart the RSA with the minor children from Johannesburg

International Airport. B’s departure from the Republic with the

minor children directly infringes Cs rights of access in terms of

the divorce order C wishes to institute proceedings to protect

his rights.

(i) Discuss the type of application that C should use to protect

his rights. (5)

(ii) Name the documents that C must use to commence the

proceedings referred to in (i) above. (2)

(i) The ordinary application, but discussions on the aspect of urgency and the use of a temporary interdict were also considered.

(ii) Notice of motion and the supporting affidavit.

32. T has passed his attorney’s admission examination and his

contract as a candidate attorney has expired. T wishes to apply

for admission as an attorney. With these facts in mind, answer

the following questions:

i. What factors must be considered to determine the correct

type of application that must be used? (2)

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ii. In the light of these factors, explain the type of application

that T may lodge. (2)

iii. Name the documents that comprise the type of application

identified in (ii) above. (2)

iv. Name the official to whom the documents identified in (iii)

above must be addressed. (1)

v. Set out the information that must be contained in the

documents identified in (iii) above. (3)

33. Answer the following questions. Ensure that your answer is in

proportion to the marks allotted.

(a) X and Y are married to each other. A minor son is born out

of the marriage. The husband, X wishes to immigrate to

Australia. However, Y, the wife, refuses to leave South

Africa and insists that the minor child remain with her.

Ten days before X is due to leave for Australia, he abducts

the minor child. Y wishes to obtain an order for the

custody and control of the minor child. Bearing these

facts in mind, answer the following questions:

(i) Should Y use action or application

proceedings? (4)

Application proceedings as there is no dispute of fact. There is a dispute of fact when

1. respondent denies material allegations made by the deponents on the applicants behalf, and produces positive evidence by deponents to the contrary

2. respondent admits the allegations contained in the applicants affidavit, but alleges other facts which the applicants disputes

3. respondent concedes that he/she has no knowledge of the main facts stated by the applicant, but may deny them, putting applicant to the proof and himself/herself giving, or proposing to give, evidence to show that the applicant and his/her deponents are biased and untruthful, or otherwise unreliable, and that certain facts upon which the applicant and his/her deponents rely to prove the main facts are untrue.

A dispute of fact does not arise were the respondent merely states that he disputes the truth of the applicants statement, but offers no evidential reply to them.

In other words, where there is bare denial.

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(ii) If the matter is opposed by B, name and describe the

documents which will be exchanged between

the parties. (4)

As above – supporting, answering and replying affidavits and court in its discretion can allow the filing of more affidavits.

(iii) What procedure may X use if Y’s documents contain

inadmissible evidence?

(1)

Application / motion to strike out.

(iv) What type of order is the court likely to grant in

favour of Y?

(1)

Provisional / temporary.

34. In terms of an order of divorce, custody of three minor children

has been awarded to the wife, Ann Marie. For three years after

the divorce, the divorced couple live in JHB. Ann Marie now

wishes to relocate to Cape Town but does not inform her ex

husband of the fact. The ex husband, Peter, hears about the

impending move two days before the time. The move to CT

infringes directly on Peter’s rights of access to the minor children

in terms of the order for divorce.

In regard to the above facts, answer the following questions. Give

full reasons for each answer.

(a) Name the type of proceedings that Peter must use to uphold his

rights of access to the minor children. (2)

Application proceedings, ordinary application, NOM and supporting affidavit.

(b) Explain why must Peter use the proceedings identified in (a)

above. (2)

There is no dispute of fact, thus no need for action proceedings. The application proceeding is relevant with notice to the other party.

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(c) Name and describe the document that Peter must use to

commence proceedings. (2)

DONE

(d) Name and describe the document that Peter must attach to the

document indentified in (c) above. (2)

NOM AND SA

(e) If Ann Marie opposes Peter’s application, name and describe the

documents that must be exchanges between the parties. (4)

DONE

(f) Explain what a court may do at the hearing if a dispute arises

between Ann Marie and Peter which cannot be resolved without

the hearing of viva voce evidence. (2)

Where a genuine dispute of fact arises which cannot be settled without a hearing of viva voce evidence, the court hearing the motion proceedings may

1. dismiss the application

2. order oral evidence to be heard on specified issues Order the parties to trail with appropriate directions as to the pleadings, the definition of issues, etc.

35. X brings an application in terms of which he applies for the

sequestration of Y’s estate. In his supporting affidavit X avers,

inter alia, that Y is a liar and a cheat.

i. Indicate which type of application should be used to institute

court proceedings and give reasons for your answer. (2)

Ordinary application, notice to other side, no dispute of fact.

ii. Indicate how Y will receive notice of X’s application. (1)

Notice of the application is served on him after it has been issued, that is, a copy of the application is handed to him.

iii. Explain what Y can do if he is dissatisfied with the personal

nature of the remarks made about him in the supporting

affidavit. (1)

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Motion to strike out

iv. Explain fully the nature of the procedure referred to in (iii)

above.

(1) (3)

Such application is brought by means of notice of motion, upon proper notice to the other side – ordinary application, NOM and SA.

36. While overseas on a world cruise, judgment by default is granted

against Xandie in the Pretoria High Court. Upon her return to

South Africa, Xandie learns that the plaintiff also applied for a

writ of execution. Xandie approaches you for advice and alleges

that the summons was never served on her, that for the past six

months she was overseas and that the plaintiff was aware of this

fact, because before her departure she arranged with the plaintiff

to pay him the amount owing within seven days after her return.

i. Advise Xandie on what to do in these circumstances?

(4)

Application to have the DJ set aside.Ito Rule 31(2) (b) a defendant may, within 20 days after he has knowledge of a default judgment, apply to court to set aside such judgment.

The court has a discretion whether or not to set aside a judgment.

The defendant must also advance sound reasons for the failure concerned

ii. Indicate briefly how the courts interpret the expression

“sound reasons” in this context. (3)

The courts have held that ‘sound reasons’ mean that

(1) A reasonable explanation must be given for the failure



iii. If the plaintiff may proceed to execute the judgment,

indicate the order in which Xandie’s property may be

attached.

(2)

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First attach Xandie’s movable property, then if sheriff returns with a nulla bona return, proceed upon immovable property.

37. Bonny and Cameron concluded a contract. Bonny commits

breach of contract. Cameron wishes to bring an action for breach

of contract and a claim for damages.

i. Identify the form of proceedings Cameron must use to

approach the court for relief. (1)

Action / summons proceedings

ii. Name the document that will be used to institute the action.

(1)

Combined summons

iii. Name and discuss briefly the essential documents that

Cameron and Bonny would normally exchange in order to

reveal the issues in dispute if the action is opposed.

(6)

The plaintiff issues the combined summons as the claim is for damages (unquantified and thus unliquidated). The defendant sends the plaintiff his NOITD if he wishes to oppose – this is not a means of raising a defence, but a mere process document indicating hjis intention to defend the claim. The defendant then, within the dies induciae, sends his plea on the merits to the plaintiff, this is a pleading with raises the def’s defence, which is one of admit, deny or confess and avoid. The mentioned doc’s are compulsory if the action is opposed. If the def raises a new issue in his plea (or raises a defence of confess & avoid) the pl can respond with a replication, and the def can reply with a rejoinder.

iv. Name any 3 circumstances under which pleadings will be

deemed closed in this action. (3)

Rule 29 states pleadings are closed when:

* the issues are joined in the plea

* the day for the filing of the replication / subsequent pleading has passed and that doc has not been filed.

* the parties agree in writing pleadings are closed, * the court deems them closed.

38. Frank is a registered bus operator and the owner of a double-

decker bus. One Friday afternoon while transporting a full load

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of passengers in his bus, Frank causes an accident with another

bus. The driver of the other vehicle, Kobus, is seriously injured

while Frank’s passengers mostly suffer damages due to

the loss of or damage to their property (such as clothes, suitcases

and groceries).

(a) A panel beater furnishes Kobus with a written quotation for the

repair of his bus in the amount of R140 000. Kobus is satisfied

that the quotation is complete and indicates this by signing the

quotation. If Frank refuses to pay this amount to Kobus, indicate

why a provisional sentence summons is not the

appropriate summons with which to institute an action against

Frank. (3)

The amount in now in dispute and is not liquidated, thus the combined summons route is needed.

(b) Simply name the procedure that Kobus must follow if he sues

Frank for damages due to physical injuries and he requires

financial assistance as a result of the drawn out litigation

process. (1)

Application for interim payments

(c) Kobus does not aver in his summons that the collision was due

solely to the negligence of Frank. Briefly explain what Frank

should do in these circumstances. (2)

Apply for an exception to Kobus’ summons as the POC thus did not contain a cause of action.

(d) If Frank decides to defend the action and delivers a notice of

intention to defend, can Kobus apply for summary judgment?

Explain. (2)

Summary judgement may only be applied for when a claim is for a debt / liquidated demand and thus for simple summons proceedings. Kobus issued a combined summons for damages and can thus not apply for SJ.

(e) Frank wishes to deliver a special plea. Explain what the

implications are for Frank if he does not also deliver a plea on

the merits. (2)

A plea on the merits is compulsory once the NOTID has been served. If he does not send this plea within the dies

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induciae, the plaintiff can serve a NOB on defendant giving him 5 days in which to send it, if he does not in that time, DJ will be granted against def.

(f) Kobus intends calling the panel beater as an expert witness to

prove the damages. Briefly indicate the purpose of the notice

and the summary in respect of this expert witness in terms of

Rule 36(10) of the Uniform Rules of Court. (3)

The purpose of the abovementioned provisions relating to expert evidence is to prevent a party from being surprised at the trial, and to give a party the opportunity of arriving in court prepared to rebut the expert evidence presented by the opposite party.

If the expert witnesses themselves get together to exchange opinions, this could shorten the duration of the trial.

(g) It transpires that one of Kobus’ key witnesses cannot attend the

trial to deliver oral evidence. Simply name the 3 ways in which

such a witness may be allowed to present evidence. (3)

If a witness cannot give evidence in person, and if the necessary circumstances are present, he may be allowed to give evidence in the following ways:

o on commission o by way of interrogatories

o Interrogatories differ from commissions in that, while in the latter case evidence is given generally, in the former case specific evidence only is taken and for this purpose specific questions are formulated which must be put to the witness by the commissioner.

o by way of affidavit

(h) Kobus insists that his advocate asks the court at the end of the

trial for a cost order in his favour on the attorney and client scale.

However, his advocate is of the opinion that an order based on

the party-and-party scale is more appropriate. Briefly discuss 2

important aspects in which attorney-and-client costs and party-

and-party costs differ from each other. (4)

Attorney and client costs arise out of the contractual relationship between client and attorney and are not at all related to possible litigation. Party and party costs, however, are those costs which a party incurs on taking legal steps and which are payable by an opposing party in terms of a court order. However, these costs are only estimated costs and expenses, while attorney and client

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costs are remuneration for all professional services and expenses flowing from the attorney's mandate and are not statutorily fixed. Party and party costs are taxed by the Taxing Master in accordance with a fixed prescribed scale, thus ensuring that only such charges and costs actually incurred in the course of litigation are allowed. Attorney and client costs are a form of punitive measure for improper behaviour.

39. Discuss the method of service of a summons where the defendant

is within the Republic, but his or her exact whereabouts are

unknown.

(5)

Substituted service is necessary, permission from the court is needed via ex parte application, and service of the summons will be made on a relative, publication in the Government Gazette, registered mail or a combination of the abovementioned.

40. Name the 3 requirements for a final interdict. (3)

1. a clear right established on a balance of probabilities

2. an actionable wrong or interference already committed, or at least, a reasonable apprehension that such an act will be committed

3. An absence of any other ordinary and satisfactory remedy affording similar protection to the applicant.

41. Briefly explain what is understood by in forma pauperis

proceedings. (2)

This is a procedure in terms of which indigent persons may obtain free legal aid by approaching the registrar after which legal representatives are appointed.

The following requirements are laid down:

1- the person must have household goods, clothes and tools of his trade to the value of R10 000

2- he must lodge an affidavit with the registrar proving that he only has a value of R10 000

3- And with regards to costs, the attorney includes his bill of costs, fees and disbursements to the registrar and then to the deputy sheriff.

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42. Explain the purpose of the third party procedure contained in

Rule 13 of the Uniform Rule of Court. (3)

The term third party refers to a person who is not initially a party to a suit, but who is latter involved in such a suit. The purpose of third party is twofold:

To avoid the institution of multiple actions in respect of the same matter. Rule 13 procedure is in broad terms similar to the consolidation of actions under Rule 11 in that issues which are substantially the same are tried at a single hearing so as to avoid the disadvantages associated with a multiplicity of trials. In brief, Rule 13 affects a joinder of a third party as a party to the action.

To enable the third party’s liability (if any) to be determined by a court at the same time that the liability of the other party is determined.

43. Explain fully whether a subpoena is a pleading or a process.

(5)

A ‘pleading’ is a written document containing averments by parties to an action in which material facts on which they rely in support of their claim or defence are consciously set out, and which is exchanged between such parties. A ‘process’ on the other hand has been interpreted by the court in Dorfman as “something which ‘proceeds’ from the court; some step in legal proceedings which can only be taken with the aid of the court or of one of the officers.”. A subpoena is clearly process and not a pleading. It is a step in legal proceedings which compels the witness to present himself or herself at a civil trail.

44. Briefly indicate the requirements which an offer to settle must

meet in terms of Rule 34(5) of the Uniform Rule of Court. (4) The

notice of an offer to settle must state:

o If the offer is unconditional or without prejudice as an offer to settle;

o If it is accompanied by an offer to pay all or only part of the costs of the party to whom the offer is made, subject to such conditions as may be stated therein;

o If the offer is made by way of settlement of both claim and costs or of the claim only;

o If the defendant disclaim liability for the payment of costs or for part thereof, in which case the reasons for such disclaimer shall be given.

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45. Indicate and discuss under what circumstances a court will use

its discretion to set aside a default judgment in terms of Rule

31 of the Uniform Rules of Court. (4)

The court will use its discretion to set aside default judgment if the defendant furnished the court with ‘sound reasons’ for the failure concerned. In terms of the courts ‘sound reasons’ mean:

o A reasonable explanation is given for the failure o Providing

the court with a reasonable explanation is important in

assisting the court to determine if the

default was wilful or not. The default will be considered wilful where it can be shown that: the party had knowledge that the action is being brought against him; that the party deliberately refrained from entering an appearance, though free to do so; and harboured a certain mental attitude towards the consequences of the default.

o The application is bona fide and not merely a delaying tactic;

o The defendant has a bona fide defence

o The task of the applicant here is to set forth the grounds of defence with sufficient detail to enable the court to determine that there is a bona fide defence. The applicant shows the existence of a substantial defence. According to the courts, the showing of a substantial defence does not mean to show a probability of success. It suffices if the applicant prima facie case, or the existence of an issue which is fit for trial.

46. Name the ways in which evidence may be placed before the trial

court (4)

o Viva voce, that is, oral presentation of evidence; o On

commission (commission de bene esse)

o By way of interrogatories;

o By way of an affidavit

47. Set out what a court, hearing motion proceedings, may do where

genuine dispute of fact arises which cannot be settled without

hearing of viva voce evidence. (3)

Where a genuine dispute of fact arises which cannot be settled without a hearing of viva voce evidence, the court hearing the motion proceedings may


2. order oral evidence to be heard on specified issues

3. Order the parties to trail with appropriate directions as to the pleadings, the definition of issues, etc.

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48. B issues summons against C for R300 000 for defamation.


(i) Name the procedure that C must follow if B issues a simple

summons against C. (1)

Application to have it set down as an irregular proceeding.

(ii) Discuss briefly the time period within which C must

institute the procedure referred to in (i) above. (3)

The period within which the applicant must act commences as soon as a party takes notice that a step has been taken or that a proceeding has occurred, and not once the irregularity thereof has come to his notice, the applicant himself has not taken a further step with knowledge of the irregularity The applicant has within 10 days of becoming aware of the step by giving notice to his opponent a chance to remove the complaint within 10 days and application was delivered within 15 days.

(iii) Name the correct type of summons that B should have used

to institute the action and give the reason for your

answer. (2)

B should have used a combined summons, as this is a claim for damages, which is unquantified and needs to be quantified by the court.

(iv) Indicate what procedure B must follow if C fails to file her

plea on the merits within the dies induciae, and B wishes

to obtain judgment against C. (3)

B has to send C a NOB giving him 5 days in which to send his plea, thereafter if he does not do so, apply for default judgement. He must send a NOB first as the late document is a pleading.

(v) Name the pleading that C will deliver if she is of the opinion

that the court does not have jurisdiction to hear

the matter. (1)

Special plea, plea in abatement, destroys the case – plea in bar

49. X leases a flat to Y. Y’s contract has expired, but Y refuses to

vacate the flat. X approaches the court for an ejectment order.


(i) Name the type of summons that X should use to obtain the

above order. (1)

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Simple summons – this is deemed a “debt or liquidated demand” and can comprise of ejectment, delivery, transfer, rendering of an account or cancelling of a contract.

(ii) Y Gives notice of intention to defend. Name the procedure

that X may now use. (1)

X may apply to court for summary jugement as Y giving his NOITD is to waste time / he has no bona fide defence – his contract of lease expired and thus the ejectment order is justified as he cant defend it – it expired. Rule 32(1) states: Where a defendant has delivered a NOITD, the plaintiff can apply to court for summary judgment, only if the summons is on a liquid document or for a liquidated amount in money, for delivery of movable property or ejectment.

Thus, it should be clear that an application for summary judgment may follow only from a simple summons.

(iii) Explain what action Y, the defendant, may take in response

to the procedure mentioned in (ii) above. (3)

Rule 32(3) states

Upon hearing the application for summary judgment, the defendant may:

(a) give security for the satisfaction of the registrar

(b) Satisfy the court by affidavit, to swear he has bona fide defence and the affidavit will disclose the nature and grounds of the defence and the material facts relied upon. Although the plaintiff is not permitted to include evidence in support of his claim in the affidavit, the defendant must fully disclose the nature and grounds of his defence.

The reason for this is related to the nature of the claim, which, in turn, results in the fact that the court grants summary judgment on the assumption that the plaintiff’s claim is unimpeachable.

Consequently, the defendant must convince the court that this is not the case.

50. B issues a combined summons against C for damages arising from

a breach of contract. C responds with a notice of intention to

defend, and hereafter files a plea on the merits. Answer the

following questions.

(i) If C wishes to file a counterclaim, state briefly when and

how C may do so. (2)

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He may do so after he has sent his NOTID and along with his plea on the merits. Rule 24(1) states that a defendant who counterclaims shall together with his plea, deliver a claim in reconvention setting out the material facts thereof. A claim in reconvention shall be set out in a separate document or a portion of the document containing the plea but headed ‘claim in reconvention’. This rule further provides that a defendant may, together with his plea, or at a latter stage with the leave of the plaintiff, or if refused, the court, deliver a claim against the plaintiff. This is known as a counterclaim

(ii) Name the pleading that B should file if B is of the opinion

that C’s plea on the merits does not disclose a defence. (1)

Special plea

(iii) Name the procedure that B must follow if B believes that C

is in possession of a tape recording of the negotiations

between B and C, which give rise to the conclusion of the

contract. (1)

Inspection Rule 35(14)

(iv) B’s action is unsuccessful, and the court awards costs to

the defendant, C. Name the type of cost order that will be

awarded. (1)

Party and party costs

MAGISTRATE’S COURTS:

1. Name any eight (8) particulars that must be contained in a summons

in terms the NCA

• citation of the parties

• that the NCA applies to the agreement

• type and category of the credit agreement

• date when the agreement is concluded

• details regarding the principal debt

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• alleged compliance with the Act

• other material terms of the agreement

• locus standi : that the plaintiff (or credit provider) is duly

registered with the National Credit Regulator

in accordance with section 40 (or exempt from registration), and has paid the renewal fees or applied for

registration which has not been refused • that the consumer is in default under the relevant agreement

for a period of 20 business days or longer

• that written notice in terms of section 129(1)(a) has been

properly served on the consumer

• that 10 or more business days have elapsed since the delivery

of the notice

• that the consumer either did not respond to the section

129(1)(a) notice or rejected it

• that the consumer did not refer the credit agreement to a

debt counsellor, alternative dispute resolution agent,

consumer court or an ombudsman with jurisdiction

• that there is no pending matter before the Consumer

Tribunal that relates to the credit agreement

3. State the grounds on which a defendant in a magistrate’s court

action may except to a plaintiff’s summons. (2)

a) vague and embarrassing

b) discloses no cause of action

4. Explain absolution from the instance at the close of the defendant’s

case. (6)

Absolution from the instance at the close of the defendant’s case: this arises in 2 situations, namely when the burden of proof rests on the plaintiff, and when the burden of proof rests on the defendant.

** onus on plaintiff

Where the court is unable to find that the plaintiff has proved his case on a balance of probabilities at the close of the defendant’s case, and the court cannot also find that the defendant has established his defence on a balance of probabilities, it must grant absolution from the instance. Therefore, if the court cannot decide on which side the truth lies, after hearing the evidence of both parties, the proper judgment is absolution.

But if the court finds against the plaintiff, judgment for the defendant, rather than absolution, must be granted. If the final decision of a case depends entirely upon the credibility of witnesses, and the court cannot find that

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either set of witnesses is untruthful, it should also grant absolution. **onus on defendant

Where the onus is on the defendant, the court can never grant absolution from the instance at the end of the entire case.

Where the defendant fails to discharge this onus on a balance of probabilities, the court must grant judgment for the plaintiff. Where the defendant does discharge this onus on a balance of probabilities, the court must give judgment in his favour. Thus there is no room for a judgment of absolution in this situation.

5. Discuss the four instances when default judgment may be granted

against a party in a magistrate’s court. (8)

Default judgment may be granted in the following instances:

i. If the defendant fails to enter an appearance to defend within the dies induciae.

ii. Where the defendant enters appearance to defend, but fails to deliver a plea within the time stipulated in the notice of bar in terms of Rule 12(1) (b). Speelman v Duncan 1997 is authority for the preposition that five days written notice in terms of rule 12(1) (b) means five days from the date of receipt of the notice within which the defendant may comply with it, and not five days from the date on which the notice was delivered to the clerk of the court. iii. If the plaintiff or applicant does not appear at the time set down for the hearing in the trial of the action or in the application. The action or application may be dismissed with costs.

iv. If a party fails to comply with a court order obliging him to comply with the provisions of the rules of court in terms of rule 60(2) and (3). The court may for example, have ordered a plaintiff to supply further particulars ad he fails to furnish further particulars within the time stipulated in the court order. The judgment is granted on application in terms of rule 60(3).

6. Name three matters that may be discussed at a pre-trial

conference. (6)

At such conference, the parties try to limit the point at issue by, making admissions not already contained in the pleadings.

The parties further tries to curtail the time taken up by the conduct of the trial.

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They try to reach agreement on matter that may be mutually admitted and the precise points in issue between them.

This also helps curb the leading of unnecessary evidence.

7. Name the judgments that the court may make at the conclusion of

a trial in terms of section 48 of the Magistrate’s court Act of 1944.

(10)

S48 sets out the judgments which a magistrate’s court may make in the action – plaintiff wins, defendant wins or absolution: The effect of an absolution from the instance is to leave the parties in the same position as if the case had never been brought.

The plaintiff may take out a summons and sue on the identical cause of action. Absolution from the instance may be given at the close of the plaintiff’s case or at the close of the defendant’s case.

Absolution from the instance at the close of the plaintiff’s case:

Absolution will be granted if there is insufficient evidence upon which the court may reasonably find for the plaintiff. It should be refused where there is evidence on which a reasonable person may find for the plaintiff.

The principles regarding absolution from the instance were laid down in Riviera.

It was held that the plaintiff has to make out a prima face case regarding all the elements of the claim in order to survive absolution. Absolution at the end of the plaintiff’s case should be granted sparingly, but when the occasion arises a court should order it in the interests of justice.

Absolution from the instance at the close of the defendant’s case:

This arises in 2 situations, namely when the burden of proof rests on the plaintiff, and when the burden of proof rests on the defendant.

Onus on plaintiff

Where the court is unable to find that the plaintiff has proved his case on a balance of probabilities at the close of the defendant’s case, and the court cannot also find that the defendant has established his defence on a balance of probabilities, it must grant absolution from the instance. Therefore, if the court cannot decide on which side the truth lies, after hearing the evidence of both parties, the proper judgment is absolution.

But if the court finds against the plaintiff, judgment for the defendant, rather than absolution, must be granted. If the final decision of a case depends entirely upon the credibility

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of witnesses, and the court cannot find that either set of witnesses is untruthful, it should also grant absolution. Onus on defendant:

Where the onus is on the defendant, the court can never grant absolution from the instance at the end of the entire case. Where the defendant fails to discharge this onus on a balance of probabilities, the court must grant judgment for the plaintiff. Where the defendant does discharge this onus on a balance of probabilities, the court must give judgment in his favour. Thus there is no room for a judgment of absolution in this situation.

8. Name any four documents that must be forwarded to court in order

to obtain judgment by default. (8)

The original summons with return of proper service.

The written request for default judgment in duplicate. In the case of unliquidated claims (eg damages as a result of motor-vehicle collision) affidavits which prove the nature and extent of the damages must be attached.

In the case of a claim based on a liquid document, the original document duly stamped or an affidavit setting out reasons to the court's satisfaction why such original cannot be filed.

In the case of an action based on a credit agreement which is subject to the Credit Agreements Act, the agreement and certain affidavits must be lodged.

In the case of an action based on a written agreement, the agreement duly stamped must be lodged.

9. Name the instances when a defendant may deliver his/her plea in

terms of rule 19(1) of the Magistrate’s Courts Rules. (7)

Rule 19 embodies precisely formulated provisions governing the form, content, time and manner of pleadings.

The following provisions governing the form and content of the plea are important, namely it must

(1) have a case number

(2) be in writing

(3) be dated and signed by the defendant or his attorney (4) It must comply with the provisions of sub rules 19(4) and 19(6).

10. Discuss discovery of documents in terms of rule 23 of the

Magistrate’s Courts Rules. (10)

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This is a process whereby each party can compel the other to reveal the documentary evidence which it hopes to adduce at trial, and also to reveal other documents in its possession which tends to prove or disprove its case. In order that the parties may prepare for the trial and not to be taken by surprise, it is deemed expedient that each party should know what books and documents the other has in his possession, or under his control.

He is entitled to be informed only of those books in the custody or under the control of his adversary which the latter intends using in the action, or which tends to prove or disprove either case. Rule 23 sets out the application for such information and the way in which such information is to be furnished.

Documents in respect of which privilege is claimed must be listed separately in the schedule, and the grounds for each particular claim of privilege must be specified.

Legal professional privilege applies to communication between attorney and client in the following circumstances:

• where the communication pertains to the professional, or intended professional, relationship,

• made for the dominant purpose of seeking or giving legal advice,

• whether written or oral, or even

• Where the client confesses to the attorney the commission of a prior crime or fraud.

Rule 23(2) refers to the consequences of a failure to disclose.

However, 1 party can compel the other to disclose by means of rule 60(2).

If the party called upon to make discovery fails to comply with this request to do so, the party calling for discovery may make an application in terms of rule 60(2) before the trial to compel compliance with the request.

If an order is made compelling discovery within a certain period and the other party persists in his default, a further application can be made for judgment against the defaulting party. Rule 23(4) provides that the parties may be compelled to produce the books or documents disclosed in their schedules, and any other books or documents specified in a notice to that effect, at the trial.

Rule 23(3) provides that each party is allowed to inspect and make copies of the documents so disclosed, and of the documents specified in rule 23(4).

11. Answer ALL the following questions:

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(a) Name six particulars that must be included in a summons in

terms of rules 5 and 6 of the Magistrate’s Court rules. (6)

1. the dies induciae

2. a warning of the consequences which will result if the defendant fails to comply with the request in the summons

3. a notice of consent to judgment

4. a notice of intention to defend

5. a notice drawing the defendant’s attention to the provisions of S109 of the act

6. a notice in which the defendant’s attention is drawn to S57, 58, 65A and 65D

7. the address at which the plaintiff will receive pleadings

8. a description of the parties

9. averment in respect of jurisdiction

10. particulars of claim

11. the prayers

THIS IS ALL RULE 5 AND 6

(b) Write a short note on the provisions governing the form and

content of a plea on the merits in the Magistrate’s courts.(8)

The most common way of defending a matter is to raise a defence on the merits. The plea contains the defence. It contains the defendant’s answer to the plaintiff’s averments in the particulars of claim attached to the summons. Rule 19 embodies precisely formulated provisions governing the form, content, time and manner of pleadings. The following provisions governing the form and content of the plea are important, namely:

*it must

*have a case number

*be in writing

*be dated and signed by the defendant or his attorney * It must comply with the provisions of sub rules 19(4) and 19(6).

(c) Discuss absolution from the instance when the onus is on the

defendant at the close of the case. (3)


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Where the defendant fails to discharge this onus on a balance of probabilities, the court must grant judgment for the plaintiff.

Where the defendant does discharge this onus on a balance

of probabilities, the court must give judgment in his favour.

Thus there is no room for a judgment of absolution in this situation.

1. Describe the steps that the defendant may take to oppose a

summary judgment application in terms of rule 14(3). (7)

Steps which the defendant may take to ward off a

summary judgment application

(a) He may pay into court the amount for which he or she is sued together with such costs as the court may determine or may give security to the satisfaction of the plaintiff for such sum.

(b) The defendant may give security that he will satisfy whatever judgment may be given against him in the action.

(c) The defendant may give evidence that he or she has a bona fide defence or counterclaim against the plaintiff

2. Describe the amendment of pleadings in the Magistrate’s

Courts. (8)

Rule 55A & s111(1)

14. As clerk of the court, state

i. the formalities with which you must comply in order to

issue the summons (4)

The clerk of the civil court issues the summons by furnishing the summons with a serial number, and by signing and dating it.

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The clerk may refuse to issue a summons in which an excessive amount is claimed for attorney’s cost and court fees, or if the addresses of service does not comply with the provisions of the act.

In a decided case, a summons was issued by the clerk in spite of the fact that such summons had not been signed by the plaintiff or his attorney.

The court decided that, although the summons was invalid, the defendant would be running the risk of default judgment against him if he did not take steps to defend the action.

Thus the court awarded costs in favour of the defendant

ii. What you must do if the plaintiff amends the summons before

it is served (1)

Amendments to the summons may be effected at any time before service, provided that they are

initialled by the Clerk of the court. If the amendments are not initialled, they have no effect (rule 7(2)).

Amendments to the summons after service may be brought

about only by following the procedure set out in rule 55(A) (rule 7(3)(b)).

However, amendments concerning the defendant's first name or initials can be brought about at the plaintiff's request without the court's intervention (rule 7(3)(a)).

15. S is a rich spinster, who goes on an extended holiday

overseas. When she returns she discovers that summons has

been served on her. She consults with her attorney who

informs her that the dies induciae has expired. Nevertheless,

S instructs her attorney to file a notice of intention to defend.

Determine whether the notice of intention to defend is valid.

(5)

Even if the defendant does not timeously give notice of intention to defend, his or her notice will nevertheless be valid, provided that it is submitted before a request for default judgment. If the notice of intention to defend and the request for default judgment are delivered on the same date, the notice remains valid, provided that judgment has not been granted.

Therefore, the defendant is allowed to submit a late notice of intention to defend, provided that default judgment has not been granted, and such notice will be considered valid

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in spite of its late delivery. In the High Court, the plaintiff may, in terms of Uniform Rule 30, apply for rescission of a late notice of intention to defend.

16. Your client instructs you to bring an application for summary

judgment. In order to do so, describe:

i) The type of document that must be attached to the

application; (1)

An affidavit

ii) The content of this document (4)

The cause of action and the amount (if any) claimed must be confirmed and the plaintiff must aver that in his or her belief there is no bona fide defence to the claim and that the notice of intention to defend has been given solely for the purpose of delaying the action.

If the claim is based on a liquid document, the plaintiff is required to attach a copy of the liquid document to the application. However, the original liquid document must be handed in at the hearing of the application.

17. You represent the defendant. The plaintiff serves a summons

on your client. You read through the summons and notice

that it contains averments that are so vague that you are

unable to prepare a plea on the merits on behalf of your client.

With these basic facts in mind:

i) State the step that you could take to rectify the situation;

and (1)

Exception

ii) Explain the procedure that must be used. (4)

An exception is taken by way of notice without an affidavit.

It must be taken within 10 days of the filling of notice of intention to defend or within 10 days of the delivery of further particulars.

Alternatively, the exception may be taken within 10 days after the defendant has given the plaintiff notice in terms of rule 17(5)(c) that the summons is vague and embarrassing and the plaintiff is given 10 days to remove the cause of complaint.

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Exception will only be taken if the court is satisfied that the defendant would be prejudiced in his defence, if the summons were allowed to stand.

When an exception is taken on the ground that the summons is vague and embarrassing, the defendant must, before taking exception, deliver a notice to the plaintiff setting out the passages in the summons which are vague and embarrassing, and notifying the plaintiff that, if he does not remove the cause of complaint from his summons, the defendant intends excepting to it.

18. You are a magistrate. The onus rests on the defendant and at

the end of the defendant’s case it is evident that he has not

discharged the onus on the balance of probabilities. Under

these circumstances would you be justified in granting an order

of absolution of the instance? (3)


Where the defendant fails to discharge this onus on a balance of probabilities, the court must grant judgment for the plaintiff.

Where the defendant does discharge this onus on a balance of probabilities, the court must give judgment in his favour.

Thus there is no room for a judgment of absolution in this situation.

19. Answer all the following questions:

(a) Name the five particulars that must be contained in a summons

according to the NCA. (5)

Done

(b) Name five documents that must be forwarded to a court in

order to obtain a judgment by default. (5)

(a) The original summons with return of proper service.

(b) The written request for default judgment in duplicate. (c) In the case of unliquidated claims (eg damages as a result of motor-vehicle collision) affidavits which prove the nature and extent of the damages must be attached. (d) In

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the case of a claim based on a liquid document, the original document duly stamped or an affidavit setting out reasons to the court's satisfaction why such original cannot be filed.

(e) In the case of an action based on a credit agreement which is subject to the Credit Agreements Act, the agreement and certain affidavits must be lodged. (f) In the case of an action based on a written agreement, the agreement duly stamped must be lodged.

(c) Set out the three requirements for the supporting affidavit that

must be filed by the plaintiff together with the notice for

summary judgment. (5)

- The application for summary judgment may be made only after the defendant has entered appearance to defend.

- The plaintiff is required to bring the application for summary judgment on at least 10 days' notice to the defendant and the application must be brought not more than 10 days after the defendant's appearance to defend has been delivered.

- The plaintiff proceeds by way of application.

- If the claim is based on a liquidated amount of money or for the delivery of specified movable property or for ejectment, the plaintiff must attach a copy of an affidavit made by him or her by someone else who is able to confirm the facts under oath. The cause of action and the amount (if any) claimed must be confirmed and the plaintiff must aver that in his or her belief there is no bona fide defence to the claim and that the notice of intention to defend has been given solely for the purpose of delaying the action.

- If the claim is based on a liquid document, the plaintiff is required to attach a copy of the liquid document to the application. However, the original liquid document must be handed in at the hearing of the application.

e) Name five judgments that a court may grant after the plaintiff and

defendant have closed their respective cases and presented

argument. (5)

In favour of plaintiff, in favour of defendant, absolution at the close of the plaintiff’s case, absolution from the instance at close of def’s case where onus on plaintiff or absolution at close of def’s case where onus on def.

20. X, the plaintiff, and Y, a defendant, are preparing for a trial in the

Magistrate’s court. Merely name the procedure which must be

followed in each instance:

i. X notices a factual error in his summons and wishes to

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correct it. (1)

Amendment (rule 55)

ii. Y wishes to find out what documents X intends to use to prove

his case. (1)

Request for further particulars

iii. X wishes to ensure that a witness will be present in court to

give evidence on his behalf. (1)

Subpoena

iv. Y wishes to obtain particulars regarding X’s state of health to

enable him (Y) to determine the correctness of the amount

claimed by X for damages due to personal injury. (1)

Medical examinations

v. X fails to give notice of trial within the prescribed time limit.

(1)

The defendant may decide not to pursue the matter further, and may allow the matter to die a natural death. The defendant also has an option to apply for dismissal of the plaintiff's action in terms of rule 27(5).

21. Answer the following questions:

(a) Set out five matters that can be discussed at a pre-trial

conference. (5)

o At such conference, the parties try to limit the point at issue by, making admissions not already contained in the pleadings.

o The parties further tries to curtail the time taken up by the conduct of the trial.

o They try to reach agreement on matter that may be mutually admitted and the precise points in issue between them.

o This also helps curb the leading of unnecessary

evidence.

(b) List any five examples of special pleas. (5)

- the court has no jurisdiction

- the plaintiff’s claim has become prescribed

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- the defendant or the plaintiff has no locus standi

- lis pendens

- res judicata

- arbitration

- splitting of claims

(c) Discuss the requirements for the supporting affidavit

which must be filed by the plaintiff together with the

notice for summary judgment. (5) Done

(d) Briefly discuss the ex parte application in magistrate’s

court procedures. (5)

This application is one in which no notice is given to the person against whom the relief is sought, prior to the initial hearing.

In order to succeed:

o the applicant must show that it is really necessary to bring the application

o without notice to the respondent that is he must show some urgency or some other good reason.

o If the application is brought with undue haste and without good reason, the court will not grant the application and the applicant will have to bear the costs of the failed application. o The founding affidavit contains the applicant’s reasons for his application, namely the facts upon which his cause of action is based and why no notice has been given to the respondent.

Powers of the court: The ex parte application is an exception to the audi alteram partem rule which literally means ‘hear the other side’.

Thus the court will not issue a final order without this person concerned being given an opportunity to put his case. After hearing the application, the court grants a temporary order and determines a return day on which the respondent must give reasons why the order should not be made final – rule nisi. The court may, when hearing the application, require the applicant to provide security for any losses which may be caused. The court may also require additional evidence it deems relevant. Discharge of the ex parte order: Any person affected by the order may apply to court, after at least 12 hours’ prior notice, to have the order discharged. However, the order is ipso facto discharged upon security being provided by the respondent for the amount to which the order relates.

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In the case of a mandamenten van spolie, the respondent cannot, by merely providing security, effect the discharge of the order if he is still in possession of the property to which the order relates.

22. Discuss payment without prejudice of rights by way of an offer in

settlement. (6)

Payment without prejudice of rights by way of an offer in settlement: this is usually referred to as ‘payment into court’.

If the plaintiff does not accept the payment made, and does not, at the trial, succeed in proving that he is entitled to more than the amount of the payment, he will be liable for all costs incurred after the date of payment. This procedure is yet again used only in cases where the claim sounds in money.

When payment is accepted, litigation is terminated as the whole cause of action is destroyed.

23. Name the five documents that have to be sent to a magistrate’s

court in order to obtain default judgement. (5)

Done

24. Are all ex parte applications in the magistrate’s court

necessarily urgent applications? (5)

No, not necessarily. This application is one in which no notice is given to the person against whom the relief is sought, prior to the initial hearing. In order to succeed, the applicant must show that it is really necessary to bring the application without notice to the respondent that is he must show some urgency or some other good reason.

If the application is brought with undue haste and without good reason, the court will not grant the application and the applicant will have to bear the costs of the failed application. The founding affidavit contains the applicant’s reasons for his application, namely the facts upon which his cause of action is based and why no notice has been given to the respondent. Powers of the court: the ex parte application is an exception to the audi alteram partem rule which literally means ‘hear the other side’.

Thus the court will not issue a final order without this person concerned being given an opportunity to put his case. After hearing the application, the court grants a temporary order and determines a return day

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on which the respondent must give reasons why the order should not be made final – rule nisi.

25. C and D are involved in a motor vehicle collision in JHB. C

estimates his damages at R80 000. D wishes to defend the

action.

(a) D notices that the summons contains insufficient information.

What steps can D take to rectify the error in the summons?

(1)

Rule 55A

(b) Name 5 particulars that C’s summons must contain in terms of

Rules 5 and 6 of the Magistrate’s Court rules. (5)

o the dies induciae

o a warning of the consequences which will result if the defendant fails to comply with the request in the summons

o a notice of consent to judgment o a notice of intention

to defend

o a notice drawing the defendant’s attention to the provisions of S109 of the act

o a notice in which the defendant’s attention is drawn to

S57, 58, 65A and 65D o the address at which the plaintiff will receive pleadings o a description of the

parties o averment in respect of jurisdiction o particulars

of claim

(c) D avers that C was also negligent and is of the opinion that C is

liable for payment of his (D’s) damages. Name the document

that D must also use to institute this claim. (1)

Counterclaim

(d) C is of the opinion that D’s plea on the merits is excipiable and

raises an exception. Explain when a court will uphold an

exception, (3)

Vague & embarrassing; no cause of action; no defence

(e) Indicate the grounds upon which an exception can be raised by

the defendant in terms of the Magistrate’s Court Rules. (5)

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Vague & embarrassing; no cause of action; no defence (use to be a different answer, thus this has the same answer now, due to amendments, as above)

(f) C and D appear at the pre-trial conference. Set out which

matters can be discussed at such a conference. (5)

o At such conference, the parties try to limit the point at issue by, making admissions not already contained in the pleadings.

o The parties further tries to curtail the time taken up by the conduct of the trial. o They try to reach agreement on matter that may be mutually admitted and the precise points in issue between them. o This also helps curb the leading of unnecessary

evidence.

(g) C succeeds with his claim and D fails to pay the judgment debt.

C obtains a writ of execution against the property of D. Name

any 5 items that are exempt from execution in terms of section

67 of the Magistrate’s Court Act 1944. (5)

“Section 67 refers to certain property which is exempt from execution. However, you need not study the provisions of this exclusionary section” CIP STUDY GUIDE UNISA

26. Set out five (5) matters that can be discussed at a pre-trial

conference. (5)

The court may at any stage in any legal proceedings in its discretion or upon the request in writing of either party direct the parties or their representatives to appear before it in chambers for a pre-trial conference. The following issues/matters are addressed at a pre-trial conference:

1. the simplification of issues;

2. the necessity or desirability of amendments to the pleadings;

3. the possibility of obtaining admissions of fact and documents with a view to avoiding unnecessary proof;

4. the limitation of the number of expect witnesses;

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5. Such other matters as may aid the disposal of the action in the most expeditious and least costly manner.

27. Discuss the requirements for the supporting affidavit which

must be filed by the plaintiff together with the notice for

summary judgment. (5)

There are three requirements which must be complied with in terms of Rule 14(2) of the Magistrates’ Court Rules:

(1) firstly the affidavit must be signed by the plaintiff personally and he or she must state that he or she has personal knowledge of the facts; or in the case of a legal person, it must be signed by someone who alleges that he or she is duly authorised to make the affidavit; in addition, he or she must state his or her capacity in respect the plaintiff and that he or she has personal knowledge of the facts.

(2) Secondly the plaintiff must verify or confirm the amount or cause of action.

(3) Lastly, the deponent must state that in his or her belief there is no bona fide defence to the claim and that appearance has been entered solely for the purposes of delaying the action.

28. Briefly discuss the ex parte application in magistrates’ court

procedure. (5)

Ex parte applications may be brought only in those instances where the applicant cannot request an order against a person. Rule 56 provides an exception in that applications for arrest tanquam suspectus de fuga, interdicts, attachments to secure claims, and mandamenten van spolie may be made by means of ex parte applications. The reason is that a speedy remedy, where relief is urgently required, will be frustrated if the other party is notified of the intended application in advance.

The court grants a temporary order and determines a return day on which the person against whom the order is made must give reasons why the order should not be made final (rule nisi). The court may also require the applicant to provide security for ay losses suffered and may require any additional evidence where relevant. Any party affected by the ex parte order may apply to court after 12 hours’ prior notice to have the order discharged. The order is ipso facto discharged upon

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security being provided by the respondent for the amount to which the order relates.

APPEAL, REVIEW AND RECISSION:

1. State the main differences between appeal and review. (4)

2. Name two instances when a court will interfere with a decision

taken by a quasi judicial body. (2)

3. Name the procedure to be followed when variation of judgment in

terms of Uniform Rule 42 is sought. (1)

4. Briefly explain what is meant by a right of appeal. (1)

5. Indicate when an appellant would have the right referred to in

(d) above. (1)

6. Briefly explain whether an appeal on a non-constitutional matter

may be noted against a decision of the Supreme Court of

Appeal to the Constitutional Court. (1)

7. What essential information must be included in a notice of appeal

in an appeal from the magistrate’s court? (3)

8. Name the step that an appellant must take as soon as leave to

appeal has been granted by the Supreme Court of Appeal. (2)

9. X, the plaintiff, institutes proceedings in a magistrate’s court

against B, the defendant. Judgment is granted against B. B is

dissatisfied and takes the matter on appeal to a High Court.

Bearing these facts in mind, answer the following questions,

giving brief reasons for each answer.

(a) With reference to the given facts, state any two reasons why B

cannot take the matter on review. (4) (b) How many judges must

hear the appeal? (1)

(c) If B is dissatisfied with the judgment given by the court a quo,

which court(s) does a further appeal lie, if any? (3) (d) Does a right

of appeal exist in respect of (c) above? (1)

(e) May X execute the original judgment given in his favour in the

magistrate’s court before the appeal is finalised? (3)

(f) What information must be contained in the notice of appeal?

(3)

10. X, the plaintiff, institutes proceedings in a magistrate’s court

against B, the defendant. Judgment is granted against B. B is

dissatisfied and takes the matter on appeal to a High Court.

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Bearing these facts in mind, answer the following questions,

giving brief reasons for each answer.

(a) How many judges must hear the appeal? (1)

(b) If B is dissatisfied with the judgment given by the court a quo,

which court(s) does a further appeal lie, if any? (4)

(c) Does a right of appeal exist in respect of (c) above? (1)

In regard to the facts stated in (a) above, B wishes to appeal against a

judgement of a High Court. With this in mind, answer the following

questions:

(ii) Name the procedure that the defendant must follow in order

to appeal to the Supreme Court of Appeal. (1)

(iii) Name the next step that the defendant must take, if the

procedure in (i) above is granted. (1)

(iv) What essential information must be included in a notice of

appeal? (2)

11. Name two (2) instances when a court will interfere with a

decision taken by a quasi-judicial body. (2)

12. State the grounds for reviewing the proceedings of any lower

court as set out in Section 24 of the Supreme Court Act 1959.

(4) (4)

13. Describe the procedure to be followed when noting an appeal as

prescribed by rule 51 of the magistrate’s courts rules. (9)

14. Z institutes proceedings in a magistrate’s court against X. The

magistrate grants judgment against X, X is dissatisfied and

takes the matter in appeal. On the basis of these facts answer

the following questions, giving reasons where necessary.

(a) Must X apply for leave to appeal to a High Court? (1)

(b) How many judges must hear the appeal? (1)

(c) How must X note his appeal to the High Court I terms of rule

51(3)? (5)

(d) May X still conduct the appeal if he satisfies any part of the

judgment against which the appeal is brought? (1)

(e) Will execution of the judgment given in the magistrate’s court be

suspended pending the decision of the appeal in the High

Court? (2)

(a) No: there is an automatic right of appeal

(b) At least two

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(c) X must note the appeal within 20 days of the date of the judgment appealed against or within 20 days of the clerk of the court providing a copy of the written judgment, whichever is the longer. An appeal is noted by delivering a notice, and, unless the court of appeal directs otherwise, by furnishing security for the costs of appeal to an amount of R1000. No security is required from the state.

(d) No, section 85 specifically provides that an appellant does not lose his right of appeal.

(e) The noting of an appeal automatically suspends the execution of the judgment. However, the court may, on application, order that the judgment be put into effect.

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CIVIL PROCEDURE QUESTIONS AND ANSWERS PACK 2:

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. (6)

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

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cannot appear in court

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 won’t 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. 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

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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


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. (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)

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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:

To determine the title of immovable property

For the transfer of immovable property

For the partition of immovable property

Where a real right is in dispute

Where possession of immovable property is claimed

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”. (6)

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. 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,

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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) 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.

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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


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


section 1(1) of the Domicile Act and not in accordance with its common-law definition.

17. A and Z entered into a contract. Z breached the contract. So A has a claim

against Z in the amount of R300 000 due to the breach. The cause of action arose

in Cape Town. A is an incola of CT and Z is an incola of Pretoria. On the basis of

these facts, answer the following:

a) Can A institute proceedings against Z in the CT high court? (2)

Yes, ratione re gestiae, ratione contractus, cause of action arose in CT

b) If it is possible to institute proceedings against Z in the CT HC, would it be

necessary to arrest Z or attach his property? (2)

Its not only unnecessary to arrest / attach Z’s property, but specifically prohibited i.t.o

s28(1).

c) Can A institute proceedings against Z in the Pretoria HC? (2)

Yes, actor sequitor forum rei, ratione domicilii of defendant, domicile of defendant is

Pretoria.

d) Would your answer to (a) differ if Z was a peregrinus of the whole Republic? (6)

No, my answer wont change, as A can still sue Z in CT, BUT because he is a FP, he will

have to attach Z’s property to either found or confirm jurisdiction, and A can use the

fact that he is dom’d / resid in CT to sue there as pl can sue FP in his area if he attaches

to FOUND J. He can use the fact that the C of A arose in CT, then he attaches to

CONFIRM J. if he uses his own domicile, the FP cant submit, so the law says A shouls

sue in CT based on C of A and that he should attach to confirm J and give the FP an

opportunity to submit.

e) Would your answer to (d) differ if Z is not present in Ct and has attachable

property and the property is situated in Durban? (3)

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No. my answer wont change, A can still sue Z in CT court, even through Z is not present

in CT and if his property is in Durban due to s21(3), which says that attachment of a

FP’s property for the purposes of J can take place anywhere in SA. The presence of Z

was relevant before the case of Strang, when one could arrest an FP to give a court J,

and s21(3) made it clear then that the FP could be anywhere in SA when we arrested.

Since Strang, one cant arrest an FP for J purposes.

f) Would your answer to (a) differ if the claim related to the registration of

fixed property and the property is situated in Durban? (2)

Yes, one cant now sue in CT, one has to sue in Durban due to ratione rei sitae, as one

has to sue for immovable property where that property is situated.

g) Would your answer to (f) differ if the claim now related to a bull, which is

situated in Durban? (1)

No, not really, as one should still sue for a moveable based on ratione rei sitae, but

cause the movable can be moved from J to J, one may use the domicile of the def, if

needed, thus Durban or Pretoria.

18. Marie, a South African woman, visits Namibia for a holiday. While there, she

marries Johan, a mineworker, who is a citizen of Namibia. At Marie’s request the

couple move to Johannesburg where Johan accepts employment with a mining

company. After 6 months Johan decides to go to Kimberley because he would

rather work in a diamond mine. Marie refuses to accompany Johan to Kimberley

since she holds a job with good prospects in Johannesburg. After spending about

8 months in Kimberley, Johan decides to return to Namibia. Shortly after his

return to Namibia, Johan decides to institute divorce proceedings against Marie.

a) Briefly discuss whether Johan, who is domiciled and resident in Namibia,

would be able to institute divorce proceedings against Marie in the Johannesburg HC. (3)

b) Briefly indicate whether or not your answer would differ had Marie instituted

proceedings for divorce when Johan decides to leave for Kimberley. (3)

a) This questions deals with divorce jurisdiction. The jurisdictional statue of both

parties to the marriage must be determined to decide whether the JHB HC has

jurisdiction to hear the divorce proceedings – in other words, we must decide where

both Johan and Marie are domiciled and also where either might comply with the

residence requirements. John is domiciled and resident in Namibia, while his wife

Marie is resident in JHB at the time divorce proceedings are to be instituted. Marie

also appears to have been ordinarily resident in the Republic for a period of one

year immediately before that date. Although Johan cannot institute action in the

JHB HC on the basis of his own domicile or residence, he may do so because the

defendant, Marie is resident in that court’s area of jurisdiction and has been

ordinarily resident in the Republic for a year proceeding this date.

b) As it does not appear that Johan ever became domiciled in SA, the fact that he had

not yet returned to Namibia at this stage will not affect his domicile. We do not

know where Marie is domiciled. At this stage Johan is still resident in the JHB

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court’s area of jurisdiction, but has not been resident in the Republic for one year.

Marie is resident in the court’s area of jurisdiction, but it is not clear whether her

residence was interrupted by her stay in Namibia. Unless Marie can show that she

is a domiciliary of the JHB court’s area of jurisdiction, she may not institute divorce

proceedings in SA.

19. Jaun, a Dutchman, is the owner of a cruiser. The cruiser is damaged at sea,

rescued and brought to dry dock in CT. Jaun instructs Sammy, who lives

permanently in Durban, to do the necessary repairs to the cruiser. Sammy

performs the repairs in CT at a total cost of R200 000. Despite demand, Jaun fails

to pay Sammy for the cost of the repairs and sails from CT to Durban. With these facts in mind, answer the following questions, giving reasons for each

answer.

(i) Could Sammy successfully bring an application for the attachment of Jaun’s cruiser

to enable the CT High Court to exercise jurisdiction? (5)

(ii) Could Sammy successfully bring an application for the attachment of Jaun’s cruiser

to enable the Durban HC to exercise jurisdiction? (5)

(iii) Would the CT High Court have jurisdiction if Jaun was domiciled in Pretoria? (3)

(i) Jaun is a peregrinus of the Republic and therefore attachment of the property has

to take place for a SA court to have jurisdiction over him. There are two types of

attachment, namely:

- ad confirmandam jurisdictionem which requires attachment plus cause of action;

and

- ad fundandam jurisdictionem which requires attachment plus that the plaintiff is

an incola of the particular court. In casu cause of action arose in CT and therefore attachment ad confirmandam

jurisdictionem is applicable. The section of the Act (s26(1)) was replaced by the 2013

Act, and this has reverted the situation re the attachment of the property back to the

common law position - This section provides only for attachment of property ad

confirmandam jurisdictionem; it makes no reference to attachment ad fundandam

jurisdictionem. However, it is contended that as attachment ad fundandam

jurisdictionem has been part of our common law, the provisions of this section must

be read together with the common-law principles regarding attachment ad fundandam

jurisdictionem. Consequently, the position regarding attachment ad fundandam

jurisdictionem is governed by common law. Unlike the position with the repealed

section 19(1)(c), no mention is made of a requirement as to where the property to be

attached must be situated. It is contended that as the legislature is silent on this

matter and did not specifically provide where attachment must take place, again this

provision must be read with the common-law principles regarding attachment, and

consequently the requirement is that the property must be situated within the

jurisdictional area of the particular court approached for the order. Unfortunately, the

result is that this section, in its present form, amounts to a regression in that the

incola plaintiff is again placed in the invidious position in which he or she found

himself or herself prior to 1999. It is hoped that the courts will clarify the uncertainty

regarding the interpretation of this section in the near future.

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(ii) The requirements for ad fundandam jurisdictionem are attachment plus that the

plaintiff must be an incola of the court. In this instance the plaintiff is an incola

of Durban since he lives in Durban, and therefore the cruiser can be attached, to

found J, to allow Sammy to sue the FP Jaun in Durban.

(iii) Yes because the cause of action still arose in CT and thus, CT court has J based

on RRG. However, the attachment of Juan;s property, as the def isn’t allowed

according to s28(1). The cause of action occurred in CT, giving CT J based on

RRG. But Sammy may also sue in Pta due to Juan’s domicile (RD).

20. X is an incola of the KwaZulu-Natal Local Division, Durban. Z wishes to

commence proceedings against X but is not sure what to do since Z discovers that

X’s employer has sent him to manage a project in Cape Town for three months. With

these facts in mind, answer the following questions.

(i) May Z issue summons against X out of the KwaZulu-Natal Local Division,

Durban? (2)

In terms of the common law an incola is a person who is either domiciled or resident

within a particular area, and a court has jurisdiction over a defendant who is an incola

within its area at the time when the action commences on the ground of ratione domicilii.

In the present instance X’s temporary presence in Cape Town did not cause a change in

his residency status in Durban. Therefore, as X is still “resident” in Durban, the KwaZulu-

Natal Local Division, Durban has jurisdiction over X ratione domicilii (based on the

principle actor sequitur forum rei), and Z may thus issue summons against X out of this

court.

Residence contains an element of permanence, and consequently the mere presence of a

person at a particular place is insufficient to establish residency. In the present matter X’s

presence in Cape Town is clearly temporary (a three month work commitment) with no

indication of wanting to give up his residency in Durban, and therefore he is still “resident”

in Durban. Also note that “ratione domicilii” literally means “by reason of domicile”, and

therefore it is referred to as a ground for jurisdiction (or reason why a court has jurisdiction).

This ground is based on the principle actor sequitur forum rei which literally means to follow

the defendant to the defendant’s court. Note that it is the status of the defendant that is

important to consider, not that of the plaintiff! (ii) If Z does decide to issue summons out of the KwaZulu-Natal Local

Division, Durban, would it be possible to serve the summons on X in Cape

Town? (2)

Section 42(2) of the Superior Courts Act, 2013 provides that a civil process of a Division runs throughout the Republic, and may be served or executed within the

jurisdiction of any Division. Consequently it would be possible for Z to issue a summons

out of the KwaZulu-Natal Local Division, Durban and have it served on X by the sheriff

while in Cape Town. (Section 42(2) of the Superior Courts Act, 2013). Section 42(2) is

essentially a procedural enactment to make the execution and service of process more

convenient, and is not a jurisdiction ground – it simply allows a process to be issued

by one court (that has jurisdiction) and to be served and executed in another court’s

area.

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(iii) R wishes to apply for an order for attachment ad fundandam jurisdictionem.

Discuss whether a High Court would grant such an order if

both the plaintiff and defendant are peregrini of the Republic? (4)

The court will not grant an order for attachment ad fundandam jurisdictionem if both Z

and the defendant are peregrini of the Republic. In terms of common law, attachment ad

fundandam juridictionem is only ordered if the plaintiff is an incola of the court concerned.

In Halse v Warwick 1931 CPD 233 the court held that there may be very good reasons

why South African courts should not seek to extend their jurisdiction by an attachment

in suits between peregrini. Therefore, our courts will only adjudicate an action between

peregrini if there is a sufficient nexus with the area of the court and the plaintiff is an

incola of the court as well. Consequently, the court will not allow the order as the plaintiff

is not an incola of the court.

