Exam (elaborations)

CIV3701 Multiple Choice Questions and Answers

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CIV3701

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University Of South Africa

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civ3701 multiple choice questions and answers

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University of South Africa
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CIV3701

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CIV3701 Multiple
Choice Questions and
Answers

, lOMoAR cPSD|8439740

1

Civil Procedure
MODULE 2 : CIP3701
Multi Choice Type Question & Answers
S1 2014 - CIP3701/101/3/2014
ASSIGNMENT 02 : Unique number: 883833

QUESTION 1
M issues summons against N for damages as a result of breach of contract. The nature of the claim that M
has against N is — Indicate the most accurate statement.
(1) a liquidated claim
(2) an illiquid claim
(3) an unliquidated claim
(4) a liquid claim

QUESTION 2
The facts in Question 1 remain the same. In order to commence proceedings, M must issue one of the
following summonses:
Indicate the most accurate statement.
(1) an illiquid summons
(2) a combined summons
(3) a simple summons
(4) a provisional sentence summons

QUESTION 3
Determine which of the following groups of procedures are not related to each other:
(1) default judgment and summary dismissal
(2) an exception and an application to strike out
(3) an ex parte application and a rule nisi
(4) a notice of motion and a declaration

QUESTION 4
Indicate the most accurate statement.
(1) One of the rules for the drafting of processes is that only facts, and not the law, must be pleaded.
(2) To be defined as a liquid document, payment of the debt must be unconditional and must appear ex
facie the document.
(3) In the High Court, the amount tendered in settlement need only be available for payment and need not
be paid into court.
(4) The Uniform Rules of Court provide that the plaintiff has the sole responsibility to apply for the set-
down of a matter.

QUESTION 5
Indicate the most accurate statement.
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

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2
reconvention.
(3) An exception may be lodged only against a declaration or 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.

QUESTION 6
Indicate the most accurate statement.
Summary judgment is relevant in the following circumstances:
(1) where the defendant gives notice of his intention to defend on time
(2) where the defendant fails to timeously deliver a notice of intention to defend
(3) where the defendant has no bona fide defence to the plaintiff’s claim
(4) where the action was instituted by means of a provisional sentence summons

QUESTION 7
Indicate the most accurate statement.
Some of the items of property exempt from execution in terms of section 67 of the Magistrates’ Courts
Act 32 of 1944 are “professional books, documents or instruments necessarily used by the debtor” in his
or her profession, in so far as the value of these items does not exceed R2 000.
The most accurate statement is:
(1) Section 67 specifically excludes these items from execution.
(2) A cost order de bonis propriis is granted if a party to the action has been guilty of bad behaviour in
conducting the action.
(3) The National Credit Act 34 of 2005 requires a written notice by way of a summons to be properly
served on the defendant.
(4) The plaintiff’s summons must contain a reference to section 26(1) of the Constitution in instances
where he or she seeks an order for movable property to be declared executable in the magistrates’ court.

QUESTION 8
Indicate the most accurate statement.
(1) The National Credit Act 34 of 2005 requires that the debt collection process must start with a letter of
demand.
(2) The request for further particulars in the magistrates’ court is meant only to allow a party to prepare a
plea on the merits.
(3) An exception in the magistrates’ court is raised on a pleading which contains scandalous or vexatious
allegations.
(4) A replication or subsequent pleading, which would amount to a mere denial of allegations in the
previous pleading, is unnecessary and pleadings will be deemed closed in terms of rule 21A(b) of the
Magistrates’ Court Rules.

QUESTION 9
Indicate the most accurate statement.
(1) In terms of Rule 42 of the Uniform Rules of Court, any variation of judgment sought under this Rule
must be done by way of the action procedure.
(2) Although the noting of an appeal against a decision of the High Court automatically suspends the
execution of the judgment pending the outcome of the appeal, the party in whose favour judgment was
given may approach the court that granted the original order for an order allowing execution.
(3) In terms of section 13(2)(a) of the Supreme Court Act 59 of 1959 a court hearing an appeal from a
lower court may consist of only one judge.

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3
(4) In terms of section 20(2)(a) of the Supreme Court Act 59 of 1959 a person has a right of appeal to the
Supreme Court of Appeal against the judgment of a single judge.

QUESTION 10
Indicate the most accurate statement.
(1) Review of the proceedings and decisions of quasi-judicial bodies takes place in terms of both common
law and legislation.
(2) Review of the proceedings of a lower court takes place by way of an ordinary opposed application and
corresponds in all respects to ordinary opposed application proceedings.
(3) If review proceedings are successful, the High Court which reviewed the proceedings will always
refer the matter back to the particular body for a decision according to the correct procedure.
(4) Both appeal and review must take place within a reasonable time.

COMMENTARY ON ASSIGNMENT 02 : S1 : 2014

CIP3701/202/1/2014

Question 1

The most accurate statement is: (3)
A claim for damages due to breach of contract is classified as an unliquidated claim. This term refers to
any claim where the amount must be determined, or where the status of the parties is influenced. In
instances where the claim is not for a debt or a liquidated demand, the plaintiff is required to attach to the
summons the particulars of the material facts relied upon in support of the claim, known as the
“particulars of claim” (refer to Uniform Rule 17(2)). Additional reference can be found in study unit
6.3.2 – 6.3.3.

Option (1) is incorrect, as a claim for damages does not qualify as a liquidated claim. The term
“liquidated claim” has been interpreted to mean a claim for a fixed or definite amount, such as those for
transfer or ejectment, delivery of goods, or cancellation of a contract. Courts have indicated that a debt is
liquidated if it is acknowledged or if its monetary value can be quickly ascertained. The distinction
between “liquidated demand” and “unliquidated claim” can be understood better through this contrast: an
unliquidated claim cannot be quickly calculated, and determining the quantum of damages often
requires extensive evidence from expert witnesses (see study unit 6.2.2).

Option (2) is incorrect because “illiquid claim” is not a recognized legal term. The term illiquid
summons procedure exists (see study unit 3.2 and 6.1), which includes two types of summonses: the
simple summons and the combined summons.

Option (4) is incorrect since a liquid claim must be based on a liquid document. A liquid document is
defined as one where the debtor acknowledges their liability for a certain and ascertainable amount of
money, either through their signature or as legally deemed. Common examples include cheques, where
the payee acknowledges liability for a fixed sum (see study unit 7.2.2.1).

Question 2

The most accurate statement is: (2)
A combined summons is employed when the nature of the plaintiff’s claim is unliquidated, meaning it is
not a claim for a debt or a liquidated demand (see Uniform Rule 17(2)(a) – Rule 5(2)(a) in the
Magistrates’ Court).

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CIV3701 Multiple Choice Questions and Answers

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