Exam (elaborations)

CIV3701 EXAM PREP QUESTIONS AND 100% CORRECT ANSWERS A+ RATED

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CIV3701

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CIV3701

X has a claim against Z in the amount of R600 000 based on 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 it will be inapprop...

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civ3701 exam questions and answers

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CIV3701 EXAM PREP QUESTIONS AND 100%
CORRECT ANSWERS A+ RATED

Assignment 1: Semester 1

Question 1

X has a claim against Z in the amount of R600 000 based on 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 it will be inappropriate for X to use an ordinary application to institute

proceedings against Z. (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.

On the given facts, a breach of contract case involves a material dispute of fact. Since such a

dispute can only be resolved by hearing oral evidence, combined summons will be appropriate.

See study guide unit 12.6.2 and 12.6.3. and Pete et al 145–149.

,(b) 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

study guide unit 6.1 and 8.2.

, (c) Would your answer to (b) above differ if Z was a foreign peregrinus of the

Republic? (4)

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 attachment).

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

(breach) occurred in Cape Town and there is no attachable property within the

Republic, especially within the Cape Town 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, the Western Cape High Court Local

Division, Cape Town will not have jurisdiction on the basis of attachment ad confirmandum, since

there is no attachable property within the Republic, especially in the Cape Town area of

jurisdiction. See study guide unit 8.4 and Pete et al 109–112

(d) Would your answer to (b) above 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, the Johannesburg High

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