21. Peter is domiciled in Pretoria. While on holiday in Durban, Peter is involved

in a motor vehicle accident with Portia. Portia is domiciled in Johannesburg and

has a holiday home in Cape Town. Peter has suffered damages to his vehicle

during the collision in the amount of R500 000. In relation to the given facts

answer the following questions:

(i) May Peter institute proceedings for damages against Portia in the Gauteng Local Division, Johannesburg? (2)

In terms of the common law an incola is a person who is either domiciled or resident

within a particular court’s area of jurisdiction. In the present instance Portia is

domiciled in Johannesburg and thus an incola of the Gauteng Local Division,

Johannesburg. This court has jurisdiction ratione domicilii (based on the principle actor

sequitur forum rei). Therefore Peter may institute proceedings for damages in the

Gauteng Local Division, Johannesburg. The fact that the cause of action occurred in

Durban does not mean that the action must be instituted in Durban: one jurisdiction

ground is not “stronger” than, or superior to, another jurisdiction ground, and in

practice it often happens that more than one court is competent to adjudicate a matter.

In such an instance the plaintiff, as dominus litis, will choose in which court to institute

proceedings However, in casu this is not the consideration, as the question deals only

with the Johannesburg court.

(ii) May Peter institute proceedings in the Western Cape Division, Cape Town? (1)

Peter may not institute proceedings in the Western Cape Division, Cape Town, as there

is no jurisdictional link to this court: the defendant is neither an incola of the court,

nor did the cause of action arise in the court’s area of jurisdiction, and the claim does

not relate to the property situated in the court’s area of jurisdiction. It is important to

note the meaning of “jurisdiction” in answering the question. “Jurisdiction” refers to a

court’s authority to hear a matter and the power to enforce its judgment. In this

instance none of the common law jurisdictional grounds provide a basis for the court

to exercise jurisdiction over the defendant or the matter.

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(iii) Would your answer to (ii) differ if the claim related to immovable

property in Cape Town? (4)

Where the object of relief is immovable property, the court in whose area of jurisdiction

the immovable property is situated has exclusive jurisdiction (in respect of a variety of

actions such as determining title or for transfer of the property). In such matters it is

irrelevant whether the defendant is an incola or a peregrinus. Consequently, the answer

to (ii) above will differ: whereas the Western Cape Division, Cape Town in (ii) above had

no jurisdiction, it now as forum rei sitae will have exclusive jurisdiction to hear the

matter

22. X and Y are involved in a motor collision, which is due solely to the negligence

of Y. The motor collision occurs in Randburg, Johannesburg. Y lives in Eersterust,

Pretoria. X wants to sue Y for R500 000.With these facts in mind, answer the

following questions. Give full reasons for your answers.

(i) May X institute proceedings for damages against Y in the South Gauteng High Court, Johannesburg? (1)

In regard to a claim relating to delict, the court in whose area the delict was committed

(i.e. where the cause of action arose) will have jurisdiction. In other words, the place

where the collision occurred will have jurisdiction. This is known as the exercise of

jurisdiction ratione delicti commissi. At common law, this falls within the ambit of

ratione rei gestae. On the given facts, X may institute proceedings against Y in the

South Gauteng High Court, Johannesburg where the cause of action or delict (collision)

occurred.

(ii) Why is the North Gauteng High Court, Pretoria, competent to exercise

jurisdiction? (2)

In regard to common law, the court where the defendant is either domiciled or

resident always has jurisdiction to hear a claim sounding in money. This is known as

the exercise of jurisdiction ratione domicilii. On the given facts, X may institute

proceedings against Y in the North Gauteng High Court, Pretoria where the defendant

(Y) resides

(iii) Is the attachment of the defendant’s property a prerequisite for the exercise

of jurisdiction? (2)

No, attachment of the defendant’s property is a prerequisite for the exercise of

jurisdiction where the defendant is a perigrinus of the Republic (foreign peregrinus).

Section 28 of the Superior Courts Act, 2013 prohibits the attachment of property to

found jurisdiction against a person resident in the Republic. On the given facts, the

defendant X is an incola of the court as he resides and lives in Eersterust, Pretoria which is within the South African borders. Therefore attachment of the property is not necessary, and is in fact prohibited. A peregrinus of

the Republic (foreign peregrinus) is a person who is neither resident nor domiciled in

the Republic. For the court to exercise jurisdiction over that person, there must be

attachment of the property of the peregrinus either by attachment ad fundandam

jurisdictionem or attachment ad confirmandam jurisdictionem.

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23. X lives in Montana, Pretoria. Y lives in Abuja, Nigeria, and owns a house in

Cape Town. X has a claim against Y for damages in respect of breach of contract.

The contract was concluded in Cape Town. With these facts in mind, answer the

following questions. Give full reasons for your answers.

(i) With specific reference to case law, explain whether the North Gauteng High Court, Pretoria, is competent to exercise jurisdiction. (6)

Y is clearly a peregrinus of the Republic (a so-called foreign peregrinus). A South


or her property has taken place, either in the form of attachment ad fundandam


the attachment) or attachment ad confirmandam jurisdictionem (requiring the cause of

action to have occurred within the particular court’s area of jurisdiction apart from

the attachment).

On the given facts Y is a foreign peregrinus, the cause of action arose outside the

court’s area of jurisdiction (Cape Town), the plaintiff is an incola of the North Gauteng

High Court, Pretoria and there is attachable property in South Africa (the house in

Cape Town). Therefore, the North Gauteng High Court, Pretoria in whose area of

jurisdiction the plaintiff is an incola, will be competent to exercise jurisdiction to hear

the action for damages on the basis of the attachment of X’s property ad fundandam

jurisdictionem. In Halse v Warwick the court held that an incola plaintiff could be

granted an order for attachment ad fundandam jurisdictionem, even though the cause

of action arose outside the court’s area of jurisdiction. Before the North Gauteng High

Court, Pretoria (Gauteng Division, Pretoria) may entertain the issue of damages, an

order for the attachment of the defendant’s property in Cape Town ad fundandam

jurisdictionem should have been obtained and the attachment must have taken place.

The attachment itself and not the status of the plaintiff vest the court with

jurisdiction. (Status is an additional requirement.)

(ii) Explain why your answer to (i) above would differ if X’s claim was for the

transfer and registration of Y’s house in Cape Town. (2)

In regard to a claim relating to immovable property, the court where the immovable

property is situated has exclusive jurisdiction in actions, to determine the title to


jurisdiction ratione rei sitae. In this instance it is irrelevant whether the defendant is

an incola or a peregrinus.

On the given facts, the North Gauteng High Court, Pretoria (Gauteng Division,

Pretoria) would not have jurisdiction, because the issue relates to immovable

property, and with regard to immovable property the court where the immovable

property is located will have exclusive jurisdiction. X may institute proceedings

against Y in the Western Cape High Court, Cape Town (Western Cape Division, Cape

T own) where the immovable property is situated for the transfer and registration of

the house in Cape Town. Ratione rei sitae is only relevant in respect of property and

the court in whose area the property is situated has exclusive jurisdiction to hear the

claim relating to such property. The jurisdiction of that court is exclusive which

means that no other court may hear the claim

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24. After having been married to each other for a period of seven years, P

wishes to divorce his wife, W. At the time of the institution of divorce

proceedings, both P and W were living permanently in Durban. With these facts

in mind, answer the following questions. Give full reasons for your answers.

(i) Why will the Durban High Court, Durban, have jurisdiction to hear the action

for divorce? (1)

There are two main grounds on which South African courts may exercise divorce

jurisdiction, namely: *domicile; * or residence, based on sections 2(1)(a) and (b) of the

Divorce Act 70 of 1979 respectively. Section 2(1)(a) of the Divorce Act provides that a

court may exercise jurisdiction on the basis of the domicile of both the husband and

the wife or of either the husband or the wife. On the given facts, section 2(1)(a) is

satisfied because the parties are domiciled in Durban as are both permanent

residents of the KwaZulu-Natal High Court, Durban (KwaZulu- Natal Division,

Durban). Domicile and residence are independent and alternative jurisdictional

grounds. This means that a court may exercise jurisdiction either on the basis of the

independent domicile, or the residence of, either the husband or the wife. In the case

of residence section 2(1)(b) further requires either or both parties to be ordinarily

residence within the Republic and should have been ordinarily residing in the

Republic for a period of not less than one year prior to the institution of the action.

Section 2(1)(b) is however not applicable, as there is insufficient information to

indicate that the couple have been ordinarily resident in the Republic for not less

than one year prior to the institution of the action.

(ii) Does P have a choice between instituting divorce proceedings in a High Court or in a regional magistrate’s court? (2)

Prior to the coming into operation of the Jurisdiction of Regional Courts Amendment

Act 31 of 2008 (JRCAA), family disputes such as divorce were dealt with exclusively

by the High Court. Since the coming into operation of the JRCAA the regional

magistrates’ court may also adjudicate on certain civil matters including divorce

action. Consequently, section 28(1A) of the Magistrate`s Courts Act provides that a

regional magistrates’ court shall have divorce jurisdiction over both or either party

who is

* domiciled in the court`s area of jurisdiction on the date on which the proceedings

are instituted or

* ordinarily resident in the court`s area of jurisdiction on the said date and has been

ordinarily resident in the Republic for a period not less than one year immediately

prior to that date. P therefore has a choice to decide in which court he should

institute the proceedings. 25. X has a claim against Z in the amount of R600 000 for personal injuries

suffered as a result of Z’s unprovoked attack on him in Pretoria. X is an incola

of Pretoria, and Z is an incola of Johannesburg. Answer the following questions,

giving full reasons for your answers.

(a) Fully explain why the North Gauteng High Court, Pretoria, would have

jurisdiction to hear the claim. (2)

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In regard to a claim relating to a delict, the court in whose area of jurisdiction the

cause of action arose will have jurisdiction. In other words, the place where the delict

was committed, will vest a court with jurisdiction. This is known as the exercise of

jurisdiction ratione delicti commissi. (Under common law, this falls within the ambit

of ratione rei gestae.) On the given facts, the cause of action (unprovoked attack)

arose in Pretoria. Therefore, the Pretoria High Court will have jurisdiction ratione

delicti commissi.

(b) Fully explain whether your answer to (a) would differ if Z was a peregrinus of

the Republic, and he was the owner of a Lamborghini which he kept in a garage

in Johannesburg? (5)

In instances where the defendant is a peregrinus of the whole of the Republic (foreign

peregrinus), a High Court will be competent to exercise jurisdiction only if the cause

of action arose within the area of jurisdiction of the court and if attachment of the

defendant’s property has taken place within the area of the court. This is known as

attachment ad confirmandam jurisdictionem. The attachment confirms or

strengthens the partial or imperfect jurisdiction that a court has by reason of the fact

that the cause of action arose within its area of jurisdiction. It does not matter

whether the plaintiff is an incola or a local peregrinus of the court concerned.

Section 21(3) provides that any Division may issue an order for the attachment of

property to confirm jurisdiction. The section does not specifically provide where

attachment must take place. Therefore, this provision must be read with the

common-law principles regarding attachment and, consequently, the requirement is

that the property must be situated within the area of jurisdiction of the particular

court approached for the order.

On the given facts, the defendant is a peregrinus of the whole Republic. The cause of

action (unprovoked attack) arose within the Pretoria High Court’s area of jurisdiction

and, therefore, the Pretoria High Court will be able to exercise jurisdiction ad

confirmandam jurisdictionem, provided that the defendant has attachable property

within the Republic, specifically within the particular court’s area of jurisdiction.

However, the attachable property is situated within the Johannesburg High Court’s

area of jurisdiction and not within the Pretoria High Court’s area. Therefore, the

Pretoria High Court will not have jurisdiction on the basis of attachment ad

confirmandam. Accordingly, the answer to (a) will differ since attachment of property

takes place and the court will no longer have jurisdiction on the basis of common-law

rules but on the basis of attachment ad confirmandam jurisdictionem instead of

ratione delicti commissi. Although the cause of action arose in the court’s area of

jurisdiction, it only has partial jurisdiction since we are dealing with a foreign

peregrinus. The court will thus not be competent to exercise jurisdiction unless

attachment (ad confirmandam jurisdictionem) has taken place. Please note that the

attachment has to happen within the area of jurisdiction of the court where the cause

of action arose. (Refer to s 21(3) of SCA, 2013.) The attachment strengthens the

partial or imperfect jurisdiction that the court has by reason of the fact that the cause

of action (delict) arose within its area of jurisdiction.

26. Tshepo and Nomsa have been married for 10 years, and are domiciled in

Botswana where the marriage was entered into. Nomsa lives in Botswana, but

Tshepo works in Pretoria and returns home to Botswana for a short holiday twice

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a year. After having worked in Pretoria for five years, Tshepo meets another

woman and wants to divorce Nomsa.

(a) May Nomsa institute a divorce action in the Pretoria High Court? Fully explain.

(2)

Section 2(1) of the Divorce Act stipulates that the domicile or residence of “either”

spouse is sufficient to confer jurisdiction, even if the other spouse is domiciled or

resident outside the Republic. Therefore, a spouse who is domiciled or resident

outside the Republic and who has never had any personal links with the Republic

may, as a plaintiff, institute divorce proceedings in a particular court in South Africa

on the grounds that the other spouse resides or is domiciled within that court’s area.

Therefore, in terms of section 2(1) of the Divorce Act, Nomsa will be able to institute

divorce proceedings in the Pretoria High Court since Tshepo (the other spouse) has

been ordinarily resident within the court’s area for a period of over a year in terms of

section 2(1)(b) of the Divorce Act, and Pretoria is in the Republic.

(b) May Tshepo institute a divorce action in the Pretoria High Court? Fully

explain. (2)


jurisdiction, namely: *domicile & *residence, based on either section 2(1)(a) or section

2(1)(b) of the Divorce Act 70 of 1979 Section 2 provides that a court shall have

jurisdiction in a divorce action if the parties are, or either of the parties is domiciled

in the area of jurisdiction of the court on the date on which the action is instituted (s

2(1)(a)) or ordinarily resident in the area of the jurisdiction of the court on the said

date and have or has been ordinarily resident in the Republic for a period of not less

than one year immediately prior to that date (s 2(1)(b). On the given facts, Nomsa is

domiciled in Botswana. However, Tshepo was ordinarily resident in Pretoria (the

Republic) for a period of over a year (five years). Therefore, an action for divorce can be brought in the North Gauteng High Court,

Pretoria, and the plaintiff (Tshepo) ordinarily resides within its area of jurisdiction in

terms of section 2(1)(b).

(c) If it appears that Nomsa and Tshepo’s marriage is voidable because Nomsa was

a minor when she married, and her parents did not consent to the marriage, what

court may set aside the marriage? Fully explain. (5)

In an action where the annulment or dissolution of a voidable marriage is sought,

common-law rules apply since it does not fall within the scope of the definition of

divorce action. In terms of the common law, the court where the plaintiff or defendant

(or both parties) is/are domiciled at the time when nullity proceedings are instituted

will have jurisdiction forum loci celebrationis. On the given facts, the marriage was

entered into in Botswana and both parties are domiciled in Botswana. Therefore, the

Botswana High Court will be able to exercise jurisdiction for the annulment of the

voidable marriage. the declaration of nullity of marriages falls outside the scope of the

definition of divorce action. See the definition in section 1 of the Divorce Act, 1979.

Therefore, in terms of common law, only the domicile of the parties is taken into

account, and residence is not included.

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27. X has a claim against Z in the amount of R600 000 on the ground of

breach of contract which occurred in Cape Town. X is an incola of Cape Town

and Z is an incola of Pretoria. With these facts in mind, answer the following

questions. Give full reasons for your answers.

(a) Explain why X can institute proceedings against Z in the Cape Town High Court. (2)

In regard to a claim relating to a contract, the court in whose area of jurisdiction the

cause of action arose will have jurisdiction. In other words, the place where the

contract was concluded, breached, or was to be performed, will vest a court with

jurisdiction. This is known as the exercise of jurisdiction ratione contractus. (Under common law, this falls within the ambit of ratione rei gestae).

On the given facts, the cause of action arose in Cape Town and therefore the Cape

Town High Court will have jurisdiction ratione contractus. With contractual claims no

further requirement needs to be met before a court in whose area the cause of action

arose may exercise jurisdiction. In this instance, the cause of action arose when the

breach of contract occurred. Unless a claim relates to immovable property (exclusive

jurisdiction), one jurisdictional ground is not superior to another, and therefore, the

fact that ratione domicili does not apply here does not prevent the Cape Town High

Court from exercising jurisdiction

(b) If Z is on holiday in Durban for three weeks, may X issue summons out of the

Cape Town High Court, and have the summons served on Z while in Durban?

(3)

Section 42(2) of the Superior Courts Act, 2013 provides that a civil process of a

division runs throughout the Republic and may be served or executed within the

jurisdiction of any Division (Service thus need not only take place within the court’s

area of jurisdiction). This is a procedural enactment to make execution and service of

process more convenient. On the given facts, section 42(2) therefore enables X to

institute proceedings against Z in the Cape Town High Court and to have them served on Z in Durban (where he/she temporarily visits)

(c) Would your answer to (a) differ if Z was a peregrinus of the Republic and the

cause of action arose in Durban? (3)

Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a

South African court will exercise jurisdiction over such a person only after

attachment of his or her property has taken place, either in the form of attachment

ad fundandam jurisdictionem (requiring the plaintiff to be an incola of the court

concerned apart from the attachment) or attachment ad confirmandam

jurisdictionem (requiring the cause of action to have occurred within the particular

court’s area of jurisdiction apart from the attachment). On the given facts, the defendant is a peregrinus of the whole Republic. The High

Court in whose area of jurisdiction the cause of action (breach) occurred, will be able

to exercise jurisdiction ad confirmandam jurisdictionem, provided that the defendant

has attachable property within the Republic, especially within the particular court’s

area of jurisdiction. In this instance it is irrelevant whether the plaintiff is an incola

or peregrinus of the court.

193

Therefore, Durban High Court will have jurisdiction on the basis of attachment ad

confirmandum, provided there is an attachable property within the court’s area of

jurisdiction. Accordingly, the answer to (a) will differ as attachment of property takes

place, and the court will no longer have jurisdiction on the basis of common law rules

(ratione contractus), but of attachment ad confirmandam jurisdictionem. Although

the cause of action arose in the court’s area of jurisdiction, it only has partial

jurisdiction as we are dealing with a foreign peregrinus. It will thus not be competent

to exercise jurisdiction unless attachment (ad confirmandum jurisdictionem) has also

taken place. The attachment strengthens the partial or imperfect jurisdiction that the

court has by reason of the fact that the cause of action (the breach of contract) arose

within its area of jurisdiction

(d) Would your answer to (a) differ if the claim related to the registration of fixed

property, and the property was situated in Johannesburg? (2)

In regard to a claim relating to immovable property, the court where the immovable

property is situated has exclusive jurisdiction in actions to determine the title to


jurisdiction ratione rei sitae.

On the given facts, the property is situated in Johannesburg. Cape Town High Court

would therefore no longer have jurisdiction, as the court where the relevant

immovable property is located will have exclusive jurisdiction. X may institute

proceedings against Z in the Johannesburg High Court for the transfer and

registration of the house in Johannesburg ratione rei sitae.

28. B and D marry each other in Lesotho. Their communal home is in Lesotho

where both parties are domiciled. B, the husband, resides in Pretoria where he

has been working for over 10 years. The couple later decide to divorce. On the

basis of these facts, determine

(a) whether B may institute proceedings in the High Court, Pretoria (2)


jurisdiction, namely, * domicile OR * residence, based on either section 2(1)(a) or (b) of

the Divorce Act 70 of 1979

Section 2 of the Act provides that a court shall have jurisdiction in a divorce action if

the parties are or either of the parties is domiciled in the area of jurisdiction of the

court on the date on which the action is instituted (s 2(1)(a)) or ordinarily resident in

the area of the jurisdiction of the court on the said date and have or has been

ordinarily resident in the Republic for a period of not less than one year immediately

prior to that date (s 2(1)(b)). On the given facts, the parties are domiciled in Lesotho.

However, B is ordinarily resident within the North Gauteng High Court, Pretoria and

has been ordinarily resident in the Republic (Pretoria is in the Republic) for a period

of “not less than” one year (10 years). Therefore an action for divorce can be brought in the North Gauteng High Court,

Pretoria

(b) whether D may institute proceedings in the High Court, Pretoria (1)

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Section 2(1) of the Divorce Act, as mentioned above, stipulates that the domicile or

residence of “either” spouse is sufficient to confer jurisdiction, even if the other

spouse is domiciled or resident outside the Republic. Therefore a spouse who is

domiciled or resident outside the Republic and who has never had any personal links

with the Republic may, as a plaintiff, institute divorce proceedings in a particular

court in South Africa on the grounds that the other spouse resides or is domiciled

within that court’s area. Therefore, in terms of section 2(1) of the Act, D will be able to

institute divorce proceedings in the High Court, Pretoria, since B (the other spouse)

has been ordinarily resident within the court’s area and in the Republic for a period

of “not less than” one year in the Republic (Pretoria is in the Republic).

(c) whether D may institute proceedings in the High Court, Lesotho for the

declaration of nullity of the marriage. (2)

In terms of the common law, the court of the place where the marriage was entered

into or the court where the plaintiff or defendant (or both parties) is/are domiciled at

the time when nullity proceedings are instituted will have jurisdiction as forum loci

celebrationis. On the given facts, the marriage was entered into in Lesotho and both

parties are domiciled in Lesotho. Therefore D may institute the proceedings for the

declaration of nullity of the marriage in the High Court, Lesotho.

29. Explain what is meant by the term “jurisdiction”

By jurisdiction is meant the authority, which a court has to decide matters

that are litigated before it or to take cognisance of matters presented in a

formal way for decision. In the decision of (Ewing McDonald) and (M & M Products) the court defined

jurisdiction as follows: Jurisdiction means the power vested in a court to adjudicate upon, determine and

dispose of a matter. In both definitions, the following two requirements are emphasised:

1) The court must have the authority to hear the matter

2) The court must have the power to enforce its judgment

30. Explain what you understand by the term “inherent jurisdiction”

The superior courts are thus said to exercise an “inherent jurisdiction”. This means

that its jurisdiction is derived from common law and not from statute. An implication of this is that it has discretion in regard to its own procedure. Thus a

court may condone any procedural mistakes or determine any point of procedure. The Constitution, 1996, as amended by the CSAA (Constitution Seventeenth

Amendment Act), 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 Court of South Africa each has the inherent power to protect and regulate their

own process, and to develop the common law, taking into account the interests of

justice.

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MIXTURE OF JURISDICTION & PROCEDURE:

31. Q and R marry each other in Polokwane, Limpopo. Their communal home is

in Polokwane where both parties are domiciled. Q, the husband, moved to Lesotho

where he has been working for over 10 years. The couple later decide to divorce.

(a) May R institute divorce proceedings in the Limpopo Division, Polokwane?

Yes, the parties are domiciled in Limpopo; Polokwane. 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

(b) Name the service that R will employ for the summons to be served on Q.

Ordinary service, personal service for matrimonial summonses is preferred.

(c) May Q institute divorce proceedings in a SA court?

Yes! 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. Section 2(1) (a)

provides that, if both or either of the parties are domiciled within the area of a court,

such court will be competent to exercise divorce jurisdiction, irrespective of the period

of domicile. Section 2(1) (b), which require a period of residence of one year within the Republic

immediately prior to the institution of the action. Q is still domiciled in Limpopo and R

still lives there.

(d) Explain fully whether R may institute divorce proceedings in a district or

regional Magistrates’ court.

She can use either. Before the advent of the Jurisdiction of Regional Courts Amendment

Act 31 of 2008 (JRCAA), family disputes such as divorce and adoption matters were dealt

with exclusively by the High Court and the Central Divorce Court in Johannesburg. The JRCAA extends the jurisdiction of the regional courts to include civil disputes and

divorce matters, resulting in the merging of divorce courts and regional courts. The

JRCAA has also extended the divorce jurisdiction of regional magistrates’ courts by

repealing section 46(1) of the Magistrates’ Courts Act. Section 46(1) provided that a

magistrate’s court could not grant a divorce because a divorce affects the status of the

parties and status must be decided by the High Courts. Section 1 of the Divorce Act of 1979 has been amended to extend the definition of

“court” to include a reference to a regional magistrate’s court division. The jurisdiction of the regional magistrates’ courts in respect of divorce and related

matters is now as follows:

196

(a) Section 28(1A) of the Magistrates’ Courts Act provides that a regional magistrate’s

court shall have divorce jurisdiction over both or either party who is “(i) domiciled in the

court’s area of jurisdiction on the date on which the proceedings are instituted; or (ii) ordinarily resident in the court’s area of jurisdiction on the said date and has been

ordinarily resident in the Republic for a period of not less than one year immediately

prior to that date”.

(b) Section 29(1B)(a) of the Magistrates’ Courts Act provides that a regional division

shall have jurisdiction to determine actions relating to the nullity of a marriage and divorce,

as well as related matters. A regional magistrate’s court may also hear any matter provided

for in terms of the Recognition of Customary Marriages Act.

(c) In terms of section 29(1B)(b), a regional magistrate’s court hearing any of these

matters shall have the same jurisdiction as any High Court regarding such matter.

(e) Explain the difference between edictal citation service and substituted service.

Where a person is believed to be in the Republic, but service cannot be effected on him

in terms of the Rules of the court because it is not known precisely where such person

is to be found, an application may be made to the High court for leave to sue by

substituted service, and the court will then give directions as to how such service is to

be effected. Substituted service is an extraordinary method of service. It deviates from the normal method of service provided for in the Rules. Consequently,

an application to court must be made on notice of motion seeking the court’s

permission to serve the summons by means of substituted service, and requesting

the court to give directions as to how the summons must be served. The abbreviated summons must accompany the application for consideration thereof

by the court. On hearing the application, and on being satisfied that it is a proper case for

substituted service, the court will give direction as to how service is to be

effected, for example by publication in the government gazette. In CMC Woodworking Machinery the court gave leave for a notice to discover to be

served by way of substituted service, and that service be effected by way of a Facebook

message addressed to the defendant Edictal citation: Rule 5 prescribes how service must be affected on a defendant who

is, or is believed to be, outside the Republic. This is so even when his exact whereabouts are known and even when personal service

is possible. Such a person cannot be summonsed before our courts in any manner other than by

means of edictal citation.

The consent of the court must be obtained to serve: 1. any process or document which initiates proceedings, or

2. any process or document which does not initiate proceedings

32. M and N conclude a contract in Durban, N is to sell his car for an amount of

R400 000. M is a resident of Pretoria. According to the contract, N is supposed to

deliver the car to M in Pretoria and M is to make payment of the purchase price

upon delivery. N delivers the car and M fails to pay the agreed amount, N wants

to sue for the damages suffered in the amount of R400000.

197

(a) Explain whether or not the Durban Regional Magistrates’ court will have

jurisdiction to hear the matter.

No, the Durban court cannot have jurisdiction. One would have to apply s28(1)(d),

which is cause of action, but according to this section, the cause of action has to arise

“wholly”. In other words, if you want to rely on s 28(1)(d) for jurisdiction, then every

fact which your client must prove in order to succeed in his or her claim, must have

arisen within the district or regional division of the Magistrates’ Courts which you want

to institute action. It does not matter if certain pieces of the evidence, which are

necessary to prove those facts arose outside the district or regional division of the

particular Magistrates’ Court. Therefore, it is important to distinguish between:

1. The facts, which must be proved in order to constitute a valid cause of action.

In Latin, these are called the facta propanda; and

2. All the different bits of evidence that must be led to prove the facta propanda.

In Latin, these are called facta probantia. The contract was entered into in Durban, but it was to be performed and was breached

in Pretoria. Thus, the cause of action did not occur wholly as required, thus Durban

will not have J.

(b) Explain whether or not the Pretoria Regional Magistrates’ court will

have jurisdiction to hear the matter.

Section 28(1)(a): any person who resides, carries on business or is employed within the

district

a) Reside

b) Carries on business The business carried on must be one’s own business. An artificial person, such as a

corporation or company, carries on business in the place where its head office is

situated, although a large company may clearly carry on business in a number of

places simultaneously. c) Is employed A person who “is employed” does not “carry on business”. A

degree of permanent employment is required. d) Time at

which position is determined In (Mills) section 28(1)(a) was interpreted as follows: the date of service of the summons

and not its date of issue is the determining factor in establishing whether a defendant

was “employed within the district” of the magistrate’s court concerned. M resides in

Pretoria, and is our defendant. The Pretoria Regional Court has jurisdiction based on

s28(1)(a) (not on the fact that the contract was to be performed and was breached in

Pretoria).

(c) Z, a friend of M, undertook in writing to pay the said amount if M

was unable to do so. Name the pleading in which M must disclose this

fact, AND explain the manner in which M must disclose this in the said

pleading.

He would allege this in his plea on the merits. In the plea, the plaintiff’s factual

allegations are admitted, are denied, are placed in issue, or are confessed and

avoided, and all the material facts upon which the defendant relies are stated clearly

198

and concisely. It is also permissible, where the facts warrant it, for a defendant to

plead that he or she has no knowledge of a particular allegation and is not in a

position to admit or deny it (see Rule 22(2) and Rule 22(3)). Every factual allegation in

the declaration or particulars of claim that is not specifically denied or is not

admitted, is deemed to be admitted. Here, C will allege Z has undertaken to pay the

said amount, as a defence of “confess and avoid”.

MIXTURE OF JURISDICTION & PROCEDURE:

33. X is a Nigerian resident, he is invited to the Law Teacher Conference in Cape

Town. X whilst delivering his paper, defames Z, one of the well-known professors

in attendance of the conference. The statement is later published in a Sowetan

Newspaper in JHB. Z is very unhappy about the issue and wants to sue for

damages in the amount of R500 000. Z resides in PTA. X owns an Austin Martin

sedan parked at a hotel in Cape Town. (a) Explain what type of summons can Z

institute and why?

A combined summons would be used because the claim is based on an unliquidated

amount – damages due to delict. This form of summons is used where the plaintiff’s

claim is unliquidated. That is where it’s not a claim for a debt or liquidated demand. An unliquidated claim would therefore refer to any claim in respect of which the

quantum thereof must be determined (e.g. a claim for damages), or where the status of

the parties is affected (e.g. an action for divorce)

(b) Explain whether Z, can issue summons out of Gauteng Local Division, JHB and

have them served on X in Western Cape Division, Cape Town.

If the plaintiff, Z, is suing X, for making the defamatory statement (and not the Sowetan

newspaper) then he cannot issue out of Jhb, because the delict – the cause of action –

occurred in CT, where he actually made the defamatory statement about Z. Section

42(2) of the SCA provides that a civil process of a Division runs throughout the Republic

and may be served or executed within the jurisdiction of any Division. This means that the process issued by a particular court (eg. summons or notice of

motion) may be served within the jurisdiction of any division of the High Court in the

Republic. This also means that the judgment or order of a particular court is

enforceable within the jurisdiction of any division of the High Court in the Republic. The result is that even if a defendant or his property is situated outside the jurisdiction

of a particular court, that court is able to exercise control over the person or property

of the defendant, provided that he is an incola of South Africa. (c) Explain whether

Western Cape Division, Cape Town will have jurisdiction to hear the matter.

Cape Town will have jusisdiction - based on ratione rei gestae, and the claim is a claim

sounding in money. BUT the def is a foreign peregrinus (A peregrinus is a person who

is neither domiciled nor resident within that court’s area of jurisdiction). Where the

defendant is a foreign peregrinus and the cause of action arose within the area of the

court concerned: Where a defendant is a peregrinus of the whole of the Republic, a court will be

competent to exercise jurisdiction if the cause of action arose within its area of

jurisdiction, and if attachment of the defendant’s property has taken place. This is

known as attachment ad confirmandam jurisdictionem. Where a court exercises

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jurisdiction based on attachment ad confirmandam jurisdictionem, the nature of the

proceedings is irrelevant, provided that money is claimed. GROUNDS: the ratione contractus and the ratione delicti. It makes no difference to the above rules whether the plaintiff is an incola or peregrinus

of the court concerned!!! Attachment ad confirmandam jurisdictionem is permissible where • the defendant is

a peregrinus of the whole Republic; attachment of the defendant’s property has taken

place within the court’s area of jurisdiction & the cause of action has arisen within the

court’s area. The requirement is that the property must be situated within the

jurisdictional area of the particular court approached for the order. Regardless of

whether attachment ad fundandam jurisdictionem or ad confirmandam jurisdictionem

is sought, our contention is that the property in respect of which the attachment is

sought must be situated within the area of jurisdiction of the particular court

concerned (as required under common law). The FP’s car IS parked in CT, thus CT does

have J!

(d) If Z issues and files the wrong summons on X, what procedural step may X

take in these instances.

X can apply to have the summons set aside as an irregular proceeding, using an

interlocutory application. Where the party has taken an irregular step during the

course of litigation, Rule 30 provides the other party with a mechanism by means of

which the irregularity may be set aside or dealt with. Rule 30(2) states that an application to set aside an irregular proceeding shall be on

notice to all the parties specifying the particulars of the irregularity and made only if:

1. the applicant himself has not taken a further step with knowledge of the

irregularity

2. The applicant has within 10 days of becoming aware of the step by giving notice

to his opponent a chance to remove the complaint within 10 days and application

was delivered within 15 days.

MAGISTRATES COURT JURIDICTION:

A drives through a red traffic light and collides with B’s motor vehicle. B suffers

damages in the amount of R420 000. B lives and works in Johannesburg. A lives in Pretoria. B wishes to issue two summonses against A, one

for R280 000 for damages to the vehicle, and the other for R140 000 for medical

expenses.

(i) Will any regional magistrate’s court be competent to exercise jurisdiction? (3)

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 currently R200 000 and R400

000 respectively. 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. Also, B may not issue two summonses against A claiming damages and

medical expenses as separate claims, because both these claim arose from one cause of

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action, namely the motor vehicle accident. If B claims these amounts separately to

enable the regional court to have jurisdiction, it will amount to splitting of the claims

(which is prohibited). Consequently, no regional court is competent to exercise

jurisdiction

ii) Assume on the same facts, A owes B an amount of R20 000 for services rendered by

B to A, the amount which A admits. Will your answer in (i) differ? (2)

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 contained in 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).

B lives in Salt River, Cape Town. While in Johannesburg, B is involved in a motor

collision with M, who lives in Soweto. M wishes to claim damages of R110 000

from B, alleging that the motor collision was due solely to negligence on the part

of B. With these facts in mind, answer the following questions.

(a) Why does the magistrate’s court for the district of Cape Town have

jurisdiction? (3)

Section 28(1) (a) of the Magistrates’ Courts Act, 1944 (hereafter MCA) provides that a

magistrate’s court will be competent to exercise jurisdiction over any person who

“resides, carries on business or is employed” within the district or regional division.

Section 29 provides that the current limit is R200 000 in district magistrates’ courts.

On the given facts, the Cape Town district magistrate’s court will have jurisdiction in

the matter as the defendant (B) resides within its area of jurisdiction in terms of

section28(1)(a) of the MCA and the monetary claim falls within the district

magistrates’ court monetary jurisdictional limit of R200 000.

(b) Why does the magistrate’s court for the district of Johannesburg have

jurisdiction? (3)

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Section 28(1)(d) of the Magistrates’ Courts Act, provides that a magistrates’ court may

exercise jurisdiction if the “whole cause of action” arose within its district or regional

division. In this instances jurisdiction is determined by where the cause of action

arose and not where the defendant is found.

On the given facts, the “whole cause of action” arose in Johannesburg because that is

where the collision took place. The amount claimed falls within the district court’s

monetary jurisdictional limit in terms of section 29 of the MCA. Therefore, the

Johannesburg district magistrate’s court will have jurisdiction in terms of section

28(1)(d) of the MCA. The word “wholly” refers to the whole cause of action. This refers

to the entire set of facts giving rise to the enforceable claim and every material fact

the plaintiff has to prove in order to succeed in his/her claim (Abrahamse & Sons v

SAR & H 1933 CPD 626).

(c) Will a magistrate’s court be competent to exercise jurisdiction if, M, claimed

an amount R250 000 for damages to his motor vehicle? (3)

Section 29(1) of the MCA deals with limitations on the amount of the claim (monetary

jurisdictional limit). The monetary jurisdictional limit for the regional magistrate’s

court is R400 000.

On the given facts, either Johannesburg or Cape Town regional magistrate’s court will

be competent to exercise jurisdiction if M claimed an amount of R250 000 for the

damages of the motor vehicle.

T and D enter into a contract in Pretoria in terms of which T sells D a property in

a residential area in Johannesburg for R380 000. D intends building a house on

the property. In terms of the contract D undertakes to pay a deposit in two

instalments at T’s business premises in Krugersdorp. However, he pays the first

instalment, but fails to pay the second. Despite demand, D refuses to pay and T

wishes to institute proceedings against D. (a) Discuss whether any of the

magistrate’s courts in the areas mentioned above will have jurisdiction in the

action? (3)

Section 28(1)(d) of the MCA provides that a magistrate’s court may exercise

jurisdiction over any person, whether or not he or she resides, carries on business or

is employed within the district, if the cause of action arose wholly within the

particular jurisdictional area or district of the court. For the cause of action to have

arisen “wholly” in the particular jurisdictional area of district of a court, conclusion of

a contract and breach of contract must have occurred within the same jurisdictional

area. Section 28(1)(g) of the Act provides that a magistrate’s court will be competent

to exercise jurisdiction over any person who owns immovable property within the

court’s district/area, provided that such action relates to the property or is in respect

of a mortgage bond over such property. On the given facts, the contract (to purchase

a property) was concluded in Pretoria. However, the breach (failure to pay the

balance) occurred in Krugersdorp. Therefore, in terms of section 28(1)(d), neither the

Pretoria nor the Krugersdorp regional magistrate’s court where a part of the cause of

action arose will have jurisdiction. The action does not relate to the property in

Johannesburg, hence the Johannesburg regional magistrate’s court does not have

jurisdiction to hear the matter

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(b) Explain whether your answer in (a) will differ if the action was to compel T

to effect transfer of the property to D? (2)

Section 28(1)(g) of the Act provides that a magistrate’s court will be competent to

exercise jurisdiction over any person who owns immovable property within the court’s

district/area, provided that such action relates to the property or is in respect of a

mortgage bond over such property. On the given facts, the property is situated in

Johannesburg. Therefore, in an action to compel transfer of the property to D, the

magistrate’s court will now have jurisdiction since the matter relates to the property

situated in Johannesburg. However, with regard to Pretoria and Krugersdorp, the

answer in (a) above will remain the same.

(c) T’s defence to D’s claim in (b) above is that the court does not have

jurisdiction to hear the matter in terms of section 46 of the Magistrates’

Courts Act 32 of 1944. Fully advise D on the accuracy of this view. (3)

Section 46(2)(c)(ii) provides that a court shall have no jurisdiction in matters in which

specific performance is sought without an alternative of payment of damages, except

in the delivery or transfer of property, movable or immovable, not exceeding the value

of R400 000. On the given facts, to compel the effect of transfer of property is an

exception from specific performance. Therefore, the regional magistrate’s court in

Johannesburg will have jurisdiction to hear the matter to compel transfer of the

property to D.

N who lives in Johannesburg, buys a truck for R190 000 from T in Bloemfontein. T lives in Bloemfontein. N pays T R160 000 of the purchase price

and undertakes to pay the balance of R30 000 on delivery of the truck. T delivers

the truck to N’s home, but despite demand, N fails to pay the balance of the

purchase price. Will any magistrate’s court in all the centres mentioned above

have jurisdiction to hear an action instituted by T against N for the return of the

truck? Give full reasons for each answer.

Section 28(1)(a) of the Magistrates’ Courts Act, 1944 (MCA) provides that a

magistrate’s court will be competent to exercise jurisdiction over any person who

“resides, carries on business or is in the employ” within the court’s jurisdictional

area/district.

Section 28(1)(d) of the MCA provides that a magistrate’s court may exercise

jurisdiction over any person whether or not he resides, carries on business, or is

employed within the district if the cause of action arose wholly within the particular

jurisdictional area or district of the court. To have arisen “wholly”, conclusion of the

contract as well as breach of contract must have occurred within the same

jurisdictional area.

On the given facts, N “resides” in Johannesburg, the conclusion of the contract (to

purchase a truck) occurred in Bloemfontein and the breach occurred in

Johannesburg (failure to pay the balance).

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The Johannesburg district magistrate’s court will have jurisdiction in terms of section

28(1)(a) of the Act as N “resides” there. The court will not have jurisdiction in terms of

section 28(1)(d) as only breach of contract occurred there (thus not “whole” cause of

action).

The Bloemfontein district magistrate’s court does not have jurisdiction, as not only is

it irrelevant that T, the plaintiff lives there, but also as only conclusion of the contract

occurred there (thus also not “whole” cause of action). The Act (s 28) refers to “a

person”, it means the defendant only, not either of the parties. In other words, the

situation of the defendant, not the plaintiff, will give a court jurisdiction.

X is a designer. He lives in Benoni and owns immoveable property in Pretoria. X

designs a packaging machine for CK Perfumes (Pty) Ltd, which has its registered

office in Johannesburg, from where it also conducts business. In breach of the

guarantees given by X, the packaging machine in Johannesburg malfunctions. As

a direct consequence thereof, CK Perfumes suffers damages in an amount of R80

000.

Will a magistrate’s court be competent to exercise jurisdiction in each of the

instances mentioned below, if Sniff Perfumes institutes an action for damages in

an amount of R80 000? Give full reasons for each answer.

a) May CK Perfumes institute proceedings against X in the Benoni magistrate’s

court? (2)

Yes s28(1)(a) – residence of the def – discuss the whole section

b) Does the Pretoria magistrate’s court have jurisdiction? (2)

No, s28(1)(g) is used giving the court where the property is situated J only if the dispute

is about the property which this question is not.

c) Does the Johannesburg court have jurisdiction? (2)

No, the residence, place of employment or where the pl carries on business is irrelevant

for a claim sounding in $.

d) Will any magistrate’s court have jurisdiction to hear the action if the claim is

for R120 000? (6)

Yes, provided s38 or s39 is used by the pl – s38 abandonment of R20 000 = If court

finds amount due exceeds the limits but is not the full amount claimed the amount

that the plaintiff was unable to prove is deducted 1st from the amount which was

abandoned. Thus a plaintiff who abandons a portion of his claim will receive the

amount proved or the maximum amount the court can grant whichever is the LEAST!

S39 deduction of an admitted debt = the plaintiff who uses s39 will always be awarded

the amount proved in court less the amount due to defendant.

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e) If X prefers to have the action heard by a High Court, rather than a magistrate’s

court, is there anything he can do as defendant? (6)

S50 can be used. If a defendant wishes to exercise this option, an application must be

made to the court where summons has been issued. The defendant must state that: *The amount of the claim exceeds R7000 *The applicant objects to the matter being heard by any magistrate’s court *Notice of

intention to bring the application has been given to the plaintiff and other defendants,

if any *The applicant will furnish such security as the court determines, for payment of the

amount claimed and costs

Discuss the decision in Badenhorst v Theophanos 1988 in regard to the

competence of a magistrate’s court to grant an order for specific performance in

terms of section 46(2)(c) of the MCA 1944. (6)

In terms of section 30 of the Magistrates' Courts Act 32 of 1944 magistrates’ courts

may grant interdicts notwithstanding the provisions of section 46(2)(c), which prohibits

magistrates’ courts from granting orders for specific performance without an alternative

claim for damages. The competence of a magistrate’s court to grant an interdict in terms

of section 30(1) is subject to the jurisdictional limitations of the Act, namely sections

28 and 29. However, an application for a prohibitory interdict to enforce a restraint of trade clause

amounts to a request for the enforcement of a contractual obligation. An order so

granted would be regarded as an order ad factum praestandum and this in practice

amounts to an order for specific performance without an alternative claim for damages.

Such an order is contrary to the provisions of section 46(2)(c) and therefore beyond the

jurisdictional competence of a magistrate’s court (as interpreted in Badenhorst v

Theophanous). W enters into a contract with P to repair his motor vehicle but P fails to do so for

a period of four months. Discuss whether any district or regional magistrate’s

court will be competent to grant an order to force P to repair the motor vehicle.

The magistrates’ court has limitations when it comes to its jurisdiction. Section 46(2)(c)

of the Magistrates’ Courts Act, 1944 provides that a court shall have no jurisdiction in

matters in which specific performance is sought without an alternative claim for the

payment of damages except when claiming the --

(i) rendering of an account; or (ii) delivery or transfer of property, movable or immovable;

and (iii) delivery or transfer of property, movable or immovable, exceeding in value the

amount determined from time to time, where consent has been obtained in terms of

section 45.

The meaning of the phrase “specific performance” has been construed in case law

(Maisel and Tucker’s Land cases) to refer to the performance of an act that a person

has contractually undertaken to perform. On the given facts, the failure of P to perform

in terms of the contract (to repair W’s motor vehicle) renders the claim of W one for

specific performance. Therefore, either the district magistrates’ court or the regional

magistrates’ court can grant the order, provided W includes a claim for damages in

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the alternative. Otherwise, neither court will have jurisdiction and W will have to sue P

in the High Court.

HIGH COURT PROCEDURE:

1. Discuss representation by power of attorney, including when a power of

attorney is necessary and why a power of attorney is drawn up. (5)

Every natural person who is a party to civil proceedings is entitled to represent himself

personally. Such a person would usually instruct an attorney to act on his behalf. These

instructions are confirmed and specified in a document known as a power of attorney.

A power of attorney is a written document in which an agent is given the authority to

act on behalf of his principal either in a specified situation or to act on behalf of such

principal in respect of all actions which the principal could perform himself. A client

may terminate his mandate to an attorney at any time, but an attorney may, after

accepting a client’s brief, withdraw only with sound reasons. When is a power of attorney required in litigation? There is no need for a power of

attorney for issuing a summons or a notice of intention to defend, but is required to

conduct or defend a civil appeal. The rules of the Supreme Court provide that a power

of attorney need not be filed with the registrar unless the authority of a legal

practitioner to act on behalf of a party is disputed. Why is a power of attorney drawn up? A carefully drawn up power of attorney is

essential for the protection of both the attorney and the client, and to determine the

extent of the attorney’s brief. Therefore, there should always be a power of attorney

kept on the client’s file. The power of attorney generally contains details of the action

to be instituted and of the relief to be claimed. The client does not wish to be involved, unknowingly or unwillingly, in expensive

litigation, or in an appeal, which he never contemplated. On the other hand, the attorney is entitled to protection as far as his own costs are

concerned. Should the attorney conduct litigation without the authority of the client,

he will not be entitled to recover the costs incurred from his client, since there is no

contractual relationship will exist.

2. Discuss the differences between the special plea and the exception. (4)

Difference between the special plea and the exception An exception is limited to an attack on the allegations in the pleading as a whole, on

the assumption that such allegations are true. 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. It differs from an exception in 2 aspects. 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)

3. State the various ways in which evidence may be placed before the trial court.

(6)

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Unless special circumstances exist, a witness must give evidence viva voce and in open

court. If a person is within the republic, such person can be compelled to attend any high

court in the republic by using a subpoena from the office of the registrar and by having

it served on the witness required by the sheriff. Where a witness is required by a

subpoena to make available at the trial a document, instrument or object, which is in

his possession, such a subpoena is termed a subpoena duces tecum. If a witness cannot give evidence in person, and if the necessary circumstances are

present, he may be allowed to give evidence in the following ways:

o on commission o by way of interrogatories

o Interrogatories differ from commissions in that, while in the latter case

evidence is given generally, in the former case specific evidence only is taken

and for this purpose specific questions are formulated which must be put to

the witness by the commissioner.


The courts are reluctant to grant such leave, and are usually disposed to do so only

when the evidence so required is of a formal nature. Rule 38(2) states The witness at the trial of any action shall be examined viva voce but the court can for

sufficient reasons order evidence to be given on affidavit (unless the witness is needed

for cross-examination). 4. Indicate what is meant by “sound reasons” in regard to setting aside an order

for default judgment. (3)





5. Betty wishes to sue her husband, Koos, for a divorce in a High Court.

a) (i) Why is it appropriate for Betty to issue a combined summons in this instance?

(2)

A combined summons is used for divorce and damages. A simple summons is only used

when the claim is for a debt or liquidated demand. Thus, here, there is a divorce and the

claim will thus be unliquidated (which means the judge decides on the amounts claimed in

the court) and is not a liquidated claim where one would have to use a simple summons.

(ii) Name the usual processes and pleadings that will be exchanged between the parties

if the action is opposed. (4)

The plaintiff sends the summons attached with the POC. The defendant sends his NOITD

within the dies induciae. The defendant then sends the plea on the merits which answers

the POC (within the dies induciae). If a new matter is raised in the plea, the plaintiff can

respond with a replication.

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b) Koos, the husband, has always refused to settle down in any one place and prefers

to travel around South Africa doing odd jobs and selling homemade pizza. Briefly

identify and discuss the procedure that Betty will have to follow to effect service of

summons upon Koos under these circumstances. (4)

Plaintiff will have to apply for substituted service. Where a person is believed to be in the

Republic, but service cannot be effected on him in terms of the Rules of the court because it

is not known precisely where such person is to be found, an application may be made to the

High court for leave to sue by substituted service, and the court will then give directions as

to how such service is to be effected. Substituted service is an extraordinary method of service. It deviates from the normal method of service provided for in the Rules. Consequently, an application to court must be made on notice of motion seeking the court’s

permission to serve the summons by means of substituted service, and requesting the court

to give directions as to how the summons must be served. The abbreviated summons must

accompany the application for consideration thereof by the court. On hearing the application, and on being satisfied that it is a proper case for substituted

service, the court will give direction as to how service is to be effected, for example by

publication in the government gazette.

(c) Koos fears that Betty may leave the country, taking their two minor children with

him. Koos approaches the court for a temporary interdict to prevent such an

occurrence.

(i) Name the type of proceedings that Koos would use to obtain the interdict. (1)

Ordinary application. Notice of motion attached with an affidavit.

(ii) Name the documents that the parties must exchange if B opposes the

proceedings. (5)

Applicant sends a NOM and supporting affidavit. Respondent sends an answering affidavit to

the supporting affidavit. The applicant can answer with a replying affidavit. The court, in its

discretion can allow the filing of more affidavits upon application.

6. Cammy issues and serves summons in a High Court against Dodgy for Dodge’s

ejectment from certain property owned by Cammy. With these facts in mind, point

out on the correctness of the procedure followed. Give reasons for your answers and

where necessary, state what the correct procedure should be and why.

(a) Although Dodge fails to serve and file a notice of intention to defend within the

stipulated dies induciae, Cammy serves and files his particulars of claim. (5)

This step is incorrect. The type of claim above is for a debt or liquidated demand (ejectment)

and thus a simple summons must be issued to the defendant and not a combined

summons. A POC is only attached to a combined summons and thus Cammy serving and

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filing his POC is incorrect. If the defendant fails to send his NOITD within the dies induciae,

the plaintiff should apply for default judgement.

(b) Dodge reacts to the summons by serving and filing a notice of intention to defend

outside the stipulated dies induciae. Cammy immediately responds by claiming

Dodge has ipso fact (automatically) been barred from delivering the notice of intention to defend. (6)

The defendant can serve and file his NOITD outside the dies induciae provided its within 20 days of the summons being served, that he pays the plaintiffs costs for the application for

DJ and that the NOITD was notes before default JUDGEMENT was granted. The court may

then allow the filing of the late NOTID. The plaintiff may then apply to have the NOITD set

aside as an irregular proceeding.

(c) Dodge reacts to the summons by serving and filing a notice of intention to defend

within the stipulated dies induciae. Cammy reacts by applying for default judgment. (4)

This step is incorrect as the plaintiff may only apply for DJ if the NOITD has not been received within the dies induciae or is late. The defendant sent his NOITD

on time. Thus, the next correct step would be for the plaintiff to send his declaration.

(d) The matter proceeds to the trial phase. After close of pleadings and for purposes of

shortening the trial, Cammy requests Dodge to make discovery in terms of Rule 35 of

the Uniform Rules of Court of all documents pertaining to the action. Discuss discovery briefly. (3)

Discovery may not be requested until after the close of pleadings. The purpose is to ascertain from other parties what documents and tape recordings are in

existence, which might be relevant to the action. This enables a party to prepare fully and

properly for trial and prevents him from being taken by surprise. Discovery is obtained by written notice addressed to any party to the action to make

discovery under oath within 20 days of such request. Discovery related to all documents

relevant to any matter in dispute in the action which are, or have at any time been, in the

possession or under the control of such other party. Discovery must be made within 20

days, and is made by disclosing the necessary information in an affidavit – known as a

discovery affidavit. In this discovery affidavit the party making the discovery must set out

(1) those documents relating to the matter in dispute in the action which are in his

possession or under his control

(2) those documents, although relating to the matters in dispute in the action and being in

the party’s control or possession, the party objects to producing, and the reasons for such

objection must be stated

(3) those documents which he had in his possession or which were under his control, but

which he does not now have in his possession or which are now not under his control. Such

party must also state when such documents were last in his possession or under his

control, and where such documents now are. A party may validly object to the discovery of a document if he is able to claim privilege for its

contents. Examples are incriminating documents, or documents, which affect the security of the state.

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7. S issues a simple summons against T in which a decree of divorce is requested. With

these facts in mind, answer the following questions, giving reasons for each answer.

(8)

(i) If T is of the opinion that the incorrect form of summons has been used, can T make use of any procedure to correct the situation? (2)

An application to set aside the summons as an irregular proceeding is the correct step to take.

(ii) When does the period commence within which the applicant must act?(4)

The period within which the applicant must act commences as soon as a party takes notice

that a step has been taken or that a proceeding has occurred, and not once the irregularity

thereof has come to his notice.

(iii) If T files a notice of intention to defend prior to the taking of other steps, will

this prevent him from using the procedure you have referred to in your answer (i) above? (2)

No, as the NOITD is not deemed to be a further step. A further step would therefore include

the next sequential exchange of pleadings and any objection to the content of a pleading. It would not include the filling of a notice of intention to defend. The courts have held that this is merely an act done to enable the defendant to put forward

his defence.

(iv) What form of proceeding must T use in order to approach the court for relief? (2)

Rule 30(2) provides that an application in terms of this Rule must be accompanied by

notice to all parties. Such an application is naturally also interlocutory in nature.

8. Zola wishes to obtain a divorce from her husband Venesh. Merely state the

correct answer to each of the questions that follow. You must not give reasons

for your answers.

(a) What pleading must be attached to the summons? (1) POC

(b) What form of service is necessary to serve the summons on Venesh who is at a

known address in South Africa? (1) Normal / ordinary service

(c) What form of service is necessary if venesh is living overseas at the time when summons is issued? (1)

Edictal citation

(d) What form of proceedings must Zola follow to obtain permission to use the form

of service referred to in (c) above? (1) Application proceedings, ex parte

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(e) What is the first document that Venesh must file if he wishes to oppose the divorce action? (1)

NOITD

(f) What step must Zola take if Venesh files the document referred to in (e) above but fails to file a plea? (1)

NOB-send the defendant a notice that if he does not send the relevant doc within 5

days, he will apply for DJ

(g) What further step may Zola take if Venesh still fails to respond to the document referred to in (f) above? (1)

Apply for DJ

(h) What procedure should be used if the name of one of the minor children is stated incorrectly in the plea? (1)

Notice of intention to amend

(i) Which party is responsible for using the procedure referred to in (h) above?

(1) Defendant

(j) What procedure can Zola use if Venesh files a plea that contains vexatious statements about Zola? (1)

Strike out

(k) What pleading can Venesh use if he has already issued summons in another

court in which he has instituted divorce proceedings against Zola? (2)

Special plea, dilatory, lis pendens

(l) What pleading can Zola file if Venesh raises new matter in is plea? (1) Replication

(m) What may Zola do immediately after pleadings have closed to ensure a speedy allocation of trial date? (1)

Set down

(n) What procedural step can Zola take, after close of pleadings, if she feels

that the pleadings contain insufficient information to enable her to prepare

for trial? (1) Request for further particulars

(o) What proceeding are Venesh and Zola compelled to arrange and attend

before the trial in order to attempt to shorten the trial (1) Pre

trial conference

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9. D and F enter into a lease agreement, whereby D leases a portion of his farm to

F. However, after the lease is signed, F refuses to pay the rent since D refuses to

give F access to the rented portion of his farm. F contends that the lease

agreement is subject to a servitude of a right of way, which D denies. Determine

the type of proceedings that F should use in order to approach the court. (6)

There is a dispute of fact in this question and thus when there is a dispute of fact, the

correct proceedings to use is an action proceeding. An application by means of a notice

of motion may be made if (1) there is no real dispute over any fundamental question of

facts or (2) if there is such dispute, it can nevertheless be decided without the necessity

of oral evidence.


1. respondent denies material allegations made by the deponents on the applicants

behalf, and produces positive evidence by deponents to the contrary 2. respondent

admits the allegations contained in the applicants affidavit, but alleges other facts which

the applicants disputes

3. respondent concedes that he/she has no knowledge of the main facts stated by the

applicant, but may deny them, putting applicant to the proof and himself/herself giving,

or proposing to give, evidence to show that the applicant and his/her deponents are

biased and untruthful, or otherwise unreliable, and that certain facts upon which the

applicant and his/her deponents rely to prove the main facts are untrue. A dispute of fact does not arise were the respondent merely states that he disputes the truth

of the applicants statement, but offers no evidential reply to them. In other words, where there is bare denial. A real dispute has to occur Mere fact that the parties are not in agreement on all the facts does not mean that a

real dispute has occurred. Thus, an action proceeding is applicable.

10. X consults with you in regards to a cheque he received from his bank marked

“return to drawer” because there were insufficient funds in Y’s current account.

During the consultation you learn that X had sold computers to the value of R500

000 to Y and that X needs to recover the money urgently from Y in order to finance

other transactions. With these facts in mind:

i. Determine whether you could commence proceedings by means of either a simple

summons or a provisional sentence summons; (3)

X could commence proceedings using either simple summons proceedings or provisional

sentence summons proceedings as both may be used regarding a claim based on a liquid

document – simple summons is used for a debt or liquidated demand (which a cheque

is) and the PSS is used for a claim where a plaintiff is armed with a liquid document.

