02/2020
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 most accurate statement:
(1) P may only 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) If P institutes civil proceedings, he must establish the guilt of P, the defendant in
order to succeed with his claim in a court of law.
(4) In civil proceedings between P and S, the court may not interfere in the manner in
which they conduct proceedings during the pre-trial stage, except upon the instruction
of one of the parties.
The state has no direct interest in civil proceedings. 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 upon the 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 guide unit
1.2.1 and Pete et al 1-2.
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 (the motor
collision), but may also lay criminal charges in respect of S’s contravention of the
National Road Traffic Act. See study guide unit 1.2.2 and Pete et al 1-2.
Statement (2) is incorrect. The parties in criminal proceedings are called 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 called 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 called the applicant (the
party bringing the application) and the respondent (the party opposing the application).
Therefore, P would be called the complainant and S would be called the accused. See
study guide unit 1.2.3 and Pete et al 1-2.
Statement (3) is incorrect. 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. However, guilt is what
has to be established in criminal proceedings. In the given scenario, P has to prove
his or her claim on a balance of probabilities. See study guide unit 1.2.4 and Pete et
al 1-2.
QUESTION 2
Indicate the most accurate statement:
(1) Small claims courts have an inferior status because they are not courts of record.
(2) Although the rules of evidence do not apply in the small claims courts, a plaintiff
may call one or more witnesses to prove his claim.
(3) A juristic person may only commence proceedings in a small claims court when
represented by a duly authorised director or other natural person.
(4) A small claims court is competent to grant an interdict.
The rules of evidence are not strictly applied and the Commissioner may give the
plaintiff an opportunity to call witnesses in support of his or her claim. See study guide
unit 4.5 and Pete et al 487.
Statement (1) is incorrect. Neither the different and simplified procedures that are
applied in small claims courts, nor the low value of the claims submitted, render the
court inferior to other courts. These courts are part of the court system and are
recognised as such in terms of section 166(e) of the Constitution of 1996. See study
guide unit 4.5 and Pete et al 487.
Statement (3) is incorrect. Section 7 of the Small Claims Court Act, 1984 provides that
only natural person may institute an action in the small claims court. A juristic person
may only become a party to a small claims court action as a defendant. Therefore, a
,juristic person may not commence proceedings in a small claims court even when
represented by a duly authorised person. See study guide unit 4.5 and Pete et al 484.
Statement (4) is incorrect. Section 16 of the Small Claims Courts Act, 1984 provides
that the small claims court does not have jurisdiction in matters of dissolution of
marriages or customary unions. See study guide unit 4.5 and Pete et al 485.
QUESTION 3
Indicate the most accurate statement:
(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.
(4) The principle of bilaterality 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 3.1.
Statement (1) is incorrect. In the Continental system of civil procedure, the judicial
officer participates directly in the whole process of litigation, from the commencement
of the proceedings until the conclusion of the hearing. Along with the parties, the
judicial officer is actively involved in the conduct of proceedings and in determining the
facts of the case. See study guide unit 3.1.
Statement (2) is incorrect. In the Anglo-American system of civil procedure, the judge
plays a passive role during the pre-trial and trial stages, and is primarily interested in
ensuring the fairness of due process and of fundamental justice. However, the judicial
officer may interfere in the proceedings, albeit only at the request of one of the parties.
See study guide unit 3.1.
, Statement (3) is incorrect. The trial in the Anglo-American system of civil procedure is
marked by its orality, but orality does not dominate over all other characteristics. The
proceedings are also marked by distinct pre-trial and trial stages, and the passive role
of judicial officers during both these stages. See study guide unit 3.1.
QUESTION 4
Indicate the most accurate statement:
Bar is relevant in the following circumstances:
(1) The defendant does not timeously give notice of his 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 the purposes of trial.
“Bar” is a procedure, which prevents the delivery of any further pleadings in an action
when a party fails to timeously deliver a particular pleading. In certain instances, a
notice is given, warning of impending barring, while in other instances barring occurs
automatically. When a party fails to deliver a declaration timeously, a notice of bar
must be served on the plaintiff, calling for the delivery thereof. If the plaintiff fails to
deliver the declaration within the period indicated in the notice of bar, the plaintiff will
be in default in respect of the declaration, and will be automatically barred from
delivering it after this point. See study guide unit 23.3.1 and Pete et al 246.
Statement (1) is incorrect. Where the defendant does not give notice of intention to
defend, the other party may apply for default judgment. Bar applies to pleadings only,
and a notice of intention to defend is not a pleading, but a process. See study guide
unit 23.3.2 and Pete et al 246.
Statement (2) is incorrect. Uniform Rule 39(1) provides that when a matter on the trial
date is called and only the plaintiff appears, the plaintiff may prove his or her claim and
judgment by default shall be granted in so far as she or he has discharged such
burden. If a plaintiff fails to appear, the court may either grant absolution of the instance
or judgment, depending on the circumstances of the case (see Uniform Rule 39(2)).
Likewise, magistrates’ courts rule 32 provides that a court may dismiss the action if a
