Exam (elaborations)
Exam (elaborations) CIV 3701 Long Questions
- Course
- CIV 3701
- Institution
- University Of South Africa (Unisa)
Exam (elaborations) CIV 3701 Long Questions
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By: kingboazg • 2 year ago
By: busisam30 • 3 year ago
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GROUP WORK QUESTIONSQUESTION 1
(a) You passed your attorneys’ admission examination and your contract as candidate attorney
expires shortly. You want to be admitted as an attorney. Bear these facts in mind, and answer
the following questions.
(i) Explain which type of application you may use. (2)
An Ex parte application: this type of application is used when the interests and rights of no-one
other than the applicant will be affected by the application (therefore applicant is not obliged to
give notice of the application to anyone else). On the given facts the applicant is the only person
who is interested or affected by the relief sought. See SGU 2.2.1.
(ii) Name the documents that comprise the type of application identified in (i) above. (2)
Notice of motion supported by a supporting affidavit. See Rule 6 (1) (a).
(iii) Explain why the type of application referred to in (i) above is not an interlocutory
application. (2)
An interlocutory application is used when a party approaches the court for relief in respect of
matters related to proceedings that have already been instituted. On the given facts the
application relates to proceedings that have not yet been instituted. Therefore, this type of
application is not an interlocutory application. See SGU 2.2.3.
(iv) If the application now relates to leave to serve a document overseas by way of edictal
citation, name four aspects that the content of such application must cover as
prescribed by Uniform Rule 5(2). (4)
, It must set out concisely the nature and extent of the claim, the grounds upon which the claim
is based and upon which the court has jurisdiction to entertain the claim, and also the manner of
service which the court is asked to authorise. If such manner be other than personal service,
the applicant shall further set forth the last known whereabouts of the person to be served and
the enquiries made to ascertain his present whereabouts. See Rule 5 (2).
(b) X issues a simple summons against Y for ejectment. Answer the following questions.
(i) Explain why X will not be able to use the provisional sentence summons to institute the
action. (2)
Provisional sentence summons can be used only if the cause of action is based on a liquid
document. On the given facts summons was issued for ejectment. A claim for ejectment is a
claim for liquidated demand. Therefore provisional sentence summons cannot be used if the
plaintiff’s claim is for a debt or liquidated demand. See SGU 6.2.2 and 7.2.
(ii) Name the procedure that X may use if Y enters an appearance to defend timeously,
but X is convinced that Y does not have good grounds to do so. (1)
Summary judgment. See SGU 12.4.
(iii) Y enters an appearance to defend, and X fails to deliver his declaration timeously.
Discuss the procedure that Y may follow in these circumstances. (3)
Where a party fails to deliver a pleading other than a replication or one of the
ensuing pleadings on time, a notice of bar must first be served on that party. A
declaration is such a pleading, and therefore Y must first deliver a notice of bar to
X, requesting delivery within a specified time limit. Should X thereafter fail to
deliver the declaration, he or she will be in default and ipso facto be barred from
doing so. Y may then request for absolution of the instance owing to the fact that
the plaintiff has not proved his or her claim, or judgment. See SGU 12.3.2.3.
, (iv) If X delivers his declaration, name the pleadings in convention that thereafter could, in
the usual way, be exchanged between the parties in the correct order. (2)
Plea on the merits and replication. See SGU 9.3 and 9.4.
(v) Name two procedures that may be used after close of pleadings to prevent the parties
from being caught unprepared at the trial. (2)
Request for further particulars for purposes of trial and discovery of documents and tape
recordings. See SGU 13.3.1 and 13.3.3, as well as the feedback on the first assignment for
other possible procedures.
QUESTION 2
(a) In each of the instances set out below, indicate briefly in what way the pleading or the
procedure followed is defective, and 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)
There is a factual error in the plaintiff’s particulars of claim. Since a party may amend only his
or her own pleadings, it is only the plaintiff that may apply to amend his or her declaration,
not the defendant in this case. See SGU10.4. [Note: Well done to the Cape Town discussion
group for immediately spotting this point! Prof E Hurter].
(ii) The plaintiff institutes an action for divorce against the defendant by way of a simple
summons. (2)
An incorrect summons was used. A combined summons is used when the plaintiff’s
claim is unliquidated. A claim for divorce is unliquidated, and the plaintiff did not
comply with the formal requirements of Rule 17(2). Non-compliance with the provisions of
a specific Rule will be deemed to be an irregular step. Defendant may thus apply to set aside the
summons as an irregular proceeding. See Rule 19(2) and SGU10.7.
, (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)
The pleading as drafted discloses no cause of action. A party may except to the
pleading if it discloses no cause of action or defence. On the given facts the
plaintiff does not allege that Z failed to pay the amount (thus making the
defendant liable); therefore the defendant may except to the plaintiff’s particulars of
claim. See SGU 10.5.
(iv) The plaintiff issues summons against the defendant in the Cape High Court in the
amount of R700 000 for damages resulting from a motorcar collision. The court grants
judgment in the amount of R300 000. The defendant subsequently moves to Pretoria
and issued by the plaintiff in the Pretoria High Court for the balance of the claim,
namely R400 000. (2)
Special plea of res iudicata. There has been final judgment on the same matter and the matter cannot be
raised again in the same or a different court. See SGU
10.6.2.2.
(v) Because it appears that B wishes to flee the country so as not to abide the judgment of
the court, X applies for the arrest of B’s person ad fundandam iurisdictionem. (2)
In the first instance the procedure is incorrect: arrest ad fundandam
iurisdictionem was in the past used to vest a court with jurisdiction, and arrest
tanquam suspectus de fuga should have been used. Secondly, this procedure has
been ruled unconstitutional by the Constitutional Court in Malachi v Cape Dance
Academy International (Pty) Ltd 2010 6 SA 1 (CC) in relation to section 30 (3) of
the Magistrates’ Court Act, 1944. Although this decision does not affect Uniform
Rule 9 directly, one can expect such a ruling in respect of the High Court too if the matter is
raised (see Bid case where “arrest” was ruled unconstitutional since it impacts a person’s
freedom). See Tutorial Letter 103/3/2012.
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