The PSS procedure is quicker and easier for the plaintiff to use as its a provisional sentence and he gets his claim paid once he has paid in to

court security de restituendo.

ii. Explain the implications for your client in regard to the use of the simple

summons; (4) A simple summons is issued in respect of a liquidated claim, it is not accompanied by any

other document setting out the details of the claim. The amount and the nature of the claim are set out in the summons.

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In the case of a simple summons, the defendant has formally indicated that he intends to

defend the action. The plaintiff files his declaration only at this stage. Before a plaintiff delivers a

declaration, he will consider whether or not to apply for summary judgment. Where such

an application is unsuccessful, or where the application is abandoned, a declaration

must be delivered. Once the summons has been served and, the defendant wishes to

defend the action, he must, within the stipulated time in the summons, deliver and file

a notice of intention to defend. (If the plaintiff has filed a simple summons, he will now file his declaration). Thereafter, the defendant must raise his defence by filing his plea on the merits.

Alternatively, the defendant may raise a special plea to object to an issue not

apparent in the plaintiff’s declaration or particular of claim, as the case may be. The defendant may, together with his pleadings, file a counterclaim. By means of the counterclaim, the claim in reconvention is introduced. The

pleadings in reconvention are usually filed with the pleadings in convention which

might follow. The plaintiff (now defendant in reconvention) responds to the defendant’s (now

plaintiff in reconvention) counterclaim by means of a plea in reconvention. Usually,

the pleadings close after the defendant’s plea has been delivered and filed, but this

need not necessarily be the case. Plaintiff could respond to the defendant’s plea by means of a replication. If the

issues are not joined hereby, the defendant may reply to the replication by means of

a rejoinder. The matter is than set down for trail and the pre-trail preparation stage commences. In

the normal course of pleadings, certain irregularities might need to be corrected,

rectified or be objected to in this respect. Prior to the trail stage, it is possible to obtain a judgment known as a pre-trail judgment. Should the defendant not file a notice of intention to defend or a plea, as the case may

be, timeously, the plaintiff may apply for default judgment to be granted against the

defendant. If the defendant has in fact filed a notice of intention to defend but has no bona fide

defence and has done so merely to delay proceedings, the plaintiff may apply for

summary judgment. When the plaintiff has failed to deliver timeously his declaration

and has been barred from doing so, the defendant may have the matter set down for

hearing; the court may grant absolution from the instance, or make any order it deems

fit. Lastly, the defendant may consent to judgment. This is a long, protracted expensive

method of obtaining a claim.

iii. Explain the implications for your client in regard to the use of the provisional

sentence summons. (5)

Provisional sentence summons is an extraordinary procedure. The exceptional nature of this procedure lies in the fact that it could be decided before

trail, and the court is concerned with only prima facie proof. Therefore judgment is given on the assumption that the documents submitted are

genuine and valid.

It accelerates the procedure for granting judgment – although such judgment is

provisional – and entitles a successful plaintiff to execute the judgment immediately,

subject to giving the defendant the necessary security de restituendo. Thus it provides

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the creditor who has sufficient documentary proof (i.e. a liquid document) with a reedy

for recovering his money without it being necessary to resort to the more cumbersome,

more expensive and frequently protracted illiquid summons proceedings. The plaintiff is of right entitled to payment, or, failing such payment, to take out a writ

of execution against the defendant’s property under security de restituendo. Security de

restituendo is the security which the plaintiff must give for the restitution of the money

he has received from the defendant in terms of the judgment in the event of defendant

defending and succeeding in the main case. The judgment is provisional. The defendant

may still defend the main trail, but only within 2 months of the granting of provisional

sentence, and then only if he has paid the judgment debt and costs. A defendant who may and who wishes to enter into the principle case must deliver notice

of his intention to do so within 2 months after provisional sentence has been granted,

in which case the summons will be deemed to be a combined summons on which the

defendant must deliver a plea within 10 days. In default of such notice or plea, the

provisional sentence automatically becomes a final judgment and the security given by

the plaintiff falls away.

11. Determine whether the following are pleadings or process documents -

i) A combined summons (2)

Both a pleading (POC attached to the CS) and a process (the summons).

ii) A declaration (2)

A pleading. This is a written document containing averments by the parties to an action

in which the material facts on which they rely in support of their claim or defence are

concisely set out, and which is exchanged between such parties.

12. C issues a summons against D for damages arising out of a breach of contract.

With these facts in mind answer the following questions:

(i) Name the procedure that D must follow if C issues a simple summons

against D. (1)

Application to have it set aside as an irregular proceeding. Interlocutory

application – notice and SA.

(ii) Discuss briefly the period within which D must commence the

procedure identified in (i) above. (3)

The period within which the applicant must act commences as soon as a party takes

notice that a step has been taken or that a proceeding has occurred, and not once the

irregularity thereof has come to his notice.

(iii) Name the type of proceedings that D must follow. (1)

Application proceeding, interlocutory, notice and supporting affidavit, notice to other

side.

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(iv) Briefly explain why D acts correctly be serving and filing a notice of

intention to defend, despite the procedure that is followed in (i) above.

(3)

Filing and serving the NOITD is not deemed to be a “further step”. A further step would

therefore include the next sequential exchange of pleadings and any objection to the

content of a pleading. It would not include the filling of a notice of intention to defend.

The courts have held that this is merely an act done to enable the defendant to put

forward his defence. Rule 30(2) provides that an application in terms of this Rule must

be accompanied by notice to all parties. Such an application is interlocutory in nature. Rule 30(4) provides that, until the party

against whom the order was made has complied with it, he may take no further steps

in the main action.

(v) Name the orders that a court may make. (2)

That notice or request be complied with, or that the claim or defence be struck off. The court

may, in its discretion, grant such an order. 13. B issues a combined summons against C for damages arising from a breach of

contract. C responds with a notice of intention to defend, and hereafter files a

plea on the merits. Answer the following questions.

(i) If C wishes to file a counterclaim, state briefly when and how C may do so. (2)

He may do so after he has sent his NOTID and along with his plea on the merits. Rule

24(1) states that a defendant who counterclaims shall together with his plea, deliver a

claim in reconvention setting out the material facts thereof. A claim in reconvention shall

be set out in a separate document or a portion of the document containing the plea but

headed ‘claim in reconvention’. This rule further provides that a defendant may, together

with his plea, or at a latter stage with the leave of the plaintiff, or if refused, the court,

deliver a claim against the plaintiff. This is known as a counterclaim

(ii) Name the pleading that B should file if B is of the opinion that C’s plea on the

merits does not disclose a defence. (1)

Special plea

(iii) Name the procedure that B must follow if B believes that C is in possession

of a tape recording of the negotiations between B and C, which give rise to

the conclusion of the contract. (1)

Inspection Rule 35(14)

(iv) B’s action is unsuccessful, and the court awards costs to the defendant, C.

Name the type of cost order that will be awarded. (1)


14. X leases a flat to Y. Y’s contract has expired, but Y refuses to vacate the flat.

X approaches the court for an ejectment order. Answer the following questions.

(i) Name the type of summons that X should use to obtain the above order. (1)

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Simple summons – this is deemed a “debt or liquidated demand” and can comprise of

ejectment, delivery, transfer, rendering of an account or cancelling of a contract.

(ii) Y Gives notice of intention to defend. Name the procedure that X may now

use. (1)

X may apply to court for summary judgement as Y giving his NOITD is to waste time

/ he has no bona fide defence – his contract of lease expired and thus the ejectment

order is justified as he cant defend it – it expired. Rule 32(1) states: Where a

defendant has delivered a NOITD, the plaintiff can apply to court for summary

judgment, only if the summons is on a liquid document or for a liquidated amount in

money, for delivery of movable property or ejectment. Thus, it should be clear that

an application for summary judgment may follow only from a simple summons.

(ii) Explain what action Y, the defendant, may take in response to the

procedure mentioned in (ii) above. (3)

Rule 32(3) states Upon hearing the application for summary judgment, the defendant may:


(b) Satisfy the court by affidavit, to swear he has bona fide defence and the affidavit

will disclose the nature and grounds of the defence and the material facts relied

upon. Although the plaintiff is not permitted to include evidence in support of his claim in the

affidavit, the defendant must fully disclose the nature and grounds of his defence. The reason for this is related to the nature of the claim, which, in turn, results in the

fact that the court grants summary judgment on the assumption that the plaintiff’s

claim is unimpeachable. Consequently, the defendant must convince the court that this is not the case.

15. B issues summons against C for R300 000 for defamation. Answer the following

questions.

(i) Name the procedure that C must follow if B issues a simple summons against C. (1)

Application to have it set down as an irregular proceeding.

(ii) Discuss briefly the time period within which C must institute the procedure

referred to in (i) above. (3)

The period within which the applicant must act commences as soon as a party takes

notice that a step has been taken or that a proceeding has occurred, and not once the

irregularity thereof has come to his notice, the applicant himself has not taken a further

step with knowledge of the irregularity The applicant has within 10 days of becoming aware of the step by giving notice to his

opponent a chance to remove the complaint within 10 days and application was

delivered within 15 days.

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(iii) Name the correct type of summons that B should have used to institute the

action and give the reason for your answer. (2)

B should have used a combined summons, as this is a claim for damages, which is

unquantified and needs to be quantified by the court.

(iv) Indicate what procedure B must follow if C fails to file her plea on the merits within

the dies induciae, and B wishes to obtain judgment against C. (3)

B has to send C a NOB giving him 5 days in which to send his plea, thereafter if he does

not do so, apply for default judgement. He must send a NOB first as the late document

is a pleading. (v) Name the pleading that C will deliver if she is of the opinion that the court does not

have jurisdiction to hear the matter. (1)

Special plea, plea in abatement, destroys the case – plea in bar

16. Name the ways in which evidence may be placed before the trial court (4)

o Viva voce, that is, oral presentation of evidence; o On

commission (commission de bene esse) o By way of

interrogatories;

o By way of an affidavit

17. Briefly indicate the requirements which an offer to settle must meet in terms of

Rule 34(5) of the Uniform Rule of Court. (4)

The notice of an offer to settle must state:

o If the offer is unconditional or without prejudice as an offer to settle; o If it is

accompanied by an offer to pay all or only part of the costs of the party to whom the

offer is made, subject to such conditions as may be stated therein;

o If the offer is made by way of settlement of both claim and costs or of the claim only;

o If the defendant disclaim liability for the payment of costs or for part thereof, in which

case the reasons for such disclaimer shall be given.

18. Explain fully whether a subpoena is a pleading or a process. (5)

A ‘pleading’ is a written document containing averments by parties to an action in which

material facts on which they rely in support of their claim or defence are consciously set

out, and which is exchanged between such parties. A ‘process’ on the other hand has

been interpreted by the court in Dorfman as “something which ‘proceeds’ from the court;

some step in legal proceedings which can only be taken with the aid of the court or of

one of the officers.”. A subpoena is clearly process and not a pleading. It is a step in legal

proceedings which compels the witness to present himself or herself at a civil trial.

Frank is a registered bus operator and the owner of a double-decker bus. One

Friday afternoon while transporting a full load of passengers in his bus,

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Frank causes an accident with another bus. The driver of the other vehicle,

Kobus, is seriously injured while Frank’s passengers mostly suffer damages due

to the loss of or damage to their property (such as clothes, suitcases and

groceries).

(a) A panel beater furnishes Kobus with a written quotation for the repair of his

bus in the amount of R140 000. Kobus is satisfied that the quotation is complete

and indicates this by signing the quotation. If Frank refuses to pay this amount

to Kobus, indicate why a provisional sentence summons is not the appropriate

summons with which to institute an action against Frank. (3)

The amount in now in dispute and is not liquidated, thus the combined summons

route is needed.

(b) Simply name the procedure that Kobus must follow if he sues Frank for

damages due to physical injuries and he requires financial assistance as a result of the drawn out litigation process. (1)

Application for interim payments

(c) Kobus does not aver in his summons that the collision was due solely to the

negligence of Frank. Briefly explain what Frank should do in these circumstances. (2)

Apply for an exception to Kobus’ summons as the POC thus did not contain a cause of

action.

(d) If Frank decides to defend the action and delivers a notice of intention to

defend, can Kobus apply for summary judgment? Explain. (2)

Summary judgement may only be applied for when a claim is for a debt / liquidated

demand and thus for simple summons proceedings. Kobus issued a combined

summons for damages and can thus not apply for SJ.

(e) Frank wishes to deliver a special plea. Explain what the implications are for

Frank if he does not also deliver a plea on the merits. (2)

A plea on the merits is compulsory once the NOTID has been served. If he does not

send this plea within the dies induciae, the plaintiff can serve a NOB on defendant

giving him 5 days in which to send it, if he does not in that time, DJ will be granted

against def.

(f) Kobus intends calling the panel beater as an expert witness to prove the

damages. Briefly indicate the purpose of the notice and the summary in respect

of this expert witness in terms of Rule 36(10) of the Uniform Rules of Court. (3)

The purpose of the abovementioned provisions relating to expert evidence is to prevent

a party from being surprised at the trial, and to give a party the opportunity of arriving

in court prepared to rebut the expert evidence presented by the opposite party.

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If the expert witnesses themselves get together to exchange opinions, this could shorten

the duration of the trial.

(g) It transpires that one of Kobus’ key witnesses cannot attend the trial to deliver

oral evidence. Simply name the 3 ways in which such a witness may be allowed to present evidence. (3)

If a witness cannot give evidence in person, and if the necessary circumstances are

present, he may be allowed to give evidence in the following ways: o on

commission

o by way of interrogatories (Interrogatories differ from commissions in that, while in the latter case evidence is

given generally, in the former case specific evidence only is taken and for this purpose

specific questions are formulated which must be put to the witness by the

commissioner.)


(h) Kobus insists that his advocate asks the court at the end of the trial for a cost

order in his favour on the attorney and client scale. However, his advocate is of

the opinion that an order based on the party-and-party scale is more appropriate.

Briefly discuss 2 important aspects in which attorney-and- client costs and party-

and-party costs differ from each other. (4)

Attorney and client costs arise out of the contractual relationship between client and

attorney and are not at all related to possible litigation. Party and party costs, however,

are those costs which a party incurs on taking legal steps and which are payable by an

opposing party in terms of a court order. However, these costs are only estimated costs

and expenses, while attorney and client costs are remuneration for all professional

services and expenses flowing from the attorney's mandate and are not statutorily fixed.

Party and party costs are taxed by the Taxing Master in accordance with a fixed

prescribed scale, thus ensuring that only such charges and costs actually incurred in

the course of litigation are allowed. Attorney and client costs are a form of punitive

measure for improper behaviour.

20. Discuss the method of service of a summons where the defendant is within

the Republic, but his or her exact whereabouts are unknown. (5)

Substituted service is necessary, permission from the court is needed via ex parte

application, and service of the summons will be made on a relative, publication in the

Government Gazette, registered mail or a combination of the abovementioned.

21. In terms of an order of divorce, custody of three minor children has been

awarded to the wife, Ann Marie. For three years after the divorce, the divorced couple

live in JHB. Ann Marie now wishes to relocate to Cape Town but does not inform her

ex husband of the fact. The ex husband, Peter, hears about the impending move two

days before the time. The move to CT infringes directly on Peter’s rights of access

to the minor children in terms of the order for divorce.

In regard to the above facts, answer the following questions. Give full reasons for

each answer.

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(a) Name the type of proceedings that Peter must use to uphold his rights of access

to the minor children. (2)

Application proceedings, ordinary application Form 2(a), NOM and supporting affidavit.

(b) Explain why must Peter use the proceedings identified in (a) above. (2)

There is no dispute of fact, thus no need for action proceedings. Application proceedings

are applicable, the application proceeding is relevant with notice to the other party

(side), ordinary.

(c) Name and describe the document that Peter must use to commence

proceedings. (2)

Notice of motion - applicant shall appoint a physical address within 15 kilometres of

the office of the registrar of the court at which notice and service of all documents in

the proceedings will be accepted. It shall also state the applicant’s postal, facsimile or

electronic mail addresses, the day on or before which the respondent must notify the

applicant of his or her intention to oppose the application, as well as the day on which

the matter will be set down for hearing if no such notice is given.

(d) Name and describe the document that Peter must attach to the document

indentified in (c) above. (2)

Supporting affidavit – it contains the facts upon which the application rests.

(e) If Ann Marie opposes Peter’s application, name and describe the documents

that must be exchanged between the parties. (4)

1. The supporting affidavit of the applicant, which is attached to the notice of motion.

2. The answering affidavit by the respondent. In this affidavit, the respondent,

supported in so far as may be necessary by other affidavits, deals paragraph by

paragraph with the allegations and evidence contained in the supporting affidavit.

3. The replying affidavit by the applicant, in which the applicant deals paragraph by

paragraph, in so far as may be necessary, with the allegations and evidence

contained in the respondent's answering affidavit.

(f) Explain what a court may do at the hearing if a dispute arises between Ann

Marie and Peter, which cannot be resolved without the hearing of viva voce

evidence. (2)

Where a genuine dispute of fact arises which cannot be settled without a hearing of

viva voce evidence, the court hearing the motion proceedings may



3. Order the parties to trial with appropriate directions as to the pleadings, the

definition of issues, etc.

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22. X brings an application in terms of which he applies for the sequestration of

Y’s estate. In his supporting affidavit X avers, inter alia, that Y is a liar and a

cheat.

i. Indicate which type of application should be used to institute court proceedings and give reasons for your answer. (2)

Ordinary application, notice to other side, no dispute of fact.

ii. Indicate how Y will receive notice of X’s application. (1)

Notice of the application is served on him after it has been issued, that is, a copy of the

application is handed to him.

iii. Explain what Y can do if he is dissatisfied with the personal nature of

the remarks made about him in the supporting affidavit. (1)

Motion to strike out

iv. Explain fully the nature of the procedure referred to in (iii) above. (3)

Such application is brought by means of notice of motion, upon proper notice to the

other side – ordinary application, NOM and SA.

23. While overseas on a world cruise, judgment by default is granted against

Xandie in the Pretoria High Court. Upon her return to South Africa, Xandie learns

that the plaintiff also applied for a writ of execution. Xandie approaches you for

advice and alleges that the summons was never served on her, that for the past

six months she was overseas and that the plaintiff was aware of this fact, because

before her departure she arranged with the plaintiff to pay him the amount owing

within seven days after her return. i. Advise Xandie on what to do in these

circumstances? (4)

Application to have the DJ set aside.Ito Rule 31(2)(b) a defendant may, within 20 days

after he has knowledge of a default judgment, apply to court to set aside such judgment. The court has a discretion whether or not to set aside a judgment. The defendant must also advance sound reasons for the failure concerned

ii. Indicate briefly how the courts interpret the expression “sound reasons” in this

context. (3)





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iii. If the plaintiff may proceed to execute the judgment, indicate the order in

which Xandie’s property may be attached. (2)

First attach Xandie’s movable property, then if sheriff returns with a nulla bona return,

proceed upon immovable property.

24. Bonny and Cameron concluded a contract. Bonny commits breach of contract.

Cameron wishes to bring an action for breach of contract and a claim for damages.

i. Identify the form of proceedings Cameron must use to approach the court for

relief. (1)

Action / summons proceedings

ii. Name the document that will be used to institute the action. (1)

Combined summons

iii. Name and discuss briefly the essential documents that Cameron and Bonny

would normally exchange in order to reveal the issues in dispute if the action

is opposed. (6)

The plaintiff issues the combined summons as the claim is for damages (unquantified

and thus unliquidated). The defendant sends the plaintiff his NOITD if he wishes to

oppose – this is not a means of raising a defence, but a mere process document

indicating hjis intention to defend the claim. The defendant then, within the dies

induciae, sends his plea on the merits to the plaintiff, this is a pleading with raises the

def’s defence, which is one of admit, deny or confess and avoid. The mentioned doc’s

are compulsory if the action is opposed. If the def raises a new issue in his plea (or

raises a defence of confess & avoid) the pl can respond with a replication, and the def

can reply with a rejoinder.

iv. Name any 3 circumstances under which pleadings will be deemed closed in this

action. (3)

Rule 29 states pleadings are closed when: othe issues are joined in the plea othe day for the filing of the replication /

subsequent pleading has passed and that doc has not been filed.

othe parties agree in writing pleadings are closed, othe

court deems them closed.

25. M issues a combined summons against N for damages arising out of breach of

contract. N responds with a notice of intention to defend. Thereafter, within the

prescribed time-limit, N files a plea on the merits along with a counterclaim. With

these facts in mind, answer the following:

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i) Name the pleading that must be filed by M if N in his plea on the merits

responds to one of the allegations contained in M’s particulars of claim by means

of confession and avoidance.

Replication

ii) Name the pleading that M must file in response to the allegations

contained in N’s counterclaim.

Plea on the counterclaim (in reconvention) iii) Name the procedure that N may use if M’s pleading referred to in (ii)

above does not disclose a valid defence.

Exception

iv) Name the procedure that M may use if M believes that N is in possession of a

tape recording of the negotiations between M and N and which gave rise to the

conclusion of the contract.

Inspection (Rule 35(14)).

26. X issues summons against Y for payment of R450 000 for defamation. Fully

explain whether the correct procedure is used in the following instances:

(a) X issues a simple summons against Y.

No, this is the incorrect procedure. The claim is based on DEFAMATION, which is a

delict, which is a claim for DAMAGES, and thus the correct procedure to be used is to

issue and serve a combined summons. A simple summons is used for a claim based on

a “debt or liquidated demand”, like a claim for “goods sold and delivered”. The claim in

the question is for an unliquidated claim and thus, a combined summons is

appropriate in this case. An unliquidated claim would therefore refer to any claim in

respect of which the quantum thereof must be determined (e.g. a claim for damages),

or where the status of the parties is affected (e.g. an action for divorce).

(b) Y raises his defence by way of a special plea.

No, this is the incorrect procedure. A defence is raised by the defendant in the PLEA

ON THE MERITS. A plea on the merits is the only way in which the defendant may raise

a defence against the plaintiff’s claim. A plea must therefore deal with the merits of the plaintiff’s case as set out in the

plaintiff’s particulars of claim or declaration. The defendant must deal with each allegation in the particular of claim or declaration.

The special plea A special plea is a means of raising an objection on the basis of certain

facts which do not appear in the plaintiff’s declaration or particulars of claim, and has

the effect of destroying or postponing the action. If a defendant intends filling a special

plea, he must still deliver a plea on the merits.

(c) X gives a notice of bar after Y fails to timeously deliver his notice of intention

to defend.

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This is the incorrect procedure. If Y fails to deliver his NOITD, the correct procedure is

for X to apply for default judgement using an interlocutory application, notice and

supporting affidavit. When judgment by default is requested in respect of unliquidated

claims, and the defendant is in default of delivery of a notice of intention to defend or

of a plea, judgment by default may be granted only once evidence has been led in

respect of the amount of the claim. Notice of bar is only relevant if the document that

is late is a pleading. The NOITD is a process.

(d) X files a rejoinder to Y’s plea.

This is incorrect, as the correct procedure will be to file a replication. The response to

a plea on the merits is the replication. The answer to the replication of the plaintiff is

the rejoinder, by the defendant. A replication contains the plaintiff’s reply to the

defendant’s plea. Rule 25(2) states that no replication or subsequent pleadings which would be a mere

joinder of issue or bare denial of allegations in the previous pleadings shall be deemed

necessary and issue shall be deemed to be joined and pleadings closed. If the plaintiff

raises new averments of fact in the replication, the defendant is given an opportunity

of reacting thereto by way of rejoinder.

(e) X applies for costs de bonis propriis due to the intentional non- disclosure of

documents by Y.

The correct costs order to use in this situation is “attorney & client costs. it includes

remuneration for all professional services rendered by the attorney as well as all

expenses incurred by the attorney (including council fees) in the execution of his client’s

instructions. A court will not lightly grant attorney and client costs. The most common ground on which a court will order a party to pay the other party’s

attorney and client costs is that where the former party has been guilty of dishonestly

or fraud in conducting the suit, or where his motives have been vexatious, reckless or

malicious. The costs de bonis propriis is an order, relevant only where a person acts in a

representative capacity.

27. Explain the impact of the Electronic Communications and Transactions

Act 25 of 2002 on the uniform Rules of Court with regard to the electronic service

of documents. (5)

The electronic era has led to the amendment of the Uniform Rules of Court to provide

for service of documents through the electronic medium. Uniform Rule 4A incorporates

some of the provisions of the Electronic Communications and Transactions Act 25 of

2002 (specifically Chapter III, Part 2). This Rule makes provision for service of all

documents and notices, not falling under Rule 4(1)(a) but subsequent thereto, on a

party to the litigation at the address or addresses provided by such party under the

rules of court for service of such documents and notices. The documents and notices

so excluded refer to processes directed at the sheriff and which initiate application

proceedings (thus, in fact, referring to writs; ex parte and ‘‘ordinary’’ applications; and

the simple and combined summons).

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Service may be effected by hand; registered post; facsimile or electronic mail and need

not be effected through the sheriff. However, the originals of those documents and

notices may not be filed with the Registrar by way of facsimile or electronic mail.

28. Write concise notes on “edictal citation”. (5)

Rule 5 prescribes how service must be effected on a defendant who is, or is believed to

be, outside the Republic. This is so even when his or her exact whereabouts are known

and even when personal service is possible. Such a person cannot be summonsed

before our courts in any manner other than by means of edictal citation.

The consent of the court must be obtained to serve

(1) any process or document which initiates proceedings, or (2) any process or

document which does not initiate proceedings

In the case of (1), Rule 5(2) provides that the leave of the court must be obtained in

respect of an application by way of notice of motion. Thus, an ex parte application. For

Mag Court, edictal citation is used if service has to be effected outside the borders of

the Republic, whether or not the defendant’s or respondent’s address in the foreign

country is known. Rule 10 substantially replicates Uniform Rule 5, and provides that

no document or process that initiates proceedings may be served outside the Republic

without leave of the court. The same allegations (set out in rule 10(2)(a)) contained in

an application for substituted service are contained in an application to serve by means

of edictal citation.

29. B and C are in a motor-car collision. B suffers damages to his car in the

amount of R150 000, as well as damages due to bodily injury in the amount of

R300 000. B attributes the accident and his damages to C’s negligence, and issues

summons against C. answer the following questions:

(a) Fully explain why it would be inappropriate for B to use a simple summons in

this case.

A simple summons may only be used by a plaintiff with a claim for a debt or

liquidated demand, Courts have also indicated that a debt is liquidated where it is

admitted, or where the monetary value is capable of being ascertained speedily. In

order to be a ‘liquidated demand’, the demand must be described in such a way that

the amount thereof may be determined merely by mathematical calculation. What

‘ascertained speedily’ embraces is a question of fact, and the court will thus exercise

their discretion in deciding whether or not a particular claim is capable of being

ascertained speedily. A combined summons would be appropriate in this case, as the

claim is for an unliquidated claim - an unliquidated claim would therefore refer to any

claim in respect of which the quantum thereof must be determined (e.g. a claim for

damages), or where the status of the parties is affected (e.g. an action for divorce).

(b) C fails to deliver his notice of intention to defend within the stated dies

induciae, Fully explain to C the consequences of such failure.

Rule 19(5): notice of intention to defend may be delivered after the expiration of the

period specified in the summons or 20 days after the summons, but before default

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judgment has been granted provided that the plaintiff be entitled to costs if the notice

of intention to defend was delivered after the plaintiff has lodged his application for

default judgment. Upon receipt of an illiquid summons, that is either a simple or combined summons,

the defendant must, within the period laid down in the summons, indicate whether he

wishes to defend the action. This is done by filling a notice of intention to defend with the registrar, and by delivering

a copy thereof to the plaintiff. The defendant who neglects to file and deliver the notice to defend timeously, runs the

risk of having a judgment by default given against him. Rule 19(5): notice of intention to defend may be delivered after the expiration of the




default judgment. Upon receipt of an illiquid summons, that is either a simple or combined summons,

the defendant must, within the period laid down in the summons, indicate whether he


a copy thereof to the plaintiff. The defendant who neglects to file and deliver the notice to defend timeously, runs the

risk of having a judgment by default given against him. In his notice of intention to defend the defendant must appoint an address.

(c) If B issues a combined summons against C, explain why this summons is a

pleading, and not a process.

Pleading: this is a written document containing averments by the parties to an action

in which the material facts on which they rely in support of their claim or defence are

concisely set out, and which is exchange between the parties. Process: the phrase

‘process of the court’ was interpreted to mean “something which ‘proceeds’ from the

court; some step in legal proceedings which can only be taken with the aid of the court

or of one of its officers”. This concept includes subpoena, notices. The SUMMONS part of the Combined Summons is a process, and the POC (attached to

the summons) is the pleading part of the combined summons.

(d) If C delivers his notice of intention to defend timeously, explain why B may

not apply for summary judgement.

If C delivers his NOITD timeously, then C has to serve and file plea on the merits, and

may not apply for SJ. The summary judgment procedure is designed to protect a

plaintiff, who has a claim of a particular nature, against a defendant who has no valid

defence to his or her claim, and who has simply entered an appearance to defend for

the purpose of gaining time and preventing the plaintiff from obtaining the relief he or

she seeks and deserves. If the NOITD was not sent timeously, then B could apply for

default judgement. Both SJ and DJ are applications, interlocutory.

(e) B wishes to ascertain what documents C intends using at the trial to prove

his defence. Explain what procedure B may use to do so, AND when he may

use this procedure.

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Discovery. Discovery may not be requested until after the close of pleadings. The

purpose of discovery is, as the name indicates, to ascertain from other parties to the

action what documents and tape recordings are in existence which might be relevant

to the action. This enables a party to prepare fully and properly for trial and prevents

him or her from being taken by surprise. The party thus knows what documents are in existence which may assist him or her to establish his or her

own case, or to break down the case of his or her adversary, or what documents may

assist an opponent, or weaken his or her own case. Discovery therefore assists the

parties and the court to discover the truth and thus to reach a fair decision/judgment.

It is therefore important to ensure that discovery is not abused by parties so that its

important role is not diminished. Discovery is obtained by written notice addressed to

any party to the action to make discovery under oath within 20 days of such request.

Discovery relates to all documents and tape recordings relevant to any matter in

dispute in the action (whether or not such matter is one arising between the party

requiring discovery and the party required to make discovery) which are, or have at any

time been, in the possession or under the control of such other party. Discovery must

be made within 20 days, and is made by disclosing the necessary information in an

affidavit – known as a ‘‘discovery affidavit’’.

(f) C wishes to try and settle the matter, Advise C on the contents of an offer to

settle as required in terms of Rule 34(5) of the Uniform Rules of Court.

Rule 34, a defendant may, at any time, unconditionally or without prejudice, offer to

settle a plaintiff’s claim where


2. the performance of an act is claimed The offer to pay a monetary sum must be in writing and must be signed by the

defendant or by the defendant’s duly authorized attorney. For the purposes of this Rule, a defendant includes any person joined as a defendant

or as a third party, as well as a defendant in reconvention or a respondent in application

proceedings. In terms of the Rule, the following expressions have the following meanings:

• unconditional = liability in respect of the claim is accepted • without prejudice = liability is denied The plaintiff may, within 15 days of receiving the notice of the offer, accept the offer by

delivering a notice of acceptance at the address of the defendant indicated for the purposes hereof. If the plaintiff fails to accept the offer within the

period, it may thereafter be accepted only with the written consent of the defendant, or

with the courts consent. The defendant must, within 10 days of delivering the

acceptance, effect payment as offered. If he fails, the plaintiff may, after giving 5 day’s

written notice to this effect, apply through the registrar to a judge for judgment in terms

of the offer, plus costs. To receive payments, the plaintiff would then have to take steps

to obtain execution against the defendant. An offer may not be disclosed in court before

judgment has been given, and no reference to such offer may appear on any file in the

office of the registrar containing the papers of the case. However, the offer is brought to the attention of the judge concerned before any order

as to costs are made, since the fact that an offer was made is relevant to the

apportionment of costs.

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Unless the defendant offers to perform the act personally, he must draw up irrevocable

power of attorney for the performance of the act, which authorizes another person to

perform such an act on his behalf. Such power of attorney must be delivered to the registrar together with the offer. Should the offer be accepted, the power of attorney is returned by the registrar, after

he has satisfied himself that the requirements of Rule 34(6) regarding the acceptance

of an offer have been complied with.

(g) The litigation process proceeds smoothly and expeditiously, and B succeeds in

proving his claim during the trial. The Court gives judgement in his favour,

and awards party and party costs, and not attorney and client costs as

requested by B. Briefly explain to B why the Court did not err in awarding party

and party costs.

The following principles of awarding party and party costs are summarised as follows: As a general rule, the successful party is entitled to his costs. In determining who the successful party is, the court must look to the substance of the

judgment and not merely its form. The court may in its discretion, deprive the successful party of part, or all, of his costs. In the exercise of this discretion, the judge will take into account the following

circumstances in connection with the successful party’s conduct:

- whether the demands made are excessive

- how the litigation was conducted

- the taking of unnecessary steps or adoption of an incorrect procedure -

misconduct

None of these occurred in the facts and thus this type of costs were not relevant.

30. S issues summons against T for goods sold and delivered in the amount of

R450000, which T refuses to pay despite demand. With these facts in mind,

answer the following questions, giving full reasons for your answers where

necessary:

(a) T, the defendant, acknowledges that part of the claim is due and owing, and

wishes to settle that part of the claim immediately. Explain what T may do in

these circumstances, AND also explain the procedure to be followed.

Rule 34, a defendant may, at any time, unconditionally or without prejudice, offer to

settle a plaintiff’s claim where


4. the performance of an act is claimed The offer to pay a monetary sum must be in writing and must be signed by the

defendant or by the defendant’s duly authorized attorney. For the purposes of this Rule, a defendant includes any person joined as a defendant

or as a third party, as well as a defendant in reconvention or a respondent in application


• unconditional = liability in respect of the claim is accepted • without prejudice = liability is denied

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The plaintiff may, within 15 days of receiving the notice of the offer, accept the offer by

delivering a notice of acceptance at the address of the defendant indicated for the purposes hereof. If the plaintiff fails to accept the offer within the

period, it may thereafter be accepted only with the written consent of the defendant, or

with the courts consent. The defendant must, within 10 days of delivering the

acceptance, effect payment as offered. If he fails, the plaintiff may, after giving 5 day’s

written notice to this effect, apply through the registrar to a judge for judgment in terms

of the offer, plus costs. To receive payments, the plaintiff would then have to take steps

to obtain execution against the defendant. An offer may not be disclosed in court before

judgment has been given, and no reference to such offer may appear on any file in the

office of the registrar containing the papers of the case. However, the offer is brought to the attention of the judge concerned before any order

as to costs are made, since the fact that an offer was made is relevant to the

apportionment of costs. Unless the defendant offers to perform the act personally, he must draw up irrevocable


perform such an act on his behalf. Such power of attorney must be delivered to the registrar together with the offer.

Should the offer be accepted, the power of attorney is returned by the registrar, after



(b) T fails to respond to the summons within the dies induciae. Should S deliver

a notice of bar to T before S may apply for default judgement? Explain.

No, S does not have to send T a NOB first. A party who fails to deliver a pleading or

process document in time is in ‘default’. Depending on the pleading or process, the other party can request a judgment

immediately or another step may first have to be taken before judgment may be

requested. This step is known as the giving of a notice of bar. Bar applies only in respect of

pleadings. The NOITD is NOT a pleading, it is merely a process, and thus, DJ can be

immediately applied for without serving a NOB on T.

(c) Briefly state what a defendant is required to present to court for consideration

in an application for the setting aside of a default judgement.

Rule 31(2)(b) a defendant may, within 20 days after he has knowledge of a default

judgment, apply to court to set aside such judgment. The court has a discretion whether or not to set aside a judgment. The defendant must also advance sound reasons for the failure concerned. The courts have held that ‘sound reasons’ mean that



(6) The defendant must have a bona fide defence “Application” does not refer to a notice of motion – thus interlocutory.

31. T wishes to apply for admission as a sworn translator. Answer the following

the questions:

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(a) What factors must be considered to determine the correct type of application

that must be used?

(1) Does legislation, or the Uniform Rules of Court, prescribe whether the application

procedure must be used? Examples include applications for liquidation of companies

(s 81 of the Companies Act of 2008) and for sequestration of estates, as well as the

revision thereof (Rule 53 of the Uniform Rules of Court), applications in respect of

marital matters (Rule 43 of the Uniform Rules of Court), and applications for the

appointment of curators ad litem (Rule 57 of the Uniform Rules of Court).

(2) Is it compulsory to use summons proceedings? Examples of instances where it is

compulsory include divorce proceedings and unliquidated claims for damages,

compensation or enrichment.

(3) Does the matter fall neither within the ambit of (1) nor (2) above? For purposes of

this discussion, this third category, namely cases where application proceedings are

neither prescribed nor forbidden, is the most important. In these cases, it is accepted

practice that there is a choice between application and summons proceedings, and the

following principle is applied:

An application by means of notice of motion may be made if (1) there is no real dispute

over any fundamental question of fact or (2) if there is such a dispute, it can

nevertheless be satisfactorily decided without the necessity of oral evidence.

However, it should be borne in mind that, if a party uses application proceedings and

ignores the possibility that a factual dispute may arise, such party runs the risk that

the application may be dismissed with costs, and may be mulcted in the form of costs

even if the matter is referred to trial or to evidence: Tamarillo (Pty) Ltd v BN Aitken (Pty)

Ltd 1982 1 SA 398 (A) 430.

(b) Explain what type of application is appropriate for T to lodge under these

circumstances.

Ex parte application - This can be heard by a court without notice being given to

anyone, thus this form of application is an exception to the general rule of audi alterum

partem. No notice is given to the other side. The applicant files a NOM and an attached

affidavit.

(c) Name the documents that comprise the type of application identified in (b)

above.

NOM + supporting affidavit

(d) Explain what order the court may give if the court is of the opinion that the

rights of certain interested parties may be affected by the order given in the

application referred to in (b) above.

Rule nisi A rule nisi is an application which calls on the respondent to hear his/her

side of the story, and why the rule should not be confirmed and an interdict granted.

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(e) State the legal principle which is complied with by the court in making the

order referred to in (d) above.

Audi alterum partem 32. Name four methods by which normal service can be affected.

- service must, if possible, be personal

- If personal service cannot be affected, the summons may be serviced at the

defendant’s place of residence or business by leaving a copy thereof with the

person in charged of the premises. This person must be older than 16

- service may be effected at the defendant’s place of employment

- service on a company may be effected by the service on a responsible employee

at the company’s registered office or at its principal place of business within the

courts jurisdiction, or , if the foregoing is not possible, by affixing a copy to the

main door of such office or place of business

- service on a partnership, firm or voluntary association is effected in terms of

Rule 4(1)

- As regards matrimonial actions, the Rules make no specific mention of service

in such actions. Personal service is preferred.

33. Describe the information that must be contained in a discovery affidavit.

those documents relating to the matter in dispute in the action which are in his


those documents, although relating to the matters in dispute in the action and

being in the party’s control or possession, the party objects to producing, and the reasons for such objection must be stated

those documents which he had in his possession or which were under his

control, but which he does not now have in his possession or which are now not

under his control. Such party must also state when such documents were last

in his possession or under his control, and where such documents now are.

34. Z wishes to divorce her husband. Merely state the correct answer to each

of the questions that follow.

(a) State the pleading that X, the husband, must file if he wishes to claim financial

support from Z.

POC

(b) What pleading may X use if he has already issued summons in another court,

instituting divorce proceedings against Z?

Special plea (along with his plea on the merits)

(c) What procedure may X use if Z fails to allege in the particulars of claim that

the marriage has irretrievably broken down?

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Raise an exception, using an interlocutory application, because the POC doesn’t

contain a proper cause of action.

(d) What procedural step may Z take after close of pleadings, if she is of the opinion

that the pleadings contain insufficient information to enable her to prepare for

trial?

Request for further particulars.

35. Mr X approaches the court to stop his neighbour from demolishing a boundary

wall, which forms part of his garage wall that was built at great cost, and with

municipal approval.

(a) Name the remedy available to Mr X to stop the imminent destruction of the

wall.

Application for an interdict

(b) Name the type of proceedings that will be used to obtain the remedy referred

to in (a) above

Ordinary application procedure, serving and filing a NOM & supporting affidavit, notice

to the other side.

(c) Mr X succeeds with this action, and the court grants relief in a temporary form.

Indicate for how long this temporary remedy, after being granted, will remain in

force.

(a) Until action has been instituted to establish the rights of the parties, where a dispute

of facts exist, or

(b) Until the application which was launched to obtain the temporary interdict is finally

determined, or

(c) Until the order is confirmed on the return date stated in the temporary order.

36. Fully discuss why it is advisable to draw up a power of attorney,

despite not being required by the Uniform Rules of Court.

A carefully drawn up power of attorney is essential for the protection of both the

attorney and the client, and to determine the extent of the attorney’s brief Therefore,

there should always be a power of attorney kept on the client’s file. The power of

attorney generally contains details of the action to be instituted and of the relief to be

claimed. The client does not wish to be involved, unknowingly or unwillingly, in expensive

litigation, or in an appeal which he never contemplated. On the other hand, the attorney is entitled to protection as far as his own costs are

concerned. Should the attorney conduct litigation without the authority of the client, he will not be

entitled to recover the costs incurred from his client, since there is no contractual

relationship will exist.

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37. X issues summons against Y for payment of R450000 for

defamation. Fully explain whether the correct procedure is used in the

following instances.

(a) X issues a simple summons against Y. A simple summons may only be used by a plaintiff with a claim for a debt or

liquidated demand, Courts have also indicated that a debt is liquidated where it is

admitted, or where the monetary value is capable of being ascertained speedily. In

order to be a ‘liquidated demand’, the demand must be described in such a way that

the amount thereof may be determined merely by mathematical calculation. What

‘ascertained speedily’ embraces is a question of fact, and the court will thus exercise


ascertained speedily. A combined summons would be appropriate in this case, as the

claim is for an unliquidated claim - an unliquidated claim would therefore refer to any

claim in respect of which the quantum thereof must be determined (e.g. a claim for

damages), or where the status of the parties is affected (e.g. an action for divorce).

(b) Y raises his defence by way of a special plea.

A plea on the merits is the only way in which the defendant may raise a defence against

the plaintiff’s claim. A plea must therefore deal with the merits of the plaintiff’s case as set out in the

plaintiff’s particulars of claim or declaration. A special plea is a means of raising an

objection on the basis of certain facts which do not appear in the plaintiff’s declaration

or particulars of claim, and has the effect of destroying or postponing the action. If Y wants to raise a defence against X’s claim, he has to send a POC.

(c) X gives a notice of bar after Y fails to timeously deliver as notice of intention

to defend.

A party who fails to deliver a pleading or process document in time is in ‘default’.

Depending on the pleading or process, the other party can request a judgment


requested. This step is known as the giving of a notice of bar. Bar applies only in respect of

pleadings. Y is not LATE with his NOTID plus the NOTID isn’t a pleading, it is a process,

and thus NOB is NOT the correct procedure. The correct step for X is to wait for Y to

serve and file his plea on the merits.

(d) X files a rejoinder to Y’s plea. A replication contains the plaintiff’s reply to the defendant’s plea. Rule 25(2) states that no replication or subsequent pleadings which would be a mere


necessary and issue shall be deemed to be joined and pleadings closed. If X wanted to

reply to Y’s Plea, he would have to serve and file a REPLICATION. If then, the defendant,

Y, wanted to respond to X’s replication, he would serve and file a REJOINDER.

(e) Y files an opposing affidavit in defence of X’s summons.

Y would have to serve and file a NOTICE OF INTENTION TO DEFEND, as this is action

proceedings, summons proceedings, and the defendant, to enter into the action, to let

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the plaintiff know he intends to oppose the action, is done by the NOITD which is a

process. The notice of intention to OPPOSE (the opposing affidavit) is used in

applications proceedings where the respondent intends to notify the applicant that he

is going to oppose the application.

38. Explain the impact of the Electronic Communications and

Transactions Act 25 of 2002 on the Uniform Rules of Court with regard

to the electronic service of documents.

Uniform Rule 4A facilitates service by hand, registered post, facsimile or electronic

mail. Thus Uniform Rule 4A incorporates some of the provisions of the Electronic

Communications and Transactions Act 25 of 2002, by facilitating service by facsimile

or electronic mail. Service in terms of the above rule need not be effected through the

sheriff. However, the originals of those documents and notices may not be filed with

the Registrar by way of facsimile or electronic mail. The electronic era has led to the

amendment of the Uniform Rules of Court to provide for service of documents

through the electronic medium. Uniform Rule 4A incorporates some of the provisions

of the Electronic Communications and Transactions Act 25 of 2002 (specifically

Chapter III, Part 2). This Rule makes provision for service of all documents and

notices, not falling under Rule 4(1)(a) but subsequent thereto, on a party to the

litigation at the address or addresses provided by such party under the rules of court

for service of such documents and notices. The documents and notices so excluded

refer to processes directed at the sheriff and which initiate application proceedings

(thus, in fact, referring to writs; ex parte and ‘‘ordinary’’ applications; and the simple

and combined summons). Service may be effected by hand; registered post; facsimile

or electronic mail and need not be effected through the sheriff. However, the originals

of those documents and notices may not be filed with the Registrar by way of

facsimile or electronic mail.

39. X has a claim against Z in the amount of R600 000 on the grounds of

breach of contract, which occurred in Cape Town. X is an incola of Cape Town

and Z is an incola of Pretoria.

(a) Explain why X can institute proceedings against Z in the Cape Town High

Court.

X may institute proceedings against Z in CT, because the cause of action, the breach

of contract took place in CT. this is a claim sounding in money and thus specific rules

are used regarding such a claim. The plaintiff can either use the domicile of the

defendant (ratione domicilii) or the cause of action (ratione rei gestae) based on contract

or delict. The plaintiff here, as the breach took place in CT could issue summons out

of CT based on ratione rei gestae, ratione contractus.

(b) If Z is on holiday in Durban for three weeks, may X issue summons out of Cape

Town High Court, and have the summons served on Z while in Duran?

Section 42(2) of the SCA provides that a civil process of a Division runs throughout the

Republic and may be served or executed within the jurisdiction of any Division. This means that the process issued by a particular court (eg. summons or notice of


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Republic. This also means that the judgment or order of a particular court is

enforceable within the jurisdiction of any division of the High Court in the Republic. The result is that even if a defendant or his property is situated outside the

jurisdiction of a particular court, that court is able to exercise control over the person

or property of the defendant, provided that he is an incola of South Africa. Thus, Z

may be served anywhere in SA as long as the summons is issued out of the court

where the defendant is DOMICILED OR RESIDENT – it may not be issued out of

Durban because Z is temporarily resident there - this isn’t enough for ISSUE.

(c) Would your answer to (a) differ if Z was a peregrinus of the Republic and the

cause of action arose in Durban?

NO, my answer would not differ – even though the cause of action occurred in Durban

now, there is still a nexus to the CT court – namely X’s (the plaintiff’s) domicile. X lives

in CT. X may then issue summons out of CT IF he has the property of the foreign

peregrinus (Y) attached to FOUND JURISDICTION (ad fundandum jurisdictionem) - our

courts help local litigants, and now it is possible to institute action against a foreign

peregrinus in the court where the plaintiff is an incola. The only requirement is that the defendant’s property must have been attached. This

basis for the exercise of jurisdiction by a court is known as attachment ad

fundandam jurisdictionem. Attachment ad fundandam jurisdictionem is thus

permissible where the defendant is a peregrinus of the whole Republic (foreign

peregrinus); attachment of the defendant’s property has taken place within the

court’s area of jurisdiction & the plaintiff is an incola of the court concerned

(d) Would your answer to (a) differ if the claim related to the registration of fixed

property, and the property was situated in Johannesburg?

YES my answer would change – if the claim is now based on a claim sounding I

property, the rule ratione rei sitae would apply. The court in whose territorial area the

immovable thing is situated has exclusive jurisdiction in actions:

- To determine the title of immovable property

- For the transfer of immovable property

- For the partition of immovable property

- Where a real right is in dispute

- Where possession of immovable property is claimed

- 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 only

JHB wouold have jurisdiction to issue summons. MAGISTRATES PROCEDURE:

1. Discuss the requirements for the supporting affidavit which must be filed by the

plaintiff together with the notice for summary judgment. (5)

There are three requirements which must be complied with in terms of Rule 14(2) of the

Magistrates’ Court Rules:

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(1) firstly the affidavit must be signed by the plaintiff personally and he or she must

state that he or she has personal knowledge of the facts; or in the case of a legal

person, it must be signed by someone who alleges that he or she is duly authorised

to make the affidavit; in addition, he or she must state his or her capacity in

respect the plaintiff and that he or she has personal knowledge of the facts.

(2) Secondly the plaintiff must verify or confirm the amount or cause of action.

(3) Lastly, the deponent must state that in his or her belief there is no bona fide

defence to the claim and that appearance has been entered solely for the purposes

of delaying the action.

2. Set out five (5) matters that can be discussed at a pre-trial conference. (5)

The court may at any stage in any legal proceedings in its discretion or upon the request

in writing of either party direct the parties or their representatives to appear before it in

chambers for a pre-trial conference. The following issues/matters are addressed at a

pre-trial conference:

1. the simplification of issues;

2. the necessity or desirability of amendments to the pleadings;

3. the possibility of obtaining admissions of fact and documents with a view to

avoiding unnecessary proof;

4. the limitation of the number of expect witnesses;

5. Such other matters as may aid the disposal of the action in the most expeditious

and least costly manner.

3. C and D are involved in a motor vehicle collision in JHB. C estimates his damages at

R80 000. D wishes to defend the action.

(a) D notices that the summons contains insufficient information. What steps can

D take to rectify the error in the summons? (1) Rule 55A

(b) Name 5 particulars that C’s summons must contain in terms of Rules 5

and 6 of the Magistrate’s Court rules. (5)

o the dies induciae

o a warning of the consequences which will result if the defendant fails to comply

with the request in the summons

o a notice of consent to judgment o a notice of intention to defend

o a notice drawing the defendant’s attention to the provisions of S109 of the act o a notice in which the defendant’s attention is drawn to S57, 58, 65A and

65D o the address at which the plaintiff will receive

pleadings o a description of the parties o averment in

respect of jurisdiction o particulars of claim

(c) D avers that C was also negligent and is of the opinion that C is liable for

payment of his (D’s) damages. Name the document that D must also use to

institute this claim. (1)

Counterclaim

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(d) C is of the opinion that D’s plea on the merits is excipiable and raises an

exception. Explain when a court will uphold an exception, (3)

Vague & embarrassing; no cause of action; no defence

4. List any five examples of special pleas. (5)

- the court has no jurisdiction

- the plaintiff’s claim has become prescribed

- the defendant or the plaintiff has no locus standi

- lis pendens

- res judicata

- arbitration

- splitting of claims

5. Name five documents that must be forwarded to a court in order to obtain a judgment by default. (5)


(b) The written request for default judgment in duplicate.

(c) In the case of unliquidated claims (eg damages as a result of motor-vehicle collision)

affidavits which prove the nature and extent of the damages must be attached.

(d) In the case of a claim based on a liquid document, the original document duly

stamped or an affidavit setting out reasons to the court's satisfaction why such

original cannot be filed.

(e) In the case of an action based on a credit agreement which is subject to the Credit

Agreements Act, the agreement and certain affidavits must be lodged. (f) In the case

of an action based on a written agreement, the agreement duly stamped must be

lodged.

6. S is a rich spinster, who goes on an extended holiday overseas. When she

returns she discovers that summons has been served on her. She consults with

her attorney who informs her that the dies induciae has expired. Nevertheless, S

instructs her attorney to file a notice of intention to defend. Determine whether

the notice of intention to defend is valid. (5)

Even if the defendant does not timeously give notice of intention to defend, his or her

notice will nevertheless be valid, provided that it is submitted before a request for default

judgment. If the notice of intention to defend and the request for default judgment are

delivered on the same date, the notice remains valid, provided that judgment has not

been granted. Therefore, the defendant is allowed to submit a late notice of intention to defend,

provided that default judgment has not been granted, and such notice will be considered

valid in spite of its late delivery. In the High Court, the plaintiff may, in terms of Uniform

Rule 30, apply for rescission of a late notice of intention to defend.

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7. As clerk of the court, state

i. the formalities with which you must comply in order to issue the summons (4)

The clerk of the civil court issues the summons by furnishing the summons with a serial

number, and by signing and dating it. The clerk may refuse to issue a summons in which an excessive amount is claimed for

attorney’s cost and court fees, or if the addresses of service does not comply with the

provisions of the act. In a decided case, a summons was issued by the clerk in spite of the fact that such summons

had not been signed by the plaintiff or his attorney. The court decided that, although the summons was invalid, the defendant would be

running the risk of default judgment against him if he did not take steps to defend the

action. Thus the court awarded costs in favour of the defendant

ii. What you must do if the plaintiff amends the summons before it is served (1)

Amendments to the summons may be effected at any time before service, provided that

they are initialled by the Clerk of the court. If the amendments are not initialled, they

have no effect (rule 7(2)). Amendments to the summons after service may be brought

about only by following the procedure set out in rule 55(A) (rule 7(3)(b)). However,

amendments concerning the defendant's first name or initials can be brought about at

the plaintiff's request without the court's intervention (rule 7(3)(a)).

8. Describe the amendment of pleadings in the Magistrate’s Courts. (4)

Rule 55A & s111(1): In Rosner, the court held that the general rule was that an

amendment of notice of motion, a summons or pleading in action, would always be

allowed unless the application to amend was mala fide or the amendment would cause

injustice or prejudice to the other side. The aim of the amendment is to obtain a proper solution to the dispute between the parties

and to identify the real issues in the matter. However, the party seeking to amend its pleadings should not consider itself to have the right

to that effect. Instead, it is seeking an indulgence, and has to offer an explanation as to the reasons for the

amendment. S111 (1) provides that the court may, at any time before judgment, amend a pleading. The considerations for the amendment of pleadings, which are applicable in the high

court, also apply in the magistrates’ courts. S111(1) In any civil proceedings the court

may anytime before judgement, amend any summons (or other doc forming part of the

record) provided that the amendment doesn’t prejudice any other party affected.

Rule 55A provides an easy way of effecting amendments to pleadings. If the other party objects to the proposed amendment, the party who wishes to amend

must, within 10 days, lodge an application for leave to amend. If no objection is delivered

within the 10 days above, every party who received notice shall be deemed to have

consented, and the amendment as applied for, may be effected.

9. Name six particulars that must be included in a summons in terms of rules

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5 and 6 of the Magistrate’s Court rules. (3)

1. the dies induciae

2. a warning of the consequences which will result if the defendant fails to comply

with the request in the summons

3. a notice of consent to judgment

4. a notice of intention to defend

5. a notice drawing the defendant’s attention to the provisions of S109 of the act

6. a notice in which the defendant’s attention is drawn to S57, 58, 65A and 65D

7. the address at which the plaintiff will receive pleadings

8. a description of the parties

9. averment in respect of jurisdiction

10. particulars of claim

11. the prayers (THIS IS ALL RULE 5 AND 6)

10. Discuss discovery of documents in terms of rule 23 of the Magistrate’s Courts

Rules. (4)

This is a process whereby each party can compel the other to reveal the documentary

evidence which it hopes to adduce at trial, and also to reveal other documents in its

possession which tends to prove or disprove its case. In order that the parties may

prepare for the trial and not to be taken by surprise, it is deemed expedient that each party should know what books and documents the other

has in his possession, or under his control. He is entitled to be informed only of those books in the custody or under the control

of his adversary which the latter intends using in the action, or which tends to prove

or disprove either case. Rule 23 sets out the application for such information and the

way in which such information is to be furnished. Documents in respect of which privilege is claimed must be listed separately in the

schedule, and the grounds for each particular claim of privilege must be specified. Legal

professional privilege applies to communication between attorney and client in the

following circumstances: • where the communication pertains to the professional, or intended

professional, relationship, • made for the dominant purpose of seeking or giving legal advice, • whether written or oral, or even • Where the client confesses to the attorney the commission of a prior crime or

fraud. Rule 23(2) refers to the consequences of a failure to disclose. However, 1 party can compel the other to disclose by means of rule 60(2). If the

party called upon to make discovery fails to comply with this request to do so, the party

calling for discovery may make an application in terms of rule 60(2) before the trial

to compel compliance with the request. If an order is made compelling

discovery within a certain period and the other party persists in his default, a further

application can be made for judgment against the defaulting party. Rule 23(4) provides

that the parties may be compelled to produce the books or documents disclosed in their

schedules, and any other books or documents specified in a notice to that effect, at the

trial.

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Rule 23(3) provides that each party is allowed to inspect and make copies of the documents

so disclosed, and of the documents specified in rule 23(4).

11. Name the judgments that the court may make at the conclusion of a trial in terms

of section 48 of the Magistrate’s court Act of 1944. (5)

S48 sets out the judgments which a magistrate’s court may make in the action – plaintiff

wins, defendant wins or absolution: The effect of an absolution from the instance is to

leave the parties in the same position as if the case had never been brought. The plaintiff may take out a summons and sue on the identical cause of action.

Absolution from the instance may be given at the close of the plaintiff’s case or at the

close of the defendant’s case. Absolution from the instance at the close of the plaintiff’s case: Absolution will

be granted if there is insufficient evidence upon which the court may reasonably find

for the plaintiff. It should be refused where there is evidence on which a reasonable person may find for the

plaintiff. The principles regarding absolution from the instance were laid down in Riviera. It was

held that the plaintiff has to make out a prima face case regarding all the elements of

the claim in order to survive absolution. Absolution at the end of the plaintiff’s case

should be granted sparingly, but when the occasion arises a court should order it in the

interests of justice. Absolution from the instance at the close of the defendant’s case: This arises in 2 situations, namely when the burden of proof rests on the plaintiff, and when

the burden of proof rests on the defendant. Onus on plaintiff Where the court is unable to find that the plaintiff has proved his case on a balance of

probabilities at the close of the defendant’s case, and the court cannot also find that the

defendant has established his defence on a balance of probabilities, it must grant

absolution from the instance. Therefore, if the court cannot decide on which side the

truth lies, after hearing the evidence of both parties, the proper judgment is absolution. But if the court finds against the plaintiff, judgment for the defendant, rather than absolution,

must be granted. If the final decision of a case depends entirely upon the credibility of witnesses, and the

court cannot find that either set of witnesses is untruthful, it should also grant

absolution. Onus on defendant: Where the onus is on the defendant, the court can never grant absolution from the instance

at the end of the entire case. Where the defendant fails to discharge this onus on a balance of probabilities, the court

must grant judgment for the plaintiff. Where the defendant does discharge this onus on

a balance of probabilities, the court must give judgment in his favour. Thus there is no

room for a judgment of absolution in this situation.

12. Name any eight (8) particulars that must be contained in a summons in terms

the NCA o citation of the parties

o that the NCA applies to the agreement o type and category of the credit

agreement o date when the agreement is concluded o details regarding the

principal debt

o alleged compliance with the Act other material terms of the agreement o locus standi

: that the plaintiff (or credit provider) is duly registered with the National Credit

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Regulator in accordance with section 40 (or exempt from registration), and has paid

the renewal fees or applied for registration which has not been refused

o that the consumer is in default under the relevant agreement for a period of 20

business days or longer o that written notice in terms of section 129(1)(a) has been properly served on the

consumer

o that 10 or more business days have elapsed since the delivery of the notice o that

the consumer either did not respond to the section 129(1)(a) notice or rejected it o that the consumer did not refer the credit agreement to a debt counsellor, alternative

dispute resolution agent, consumer court or an ombudsman with jurisdiction

o that there is no pending matter before the Consumer Tribunal that relates to the

credit agreement

13. Explain under what circumstances pleadings are closed in terms of rule 21A of the magistrates courts rules. (4)

Rule 21A sets out when pleadings may be closed, namely: Pleadings shall be considered closed if • either party has joined issue without alleging any new matter, and without adding

any further pleading; • the last day allowed for filing a replication or subsequent pleading has elapsed and

it has not been filed; • the parties agree in writing that the pleadings are closed and such agreement is

filed with the registrar or clerk of the court; or • the parties are unable to agree as to the close of pleadings, and the court upon the

application of a party declares them closed. 14. Z wishes to issue summons in the magistrates court for the district of

Pretoria. Answer the following:

(a) If the defendant gives notice of intention to defend outside the dies

induciae, may Z ignore this notice and apply for default judgement?

No, he may not. Where a defendant enters an appearance out of time, but before default

judgment is granted, the plaintiff cannot merely ignore this and proceed to request

judgment by default. The correct procedure is for the plaintiff to approach the court first to have the appearance set

aside as an irregular proceeding, before any action is considered.

(b) if the defendant fails to serve his plea on the merits within the dies

induciae advise Z on the procedure to be followed should he wish to obtain

judgement against the defendant.

The correct procedure for the plaintiff to follow is to file and serve a notice of bar. This

gives him 5 days in which to send the late pleading, the plea. Only where the defendant

still fails to deliver the plea, will he be in default. Should the plaintiff there after fail to deliver the pleading, he will be in default and will

ipso facto be barred from doing so, and will thus be in default and the plaintiff may

proceed to application for default judgement, interlocutory application.

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(c) Z successfully litigates the case against the defendant. The attorney and

client costs between Z and her attorney amounts to R10 000. According to

the costs order given by the court, the defendant has to pay Z’s costs on

the party and party scale. The taxed party and party cost amount to R6

400. Will the defendant be liable for R10 000, R6400 or both? Explain fully.

(3)

Party-and-party costs are calculated according to a fixed tariff. These party-and- party

costs are less than the attorney-and-client costs because only certain cost items may

be recovered on the party-and-party scale, and even those costs which are recoverable

can be recovered only at the given tariff. The defendant therefore pays only part of Z’s

costs, namely R6 400 (not the entire R10 000), to Z. Z then remains liable for payment

of the balance of the amount, namely R3 600

15. B issues a summons against C in the amount of R150 000 for goods sold

and delivered, which despite demand, refuses to pay. Answer the following:

(a) C delivers a NOITD. State the possible procedural steps that B may take in

reaction to this notice. (2)

B may react be serving and filing his declaration, setting out his claim. If he believes

that the defendant has sent the NOITD to waste time, he can apply for summary

judgment by making an interlocutory application.

(b) Z, a friend of C, undertook in writing to pay the said amount if C was unable to

do so. Name the pleading in which C must disclose this fact and explain the

manner in which C must disclose this in the said pleading. (2)

He would allege this in his plea on the merits. In the plea, the plaintiff’s factual

allegations are admitted, are denied, are placed in issue, or are confessed and

avoided, and all the material facts upon which the defendant relies are stated clearly

and concisely. It is also permissible, where the facts warrant it, for a defendant to

plead that he or she has no knowledge of a particular allegation and is not in a

position to admit or deny it (see Rule 22(2) and Rule 22(3)). Every factual allegation in

the declaration or particulars of claim that is not specifically denied or is not

admitted, is deemed to be admitted. Here, C will allege Z has undertaken to pay the

said amount, as a defence of “confess and avoid”.

(c) B, the plaintiff, is concerned that C will not be able to pay the judgement and

costs if judgement is granted against C. Advise B on the step that B may take in

terms of the rules of court to address this concern.

Uniform Rule 47. The rule states that a party that chooses to request security for costs

from another shall, as soon as practicable after the commencement of proceedings,

deliver a notice setting forth the grounds upon which such security is claimed, and the

amount demanded (rule 62(1).

16. Briefly explain the procedure that follows when a party contests the

amount of security requested by the opposing party in terms of rule 62(1) of the

Magistrates Court Rules. (2)

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If a party from whom security is requested in terms of rule 62(1) contests his or her

liability to give security, or fails or refuses to furnish security in the amount

requested or the amount fixed by the Registrar or clerk within ten days of the demand

or the registrar’s or clerk’s decision, the other party may apply to court on notice for

an order that such security be given and that the proceedings be stayed until the

order is complied with (rule 62(3)).

17. Distinguish between an exception and a special plea. (5)

An exception is limited to an attack on the allegations in the pleading as a whole, on

the assumption that such allegations are true. 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. It differs from an exception in 2 aspects. 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)

18. B issues a summons against C in the amount of R150 000 for goods sold and

delivered, which C, despite demand, refuses to pay.

(a) C delivers a notice of intention to defend. State the possible procedural steps

that B may take in reaction to this notice.

B may serve and file a declaration, which sets out his claim and his cause of action,

the declaration is a document containing a concise statement of the facts on which the

plaintiff’s claim is based. A simple summons would have been served by B because B’s

claim is for a debt / liquidated demand. This route would be to go further down the line

of pleadings. Another route would be to apply for summary judgement. Summary

judgment procedure is aimed at protecting the plaintiff, who has a claim if a particular

nature, against a defendant who has no valid defence to his claim, and who has simply

entered an appearance to defend for the purpose of gaining time and preventing the

plaintiff from obtaining the relief he seeks and deserves. Summary judgment should not be lightly granted, and the courts will deprive a

defendant of his defence in this matter only in clear cases.

(b) Z, a friend of C, undertook in writing to pay the said amount if C was unable

to do so. Name the pleading in which C must disclose this fact, and explain

the manner in which C must disclose this in the said pleading.

C can allege this in his plea on the merits, which is a pleading in answer to the plaintiff’s

declaration. It sets out the defendant’s defence. A plea must therefore deal with the

merits of the plaintiff’s case as set out in the plaintiff’s particulars of claim or

declaration. The defendant must deal with each allegation in the particular of claim or

declaration. A plea especially deals with all the factual allegations. Just as the

particulars of claim or declaration must fully disclose the plaintiff’s claim, so must the

defendant’s plea disclose his defence fully. The defence must consequently

1. admit or

2. deny; or

3. confess and avoid all the material facts alleged in the summons, and,

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4. clearly and concisely state the nature thereof and

5. Provide all the material facts on which his defence rests. Raising the defence of a surety would be “confess & avoid” and would probably result in

the plaintiff sending a replication.

(c) B, the plaintiff, is concerned that C will not be able to pay the judgement and

costs if judgement is granted against C. Advise B on the step that B may take

in terms of the rules of court to address this concern.

A party that chooses to request security for costs from another shall, as soon as

practicable after the commencement of proceedings, deliver a notice setting forth the

grounds upon which such security is claimed, and the amount demanded. If the

amount of security requested in terms of rule 62(1) is contested, the registrar or clerk

of the court shall determine the amount to be given, and his or her decision shall be

final. If a party from whom security is requested in terms of rule 62(1) contests his or

her liability to give security, or fails or refuses to furnish security in the amount


or the registrar’s or clerk’s decision, the other party may apply to court on notice for an

order that such security be given and that the proceedings be stayed until the order is

complied with. If the requested security is not given within a reasonable time, the court has the power

to dismiss any proceedings instituted or strike out any pleadings filed by the defaulting

party, or make such other order as it deems fit. Any security for costs shall, unless the court otherwise directs, or the parties otherwise

agree, be given in the form, amount and manner directed by the registrar or clerk of

the court. The registrar or clerk of the court may, upon written request of the party in whose

favour security is to be provided and on notice to interested parties, increase the

amount thereof if he or she is satisfied that the amount originally furnished is no longer

sufficient; this decision shall be final.

19. R and his family go on holiday to London in the UK. On his return, he

discovers that summons has been served on him. He consults his attorney who

informs him that the dies induciae for noting appearance has expired,

nevertheless, R instructs his attorney to file a notice of intention to defend.

Briefly discuss whether the notice of intention to defend is valid.

If the defendant wishes to defend the action, he must file a notice of intention to defend.

The time limit for a defendant to enter an appearance to defend or dies induciae after

receipt of summons is now 10 days. Rule 13(3)(a) provides that the defendant shall

indicate his facsimile address and electronic mail address if available (in addition to

physical or postal address). Rule 13 authorises service by facsimile or electronic mail

under certain conditions. If it appears to the registrar or clerk of the court that the defendant intends to defend

the action but that his or her notice of intention to defend is defective in that the notice.

The plaintiff is entitled to apply for default judgment if the defendant fails to submit a

proper notice of intention to defend. Even if the defendant does not timeously give his notice to defend, his notice will

nevertheless be valid, provided that it is submitted before a request for default

judgment If the notice and the request of default judgment are delivered on the same date, the

notice remains valid, provided that judgment has not been granted.

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Therefore, the defendant is allowed to submit a late notice, provided that default

judgment has not been granted, and such a notice will be considered valid in spite of

its late delivery.

20. Briefly explain the procedure that follows when party contests the

amount of security requested by the opposing party in terms of rule 62(1) of the

Magistrates’ Courts Rules.

If the amount of security requested in terms of rule 62(1) is contested, the registrar or

clerk of the court shall determine the amount to be given, and his or her decision shall

be final. If a party from whom security is requested in terms of rule 62(1) contests his

or her liability to give security, or fails or refuses to furnish security in the amount


or the registrar’s or clerk’s decision, the other party may apply to court on notice for an

order that such security be given and that the proceedings be stayed until the order is

complied with.

21. Write a short note explaining:

(a) The order that may be requested by the defendant where the plaintiff has been

barred in terms of rule 15(5) of the Magistrates’ Courts Rules from delivering a

declaration, AS WELL AS the procedure to be followed to obtain this order.

A defendant may apply for a default judgment against a plaintiff who has been barred

from delivering a declaration in terms of Rule 15(5) which deals with declarations. The

application for the DJ is interlocutory in nature and is thus an ordinary application;

notice to the other side, with a NOTICE and supporting affidavit. In the magistrates’ court default judgments, even for debts or liquidated demands,

must be considered by magistrates as opposed to registrars or clerks when such claim

is founded on any cause of action arising out of or based on an agreement governed by

the NCA. Rule 15(5) where a pl has been barred from delivering a declaration the def

may set down for hearing upon not less than 10 days notice to the defaulting pl, and

apply for absolution from the instance or, after adducing evidence, for judgement, and

the court may make any order it deems fit.

(b) the order that may be requested by the plaintiff where a defendant has been

barred from delivering a plea in terms of rule 12(1)(b) of the Magistrates’ Courts

Rules, AS WELL AS the procedure to be followed to obtain the order.

Rule 12(1)(b) – if the defendant has delivered a NOITD but has failed to file plea within

the time prescribed, the plaintiff may deliver a notice in writing calling upon the def to

deliver a plea within 5 days of the receipt of such notice and on failure of the def to

deliver his plea within such period, he shall be in default with such plea and ipso facto

be barred. When the pl has complied with the aforesaid, he may lodge with the registrar

or clerk of the court a request in writing for judgement in the same manner as when

the def has failed to deliver a NOITD.the procedure for DJ is again, interlocutory

application.

22. Briefly distinguish between an exception and a special plea.

An exception is limited to an attack on the allegations in the pleading as a whole, on

the assumption that such allegations are true.

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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. They differ in 2 respects: 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)

23. Briefly explain the issues, which may be dealt with during section 54 of the

Magistrates’ Courts Act 32 of 1944 conference.

(a) Section 54(1) provides that a party to a suit may request the court to convene a

pre-trial conference.

(b) At such conference, the parties try to limit the point at issue by, making admissions

not already contained in the pleadings.

(c) The parties further tries to curtail the time taken up by the conduct of the trial.

(d) They try to reach agreement on matter that may be mutually admitted and the

precise points in issue between them.

(e) This also helps curb the leading of unnecessary evidence.

24. Briefly discuss High Court Rule 18(8) and Magistrates’ Courts rule 6(8)

in respect of particulars of claim requirements for divorce.

a party suing or bringing a claim in reconvention for divorce shall, where time, date

and place or any other person (s) are relevant or involved, give details thereof in the relevant pleading – thus for eg. If X is alleging the marriage has irretrievably

broken down due to a series of adulterous affairs details of the times, places and parties

involved would have to be given. Rule 6(8) (and Rule 18(9) of High Court rules) states that a party claiming division,

transfer or forfeiture of assets in divorce proceedings in respect of a marriage out of

community of property, shall give details of the grounds on which he claims that he is

entitled to such division, transfer or forfeiture.

25. (a) Briefly explain why an appeal cannot be noted against an interim

order of a magistrate. (2)

In terms of section 83 of the Magistrates’ Courts Act, the right of appeal accrues only

to a party to a civil suit or proceedings. This section also provides that appeals may

be brought only against the following three types of decision:

(1) any judgment described in section 48

(2) any rule or order having the effect of a final judgment, including an order relating

to execution in terms of Chapter IX of the Act and on an order as to costs

(3) in certain circumstances, any decision overruling an exception

In the case of an interim order, the granting of the order does not mean that a party

has lost the case. The party may therefore not appeal against a provisional or interim

order since they do not have the effect of a final order. In Pretoria Garrison Institute v

Danish Variety Products (Pty) Ltd 1948 1 SA 839 (A), it was held that the test for

determining whether a rule or order has final effect is whether it disposes of any

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issue, or any portion of any issue, in the main action, or irreparably anticipates or

precludes some of the relief which would, or might be given at the main hearing. If

the effect of a rule or order is final, this means that the matter has ended for one of

the parties. Therefore he or she can appeal against that order or rule. Examples of

orders that are final and definitive are the granting or refusal of a final interdict, the

granting of a summary judgment, the upholding of a special plea that the court lacks

jurisdiction, and the upholding of a defence of prescription.

(b) Explain the meaning of the term “review”, and give an example to illustrate

your understanding thereof. (2)

Review is concerned with the decision-making process as opposed to a decision per

se. In Johannesburg Consolidated Investment Company Ltd v Johannesburg Town

Council 1903 TS, it was held that the proceedings of inferior courts are brought before

superior courts in respect of grave irregularities. Review is aimed at correcting

irregularities which allegedly occurred in connection with the trial

(c) Explain why the Supreme Court of Appeal cannot be described as the final court

of appeal in respect of all non-constitutional matters. (1)

The Constitution Seventeenth Amendment Act, 2012 brought about the following

situation: the Constitutional Court’s jurisdiction is no longer limited to purely

constitutional matters, and the Supreme Court of Appeal (SCA) is no longer the court

of final instance in non-constitutional matters, but will be an “intermediate appeal

court” in such matters. The Supreme Court of Appeal can therefore not be described

as the final court of appeal in respect of all non-constitutional matters because the

Constitutional Court is the apex court in all matters. A litigant can appeal an SCA

order to the Constitutional Court whether on a constitutional or non-constitutional

order.

26. The following statements are all false. Briefly indicate the correct state of

affairs in each instance.

(a) If review proceedings are successful, the High Court must set aside the

decision that has been reviewed, and substitute it with its own. (1)

(b) A full bench that hears an appeal from a magistrate’s court consists of three

judges. (1)

(c) If a judgment of a High Court contains an obvious mistake, the whole judgment

will be set aside. (1)

(d) A request for leave to appeal against the judgment of a single judge must always

be noted at the time when judgment is passed. (1)

(e) A party who is dissatisfied with a judgment of the Supreme Court of Appeal

may always appeal to the Constitutional Court. (1)

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(a) Correct Assertion/Statement: If review proceedings are successful, the High Court

will set aside the decision that has been reviewed, and remit the matter to the

particular body to decide it according to the correct procedure. The High Court will

not substitute its own discretion for that of the body or official whose decision it has

reviewed unless there are exceptional circumstances (Roospingh v Rural Licensing

Board for Lower Tugela and Others 1950 4 SA 248 (N)). You need to be aware of the

powers of the High Court when it reviews proceedings from lower courts or quasi-

judicial bodies.

(b) Correct Assertion/Statement:

According to section 14(3) of the Superior Courts Act, 2013, appeals from the

magistrate’s court, unless otherwise required or permitted by law, are normally heard

by two judges. However, if these judges are not in agreement, the Judge President (or

deputy) may direct that a third judge be added to hear the appeal. Note: A magistrate’s

decision can be taken on appeal to a division of a High Court. However, an appeal from

the magistrate’s court does not lie to the full court of the particular division of the High

Court, and a noting to the full court (full bench) is null and void (see Enslin v Nhlapo

2008 5 SA 146 (SCA)).

A court of first instance (court that first heard the matter) is usually constituted before

a single judge, and a full bench/full court hearing an appeal against the judgment of a

single judge comprises three judges (section 1 of the Superior Courts Act, 2013). (c) Correct Assertion/Statement:

A High Court has the power to either vary or rescind a judgment in which there is an

ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error

or omission. It is thus incorrect to say that the whole judgment will be set aside due to

an obvious mistake. See Rule 42(1) of the Uniform Rules of the Court. It is important

to study the rules mentioned in the compulsory reading. Note: Rule 42 does not exclude

the common law ground for setting aside a judgment (where there is an error). It has

been held, however, that under common law, non-fraudulent misrepresentation

inducing iustus error on the court’s part is not a ground for setting aside a judgment

induced by such error (see Groenewald v Gracia 1985 3 SA 968)

(d) Correct Assertion/Statement:

Leave to appeal may be requested at the time that the judgment or order is made. If this is not followed, then an application for leave to appeal must be filed within 15

days of the judgment or order appealed against (see Rule 49(1) of the Uniform Rules of

Court.

The application is heard by the judge who made the judgment or order. Note: the phrase

“a request for leave to appeal” illustrates that this is an appeal from a High Court.

Appeals in the magistrate’s courts are automatic and a request for leave to appeal is

not required.

(e) Correct Assertion/Statement:

The Constitutional Court is regarded as the apex court or the highest court in all

matters since the inception of the Seventeenth Amendment Act, 2012. This means that

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the Constitutional’s Court’s jurisdiction is no longer limited to purely constitutional

matters, and the Supreme Court of Appeal is no longer the court of final instance in

non-constitutional matters. However, the amendment does not mean that every matter

will be heard by the Constitutional Court, as very specific grounds must exist before

the Constitutional Court will grant leave to appeal in non-constitutional matters. The

Constitutional Court may decide not only constitutional matters but any other matter,

provided that it grants leave to appeal on the grounds that “the matter raises an

arguable point of law of general public importance which ought to be considered by the

Court”. The Constitutional Court is now conferred with powers to decide on

constitutional and non- constitutional matters. However, one needs to know the

circumstances when the Court will entertain an appeal (set out in the proviso above).

26. (a) N institutes proceedings in a magistrate’s court against Y. The magistrate

grants judgment against Y. Y is dissatisfied and takes the matter on appeal. On

the basis of these facts, answer the following questions.

(i) Must Y apply for leave to appeal to a High Court? Explain. (1)

(ii) How many judges must hear the appeal? (1)

(iii) Name the three types of claims which may be appealed against in the

magistrates’ courts, as set out in section 83 of the Magistrates’ Courts Act, 1944.

(3)

(a)(i) No, in terms of section 83 of the Magistrates‟ Court Act 32 of 1944 a party has a

right of appeal - in terms of section 83 of the Magistrates‟ Courts Act 32 of 1944, the

right to appeal accrues only to a party to a civil suit or proceeding.

(ii) Two judges. (Section 14(3) of the Superior Court Act, 2013) (1)

(iii) These are the following:

Any judgment described in section 48 of the Magistrates‟ Courts Act 32 of 1944.

Any rule or order having the effect of a final judgement, including an order

relating to execution in terms of Chapter IX of the Act 32 of 1944 and on an

order as to costs.

In certain circumstances, any decision overruling an exception. (3)

27. Explain the differences between the Constitutional Court and the

Supreme Court of Appeal with regard to their respective powers of appeal.

The Supreme Court of Appeal may decide appeals in any matter (excluding labour and

competition matters) arising from the High Court of South Africa, or from a court of a

status similar to the High Court. Section 168(3)(b) makes it clear that this court may

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decide only appeals, issues connected with appeals and matters referred to it in terms

of an Act of Parliament.

In contrast, as the highest court of the Republic, the Constitutional Court may decide

not only constitutional matters, but also any other matter, provided it grants leave to

appeal on the grounds that “the matter raises an arguable point of law of general public

importance which ought to be considered” by the Court. This Court also makes the

final decision whether a matter is within its jurisdiction (s 167(3) of the Constitution,

1996). It is clear that the Supreme Court of Appeal is not the final court of appeal.

However, note that although the Constitutional Court is the final court of appeal not

all matters may be taken on appeal to this court – the proviso (see above) serves as a

filter to ensure that only matters of a specific nature and that require the attention of

this court are brought before the court. This is to ensure that this court’s court roll is

not overburdened and that matters without merit do not waste the court’s time.

28. Name two instances when a court will interfere with a decision taken by

a quasi-judicial body

The court will interfere in the following instances: (a) If a public body or individual

exceeds its powers, the court will exercise a restraining influence. (b) If a public body,

although confining itself within the scope of its powers, acts mala fide or dishonestly,

or for ulterior reasons which ought not to influence its judgment.

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CIV3701 - CIVIL PROCEDURE NOTES

CONCEPTS Differences b e t w e e n s u b s t a n t i v e law ( rights and o b l i g a t i

o n s of persons e.g. private law) and adjective law (procedure to enforce the

rights and duties e.g. civil procedure).

Differences b e t w e e n c i v i l and c r i m i n a l p r o c e e d i n g s e . g .

different parties (plaintiff and defendant vs state and accused), objectives, onus

of proof.

Inherent jurisdiction of the High Courts (Divisions of the High Courts) √ common-law based √ entrenched in the Constitution – section 173

Lower courts as creatures of statutes

Jurisdiction of Specialist Courts e.g. Labour Court, Land Claims Court.

Sources of civil law – main statutes, who has competence to make, amend or

repeal rules of court etc.

Civil Procedure in context: differences between Anglo-American civil procedure

systems and Continental civil procedure systems; know principles of

bilaterality, party prosecution and party presentation; understand the role of

the court; critical appraisal of adversarial system, methods of reform.

Substantive and Adjective law

The rules of substantive law define the rights and duties of persons in their ordinary

relationship with each other.

Adjective law deals with the procedure to be adopted in order to enforce a right or

duty.

For example: X lends his car to Z, who refuses to return it. Adjective law sets out

the procedural steps, which X must follow in order to regain possession.

Adjective law is accessory to substantive law.

Function of the courts To resolve disputes between legal subjects or between legal subjects and the state. Both civil and criminal proceedings may be described as formal systems of dispute

resolution that are sanctioned by the state. This means that the judicial officer will hear the presentation of evidence and

arguments of both parties in an environment that is controlled by formal rules,

and then decide the matter in the form of a judgment or order that is enforced

by the state.

Subject matter of a civil & criminal trial: Civil proceedings relate to a dispute between legal subjects. A dispute of this nature

is described as a claim. However, criminal proceedings are between the state and an ordinary citizen.

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Parties – past paper question! In criminal proceedings, the parties are the state and the accused. Whenever

a criminal matter goes on appeal at the instance of the convicted person, the

accused is known as the appellant. In civil proceedings the person who starts the proceedings by issuing a

summons is known as the plaintiff and the person against whom the summons

is issued is the defendant. Whenever proceedings are brought on application, the person bringing the

application is the applicant and the opposite party is the respondent. If the

matter goes on appeal, the person who lodges the appeal is the appellant and

the other party is the respondent.

Rules of Court : Competence to make the rules As from 1965, proceedings have been uniformly conducted in all the divisions of

the then Supreme Court, now the High Courts, under a common set of rules

still known as the Uniform Rules of Court. The Rules Board was established in 1985. The members of the Board are

appointed by the Minister of Justice for a period of five years and are eligible for

reappointment. Section 6 specifies the powers of the Rules Board to make,

amend or repeal rules “for the efficient, expeditious and uniform administration

of justice” in the Supreme Court of Appeal, the

High Courts and the magistrates’ courts. The competence to make rules for all

these courts now vests in the Rules Board.

Rules of court – Competence to make rules : Section 6(1) confirms onto the Rules Board to make rules for the courts The rules

board has the power to change the rules of the uniform rules and the magistrates

court 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

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

Nature of the rules

“The rules exist for a court and not the court for the rules”:

o The rules are not an end in themselves but rather a means to an end.

o The very purpose of the rules is to facilitate inexpensive and efficient

litigation and not to obstruct the administration of justice.

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o This means that a court, subject to its competence to do so, may condone

non-compliance with procedure that would lead to substantial injustice

to a litigant.

o A superior court may also exercise its inherent jurisdiction to grant relief

in circumstances where the rules do not cover a particular matter or

where strict compliance with a rule would result in substantial prejudice

to a litigant. (The rules exist for the sake of a court and not the other way around. The rules are not

an end in themselves, but rather a means to an end. The very purpose of the rules is to

facilitate inexpensive and efficient litigation, not to obstruct the administration of

justice. This means that a court, subject to its competence to do so, may condone non-

compliance with procedure that would otherwise lead to substantial injustice to a

litigant. A superior court may also exercise its inherent jurisdiction (see study unit 3

above) to grant relief in circumstances where the rules do not cover a particular matter

or where strict compliance with a rule would result in substantial prejudice to a

litigant).

Adversarial Procedure A dominant element of the Anglo-American civil procedural system is its adversarial

nature.

Characterised by the following:

• Both litigants

• Independently initiate and prosecute their respective claims or defences, and

• Investigate and gather information that supports their respective claims or defences,

and presents this as evidence before a court.

• This brief description expresses three fundamental principles that underlie our system

of civil procedure. These principles are those of

• Bilaterality • Party prosecution • Party presentation

Bilaterality: this assumes that both litigants will have a fair and balanced

opportunity to present either their respective claims or defences. The truth

should then emerge if each party presents his or her own biased view of the

issues in dispute.

Party prosecution – past question: this refers to the competence of a litigant

either to commence or defend proceedings and to move (prosecute) the case

forward through all its procedural stages, thus litigation is a private matter that

is conducted by both litigants without any interference from the court, except

where its intervention is requested by one of the litigants. Thus, a person whose substantive rights have been infringed or alienated has

a choice either to commence civil proceedings or simply to do nothing about

the matter. Both litigants must conduct the proceedings according to certain

minimum standards that are prescribed by the Rules of Court. The court will

only become involved in the proceedings if, for instance, one of the litigants

approaches the court to compel the other litigant to comply with the Rules of

Court or requests the court to condone a mistake in procedure.

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Party presentation – past question: this refers to the competence of a litigant

to investigate his or her own cause or defence, to formulate the issues in

dispute as well as to present the material facts concerned, and to prove these

facts and raise legal argument in support of these facts before a court. A litigant has control of the content of his or her cause of defence, as the case may be.

Litigants are competent to determine the issues in dispute as well as to define the

scope of the dispute without the interference of the court. The litigants should be

masters of their rights. Litigants take primary responsibility for determining the

issues in fact and in law that relate to the dispute, without judicial interference, the

litigants should be masters of their rights.

The role of the court: In South Africa the role of the judicial officer is passive.

An exception can be found with the commissioner of a small claims court. The passive role of the judicial officer is compared to that of an umpire. The

role of the judicial officer is passive in that he or she is restricted to the

evidence that the litigants have chosen to present during a trial or a hearing

on motion.

Reforming civil procedure

1. Continual revision of the rules of the court.

2. To increase the jurisdictional limits of the lower courts in order to give more

people access to a court but at a lower cost.

3. Exclude, in part or in whole, specific types of dispute from the court system.

4. The use of informal dispute resolution processes, like the CCMA (arbitration).

5. Establishing alternative fora – like the small claims court.

Differences between Continental and Anglo-American systems:

Anglo American Continental

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-

-

-

-

-

-

-

-

-

adversarial private matter rely on legal representatives to gather and present evidence oral – rely on viva voce evidence distinct pre-trial and trial stages Judicial official (JO) plays a passive role JO like an umpire in a game He can raise issues by questioning witnesses

or testing legal arguments

JO restricted to the

evidence presented by the

litigants.

-

-

-

-

-

inquisitorial

JO participates actively in the litigation

JO can gather evidence

JO can actively

participate by asking

questions and leading

evidence No precedent

is followed, only the

Code (statute).

Alternative Dispute Resolution:

(this is merely a short summary of some of the NB points) ADR

processes are:

Informal, ADR processes are not bound by strict rules of procedure

Flexible, can be adapted to suit the needs of particular types of disputes in

different contexts

Voluntary, the disputants are not compelled to enter into the process

Consensual, reached through consent of both disputants

Interest based

Relational

Future orientated

Formal litigation’s response to ADR: court-annexed mediation

Mediation is a process in which parties who experience conflict require the assistance

of an impartial third party (mediator) to help them reach agreement. The mediator acts

only as a facilitator, and does not decide the outcome of the conflict – this remains in

the hands of the parties. Because the process is voluntary and the parties remain in

control of the process, mediation is generally viewed as empowering to both parties.

Supporters of mediation claim a high success rate for mediated matters. These and

other claimed benefits of mediation, together with a desire to give effect to section 34 of

the Constitution (access to courts) and to increase access to justice, a form of mediation,

namely, court- annexed mediation, was introduced as an alternative dispute resolution

mechanism within the civil court system, and more specifically the magistrates’ courts.

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Consequently, Chapter 2 was inserted into the magistrates’ courts rules under GN R

183 of 18 March 2014. The purpose of these rules is to provide the procedure for the

“voluntary submission of civil disputes to mediation, the parties are not forced into

mediation. “Parties” can refer a dispute to mediation either prior to the commencement

of litigation or thereafter, but prior to judgment, and the court may also enquire into the

possibility of mediation and afford parties the opportunity to refer the matter for

mediation. The rules provide that clerks and registrars of the court must offer assistance

to all parties, and provide for the procedure to be followed, the role and functions of a

mediator, as well as for the possibility of any settlement agreement to be made an order

of court.

DISPUTE RESOLUTION MECHANISMS IN AFRICAN CUSTOMARY LAW

Dispute resolution mechanisms in African customary law have the following

characteristics:

- They follow the oral tradition, although they are influenced by Western

traditions. - The participants comprise a collective group of people who are free to

participate in the discussions.

- The processes are victim-oriented. - The processes are informal and flexible. - The outcome is restorative justice or the restoration of social harmony or

peace. The use of state authorities is the exception rather than the norm. Most disputes in

African customary law are settled in a satisfactory manner without recourse to the

courts. This is achieved by means of negotiations within and between groups of relatives.

If a particular problem cannot be solved in this manner, then two more options are

available to the disputants:

The first option is to use the process of mediation before a formal appeal is made to the

courts. Mediation involves a process whereby a party that is not involved in the dispute

(that is, an impartial party) tries to help the people involved in the dispute to come to

an agreement or find a solution regarding the problem.

In the event of mediation’s failing, the next option is to follow the court procedure.

Processes used in African customary law to resolve disputes are the processes of

negotiation and mediation. Disputes can be resolved within family groups or between non-

related family groups. We first examine the settlement of disputes within family groups. The settlement of disputes within family groups

Family disputes are settled at the common ancestral home by the head of the family

group, who is also responsible for the conduct of his or her family members. The following procedure is employed:

• The correct procedure is negotiation with a view to reconciliation or restoration of

social harmony or peace.

• The head (senior figure) is assisted by adult members of the family.

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• Family matters are generally regarded as private matters.

• If the matter cannot be settled within the family circle, then senior relatives or

neighbours are invited to help resolve the matter.

• The objective is to look at ways to reconcile the disputing parties and to restore

normal family relations.

• If a solution to the problem is found, then the head pronounces the outcome, which

is accepted by everyone.

• This procedure ends with a ritual that involves everyone partaking of the same meal

or shaking hands or hugging one another to symbolise the end of the dispute. • If the proposed solution is not accepted by the disputing parties, then the headman

(head of customary court in a particular district) serves as a mediator and is tasked

with making a formal judicial decision.

The settlement of disputes between non-related family groups

• The people involved in the dispute first try to settle the dispute among themselves

by way of negotiation. All parties participate in the discussions.

• If no consensus is reached, the headman or village head is invited to assist. He/she

acts as a mediator.

• A ritual in the form of a reconciliatory meal is held if the parties come to an

agreement at any stage during the process of negotiation or mediation. This

demonstrates the restoration of normal relations and harmony between the parties

and the broader community.

Today people are not strictly arranged along family lines like they were in the past. The

practice in rural and urban areas currently is to seek the advice of neighbours, rather

than extended family groups. Disputes are also reported to the police, church groups,

street committees and local civic associations. Resolution takes place by negotiation and

mediation.

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

(the so-called “PIE” Act)

This Act finds application when the eviction of a person from his or her urban home is

sought, and applies in respect of land throughout the Republic. If ESTA, IPILRA or LTA

do not apply to a particular case, and the occupier falls within the definition of an

‘‘unlawful occupier’’ as defined in section 1 of the Act, then this Act applies. Buildings

and structures that do not fulfil the function of a dwelling or a shelter for humans (e.g.

commercial property) fall outside this Act. If the land has been occupied for less than six

months, the court may grant an eviction order if it considers it just and equitable to do

so after considering all relevant circumstances (which include the rights and needs of

the elderly, children, disabled persons and households headed by women). If the land

has been occupied for longer than six months, the court must in addition consider if land

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is available for the relocation of the unlawful occupier. This Act suspends the exercise of

a landowner’s proprietary rights until this determination has been made, and if the

procedural requirements of the Act have been met, a landowner may approach the court

for an order (Ndlovu v Ngobo; Bekker and Bosch v Jika 2003 1 SA 113 (SCA)). This Act

clearly confirms certain values such as dignity, equality and freedom, and requires courts

to, where necessary, create innovative remedies in order to protect and enforce the

constitutional rights of the owner and the occupier (Transnet Ltd v Nyawuza 2006 5 SA

100 (D) 105G–107D).

Arrest: The right to freedom and security (s 12) led to the Supreme Court of Appeal

decision in Bid v Industrial Holdings (Pty) Ltd v Strang (Minister of Justice and Constitutional

Development, Third Party) 2008 3 SA 355 (SCA), in which it was held that the arrest of a

person to confirm or found jurisdiction was unconstitutional. In Malachi v Cape Dancing Academy Int (Pty) Ltd 2010 6 SA 1 (CC) at 19A–B, the court

confirmed an earlier finding that the section in the Magistrates’ Courts Act, 1944,

codifying the common law, and which authorised arrest tanquam suspectus de fuga,

was unconstitutional. Uniform Rule 9 (regulating arrest) has since been repealed, and

arrest tanquam suspectus de fuga no longer exists.

Execution: The Constitutional Court held in Japhtha v Schoeman; Van Rooyen v Stoltz 2005 3 SA 140 (CC) that a writ of execution that would deprive a person of

‘‘adequate housing’’ would be in conflict with such person’s right in terms of section 26,

and would consequently need to be justified in terms of section 36(1). Mokgoro J

explained the position thus: The interests of creditors must not be overlooked. There

might be circumstances where, notwithstanding the relatively small amount of money

owed, the creditor’s advantage in execution outweighs the harm caused to the debtor.

In such circumstances it may be justifiable to execute.

It is in this sense that a consideration of the legitimacy of a sale in execution must be

seen as a balancing process. The court held that execution must be subject to judicial

oversight. In Gundwana v Steko Development and others 2011 3 SA 608 (CC), the

Constitutional Court consequently held that (in an instance when it was requested that

immovable property be declared specially executable after default judgment) the

Registrar may not grant such an order, and that execution may only follow upon

judgment in a court of law. The court further declared the practice under the rules of

court of allowing a Registrar to grant orders declaring immovable property that

constitutes a person’s home executable, constitutionally invalid (para. [55]; [65]). Read

amended Uniform Rule s 45 and 46 which give effect to these judgments.

Judicial oversight will ensure that the impact that the execution may have on indigent

debtors who are at risk of losing their homes be considered, as well as any alternative

course of action. It is submitted that this amended practice ensures compatibility with

section 26 of the Constitution.

Of interest is also FirstRand Bank Ltd v Folscher and another and similar matters 2011

4 SA 314 (GNP) in which the court considered the meaning of ‘‘primary residence’’ and

‘‘home of a person’’ (as used in Uniform Rule 46 and Gundwana). The court held that

execution against a holiday home or a second home that is not usually occupied by the

debtor does not trigger the rule requiring judicial oversight. Likewise, the term

‘‘judgment debtor’’ was held to refer to an individual who owns the primary residence,

and not to immovable property owned by a company, close corporation or a trust, even

if the immovable property is the shareholder’s, member’s or beneficiary’s only residence

(para. [31]–[32])!

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The summons initiating an action in which relief is claimed that embraces an order

declaring immovable property executable must contain a clause which draws the

attention of the debtor to section 26(1) of the Constitution, and which informs the debtor

about the need to present information to court supporting his or her claim that an order

for execution will infringe his or her section 26 right of access to adequate housing.

Legal practitioners: the conduct of legal practitioners (attorneys or advocates) in practice

is subject to a professional code of conduct. The main sources of this code of conduct

are the Attorneys Act 53 of 1979 (as amended) and the Regulations promulgated under

it, the Admission of Advocates Act 74 of 1964, the rules and rulings of the various law

societies and bar councils, court decisions, the common law, textbooks, and the

influence of international codes. The purpose of a professional code of conduct is to

provide the norms in terms of which it can be established whether prospective

practitioners and current practitioners are fit and proper persons to practise law.

A practitioner is admitted to practice by the High Court, and, therefore, a practitioner is

termed an ‘‘officer of the court’’. Because a practitioner is part of the legal system, he or

she is compelled to uphold the law at all times, and to promote the general

administration of justice. This includes a practitioner’s duty to respect the processes of

court, and not to hamper his or her opponents in conducting their cases. The

professional conduct of practitioners crops up in various relationships, such as in the

relationship with their clients, other practitioners, the courts, the state, the community,

and the particular professional body (law society or bar council). In all these

relationships, it is expected that practitionerswill conduct themselves with integrity,

objectivity, dignity and good judgement, demonstrating sufficient knowledge and skill,

respect for the law, commitment, equity and fairness. Serious breaches of the code of

conduct can lead to the removal from the roll of attorneys or advocates, as appropriate.

The duty of practitioners is well expressed in the following principles laid down in the

‘‘General Principles of Ethics’’ of the International Bar Association:

1. Lawyers shall at all times maintain the highest standards of honesty and integrity

towards all those with whom they come into contact.

2. Lawyers shall treat the interests of their clients as paramount, subject always to their

duties to the Court and the interests of justice, to observe the law and to maintain ethical

standards.

10 Lawyers shall use their best efforts to carry out work in a competent and timely

manner, and shall not take on work which they do not reasonably believe they will be

able to carry out in that manner.

12 Lawyers shall always behave towards their colleagues with integrity, fairness and

respect.

JURISDICTION:

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By jurisdiction is meant the authority, which a court has to

decideJurisdiction – General matters

that are litigated before it or to take cognisance of matters presented in a formal way for

decision. In the decision of (Ewing McDonald) and (M & M Products) the court defined

jurisdiction as follows:

Jurisdiction means the power vested in a What General court to adjudicate upon,

determine and dispose of a matter. Type of Court

In both definitions, the following two requirements are emphasised:

1) The court must have the authority to hear the matter

2) The court must have the power to enforce itsDepends judgment

No court will exercise jurisdiction unless both these requirements are met.Upon: The question of jurisdiction is important as it helps to ascertain which court is

competent to hear the matter. The required link (nexus) between the court and the

parties or the subject matter of the dispute must exist before a particular court will be

vested with the power to hear the matter. In addition, a court must be able to give an

effective judgment, that is, a judgment that can be enforced. In addressing the

jurisdiction of the court, yoThe Value of u also have to consider the value of the

The Nature claim, the nature of the claim, and the geographical area to which the

claim is the Claim of the Claim linked. It is only by knowing all these factors

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that you can make an informed decision about whether to bring a matter in the

Constitutional Court, the Supreme Court of Appeal, the High Court, a magistrates’ court

or a small claims court.

It is important to note that section 169 of the Constitution vests the High Court with

judicial authority. Furthermore, section 21 of the Superior Courts Act of 2013 provides

the jurisdictional powers of the High Court by stating that “a Division has jurisdiction

over all persons residing or being in, and in relation to all causes arising and all offences

triable within its area of jurisdiction and all other matters of which it may according to

law take cognisance”. In applying the provisions of section 21 of the Superior Courts

Act, you must keep in mind and understand the three grounds for High Court

jurisdiction in terms of the common law (generally termed rationes jurisdictionis) in the

South African courts, namely ratione domicilii, ratione res gestae and ratione rei sitae.

Another important provision to take into account when dealing with the jurisdiction of

the High Courts is section 42(2) of the Superior Courts Act, which provides that the civil

process of a division runs throughout the country.

Meaning of inherent jurisdiction Civil procedure, as applied in the superior courts, does not depend only on statutory

provisions and the rules of court. The superior courts are thus said to exercise an “inherent jurisdiction”. This means that its jurisdiction is derived from common law and not from statute. An

implication of this is that it has discretion in regard to its own procedure. Thus a court

may condone any procedural mistakes or determine any point of procedure. The Constitution, 1996, as amended by the CSAA (Constitution Seventeenth

Amendment Act), 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 Court of South Africa each has the inherent power to protect and regulate their

own process, and to develop the common law, taking into account the interests of

justice.

Creatures of statutes: Lower courts do not have inherent jurisdiction. The reason for this is that they derive their powers from the particular statute that

created them. Because of this, lower courts are sometimes called “creatures of statute”. The exercise

of jurisdiction in a lower court is therefore dependent on the extent to which its enabling

statute permits it to exercise such jurisdiction. So, each enabling statute has to be

carefully interpreted in order to determine the scope of the jurisdiction so conferred. A magistrate's court is thus referred to as a “creature of statute” because it has been

created by legislation and derives its powers and competence from the Magistrates'

Courts Act of 1944. Erasmus Jones and Buckle The Civil Practice of the Magistrates' Courts in South Africa

sum up the situation succinctly as follows: The magistrate's court is a creature of statute and has no jurisdiction beyond that

granted by the statute creating it. It has no inherent jurisdiction such as is possessed by the superior courts and can

claim no authority which cannot be found within the four corners of its constituent Act. The distinction between the phrases “inherent jurisdiction” and “creatures of statute” is

appropriately expressed by Herbstein and Van Winsen The Civil Practice of the Superior

Courts in South Africa at 49:

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... whereas inferior courts may do nothing which the law does not permit, superior courts

may do anything that the law does not forbid.

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HIGH COURTS:

DEFINITIONS

Actor sequitur forum rei: The plaintiff must institute action against the defendant in the area which the defendant

is domiciled. If the actor sequitur forum rei rule is followed to give jurisdiction to a court, such court is

said to have jurisdiction ratione domicilii.

Ratione domicilii: The court where the defendant is either domiciled or resident always has jurisdiction

to hear a claim sounding in money

Dominus litis: More than one court may be able to exercise jurisdiction in the same action, if various

rationes jurisdictionis exist in respect of different courts. In such an instance, the plaintiff

may, as dominus litis (master of the suit) choose in which of these courts which are

vested with jurisdiction he wishes to institute the action.

Incola and peregrinus: An Incola is a person who is either domiciled or resident within a specific court’s area of

jurisdiction A peregrinus is a person who is neither domiciled nor resident within that court’s area of

jurisdiction

(1) These two terms apply to each High Court as a separate entity, and not to South Africa as a whole. Thus a person domiciled or resident in the area of the KwaZulu-

Natal High Court, Durban is regarded as a peregrinus of the North Gauteng High Court,

Pretoria.

(2) Citizenship of a country is not relevant when determining whether someone is an

incola or a peregrinus. A person may be a citizen of a particular country without

ever having been domiciled or resident there. Citizenship is therefore irrelevant for

the purposes of jurisdiction.

(3) When dealing with the term peregrinus, a distinction is drawn between a person

who does not live within the jurisdictional area of a specific court, but does live

elsewhere in South Africa – a local peregrinus (such as Tsepo in the given facts) –

and a person who lives outside South Africa – a foreign peregrinus (if Tsepo were a

Zimbabwean citizen). Different jurisdictional rules apply, depending on whether the

defendant is a local or a foreign peregrinus.

Nexus: Nexus literally means link - it is the link or connection which gives a specific court

jurisdiction over a particular person or cause of action.

Rationes jurisdictionis:

263

There must be some link (nexus) between the court’s jurisdictional area and the

defendant, or the facts from which the dispute arose. These links are called “jurisdictional connecting factors”, or rationes jurisdictionis. The links accepted by our courts include domicile or residence of the defendant,

commission of a delict, conclusion or breach of contract, submission, and the

location of property where such property is the subject of the dispute.

Ratione rei gestae: Under common law, a court will be vested with jurisdiction in respect of monetary claims

in the following instances: 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 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 commissi Collectively, termed ratione rei gestae.

Ratione rei sitae: This connecting factor is relevant only in respect of property claims. The court where the

property is situated is the only court which has jurisdiction to hear claims relating to

such property.

Attachment to found or confirm jurisdiction: The word “attachment” refers to the attachment of property. The word “attachment”, in a jurisdictional context, refers to one of the grounds upon

which a court justifies its exercise of jurisdiction in respect of monetary claims. These

terms are relevant only when dealing with jurisdiction in respect of money claims where

the defendant is a foreign peregrinus. See the Bid case.

Claim sounding in money: The standard term used to describe an action based upon a claim which seeks either the

payment of money or the payment of money as an alternative to some other order, for

example an order for specific performance.

Doctrine of effectiveness: This is one of the common-law principles on which the exercise of jurisdiction is based. A

court will not exercise jurisdiction unless it is able to give an effective judgment, in other

words unless compliance with the judgment can be expected. If the defendant is an incola

of some South African court, the judgement against him can be effected by executory

procedures (sheriff attaching property). If the defendant is a foreign peregrenus, the court

allows for an effective judgement by allowing his property to be attached ad confirmandum

/ fundandum jurisdictionem, or attaching any property he has in SA ad confirmandum /

fundandum jurisdictionem, to give the relevant court jurisdiction to give an effective

judgement.

Domicile: Domicile is acquired by lawful presence at a particular place with the intention of settling

there for an indefinite period.

Reside: NB:

264

It amounts to more than mere physical presence in a place, while being less than domicile,

in that there must be some element of intention to prolong the stay beyond the limit of a

mere casual or temporary visit. In (Ex Parte Minister of Native Affairs) the following principles were laid down: 1) A

distinction should be drawn between place of residence and domicilium.

2) A person may have more than one place of residence, in which case he or she should be

sued in the jurisdictional area of the court in which he or she is residing at the time of

service of summons

3) A person does not reside in a place which he or she visits only temporarily.

Arrest to found or confirm jurisdiction has been held to be unconstitutional: (Bid v Strang)

However, the Supreme Court of Appeal has held that attachment to confirm or found

jurisdiction of a court is not unconstitutional because it serves the purpose of making any

judgment that the court may give in favour of the plaintiff effective, and the extent to which

it infringes the rights of the individual is less severe than is the case with arrest. Therefore,

all principles developed at common law regarding attachment to found or confirm jurisdiction

still apply to the attachment of property. The court in Bid called for alternative and constitutionally less restrictive rules for establishing

jurisdiction over foreign defendants, in addition to jurisdiction through attachment. According to the court, one of the new practices would be the service of a summons on the

defendant while he or she is in South Africa, coupled with the presence of sufficiently close

connecting factors between the action and the area of the court, with due consideration of

the forum conveniens doctrine. “Sufficiently close connecting” factors - it would seem that the use of existing and practised

common law and statutory rationes jurisdictionis, or links, will be important in establishing

the sufficiently close connection required to empower the court to have jurisdiction over a

foreign defendant.

SMALL CLAIMS COURTS:

23

Small Claims

Courts – Basics:

Proceedings inquisitorially conducted

Plaintiffs only natural persons

+ No lawyers

Claims up to R15 000

266

EXPLANATORY NOTES:

269

See s15 of Small Claims Courts Act 61 of 1984 regarding quantitative

jurisdictional limit of Small Claims Court (SCC): R15 000

See s16 regarding claims beyond the jurisdiction of the SCC

See s26(3) regarding the role of the commissioner: active role

JURISDICTION OF THE SUPERIOR COURTS:

• Highest court of appeal on all matters; apex court (s 167(3))

CONSTITUTIONAL • S 167 sets out its functions: see

COURT exclusive jurisdiction (s 167(4) &

confirms orders by other courts

(s 167(5))

• SCA - court of appeal in any

SUPREME COURT matter except labour and

OF APPEAL (SCA) competition matters

AND HIGH COURTS • HCs - court of first (HCs) instance/court of appeal in

respect of magistrate's courts decisions

NOTES:

• Section 167 (6)(a) of Constitution - when CC is approached

directly (exceptional cases)

• Section 169 of Constitution – matters that HC may hear

• Superior Court Act, 2013: single HC of South Africa; number of

local and main divisions

• SCA: hears appeals in any matter from HC or a court of similar

status except labour and competition matters (section

168 of Constitution); further appeal to CC

• HC: hears claims greater than R400 000

High Court: Basic Grounds for Jurisdiction :

Ratione • Domicile domicilii •

Residence

• Ratione

Ratione contractus

rei Ratione delicti

gestae •

commissi

• Movable

Ratione property rei sitae •

Immovable

property

NOTES:

• Ratione domicilii – the court where the defendant is either domiciled or

resident

• Know definitions of domicile and residence

• Ratione rei gestae - monetary claims

• Ratione rei sitae – property claims

• Know definitions of incola and peregrinus

• Know distinction between local peregrinus and foreign peregrinus

270

Claims sounding in money:

NOTES:

• If defendant is an incola of the court: ratione domicilii applies (the court

where the defendant is either domiciled or resident)

• If defendant is a local peregrinus of the court: ratione rei gestae applies

(the court where the cause of action arose: delict/contract)

• If defendant is a foreign peregrinus (court has no jurisdiction unless

defendant’s property is attached to found or confirm jurisdiction): see

definition of ‘attachment’

• Effect of section 28 of Superior Courts Act, 2013: prohibits attachment

of property of local peregrinus

• Know effect of Bid Industrial Holdings case: arrest to found or confirm

jurisdiction is unconstitutional; court looked at alternative options

The essential question when determining jurisdiction in respect of monetary claims is:

WHERE DOES THE DEFENDANT LIVE? Different rules apply, depending on whether a

defendant lives in South Africa or outside the country.

Where such a defendant is resident or is domiciled, or where the cause of action arose,

wholly or in part, will all have jurisdiction to hear the action and no other requirement

needs to be met.

Defenda

nt

Defendan

t local

peregrinu

Defendan

t foreign

peregrinu

271

Two courts may have jurisdiction; the court where the defendant is domiciled or resident,

or the court where the cause of action arose, wholly in part.

Where the defendant is an Incola of some South African court

Where the defendant is an Incola of the court concerned: 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. But when is the action instituted? Pollak states that the action is instituted when the

summons is issued and served. This view was confirmed in (Mills). This view was confirmed in Baren en ’n Ander v Lottering 2000(3) SA 305 (C). Note that

the defendant need not be physically present in the court’s area at the time when action

is instituted.

Where the defendant is a peregrinus of the court concerned, but an incola of

another court in South Africa: When a defendant is a local peregrinus of the relevant

court, this court may exercise jurisdiction only if the cause of action arose within its

jurisdictional area. A “cause of action” comprises the facts which give rise to an enforceable

claim. This ground of jurisdiction also derives from Roman-law principles and is known as

ratione rei gestae. It is irrelevant whether the plaintiff is an incola or a local or foreign

peregrinus. It is, however, essential that the defendant must be a local, not a foreign

peregrinus.

In the following instances a court will be vested with jurisdiction because the cause

of action arose within its jurisdictional area:

1) Where the contract which is the subject of the litigation was concluded or

breached within the court’s area of jurisdiction, or where performance of the contract

was intended to be affected within the court’s area of jurisdiction (IE. Contract entered

into; performed or breached in the court’s area, this will give that court jurisdiction).

Any of these grounds will be sufficient to vest a court with jurisdiction. The court is

then said to be vested with jurisdiction ratione contractus.

2) Where the delict on which the claim is based was committed within a court’s

area of jurisdiction. In this instance, the court is vested with jurisdiction ratione delicti

commissi. Remember the plaintiff institutes the claim!!!!!

- No other requirement need be met before the court in whose area the cause of action

arose may exercise jurisdiction.

- It is not possible for jurisdiction to be confirmed or extended by attachment of the

defendant (where one HAS to attach the property of foreign peregrini defendants to

give a court jurisdiction).

- s28(1) prohibits attachment, for jurisdictional purposes, of persons domiciled

or resident anywhere in South Africa – thus SA incolae.

- The effect of section 28(1) is that, as regards local peregrini, attachment for the

purpose of founding or confirming jurisdiction, is not only unnecessary but is

prohibited.

272

Where the defendant is a peregrinus of all South African courts

Where the defendant is a foreign peregrinus and the plaintiff is an incola of the

court concerned:

If the defendant is a peregrinus of South Africa and the cause of action did not arise within the jurisdictional area of the court concerned, the court would not have

jurisdiction to hear an action. However, the position changes when the plaintiff is an

incola of the specific court. Provided that a defendant is a peregrinus of the whole of

South Africa and that the arrest of the defendant or the attachment of his property can

take place somewhere in South Africa, an incola of a specific court can institute action

in that court.

In Halse v Warwick court held that: In suits between peregrini, there may be very good

reasons why our South African courts should not seek to extend their jurisdiction by

an attachment, but in a suit by an incola against a peregrinus why should South African

courts not come to the assistance of South African subjects and enable them to litigate

at home?

Our courts help local litigants, and now it is possible to institute action against a foreign

peregrinus in the court where the plaintiff is an incola. The only requirement is that the defendant’s property must have been attached. This basis for the exercise of jurisdiction by a court is known as attachment ad

fundandam jurisdictionem.

To summarise: Attachment ad fundandam jurisdictionem is permissible where the

defendant is a peregrinus of the whole Republic (foreign peregrinus); attachment of the

defendant’s property has taken place within the court’s area of jurisdiction & the plaintiff

is an incola of the court concerned

Where the defendant is a foreign peregrinus and the cause of action arose

within the area of the court concerned:

Where a defendant is a peregrinus of the whole of the Republic, a court will be competent

to exercise jurisdiction if the cause of action arose within its area of jurisdiction, and if

attachment of the defendant’s property has taken place. This is known as attachment ad

confirmandam jurisdictionem. Where a court exercises jurisdiction based on attachment

ad confirmandam jurisdictionem, the nature of the proceedings is irrelevant, provided that

money is claimed. GROUNDS: the ratione contractus and the ratione delicti. It makes no difference to the above rules whether the plaintiff is an incola or peregrinus

of the court concerned!!!

To summarise: Attachment ad confirmandam jurisdictionem is permissible where • the

defendant is a peregrinus of the whole Republic; attachment of the defendant’s property

has taken place within the court’s area of jurisdiction & the cause of action has arisen

within the court’s area

273

m e

ATTACHMENT AD FUNDANDAM JURISDICTIONEM :

Defendant foreign

peregrinus

plaintiff is incola +

attachment

Attachment

ad fundandam jurisdictionem

NOTES:

• It is not necessary for cause of action to occur within the court’s area of

jurisdiction

• However, the property to be attached must be within the court’s area of jurisdiction

A t t a c h

274

n t a d

ATTACHMENT AD CONFIRMANDAM JURISDICTIONEM :

Defendant foreign

peregrinus

cause of acton + attachment

Attachment ad confirmandam jurisdictionem

275

NOTES:

• Relevant in money claims (debt /damages) • It is not necessary whether plaintiff is an incola or peregrinus of the court • Know the effect of s 21(3): attachment to confirm jurisdiction may take place

within the court where the cause of action arose

• Know the distinction between s 21(3) and s 28 of the Superior Courts Act, 2013

• Know s 42 (2) of Superior Courts Act, 2013 : civil process runs throughout

Republic; effect

EFFECT OF SECTION 42(2) OF THE Superior Court Act 2013 AND ATTACHMENT

UNDER SECTION 21(3) OF THE SCA 2013:

In terms of the common law, it is an essential requirement that there be some link

between the parties or the cause of action and the particular court. When litigation is brought against a foreign defendant, such a nexus is found in the fact

that the foreign defendant's property is attached. Until the beginning of 1999, this requirement of common law meant that attachment of

the property of a defendant to found or confirm jurisdiction had to take place within the

area of the court in which the plaintiff wished to institute action. The leading case on this common-law requirement and the impact of section 26(1) of the

Supreme Court Act on the common-law requirement is Ewing McDonald. In the case, the court found • that the common-law requirement must be met, in addition to the requirement that

the judgment be effective • section 26(1) is essentially a procedural enactment to make the execution and service

of process more convenient, but it cannot be used to found or confirm jurisdiction (S

26(1) of the Supreme Court Act 59 of 1959 has been replaced by s 42(2) in the SCA

2013).

Effect of judgment The common-law position made it difficult for local litigants to sue foreign defendants,

as it was frequently found that action could not be instituted because no assets could

be attached within the area of a particular South African court, making it necessary for

the plaintiff to institute action outside the country.

Section 42(2) of the SCA: Section 42(2) of the SCA provides that a civil process of a Division runs throughout the

Republic and may be served or executed within the jurisdiction of any Division.

This means that the process issued by a particular court (eg. summons or notice of


Republic. This also means that the judgment or order of a particular court is enforceable

within the jurisdiction of any division of the High Court in the Republic. The result is that even if a defendant or his property is situated outside the

jurisdiction of a particular court, that court is able to exercise control over the person

or property of the defendant, provided that he is an incola of South Africa.

276

However, in those instances where the defendant is a peregrinus of South Africa,

neither the defendant nor any of his property may be in the country when judgment is

granted against him. This would render the judgment ineffective. Therefore, in order to

establish jurisdiction in a claim sounding in money against a foreign peregrinus, an

attachment of such defendant’s property is usually required (Bid Industrial Holdings –

here, the court considered alternative options when attachment was not possible).

Section 21(3) of the SCA: This section has replaced section 19(1)(c) of the Supreme

Court Act, 1959. Section 21(3) provides that attachment to confirm jurisdiction may take place in

any Division. This section is subject to section 28 of the SCA and section 4 of the Admiralty

Jurisdiction Regulation Act. Section 28 prohibits the attachment of property to found jurisdiction against a person

resident in the Republic, such as a local peregrinus. In other words, attachment of a peregrine defendant’s property need not take place

within the jurisdictional area of the court in which the action is instituted, but may be

effected within the jurisdictional area or division of any other court in the Republic where

the property is situated.

Until 1999, when section 19(1)(c) was inserted into the Supreme Court Act of 1959,

common law attachment of the property of a peregrinus of the whole Republic had to

take place within the jurisdictional area of the court in which the plaintiff instituted the

action. Even if the property was situated in the Republic but in the jurisdictional area

of a court other than the court in which the plaintiff wished to institute the action, then

the plaintiff could not proceed with the action. In order to overcome this problem,

section 19(1)(c) was enacted to bypass the common law and enable a plaintiff to

proceed with the action wherever the peregrine defendant’s property was situated

in the Republic even if it was outside the jurisdictional area of the court concerned.

This section provides only for attachment of property ad confirmandam jurisdictionem;

it makes no reference to attachment ad fundandam jurisdictionem. However, it is

contended that as attachment ad fundandam jurisdictionem has been part of our

common law, the provisions of this section must be read together with the common-law

principles regarding attachment ad fundandam jurisdictionem. Consequently, the

position regarding attachment ad fundandam jurisdictionem is governed by common

law.

Unlike the position with the repealed section 19(1)(c), no mention is made of a

requirement as to where the property to be attached must be situated. It is contended

that as the legislature is silent on this matter and did not specifically provide where

attachment must take place, again this provision must be read with the common-law

principles regarding attachment, and consequently the requirement is that the property

must be situated within the jurisdictional area of the particular court approached for

the order. Unfortunately, the result is that this section, in its present form, amounts to

a regression in that the incola plaintiff is again placed in the invidious position in which

he or she found himself or herself prior to 1999. It is hoped that the courts will clarify

the uncertainty regarding the interpretation of this section in the near future.

277

THUS: Regardless of whether attachment ad fundandam jurisdictionem or ad

confirmandam jurisdictionem is sought, our contention is that the property in

respect of which the attachment is sought must be situated within the area of

jurisdiction of the particular court concerned (as required under common law).

Procedure regarding the attachment: The attachment of property comes before the

main action; an application on notice of motion is brought, requesting the attachment

of the defendant’s property. The onus is on the applicant to show that, prima facie, he

or she has a cause of action. Because the application for an order for attachment is a

separate issue which precedes the principal claim, it is decided separately and so the

court will not go into the merits of the main action. If attachment is ordered, the

defendant’s property will be subject to attachment until judgment has been given in the

main action – unless such defendant furnishes security for the value of the claim in

order to obtain the release of his property.

EXAMPLE: John, an American tourist, comes to Johannesburg for a holiday. He

does not know the city and while he is driving around looking for accommodation,

he drives the wrong way up a one-way street. He hits Elias, a pedestrian, causing

Elias serious physical injuries. Elias, who lives in Bloemfontein but is doing

contract work in Johannesburg for two months, wants to sue John for R305 000.

May the Free State High Court, Bloemfontein or the South Gauteng High Court,

Johannesburg issue an order for the attachment of John’s property if this property

is situated in the jurisdictional area or Division of the KwaZulu- Natal High Court,

Durban?

In terms of section 21(3), a court may issue an order of attachment ad confirmandam

for the attachment of the property of the defendant who is a peregrinus of the whole

Republic. This order may be executed in any Division of the High Court and not

necessarily only within the area or Division of the court concerned. The order for attachment must be issued by the court in which the main action is to be

instituted, and not in the court where the property of the peregrine defendant is situated.

In terms of the given facts, either the Free State High Court, Bloemfontein, or the South

Gauteng High Court, Johannesburg, may issue an order for attachment, despite the fact

that the attachable property is situated in the area of jurisdiction of the KwaZulu-Natal

High Court, Durban.

278

SUBMISSION / CONSENT:

Only relevant for monetary claims:

The persons who may submit to jurisdiction:

Where the defendant is an incola of the court Will never occur, since the court is already vested with jurisdiction ratione domicilii

Where the defendant is a peregrinus of the court concerned but an incola of some

other South African court: Veneta Mineraria v Carolina Collieries, the court held that,

despite submission to jurisdiction, one of the traditional grounds of jurisdiction, or

rationes jurisdictionis, still had to be present. The defendant in this matter was a local

peregrinus and the court refused to accept that submission vested it with jurisdiction,

since the cause of action had not arisen within its area of jurisdiction. It therefore appears

that a local peregrinus cannot submit to the jurisdiction of a court but that action must

be instituted against him or her in the court within whose area the cause of action arose,

or alternatively, in the court whose area he or she is an incola.

Where the defendant is a peregrinus of South Africa and the plaintiff an incola of

the court concerned: in the Veneta case the court stated that, in addition to submission,

one of the traditional grounds of jurisdiction also had to be present. The fact that a court

may exercise jurisdiction if the plaintiff is an incola, the defendant a foreign peregrinus,

and arrest or attachment to found jurisdiction has taken place, was not viewed as a

traditional ground of jurisdiction, but as a development to assist incolae to litigate at home.

Although this statement in the Veneta case is obiter as far as incolae plaintiffs are

concerned, the subsequent case of Briscoe v Marais held that this meant that submission

could not take place unless the cause of action arose within the court’s jurisdictional area,

irrespective of whether the plaintiff was an incola or a peregrinus. The current position is

thus that a peregrinus defendant cannot avoid attachment to found jurisdiction by

submitting to the court’s jurisdiction.

Where the defendant is a peregrinus of South Africa and the plaintiff a local or

foreign peregrinus: the cause of action must have arisen within its jurisdictional area

and attachment to confirm jurisdiction must have taken place. If a foreign defendant

submits to a court’s jurisdiction in such circumstances, and does so prior to an

attachment order being made, submission will render an attachment unnecessary. In the light of recent case law, it thus appears that this is the only instance in which

submission to jurisdiction can take place. In addition, rather than being an independent

ground on which jurisdiction can be exercised, submission is merely a substitute for the

confirmation of jurisdiction by attachment.

When does submission occur? Submission can occur either by way of the mutual

consent of both parties or as a result of the defendant’s unilateral action. Mutual

consent is usually embodied in a contract or other documentary proof. However,

submission by a defendant can take place in a number of ways. If a dispute arises

about whether the actions of the defendant are consistent with a submission to

jurisdiction, the onus rests on the plaintiff to prove that the defendant’s behaviour has

given rise to a clear inference that he or she submitted to the jurisdiction of the court.

279

A further question is whether a peregrinus defendant can submit to the jurisdiction of a

court after arrest or attachment has occurred so as to obtain the release of his or her

property. In Bettencourt v Kom the court held that submission after arrest or attachment

is too late and cannot be set aside by the court.

Claims relating to property:

Two forms of property: Immovable or fixed property (land) Movable property (jewellery)

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.

Abrahamse & Sons v SA Railways and Harbours: The proper legal meaning of the

expression ‘cause of action’ is the entire set of facts which give rise to an enforceable

claims 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.

Which of the grounds of jurisdiction apply?

As far as claims involving the title to immovable property are concerned, it is clear that

the forum rei sitae will possess jurisdiction to hear such claims. Further, despite some

evidence to the contrary in the case of Hugo v Wessels and Ward v Burgess, it will seem

that the forum rei sitae is the only court which will possess juriscdition in such matters.

Immovable property – claims for transfer

In relationship to claim for the transfer of immovable property, once again it is clear that

the forum rei sitae will possess jurisdiction to hear such claims. As to the question of

whether or not the any other court or courts will possess jurisdiction in such matter,

the answer seems to depend upon whether the action is in rem or in personam.

According to the following extract from Pollak on Jurisdiction, it would seem that the

forum rei sitae will exercise exclusive jurisdiction in relation to an acto in rem for the

transfer of immovable property, but will share jurisdiction with other courts (e.g. the

forum domicilli) in relation to an actio in personam for the transfer of immovable

property:

It is submitted … that a provincial or local division of the Supreme Court [i.e. the High

Court] has no jurisdiction to entertain an action in rem in which the transfer of

immovable property is claimed if the property is situate outside the area over which such

division exercises jurisdiction. If, however, the court has jurisdiction over the defendant

on recognised common law grounds, it can, in an action in personam, compel him to

take whatever steps are necessary to fulfill n obligation to transfere immovable property

situate outside the area over which the court exercises jurisdiction.

280

Movable property – claims involving title

As far as claims involving title to movable property are concerned, it is clear that the

forum rei sitae will possess jurisdiction to hear such claims. Note that although the

property must be situated within the area over which the court exercises jurisdiction at

time legal proceedings are instituted, the court will not be deprive of jurisdiction if the

property is then removed from its area of jurisdiction. As to the question of whether or

not any other court or courts, will possess such matter, the following is stated in Pollak

on jurisdiction.

Movable property – claims for delivery

In relation to the claims for delivery of the movable property, once gain it is clear that

the forum rei sitae will possess exclusive jurisdiction in such matters. Provided that the

property is situated within the Republic, the forum domicilli of the defendant will also

possess jurisdiction in a claim of delivery of movable property. Furthermore, according

to the learned author of Pollak on Jurisdiction, other cpouts which exercise jurisdiction

over the defendant on some recognised ground (e.g. ratione contractus) may also possess

jurisdictionin such matter:

If … movable property, although outside the jurisdiction of the court is within the

Republic, it would seem that any division, though it neither the forum domicilli nor the

forum rei sitae will have power to order the delivery of movable property it is has

jurisdiction over the defendant on some recognised ground. For instance, if the contract

for the delivery of the property were concluded within the area over which the court

exercises jurisdiction, then there is no reason in principle why the court which can

exercise jurisdiction over the defendant ratione contractus should not also have power

to order the delivery of the property.

Where the object of relief is immovable property The court in whose territorial area the immovable thing is situated has exclusive

jurisdiction in actions:

- To determine the title of immovable property

- For the transfer of immovable property

- For the partition of immovable property

- Where a real right is in dispute

- Where possession of immovable property is claimed

- 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

Where the object of relief is movable property

The court in whose territorial area the movable property is situated has jurisdiction in

any action

281

- To determine the title to such property

- For delivery of the movable property

- Where a real right in respect of such property is at issue.

Whether the jurisdiction of the forum rei sitae is exclusive as far as movable property

is concerned, is open to debate. Unlike immovable property, movables can be removed

from the jurisdictional area of a court, while remaining under the control of their owner

or possessor. It would therefore appear that a court which has power over the owner

or possessor should also be able to exercise jurisdiction.

Our courts have not pertinently decided this question, and the current position is

therefore that, while the forum rei sitae will always have jurisdiction, it is unclear

whether the forum domicilii of the defendant will also be able to exercise jurisdiction.

Matrimonial jurisdiction:

Domicile and residence: 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


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


section 1(1) of the Domicile Act and not in accordance with its common-law definition.

The basic common-law principle regarding divorce jurisdiction was that the court of the

common domicile of the parties had jurisdiction to hear an action for divorce. This makes

sense, as the court where the parties have their home is the court that has the greatest

interest in their status and future arrangements. Private international law determines

this to be the most appropriate court to make such an order and so its order is generally

recognized and accepted.

Although, in the past, the common domicile rule was generally appropriate, it did cause

severe hardship to the wife in certain circumstances. Firstly, the “common domicile” of

the parties was viewed as that of the husband. Secondly, in South Africa the structure

of the High Court’s meant that a party who wished to obtain a divorce was not able to

rely on a countrywide jurisdiction, but had to prove jurisdiction within the area of a

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particular court. The result of these factors was that a deserted wife, whose husband

had moved elsewhere, often found it difficult or impossible to institute divorce

proceedings.

The problems experienced by deserted wives led to the introduction of a series of

legislative changes, culminating in the changes to the Divorce Act 70 of 1979 and the

introduction of the Domicile Act 3 of 1992. The result is that the wife’s domicile of

dependence has been abolished and she now has an independent domicile. A divorce

action is clearly defined in section 1(1) of the Divorce Act and section 2(1) of the Divorce

Act provides for jurisdictional grounds in a divorce action. What is important is that the

divorce jurisdiction is not restricted to the court within whose area the defendant is

domiciled. The plaintiff/applicant may sue in the domicile area of either of the parties

or the area where one of the parties is ordinarily resident. Section 2(1) is a departure

from the common-law principle of actor sequitur forum rei.

Current legislation regulating divorce jurisdiction:

The question of whether a particular High Court has jurisdiction to hear a divorce is

determined by the Divorce Act 70 of 1979. NBNB is that a court may exercise jurisdiction

on the basis of the independent domicile or residence of either the husband or the

wife. Domicile and residence are established as independent and alternative

jurisdictional grounds.

Independent domicile also applies to couples who enter into a civil union under the Civil

Union Act 17 of 2006, which legalised same-sex marriages. (The legal consequences of

a civil union are the same as those of a marriage under the Marriage Act 25 of 1961,

and any reference to marriage in any law is deemed to include a civil union, and any

reference to a husband, wife or spouse is deemed to include a spouse or partner in a

civil union.)

The ordinary meaning of section 2(1) is clear. A court may exercise divorce jurisdiction

if both or either of the parties are/is domiciled in its area of jurisdiction on the date on

which the action is instituted (s 2(1)(a)).

Alternatively, a court may also exercise jurisdiction if both or either of the parties

are/is 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 (s 2(1)(b)).

A court may exercise jurisdiction in the case of a divorce if only one of the parties is

either domiciled or resident in its area of jurisdiction. This has the following

implications: 1. the domicile or residence of one spouse alone is sufficient to confer the

competence to exercise divorce jurisdiction over the other spouse.

2. the domicile or residence of the one spouse is sufficient to confer jurisdiction,

even if the other spouse is domiciled or resident outside the Republic. In other words, a

spouse who is domiciled or resident outside the Republic and who has never had any

personal links with the Republic may, as plaintiff, institute divorce proceedings in South

Africa in a particular High Court on the grounds that the other spouse is domiciled or

resident within that court’s jurisdiction.

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It is unclear how much time must elapse before domicile or residence in terms of the Act

has been established. Section 2(1)(a) provides that, if both or either of the parties are/is

domiciled within the area of a court, such court will be competent to exercise divorce

jurisdiction, irrespective of the period of domicile (s 1(1) of the Domicile Act).

This contrasts with the provisions of section 2(1)(b), which require a period of residence

of not less than one year within the Republic immediately prior to the institution of the

action. The period of residence for one year in the Republic is not clearly defined,

however. It seems that this period of one year’s residence includes any antenuptial

period of residence (i.e. the period of residence before the conclusion of the marriage).

For instance, a spouse who institutes divorce proceedings could have been resident in

the Republic for a period exceeding one year, but only have been married for a month

immediately prior to the institution of the proceedings.

Section 2(2) provides that a court that has jurisdiction to adjudicate a claim for divorce

in terms of section 2(1) also has jurisdiction in respect of a claim in reconvention or an

application in the divorce action concerned. Section 2(3) deals with choice of law. It

determines that, in the circumstances stated therein, a “court” must apply its own law

when adjudicating a “divorce action”.

With the advent of the Jurisdiction of Regional Courts Amendment Act 31 of 2008

(JRCAA), the jurisdiction of the regional courts was extended to include divorce matters.

This Act also repealed section 46(1) of the Magistrates’ Courts Act in so far as it provided

that a magistrates’ court could not grant a divorce, because a divorce affects the status

of the parties and status must be decided by the High Courts.

Section 1 of the Divorce Act of 1979 has been amended to extend the definition of “court”

to include a reference to a regional magistrates’ court division.

The jurisdiction of the regional magistrates’ courts in respect of divorce and related

matters is now as follows:

(a) Section 28(1A) of the Magistrates’ Courts Act provides that a regional

magistrates’ court shall have divorce jurisdiction over both or either party who

is “(i) domiciled in the court’s area of jurisdiction on the date on which the

proceedings are instituted; or (ii) ordinarily resident in the court’s area of

jurisdiction on the said date and has been ordinarily resident in the Republic

for a period of not less than one year immediately prior to that date”.

(b) Section 29(1B)(a) of the Magistrates’ Courts Act provides that a regional division shall have jurisdiction to determine actions relating to the nullity of a

marriage and divorce, as well as related matters. A regional magistrates’ court

may also hear any matter provided for in terms of the Recognition of Customary

Marriages Act, 1998. In terms of this Act, a valid customary marriage can only

be dissolved through a decree of divorce on the grounds of the irretrievable

breakdown of the marriage, in the same way as civil marriages.

(c) In terms of section 29(1B)(b), a regional magistrates’ court hearing any of these

matters shall have the same jurisdiction as any High Court regarding such

matter.

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The keywords contained in section 2(1) of the Divorce Act of 1979 are as follows:

• both or either of the parties

• is or are domiciled

• area of court

• time of the institution of the action

• OR (introducing residence as the alternative ground)

• ordinarily resident

• in the area of court (local residence requirement)

• at time of institution of the action

• AND (an additional residence requirement)

• ordinarily resident

• in the Republic (national residence requirement)

• not less than one year prior to the institution of the action

Jurisdiction in respect of nullity and annulment Falls outside the scope of the definition of “divorce action” as contained in section 1 of

the Divorce Act and therefore the provisions of section 2 do not apply in this respect.

Void and voidable marriages. 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) The court where the plaintiff or the defendant is domiciled at the time nullity proceedings

is instituted. In an action for the annulment or dissolution of a marriage which is not void, but

simply voidable, a change of status does take place. As soon as it is set aside, the status

of the parties’ changes, and, for all practical purposes, the parties are placed in the

position in which they were at the time the marriage was entered into.

The functions of The Constitutional Court:

The Constitutional Court is situated in Johannesburg. It comprises the Chief Justice of

South Africa, the Deputy Chief Justice of South Africa and nine other judges. At least

eight judges must hear a matter that comes before the Constitutional Court. Its

jurisdiction is set out in section 167(3)–(7) of the Constitution of the Republic of South

Africa, 1996, as amended by the Constitution Seventeenth Amendment Act (CSAA) of

2012. This court has four functions:

(1) It is the highest court of appeal in respect of both constitutional and non-

constitutional matters (s 167(3)(a)).

(2) It is the only court that may hear disputes between organs of state at national or

provincial level; hear certain applications by the legislature about the constitutionality

of parliamentary and provincial bills and Acts; take decisions on whether parliament or

the president has failed to comply with a constitutional duty; and certify provincial

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constitutions (s 167(4)). As regards these matters, the Constitutional Court has

exclusive jurisdiction.

(3) This court may, in exceptional circumstances, grant anyone direct access when it

is in the interests of justice to do so (s 167(6)(a)).

(4) The final function of the Constitutional Court is to confirm orders made by other

courts in which parliamentary or provincial legislation is declared invalid. Until the

Constitutional Court confirms an order of invalidity, it has no force (s 167(5)).

This court can therefore function either as a court of first instance or as a court of

appeal.

It is the only court which may:

a) hear disputes between organs of state at national or provincial level;

b) hear certain applications by the legislature over the constitutionality or parliamentary

and provincial bills and Acts;

c) takes decisions on whether parliament or the President has failed to comply with a

constitutional duty; d) and certify provincial constitutions

Constitutional jurisdiction: Previously, the Constitutional Court was the highest court on constitutional matters,

whilst the Supreme Court of Appeal was the highest court on all other matters. The

Constitution Seventeenth Amendment Act of 2012 now affirms the role of the Chief

Justice as the head of the judiciary and it broadens the jurisdiction of the Constitutional

Court by giving it powers to hear matters that have no constitutional bearing. This

means that the Constitutional Court is now the apex court on all matters. The aims of

these amendments are to enhance the independence of the judiciary, to ensure the

proper and effective functioning of all courts and to ensure the expeditious and cost-

effective handling of the appeals process. The Constitutional Court is concerned with

both constitutional matters and non-constitutional matters. Its jurisdiction is set out in

section 167 of the 1996 Constitution, which you must study carefully. Section 167(3): The Constitutional Court hears both constitutional matters and non

constitutional matters.

Section 167(4): This section sets out the matters in respect of which the Constitutional

Court has exclusive jurisdiction, that is, which only the Constitutional Court may

decide.

Section 167(5): Under the interim Constitution of 1993, only the Constitutional Court

could decide on the constitutionality of legislation. Section 167(5) of the 1996 Constitution

authorises the Supreme Court of Appeal and the High Court of South Africa to make such

decisions. However, if a superior court makes such a decision, it has no force until it is

confirmed by the Constitutional Court. The constitutional court exercises concurrent

jurisdiction with the high courts in respect of all other constitutional matters. It is the court

of final instance, and no further appeal is possible. It is possible, in exceptional

circumstances, to approach the constitutional court direct or to appeal to this court direct

despite the fact that the matter concerned falls within the concurrent jurisdiction of the

constitutional court, and so should first be heard by a high court or the supreme court of

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appeal. The constitutional court must give leave for an approach to it and the applicant must

show that it is “in the interests of justice” that this court be approached direct.

Jurisdiction of the supreme court of appeal This court may decide appeals “in any matter”, which includes appeals in constitutional

matters. A decision by the Supreme Court of appeal on a constitutional matter may be

taken on further appeal to the constitutional court. If an appeal deals with both

constitutional and non-constitutional issues, appeal must always be noted first to the

supreme court of appeal.

Jurisdiction of the high courts

A high court may now hear all constitutional matters apart from those which fall into

the exclusive jurisdiction of the constitutional court, and those which have been

assigned to another court by national legislation. The only other limitation on the constitutional jurisdiction of the high courts is that if

such a court makes a finding that parliamentary or provincial legislation or the conduct

of the President is unconstitutional, this must be confirmed by the constitutional court. Any order made by a high court or the supreme court of appeal on constitutional

invalidity is without effect until confirmed by the constitutional court. Section 21(1) of the SCA – this section provides that every High Court Division may

adjudicate on any cause arising within its territorial area of jurisdiction, except where

exclusive jurisdiction has been vested in another court or tribunal. (The phrase "causes

arising" has been interpreted by our courts to mean "legal proceedings duly arising",

that is, proceedings in which the court has jurisdiction under common law. Zokufa v

Compuscan Credit Bureau 2011 1 SA 272 (ECD). The High Court also has jurisdiction

over all persons residing in its territorial area. (In terms of common law, a court also has

jurisdiction over a person who is domiciled in its territorial area, even if that person is

temporarily residing elsewhere.)

MAGISTRATES COURTS:

Magistrates’ courts: creatures of statute: 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.

Definition of the “court” The definition of “court” in section 1 of the Magistrates Courts Act 32 of 1944 has been

amended, and in the new Act court now refers to a magistrates court ‘for any district or

for any regional division’. All mention of magistrates courts in your study guide refers to

the district magistrates courts, and not to the regional magistrates courts. The exclusion

of a case from the jurisdiction of the district magistrates courts does not necessarily

mean that such case is excluded from the jurisdiction of the regional magistrates courts.

Limitations on the jurisdiction of magistrates’ courts High

courts: geographical limitation:

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The only general limitation placed on the exercise of jurisdiction by a high court is

geographical. Magistrates’ courts: nature and amount of claim plus geographical limitation

The first question to be asked when dealing with jurisdiction is: “Can action be

instituted in a magistrate’s court?” This question has two parts: “Can this type of action ever be heard in a magistrate’s court?” (s46) And if

this question is answered affirmatively, you then ask: “Is the amount claimed so large that a magistrate’s court cannot hear the

matter?” (s29) Only after these questions have been answered can one ask:

In which magistrate’s court may action be instituted? (s28)

Limitations on the nature of the claim:

SECTION 46 – WHAT A MAG CANNOT HEAR:

Section 46(1): matrimonial matters Section 46(1) provides firstly that a magistrate’s court cannot grant a divorce. Divorce

affects the status of the parties and in principle matters of status must be decided by

the High Court. The section also states that a magistrate’s court will not have jurisdiction in matters in

which the “separation … of goods of married persons…” is sought. This has been

interpreted as meaning the goods of persons married in community of property. However, the court will have jurisdiction to hear an action by one party against the other,

if they are married out of community of property, for the return of goods claimed as his

or her. Extension of divorce jurisdiction to regional magistrate’s courts The JRCAA (The Amendment of the Jurisdiction of the Regional Courts Act, 2008)

has amended the Magistrates' Courts Act, so as to confer jurisdiction on regional

divisions of courts in respect of certain civil disputes. The Civil Regional Court will be jurisdictionally limited to those matters where the

quantum of the claim is between R200 000 and R400 000. Before the JCRCCA came into operation, family disputes, such as divorce and adoption

matters, were dealt with exclusively by the High Court and the Central Divorce Court in

Johannesburg. (see above)

Section 46(2)(a): validity of wills Although magistrates’ courts do not have jurisdiction to hear disputes regarding the

validity of wills or how they should be interpreted, these courts do have jurisdiction to

hear an action resulting from the provisions of a will, for example, payment of an amount

bequeathed in a will.

Section 46(2)(b): status as regards mental capacity A magistrate’s court is not empowered to declare a person insane, or to declare a person

incapable of managing his or her own affairs. However, a magistrate is authorised to appoint a curator ad litem for a person who has

already been declared insane or incapable of managing his or her own affairs.

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Section 46(2) (c): specific performance – NBNBNB!!! The traditional meaning of the phrase “specific performance” is that of specific

performance of a contractual obligation. Such orders were traditionally granted only by

the superior courts, as they require someone to perform a particular action, and the

superior courts were the only courts deemed competent to make such orders. Two main questions have arisen:

1. Was the phrase “specific performance” limited to performance in terms of a contact

or performance in general?

2. Could payment of money in terms of a contractual debt ever amount to specific

performance (ad factum praestandum – specific performance “proper” & ad pecunium

solvendum – to pay a sum of money) or was specific performance limited to

performance of a particular action? The first question was decided in (Maisel) where the court held that the words were

limited to the traditional meaning of specific performance in terms of a contract and

could not be widened to include any order to perform a particular action. The second question was finally decided in (Tuckers Land) where the court held that a

claim for payment of a purchase price in terms of a contract, although strictly speaking

a claim for specific performance, was not a claim for specific performance in terms of

this section, and that a claim sounding in money, whether the debt arose from a contract

or not, could never be a claim for specific performance. This subsection applies only where there is a claim for specific performance of a contract

that is where the defendant has to perform a particular act because he contractually

undertook to do so. This restrictive approach appears to be what the legislature intended

when passing the subsection.

If Nicola decides to complete the building work, but Peter commits a breach of contract by

refusing to pay Nicola after the house has been built, Nicola is able to sue Peter in the

magistrate’s court for payment of the contract price, because payment of the contract price

is not seen as specific performance. (If the extensive interpretation suggested in (2) above

had been placed on section 46(2)(c), Nicola could not have sued Peter in the magistrate’s

court because non-payment of the purchase price would be non-performance in terms of a

contract.) However, if Nicola refuses to build the house and Peter has paid him to do so, Peter cannot

ask a magistrate’s court to force Nicola to build the house. She can do this only in the High

Court, as this is a true claim for specific performance. The magistrate’s court can make

such an order only if Peter includes a claim for damages as an alternative, in which case

it will order Nicola to build the house or, alternatively, to pay Peter damages.

The exceptions to s46(2)(c), seen below, are s46(2)(c)(ii) and (iii) which relates to the

delivery of a movable (which a Magistrate may now hear, provided the monetary value

of the delivery of the movable falls within the courts’ jurisdiction – thus, R200 000 for

district and R200 000-R400 000 for a regional court) and the transfer of an immovable

(value within court’s jurisdiction) which CAN be heard by a Magistrate.

Section 46(2) (c) (i): “rendering of an account” Victor Products: the right at common law to claim a statement of account is

recognised in our law, provided the allegations in support thereof make it clear that

the said claim is founded upon a fiduciary relationship between the parties or upon

some statute or contract which has imposed upon the party sued the duty to give an

account.

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If the claim for specific performance without an alternative of payments of damages if

fro the rendering of an account, in respect of which the claim does not exceed R200 000,

the matter may be heard in the Magistrates’ Court. A duty to account may arise in different circumstances. For example, this duty may form

part of contract between the parties, or it may arise out of the fact that the parties stand

in a fiduciary relationship to one another, as in the case of partners in a partnership.

Note, however, that a duty on account does not arise simply because a debtor-creditor

relationship exists between the partners

Sections 46(2) (c) (ii) and (iii) S46(2) (c) (ii) and (iii) an order which may be granted is limited to the delivery or transfer

of movable or immovable property, and no more. Hardwood Timber, the court refused to

order that an accepted promissory note be delivered to the plaintiff, since this would

have meant that the defendant would have had to accept the promissory note before

delivery.

Delivery or transfer of property value at or under R200 000

If the claim for specific performance without an alternative of payment of damages is for

the delivery of transfer for the property, movable or immovable, which does not exceed

R200 000, the matter will be heard in the Magistrates’ Courts.

This exceptional covers many claims which arise in practice. For example, you agree to

sell me your car for R150 000 back to me, but you refuse the deliver the car to me. You

offer to pay R1500 000 back to me, but I insist that want the car as we agreed. This is

a claim for specific performance without an alternative of payment of damages. However,

since I am asking for the delivery of movable property, the matter is not beyond

jurisdiction of the Magistrates’ courts. Delivery or transfer of property valued at over R200 000

If the claim of specific performance without an alternative for payment of damages is for

the delivery of transfer of property, movable or immovable, which exceeds R200 000, the

matter may be heard in the Magistrates’ Courts, provided that the parties consent to the

jurisdiction of the Magistrates’ Courts in terms of s 45.

Thus, the following methods may be used to decide whether or not the claim for specific

performance is excluded from the jurisdiction of the Magistrates’ Courts in terms of s

46(2)(c):

1. Does the claim for specific performance arise out of contract? If not, then the

claim does not fall within the ambit of s 46(2)(c).

2. What if an alternative claim for the payment of damage is attached to the claim

of specific performance? Then the claim does not fall within the ambit of s

46(2)(2) and the claim may be brought in the Magistrates’ courts.

3. Is the claim for the rendering of an account? If so, then the claim is n exception

to s 46(2)(c), and the claim maybe be brought in the Magistrates’ Courts,

provided that the account is for R200 000 or under.

4. Is the claim for the delivery or transfer of property? If so, then the claim is

exception to s 46(2)(c), and the claim ay be brought in the Magistrates’ courts,

provided the, if the value of the property is over R200 000, both parties have

consented I writing to the jurisdiction of the Magistrates’ Courts.

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Section 46(2)(d): perpetual silence A decree of perpetual silence is a court order instructing someone who has threatened

to institute litigation to do so within a set period. If action is not instituted within this

period, the person is barred from ever instituting action on those facts. A decision on the granting of such a decree, the court would consider the following

factors:

• The nature and subject-matter of the claim • Prejudice to the parties • The balance of convenience • The period of delay since the threat of litigation had commenced • Whether the threats of litigation constituted a disturbance of the applicant’s

rights A magistrate’s court is prevented from making such an order presumably because it

limits the right of access to legal assistance. Garber NO V Witwatersrand Jewish Old

Age Home 1985 (3) SA 460 (W)

SECTION 29:

LIMITS AS TO $: Section 29(1): subject to the provisions of this Act… This refers to other sections of the Act dealing with jurisdiction.

Section 29(1): … causes of action Reference is made to “causes of action” and “action”. The word “action” must be

interpreted broadly and must not be restricted to mean proceedings instituted by way

of summons only. The word refers to all proceedings in the magistrates’ courts, and

includes all applications.

Section 29(1) (a): …delivery or transfer of any property… “Value” in this section means the actual market value of the property concerned, in other

words the amount of money which would be paid for the property in an open sale.

Section 29(1) (b): … actions of ejectment… where the right of occupation is in

dispute between the parties – briefly!! An action for eviction is not a claim for specific performance. Therefore, the provisions

of section 29(1) (b) should not be considered an exception with regard to section 46(2)

(c). It is extremely difficult to lay down general rules for determining whether the “right of

occupation exceeds R200 000 in clear value to the occupier”, but note the following:

• The rental for the premises is not always the correct criterion for calculating the

value of the right of occupation, since the rental value is really the value to the

landlord, and, in certain cases, the rental value may be far below the true value of

occupation to the occupier

• The capital value of the premises is also not necessarily an indication of the value

of occupant, except where the defendant claims ownership of the premises

• Where premises are occupied for residential purposes, the value of the right of

occupation is probably equal to the rental of other premises similar to the one in

dispute, calculated over the same period of occupation

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• If, however, the premises are being occupied for business purposes, the value of

the right of occupation is probably equal to either

• The cost of renting other premises on which the occupier has a reasonable

expectancy of making the same profit as on the premises in dispute, or

• The amount of the profit which the occupier is reasonably expected to make on

the premises in dispute.

This provision must be read in conjunction with the relevant statutory provisions

regulating this area of the law, such as the Prevention of Illegal Eviction from and

Unlawful Occupation of Land Act 19 of 1998 (known as PIE)

Section 29(1) (c): actions for the determination of a right of way, notwithstanding

the provisions of section 46 (THINK: “(c) = right of way (servitude)”) It is not necessary to wonder whether a right of way is an order for specific

performance, as the provisions of section 46 are excluded here. It is also not necessary

to determine the value of the right of way, as no limit is placed on the value thereof,

and so it seems that magistrates’ courts may create or confirm any right of way,

irrespective of its value to the parties.

Section 29(1) (d): …liquid document or mortgage bond (THINK “(d) = mortgage) A liquid document is a document in which a debtor, above his signature or that of his

agent, admits that he is liable for a fixed or ascertainable sum of money. A magistrate’s

court will have jurisdiction in a claim for payment of R70 000 even if the amount of the

bond is for R500 000.

***Section 29(1) (e): …credit agreement as defined in section 1 of the Credit Agreements Act 75 of 1980… (THINK (e) = credit) A credit agreement is an agreement for an instalment sale or for a lease transaction. It

is commonly found when large items such as furniture or motor vehicles are purchased,

and the purchaser cannot pay the full amount immediately, but receives the goods

concerned and pays the amount due in payments over a period of time. The plaintiff in such an action, who will be the person or institution who granted credit,

can seek one of two things; recovery of the property he sold by hire- purchase or lease,

or payment of money owing in terms of the agreement. If the plaintiff’s claim is for payment of one or more outstanding payments, each

payment must not exceed the financial limit. The total amount of the various payments

can exceed the limit, as each payment constitutes a separate claim.

Section 29(1) (f): …actions in terms of section 16(1) of the Matrimonial Property

Act 88 of 1984…- Brief!!! It was pointed out in section 46(1), that section 16(1) of the Matrimonial Property Act is

one of the exceptions to section 46(1). Section 29(1) (f) was introduced in 1984 when the Matrimonial Property Act came into

operation. Section 16(1) of this Act provides that where a spouse refuses to, or cannot,

give consent to various transactions relating to property belonging to the joint estate or

the other spouse, and which require the consent of both parties, the other spouse may

approach a magistrate’s court for assistance.

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Section 29(1)(fA): actions including an application for liquidation in terms of the

Close Corporations Act 69 of 1984 (THINK (fA) = the only insolvency case heard in a Magistrate) This is the only insolvency application which a magistrate’s court may hear. The

Insolvency Act 24 of 1936 provides that sequestrations and liquidations must be decided

by the High Courts.

Section 29(1) (g): …actions other than those already mentioned This section is relevant when claims in the alternative are drafted. If for example delivery

is claimed, neither the value of the property nor the alternative claim for damages may

exceed the financial limitation

Section 29(2): “Action” includes a claim in reconvention A claim in reconvention is a

counterclaim that the defendant may institute against the plaintiff when he or she

defends the plaintiff’s claim. This subsection merely confirms that these claims are also

subject to the same financial limitations Jurisdiction in respect of persons (geographical considerations):

SECTION 28: In a problem question, look where does the defendant reside; carry on business or is

employed, that court will always have jurisdiction, according to s28(1)(a) – not ratione

domicilii as in high court!

Section 28(1)(a): any person who resides, carries on business or is employed within

the district

a) Reside The meaning of the concept is unchanged in both courts b)

Carries on business

The business carried on must be one’s own business. An artificial person, such as a

corporation or company, carries on business in the place where its head office is

situated, although a large company may clearly carry on business in a number of

places simultaneously. c) Is employed A person who “is employed” does not “carry on business”. A

degree of permanent employment is required. d) Time at

which position is determined In (Mills) section 28(1)(a) was interpreted as follows: the date of service of the summons

and not its date of issue is the determining factor in establishing whether a defendant

was “employed within the district” of the magistrate’s court concerned.

Where does a natural person reside? Beedle &

Co v Bowley:

When it is said an individual resides at a place it is obviously meant that it is his

home, his place of abode, the place where he generally sleeps after work of the day is

done. The person must been residing within the territorial area of jurisdiction of that court at

the time legal proceedings were instituted, i.e. at the time the summons or notice of

motion was served. You do not become a resident of a place if you are only visiting that

place for a short period. For example, if you leave your home in Pretoria to spend a

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two-week holiday in Durban, you do not become a resident of Durban. DON’T confuse

the concept of ‘residence’ with that of ‘domicile’. While it is possible to have more than

one place of residence, it is not possible to have more than one place of domicile.

Finally, note that choosing an address as domicilium citandi et executandi does not

mean that you ‘reside’ at that address.

Section 28(1)(b): any partnership within the district A partnership is not a juristic entity and, if sued in terms of common law, all the partners

have to be sued jointly. This was extremely inconvenient if the partners lived in different

districts and as a result, section 28(1) (b) was introduced for the sake of convenience. A

partnership can be sued in any area where it has business premises or where any one

of the partners resides.

Section 28(1)(c): any person…in respect of any proceedings incidental to any action At common law, a plaintiff is deemed to submit himself or herself to the jurisdiction of

any court where he or she institutes action in respect of any counterclaim. A plaintiff in

a High Court action is therefore always subject to the jurisdiction of that court if the

defendant institutes a counterclaim. Common law does not apply in respect of the

jurisdiction of magistrates’ courts and so this assumption was not valid for magistrates’

courts. The legislature introduced section 28(1)(c) to deal with the problem, but was not

completely successful, because of the use of the word “incidental”. Different kinds of

proceedings are incidental to the main action.

Section 28(1)(d): …cause of action arose wholly within the district – VERY NB!!! Jurisdiction is determined by where the cause of action arose, not where the defendant

is found. In terms of common law jurisdiction may be exercised ratione rei gestae in the High

Courts. However, in the High Court, the cause of action need only have arisen partially

for a court to be vested with jurisdiction. In contrast, in magistrates’ courts the Act

provides that the cause of action must arise wholly in the relevant area before a court

will be vested with jurisdiction.

In the High Court, it is sufficient to show, in an action based on a contract that the

contract was concluded, or was to be performed, within a particular jurisdictional area.

In the magistrate’s court, however, it must be shown not only that the contract was

concluded within the district concerned, but also that the breach occurred there

as well, in other words, the cause of action must have arisen “wholly” within the

district. What does the word “wholly” mean in the context of the Act? The concept

“whole cause of action” has been considered in a number of court decisions. It 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. In King’s Transport, the court drew a distinction between facta probanda (facts at issue)

and facta probantia (facts relevant to the facts at issue, and which are used to prove the

facts at issue). The facta probanda must all have occurred within the jurisdictional area

concerned, but not the facta probantia. Rule 5(6)(a) of the Magistrates’ Courts Rules

provides that, should the plaintiff sue in terms of a capacity conferred by section

28(1)(d), the summons must state that the cause of action arose wholly within the

district or regional division, and must set out the particulars in support of such

averment. A mere averment that the whole cause of action arose within the district

magistrate’s court or regional magistrate’s court is therefore insufficient.

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Cause of the action arising ‘wholly’ states that a Magistrate’s Court will have jurisdiction

over:

any person… if the cause of action arose wholly within the district of regional

division…

The phrase, “if the cause of action arose wholly within the district’ was defined as follows

by Appellate Division in the case of Mckenzie v Farmers’ Co-operative Meat Industries

Ltd:

Every fact which it would be necessary for the plaintiff to prove, if traversed, in

order to support his right to the judgment of the court. It does not comprise very

piece of evidence, which is necessary to prove each fact, but every fact, which is

necessary to be proved.

In other words, if you want to rely on s 28(1)(d) for jurisdiction, then every fact which

your client must prove in order to succeed in his or her claim, must have arisen within

the district or regional division of the Magistrates’ Courts which you want to institute

action. It does not matter if certain pieces of the evidence, which are necessary to prove

those facts arose outside the district or regional division of the particular Magistrates’

Court. Therefore, it is important to distinguish between:

1. The facts, which must be proved in order to constitute a valid cause of action.

In Latin, these are called the facta propanda; and

2. All the different bits of evidence that must be led to prove the facta propanda.

In Latin, these are called facta probantia.

Section 28(1) (f): any defendant who appears and makes no objection… If a

person not subject to a court’s jurisdiction submits to it, such court will be vested with

jurisdiction by virtue of such submission. Subsection 28(1)(f) must be compared to the situation found in section 45, in the sense

that, in the case of section 45, the defendant positively consents to the jurisdiction of

the magistrate’s court. In terms of section 28(1)(f) = a failure to object to the court’s

jurisdiction. The defendant, by his or her failure to object, “consents” to the court’s jurisdiction only

in respect of his or her person. This means that submission in terms of section 28(1)(f)

is valid only when a court lacks jurisdiction in terms of section 28. Submission cannot

be used when a court lacks jurisdiction in terms of section 29 – then actual consent in

terms of section 45 is necessary.

Section 28(1) (g): any person who owns immovable property… Extends

jurisdiction to persons who owns immovable property within the area of jurisdiction of

a court, but who are otherwise not subject to such court’s jurisdiction in terms of any

other provisions of section 28(1). Thus, if the claim is regarding the immovable property,

the court where the immovable property is situated, has jurisdiction, BUT so does

s28(1)(a)!

Section 28(2): “The State” as defendant The words “person” and “defendant” also

include the state. In Minister of Law and Order v Patterson, the Appellate Division had

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to decide which magistrates’ court was competent to entertain an action against the

state. The court held that the question of whether the respondent was entitled to sue

the appellant in the Cape Town District Magistrates’ Court had to be determined by

reference to the provisions of section 28 of the Act. The court found that on the grounds

of convenience and in the interests of certainty, the rule adopted should be similar to

that which the courts apply when determining the forum in which a trading corporation

or other artificial person is sued in terms of section 28(1)(a). The court noted that the

“residence” or “place of business” of a trading corporation is interpreted as being the

place where the central management of such corporation is exercised. The court held

that Pretoria is regarded as “the seat of the Government of the Republic”. Thus the “place

of business” of the state in terms of section 28(1) is Pretoria.

Other provisions that determine whether a magistrate’s court may exercise

jurisdiction

Section 30: Section 30 provides that magistrates’ courts have jurisdiction to grant various types of

orders which might otherwise be excluded in terms of section 46(2)(c), which prohibits

magistrates’ courts from granting orders for specific performance without an alternative

claim for damages. In terms of section 30, magistrates’ courts may grant interdicts,

attachment orders, and arrests. In all instances, the provisions of sections 28 and 29

must still be complied with.

Interdicts An interdict is a court order in terms of which a person is ordered either to perform or

not to perform a specific act. An order that someone must not perform an act is a prohibitory interdict, while an order

that someone must perform an act is a mandatory interdict. A final interdict is an order that remains permanently valid; a temporary interdict is

granted either for a particular period of time or as an interim measure while the outcome

of the main case is awaited.

Definition: An interdict is a court order in terms of which a person is ordered either to

perform or not to perform a specific act. An order that someone must not perform an act

is a prohibitory interdict, while an order that someone must perform an act is a

mandatory interdict. Such orders may be final or temporary: a final interdict is an order

that remains permanently valid; a temporary interdict is granted either for a particular

period of time or as an interim measure, while the outcome of the main case is awaited.

It is clear that a mandatory interdict could be viewed as a form of specific performance

and so prohibited by section 46(2)(c), because an order to perform an act is frequently

very similar to an order for specific performance. However, in Badenhorst v

Theophanous 1988 (1) SA 793 (C), it was held that magistrates’ courts may nevertheless

grant mandatory interdicts, provided that such orders do not amount to “orders ad

factum praestandum in terms of a contractual obligation” as found in s46(2)(c) –

remember MC’s cant hear claims for specific performance “proper” in terms of Maisel &

Tucker’s Land).

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Magistrates’ courts may grant both final and temporary interdicts.

It is frequently difficult to determine the financial value that must be placed on an

interdict in order to decide whether it falls within the limits set by section 29. How, for

instance, do you assess the value of an order preventing an employee from giving

confidential information to another employer? It seems that if nothing appears to the

contrary in the pleadings or in evidence, or if the defendant does not dispute the

plaintiff’s allegation that the matter falls within the limits set by section 29, the court

will have jurisdiction.

However, if it is impossible to determine the value of the interdict and the plaintiff

decides to institute action in the High Court, this court will not penalise the plaintiff by

making an order for costs on the lower magistrates’ courts scale, but will grant him/her

costs on the High Court scale. Procedure for obtaining an interdict Interdicts may be obtained either by action procedure or by application procedure. If

application procedure is used, the provisions of rule 56 must be complied with. This

rule provides that all applications for orders for arrest, interdict and attachment must

be made ex parte. After the order has been granted, the respondent is given an opportunity to show the

court why the order should not have been granted and the order may then be

discharged, varied or confirmed.

Mandamenten van spolie A Mandamenten van spolie is a form of interdict. It is also known as a restitutionary

interdict, because it is an order forcing someone to return property that he or she has

taken unlawfully from another. The object of the Mandamenten is to prevent people from taking the law into their own

hands, and for this reason the court does not go into the merits of the matter until the

person whose possession was disturbed is placed in possession of the item. Once again, this form of order appears to contravene section 46(2) (c). However, the order

is usually not “in terms of a contractual obligation” and it has been held that a

Mandamenten van spolie does not contravene the provisions of section 46, because

section 46 is not concerned with “extraordinary remedies of a temporary nature”. The value of the property which must be returned will determine whether a magistrate’s

court is prohibited by section 29 from exercising jurisdiction.

The procedure for obtaining a Mandamenten van spolie The Mandamenten van spolie is usually obtained by means of an ex parte application, in

which case the procedure set out in magistrates’ courts rule 56, is followed. The action

procedure may, of course, be followed. In his or her sworn affidavit the applicant must show

* That he or she was in peaceful and undisturbed possession of the thing to which

the application relates and

* That he or she was forcibly and unlawfully deprived of possession by the

respondent

Arrests “tanquam suspectus de fuga” If a debtor owes money to a creditor, the creditor cannot enforce payment until a court

has given judgment against the debtor. For this reason a debtor sometimes attempts to

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leave South Africa before the granting of a court judgment against him or her because,

once the creditor has such a judgment, it can be enforced in most countries of the world. Its purpose is to stop a debtor from fleeing South Africa to evade judgment – its purpose

is not to force him or her to pay the debt.

Abolition of arrest tamquam suspectus de fuga The common law and section 30(1) of the Magistrates’ Court Act, which allow for arrest

tamquam suspectus de fuga, and section 30(3) have recently been declared

unconstitutional by the Constitutional Court in Malachi v Cape Dance Academy. (a) The

words “arrest tamquam suspectus de fuga”, as contained in section 30(1) of the

Magistrate Courts Act, are declared unconstitutional and invalid. (b) The whole section

30(3) of the Magistrates’ Courts Act is declared to be inconsistent with the Constitution

and invalid. In Malachi v Cape Dance Academy, the Constitutional Court decried the use of arrest

tamquam suspectus de fuga “without any regard to less invasive options that are

available”. The decision in Tatiana Malachi v Cape Dance Academy requires Magistrates’ Courts

Rules 55 and 56, which regulate the section 30 process by providing that an application

for an arrest tamquam suspectus de fuga may be made ex parte, to be amended

accordingly. Both the High Court and the Constitutional Court did not deal with arrest

tamquam suspectus de fuga under rule 9 of the Uniform Rules of Court and the common

law. Therefore, such arrests are still permissible. But given the Constitutional Court’s

confirmation of the High Courts finding on the constitutional invalidity of arrest under

section 30 of the Magistrates Court Act, it is highly unlikely that any application for

arrest tamquam suspectus de fuga, under rule 9 of the Uniform Rules and the common

law, will be found by any court to be justifiable and constitutional.

Attachments In actions where the payment of money or relief in regard to property is sought, it is

sometimes possible to attach property in the possession of the defendant in order to

obtain security for the claim. Attachment of property in terms of section 30 is not available in all instances –

* A person applying for an attachment must show that it is likely that the

respondent will dispose of the property in order to frustrate his creditors, or plans to

abscond with his assets

* The other instance when such attachments are granted is when a person does

not keep up his payments in terms of a credit agreement, and the creditor wants to

protect his position by attaching the goods, which he sold to the debtor, to safeguard

them.

Sections 31 and 32: rent interdicts As soon as a lessor falls behind with his rental, the landlord acquires a tacit hypothec

over all the household effects, which are on the leased property, for the rent which is

due. However, the moment the household effects are removed from the leased premises, the

tacit hypothec falls away. The landlord must therefore ensure that the household goods

remain on the premises, in order to maintain the hypothec.

The automatic rent interdict:

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• Although an ordinary interdict may be used to prohibit the removal of household

effects, the Magistrates’ Courts Act has created a simpler and less expensive

procedure in section 31. • This provides that, when summons is issued for arrear rental the plaintiff may include

in the summons a notice prohibiting anyone from removing from the leased premises,

any of the household effects which are subject to the hypothec, until an order dealing

with such goods has been made by the court. • The notice in the summons serves automatically as an interdict forbidding anyone

with knowledge thereof to remove goods from the premises, and no court application

or other formalities are required. The lessee or anyone else who is affected by the

notice may apply to court to have it set aside. Attachment of property in security of rent:

• The automatic rent interdict created by section 31 is effective only against persons

who have knowledge of it. Persons who are not aware of the contents of the summons

will not be in breach of the interdict if they remove property from the premises. • To protect the household goods against removal by anyone at all, section 32 provides

for an attachment order to supplement the effect of the interdict and to secure the

goods effectively. Section 32 provides that the court may authorise the sheriff to

attach enough of the movable property on the premises, which is subject to the

landlord’s hypothec, to satisfy the amount owed as rental. • The landlord must apply to court and, in his or her supporting affidavit, state the

following:

• The amount of rent due and in arrears - that the rent has been demanded in writing

for at least 7 days or, if this is not so, that he or she believes that the lessee is about

to remove the movable property on the premises to avoid paying rent. • The landlord must also provide security for all costs, damages and expenses which

may be a result of this order, should it be set aside at a later stage.

• The lessee may apply to have the order set aside.

Section 37: incidental jurisdiction: A question may arise during the proceedings of magistrates’ courts, which falls outside

the jurisdiction of these courts. The question can be one that no magistrate’s court

may hear in terms of section 46, or it can be one that exceeds the jurisdictional limits

of the courts as imposed by section 29. Section 37 provides that, while a magistrate’s

court may not make an order on matters falling outside its jurisdiction, it may make a

finding on such matters. The test to decide whether a court may decide a matter in

terms of section 37 is to look at the relief that the court is asked to grant: if that relief

falls within the jurisdictional limits of section 46 and section 29, the court may grant

such relief even if this means that it has to consider, and make a finding on, matters

outside its jurisdiction.

Section 50: removal to high court It sometimes happens that, despite the fact that the matter falls within the

jurisdictional limits of sections 46 and 29, a party feels that a matter is too complex for

him or her to wish it to be heard by a magistrate’s court. If that party is the plaintiff,

he or she is always free to institute action in the high court. There is nothing to

prevent a plaintiff from doing so – all that he or she need fear is a costs order against

him or her on the greater high court scale. If a defendant wishes to exercise this option, an application must be made to the court

where summons has been issued. The defendant must state that:

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* The amount of the claim exceeds R3000

* The applicant objects to the matter being heard by any magistrate’s court * Notice of

intention to bring the application has been given to the plaintiff and other defendants,

if any

* The applicant will furnish such security as the court determines, for payment of the

amount claimed and costs

If the applicant complies with these requirements, the case must be stayed in the

magistrate’s court. The plaintiff may then elect to have the matter transferred to the

relevant High Court having jurisdiction, or he may decide to issue a fresh summons in

the High Court. The only check on a defendant’s freedom to require that a matter be heard before a

High Court rather than a magistrate’s court is the costs order which the High Court

may make. Provisions affecting claims that fall outside the jurisdictional limits:

Section 38: Abandonment of part of the claim NB:

If plaintiff has a claim that is higher than the limit of Mag, but still wishes to sue in Mag,

he can abandon a part of his claim to bring the main claim within the court’s limit. He should be careful of abandoning if the type of claim is one based on a cheque, for

example, as this will be easily proved and he’d be foolish to abandon, he should rather

sue in High. If the claim is based on damages, he’d be wise to abandon the part in excess if Mag

jurisdiction. The court will consider and make a finding on the FULL AMOUNT BEFORE

ABANDONMENT but can only order payment of the maximum amount allowed by s29.

If court finds amount due exceeds the limits but is not the full amount claimed the

amount that the plaintiff was unable to prove is deducted 1st from the amount

which was abandoned. Thus a plaintiff who abandons a portion of his claim will

receive the amount proved or the maximum amount the court can grant whichever

is the LEAST!

Section 39: Deduction of an admitted debt:

If plaintiff issues summons against defendant, and defendant has a counterclaim against

him, and the plaintiff wishes to sue for an amount over R200 000 and is aware that

defendant might counterclaim, he can admit the debt owed by himself and deduct this

from his claim against the defendant. Plaintiff can’t expect an admitted debt to be deducted from the full amount claimed

before deduction – if the full amount is not proved. Thus, the plaintiff who uses s39

will always be awarded the amount proved in court less the amount due to

defendant. The following is an example of what the particulars of the deduction of a claim in the

plaintiff’s particulars of claim will look like: In terms of the above, Defendant is liable to pay the amount of R401 500 to Plaintiff.

Plaintiff admits that the amount of R1 500 is payable by him to Defendant for services

rendered by Defendant to Plaintiff during the period ... in terms of an oral agreement

between the parties.

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In order to bring his claim within the jurisdiction of the regional magistrate’s court,

Plaintiff admits, in terms of section 39 of the Magistrates’ Courts Act 32 of 1944, that he

owes the Defendant the amount of R1 500 and deducts the said amount of R1 500 from

his said claim of R401 500 against the Defendant. Wherefore Plaintiff claims: (1) Judgment against the Defendant for payment of the amount

of R400 000 ...

Example: Thandi wants to sue Thomas for R220 000. How can she do this in Mag? She has

2 options: she can abandon R20 000 in terms of s38 or she can deduct an amount

owed to Thomas by herself in terms of s39. If she owes Thomas R30 000 and he

will be able to counterclaim this, it will be to her advantage to deduct the amount

owed to Thomas from her claim. She will then claim an amount of R220 000 less

R30 000. If she proves the full amount R220 000, the court will award her R190

000. If she only proves R80 000, the court will only award her R50 000. If however,

she abandoned R20 000 in terms of s38, and proved the full amount due but Thomas had instituted

a successful counterclaim, she would have received R70 000 (R220 000 claimed –

R20 000 = R200 000 – R30 000 (owed to Thomas) = R170 000). If she had only proved

R190 000 she would only have received R160 000 (R190 000 – R30 000 owed to

Thomas).

Comparison of s38 and s39:

- Both relevant if plaintiff’s claim exceeds Mag limit.

- S39 only applies if plaintiff’s claim exceeds Mag limit and he is in fact indebted to

defendant.

- If both these factors exist (plaintiff’s claim exceeds R200 000 and he owes def cash) it

would be better for him to use s 39 – but if there is no debt owed to defendant then

obviously 39 irrelevant and plaintiff must decide to abandon or due in High.

Section 45: Consent:

Another possible way in which a claim for over R200 000 or over R400 000 may be

brought within the jurisdiction of the district magistrates’ courts or the regional

magistrates’ courts respectively (as the case may be) is for the parties to consent to such

jurisdiction. Section 45 gives parties the opportunity to consent that a district or regional

magistrate’s court may hear a matter between them, despite the fact that such a court

does not have jurisdiction in terms of either section 28 or section 29. Note that this

section pertinently provides that parties cannot consent to a court’s hearing a matter

that is excluded from jurisdiction by section 46. Therefore, matters excluded from the

jurisdiction of the magistrates’ courts by section 46 remain excluded, no matter what the

parties agree to. Note also that both parties must consent to jurisdiction – the defendant

must agree to cooperate with the plaintiff before the provisions of section 45 can be used. Section 45(1) deals with three possibilities:

(1) where the particular court has jurisdiction over the defendant in terms of section 28,

but the amount of the claim exceeds the limitations imposed by section 29 (e.g. A wishes to

sue B in district X [where B resides] for damages ex delicto amounting to R230 000)

(2) where the particular court has no jurisdiction over the defendant, in terms of section

28, and the amount of the claim exceeds the limitations imposed by section 29 (e.g. A wishes

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to sue B in regional district Y for damages ex delicto amounting to R430 000, and the court

in regional district Y does not have jurisdiction over B in terms of section 28)

(3) where the particular court has no jurisdiction over the person of the defendant, but

the amount of the claim is within the limitation imposed by section 29 (e.g. A wishes to sue

B in district Y for damages ex delicto amounting to R200 000, but the court in district Y

does not have jurisdiction over B in terms of section 28)

Jurisdiction in terms of section 28, but not in terms of section 29 Here, written consent may be given at any time, regardless of whether the action has already

been instituted or is about to be instituted. However, the consent must be in writing (Truck

& Car Co)

No jurisdiction in terms of either section 28 or section 29 In this case the consent must be given “specifically with reference to particular

proceedings already instituted or about to be instituted in such The following is an example of consent to jurisdiction in this type of case: Whereas A intends to issue a summons against B for payment of the amount of R330 000,

the parties hereby agree that the summons will be issued from the magistrate’s court for

the regional district of Trustville and B consents to the jurisdiction of the said court.

No jurisdiction in terms of section 28, but jurisdiction in terms of section 29 For some time the view was held that section 45(1) did not apply to cases where the court

had jurisdiction in terms of section 29, but not in terms of section 28. This view was expressly rejected in Van Heerden where it was held that even in such a case,

the consent must be “specifically with reference to particular proceedings already instituted

or about to be instituted in such court”. Section 45(2) deals with contractual agreements to institute action in a district or regional

magistrate’s court. In Truck & Car co, it was held that this prohibition relates only to

consent given when the court has no jurisdiction in terms of section 28. The prohibition is

not relevant when the court has jurisdiction over the parties, in terms of section 28, but

lacks financial jurisdiction in terms of section 29. It follows that a clause in a contract that reads as follows will be valid, provided the plaintiff

institutes action in a district magistrate’s court that has jurisdiction in terms of section 28: The parties agree that any action that might result from this contract will be instituted in a

district magistrate’s court, and the parties hereby agree to the jurisdiction of the said court. This clause is valid because consent has merely been given to the jurisdiction of a district

magistrate’s court, not to the jurisdiction of a particular magistrate’s court. It is for this

reason that a clause that reads as follows will not be valid, unless the court has jurisdiction

in terms of section 28: The parties agree that any action that might result from this contract will be instituted in

the district magistrate’s court of X and the parties hereby consent to the jurisdiction of the

said court. Procedure

The consent has to be in writing and it has to be given by all the parties involved. Consent

does not necessarily have to take the form of an agreement; there need merely be written

proof that the parties have consented to the jurisdiction of a particular court. It would be

acceptable, for instance, if the consent were contained in correspondence between the

plaintiff’s and defendant’s attorneys. Section 45 does not require that the written consent

be signed by the parties. The onus is on the plaintiff to prove that the defendant’s consent has been obtained, if the

plaintiff avers that the court has jurisdiction in terms of section 45.

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Section 43: Cumulative jurisdiction: Where more than one claim, each with A SEPARATE CAUSE OF ACTION is contained in one

summons, the court has because of s43, the jurisdiction for the one summons as if it would

have had if separate actions were instituted. Must be between same parties and must have different causes of actions. Example where this cannot work – X smashes into Y’s car. Y suffers damages for his car,

hospital bills and loss of amenities of life. He can’t then sue X for all 3 amounts in one

summons under s43 as the all arose from one cause of action. Therefore, if you have a number of separate claims, each of which is based on a separate

cause of action, these claims may be combined in one summons. Although the total amount

claimed in the summons may amount to more than R200 000 or R400 000, the district

magistrate’s court or the regional magistrate’s court respectively (as the case may be) may

still hear such a matter, provided that the amount of each individual claim is not more than

R200 000 or R400 000 (as the case may be). Section 43(2) provides for an exception to the restriction imposed by section 43(1). Because

of this exception, a plaintiff may, for instance, in the same summons in which confirmation

of an interdict is sought (or arrest granted pendente lite), claim damages from the defendant

on the grounds of his or her unlawful occupation of the plaintiff’s land, even though both

claims result from the same cause of action, and even though the total value of the subject

matter of the dispute (with regard to the interdict) and of the amount claimed in damages

exceeds the jurisdiction of the magistrate’s court. Note: the exception only applies to

interdicts or arrests, not to all types of claims.

Section 40: Splitting of claims NBNB:

This is the defence a defendant can raise against a plaintiff who tries to take one cause of

action’s many possible claims and tries to split them to bring his case within court’s

jurisdiction (each claim then brought into jurisdiction, whereas the total arising from one

cause of action would have exceeded Mag). Mohamed & Son v Mohamed 1959 (2) SA 688 (T) clearly illustrates how this definition can

be applied to a given set of facts. The case involved a plea based on section 40 of the

Magistrates' Courts Act of 1944 by the defendant in defence of a suit brought by the plaintiff.

The pertinent facts are that the plaintiff, a dealer, periodically sold goods to the defendant

on credit. The credit sale was an arrangement of several years' standing. Upon failure of the

defendant to pay the goods sold, the plaintiff instituted separate actions to recover the

purchase price of the delivered goods in respect of the separate sales. The defendant's plea was that the separate actions by the plaintiff amounted to a splitting

of claims contrary to section 40 in order to circumvent the limitations on the financial

jurisdiction. Provisions affecting claims, which fall outside limits of the court. Section 40

prohibits the splitting of a substantive claim exceeding the jurisdiction of the court in order

to recover the claim if the parties would be the same and the point at issue in all the split

actions would be the same. The court a quo ruled in favour of the defendant. On appeal,

the court ruled in favour of the plaintiff (appellant). According to the court, the plaintiff's

claim was based on separate causes of action, and therefore did not fall within the terms of

section 40. Each sale was entered into on different occasions, sometimes months apart, and

the points at issue in each sale were different. The defendant (respondent) failed to provide

the court with evidence that there was splitting of claims and that the plaintiff's intention

with the different actions was merely to recover the sum due to him in more than one action.

Mohamed & Son v Mohamed: SUMMARY There is no splitting of claims where the claims are based on different causes of action.

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Claims which are not distinct and separate and which arise out of one and the same cause

of action must be sued for as one claim in one action, and must not be split. In order to

succeed with a defence based on section 40, the defendant had to prove, apart from the

splitting of claims that the objective of the plaintiff was to recover an amount owing to him

in more than one action. According to the case, the sale of goods on credit, over several years, amounts to each of the

separate sales being a separate cause of action. In a quo, court said it was splitting of claims,

but on appeal, court decided that regarding credit sales, each sale is a separate cause of

action. Section 47: Counterclaims exceeding jurisdiction: If plaintiff’s claim under s29, but defendant’s counterclaim exceeds Mag’s jurisdiction,

defendant has 2 choices: He can order the stay of the plaintiff’s case in Mag and institute action against him in High

in the time period set by the Mag. Or he can abandon part of his claim to bring it within the courts jurisdiction in terms of

section 38. Otherwise the original plaintiff can counterclaim on the original defendant’s claim in the high

court. If the defendant does not institute action in the high court within the time given by the Mag,

the Mag may give him more time or dismiss the defendant’s counterclaim and proceed to

determine the plaintiff’s claim.

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Small claims court:

The small claims courts are regulated by the Small Claims Courts Act 61 of 1984. These

courts were introduced in order to achieve the following objectives:

• make the administration of justice more accessible to all South Africans

• provide a forum for the settling of minor civil disputes (The small claims courts deal

with minor civil claims of up to R15 000 in a speedy, affordable and simple manner,

without using legal representation or an attorney.)

• remove time-consuming, formalistic and expensive procedures

• introduce informal and simplified procedures in order to reduce the cost of litigation

and provide for the speedy determination of small claims

• further reduce the cost of litigation by prohibiting legal representatives from appearing

in a small claims court

• establish a consumer-oriented court

The purpose of the Act is obviously to solve problems experienced by litigants in other

courts. The purpose is therefore clear: extending the basis of every citizen’s right to have

access to justice. This is facilitated by

• self-representation by both plaintiff and defendant

• simplified pre-trial proceedings

• granting the commissioner an inquisitorial function

However, the different and simplified procedures that are applied in small claims courts

do not render these courts inferior to other courts; small claims courts are part of the

structures of the court system recognised in terms of section 166(e) of the Constitution

of 1996. Moreover, since they are courts of law, their judgments are binding and

execution of judgment is enforced by the state.

Please note that a small claims court is not a court of record. In other words, the

proceedings during a trial are not put into writing. However, there is one exception: the

commissioner must record his or her judgment or order and sign it (s 3(1)–(2)). All other

courts are courts of record. Like all other courts, the proceedings in a small claims court

must take place in an open court, except in extraordinary circumstances (s 4). In other

words, a small claims court is open to any member of the public who wishes to attend

its proceedings. Finally, the process of small claims courts is effective throughout the

Republic (s 3(4))

Small claims courts are courts of law; hence their judgments are binding and execution

of judgment is enforced by the state. Q: what are the shortcomings of small claims courts:

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• Very low jurisdictional limit restricts consumers to extremely minor claims • Certain claims are totally excluded from the jurisdictional competence of a small

claims court

• Only natural persons may appear in a small claims court • Review of proceedings is permitted but appeal is prohibited

Q: what are the differences between small claims courts and other courts o

Representation of a litigant by a member of the legal profession is disallowed o Pre-

trial formalities have been simplified and reduced to the barest essentials o Although

the relationship between the litigants remains adversarial, the role of the judicial

officer has changed. In other courts, the judicial officer has a passive role, while in

the small claims court the commissioner plays an active role in assisting the litigants

to present their cases at the trial.

Establishment and nature: The Minister of Justice may by, notice in the Government

Gazette, establish small claims courts in any district or part of a district of a magistrate’s

court. The officer presiding in a small claims court is called the “commissioner for small claims”

and is appointed by the Minister. A small claims court is not a court of record. In other words, the proceedings during a

trial are not put into writing. One exception: the commissioner must record his or her

judgment or order and sign it. The proceedings in a small claims court (like all courts) must take place in an open court,

except in extraordinary circumstances.

Right of appearance: Only natural persons. A juristic person may become a party to an

action as a defendant. This restriction limits the right of a juristic person to appear in a

small claims court. However, this restriction maintains small claims courts as consumer

courts which would probably otherwise be used by juristic persons to collect small debts,

thereby defeating the intention and purpose of small claims courts. Litigants must

appear in person before small claims court and may not be represented by any other

person during the trial. A juristic person may be represented by its authorised officer or

other officer.

Jurisdiction: Jurisdiction for the Small Claims Courts Act is almost identical to the

corresponding provisions of the Magistrates’ Court Act. Section 14 indicates the persons in respect of whom the small claims court will exercise

jurisdiction. The section coincides verbatim with section 28 of the Magistrates’ Courts

Act. The small claims courts’ jurisdiction in respect of causes of action is regulated by section

15 of the Act, which is essentially similar to the provisions of section 29 of the Magistrates’

Courts Act, except that the quantitative restrictions on all claims in small claims court is

R15 000. Section 16 stipulates which cases the small claims courts are not authorised to hear. Sections 17-24 deal with various instances related to jurisdiction, namely incidental

jurisdiction, abandonment, deduction of an admitted debt, splitting of claims, and

cumulative jurisdiction.

Institution of actions: In summary, the pre-trial stage is conducted as follows:

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A letter of demand is delivered to the defendant allowing 14 days from the date of receipt

of the demand to satisfy the claim If the defendant does not satisfy the claim set out in the letter of demand, summons must

be issued out of a small claims court Before issuing the summons, the clerk of the small claims court must set a time and a

date for the hearing, this information also being contained in the summons The

summons is then served on the defendant. The litigants themselves may affect service. No pleadings are required from the litigants. However, the defendant may at any time

before the hearing, lodge with the Clerk of the court a written statement describing the

nature of his or her defence as well as particulars of the grounds on which it is based. A

copy of this statement must be supplied by the defendant to the plaintiff.

Procedure and evidence: The rules of the law of evidence do not generally apply in respect

of proceedings in small claims courts. Section 26(3) introduces the inquisitorial system, and provides as follows:

• A litigant may not question or cross-examine any other litigant to the proceedings

in question or a witness called by the last-mentioned litigant

• But the commissioner must proceed inquisitorially in order to establish the

relevant facts

• And in this regard he or she may question any litigant or witness at any stage of

the proceedings

• Provided that the commissioner may in his or her discretion allow any litigant to

put a question to the other litigant or any witness

• Evidence to prove or disprove any fact in issue may be submitted in writing, or

oral evidence may be heard. In this regard, a litigant may call one or more

witnesses to prove his or her claim or defence. However, the right of a litigant to

call a witness does not affect the commissioner’s power to decide that sufficient

evidence has been adduced on which a decision can be made, and that no further

evidence may be led.

Appeal and review:

• Judgment or order of small claims courts is final and that no appeal will lie

against it.

• Therefore, no appeal is possible against a judgment or order of small claims

court.

• Although appeal is not permitted, proceedings may be reviewed in terms of

section 46, but only on the following grounds:

• Absence of jurisdiction • The commissioner’s interest in the action, or his or her bias, malice or corruption

• Gross irregularity with regard to the proceedings

Inquiry into financial position: The Act also provides for speedy execution after

judgment. The commissioner is obliged to ask the judgment debtor, after judgment has

been given, whether he or she is able to comply with the judgment without delay. If the

judgment debtor indicates that he or she is unable to do so, the court may conduct an

enquiry into the financial position of such debtor. After this enquiry, the court may make

an order to pay the judgment debt in instalments. This procedure is similar to the section

65A procedure in a magistrate’s court.

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However, the most important difference here is that, contrary to the section 65A

procedure, the enquiry in the small claims courts takes place immediately after judgment

and not, as in the case of the section 65A procedure, only after the lapse of 10 days during

which the judgment debt remains unsatisfied.

National Credit Act, 2005: Section 90 of the NCA prohibits clauses providing for consent to the jurisdiction of the

High Court in circumstances where the district or regional magistrates’ courts have

jurisdiction. The court in Nedbank case held that the issuing of summons in the High Court, in pursuit

of a debt that could be recovered in the magistrate’s court, is unlawful and defeats the

purposes of the NCA. Consumer Protection Act, 2008: • In terms of section 69 of the CPA, the parties are required to exhaust all the available

remedies in terms of the regime introduced by the CPA before approaching a court to

enforce their rights. • This means that parties whose claims are covered by the CPA must first attempt to

resolve the matter by approaching the National Consumer Tribunal, an ombudsman

with jurisdiction or a Consumer Court with jurisdiction, or by using the alternative

dispute resolution agent, as contemplated in section 70 of the CPA. The jurisdiction of

a civil court in matters in which a party has consented to an award for damages, is a

consent order.

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ACTION AND APPLICATION PROCEEDINGS

FROM INITIATING THE CASE TO THE LAST APPEAL:

Application procedure

- Notice of motion + supporting affidavit (Supporting, replying & answering)

- Ex parte, ordinary or interlocutory application

APPLICANT & RESPONDENT

Action procedure

- Summons (Plaintiff)

- Notice of intention to defend (Defendant) (Not a pleading)

- Plea (Includes a special plea or a plea on the merits) (Defendant)

- Optional… replication(Plaintiff)

- Optional…rejoinder(Defendant)

Generally, there are 2 ways in which a litigant may approach the court, namely by means

of an application or by means of a summons. PLAINTIFF HAS A CLAIM & DEFENDANT HAS A DEFENCE!!!!!!!!!!

AUDI ALTERAM PARTEM This maxim means to ‘hear the other side’. Therefore every person is entitled to be heard before an order or judgment is granted

against him/her. This further explains why process documents and pleading are used. Each party knows exactly what the basis of the opposing party’s claim is and will

therefore know how to reply to it. Hence this prevents the other party from being caught unaware or unprepared during

trial.

The Demand: The start of litigation proceedings is not necessarily preceded by a demand by or on

behalf of a person who wishes to institute such proceedings, unless a demand is

necessary to complete a cause of action that is relied upon or it is required by legislation. A litigant having a complete cause of action does not need to issue a demand. A demand

applies to both application proceedings and summons proceedings and can be made

either orally or in writing. The purpose of a demand is to inform the prospective

defendant/ respondent

1. that a particular attorney acts on behalf of the prospective plaintiff/applicant

2. about the nature and content of the claim against him or her

3. that payment or performance of the claim is claimed

4. about the time period within which action is required

5. about the consequences of failure to comply with the demand in order to convince

such a person to meet his or her obligations to avoid litigation.

Action and application?

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In all civil courts, you may now use application proceedings rather than action action

proceedings in urgent matters – where the application procedure is required by statute,

and where no real dispute of facts is anticipated. The leading case on the question is

Room Hire Co (Pty) Ltd V Jeppe Street Mansion (Pty) Ltd, in which it was held that three

possible situations exist:

1. You have certain types of proceedings that must, in terms of statute, be brought

by way of application. Example would be the application to liquidate a company;

or sequestrate debtor; or rehabilitate an insolvent.

2. On the other hand, there are certain types of matters, which the court is

prohibited by statute from deciding on application. Example would be an action

for divorce; or an action to recover damages, which are unliquidated (i.e. damages

which are not fixed, and which require evidence or establish their precise

quantum or amount.

3. In between these classes of two cases, there is a grey area in which you must

choose whether to proceed by way of action or application. The criterion which

you must use to make this decision is whether or not there is any real dispute

between the parties on any material question of fact. If there is such a dispute,

then it is necessary to proceed by the way of action in order to properly test and

challenge the evidence. This is because it will be necessary for the parties to lead

the evidence of witness, and for such witnesses to be cross - examined, for the

court to decide whose vision is more probable. The court has to make a credibility

finding after hearing and seeing the witnesses testify – this cannot be achieved

merely by reading the respective versions contained in the affidavits of the

parties.

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APPLICATIONS:

(See q’s on admission as a sworn translator; to get an interdict against yur neighbour;

to shut down a shabeen etc…….)

Why did X use application?

An application by means of a notice of motion may be made if (1) there is no real

dispute over any fundamental question of facts or (2) if there is such dispute, it

can nevertheless be decided without the necessity of oral evidence.

When is there a dispute of fact?


1. respondent denies material allegations made by the deponents on the applicants

behalf, and produces positive evidence by deponents to the contrary

2. respondent admits the allegations contained in the applicants affidavit, but alleges

other facts which the applicants disputes

3. respondent claims that he has no knowledge of the main facts stated by the applicant,

but may deny them, putting applicant to the proof and himself giving evidence to

show that the applicant is biased and untruthful, or otherwise unreliable, and that

certain facts upon which the applicant relies to prove the main facts are untrue. A dispute of fact does not arise were the respondent merely states that he disputes the

truth of the applicants statement, but offers no evidential reply to them. In other words, where there is bare denial. Note that a real dispute has to occur Mere fact that the parties are not in agreement on all the facts does not mean that a real

dispute has occurred.

Procedure where a dispute of fact arises

Where a genuine dispute of fact arises which cannot be settled without a hearing of viva

voce evidence, the court hearing the motion proceedings may



3. Order the parties to trial with appropriate directions as to the pleadings, the

definition of issues, etc.

1. Ex parte applications

These applications are used only if it is unnecessary to notify another party of the

proceedings.

2. Ordinary applications

These applications are used when notice of the proceedings must be given to other

parties.

Ex parte application

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This can be heard by a court without notice being given to anyone, thus this form of

application is an exception to the general rule of audi alterum partem. Therefore, used

only in the following exceptional circumstances: 1. When the applicant is the only person who is interested or affected by the relief

sought, for example an application for admission as a sworn translator or an

attorney.

2. Where the relief sought is a preliminary step in the proceedings, for example an

application to sue by edictal citation or to attach property ad fundandam

jurisdictionem.

3. Where this procedure (ie an ex parte application) has been laid down by Act of

Parliament or the Uniform Rules of Court.

4. Where, though other persons may be affected by the order sought, immediate relief

is essential because a delay could be dangerous, or because, if notice were given to

the person affected, such notice would in fact lead to the very harm which the

application is endeavouring to prevent, for example an application for an urgent

interdict.

5. Sometimes, even though other parties could be affected by the order, a court will

grant an order without notice to the respondents where they are so numerous that

it would be highly inconvenient, very expensive and time- consuming to serve the

application on them all.

When any application is made ex parte, a duty rests upon the applicant to disclose fully

all material facts which may affect the decision of the court, even though such facts

could be detrimental to the success of the application. Where the rights of other persons may be affected, the court will not grant a final order,

but grant a rule nisi. The rule nisi is an order calling upon the respondent, or on all interested parties, to

show cause on a day fixed in the rule (known as the return day of the rule nisi, and

being the day upon which these parties may, if they are so advised, oppose the

application) why the relief specified in the rule nisi should not be finally granted.

Where immediate relief is essential to the applicant, the court will order that the rule

nisi operate as an interim order (usually in the form of an interim interdict) pending

the confirmation or discharge of the rule nisi on the return day. The court may, order

that the rule nisi be served on certain interested parties, for example the Master of the

High Court, the Registrar of Companies, the state, etc. Although these persons or

bodies are not parties to the application, the court may, in view of their official

capacity, consider it necessary that they receive notice of such an order.

Ordinary applications (Form 2(a) This form of application differs from an ex parte application in that notice of the

application is given to another person or persons. Such person or persons receive notice

of the application in that it is served on them after it has been issued, that is, a copy of

the application is handed to them.

Interlocutory applications A party may want to approach the court for relief in respect of matters related to

proceedings that have already been instituted. This is in the case of summons

proceedings. The notice used here by the applicant is a mere notice, not a NOM.

Urgent applications

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Relief may be needed urgently, but there may not enough time for following prescribed

procedures in placing a matter before court. Eg where a divorced spouse is about to take

his or her child out of the country in breach of a divorce order granting the other spouse

access to that child, or where a newspaper or magazine is about to publish articles or

photos that could harm a particular person or organisation. This does not mean that an

applicant may disregard the usual requirement for applications entirely. As far as

possible, the normal rules of procedure should be followed, and that any departure from

such normal rules of procedure must be justified by the urgency of the matter. In Luna

Meubel case, it was held that the degree of relaxation of the normal rules should not be

greater than the urgency that the case demands. The mere fact that an applicant views the matter as urgent does not mean that he or

she may bring the application in any form and at any time and place, or with too short

a time limit for responses by the respondent. If a departure cannot be justified, the court

may strike the application off the roll with costs, or may postpone the matter to afford

the respondent more time to respond to the application.

The different types of affidavits – NB! In the case of ex parte applications, there is only one type of affidavit, namely the

supporting affidavit. If an ordinary application is unopposed, there will also obviously only be a supporting

affidavit. However, if the application is opposed, the situation differs (a party opposes an

application by giving written notice to the applicant within the dies induciae stated in

the notice of motion of his or her intention to oppose the application. This notice fulfils

the same function as the notice of intention to defend in summons proceedings). The general rule is that in all application proceedings which are opposed, the papers will

be restricted to the following three sets of affidavits:

1. The supporting affidavit of the applicant, which is attached to the notice of motion.

2. The answering affidavit by the respondent. In this affidavit, the respondent,

supported in so far as may be necessary by other affidavits, deals paragraph by

paragraph with the allegations and evidence contained in the supporting affidavit

(attach the notice of intention to oppose to this).

3. The replying affidavit by the applicant, in which the applicant deals paragraph by

paragraph, in so far as may be necessary, with the allegations and evidence

contained in the respondent's answering affidavit.

The court is empowered, in its discretion, to permit the filing of further sets of affidavits. This means that a further set of affidavits will be required from the respondent. The

court will exercise its discretion in this regard only in exceptional circumstances, for

example where there is something unexpected in the applicant's replying affidavit where

new matter is raised therein, or where the court requires more detailed information on

record.

Remedy in the case of defects: motion to strike out An affidavit may not, except in exceptional cases of urgency, contain hearsay evidence,

any other inadmissible evidence, or matter which is argumentative, irrelevant, vexatious

or scandalous. Where an opposing party wishes to object to such matter, he or she may apply to have

the offending matter struck out. Such application is brought by means of notice

(interlocutory), upon proper notice to the other side. (See later how strike out in an

action = vexatious, scandalous and irrelevant material and NO inadmissible evidence,

as no evidence is lead in the documents for action pleading stage).

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Action / Summons proceedings:

Illiquid proceedings Simple summons Combined summons

Liquid proceedings Provisional summons

The parties to litigation Any action which is instituted by means of summons proceedings; there is a plaintiff

and a defendant. The plaintiff is the person who institutes the action to enforce his alleged rights. The defendant is the person against whom the plaintiff’s claim is enforced. In

order to institute the action, the plaintiff must have a vested interest in the

subject matter of the action and must also have locus standi. In other words, he must have full legal capacity to litigate without assistance. People

without the legal capacity to act as litigants, can indeed act as litigants with the

necessary support. Examples are minors, insolvents and those under curatorship.

Representation by power of attorney – NB question: In principle, every natural person who is a party to civil proceedings is entitled to

represent himself personally. For practical purposes, such a person would usually instruct an attorney to act on his

behalf. These instructions are confirmed and specified in a document known as a power of

attorney. A power of attorney is a written document in which an agent is given the authority to

act on behalf of his principal either in a specified situation or to act on behalf of such

principal in respect of all actions which the principal could perform himself. A client

may terminate his mandate to an attorney at any time, but an attorney may, after

accepting a client’s brief, withdraw only with sound reasons. When is a power of attorney required in litigation? There is no need for a power of attorney for issuing a summons or a notice of intention

to defend, but is required to conduct or defend a civil appeal. The rules of the Supreme Court provide that a power of attorney need not be filed with

the registrar unless the authority of a legal practitioner to act on behalf of a party is

disputed. Why is a power of attorney drawn up? A carefully drawn up power of attorney is essential for the protection of both the

attorney and the client, and to determine the extent of the attorney’s brief Therefore,

there should always be a power of attorney kept on the client’s file. The power of

attorney generally contains details of the action to be instituted and of the relief to be

claimed. The client does not wish to be involved, unknowingly or unwillingly, in expensive

litigation, or in an appeal which he never contemplated.

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On the other hand, the attorney is entitled to protection as far as his own costs are

concerned. Should the attorney conduct litigation without the authority of the client, he will not be

entitled to recover the costs incurred from his client, since there is no contractual

relationship will exist.

Service of summons

Function and method of service The process and documents arising out of any proceedings must be brought to the

attention of the opposite party - this requirement is derived from the audi alteram

partem rule. After issue thereof, a summons must be served on the opposite party. Once

a summons has been drawn up and is ready to be served, it must first be taken to the

office of the registrar of the relevant provincial or local division. Here it is signed by the

registrar or assistant registrar, a case number is assigned to it, a court file is opened

and the revenue stamp is cancelled on the original summons. The office of the registrar

also officially stamps the original summons and copies thereof. Once the summons has

been issued, it cannot be altered without the consent of the person issuing it, or without

leave of the court. The summons must be served by the sheriff, or an officer in the employ of the sheriff.

After service has been affected, the officer concern must draw up a document under his

signature, known as a ‘return of service’, in which he records the manner in which

service of the summons was affected, and any other relevant details.

Manner of service

There are different ways in which a summons may be served, that is by: -

normal service

- substituted service

- edictal citation

Normal service NB This is the usual manner of service, and may be affected in the following ways:

- service must, if possible, be personal

- If personal service cannot be affected, the summons may be serviced at the

defendant’s place of residence or business by leaving a copy thereof with the

person in charged of the premises. This person must be older than 16

- service may be effected at the defendant’s place of employment

- service on a company may be effected by the service on a responsible employee

at the company’s registered office or at its principal place of business within the

courts jurisdiction, or , if the foregoing is not possible, by affixing a copy to the

main door of such office or place of business

- service on a partnership, firm or voluntary association is effected in terms of Rule

4(1)

- As regards matrimonial actions, the Rules make no specific mention of service in

such actions. Personal service is preferred. Substituted service - NB

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- Where a person is believed to be in the Republic, but service cannot be effected

on him in terms of the Rules of the court because it is not known precisely where

such person is to be found, an application may be made to the High court for

leave to sue by substituted service, and the court will then give directions as to

how such service is to be effected.

- Substituted service is an extraordinary method of service.

- It deviates from the normal method of service provided for in the Rules.

- Consequently, an application to court must be made on notice of motion seeking

the court’s permission to serve the summons by means of substituted service,

and requesting the court to give directions as to how the summons must be

served.

- The abbreviated summons must accompany the application for consideration

thereof by the court.

- On hearing the application, and on being satisfied that it is a proper case for

substituted service, the court will give direction as to how service is to be effected,

for example by publication in the government gazette.

- In CMC Woodworking Machinery the court gave leave for a notice to discover to

be served by way of substituted service, and that service be effected by way of a

Facebook message addressed to the defendant

Edictal citation – NB MAY 2018.

- Rule 5 prescribes how service must be affected on a defendant who is, or is

believed to be, outside the Republic.

- This is so even when his exact whereabouts are known and even when personal

service is possible.

- Such a person can not be summonsed before our courts in any manner other

than by means of edictal citation.

- The consent of the court must be obtained to serve:

1. any process or document which initiates proceedings, or

2. any process or document which does not initiate proceedings

Uniform Rule 4A facilitates service by hand, registered post, facsimile or electronic

mail. Thus Uniform Rule 4A incorporates some of the provisions of the Electronic

Communications and Transactions Act 25 of 2002, by facilitating service by facsimile

or electronic mail. Service in terms of the above rule need not be effected through the

sheriff. However, the originals of those documents and notices may not be filed with

the Registrar by way of facsimile or electronic mail. The electronic era has led to the

amendment of the Uniform Rules of Court to provide for service of documents through

the electronic medium. Uniform Rule 4A incorporates some of the provisions of the

Electronic Communications and Transactions Act 25 of 2002 (specifically Chapter III,

Part 2). This Rule makes provision for service of all documents and notices, not falling

under Rule 4(1)(a) but subsequent thereto, on a party to the litigation at the address or

addresses provided by such party under the rules of court for service of such

documents and notices. The documents and notices so excluded refer to processes

directed at the sheriff and which initiate application proceedings (thus, in fact,

referring to writs; ex parte and ‘‘ordinary’’ applications; and the simple and combined

summons).

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Service may be effected by hand; registered post; facsimile or electronic mail and need not be effected through the sheriff. However, the originals of those documents

and notices may not be filed with the Registrar by way of facsimile or electronic mail.

The illiquid summons:

1. The simple summons and declaration

When is the simple summons used? It may only be employed where the plaintiff’s claim is for a debt or liquidated demand.

What is meant by the expression ‘a debt or liquidated claim?’

‘a claim for a fixed or definite thing, as, for instance,

i) a claim for transfer, ii)

ejectment,

iii) for the delivery of goods,

iv) for rendering an account by a partner,

v) for the cancellation of a contract or the like’

Courts have also indicated that a debt is liquidated where it is admitted, or where the

monetary value is capable of being ascertained speedily.

In order to be a ‘liquidated demand’, the demand must be described in such a way that

the amount thereof may be determined merely by mathematical calculation.

What ‘ascertained speedily’ embraces is a question of fact, and the court will thus exercise


ascertained speedily. Neither an action for divorce nor an action for damages constitute a claim for a debt or

liquidated demand. It is therefore clear that the nature of the claim determines whether

a simple summons must be employed. After service of the summons, the defendant has

2 choices:

(1) He may fail to react to the summons within the stipulated period indicated therein.

In such a case, the plaintiff may make an application for judgment by default; or

(2) He may, within the dies induciae, react by serving a notice of intention to defend on

the plaintiff and by filling it with the court. The plaintiff must then react by serving

or filling a declaration

A plaintiff who wishes to proceed with a particular action is obliged to serve a declaration

on the defendant, and to file such declaration, if the defendant has delivered his notice

of intention to defend. The application of the declaration is restricted to only these instances where -

the plaintiff’s claim is for a debt or liquidated demand; and - The defendant

has delivered a notice of intention to defend.

The declaration must be delivered by the plaintiff within 15 days of receipt of the notice

of intention to defend.

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The declaration is a document containing a concise statement of the facts on which the

plaintiff’s claim is based. It must contain the following:

(a) the nature of the claim (b) the legal conclusion which the plaintiff will be entitled to deduce from the facts

indicated therein

(c) a prayer for the desired relief

In substance, the declaration is identical to the particular of claims of the plaintiff

contained in the combined summons. The form differs only in a few aspects from the

particular of claim. The declaration must be headed by the name of the particular

provincial division of the Supreme Court, followed by the names of the parties. _____________________________________________________________________

2. The combined summons and particulars of claim:

When is the combined summons used? This form of summons is used where the plaintiff’s claim is unliquidated. That is where it’s not a claim for a debt or liquidated demand. What does the expression ‘unliquidated claim’ mean? An unliquidated claim would therefore refer to any claim in respect of which the

quantum thereof must be determined (e.g. a claim for damages), or where the status of the parties is affected (e.g. an action for divorce) The combined summons and particulars of claim In every case where the claim is not for a debt or liquidated demand, the plaintiff must

annex to his summons particulars of the material facts relied upon by him in support

of the claim This summons, together with the particulars of claim, is known as a ‘combined

summons’ since it combines in 1 document a summons and a declaration. The only

difference is that the particulars, unlike the declaration, do not constitute a separate

pleading and are inseparably linked to the summons. Thus the summons and the

particulars form a single unit.

The effect of the constitution, 1996 and of the national credit act of 2005 on the content

of a summons in which execution of immovable property is relevant

In the judgment delivered in Standard Bank of South Africa Ltd v Saunderson 2006, the

Supreme Court of Appeal issued the following practice directive, with which every

summons must comply: the summons initiating action in which a plaintiff claims relief

that embraces an order declaring immovable property executable shall, from the date of

this judgment, inform the defendant as follows:

‘‘The defendant’s attention is drawn to section 26(1) of the Constitution of the Republic

of South Africa which accords to everyone the right to have access to adequate housing.

Should the defendant claim that the order for execution will infringe that right it is

incumbent on the defendant to place information supporting that claim before the

court.’’

This notification is NB when immovable property is the primary or ordinary residence of

the defendant. The North Gauteng High Court, Pretoria, issued a practice directive in

First Rand Bank Ltd v Folscher and another, and similar matters 2011 4 SA 314 (GNP)

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in respect of actions instituted to enforce a debt secured by a special hypothec over such

property. In terms of this practice directive, if the issue of summons is preceded by a

notice in terms of section 129 of the NCA, such notice must include a notification to the

debtor that, should action be instituted, and judgment obtained against him or her,

execution against the debtor’s primary residence will ordinarily follow, leading to eviction

from such home. The purpose of these steps is clearly to inform a debtor of his or her

rights.

The liquid summons (Provisional sentence summons)

Provisional sentence summons is an extraordinary procedure. The exceptional nature of this procedure lies in the fact that it could be decided before

trial, and the court is concerned with only prima facie proof. Therefore judgment is given on the assumption that the documents submitted are

genuine and valid. It accelerates the procedure for granting judgment – although such

judgment is provisional – and entitles a successful plaintiff to execute the judgment

immediately, subject to giving the defendant the necessary security de restituendo. Thus

it provides the creditor who has sufficient documentary proof (i.e. a liquid document)

with a reedy for recovering his money without it being necessary to resort to the more

cumbersome, more expensive and frequently protracted illiquid summons proceedings.

The provisional sentence summons: It can only be used if the cause of action is based

on a liquid document. The defendant presents his case by way of affidavit to which the plaintiff may reply, also

by way of affidavit. The form of the provisional sentence summons: Rule 8(1) states that any person may

be summoned to a claim made for provisional sentencing calling upon him to pay an

amount claimed or failing this to appear upon the day named in the summons to admit

or deny liability. Rule 8(6) states that if at the hearing the defendant admits liability, a

court may give a final judgment against him. Rule 8(7) states the court can hear oral

evidence as to the authenticity of the defendant’s signature.

Requirements for the use of the summons

The nature of the claim determined whether a provisional sentence ought to be

used.

The questions posed in respect of the 2 types of illiquid summons, are applicable. If a plaintiff is armed with adequate documentary evidence (i.e. a liquid document),

he can make use of this type of summons.

The fact that the provisional sentence summons is actually an enforcement

procedure, the court will allow a provisional summons only if:

- the plaintiff’s claim is based on a liquid document; and

- the defendant is not able to provide such counter-proof as to satisfy the court

that the probabilities of success in the principle action will probably not be in

the plaintiff’s favour

Definition of: a liquid document – NBNBNB!!!!! It is a document in which the debtor admits, by means of his signature, he is liable for

the payment of a certain and ascertainable amount of money, or is legally deemed to

have acknowledged such liability without the signature concerned having in reality being

appended.

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NB:

(1) The document must attest to a monetary debt.

(2) The amount of the debt must be certain and ascertainable. Obviously, this amount

must be clearly apparent from the document itself. (3) The indebtedness must appear unconditionally and clearly ex facie the document.

In other words, the document must contain an unconditional acknowledgment of

debt.

(4) The most common examples of liquid documents are negotiable instruments

(cheques, and bills of exchange).

Probability of success and onus of proof The question of the onus of proof is relevant in 2 situations, namely as regards

- the onus in the provisional sentence case itself, and

- the onus in the principal action

(a) in the provisional sentence case itself

The plaintiff needs to prove nothing initially. He is the holder of the liquid document, and hands it in. He then asks for judgment. Judgment is given on the assumption that the documents submitted are authentic

and valid. If the defendant attacks the liquidity of the document by disputing his signature, or if

a condition appears ex facie the document which must be fulfilled before payment can

take place and such fulfilment is disputed, the plaintiff must prove that the defendant

signed the document, or must prove that the condition has been fulfilled. The

defendant bears the onus of showing that the probabilities of success in the principal

case lie in his favour. Even if the defendant raises a defence which is unconnected with the liquid document,

the onus on the defendant remains the same. Remember that the whole purpose of provisional sentence is to benefit the plaintiff who

is in possession of the liquid document. If the rule had been that the plaintiff in provisional sentence proceedings must show

that the balance of probabilities lie in his favour, the procedure would have been

useless for the plaintiff and the plaintiff would have been in the same position as that

where he instituted an ordinary action.

(b) in the principal case

Here the onus may rest on either the plaintiff or the defendant. Should the court be of the opinion that the probabilities of success are no in the favour

of either parties, the principle is that provisional sentence must be granted.

The effect of the Constitution: In Twee Jonge Gezellen the Constitutional Court considered the procedure, and held

that it constituted a limitation of the defendant’s right to a fair trial in terms of section

34 of the Constitution in specific instances. These instances were where

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• the nature of the defence raised did not allow the defendant to show a balance of

success in his or her favour without the benefit of oral evidence; • the defendant was unable to satisfy the judgment debt; and • the court had no discretion, in the absence of narrowly defined special circumstances,

to refuse provisional sentence. Consequently, the court held that the common law had to be developed so that the

court would in future have discretion to refuse provisional sentence only in

circumstances where the defendant demonstrates:

1. an inability to satisfy the judgment debt;

2. an even balance of prospects of success in the main case on the papers; and

3. a reasonable prospect that oral evidence may tip the balance of prospective

success in his or her favour. In future, when considering the probability of success in order to determine whether

or not to grant provisional sentence, this judgment will be taken into consideration.

Nature and effect of provisional sentence – NBNBNB!!

1- The plaintiff is of right entitled to payment, or, failing such payment, to take out a

writ of execution against the defendant’s property under security de restituendo.

Security de restituendo is the security which the plaintiff must give for the

restitution of the money he has received from the defendant in terms of the

judgment in the event of defendant defending and succeeding in the main case.

2- The judgment is provisional. The defendant may still defend the main trial, but

only within 2 months of the granting of provisional sentence, and then only if he

has paid the judgment debt and costs.

3- A defendant who may and who wishes to enter into the principle case must deliver

notice of his intention to do so within 2 months after provisional sentence has been

granted, in which case the summons will be deemed to be a combined summons

on which the defendant must deliver a plea within 10 days. In default of such

notice or plea, the provisional sentence automatically becomes a final judgment

and the security given by the plaintiff falls away. Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA

1 (SCA)

Principles of pleadings

(1) Pleading stage: this stage extends from the issue of summons up to the close of

pleadings, and is normally relevant in illiquid proceedings.

(2) Pleading: this is a written document containing averments by the parties to an

action in which the material facts on which they rely in support of their claim or

defence are concisely set out, and which is exchange between the parties. Term

‘‘pleading’’ is used in a generic sense to include all types of pleadings. It should not

be confused with the ‘‘plea’’, which refers to the defendant’s statement of his or her

defence to the plaintiff’s claim, and which is merely one species of the genus of

‘‘pleadings’’.

(3) Process: the phrase ‘process of the court’ was interpreted to mean “something which

‘proceeds’ from the court; some step in legal proceedings which can only be taken

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with the aid of the court or of one of its officers”. This concept includes subpoena,

notices. See Dorfman v Deputy Sheriff.

Function of pleadings – HAS been a Q:

• Pleadings serve to determine and limit the disputed issues of fact and law for the

benefit of both the court and the parties. Money is saved and justice can be

dispensed more quickly and effectively. • Pleading also serve to appraise each party to the case he is expected to answer,

the parties are given the opportunity of preparing their cases and the evidence

which they intend leading in support of their own contentions and in rebuttal of

the opponents. Pleadings prevent parties from being taken by surprise at the

trial.

• The pleadings constitute a formal, summary record of the issues in dispute

between the parties which may be decided at the trial. This may serve to prevent

future disputes between the parties regarding issues which have already been

adjudicated upon.

Rule for the drafting of pleadings Rule 18(4) states that every pleading shall contain a clear and concise statement of the

material facts upon which the pleader relies for his claim, defence or answer to any

pleading with sufficient particularity to enable the opposite party to reply there to.

• Pleadings must contain clear and concise statements of the material facts upon

which the claim, defence or reply is based.

• Details must be reflected clearly, logically and in a comprehensive form. • Facts and no the law, must be pleaded. Evidence must, however, not be pleaded.

- the simple summons is a process

- the combined summons is a process and a pleading

- the declaration is a pleading

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Proceedings up to and including close of pleadings

1. Notice of intention to defend

Rule 19(5): notice of intention to defend may be delivered after the expiration of the




default judgment. Upon receipt of an illiquid summons, that is either a simple or combined summons, the

defendant must, within the period laid down in the summons, indicate whether he


a copy thereof to the plaintiff. The notice is not a means of raising a defence. The defence is raised by means of a plea. The notice of intention to defend is merely a notice. It informs the plaintiff that the defendant intends defending the action The defendant who neglects to file and deliver the notice to defend timeously, runs the

risk of having a judgment by default given against him. In his notice of intention to defend the defendant must appoint an address. This is not a post office box. The address must be appointed within 15 km of the court where the filling of all

documents and process in the case may be affected. This provides the plaintiff with a convenient address for the delivery of all further process

and documents, and enables him to regulate further the next step in the conduct of the

action.

2. The plea on the merits and counterclaim A plea on the merits is the only way in which the defendant may raise a defence

against the plaintiff’s claim. A plea must therefore deal with the merits of the plaintiff’s case as set out in the

plaintiff’s particulars of claim or declaration. The defendant must deal with each allegation in the particular of claim or declaration. A plea especially deals with all the factual allegations. Just as the particulars of claim or declaration must fully disclose the plaintiff’s claim,

so must the defendant’s plea disclose his defence fully. Rule 24(1) - that a defendant who counterclaims shall together with his plea, deliver a

claim in reconvention setting out the material facts thereof. A claim in reconvention shall

be set out in a separate document or a portion of the document containing the plea but

headed ‘claim in reconvention’. This rule further provides that a defendant may, together with his plea, or at a latter

stage with the leave of the plaintiff, or if refused, the court, deliver a claim against the

plaintiff. This is known as a counterclaim. The plaintiff then has the opportunity to answer to the counterclaim with a plea on the

counterclaim. The same pleadings as are exchanged between the parties in convention are exchanged

in reconvention. The only difference is that the parties act in reverse.

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In other words, the plaintiff in convention acts as defendant in reconvention. Rule 18(5) of the High Court Rules and rule 6(5) of the Magistrates’ Courts rules are worded almost identically. Both rules essentially require that when a pleading party

denies an allegation of fact in the previous pleading of the opposite party, denial must

be based on a point of fact and not merely be for the purposes of avoiding responding to

the claim. Therefore, a response (i.e. plea) to the particulars of claim may be an

admission of facts; a denial of facts; a confession and avoidance; a non-admission of

facts; a counterclaim; a tender; or an alternative defence.

3. Replication, rejoinder and the close of pleadings

A replication contains the plaintiff’s reply to the defendant’s plea. Rule 25(2) states that no replication or subsequent pleadings which would be a mere


necessary and issue shall be deemed to be joined and pleadings closed. A replication

will be typically relevant in the case where the defendant’s defence is one of

confession and avoidance. IF YOU SEE CONFESS & AVOID IN EXAM – REMEMBER

REPLICATION!

A plaintiff who fails to deliver a replication within the prescribed dies induciae is barred

from replicating. If the plaintiff raises new averments of fact in the replication, the defendant is given an

opportunity of reacting thereto by way of rejoinder.

Rule 29: states that the pleadings are closed: NBNBNBNBNB!

(a) if either party has joined issue without alleging any new facts

(b) if the last day allowed for filling a replication or subsequent pleading has

elapsed and nothing has been filled

(c) if the parties agree in writing, that pleadings are closed and this is filled

with the registrar

(d) If the parties are unable to agree on the close of pleadings and the court

upon application by 1 of the parties, decides them closed. Rule 29 now contains a reference to the close of pleadings AND regulates the notice of

set-down of trial. Rule 29(2)(a) requires the registrar to inform all parties of the allocated

trial date, while Rule 29(2)(b) requires the party that applied for such date to deliver a

notice to all other parties informing them of the date for which the matter has been set

down.

Nkala and Others v Harmony Gold Mining Company Limited and Others 2016 3 All SA

233 (GJ); 2016 (7) HCLR 881 (GJ); 2016 (5) SA 240 (GJ)

Further pleadings and processes up to and including close of pleadings

1. Inspection Rule 35(14) states that after appearance to defend has been entered, any party to an

action, for the purposes of pleadings, can require from the other party to make available

for inspection within 5 days, a clearly specified document or tape recording in his

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possession which is relevant to a reasonable anticipated issue in the action and to allow

a copy or transcription to be made thereof.

2. Application to strike out Where any pleading contains averments, which are ‘scandalous, vexatious or

irrelevant’, the opposing party may, within the period allowed for any subsequent

pleading, apply for the striking out of such matter. Offending passages in affidavits relating to motion proceedings may also be struck out.

Remember in application proceedings, inadmissible evidence may also be struck out

BUT NOT IN ACTION PROCEEDINGS PLEADING STAGE.

This procedure is used to rectify that part of an opposing party’s pleading which contains

an averment which is ‘scandalous, vexatious or irrelevant’. It does not relate to the pleading as a whole. Where the embarrassment goes to the root of the pleading, the pleading must be

excepted to, after the opponent has been given the opportunity of removing the cause of

embarrassment. The whole document is not accepted by the person who is embarrassed. He therefore takes exception to the document. The court will grant such an application only if it is satisfied that the applicant will be

prejudiced in the conduct of his claim or defence if the application is not granted. This application is interlocutory in nature and is therefore made merely by way of notice.

3. Amendment of pleadings and documents Rule 28 provides that any party may amend any of his pleadings or documents

(excluding affidavits), which have been filed in regard to any proceedings. Such party must, however, give notice of such amendments in the relevant notice. The

question in the exam will ask “what may be done if one of the names of the minor

children are spelled wrong the plea?” – NEVER SAY: THE PARTY WHOSE DOCUMENT IT

IS = SAY: THE DEFENDANT. If the question is the same but ends with “in the

declaration” then its the PLAINTIFF WHO MUST AMEND.

The procedural requirements of Rule 28 are:

• The party desiring to amend must notify all parties. • Unless a written objection is given, the amendment will be effected. • An objection must state clearly the reasons thereof. • If no objection is given, every party given notice of amendment shall be deemed to

have consented.

• The amender is liable for costs. • The court may amend any pleading or document before judgment is given. The

application to amend may be made both before and during the trial (but before

judgment). The test is whether there will be any prejudice to the opposing party. The amendment procedure is commonly used for correcting errors in pleadings, to

amplify the cause of action or to extend or limit the relief claimed. The general rule in regard to all amendments is that the court will grant an amendment,

unless the application for amendment is made mala fide, or the opposing party will

suffer prejudice. The Two Oceans Aquarium case.

4. The exception

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A party may except to the pleading on one of the following grounds:

(1) That the pleading as drafted is vague and embarrassing, or

(2) That it discloses no cause of action (3) or defence, that is, even if it’s accepted that the party can prove all the allegations in

the pleading under attack, the pleading will not in law constitute a valid claim or

defence. The purpose of excepting to a pleading may be twofold. In the case of a pleading that is vague and embarrassing, an exception is taken in order

to prevent the person excepting form being taken by surprise or being prejudiced in his

pleading, or at trial. Where a pleading discloses no cause of action or defence, an exception provides a

speedy and inexpensive method of determining the issue without having to embark on

the lengthy and expensive procedure of a full trial.

For this reason an exception is adjudicated upon separately before the trial.

Distinguishing feature of an exception is the fact that it must be taken to the pleading

as a whole, and not to a portion of the pleading, unless such portion constitutes a

separate cause of action or defence. The notice of exception must be filed within the period allowed for filling any subsequent

pleading. Where a party intends to except to a pleading on the ground that it is vague

and embarrassing, he must, by notice, afford his opponent an opportunity of removing

the cause for complaint.

5. The special plea A special plea is a means of raising an objection on the basis of certain facts which do

not appear in the plaintiff’s declaration or particulars of claim, and has the effect of

destroying or postponing the action. If a defendant intends filling a special plea, he must still deliver a plea on the merits IF

HE DOESN’T – DEFAULT J’MENT! Therefore a special plea does not replace a plea on the merits.

Difference between the special plea and the exception – NBNB!

An exception is limited to an attack on the allegations in the pleading as a whole,

on the assumption that such allegations are true.

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.

It differs from an exception in 2 aspects.

1. It alleges fact unconnected with the merits of the action as a result of which the action

is either destroyed or postponed. (defendant only)

2. 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)

The 2 categories of special pleas

Dilatory pleas - postpone

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1. Where the defendant disputes the plaintiff’s authority to sue because of the

absence of a formal requirement, which is a condition for suing.

2. Lis pendens. If an action is already pending between the parties, and the plaintiff

brings another action against the defendant or relating to the cause and in respect

of the same subject-matter, whether in the same or different courts, the defendant

can take the objection of lis pendens.

3. Arbitration. The defendant may raise this as a special plea where the parties have

previously agreed to submit their dispute to arbitration.

Pleas in abatement - destroy

1. Special plea of prescription

2. Special plea on non-joinder or mis-joinder

3. Special plea of res iudicata

4. Special plea in respect of the jurisdiction of the court (sometimes referred to as a

plea in bar)

Application to set aside irregular proceedings Where the party has taken an irregular step during the course of litigation, Rule 30

provides the other party with a mechanism by means of which the irregularity may be

set aside or dealt with. Rule 30(2) states that an application to set aside an irregular proceeding shall be on

notice to all the parties specifying the particulars of the irregularity and made only if:

1. the applicant himself has not taken a further step with knowledge of the

irregularity

2. The applicant has within 10 days of becoming aware of the step by giving

notice to his opponent a chance to remove the complaint within 10 days and

application was delivered within 15 days.

The meaning of an ‘irregular proceeding’ It may be stated that the irregularity concern formal irregularities. In other words, the noncompliance with formal requirements in respect of procedural

matters. Examples of irregularities are the failure by an advocate to sign the particulars of claim,

the premature set-down of a case, and the use of the wrong type of summons. The

period within which the applicant must act commences as soon as a party takes notice

that a step has been taken or that a proceeding has occurred, and not once the irregularity

thereof has come to his notice.

The meaning of a ‘further step’ A further step would therefore include the next sequential exchange of pleadings and

any objection to the content of a pleading. It would not include the filling of a notice of intention to defend. The courts have held that this is merely an act done to enable the defendant to put

forward his defence. Rule 30(2) provides that an application in terms of this Rule must be accompanied by

notice to all parties. Such an application is interlocutory in nature. Rule 30(4) provides that, until the party against whom the order was made has complied

with it, he may take no further steps in the main action.

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Where the party is in default in complying with a request or notice in terms of Rule 30,

the other party who made the request or gave the notice may approach the court for an

order • That notice or request be complied with, Or • That the claim or defence be struck off The court may, in its discretion, grant such an order.

Enforcing compliance and condoning noncompliance

Both the High Court and Magistrates’ Courts Rules contain provisions designed to

enforce compliance and condone noncompliance with the rules of court.

In the High Court: Rule 30A – noncompliance with the rules

High Court rule 30 concerns itself only with the setting aside of an irregular step. Rule

30A differs from this in two ways. Firstly, it deals with all types of noncompliance with

the rules generally, not just procedures that constitute steps. Secondly, its purpose is

not to set aside a step, but to enforce compliance with a rule that has not been followed.

An example of a situation in which this rule would be used is if a party fails to take a

step he is required to take. The opposing party is able to use the procedure set out in

rule 30A to compel the defaulting party to take the necessary step. Rule 30A deals with

general noncompliance with the rules. It is not necessary to use this rule to enforce

compliance with those rules, which contain their own remedy for noncompliance.

(1) Where a party fails to comply with these rules or with a request made or notice

given pursuant thereto, any other party may notify the defaulting party that he or she

intends, after the lapse of 10 days, to apply for an order that such rule, notice or request

be complied with or that the claim or defence be struck out.

(2) Failing compliance within 10 days, application may on notice be made to the court

and the court may make such order thereon as to it seems meet.

Rule 27 – extension of time, removal of bar and condonation

High Court Rule 27 is intended for the use of parties who have not complied with the

rules and want the court to condone (i.e. excuse) their lack of compliance. The

procedure used is an application on notice to the other parties, supported by an affidavit

in which the applicant must show good cause. What constitutes good cause will vary

according to the circumstances of each case. The court will balance two factors: the

merits of the applicant’s case and the applicant’s default. The applicant must provide

an explanation for his default in his supporting affidavit, together with a factual outline

of his case in order to show that it is not unfounded or without merit. The court has a

wide discretion to grant an order under this rule and will take into account not only the

reasons for default and the strength of the applicant’s case on the merits, but also the

prejudice likely to be suffered by all the parties. The question of prejudice is irrelevant,

however, if the applicant has not shown good cause in accordance with the rule. Pre-trial judgments

1. Consent to judgment

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Rule 31(1) states:

(a) Except for relief in terms of the divorce act/nullity of a marriage, a defendant may

at any time confess in whole or in part the claim in the summons.

(b) Such confession must be signed by the defendant and witnesses.

(c) Confession to be furnished to the plaintiff, where the plaintiff can apply in writing

through the registrar to a judge for judgment.

Where the rule provides that application by the registrar must be made before a judge,

this simply means that a judge sitting elsewhere (usually in chambers) than in open

court, may grant judgment.

Default judgment and bar A party which fails to deliver a pleading or process document in time is in ‘default’.

Depending on the pleading or process, the other party can request a judgment


requested. This step is known as the giving of a notice of bar.

Bar: Bar applies only in respect of pleadings. Rule 26 clearly states that a party who

fails to deliver a replication and the ensuing pleadings, is ipso facto (i.e. automatically)

barred from doing so. In the case of all other pleadings a party must first receive notice

of bar, and, if such party still fails to deliver within the period indicated in the notice of

bar, he will be in default as regards the specific pleading and will ipso facto be barred. Rule 27(1) – (3)

(1) In the absence of amendment between the parties, the court, upon application on

notice and good cause, can make an order extending or abridging any prescribed

time for doing an act or taking a step.

(2) Any extension ordered can be varied, recalled or cancelled.

(3) Court can, on good cause shown, condone any non-compliance with these rules.

2. Default judgment Default judgment is relevant in the following cases:

(1) where the defendant does not timeously give notice of intention to defend

(2) where the defendant does not deliver a plea timeously

(3) where the plaintiff does not deliver a declaration timeously

(4) where a party fails to appear at the trial

Failure to file a notice of intention to defend Rule

31(2) states: (a) whenever in an action, the claims are for a debt/liquidated demand and the

defendant is in default of his notice of intention to defend or plea, the plaintiff can set

the action down for default judgment and the court can, after hearing evidence, grant

judgment against the defendant or grant any order it deems fit.

Rule 31(5) states: Where defendant is in default of notice of intention to defend or plea, the plaintiff can

file with the registrar an application for judgment against the defendant. The registrar may:

(1) grant the judgment required

(2) grant judgment for part of it

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(3) refuse it in whole or in part

(4) request oral or written submissions

(5) Require the matter be set down for hearing in open court.

When the defendant is in default of delivery of notice of intention to defend or of a plea,

the plaintiff must submit to the registrar of the court a written request for judgment. The registrar is empowered to make a variety of orders and no evidence in respect of the

claim need to be led. In contrast with the above mentioned, when judgment by default is requested in respect

of unliquidated claims, and the defendant is in default of delivery of a notice of intention

to defend or of a plea, judgment by default may be granted only once evidence has been

led in respect of the amount of the claim. Where a defendant enters an appearance out of time, but before default judgment is

granted, the plaintiff cannot merely ignore this and proceed to request judgment by

default. The correct procedure is for the plaintiff to approach the court first to have the

appearance set aside as an irregular proceeding, before any action is considered.

Failure to file a plea: Here the position is that notice of bar must first be delivered. Only where the defendant still fails to deliver the plea, will he be in default. Failure to deliver a declaration: Because a pleading other than a replication or one of

the ensuing pleadings is in issue, a notice of bar must be served on the plaintiff.

Should the plaintiff there after fail to deliver the pleading, he will be in default and will

ipso facto be barred from doing so. The orders which the defendant may request are, namely

(1) absolution, owing to the fact that the plaintiff has not proved his claim, or

(2) ‘judgment’

Setting aside of default judgment Ito Rule 31(2)(b) a defendant may, within 20 days after he has knowledge of a default

judgment, apply to court to set aside such judgment. The court has a discretion whether or not to set aside a judgment. The defendant must also advance sound reasons for the failure concerned.




(3) The defendant must have a bona fide defence “Application” does not refer to a

notice of motion.

3. Summary judgment

Summary judgment procedure is aimed at protecting the plaintiff, who has a claim if a

particular nature, against a defendant who has no valid defence to his claim, and who

has simply entered an appearance to defend for the purpose of gaining time and

preventing the plaintiff from obtaining the relief he seeks and deserves. Summary

judgment should not be lightly granted, and the courts will deprive a defendant of his

defence in this matter only in clear cases. The courts are cautious and conservative in this regard because of the audi alteram

partem rule, since this procedure does to a certain extent infringe on this principle.

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- Grounds: Rule 32(1) states: Where a defendant has delivered a NOITD, the plaintiff

can apply to court for summary judgment, only if the summons is on a liquid document

or for a liquidated amount in money, for delivery of movable property or ejectment.

Thus, it should be clear that an application for summary judgment may follow only

from a simple summons.

- procedure and content of affidavit: Rule 32(2) provides that the plaintiff must, within

a specified period after receipt of a notice of intention to defend, deliver a notice of

application for summary judgment, together with an affidavit made by himself, or by

someone else who can confirm the fact upon which the cause of action and the amount

(if any) are based. The affidavit must indicate

(1) that, in his opinion, there is no bone fide defence to the action

(2) that the purpose of entering appearance is merely to delay the action No further

averments are permitted.

If the claim is based on a liquid document, a copy thereof must be attached to the

application.

- courses of action which the defendant may take in response to the application:

Rule 32(3) states Upon hearing the application for summary judgment, the defendant may:


(b) Satisfy the court by affidavit, to swear he has bona fide defence and the affidavit

will disclose the nature and grounds of the defence and the material facts relied

upon.

Although the plaintiff is not permitted to include evidence in support of his claim in

the affidavit, the defendant must fully disclose the nature and grounds of his defence. The reason for this is related to the nature of the claim, which, in turn, results in the

fact that the court grants summary judgment on the assumption that the plaintiff’s

claim is unimpeachable. Consequently, the defendant must convince the court that this

is not the case. Defendants who wish to defend themselves in terms of the NCA against an application

for summary judgment should be aware: The Supreme Court of Appeal, in Rossouw, held that there is compliance with the

provisions of section 129(1)(a) of the NCA if the credit provider despatches the required

notice to the consumer in the manner chosen by the latter (e.g. by sending it to the

consumer’s last-known address by registered mail) – actual receipt thereof is the

consumer’s responsibility. Here, van Vuuren , it was held that the attaching of the notice by the sheriff to the main

gate of a property other than the mortgaged property provided no evidence that the

notice in terms of section 129 reached the respondent, and that this accordingly was a

bona fide defence. Bald allegations by a consumer that there was ‘‘reckless credit’’ or of ‘‘overindebtedness’’

do not constitute a bona fide defence – a reasonable amount of verificatory detail is

required. Thus, a defendant should, inter alia, provide the following: a statement showing his or

her assets and liabilities, and income and expenditure, in a way sufficient to enable the

court to determine whether the allegation of overindebtedness is bona fide; particulars

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of the particular debt counsellor and the date on which such person was approached;

the assessment by the debt counsellor.

- powers of the court when hearing the application: The court may put questions for

the purposes of clarification. If the defendant provides security, or convinces the court that he has a bone fide

defence, the court will grant the defendant leave to defend.

- Costs: Where either plaintiff or defendant acts unreasonably or improper in summary

judgment proceedings, the judge can, for such conduct, have an order as to costs

awarded against him on the attorney and client scale.

- summary dismissal: Summary dismissal is the counterpart of summary judgment

procedure and affords the defendant an inexpensive and speedy method of dismissing

the plaintiff’s action if it is vexatious or frivolous. The high court has inherent jurisdiction to prevent an abuse of its process.

Joinder: Under common-law, it was generally not possible for different plaintiff with different

causes of action to join in the same action against the same defendant. It was also

impossible to sue 2 different defendants, liable on 2 different causes of action, in 1

summons The uniform rules of the court have amended the common law position. With the

result that joinder is in fact possible, provided the provisions of Rule 19(1) and

Rule 10(3) are complied with.

Voluntary joinder:

Plaintiffs There are a number of requirements for a proper joinder, and that there are 2

circumstances in which joinder may take place (234 PL’S IN A QUESTION)

Requirements: - each person (plaintiff) must have a claim

- must act against the same defendant(s)

- 1 or more of the plaintiffs must be entitled to act against the defendant(s)

in a separate action. Circumstances: The legal claim must depend on substantially the same question of law or fact. The

question of law or fact must have originated in each individual action which could

have been instituted (and which is now not being instituted on the account of the

intended joinder).

Defendants A joinder of defendants will, for example, arise in the following case: A pedestrian has been injured as a result of a collision between 2 cars, but does not know

which driver was negligent.

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He may sue them jointly, and also alternatively, and is not expected to take the risk of

first proceeding against the 1, and then against the other.

Compulsory joinder:

The court, irrespective of the wishes of the parties, will not hand down a judgment nor

make an order unless another party (3rd party) is joined in the action. The court will only deem it necessary if such a party has, or may have, a direct and real

interest in any order in which the court may make or if such order will prejudice that

party, unless the court is satisfied that the party has distanced himself from his right to

be joined in the proceedings. Joining of persons as plaintiffs or defendants Any person who is entitled to join as a plaintiff or who is exposed to joinder as a

defendant in an action, any, after notice to all parties at any stage of the action, apply

for leave to join as a plaintiff or defendant. The court may in its discretion make an order upon such a request and may lay down

the further procedure in the action. However, before leave to intervene is granted, the applicant must show that he has a

prima facie case and that his application is made seriously and not frivolously.

In FORMA PAUPERIS proceedings This is a procedure in terms of which indigent persons may obtain free legal aid by

approaching the registrar after which legal representatives are appointed. The following requirements are laid down:

1- the person must have household goods, clothes and tools of his trade to the value

of R10 000

2- he must lodge an affidavit with the registrar proving that he only has a value of R10

000

3- And with regards to costs, the attorney includes his bill of costs, fees and

disbursements to the registrar and then to the deputy sheriff.

Another option by a person who receives a summons, besides defending is:

Offer to settle, tender and interim payments

A defendant in a claim sounding in money, or in the claim for the performance of

an act, is at liberty to attempt to settle such matter.

A settlement is often reached by agreement between the parties, but, where such

negotiation fail, the defendant can utilize the procedure laid down in Rule 34 in a

further attempt at settling the matter.

An offer to settle need, however, not be made in terms of Rule 34, but such an offer

provides no protection against cost being awarded to the other party, unless it is

pleaded.

This type of offer is known as a tender.

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Another way of trying to achieve a settlement between parties is by way of an interim payment.

1. Offer to settle NBNB Ito Rule 34, a defendant may, at any time, unconditionally or without prejudice, offer

to settle a plaintiff’s claim where


2. the performance of an act is claimed

Claim for payment of a monetary sum The offer to pay a monetary sum must be in writing and must be signed by the defendant

or by the defendant’s duly authorized attorney. For the purposes of this Rule, a defendant includes any person joined as a defendant or

as a third party, as well as a defendant in reconvention or a respondent in application


• unconditional = liability in respect of the claim is accepted • without prejudice = liability is denied The plaintiff may, within 15 days of receiving the notice of the offer, accept the offer by

delivering a notice of acceptance at the address of the defendant indicated for the

purposes hereof. If the plaintiff fails to accept the offer within the period, it may

thereafter be accepted only with the written consent of the defendant, or with the courts

consent. The defendant must, within 10 days of delivering the acceptance, effect

payment as offered. If he fails, the plaintiff may, after giving 5 day’s written notice to this

effect, apply through the registrar to a judge for judgment in terms of the offer, plus

costs. To receive payments, the plaintiff would then have to take steps to obtain

execution against the defendant. An offer may not be disclosed in court before judgment

has been given, and no reference to such offer may appear on any file in the office of the

registrar containing the papers of the case. However, the offer is brought to the attention of the judge concerned before any order as

to costs are made, since the fact that an offer was made is relevant to the apportionment

of costs.

Performance of an act Unless the defendant offers to perform the act personally, he must draw up irrevocable


perform such an act on his behalf. Such power of attorney must be delivered to the registrar together with the offer.

Should the offer be accepted, the power of attorney is returned by the registrar, after



2. Common law tender A party to litigation is not obliged to offer a settlement in terms of the Rules. A tender can be made even before proceedings are instituted. If such a tender is satisfactory, it will provide a defendant with protection against costs,

which accrue from the summons stage. The concept of tender is derived from common

law. A tender is equivalent to payment by way of an offer of settlement. Common law

requires that payment be made in money.

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The amount offered in settlement need not be paid into court, and need be available in

the form of money or a cheque. The plaintiff must be notified of the manner of payment.

If the defendant wants to use a tender in order to protect himself against costs, he must

plead a tender, which must be proved like any other fact. Where a tender is raised as a defence, it is done to show that the tender is

accepted or that the plaintiff is not entitled to costs from the date on which the tender

is made. A tender must be unconditional. If the tender is not accepted, the tendered

amount must be paid back. If it is accepted, the plaintiff may not sue for the balance of

the claim.

3. Interim payment Interim payments may be ordered only in an action for damages as a result of either

personal injuries or the death of a person. Personal injuries naturally refer to the

plaintiff’s own injuries. An application for an order for such payments may be made at any time after the lapse

of the dies induciae in respect of the intention to defend. The damage which are relevant are confined to

- the plaintiff’s medical costs

- the plaintiff’s loss of income as a result of his physical incapacity - The

plaintiff’s loss of income as a result of the death of another person.

This order is made by way of application. The court is not obliged to make an order for interim payment, but has a discretion. In

addition, the court must be satisfied that certain prescriptions have been complied with. The plaintiff must satisfy the court that

1. the respondent has in writing admitted liability in respect of the plaintiff’s damages,

OR

2. that he (plaintiff) has obtained judgment against the defendant for the damages, the

amount of which still has to be determined, AND

3. That the defendant is insured in relation to the plaintiff’s claim, or that the defendant

has the means to make such an interim payment.

AFTER THE CLOSE OF PLEADINGS, THE PARTIES THEN PREPARE FOR TRIAL:

Steps which may be taken both before and after the close of pleadings

- medical examinations The rule applies only where a party to an action claims compensation or damages in

respect of an alleged physical injury and if the party’s state of health is relevant in

determination of the amount. Any party causing such an examination to be undertaken must ensure that the person

conducting the examination provides a complete, written report on his findings. The Rule further states that the party, must on request, furnish the other party with a

copy thereof and must bear the expense of the examination.

- examination of inanimate objects

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This examination is relevant where the condition of the inanimate object may have a

bearing on deciding a point of dispute in an action.

- medical reports, hospital records, x-ray photographs and similar documents Any

party who is entitled to demand a medical examination such as this, may by written

notice, require that the above mentioned documents be made available to him if they

are relevant to the assessment of damages.

- expert evidence Rule 36(9) states No person shall without leave of the court or parties concerned consent, be entitled to

call as a witness any person unless he,

1. Not less than 15 days before the hearing delivered his notice of intention to do so.

2. Not less than 10 days before trial delivered a summary of the expert’s evidence or

opinions and his reasons thereof. The purpose of the abovementioned provisions relating to expert evidence is to prevent

a party from being surprised at the trial, and to give a party the opportunity of arriving

in court prepared to rebut the expert evidence presented by the opposite party. If the expert witnesses themselves get together to exchange opinions, this could shorten

the duration of the trial.

Steps which may be taken only after the close of pleadings

- request for further particulars for trial Rule 21(2) states After the close of pleadings any party may, not less than 20 days before trial, deliver a

notice requesting only such further particulars as are strictly necessary to enable him

to prepare for trial (within 10 days). This does not mean that the requesting party is

entitled to know what evidence that other party is going to lead, but he is entitled to

such particulars as are necessary to put him in a position to prepare for the trial and to

prevent him from being taken by surprise by evidence given against him, which he could

not reasonably anticipate would be produced.

- the pre-trial conference A conference may not take place later than 6 weeks before the date of trial. The purpose of the rule has always been to shorten the trial. The rule now provides that, at the trial, the court must consider whether a special order

as to costs should not be made against the party, or his attorney, owing to failure to

attend the conference, or because there has been substantial failure to promote the

effective disposal of litigation. Also note that a conference may be held before a judge in

chambers, after which minutes are prepared which must be filled with the registrar.

Minutes of the pre-trial conference must be prepared and signed by those present and

must be filed with the Registrar not later than five weeks prior to the trial date. Also note

that a conference may be held before a judge in chambers, after which minutes are

prepared which must be filed with the Registrar.

- discovery of documents and tape recordings Discovery may not be requested until after the close of pleadings. The

purpose is to ascertain from other parties what documents and tape

recordings are in existence which might be relevant to the action.

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This enables a party to prepare fully and properly for trial and prevents him from being

taken by surprise. Discovery is obtained by written notice addressed to any party to the action to make

discovery under oath within 20 days of such request. Discovery related to all documents relevant to any matter in dispute in the action which

are, or have at any time been, in the possession or under the control of such other party. Discovery must be made within 20 days, and is made by disclosing the necessary

information in an affidavit – known as a discovery affidavit.

In this discovery affidavit the party making the discovery must set out NBNBNB!!!!

(1) those documents relating to the matter in dispute in the action which are in his


(2) those documents, although relating to the matters in dispute in the action and being

in the party’s control or possession, the party objects to producing, and the reasons

for such objection must be stated

(3) those documents which he had in his possession or which were under his control,

but which he does not now have in his possession or which are now not under his

control. Such party must also state when such documents were last in his

possession or under his control, and where such documents now are. A party may validly object to the discovery of a document if he is able to claim privilege

for its contents. If the party who requires discovery believes that certain documents have not been

disclosed, such party may require the party who has made discovery to make them

available for inspection or to state under oath that such documents are not in his

or her possession, in which event he or she must state their present whereabouts

if known. A party may validly object to the discovery of a document if he or she is able to claim

privilege for its contents. Examples are communications made ‘‘without prejudice’’,

documents which fall under legal professional privilege, incriminating documents and

documents, which affect the security of the state. Privilege is usually seen as a matter

falling within the law of evidence. A document or tape recording not discovered in terms of the Rules may not be

used at the trial by the party who failed to do so (unless the court allows him or

her to do so), but any other party is entitled to use such document or tape

recording. The definition of ‘‘tape recording’’ is wide enough to cover all types of material on which

visual images, sound and other information may be stored, the precise position with

regard to all electronically stored information is unclear. Today, most documents are

digitally stored and are often never printed. This, of course, poses challenges, especially

with regard to the interpretation of a ‘‘document’’ for purposes of discovery. Examples are incriminating documents, or documents which affect the security of the

state.

- set-down of cases for trial The plaintiff is dominus litis and consequently has the right to apply for set-down in the

first instance. After pleadings have closed, the plaintiff may, by giving notice to the registrar, set down

the case on the roll for the allocation of trial dates. If the plaintiff neglects to do so within a certain period after the close of pleadings, the

defendant may set the matter down in a similar manner. See Rule 29. Ways in which evidence may be placed before the trial court NB:

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1. Unless special circumstances exist, a witness must give evidence viva voce (orally)

and in open court (Rule 38(2)). If a person is within the Republic, such a person can be compelled to attend any High

Court in the Republic by issuing a subpoena from the office of the Registrar and by

having it served on the witness required, by the sheriff (Rule 38(1)) The form and contents of the subpoena have to conform to Form 16 of the First

Schedule of the Act. Note that, where a witness is required by a subpoena to make available at the trial a

document, instrument or object which is in his or her possession, or is under his or

her control, such a subpoena is termed a subpoena duces tecum. A witness duly

subpoenaed to appear in court and who fails to do so (or fails to remain present)

may be arrested after the court authorises a writ for his or her arrest.

2. If a witness cannot give evidence in person, and if the necessary circumstances are

present, he or she may be allowed to give evidence in the following ways: a) on

commission (commission de bene esse) b) by way of interrogatories (NBNB!! Interrogatories differ from commissions de bene esse in that, while in the

latter case evidence is given generally, in the former case specific evidence only is

taken, and for this purpose specific questions are formulated which must be put to the

witness by the commissioner. This method is used if a person resides outside the

court’s jurisdiction or is outside this area at that stage (s40 of the Superior Courts Act,

2013).)

3. By way of affidavit. The court will permit it if there is adequate reason. If the court

believes that the opposing party has reason to want to cross-examine a witness, and

the witness can be brought before court, evidence by way of affidavit will not be

permitted. The court has a discretion to allow this, and factors such as the costs

involved in bringing a witness from overseas, illness and the nature of the evidence

to be presented are relevant for the court’s consideration. The courts are reluctant to grant such leave, and are usually disposed to do so only

when the evidence so required is of a formal nature.

The trial and costs Costs

of the action

(a) A court has a wide discretion when awarding costs.

(b) That a party who loses a case will automatically be ordered to pay the winner’s costs,

is by no means a forgone conclusion.

(c) The conduct of the parties plays a role and is one of the factors which the court

considers.

Attorney and client costs

meaning of the concept

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1. The liability of a client to pay costs to his attorney arises from the contractual

relationship between them and is wholly unrelated to the outcome of the legal

proceedings in which he may have been involved.

2. These costs are known as ‘attorney and client costs’, and it includes remuneration

for all professional services rendered by the attorney as well as all expenses incurred

by the attorney (including council fees) in the execution of his client’s instructions.

3. A client who feels that costs are excessive may have such costs taxed. Practitioners

found guilty of charging excessively may be struck of the roll.

the awarding of attorney and client costs A court will not lightly grant attorney and client costs. The most common ground on which a court will order a party to pay the other party’s

attorney and client costs is that where the former party has been guilty of dishonestly

or fraud in conducting the suit, or where his motives have been vexatious, reckless or

malicious.


Meaning of the concept

- Party and party costs are those costs which have been incurred by a party to legal

proceedings and which the court orders that other party to pay him.

- These differ fro attorney and client costs, in that they do not include all the costs

which the party to litigation may have incurred, but only such costs, charges and

expenses as were incurred in the actual litigation and which are allowed by the taxing

master.

- The taxing master is a civil servant who is attached to the office of the registrar of

each Supreme Court and whose function it is to check bills of costs.

- This he does according to a tariff, in which is laid down the maximum fee permitted

for each item in the litigation process.

- Once a ‘reasonable’ figure has been ascertained, the bill of costs is then presented to

the other party for payment.

- Generally, the costs incurred before the issue of a summons are not considered party

and party costs, for example the cost of obtaining council’s opinion as to the party’s

prospects of success in a contemplated action.

- A party who wins a court case and who is awarded party and party costs does not

have all his expenses paid by the loser.

The awarding of party and party costs

The following principles of awarding party and party costs are summarised as follows: As a general rule, the successful party is entitled to his costs. In determining who the successful party is, the court must look to the substance of the

judgment and not merely its form. The court may in its discretion, deprive the successful party of part, or all, of his costs. In the exercise of this discretion, the judge will take into account the following

circumstances in connection with the successful party’s conduct:

339

- whether the demands made are excessive

- how the litigation was conducted - the taking of unnecessary steps or adoption of an incorrect procedure

- misconduct

Costs de bonis propriss This order is relevant only where a person acts in a representative capacity.

NB different types of costs for MCQ and written definitions.

Enforcement of judgment

1. Procedures exist which compel the party against whom judgment has been given to

comply with such judgment, if he refuses to do so voluntarily.

2. No judgment or order of court would be of any use to a successful plaintiff if it could

not be enforced, for the very object of litigation is to obtain the money or other relief

claimed.

3. If the defendant refuses to comply voluntarily with the judgment, steps must be

taken to enforce such judgment.

4. Such judgments are subdivided into judgments ad pecuniam solvendam (i.e.

judgment in which the debtor is ordered to pay a sum of money) and judgments ad

factum praestandum (i.e. judgments in which a person is ordered to perform, or to

refrain from performing, some act). Judgments ad pecuniam solvendam are enforced

against the property of the judgment debtor, while judgments ad factum

praestandum are enforced against his person.

The enforcement of judgments ad pecuniam solvendam ($)

a) Enforcement by means of execution against the debtor’s property

1. If a debtor does not voluntarily comply with this judgment, the creditor may

approach the registrar of the court to issue a writ of execution.

2. This writ is addressed to the Sheriff, who is required to execute it by attaching

property of the debtor and by selling this in execution to satisfy the judgment.

Movable property must be attached and sold in execution before immovable

property. Immovable property can only be attached and sold in the following three cases in terms

of Rule 46(1)(a):

(1) where a writ has been issued against the movables and the sheriff has made a

nulla bona return, that is, has indicated that insufficient movable property exists

which can be attached.

(2) where a special order declaring certain property specially executable after an

application on notice of motion to the debtor, setting out that there is no movable

property which can be attached and sold in execution, has been made by the court

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(3) where the Registrar, in an instance where judgment was given in terms of Rule

31(5), declared immovable property specially executable.

Hypothecation of immovable property as security entitles a creditor to have such

property declared executable. In such instance, a creditor may immediately proceed to

satisfy the judgment out of the proceeds of the property. Rule 46(1)(a) authorises the Registrar when granting default judgment in terms of Rule

31(5) to declare immovable property specially executable, the Constitutional Court in

Gundwana held that it is unconstitutional for the Registrar to make such declaration to

the extent that this permits the sale in execution of the home of the debtor. Only a court

is competent to declare the primary residence of a person specially executable after

having considered all relevant circumstances. Some of these circumstances include

(1) the debtor’s payment history

(2) whether the property is occupied or not

(3) whether the property is in fact occupied by the debtor

(4) the position of the debtor’s dependants and other occupants of the residence (5) the

arrears outstanding on the date default judgment is sought

A debtor’s rights in respect of incorporeal property may also be attached in execution

(Rule 45(8)). (Gundwana v Steko Developments and others 2011 (3) SA 603 (CC) and Jaftha v

Schomena and Others; Van Rooyen v Stoltza and others 2005 (2) SA 140 (CC), the

registrar is no longer allowed to hear a matter declaring residential property executable

in default and must refer the matter to court).

b) Enforcement against the debtor’s person:

This type of enforcement was known as civil imprisonment, but such process was

abolished. If, therefore, a debtor has no assets or income against which execution can

be relieved, the judgment cannot be enforced.

The enforcement of judgments ad factum praestandum (DOING SOMETHING)

(1) This judgment directs a person to perform, or to refrain from performing, a specific

act.

(2) Examples of such orders are orders to transfer property, to deliver movable

property or to follow a right of way.

(3) This remedy available to the party in whose favour a judgment ad factum

praestandum has been given is the common law contempt of court.

(4) Although it is possible to lay a criminal charge against the judgment debtor and

for the state prosecution then to take place, what usually happens is that the

judgment creditor institutes civil proceeding for contempt.

(5) He approaches the court by way of notice of motion for an order to commit the

defendant to prison for contempt.

The requirements for an order to commit the defendant for contempt of court are

- the existence of an order ad factum praestandum

341

- knowledge by the defendant of the order, usually, but not necessarily, as a result of

its having been served on him

- the ability of the defendant to comply with this order

- disobedience of the order; and

- Wilfulness on the part of the defendant regarding the disobedience of the order. The requirements for an interdict

An interdict may either be temporary or final. A temporary interdict is an order granted provisionally, and does not finally determine

the rights of the parties. It’s granted on an interim basis and remains in force only until the respective

rights of the parties have been finally determined by the court. A final interdict is

of permanent effect.

Final interdict NBNBNBNB!!!!!!!! The requirements for the granting of a final interdict are

- a clear right established on a balance of probabilities

- an actionable wrong or interference already committed, or at least, a

reasonable apprehension that such an act will be committed

- An absence of any other ordinary and satisfactory remedy affording similar

protection to the applicant.

The fact that an applicant may sue for damages, and that such damages will provide

adequate compensation, is sufficient to bar an application for an interdict where the

infringement of the right is capable of being assessed in monetary terms. There are 3 exceptions to the general rule. Even if the injury could be compensated for by awarding damages, the court will usually

grant an interdict if

1. the respondent is not financially competent to pay any award of damages, or

2. the injury is a continuing violation of the applicant’s rights, or

3. The amount of damages is difficult to assess.

Temporary interdicts NBNBNB!!!!!! The requirements for granting a temporary interdict are as follows:

1. There must be a clear right or, if it can’t be established, 1 that is prima facie

established, though open to some doubt.

2. If the right is established only prima facie, the applicant must show in

addition, that, if the interdict is refused, he will suffer irreparable harm,

whereas, if the interdict were to be granted, the respondent would suffer

such irreparable harm.

3. The balance of convenience must favour the granting of the interdict. The

court must weigh up the prejudice that each party will suffer if the interdict

is granted or refused.

4. There must be no other statutory remedy available to the applicant. Myflor

Investments

Procedure

342

• Final interdict are usually sought by way of action, but may also be sought by

way of notice of motion where the facts are not in dispute.

• Where a temporary interdict is sought, the applicant always approaches the court

by way of notice of motion.

A temporary interdict will, if granted, be valid only: NBNBNB!

(a) Until action has been instituted to establish the rights of the parties, where a dispute

of facts exist, or (b) Until the application which was launched to obtain the temporary interdict is finally

determined, or

(c) Until the order is confirmed on the return date stated in the temporary order.

Once the dispute has been finally determined, the temporary interdict will be confirmed,

or, if not confirmed, will cease to be of any effect.

In matters of urgency the applicant approaches the court by way of application, without

giving notice to the respondent. In such a case, a rule nisi is issued, calling the

respondent to show cause on the return day why the rule should not be confirmed and

an interdict granted. Rule nisi operates as a temporary interdict pending confirmation

on the return date.

343

MAGISTRATES COURT:

The application procedure: The plaintiff must first decide whether his claim falls within the jurisdiction of a

magistrate’s court, and choose the correct magisterial district to institute action.

Litigation may occur in this court by means of either the application procedure, or the

action procedure, and the choice between the 2 is based on the same considerations

that apply in the case of litigation in the High Court.

Ex parte applications An ex parte application is one in which notice is not given to another party, and in which

the applicant is the only person before court. The notice of motion must comply with

Form 1, Annexure 1 (rule 55(3)(b)). Sometimes, relief may be sought against another party ex parte. In order to succeed, the

applicant must show that

(a) the giving of notice to such party would defeat the purpose of the application, or

that

(b) the degree of urgency is so great that it justifies dispensing with notice (rule

55(3)(a)). Any order made against a party on an ex parte basis shall be of an interim

nature & shall call upon the party against whom it is made to appear before the court

on a specified return date to shoe cause why the order should not be confirmed. If the application is brought with undue haste and without good reason, the court will

not grant the application and the applicant will have to bear the costs of the failed

application. The founding affidavit contains the facts on which the applicant relies for relief, namely

the facts upon which his or her cause of action is based and why no notice has been

given to the respondent. An applicant is obliged to furnish the court with all possible

facts, including adverse facts. The reason for this exception is that a speedy remedy, where relief is urgently required,

would be frustrated if the other party is notified of the intended application in advance.

Powers of the court: The ex parte application is an exception to the audi alteram partem

rule which literally means ‘hear the other side’. Thus the court will not issue a final order without this person concerned being given an

opportunity to put his case. After hearing the application, the court grants a temporary

order and determines a return day on which the respondent must give reasons why the

order should not be made final – rule nisi.

The application procedure where the respondent is cited:

All applications must be supported by affidavits, which set out the facts on which the

applicant relies for relief. The notice of motion is addressed to the party (or parties) against whom relief is sought,

as well as to the registrar or the clerk of the court and to any other any other person if

it is necessary or appropriate to inform that person of the application (rule 55(1)). These requirements ensure that the audi alteram partem principle is adhered to. The

notice of motion shall be similar to Form 1A of Annexure 1 (rule 55(1)(d)) and the

applicant shall appoint a physical address within 15 kilometres of the office of the

registrar or clerk of the court at which notice and service of all documents in the

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proceedings will be accepted. It shall also state the applicant’s postal, fax or e- mail

addresses, the day on or before which the respondent must notify the applicant of his

or her intention to oppose the application, as well as the day on which the matter will

be set down for hearing if no such notice is given. If the respondent opposes the

application, he must give the applicant written notice of the intention to oppose and

state the address at which notice and service of all documents will be accepted, as well

as his or her postal, fax or email addresses. After receipt of a notice of intention to

oppose, the applicant must immediately lodge the original notice of motion plus

annexures, as well as the return of service (if applicable) with the registrar or the clerk

of the court.

The court’s powers to deal with an application that cannot properly be decided on

affidavit, are set out in rule 55(1)(k) and are similar to those of the High Court. Where an application cannot properly be decided on affidavit, the court may

• dismiss the application, or • make such order as it deems fit to ensure a just and expeditious decision. The

court may direct that oral evidence be heard on specified issues in an effort to

resolve any dispute of fact. The court may

• order any deponent to appear personally, or • it may grant leave for any person to be subpoenaed to appear and to be examined

and cross- examined as a witness, or • it may refer the matter to trial with directions as to pleadings or definition of issues. A court may also, after hearing an application (whether ex parte or otherwise), make

no order thereon, but grant leave to the applicant to renew the application on the same

papers and supplemented by further affidavits if the case so requires.

Interlocutory and urgent applications

Applications incidental to pending proceedings must be brought on notice. If facts need

to be placed before court, such facts must be contained in a supporting affidavit(s) and

must thereafter be set down. If a court is satisfied that a matter is urgent, it may make an order dispensing with the

forms and service provided for in the rules, and may dispose of the matter at such time

and place and in accordance with such procedure (but as far as practicable in

accordance with the rules) as the court deems appropriate. An application brought on

an urgent basis must be supported by an affidavit which sets out explicitly the

circumstances which the applicant avers render the matter urgent and the reasons why

the applicant claims that he or she cannot be accorded substantial redress at a hearing

in due course. Striking out

Rule 55(9) provides for the striking out on application from any affidavit any matter that

is scandalous, vexatious or irrelevant, together with an appropriate order as to costs,

including costs as between attorney and client. However, unless the court is satisfied

that the applicant will be prejudiced in his or her case, the court will not grant such

application.

ACTION / SUMMONS PROCEEDINGS:

The summons:

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As in the High Court, one uses, for action proceedings, a simple summons (for a debt /

liquidated demand); a combined summons (for a claim of damages – regional court R200

000-R400 000 and district R200 000 limit – and for a divorce – only in Regional). Follow the same steps as High Court regarding the use of the summons.

A power of attorney does not have to be filed, since the rule provides that it’s not

necessary for anyone to file a power of attorney to act in a magistrate’s court. However, the authority of a person acting for a party may be challenged by the other

party within 10 days after he has received such notice that such person is so acting, or

with the court’s leave, for good cause shown at any time before judgment. When a person’s authority is challenged in this manner, he may not, without the court’s

leave, act any further without satisfying the court that he had authority to act. The court may adjourn the proceedings in order to enable him to do so.

Form and content of the summons A summons may be described as a process of court used to commence an action. It

calls upon the defendant to appear in person to defend the action within a certain

period (dies induciae) and to respond to the plaintiff’s claim, and it warns the

defendant of the consequences of failure to do so.

The following particulars must be included in the summons NBNB!!!!!

Every person making a claim against any other person may, through the office of the

registrar or clerk of the court, now sue out a simple summons or a combined

summons. In every case where the claim is not for a debt or liquidated demand, the summons shall

be a combined summons similar to Form 2B of Annexure 1, to which summons shall be

annexed a statement of the material facts relied upon by the plaintiff in support of the

plaintiff's claim, and which statement shall, amongst others, comply with Rule 6. Where the claim is for a debt or liquidated demand, the summons may be a simple

summons similar to Form 2 of Annexure 1. The following particulars must be included in the summons:

• the surname and first names or initials of the defendant by which the defendant is

known to the plaintiff, the defendant's residence or place of business and, where

known, the defendant's occupation and employment address and, if the defendant

is sued in any representative capacity, such capacity • the full names, gender (if the plaintiff is a natural person) and occupation and the

residence or place of business of the plaintiff, and if the plaintiff sues in a

representative capacity, such capacity • a form of consent to judgment • a form of appearance to defend • a notice drawing the defendant's attention to the provisions of section 109 of the

Act • a notice in which the defendant's attention is directed to the provisions of sections

57, 58, 65A and 65D of the Act in cases where the action is based on a debt referred

to in section 55 of the Act • where the defendant is cited under the jurisdiction conferred upon the court by

section 28(1)(d) of the Act, an averment that the whole cause of action arose within

the district or region, and the particulars in support of such averment

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• where the defendant is cited under the jurisdiction conferred upon the court by

section 28(1)(g) of the Act, an averment that the property concerned is situated

within the district or region • any abandonment of part of the claim under section 38 of the Act and any set- off

under section 39 of the Act • where the plaintiff issues a simple summons in respect of a claim regulated by

legislation, the summons may contain a bare allegation of compliance with the

legislation, but the declaration, if any, must allege full particulars of such

compliance (provided that where the original cause of action is a credit agreement

under the NCA, the plaintiff seeking to obtain judgment in terms of section 58 of

the Act shall in the summons deal with each of the relevant provisions of sections

129 and 130 of the NCA, and allege that each one has been complied with)

• where the plaintiff sues as cessionary, the plaintiff shall indicate the name, address

and description of the cedent at the date of cession as well as the date of the cession

• A summons in which an order is sought to declare executable immovable property

which is the home of the defendant shall contain a notice in the following form:

• The defendant's attention is drawn to section 26(1) of the Constitution of the

Republic of South Africa, which accords to everyone the right to have access to

adequate housing. Should the defendant claim that the order for eviction will

infringe that right it is incumbent on the defendant to place information supporting

that claim before the Court.

Dies induciae This refers to the stipulated period mentioned in the summons within which the

defendant is called upon to enter an appearance to defend after service of the summons. The rule provides that appearance to defend the action must be entered within 10 days

after the service of the summons.

Address for service of pleadings Rule 5(3)(a) makes reference to the attorney’s and plaintiff’s facsimile or electronic mail

address. Rule 5(3)(a) provides for an address within 15 km of the courthouse. Rule

5(3)(b) to (d) provides for service by facsimile or electronic mail under certain conditions.

Declaration / particulars of claim Rule 5(7) provides that a party relying on an agreement governed by legislation shall

state the nature and extent of his or her compliance with the provisions of the legislation. In any action based on the NCA, the summons must allege compliance with sections

129 and 130 of the NCA. Rule 5(7): a simple summons in respect of a claim regulated by legislation may contain

a bare allegation of compliance with the legislation, but a declaration (and a combined

summons’s particulars of claim) must allege full particulars of such compliance. Rule 5(10) contains a reference to section 26 of the Constitution, which accords a right

to access adequate housing to everyone. Rule 5(10) provides that, in actions where an

order is sought to declare immovable property which is the home of a defendant,

executable (and also probably in actions where an eviction of a lessee is sought), the

defendant’s attention must be drawn to section 26 of the Constitution, which accords

everyone the right to access adequate housing. It should be noted that, in practice, a plaintiff has a choice whether to use a simple or a

combined summons. The insertion of the word ‘‘may’’, as opposed to ‘‘shall’’. Rule 5(2)(b)

sets out that, in every case where the claim is based on a debt or liquidated demand, a

simple summons may be used. However, where a claim is not based on a debt or

liquidated demand, rule 5(2)(a) provides that a combined summons must be used.

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If a party fails to comply with any of the provisions of this rule, such summons shall be

deemed to be an irregular step and the opposite party shall be entitled to act in

accordance with rule 60A (rule 5(11)).

Averments of jurisdiction Usually, the plaintiff is not required specifically to allege in the summons that the court

has jurisdiction. However, there are 2 exceptions to this rule:

• If the plaintiff relies on jurisdiction in terms of S28(1)(d), he must state in the

summons that the whole cause of action arose within the court’s area of jurisdiction.

• If the plaintiff relies on the court’s jurisdiction in terms of S28 (1)(g), he must

specifically allege that the property concerned is situated within the district.

Issue of summons NB

1. The clerk of the civil court issues the summons by furnishing the summons with

a serial number, and by signing and dating it.

2. The clerk may refuse to issue a summons in which an excessive amount is

claimed for attorney’s cost and court fees, or if the addresses of service does not

comply with the provisions of the act.

3. In a decided case, a summons was issued by the clerk in spite of the fact that

such summons had not been signed by the plaintiff or his attorney.

4. The court decided that, although the summons was invalid, the defendant would

be running the risk of default judgment against him if he did not take steps to

defend the action.

5. Thus the court awarded costs in favour of the defendant.

6. The issue of a summons has certain consequences.

7. The preferred view is that an action is instituted at the time that the summons

is issued and not by the service of the summons.

8. The issue of the summons also establishes jurisdiction

9. It should be noted that the issue of a summons does not interrupt the running

of prescription.

10. Prescription is only interrupted by the service of the summons.

Service of the summons Rule 9(3) provides for service of processes by way of mainly the following methods:

(1) personal service on the defendant or on his or her duly authorised representative (If

the defendant is a minor or under disability, service is effected on his or her

guardian, tutor or curator.)

(2) at the residence or place of business of the defendant and on a person who is

apparently not younger than 16 years and apparently lives or works there

(3) at the defendant’s place of employment and on a person who is apparently not

younger than 16 years and apparently in authority over the defendant, or, in the

absence of such a person apparently in authority, on a person apparently not

younger than 16 years and apparently in charge of the defendant’s place of

employment

(4) at the defendant’s chosen domicilium citandi

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(5) at the registered office or the principal place of business of a company or other

juristic person situated within the area of jurisdiction of the court concerned, and

on a responsible employee or, if none, by affixing a copy to the main door

(6) by registered post when the plaintiff so instructs the sheriff in writing

(7) at the national or local offices of the State Attorney where the defendant is a state

organ or civil servant

(8) at the offices or place of business of a partnership or otherwise upon any member

of the partnership

(9) upon curators, executors, liquidators and guardians in their representative capacity

(10) upon clubs, societies, churches, public bodies and similar bodies at the local office

or place of business of such body, or otherwise on the chairperson, secretary or

similar officer Rule 9(5) provides that if a person keeps his or her residence or place of business closed

in order to prevent service, it is sufficient service if a copy of the document is affixed to

the outer or principal door or security gate, or is placed in the post box. Service of a notice, request, statement or any other document that is not a process, may

be effected by hand or by registered post, or may be sent by fax or electronic mail. Chapter III, Part 2 of the Electronic Communications and Transactions Act of 2002

applies to service by fax and electronic mail. If a summons has been improperly served, a defendant may raise an exception to the

summons.

Substituted service: If service by one of the usual methods of service is not possible and the matter falls

within the jurisdiction of the court concerned, the court may make an order allowing

service by a person and in the manner specified in such order (rule 9(10)). As is the

case in the High Court, the court must be approached on application for leave to serve

documents by means other than the usual methods on a defendant (or respondent)

who is known or believed to be within the borders of the Republic. Rule 10(2)(a)

prescribes the contents of the application in respect of proceedings that initiates

proceedings.

Edictal citation: In contrast to substituted service, edictal citation is used if service has to be effected

outside the borders of the Republic, whether or not the defendant’s or respondent’s

address in the foreign country is known. Rule 10 substantially replicates Uniform Rule

5, and provides that no document or process that initiates proceedings may be served

outside the Republic without leave of the court. The same allegations (set out in rule

10(2)(a)) contained in an application for substituted service are contained in an

application to serve by means of edictal citation. If leave is given, service is effected by a

person in the administration or professional section of the South African diplomatic

service or who is a foreign diplomatic or consular officer (rule 9(14)). The certificate by

the person effecting service in the foreign country constitutes proof of service. Not only

must such person identify himself or herself, but he or she must also mention that he

or she is authorised in terms of the law of the country concerned to effect service, and

that service is taking place as required by that country’s legal system, and he or she

must indicate the method of service as well as the date of service.

EG:

349

XYZ (Pty) Ltd is a sneaky customer and manages to avoid service of the summons.

Advise the messenger which method of service will constitute sufficient service in these

circumstances. Rule 9(5) provides that, in these circumstances, it will be sufficient for the sheriff to affix

a copy of the summons to the outside door, the door of the main entrance or to the

security door of the defendant’s place of business. The sheriff may also place the copy

in the post box of the business.

Amendment of summons – NBNB! This may be affected at any time before the service, provided that they are initialled by

the clerk of the court. If the amendments are not initialled, they have no effect. Amendment after service may be brought about only by following the procedure set out

in rule 55(A). Amendment concerning the defendant’s first name or initials can be brought about at

the plaintiff’s request without the court’s intervention. Delay in the continuance of the action: The summons lapses if it is not served within

12 months after issue, or, if it is served, the plaintiff fails to take further steps within 12

months thereafter. Rule 10 provides that the plaintiff may, in particular instances, obtain an extension of

time.

Notice of intention to defend If the defendant wishes to defend the action, he must file a notice of intention to defend.

The time limit for a defendant to enter an appearance to defend or dies induciae after

receipt of summons is now 10 days. Rule 13(3)(a) provides that the defendant shall

indicate his facsimile address and electronic mail address if available (in addition to

physical or postal address). Rule 13 authorises service by facsimile or electronic mail

under certain conditions. If it appears to the registrar or clerk of the court that the defendant intends to defend

the action but that his or her notice of intention to defend is defective in that the notice

If the notice if defective in that certain requirements in terms of the rules have not been

complied with, for example if NBNBNB!!!

• It has not been properly served • It has not been properly signed, or • It does not comply with the requirements in respect of address for service; the

plaintiff must, and firstly, file a written notice requesting the defendant to file a

proper notice within 5 days of service of the plaintiff’s said notice. • exhibits any two or more of such defects or any other defect of form, he or she

shall not enter judgment against the defendant unless the plaintiff has delivered

a notice in writing to the defendant calling upon him or her to deliver a notice of

intention to defend in due form within 5 days of the receipt of such notice (Rule

12(2)(a)).

• After receipt of a notice of intention to defend a plaintiff must immediately lodge

the original summons and the sheriff‘s return of service with the registrar or the

clerk of the court

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The plaintiff is entitled to apply for default judgment if the defendant fails to submit a

proper notice of intention to defend. Even if the defendant does not timeously give his notice to defend, his notice will

nevertheless be valid, provided that it is submitted before a request for default judgment If the notice and the request of default judgment are delivered on the same date, the

notice remains valid, provided that judgment has not been granted. Therefore, the defendant is allowed to submit a late notice, provided that default

judgment has not been granted, and such a notice will be considered valid in spite of its

late delivery.

Failure to take steps: default judgment

If the defendant takes no steps in respect of the summons, the plaintiff is entitled to

apply of default judgment. This judgment is regarded as a judgment entered or given in the absence of the party

against whim it is given. Default judgment may be granted in the following instances:

1. If the defendant fails to enter appearance to defend within the stipulated time in the

summons

2. Where the defendant enters appearance to defend, but thereafter fails to deliver a

plea within the time stipulated in the notice of bar.

3. If the plaintiff or applicant does not appear at the time set down for the hearing in

the trial of the action or in the application.

4. If a party fails to comply with a court order obliging him to comply with the

provisions of the rules of court in terms of rule 60(2) and (3).

The following aspects deal with default judgment:

• The application for default judgment is not ordinarily heard in open court. The plaintiff merely lodges a written request with the clerk of the court.

• The clerk may grant the judgment in all liquidated claims. • In any unliquidated claims, such as damages, the request for judgment must be

referred to a magistrate in chambers. The plaintiff must give evidence either

orally or on affidavit regarding his quantum for damages.

• In any request for judgment made in respect of a claim arising out of a credit

agreement, the request must also be referred to the court.

• If the application is based on a liquid document, this document must be filled

before judgment is entered. If the original document cannot be located, the

plaintiff must file an affidavit setting out the reasons why the original document

cannot be attached to the request. • Please note that the proceeding only take place in open court when evidence is

led. Furthermore, an official of the court may grant judgment in certain cases.

The documents that need to be handed to the court:


(b) The written request for default judgment in duplicate.

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(c) In the case of unliquidated claims (eg damages as a result of motor-vehicle collision)

affidavits which prove the nature and extent of the damages must be attached.

(d) In the case of a claim based on a liquid document, the original document duly

stamped or an affidavit setting out reasons to the court's satisfaction why such

original cannot be filed.

(e) In the case of an action based on a credit agreement which is subject to the Credit

Agreements Act, the agreement and certain affidavits must be lodged.

(f) In the case of an action based on a written agreement, the agreement duly stamped

must be lodged.

Rule 12(5) has been amended to provide for actions based on the NCA instead of

the Hire Purchase Act.

Rule 12(6) has been amended and provides that, as is the case in actions based on

liquid documents, the original written agreement also has to be filed together with

a request for default judgment in instances where an action is based on a written

agreement or an affidavit setting out reasons why the original cannot be filed. There

is no provision in the Uniform Rules similar to Rule 12(6) which provides that,

together with the request for default judgment, a plaintiff has to file the original

liquid document or the original agreement or, should such originals not be

available, an affidavit setting out the reasons why.

Rule 12(6A) has been inserted, and it provides that default judgments in actions

based on legislation must include evidence proving compliance with such

legislation.

A defendant may apply for a default judgment against a plaintiff who has been

barred from delivering a declaration in terms of Rule 15(5) which deals with

declarations (where a pl has been barred from delivering a declaration the def may

set down for hearing upon not less than 10 days notice to the defaulting pl, and

apply for absolution from the instance or, after adducing evidence, for judgement,

and the court may make any order it deems fit).

In the magistrates’ court default judgments, even for debts or liquidated demands,

must be considered by magistrates as opposed to registrars or clerks when such

claim is founded on any cause of action arising out of or based on an agreement

governed by the NCA. See Rule 12(5).

Bar: Bar is a procedure, which prevents the delivery of any further pleadings in an action.

Provision is now made for automatic bar in the magistrates‘ court in terms of rule 21B,

which is similar to Uniform Rule 26 in the High Court. In the magistrates‘ court bar is

dealt with in three separate rules, namely in rule 12(1)(b) in respect of a plea which was

not delivered on time; in rule 15(5) in respect of a declaration, and in rule 21B. The bar

procedure to be followed is the same as in the High Court. In the case of a declaration,

the defendant after notice to the defaulting plaintiff, may set the matter down for hearing

and apply for absolution of the instance or, after deducing evidence, for judgment.

However, where the defendant has been barred in terms of rule 21B(3) from delivering a

plea, the plaintiff may lodge with the registrar or clerk of the court a request in writing

for judgment in the same manner as when the defendant has failed to deliver the notice

of intention to defend.

In the case of a declaration, the defendant after notice to the defaulting plaintiff, may

set the matter down for hearing and apply for absolution of the instance or, after

deducing evidence, for judgment. However, where the defendant has been barred in

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terms of rule 21B(3) from delivering a plea, the plaintiff may lodge with the registrar or

clerk of the court a request in writing for judgment in the same manner as when the

defendant has failed to deliver the notice of intention to defend (rule 12(1)(b) – if the

defendant has delivered a NOITD but has failed to file plea within the time prescribed,

the plaintiff may deliver a notice in writing calling upon the def to deliver a plea within

5 days of the receipt of such notice and on failure of the def to deliver his plea within

such period, he shall be in default with such plea and ipso facto be barred. When the pl

has complied with the aforesaid, he may lodge with the registrar or clerk of the court a

request in writing for judgement in the same manner as when the def has failed to deliver

a NOITD.)

As in the case of the High Court, bar is not associated only with default judgment: bar

is a procedure, which prevents the delivery of any further pleadings in an action.

Provision is now made for automatic bar in the magistrates‘ court in terms of rule 21B,

which is similar to Uniform Rule 26 in the High Court. In the magistrates‘ court bar is

dealt with in three separate rules, namely in rule 12(1)(b) in respect of a plea which was

not delivered on time; in rule 15(5) in respect of a declaration, and in rule 21B. The bar

procedure to be followed is the same as in the High Court.

Consent to judgement NBNBNB: Rule 11 provides for judgment by consent in actions, excluding actions in terms of the

Divorce Act or the nullity of a marriage. Rule 11(1) provides that a defendant may consent to judgment before delivering notice

of intention to defend by signing the consent form on the original summons, which must

be lodged with the registrar or the clerk of the court. Rule 11(4) provides that consent to judgment may also be given after notice of intention

to defend has been delivered by delivering a consent form similar to that endorsed on

the summons. Such consent must also be signed by the defendant or his or her attorney.

If a defendant’s consent is for a lesser amount than claimed, the defendant may deliver

a notice of intention to defend in respect of the balance of the claim, and the action may

proceed in respect of such balance.

Payment into court and tender

Offer to settle (Rule 18) NBNBNB:

In terms of Rule 18(1) a defendant may at any time unconditionally or without prejudice

make an offer to settle the plaintiff’s claim where

(a) a sum of money is claimed, either alone or with any other relief or (b) the

performance of an act is claimed.

An offer to settle the plaintiff's claim shall be signed either by the defendant himself or

herself or by his or her attorney if the latter has been authorised thereto in writing. Where the plaintiff claims the performance of some act by the defendant, the defendant

may at any time tender, either unconditionally or without prejudice, perform such act. In the event of a tender contemplated in 2(a) the defendant shall, unless the act must

be performed by him or her personally, execute an irrevocable power of attorney

authorising the performance of such act, which he or she shall deliver to the registrar

together with the tender. It should be noted that the notice of any offer or tender in terms of this rule shall be

given to all parties to the action and shall state

353

(a) whether the same is unconditional or without prejudice as an offer of settlement;

(b) whether it is accompanied by an offer to pay all or only part of the costs of the

party to whom the offer or tender is made, and further that it shall be subject to such

conditions as may be stated therein;

(c) whether the offer or tender is made by way of settlement of both claim and costs

or of the claim only; and

(d) whether the defendant disclaims liability for the payment of costs or for part

thereof, in which case the reasons for such disclaimer shall be given, and the action

may then be set down on the question of costs alone. A plaintiff or party may within 15 days after the receipt of the notice, or thereafter with

the consent in writing of the defendant or third party or order of court, on such

conditions as may be considered to be fair, accept any offer or tender, whereupon the

registrar or clerk of the court, having satisfied himself or herself that the requirements

have been complied with, shall hand over the power of attorney to the plaintiff or his or

her attorney. In the event of failure to pay or to perform within 10 days after delivery of the notice of

acceptance of the offer or tender, the party entitled to payment or performance may, on

5 days' notice in writing to the party who has failed to pay or perform, apply through the

registrar or clerk of the court to a magistrate for judgment in accordance with the offer

or tender as well as for the costs of the application. If an offer or tender accepted in terms of this rule does not satisfy a plaintiff's claim and

costs, the party to whom the offer or tender is made may apply to the court, after notice

of not less than 5 days, for an order for costs. It is important to note that no offer or tender in terms of this rule made without prejudice

shall be disclosed to the court at any time before judgment has been given, and no

reference will be made to such offer or tender in the court file.

Interim payments (Rule 18A) NBNBNB A new rule has been introduced and it is in essence a copy of the Uniform Rules.

Interim payments may be ordered in an action for damages for personal injuries or the

death of a person.

o An application for an order for interim payments may be made at any time after the

expiry of the period for the delivery of the notice of intention to defend. o The damages

which are relevant are confined to:

- plaintiff’s medical costs

- plaintiff’s loss of income arising from his or her physical disability or -

plaintiff’s loss of income as a result of the death of a person.

o Note that the order is made by way of application. o Rule 18 describes the contents of the affidavit: the affidavit in support of the

application shall contain the amount of damages claimed and the grounds for the

application, and all documentary proof or certified copies thereof on which the

applicant relies .

o The court will grant the order for interim payment in circumstances such as the

following: If at the hearing of an application for interim payment, the court is satisfied that • the defendant against whom the order is sought has in writing admitted liability

for the plaintiff's damages; or • the plaintiff has obtained judgment against the respondent for damages to be

determined,

354

• the defendant is insured in respect of the plaintiff’s claim or that he or she has the

means at his or her disposal to enable him or her to make such a payment. • In an action where an interim payment or an order for an interim payment has

been made, the action shall not be discontinued or the claim withdrawn without

the consent of the court.

Security Rule 62(1) reads exactly the same as Uniform Rule 47. The rule states that a party that chooses to request security for costs from another shall,

as soon as practicable after the commencement of proceedings, deliver a notice setting

forth the grounds upon which such security is claimed, and the amount demanded. If the amount of security requested in terms of rule 62(1) is contested, the registrar or

clerk of the court shall determine the amount to be given, and his or her decision shall

be final. If a party from whom security is requested in terms of rule 62(1) contests his or her

liability to give security, or fails or refuses to furnish security in the amount requested

or the amount fixed by the Registrar or clerk within ten days of the demand or the

registrar’s or clerk’s decision, the other party may apply to court on notice for an order

that such security be given and that the proceedings be stayed until the order is

complied with. If the requested security is not given within a reasonable time, the court has the power

to dismiss any proceedings instituted or strike out any pleadings filed by the defaulting

party, or make such other order as it deems fit. Any security for costs shall, unless the court otherwise directs, or the parties otherwise

agree, be given in the form, amount and manner directed by the registrar or clerk of the

court. The registrar or clerk of the court may, upon written request of the party in whose favour

security is to be provided and on notice to interested parties, increase the amount

thereof if he or she is satisfied that the amount originally furnished is no longer

sufficient; this decision shall be final.

Summary judgement NBNBNBNB!!!! This is an extraordinary procedure available to a plaintiff for a specified type of claim, if,

once he’s received the defendant’s NOITD, the defendant’s NOITD has no bona fide

defence or if he has entered one to waste time. Its only available for a claim on a simple summons – thus, based on a debt or liquidated

demand, or based on a liquid document. A liquid document: is a document from which an acknowledgement of debt or an

undertaking to pay is clearly apparent, and in respect of which no extrinsic evidence

(evidence of the document itself) is required to prove the debt. This need not, however, be a single document. It may comprise a number of documents,

for example a hire-purchase agreement and a cession thereof. The test applied by a magistrate's court to determine whether or not a document

qualifies as a liquid document, is whether the High Court would grant provisional

sentence on such document. A liquidated amount of money: a claim for work done and material supplied. The amount that is fixed and certain. It is an amount that has been precisely quantified,

or that is readily capable of accurate determination and that is not in dispute. Eg’s of liquidated sum of money: an account rendered to a shopkeeper, insurance

premiums, and taxed bills of costs.

Initiating the application:

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It should be stressed that the application for summary judgment may be made only after

the defendant has entered appearance to defend. The plaintiff is required to bring the application for summary judgment on at least 15

days notice to the defendant and the application must be brought not more than ten

days after the defendant’s appearance to defend has been delivered (application for

summary judgment must now be made within 15 days of service of notice of intention

to defend. A copy of the served notice of intention to defend must now be attached to

the affidavit which accompanies the application for summary judgment).

The plaintiff proceeds by way of application. If the claim is based on a liquidated amount

of money or for the delivery of specified movable property or for ejectment, the plaintiff

must attach a copy of an affidavit made by him or her, or by someone else who is able

to confirm the facts under oath. The cause of action and the amount (if any) claimed

must be confirmed and the plaintiff must aver that in his or her belief there is no bona

fide defence to the claim and that the notice of intention to defend has been given solely

for the purpose of delaying the action. If the claim is based on a liquid document, the

plaintiff is required to attach a copy of the liquid document to the application. However,

the original liquid document must be handed in at the hearing of the application.

Therefore:

The three requirements are as follows: NBNBNBNB (a) It must be signed by the plaintiff personally and he or she must state that he or

she has personal knowledge of the facts; or, in the case of a legal person, it must

be signed by someone who alleges that he or she is duly authorised to make the

affidavit; in addition, he or she must state his or her capacity in respect of the

plaintiff and that he or she has personal knowledge of the facts.

(b) The plaintiff must verify or confirm the amount or cause of action.

(c) The deponent must state that, in his or her belief, there is no bona fide defence to

the claim and that appearance has been entered solely for the purpose of delaying

the action (rule 14(2)). Steps which the defendant may take to ward off a summary judgment application

NBNB! Defendant’s answering affidavit has to be delivered before noon on one day preceding

the day on which the application is to be heard.

(a) The defendant may give security that he will satisfy whatever judgment may be given

against him in the action.

(b) The defendant may give evidence that he or she has a bona fide defence or

counterclaim against the plaintiff

The defendants affidavit must contain the following NBNBNB: (a) the allegation that he has a bona fide defence

(b) a denial that the appearance to defend has been entered solely for the purpose of

delaying the plaintiff's action

(c) a disclosure of the nature and grounds of the defence or counterclaim.

Orders the court can make NBNBNB: (a) The court may give leave to defend to a defendant so entitled and give judgment

against a defendant not so entitled.

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(b) It may give leave to defend to a defendant as to such part of the claim and give

judgment against the defendant as to the balance of the claim unless the defendant

shall have paid such balance into court.

(c) It may make both such orders

An Exception: Rule 19 (1) sets out the grounds for an exception: • Where any pleading is vague and embarrassing • or lacks averments which are necessary to sustain an action or defence the opposing

party may, within the period allowed for filing any subsequent pleading, deliver an

exception and set it down for hearing in terms of Rule 55(1)(j)). This means thus, a

declaration / POC with no cause of action and a plea on the merits with no defence.

(as with HC). However, where a party intends to take an exception that a pleading is vague and

embarrassing, such party shall within the period allowed by such notice afford such

opposing party an opportunity to remove the cause of complaint within 15 days. The

party excepting shall within 10 days from the date on which a reply to such notice is

received or from the date on which such reply is due, deliver the exception.

Striking out: The grounds for striking out are the following: Where any pleading contains averments which are scandalous, vexatious, or irrelevant,

the opposite party may, within the period allowed for filing any subsequent pleading,

apply for the striking out of such averments. Such application may be set down for hearing in terms of Rule 55(1)(j). The court shall

not grant the order unless it is satisfied that the applicant will be prejudiced in the

conduct of his or her claim or defence if it is not granted (Rule 19(2)).

Irregular proceedings: Rule 60A is based on Uniform Rule 30, and expressions carry the same meaning. Also

note that this particular step’s purpose is to address technical defects (in contrast to

substantive defects). Rule 60A(2)(4) sets out the procedure for the setting aside of

irregular proceedings. According to this, a party may lodge such an application only if

he or she • has not taken a further step in the matter after he or she became aware of the

irregular proceeding, • within ten days after he or she became aware of the irregular step/proceeding has

given the opponent the opportunity to remove the cause for complaint within ten

days, and • the application has been delivered within 15 days after the expiry of the second

period mentioned above. At the hearing of the application, the court may set aside the proceedings in whole or in

part and grant leave to amend, or make any other order as it deems fit (rule 60A(3)).

Until a party has complied with the court’s order, he or she may take no further step in

the matter (rule 60A(4)).

In the Magistrates’ Courts - Rule 60 – noncompliance with rules, including time

limits and errors

Rule 60 of the Magistrates’ Courts Rules deals with noncompliance with rules, including

time limits and errors. It is the nearest equivalent in the Magistrates’ Courts Rules to

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High Court rule 30A, but also deals with one aspect of condonation provided for in High

Court rule 27, namely the extension of time limits.

Magistrates’ Courts rule 60(2) and (3) makes provision for two different applications to

the court, which represent two successive steps in a process. In terms of rule 60(2), the

court may be asked to order the opposing party to comply with a particular provision of

the rules, or with a legitimate request made in terms of the rules. If the opposing party

thereafter refuses to comply with the rules within the time period provided in the order,

the original applicant may again apply to court in terms of rule 60(3) asking for judgment

against the opposing party. Magistrates’ Courts rule 60 may not be used to enforce a

rule that contains its own internal provision for relief. Rule 60 can be used to enforce

discovery when there is no response or an inadequate response to a notice in terms of

rule 23(1).

Rule 60(5) deals with the extension of time limits prescribed by the rules from the point

of view of a party who has failed to keep to these limits. Most time limits may be extended

with the written consent of the other parties in the matter. If such parties fail to consent

to the extension, the court may on application allow such an extension. In using its

discretion to allow such an extension, a court should consider the sufficiency and

acceptability of the explanation given for noncompliance. The general approach a court

should adopt when making this assessment has been stated in the case of Evander

Caterers (Pty) Ltd v Potgieter, in the following terms: a time limit in the rules of court is

directed at a delay in the particular procedural step. It is not concerned with the merits

of the case as such, and, because of the existence of the sub-rule under consideration,

it is not intended without more to deprive a litigant of his claim or defence, as the case

may be. It is intended to prevent delay or an injustice being done, owing to delay. It

would seem to follow that an extension of a time limit should not be granted as a matter

of course, merely for the asking, and it should also not be lightly refused if the delay did

not prejudice the other party in respect of the merits or in the conduct of his case, other

than the procedural advantage gained by him owing to the existence of the time limit.

Indeed everything should be done to secure a fair trial between the parties in the

litigation so that the disputes and questions between them may be settled on their

merits. Although every effort must be made to comply with the time limits and

requirements set out in the rules, they are not set in stone. The whole purpose behind

the rules is to ensure that the parties eventually get to court and present their respective

cases. This spirit is reflected in rule 60(7), which provides that: no process or notice

shall be invalid by reason of any obvious error in spelling or in figures or of date.

Plea on the merits There are many ways in which a defendant may defend a matter such as raising an

exception, filing a special plea or making a payment into court. But the most common way of defending a matter is to raise a defence on the merits. The plea contains the defence. It contains the defendant’s answer to the plaintiff’s averments in the particulars of claim

attached to the summons. It should be delivered 20 days after the declaration (simple

summons) / NOITD (combined summons)

The following provisions governing the form and content of the plea are important,

namely it must

- have a case number

- be in writing

- be dated and signed by the defendant or his attorney

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- It must comply with the provisions of sub rules 19(4) and 19(6). The defendant may file 1 plea only. A new defence may be pleaded orally on application at the trial, if it appears during the

trial that there is prima facie evidence of a plea on the ground other than that pleaded. The plea must be formulated sufficiently clear to inform the plaintiff precisely of the

basis of the defendant’s defence. A bare denial of liability or a defence of general issue is not permissible. Every allegation in the summons and details with regards thereto, must thus be dealt

with separately in the defence.

The defence must consequently

1. admit or

2. deny; or

3. confess and avoid all the material facts alleged in the summons, and,

4. clearly and concisely state the nature thereof and

5. Provide all the material facts on which his defence rests.

Special plea

A special plea is a defence which is not an answer to the factual allegations made by

the plaintiff but which goes beyond the merits. Examples of special pleas are o

the court has no jurisdiction

o the plaintiff’s claim has become prescribed o

the defendant or the plaintiff has no locus standi

o lis pendens o res judicata o arbitration o

splitting of claims o non-joinder and misjoinder

Usually the onus is on the defendant to prove his special plea.

Counterclaim (a.k.a. a claim in reconvention) The

counterclaim is also used in a magistrate’s court. Rule 20(2) provides that the counterclaim is made by filling, within the time period laid

down for the delivery of a plea, a statement in writing giving such particulars of the

claim in reconvention as are required for claims in convention.

The defendant who institutes a counterclaim is known as the plaintiff in reconvention,

while the plaintiff (in the main action) is known as the defendant in reconvention. Rule 20(1) provides that the provisions of the rules of the magistrate’s court apply

mutatis mutandis to claims in reconvention, except that it is not necessary for the

defendant in reconvention (i.e. the plaintiff in the main action) to enter appearance.

Replication & rejoinder: All periods relating to replication and plea in reconvention have been amended to comply

with those applicable in the High Court. The new rule additionally introduces the concept of further pleadings following a

plaintiff’s replication in the magistrates’ courts. The plaintiff shall deliver a replication to the plea and a plea to any claim in reconvention

within 15 days after service of a plea, and such plea shall comply with Rule 17 No replication or subsequent pleading which would be a mere joinder of issue or bare

denial of allegations in the previous pleading shall be necessary, and issue shall be

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deemed to be joined and pleadings closed in terms of Rule 21A(b). A plaintiff in

reconvention may, within 10 days after the delivery of the plea in reconvention, deliver

a replication in reconvention. Further pleadings may be delivered by the respective

parties within 10 days after the previous pleading delivered by the opposite party (Rule

21(5).

Close of pleadings (Rule 21A) This rule has been drastically amended and is in essence a copy of the Uniform Rules.

Rule 21A sets out when pleadings may be closed, namely: Pleadings shall be considered closed if • either party has joined issue without alleging any new matter, and without adding

any further pleading; • the last day allowed for filing a replication or subsequent pleading has elapsed and

it has not been filed; • the parties agree in writing that the pleadings are closed and such agreement is filed

with the registrar or clerk of the court; or • the parties are unable to agree as to the close of pleadings, and the court upon the

application of a party declares them closed.

Amendment of pleadings In Rosner, the court held that the general rule was that an amendment of notice of

motion, a summons or pleading in action, would always be allowed unless the

application to amend was mala fide or the amendment would cause injustice or

prejudice to the other side. The aim of the amendment is to obtain a proper solution to the dispute between the

parties and to identify the real issues in the matter. However, the party seeking to amend its pleadings should not consider itself to have the

right to that effect. Instead, it is seeking an indulgence, and has to offer an explanation as to the reasons

for the amendment. S111 (1) provides that the court may, at any time before judgment, amend a pleading. The considerations for the amendment of pleadings, which are applicable in the high

court, also apply in the magistrates’ courts. S111(1) In any civil proceedings the court

may anytime before judgement, amend any summons (or other doc forming part of the

record) provided that the amendment doesn’t prejudice any other party affected.

Rule 55A provides an easy way of effecting amendments to pleadings. If the other party objects to the proposed amendment, the party who wishes to amend

must, within 10 days, lodge an application for leave to amend. If no objection is delivered

within the 10 days above, every party who received notice shall be deemed to have

consented, and the amendment as applied for, may be effected.

Amendments may be made any time before service. However, such amendments may be initialled by the registrar or clerk of court. However,

rule 55A still applies to amendments after service of summons. in actions for divorce or

nullity of marriage where a summons has been served personally on the defendant, and

this defendant remains unrepresented, rule 55A(1) and (7) require that the notice of

amendment in terms of rule 55A as well as the relevant pages in an amended form must

be served personally on the defendant by the sheriff. These sub-rules are clearly

designed as a protective measure in respect of unrepresented defendants

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PLEADINGS CLOSE THEN THE PARTIES PREPARE FOR TRIAL:

Preparation for trial

The parties are obliged to disclose to each other certain aspects of the evidence they

wish to place before the court before the matter can go to trial. Thus the aim of the pre-

trial procedures is to facilitate an orderly and speedy trial and to prevent the parties

from being taken by surprise at the trial by unexpected evidence.

Set-down for trial

(1) As dominus litus it is the plaintiff’s duty to set the matter down for trial.

(2) However, if the plaintiff fails to set down the matter timeously (within 15 days after

the pleadings have closed), the defendant may set down the trial.

(3) The defendant may decide not to pursue the matter further, and may allow the

matter to die a natural death.

(4) The defendant also has the option to apply for dismissal of the plaintiff’s action. Discovery of documents

- This is a process whereby each party can compel the other to reveal the

documentary evidence which it hopes to adduce at trial, and also to reveal other

documents in its possession which tends to prove or disprove its case.

- In order that the parties may prepare for the trial and not to be taken by surprise,

it is deemed expedient that each party should know what books and documents the

other has in his possession, or under his control.

- He is entitled to be informed only of those books in the custody or under the control

of his adversary which the latter intends using in the action, or which tends to prove

or disprove either case.

- Rule 23 sets out the application for such information and the way in which such

information is to be furnished.

- Documents in respect of which privilege is claimed must be listed separately in the

schedule, and the grounds for each particular claim of privilege must be specified.

- Legal professional privilege applies to communication between attorney and client

in the following circumstances:

(1) where the communication pertains to the professional, or intended professional,

relationship,

(2) made for the dominant purpose of seeking or giving legal advice,

(3) whether written or oral, or even

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(4) Where the client confesses to the attorney the commission of a prior crime or fraud. Rule 23(2) refers to the consequences of a failure to disclose. However, 1 party can compel the other to disclose by means of rule 60(2). If the party called upon to make discovery fails to comply with this request to do so, the

party calling for discovery may make an application in terms of rule 60(2) before the trial

to compel compliance with the request. If an order is made compelling discovery within a certain period and the other party

persists in his default, a further application can be made for judgment against the

defaulting party. Rule 23(4) provides that the parties may be compelled to produce the books or

documents disclosed in their schedules, and any other books or documents specified in

a notice to that effect, at the trial. Rule 23(3) provides that each party is allowed to inspect and make copies of the

documents so disclosed, and of the documents specified in rule 23(4).

Pre-trial conference – NBNBNB!!!

(a) Section 54(1) provides that a party to a suit may request the court to convene a

pre-trial conference.

(b) At such conference, the parties try to limit the point at issue by, making admissions

not already contained in the pleadings.

(c) The parties further tries to curtail the time taken up by the conduct of the trial.

(d) They try to reach agreement on matter that may be mutually admitted and the

precise points in issue between them.

(e) This also helps curb the leading of unnecessary evidence.

Further particulars for the purposes of trial: As is the position in the High Court, any party may after close of pleadings not less than

20 days before trial, deliver a notice requesting only such further particulars as are

strictly necessary to enable him or her to prepare for trial (rule 16(2)(a)). Such a request

must be signed by an attorney or the party if such party is unrepresented. The request

must be complied with within ten days of receipt thereof. Failure to do so enables the

requesting party to apply to court for an order compelling delivery, or for the dismissal

of the action or the striking out of the defence (rule 16(4)).

The trial

Place of trial The trial should take place in open court at the courthouse from which the summons

was issued, unless the court has ordered otherwise.

Judgment! S48 sets out the judgments which a magistrate’s court may make in the action – plaintiff

wins, defendant wins or absolution: The effect of an absolution from the instance is to

leave the parties in the same position as if the case had never been brought. The plaintiff

may take out a summons and sue on the identical cause of action.

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Absolution from the instance may be given at the close of the plaintiff’s case or at the

close of the defendant’s case. Absolution from the instance at the close of the plaintiff’s case Absolution will be granted if there is insufficient evidence upon which the court may

reasonably find for the plaintiff. It should be refused where there is evidence on which a reasonable person may find for

the plaintiff. The principles regarding absolution from the instance were laid down in

Riviera. It was held that the plaintiff has to make out a prima face case regarding all

the elements of the claim in order to survive absolution. Absolution at the end of the

plaintiff’s case should be granted sparingly, but when the occasion arises a court should

order it in the interests of justice. Absolution from the instance at the close of the defendant’s case This arises in 2 situations, namely when the burden of proof rests on the plaintiff, and

when the burden of proof rests on the defendant.

(a) onus on plaintiff Where the court is unable to find that the plaintiff has proved his case on a balance of

probabilities at the close of the defendant’s case, and the court cannot also find that the

defendant has established his defence on a balance of probabilities, it must grant

absolution from the instance. Therefore, if the court cannot decide on which side the

truth lies, after hearing the evidence of both parties, the proper judgment is absolution. But if the court finds against the plaintiff, judgment for the defendant, rather than

absolution, must be granted. If the final decision of a case depends entirely upon the

credibility of witnesses, and the court cannot find that either set of witnesses is

untruthful, it should also grant absolution.

(b) onus on defendant Where the onus is on the defendant, the court can never grant absolution from the

instance at the end of the entire case. Where the defendant fails to discharge this onus on a balance of probabilities, the court

must grant judgment for the plaintiff. Where the defendant does discharge this onus on a balance of probabilities, the court

must give judgment in his favour. Thus there is no room for a judgment of absolution in this situation.

Costs In Hoosan v Joubert the court held that a magistrate’s court had no jurisdiction to grant

costs on an attorney and client scale. However, in terms of S3 of the Act, the power to make an order for attorney and client costs

was specifically conferred on magistrates’ courts. The question of costs is a matter within the discretion of the magistrate, but this discretion

must be exercised judicially and in accordance with general rules as to costs. On application by a party the court may, in certain circumstances, award costs on a higher

scale than would usually be applicable. The attorney must be careful to avoid excessive fees,

because to charge seriously in excess of what is reasonable is to overreach the payer. An attorney found guilty of overreaching can expect to be struck off the roll. An attorney must also be careful regarding trust monies deposited in his trust account.

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The enforcement of judgment No court judgment or order would be of any use to a successful plaintiff if it could not

be enforced. Because the object of litigation is to obtain money or other relief. If the defendant refuses to comply voluntarily with the judgment, steps may be taken to

enforce judgment. The process whereby compliance with any judgment, decree or sentence is enforced is

known as execution. Execution may be defined as a court process whereby a successful litigant can enforce

the court judgment or order grant in his favour. The process of execution may be used against the person or property of the debtor. The judgment debtor’s person 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 CC. The judgment debtor’s property S68 contains the provisions regarding the property of the debtor which is executable. Execution may be levied against the following property of the judgment debtor:

(a) movable property

(b) immovable property

(c) certain incorporeal property

The sheriff of the magistrate’s court is expressly authorised in terms of the act to attach

certain incorporeal property. Procedure adopted when levying execution Execution - when the court gives judgment for the payment of a sum of money or makes

an order for the payment of money, in instalments, and the debtor fails to pay the money

forthwith, or fails to pay any instalment at the time and in the manner ordered by the

court.

Where a warrant of execution is issued before an enquiry into the financial position of

the judgment debtor and a nulla bona return is made, the judgment creditor will not

be entitled to costs in connection with the issue and execution of such warrant.

The order in which execution must be levied:

* first against the movable property of the judgment debtor;

* then against his immovable property, provided that there is not sufficient movable

property to satisfy the judgment or order, or if the court, on good cause shown,

orders that execution be levied against the debtor’s immovable property.

Debt collection & administration: The Magistrates’ Courts Act of 1944 provides for the section 65 debt collection

procedure, an emoluments attachment order, an administration order and debt

collection where a debtor offers to pay off debt in instalments in terms of section 57 or

58. The section 65 procedure is applicable where a court orders payment of an amount and

the order or judgment has remained unpaid for ten days from date of such order or

judgment. The debtor is called upon to appear in court for a financial enquiry to enable

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the court to establish the debtor’s financial position in order to make a fair and

appropriate order. Emoluments attachment orders are applicable when the court, in certain cases, orders

the debtor’s employer to pay a certain portion of the judgment debtor’s salary to the

judgment creditor. Section 65J(8) regulates the position where the judgment debtor

leaves the employ of his or her employer, and when the new employer will be bound by

the order or judgment. Administration orders are dealt with in terms of section 74 of the Act. This process

affords some measure of debt relief to debtors whose debt does not exceed a specified

amount as determined by the minister from time to time, and in effect amounts to a

rescheduling of a debtor’s debt repayments. The court appoints an administrator and

the debtor is obliged to make regular payments to the administrator who, in turn, divides

the money and makes regular pro rata payments to the creditors. The order lapses as

soon as the administration costs and the listed creditors have been paid in full; the

administrator files a certificate to this effect with the clerk of the court, and sends copies

thereof to the creditors

EFFECT OF NATIONAL CREDIT ACT 34 OF 2005

The Act regulates aspects of consumer credit regarding goods to be purchased, leased or

otherwise acquired, services rendered, or credit granted. Sections 129 and 130 of the NCA create impediments regarding the enforcement of a credit

agreement by means of legal proceedings: the creditor is required to furnish a notice to

terminate a debt review under section 86(10) or a notice in terms of section 129(1) drawing

the consumer’s attention to his or her default, and proposing that the consumer refers the

credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court

or an ombudsman with jurisdiction, with the view to resolving any dispute and agreeing on

a repayment plan. The aim of the NCA is to promote and advance the social and economic welfare of all

South Africans in a fair, transparent, competitive, sustainable, responsible and

efficient manner, and to promote fair and accessible credit-marketing practices. In

essence the Act provides greater consumer protection and debt relief when a

consumer is over-indebted or in the event of reckless credit having been extended.

1. Service and delivery of documents

Section 168 of the NCA regulates service by registered mail or by delivery in person to the

last-known address. Section 65 prescribes delivery to a consumer, and expands on the

delivery options in instances where no specific method for delivery is indicated, such as

delivery in person, by ordinary mail, by fax, by e- mail or by printable web page.

2. Procedures and pleadings:

(a) Letter of demand The NCA requires the debt collection process to commence with either a letter of demand

or a summons. A section 129(1)(a) demand constitutes a legal notice in terms of section

96(1) of the NCA, and it must be delivered to the consumer at his address as set out in the

agreement, or the most recent address provided by the consumer to the credit provider in

terms of section 96(2).

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(b) Notice

Section 129(1)(b) of the NCA provides that the credit provider may not commence any legal

proceedings to enforce the credit agreement before providing notice to the consumer in

terms of section 129(1)(a) or section 86(10), and complying with further requirements in

section 130 (debt procedures in court). Legal proceedings may not commence before a

written notice in terms of section 129(1)(a) has been properly served on the consumer. The

credit provider must prove delivery of the notice, and the consumer bears the onus to rebut

proof of delivery. Section 129(1)(a) does not indicate the method of delivery, nor the address where notification

is to take place. After several conflicting judgments, it was held in Rossouw that the actual receipt of the

default notice by the consumer is not required – despatching the notice in the manner

chosen by the consumer to his or her chosen address as set out in the credit agreement is

sufficient to establish compliance with this section.

(c) Summons

As the NCA requires many averments to show compliance, a combined summons is

preferred in matters relating to the NCA. In addition to the information required by

magistrates’ courts rule 6(1)(a), a summons for the enforcement of a debt in terms of the

NCA must contain sufficient particulars to determine whether the requirements set out in

the NCA have been met. A number of allegations may potentially be made in the particulars

of claim, but it should contain at least the following averments: • citation of the parties • that the NCA applies to the agreement • type and category of the credit agreement • date when the agreement is concluded • details regarding the principal debt • alleged compliance with the Act • other material terms of the agreement • locus standi : that the plaintiff (or credit provider) is duly registered with the

National Credit Regulator in accordance with section 40 (or exempt from registration),

and has paid the renewal fees or applied for registration which has not been refused • that the consumer is in default under the relevant agreement for a period of 20

business days or longer • that written notice in terms of section 129(1)(a) has been properly served on the

consumer • that 10 or more business days have elapsed since the delivery of the notice • that the consumer either did not respond to the section 129(1)(a) notice or rejected

it • that the consumer did not refer the credit agreement to a debt counsellor, alternative

dispute resolution agent, consumer court or an ombudsman with jurisdiction • that there is no pending matter before the Consumer Tribunal that relates to the

credit agreement • that the consumer who is under an instalment agreement or lease had failed to

surrender the goods voluntarily (if applicable) • if the consumer returned the goods that are subject to an instalment agreement or

lease, that the provisions of section 127 have been complied with and facts to prove

compliance have been averred • a credit assessment was conducted in accordance with section 81, and the credit

extended to the consumer was not reckless

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The following documents should be filed with a request for judgment: • original credit agreement • copy of the section 129 notice and proof that it has been properly served on

the consumer • copy of certificate of registration with the National Credit Regulator

(d) Summary judgment and default judgment

Section 129(1)(b) of the NCA provides that a credit provider may not commence “any legal

proceedings” to enforce the agreement before first giving notice to the consumer and

meeting any further requirements set out in section 130. This means, first, that “any” proceedings may refer to action as well as application

proceedings. Secondly, the provisions of this section also apply to an application for

summary judgement and an application for default judgment. In the case of summary

judgment, that in addition to complying with Uniform Rule 32(2) and rule 14(2) of the

magistrates’ courts rules, when applying for summary judgment an application under the

NCA must contain the necessary averments.

Review:

The meaning of the term ‘‘review’’ was laid down in Johannesburg Consolidated

Investment Company Ltd “In its most usual signification it denotes the process by

which, apart from appeal, the proceedings of inferior Courts of Justice, both Civil and

Criminal, are brought before this Court in respect of grave irregularities or illegalities

occurring during the course of such proceedings. But there is a second species.

Whenever a public body has a duty imposed upon it by statute disregards important

provisions of the statute, or is guilty of gross irregularity or clear illegality in the

performance of the duty, this Court may review the proceedings complained of. The

Legislature has conferred a power of review (of certain statutory bodies). The Promotion of Administrative Justice Act 3 of 2000 (PAJA) creates, as it were, a

fourth situation where review may occur. This Act was passed to give effect to section

33 of the Constitution, 1996, that requires administrative actions to be lawful,

reasonable and procedurally fair. Because ‘‘administrative action’’ refers to a decision

taken or a failure to take a decision by (a) an organ of state, or (b) a natural or juristic

person when exercising a public power or performing a public function in terms of an

empowering provision which adversely affects a person’s rights. The grounds for review

in terms of this Act are contained in section 6 and the procedure for review in section

7 In general terms, it can be said that review is essentially concerned with the decision-

making process (as opposed to the decision per se). Therefore, the question is whether

or not the procedure followed is regular and valid.

Distinction between appeal and review

(a) 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.

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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.

(b) 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.

(c) The rules governing civil appeals usually provide that an appeal must be noted

within a stipulated number of days, and that the steps to prosecute it must be

taken within a further limited period. In regards of reviews, there is generally no fixed period within which the

proceedings must be brought, but this must be done within a ‘reasonable

time’. What is reasonable will depend on the case.

(d) The final distinction is that the procedure differs. An appeal must be noted and prosecuted according to statutory provisions,

supplemented by the rules of the court. Reviews, on the other hand, are brought on notice of motion.

Grounds for review

Lower courts

S24 of the Supreme Court act lays down uniform grounds for the reviewing of the

proceedings of any lower court.

The following grounds for review are mentioned in this section:

(1) absence of jurisdiction on the part if the court

(2) interest in the cause, bias, malice or corruption on the part of the presiding

judicial officer

(3) gross irregularity in the proceedings

(4) The admission of inadmissible or incompetent evidence of the rejection of

admissible or competent evidence.

(1) the meaning of ‘gross irregularity’

This phrase refers not only to incidents in the court room, but also to any irregularities

which lead to prejudice to any of the parties. To illustrate this, if the court conducts an inspection in loco in the absence of the parties,

the court’s conduct will amount to gross irregularity. A gross irregularity must be prejudicial before review proceedings will proceed.

As mentioned above, there are instances where either review proceedings or an appeal

may be instituted, but naturally only when it is not necessary to go beyond the record. The following 2 examples will illustrate this:

a) Where the court a quo had no jurisdiction, the proceedings may be review in

terms of the act. However, the judgment can also be appealed against.

b) Where the magistrate has admitted inadmissible or incompetent evidence, the

proceeding may be reviewed in terms of the act. It is also permissible to appeal

in a proper case, but then the appellant is restricted to the record.

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Grounds for reviewing the proceedings of quasi-judicial bodies

Superior courts have inherent jurisdiction to entertain all causes arising within their

area of jurisdiction. If a statutory body (e.g. 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 any body 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. Procedure on review

The procedure pertaining to review is set out in Rule 53. The Rule provides that motion proceedings must be used when the review of a decision

of any inferior court or quasi-judicial body is sought.

(2) What does the notice of motion contain?

The notice of motion calls upon the presiding officer to dispatch the record of the

original proceedings to the registrar of the relevant division of the High court where the

review proceedings have been instituted. This record must be dispatched within 15 days after receipt of the notice of motion.

The notice must contain reasons for judgment which the presiding officer must, or

wishes, to furnish. The notice also calls upon the other interested parties (i.e. parties who would be

affected by the review proceedings) to show cause why the decision should not be

reviewed. The notice of motion must also be accompanied by a supporting affidavit setting out

the grounds, facts and circumstances on which the applicant relies for requesting the

review. The presiding officer then sends the record to the registrar, who must permit the

applicant to make copies thereof. The applicant gives 2 copies to the registrar and a copy to every other party to the

proceedings. After the receipt of the record, the applicant has a 10 day period within which he may

amend or add to his notice of motion or affidavit by means of a notice together with a

supplementary affidavit. He may only do this if the record contains further information which he wishes to bring

to the court’s attention. If the presiding officer, or any interested party wishes to oppose the application for

review, he must file a notice of intention to oppose within 15 days of receipt of the

notice if motion. He must also file an answering affidavit within 30 days of the filling of the applicant’s

supplementary affidavit.

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After the answering affidavit has been filed by the respondent, the applicant may file a

replying affidavit. The application will then be set down for hearing.

From the above, it is clear that the normal, opposed application procedure is followed in

review proceedings, with 2 important additions, namely

(1) the provision for making the record available to all parties and

(2) The provision that the applicant may amend or add to the documents on the

basis of which he institutes review proceedings, after receipt of the record.

Powers of the court on review If review proceedings are successful, the High Court will set aside the decision or the

proceedings that it has reviewed, and remit the matter to the particular body to decide

in accordance with the correct procedure.

However, the court will not substitute its own discretion for that of the body or official

whose decision is has review, unless there are exceptional circumstances.

It should also be noted that the court will not remit the matter to the particular body

whose proceedings are reviewed, in the following circumstances:

o when the end result is clear and referring it back will merely waste time o

when a remittance will be futile

o When there are valid reasons why the court should exercise its discretion in

favour of the applicant and substitute its own discretion for that of the

respondent.

APPEALS:

Appeals from magistrate’s court decision When

can an appeal be noted? A party's right to appeal from a magistrate’s court entails that leave to appeal need not

be obtained. This right to appeal may, however, be excluded by a written agreement by

the parties before the trial commences that the decision of the court will be final (s 82).

In terms of section 83, the right of appeal accrues only to a party to a civil suit or

proceeding, and this section also provides that appeals may be brought only against the

following three types of decision:

1. any judgment described in section 48

2. any rule or order having the effect of a final judgment, including an order relating

to execution in terms of Chapter IX of the Act and on an order as to costs

3. in certain circumstances, any decision overruling an exception What is meant in section 83(b) by a rule or order ‘having the effect of a final judgment’? In Pretoria Garrison Institute v Danish Variety Products, it was held that the test for

determining whether a rule or order has this effect is whether it disposes of any issue,

or any portion of any issue, in the main action, or irreparably anticipates or precludes

some of the relief which would, or might, be given at the main hearing.

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If the effect of a rule or order is final, this means that the matter has ended for one of

the parties. Therefore, one can appeal against that order or rule. This differs from an

interim order, in that the granting of an interim order does not mean that a party has

lost the case. Thus the party may not appeal against a provisional or interim order. Examples of orders that are final and definitive:

• the granting or refusal of a final interdict • the granting of a summary judgment, the upholding of a special plea that the court

lacks jurisdiction,

• the upholding of a defence of prescription. In Makhetha, it was held that the granting of provisional sentence in a manner that

would render it pointless to go into the principal case, had the effect that the

provisional sentence order was final in effect and accordingly appealable. Examples of orders which are interlocutory, with no final effect are:

• a refusal to grant absolution from the instance at the end of the plaintiff's case, • an order for (or refusal to order) further particulars. In Livanos v Absa Bank, the court held that an order granting leave to execute subject

to security de restituendo is interlocutory and not appealable. A judgment, which may be rescinded or varied in terms of section 36, is not immediately

appealable; a party must first exhaust his or her remedies in the lower court before

appealing. An appeal against the costs awarded in pursuance of a non-appealable judgment or

order - section 83(b), ‘... a party ... may appeal ... against ... any order as to costs’. Thus section 83 also renders appealable any order as to costs - in deciding whether the

award of costs was correctly made, ‘the merits of the dispute’ in the Court below must

be investigated in order to decide whether the order as to costs made in that dispute

was properly made or not. The result is that a court of appeal may allow an appeal as

to costs where it is of the opinion that the dispute in regard to which the costs were

awarded was wrongly decided, but it cannot alter the judgment or order – even if it is of

the opinion that such judgment or order was incorrectly made.

The effect of noting an appeal

The noting of an appeal automatically suspends execution of the judgment, pending the

outcome of the appeal. Upon application, the court may order that the judgment be put into effect. Therefore,

the onus rests on the successful party who is now seeking to execute, to approach the

court for an order allowing execution despite the noting of an appeal.

The court hearing the appeal In terms of section 83, a party may appeal to the “provincial or local division” of the High

Court having jurisdiction to hear the appeal. However, the Superior Courts Act, 2013

no longer makes this distinction, and reference is made only to a “Division”. The Act

further distinguishes between a “local seat” and a “main seat” of a Division, where this

is applicable.

The procedure on appeal An appeal may be noted either by an appellant in person or by his or her duly authorised

legal representative. The appeal procedure can be divided into two phases: the first is

governed by rule 51 and refers to the procedure in the magistrates court, while the

second is governed by Uniform Rule 50 and refers to the procedure in the High Court. The procedural steps to be taken in an appeal from a magistrate’s court decision are the

following:

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(1) Reasons for judgment before noting an appeal – NBNB!!

Rule 51(1) provides that the appellant must within ten days after judgment in writing

request the judicial officer against whose judgment he or she wishes to appeal to hand

to the clerk of the court a written judgment, which becomes part of the record in the

case. The judicial officer must furnish the written judgment within 15 days of the

request to the clerk of the court.

The following is an example of a written request:

(Heading) ______________________________________________________________ REQUEST FOR REASONS FOR JUDGMENT ______________________________________________________________ Kindly take notice that the Plaintiff in the abovementioned case hereby requests that

the Honourable Magistrate....................... within 15 days of the date hereof hands to

the clerk of the court a written judgment in the abovementioned case forming part of

the record showing:

1. (a) the facts he found to be proved, and

2. (b) his reasons for judgment. Dated at ...................................... on this .......... day of

............................................ 20 ..... TO: THE CLERK OF

THE COURT Note that the grounds of appeal must be clearly specified. A notice which merely sets

out that ‘the judgment is bad in law and against the weight of the evidence’ will

generally be regarded as fatally defective and the appeal will be struck from the roll.

Where it is absolutely clear what the grounds of appeal as to facts and law are, so that

the respondent will not be taken by surprise, then such a notice will be allowed. (Address) .................................... Plaintiff's attorneys

(2) Noting an appeal. This matter is regulated by rule 51(3).

(a) If a party wishes to appeal, he or she must note the appeal within 20 days of the

date of the judgment appealed against, or within 20 days of the clerk of the court

providing a copy of the written judgment, whichever period is the longer. He or she

notes the appeal by delivering a notice, and, unless the court of appeal directs

otherwise, by furnishing security for the respondent's costs of appeal to an amount

of R1 000. No security is required from the state.

(b) A notice of appeal must state • whether the judgment as a whole, or only part of the judgment or order, is being

appealed against, and if only part, then what part • the grounds of appeal, specifying the findings of fact or rulings of law appealed against

The following is an example of a notice of appeal:

(Heading) ______________________________________________________________ NOTICE AND GROUNDS OF APPEAL ______________________________________________________________

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Kindly take notice that the Appellant hereby gives notice of appeal against the entire

judgment of the Magistrate delivered on ...................... in case no .................. held in

the magistrate’s court for the District of ................ at ..............., in which he dismissed the Plaintiff's claim for damages in the amount of R

........... with costs. The grounds of appeal are as follows:

1. The Honourable Magistrate incorrectly decided that the Plaintiff failed to discharge

the onus of proof resting upon him.

2. The Honourable Magistrate erred in law in finding that,........

3. Honourable Magistrate erred in making the following findings of law: (i) in deciding that ................. (ii) in deciding that …………….

4. Honourable Magistrate erred in making the following findings of fact: (i) in deciding that .......................... (ii) in deciding that ..........................

(3) Reasons for judgment after the appeal has been noted: Within 15 days after the notice of appeal has been delivered, the judicial officer must

deliver to the clerk of the court a statement in writing showing (as far as may be

necessary, having regard to any written judgment already delivered by him or her)

(a) the facts he or she found to be proved (i.e. found but did not include in his or her

original judgment; not facts which he or she now finds)

(b) the grounds upon which he or she arrived at any finding of fact specified in the

notice of appeal as appealed against

(c) his or her reasons for any ruling of law, or for the admission or rejection of any

evidence, so specified as appealed against (rule 51(8)). This statement becomes part of the record. The same procedure applies to the noting of

a cross-appeal.

In Regent Insurance Co Ltd, the court held that rule 51(8) was peremptory and had to be

complied with. The magistrate's written explanation formed an integral part of the

appeal record. The reasoning behind this was to encourage the speedy and effective

disposal of appeals by placing the court of appeal in a position to get to the heart of the

appeal and deal with it in a speedy, efficient and cost-effective manner. Failure to comply

with the provision undermined and delayed effective legal administration.

(4) Prosecution of appeal. Once the appeal has been noted, it remains to prosecute it. The first step is to have it

set down for hearing. Application must be made to the Registrar for a date within 40

days of noting the appeal, on notice to all other parties (Rule 50(4)). Should the appellant

fail to apply for a date within this period, the respondent may apply for a hearing date

within the next 20 days. If neither party has applied within the relevant time limits, the appeal will lapse. On

receipt of the application, which must be accompanied by two copies of the record of

the proceedings, the Registrar selects a date for the hearing. The Registrar must

immediately give the applicant written notice of such date, whereupon the applicant

must immediately deliver a notice of set-down, and give notice in writing thereof to

the clerk of the court from which the appeal emanated. At the hearing of the appeal,

the parties must be represented either in person or by counsel. The appeal, unless otherwise required to be, permitted by any law, is heard by two

judges in the normal course of events. However, if these judges are not in agreement,

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the Judge President (or Deputy) may direct that a third judge be added to hear the appeal

(s14(3) of the Superior Courts Act, 2013). If the appellant is in default on the day of the hearing, the respondent is entitled to an

order that the appeal be struck off the roll, with costs. If the respondent is in default, the appellant will have to persuade the court of appeal

that the judgment of the lower court ought to be reversed.

(5) Further appeal. There is, as a general rule, only one appeal as of right. If a magistrate's decision has been taken on appeal to a Division of the High Court,

there is a further appeal to the Supreme Court of Appeal, but only with the special

leave of the Supreme Court of Appeal (s16(1)(b) of the Superior Courts Act, 2013). An appeal does not lie to the full court of the particular division of the High Court –

this court does not possess such jurisdiction, and a noting to the full court is a nullity

(Enslin).

Powers of the court of appeal: Section 87 of the Magistrates' Courts Act of 1944 specifically provides that a court of

appeal may • confirm, vary or reverse the judgment appealed from, as justice may require • remit the matter to the court a quo so that further evidence may be taken and the

appeal be determined • if desirable, order any party to produce further proof • take any course which may lead to the just, speedy and inexpensive settlement of

the case • make such order as to costs as justice may require

Haan Solo institutes proceedings in a magistrates’ court against Luke Skywalker for

damages arising out of breach of contract. The magistrate grants judgment against Haan.

John is dissatisfied, and takes the matter on appeal.

1. Must John apply for leave to appeal to a High Court?

2. How many judges will hear the appeal?

3. Describe how John must note his appeal to a High Court.

4. Explain the implications for John if Jane abandons part of the judgment granted in

her favour.

5. How does the noting of the appeal affect the execution of the judgment given in the

magistrates’ court?

ANSWERS:

1. No, John is allowed one appeal as of right in terms of section 83 of the Magistrates’

Courts Act of 1944. The appeal lies to the appropriate Division of the High Court

from judgments of magistrates’ courts. See section 83.

2. An appeal from an inferior court is heard by two judges. See section 14(3) of the

Superior Courts Act, 2013.

3. This matter is regulated by rule 51(3). John must note the appeal within 20 days of

the date of judgment appealed against, or within 20 days of the clerk of the court

providing a copy of the written judgment, whichever period is the longer. John notes

the appeal by delivering a notice and, unless the court of appeal directs otherwise,

by furnishing security for the respondent's costs of appeal to an amount of R1 000.

A notice of appeal must state the following:

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— whether the judgment as a whole, or only part of the judgment or order, is being

appealed against, and if only part, then what part

— the grounds of appeal, specifying the findings of fact or rulings of law against the

grounds of appeal must be clearly specified in order for the notice to pass muster.

4. Jane was the plaintiff in the original application. If a plaintiff abandons any part of

a judgment granted in his or her favour, judgment in respect of the part abandoned

is entered for the defendant (John) with costs in terms of section 86(2) of the

Magistrates’ Courts Act 32 of 1944.

5. The noting of an appeal automatically suspends execution of the judgment, pending

the outcome of the appeal. Upon application, however, the court may order that the

judgment be put into effect. The court's discretion will be made on such terms as

the court may determine about security for the due performance of any judgment,

which may be given upon the appeal or application. Section 78 of the Magistrates’

Courts Act.

APPEALS IN SUPERIOR COURTS Prior to 2013 the Supreme Court of Appeal was the highest court in civil matters, and

the Constitutional Court was the highest court in all constitutional matters. The

Constitution Seventeenth Amendment Act, 2012, which took effect on 22 August 2013,

not only provided for a single High Court of South Africa, but also provided that the

Constitutional Court is now the so-called apex court or highest court in all matters. The amendment brought about the following situation: The Constitutional Court’s jurisdiction is no longer limited to purely constitutional

matters, and the Supreme Court of Appeal is no longer the court of final instance in non-

constitutional matters, but will be an “intermediate appeal court” in such matters. The Constitutional Court still retains its exclusive jurisdiction with regard to the matters

set out in section 167(4) of the Constitution, and is therefore the court of first and final

instance in these matters.

However, the amendment does not mean that every matter will eventually be heard by

the Constitutional Court – very specific grounds have to exist before the Constitutional

Court will grant leave to appeal in matters other than constitutional matters. The

Supreme Court of Appeal mainly decides appeals in any matter arising from the High

Court or a court of a status similar to the High Court. There is no right of appeal against a decision of a High Court, and leave to appeal is

required each time, either from the court that gave the judgment, or from the Supreme

Court of Appeal. Leave to appeal will only be given if the judge(s) concerned is/are of the opinion that: • the appeal would have a reasonable prospect of success, or that there is some

compelling reason why the appeal should be heard • it cannot be said that the issues are of such a nature that the decision will have no

practical effect or result, and • the appeal would lead to a just and prompt resolution of the real issues between the

parties (s 17(1)).

Appeals from High Courts

Section 16 of the Superior Courts Act, 2013 refers to an appeal against “any decision”,

whereas its predecessor (s 20 of the Superior Courts Act of 1959) referred to “a judgment

or order”.

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The effect of noting an appeal

The common law rule of practice in the superior courts is that the execution of a

judgment is automatically suspended upon the noting of an appeal. This common law

rule is reflected in both the rules of court (see Uniform Rule 49(11)) and in the Superior

Courts Act, 2013 (see s18(1) and 18(5)). Section 18(1) provides that unless there are exceptional circumstances, the “operation

and execution” of a decision is suspended pending the decision of the application for

leave to appeal or the appeal. In addition to proving exceptional circumstances, the party approaching the court to

order otherwise, has to prove that he or she will suffer irreparable harm if the court does

not order otherwise (while the other party will not) (s18(3)). Uniform Rule 49(11), it is not merely the right to levy execution, which is suspended,

but the ‘operation and execution’ thereof. This has the result that, pending the appeal, the judgment cannot be carried out and

no effect can be given to it. Secondly, to obtain leave to execute the judgment, the party in whose favour judgment

was given must apply to the court, which gave the judgment, and only this court is

competent to grant leave to execute. The applicant bears the onus of showing why the judgment should be carried into

execution, and, if his or her application is successful, he or she will be required to

furnish security de restituendo (Uniform Rule 49(12)).

Peremption (lapse) of appeal

The Superior Courts Act, 2013 does not contain a section that corresponds with section

85 of the Magistrates’ Courts Act of 1944. The position in regard to the peremption of

appeals is therefore governed by the common law, in terms whereof a person who has

acquiesced to a judgment cannot subsequently appeal against it. Such acquiescence

will be inferred from any act, which is inconsistent with the intention to appeal, for

example payment, or acceptance of payment, in terms of a judgment. If peremption of

appeal is raised during proceedings, the onus of proof is on the person alleging such

acquiescence.

Abandonment of judgment Rule 41(2): Unlike the corresponding provisions in the

Magistrates’ Courts Act, this subrule makes no mention of a party's liability for costs. It

appears that the party abandoning would be liable for costs up to the date of

abandonment. Courts hearing the appeal A court of first instance is usually constituted before a single judge, and a full bench

hearing an appeal against the judgment of a single judge comprises three judges (s 1 of

the Superior Courts Act, 2013). No judge whose judgment is appealed against may sit

at a hearing of such an appeal (s 14(8)). An appeal lies upon leave being granted in the

following instances:

o against a decision of a Division as a court of first instance • if the court consisted of a single judge, the appeal lies either to the full court of

that Division, or to the Supreme Court of Appeal (s 16(1)(a)(i)).

• If the court consisted of more than one judge, the appeal lies to the Supreme Court

of Appeal (s 16(1)(a)(ii)). Leave to appeal may be granted by the judge(s) against whose decision is being

appealed (s 17(2)(a)), or if refused, by the Supreme Court of Appeal on application (s

17(2)(b)). If the leave to appeal is granted against a decision of a single judge sitting as a court

of first instance, the judge(s) granting such leave must direct that the appeal be heard

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by a full court of that Division (s 17(6)), unless the decision involves a question of law

of such importance that it requires a decision by the Supreme Court of Appeal, or

that the administration of justice requires the Supreme Court of Appeal to consider

it (s 17(6)(i)-(ii)).

o against a decision of a Division as court of appeal The

appeal lies to the Supreme Court of Appeal upon special leave to appeal granted by

the Supreme Court of Appeal (s 16(1)(b)).

o against a decision of a court of a status similar to the High Court The

appeal lies to the Supreme Court of Appeal upon leave to appeal granted by that court

of by the Supreme Court of Appeal (s 16(1)(c)). Should a Division have one or more local seats, the main seat of that Division has

concurrent appeal jurisdiction over the area of jurisdiction of any such local seat, and

the Judge President of the Division may direct that an appeal against a decision of a

single judge or of a magistrates’ court within that area of jurisdiction may be heard at

the main seat of the Division (s 6(4)(a)).

Procedure on appeal Procedure on appeal to full bench

Leave to appeal may be requested at the time the judgment or order is made. If this is

not done, an application for leave to appeal must be filed within 15 days of the judgment

or order appealed against. This application is heard by the judge who made the judgment or order (Rule 49(1)). The appellant must, within 60 days of delivering his or her notice of appeal, submit a

written application to the Registrar for a date for the hearing of the appeal (Rule 49(6)(a)). The appellant must simultaneously file three copies of the appeal record with the

Registrar and must provide the respondent with two copies (Rule 49(7)). At this stage,

the appellant must also furnish security for the respondent's costs of appeal. If the

parties cannot agree on the amount, the Registrar will determine the amount. Rule 49(13) has been amended to allow the court on application to it, to release the

appellant wholly or partially from the obligation to enter into good and sufficient security

for the respondent's costs of appeal. The Registrar then assigns a date for the hearing of the appeal, and gives both parties

at least 20 days notice thereof (Rule 49(7)(c)). Should the judge against whose decision leave to appeal is sought refuse leave to appeal,

the party wishing to appeal may file an application for leave to appeal with the registrar

of the Supreme Court of Appeal within one month after such refusal (section 17(2)(b) of

the Superior Courts Act, 2013). This time-frame also applies in respect of an application for special leave to appeal under

section 16(1)(b). These applications must be considered by two judges (s 17(2)(c)) who need not hear oral

evidence, and who may grant or refuse the application or refer it to the court for

consideration (s 17(2)(d)).

The procedure on appeal to the Supreme Court of Appeal

If leave of the Supreme Court of Appeal is necessary, an application for leave to appeal

shall be lodged in triplicate with the Registrar within the time limits prescribed by that

law (Rule 6(1)). The application for leave to appeal must furnish all the information necessary to decide

the application and must deal with the merits of the case only where it is necessary to

explain and support the particular grounds upon which leave to appeal is sought or

opposed.

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The application must be accompanied by the following: • a copy of the order of the court a quo appealed against; • where leave to appeal has been refused, a copy of that order of the court a quo; • a copy of the judgment of the court a quo; and where leave to appeal has been refused

by that court, a copy of the judgment refusing such appeal (Rule 6(2)). The Registrar

may, on written request, extend the period for filing a copy of the judgment or

judgments for a period not exceeding one month. Every affidavit in answer to the application must be lodged in triplicate within one month

after service of the application on the respondent. An applicant who has applied for leave

to appeal, must within ten days after receipt of the aforesaid affidavit, lodge an affidavit

in reply dealing only with new matters raised in the answer. The application is then considered by the judges, who may request submissions or

further affidavits; the record or portions of it; and additional copies of the application. The party concerned must lodge the required documents within the period prescribed

by the Registrar. If the party concerned fails to comply with the Registrar's direction or

fails to cure the defects in the application within the prescribed period, the application

will lapse (Rule 6(8)). A notice of appeal must then be lodged with the Registrar of the Supreme Court of Appeal

and the Registrar of the court a quo. The notice of appeal must be lodged within one

month after the date provided for in Rule 7(1). The notice of appeal and cross-appeal must state what part of the judgment or order is

appealed against, and also state the particular respect in which the variation of the

judgment or order is sought. The notice of appeal must be accompanied by a certified

copy of the order (if any) granting leave to appeal (Rule 7(3)). The parties to the appeal

may extend the time limit for lodging the notice of appeal by written agreement (Rule

7(4)). In terms of Rule 8 the appellant must within three months of the lodging of the notice

of appeal, lodge with the Registrar six copies of the record of the proceedings in the

court a quo. The appellant must also deliver copies to the respondent. The respondent

may decide on the number of copies that are necessary. The time limit for lodging of the

record may be extended by written agreement of all the parties to the appeal, and by the

Registrar upon written request, with notice to all the parties. However, the Registrar

may not extend the period for more than two months. The appeal will lapse if the

appellant fails to lodge the record within the prescribed period or within the extended

period.

The appellant may be ordered by the court granting leave to appeal, to provide security

for the respondent's costs of appeal. The appellant must furnish the requisite security

before lodging the record with the Registrar, and inform the Registrar accordingly. If the

parties contest the form or amount of security, the Registrar of the court a quo will

determine the issue and this decision will be final. Unless the President otherwise

directs, the appellant must lodge six copies of his or her main heads of argument with

the Registrar of the Supreme Court of Appeal within six weeks from the lodging of the

record. The respondent must lodge with the Registrar of the Supreme Court of Appeal

six copies of his or her main heads of argument within one month after receiving the

appellant’s heads of arguments. The heads of arguments will comprise the main points

to be made in counsel’s address to court, will be accompanied by a list of authorities to

be quoted in support of the argument, and will define the form of order sought from the

Court. A photocopy or printout from an electronic database of the statute, regulation or

decree must accompany the heads of argument in a separate file: Rule 10(3)(f). The

President or the Court may mero motu (of its own accord) or on application, extend or

reduce any time period prescribed in these rules and may condone noncompliance with

these rules. The Registrar shall notify each party by registered letter of the date of the

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hearing. If the appellant fails to appear on the designated date, the appeal will be

dismissed for non-prosecution, unless the Court otherwise directs. Regarding an

application for condonation, in terms of Rule 12, in Darries, court held that

condonation of the non-observance of the Rules of the Supreme Court of Appeal is not

a mere formality and that some acceptable explanation must be given for any delay in

seeking condonation. The appellant should apply for condonation as soon as possible,

and the petition should set forth briefly and succinctly essential information, which

might enable the Court to assess the appellant's prospects of success. This is so because

the appellant's prospect of success is one of the factors relevant to the exercise of the

Court's discretion. However, where non-observance of the rules of court has been

flagrant and gross, an application for condonation should not be granted, whatever the

prospects of success might be. All appeals are heard in Bloemfontein, although the court may sit elsewhere in

exceptional circumstances. The Court may make an order for costs to be borne personally by any party or attorney

or counsel if the hearing of the appeal is adversely affected by the failure of that party

or his or her legal representative to comply with the rules of the Supreme Court of Appeal

(Rule 11A). Powers of the court on hearing of appeals

Section 19 of the Superior Courts Act, 2013 provides that the Supreme Court of Appeal and a Division exercising appeal jurisdiction may • dispose of an appeal without the hearing of oral evidence • receive further evidence • remit the case to the court of first instance, or the court whose decision is appealed

against, for further hearing with any instructions regarding the taking of such

evidence, or • confirm, amend or set aside the decision appealed against and give any decision

which the circumstances require. Position of the Supreme Court of Appeal

Section 168 of the Constitution, 1996 provides that this court may decide appeals in

any matter arising from the High Court of South Africa, or from a court of a status

similar to the High Court. Appeals in respect of labour and competition matters are

expressly excluded in this regard. Section 168(3)(b) makes it clear that this court may

decide only appeals, issues connected with appeals and matters referred to it in terms

of an Act of Parliament. Should the Supreme Court of Appeal make an order concerning the constitutional

validity of an Act of Parliament, a provincial Act or any conduct of the President, such

an order of constitutional invalidity will have no force unless it is confirmed by the

Constitutional Court (s 172(2)(a) of the Constitution, 1996).

The position of the Constitutional Court As the highest court of the Republic, the Constitutional Court may decide not only

constitutional matters, but also any other matter, provided it grants leave to appeal on

the grounds that “the matter raises an arguable point of law of general public importance

which ought to be considered” by the Court. This Court also makes the final decision whether a matter is within its jurisdiction (s 167(3) of the Constitution, 1996). When it is in the interests of justice and the

Constitutional Court has given leave, a person may bring a matter directly to the Court,

or appeal directly to the Court from any other court (s 167(6)).

Carrie Fisher institutes an action for damages against Harrison Ford in the High Court.

Both the court a quo and, on appeal, the full bench of the applicable Division of the High

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Court, reject his claim. Carrie now wishes to appeal either to the Supreme Court of Appeal,

or to the Constitutional Court

1. What procedure must Carrie follow to apply to appeal to the Supreme Court of

Appeal?

2. If leave to appeal is granted, what is the next step that Carrie must take?

3. What essential information must be included in a notice of appeal?

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4. What is meant by the term “heads of argument”?

5. Suppose that Carrie is unsuccessful in his appeal. Can she now apply to the

Constitutional Court?

ANSWERS:

1. An application for leave to appeal must be lodged in triplicate with the Registrar of

the Supreme Court of Appeal within the time limits prescribed by the law.

2. A notice of appeal must be lodged with the Registrar of the Supreme Court of Appeal

and with the Registrar of the court a quo within one month after the date of the

granting of leave to appeal.

3. The notice of appeal must state what part of the judgment or order is appealed

against and state the particular respect in which the variation of the judgment or

order is sought.

4. The “heads of arguments” comprise the main points to be made in counsel's address

to court as well as a list of the authorities to be quoted in support of each point. The

heads of argument will also define the form of order sought from the Court.

5. Only if the matter raises an arguable point of law of general public importance which

ought to be considered by the Constitutional Court, and if the Constitutional Court

grants leave to appeal (see section 167(3) of the Constitution, 1996). On the given

facts the answer is probably “no”.

Substantive and Adjective law

The rules of substantive law define the rights and duties of persons in their ordinary

relationship with each other. Adjective law deals with the procedure to be adopted in order to enforce a right or

duty. For example: X lends his car to Z, who refuses to return it. Adjective law sets out

the procedural steps, which X must follow in order to regain possession. Adjective law is accessory to substantive law.

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FORMS OF PROCEEDINGS: (Page 155 – 175) prescribed book

(1) APPLICATION PROCEEDINGS

• By notice of motion

• Parties: applicant and respondent

• Documents: affidavits

(2) ACTION /SUMMONS PROCEEDINGS: (Page 176 -251)

• By summons

• Parties: plaintiff and defendant

• Documents: pleadings TYPES OF APPLICATION

PROCEEDINGS:

EX PARTE APPLICATIONS (Form 2)

• No Notice to other party

• Use in exceptional circumstances e.g. only interested person or affected person

• Affidavits

ORDINARY APPLICATIONS (Form 2 (a)

• Notice to other party

• Different affidavits such as supporting, answering and replying

RELATED FORMS:

- INTERLOCUTORY (already instituted/related proceedings); Rule 6(11)

- URGENT (urgent relief such as access rights); Rule 6(12)

DISPUTE OF FACT:

SUMMONS PROCEEDINGS: ILLIQUID AND LIQUID SUMMONS

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PROCEEDINGS THREE TYPES OF SUMMONS:

- SIMPLE SUMMONS (types of claims, debt or liquidated debt such

a claim for a fixed or definite thing, when is the declaration

used? procedural events)

- COMBINED SUMMONS (Unliquidated claim e.g. divorce/damages)

- PROVISIONAL SENTENCE SUMMONS (liquid document e.g.

cheque); liquid document falls within definition of liquidated debt

or demand.

DIFFERENCE BETWEEN PLEADINGS AND PROCESSES:

PLEADING: written document containing averments by parties, material facts

supporting claim or defence are set out e.g. particulars of claim, plea on the

merits, declaration

PROCESS: emanates from the court e.g. subpoenas, notices

BRIEF OUTLINE OF STUDY UNITS: PROCEDURES/PROCEEDINGS/PLEADINGS: PARTIES AND MODES OF SERVICE

NOTICE OF INTENTION TO DEFEND – merely a notice informing the plaintiff that the

defendant intends defending the action, it is not a means of raising a defence!

PLEA: raise a defence, know when a counterclaim (claim in reconvention) is

raised/used?

REPLICATION: plaintiff’s reply to the defendant’s plea, when is it relevant? (defendant’s

plea is one of confession and avoidance; defendant raises new averments)

CLOSE OF PLEADINGS: See Rule 29

APPLICATION TO STRIKE OUT, AMENDMENT of documents and pleadings,

EXCEPTION, SPECIAL PLEA (types): when do you use these proceedings/pleadings?

Know the grounds etc.

IRREGULAR PROCEEDINGS (formal irregularities): know meaning, identify examples

e.g. premature set down of a case, using wrong type of summons…

Achieving settlement - Know when to use offer to settle (Rule 34), tender (must be pleaded)

and interim payment (Rule 34A)

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PRE- TRIAL JUDGMENTS: when do you use these judgments? consent to judgment (Rule

31(1)), default judgment (Rule 31(2) - (4)), application of notice of bar (Rule 26), summary

judgment (Rule 32) (grounds, procedure, powers of court) 6 LOWER COURTS PROCEDURE:

LOWER COURTS PROCEDURE (Magistrates’ courts and Regional

General

• rule 15: declaration

• rule 16: further particulars for purposes of

• rule trial interim payments

• 18A: exceptions and applications to strike

• rule 19: out replication and plea in

• rule 21: convention

• rule close of pleadings

APPLICATION PROCEEDINGS – know contents of

TWO TYPES:

• EX PARTE APPLICATION (no notice to other party)

• ORDINARY APPLICATION (notice to other party); know different

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ACTION PROCEEDINGS:

THREE TYPES OF SUMMONS (same as High Court):

• SIMPLE SUMMONS (liquidated claim or demand),

• COMBINED SUMMONS (unliquidated) and • PROVISIONAL SENTENCE (liquid document)

SUMMONS:

• REACTION: Notice of intention to defend (rule 13)

• Consent to judgment (rule 11).

• Offer to settle and tender (rule 18)

• NO REACTION: Default judgment (rule 12)

• SUMMONS - Types, Know the particulars or averments to be included in the summons; issue and amendment.

• Provisional sentence summons: Know the benefits for the plaintiff; procedure.

• Service; different methods of service

Personal service now required for divorce and nullity of marriages

• Litigation proceedings:

• Notice of intention to defend (Rule 13)

• Plea on the merits (raising defence)

• Special plea – examples

• Counterclaim (rule 20): A counterclaim may be delivered at the same time as a plea.

• Replication – when necessary (defendant raises new averments)

• Close of pleadings (rule 21A): know the circumstances when pleadings may be closed.

Pre-trial judgments:

• Summary judgment: claims; application; steps in terms of rule 14(3); procedure (application to be made within 15 days of service of Notice of intention to defend)

• Default judgment: when granted? Also see rule 12

• Notice of bar: prevents the delivery of any further pleadings (rule 12(1)(b) and rule 15(4) and (5))

• Consent to judgment: rule

11 Remedial steps taken:

• Exceptions – grounds (rule 19)

• Striking out - grounds

• Irregular proceedings (rule 60(A)

• Enforcing compliance

• Amendment of pleadings: rule 55A; aims of amendments; section 111

• Offer to settle - Know the contents of rule 18 (application, types of claims, contents of notice, whether disclosure can be made to court)

• Interim payments: Rule 18A (when ordered, type of proceedings,

relevant damages, contents of affidavit, requirements, court’s orders) •

Security – rule 62(1)

Preparation for trial

• Rule 22 – set down

• Discovery – rule 23: scope of Rule 23 (what rule covers), definition of

tape recording, no automatic discovery in magistrates’ courts.

• Rule 24 – medical examination, expert evidence

• Pre-trial conference – rule 25

• Subpoenas

• Non-appearance of party (rule 32(2))

• Further particulars for purposes of trial (rule 16(2)(a)