Summary
Summary CIP3701 NOTES
- Course
- CIP3701 (CIP3701)
- Institution
- University Of South Africa (Unisa)
CIP3701 examination notes and summary.
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STUDY UNIT 1 - THE FORMS OF PROCEEDINGSAbel sells his farm to Jafta for R500 000. Jafta takes occupation of the farm and begins to farm.
Despite a reminder, he refuses to make any payments for the purchase price of the farm in terms
of the contract of sale. Jafta alleges that the farmhouse is derelict and the borehole is not as
strong as he thought, which means that he will not be able to irrigate as much land as he planned
to. Abel wants to cancel the sale and take possession of his farm again. The question now is which
form of proceedings Abel ought to use to achieve the desired relief.
(1) What is the nature of the dispute which arose between Jafta and Abel?
There was a dispute in law between the parties. (``Nature'' refers to the type of dispute, ie a
dispute in law or a factual dispute.)
(2) What is the reason for your answer?
Abel wants to cancel the contract owing to Jafta's behaviour. The question whether Abel has
grounds for cancellation is clearly a question of law.
(3) Would your answer to questions (1) and (2) above have differed if the dispute between the
two parties had been about whether there was a legal contract between them? Substantiate
your answer.
Yes, the answers would have differed. In this case, the dispute is factual in nature: the one
party would make a number of factual allegations which would indicate that there had
indeed been an agreement (eg that it had been agreed that Rx would be the price for the
specific farm and that the parties had wanted to purchase and sell the farm) while the other
party would deny some or all of these allegations. The facts of the case are therefore in
dispute. Since the dispute is about the essentialia (see your course on the law of contract)
of a contract of purchase, the dispute is not simply superficial, but concerns the actual facts.
The true state of affairs can be established only on hearing the oral evidence and testing it.
(In practice, depending on the facts of a case, there may also be a legal dispute if there is
evidence of cancellation. However, when deciding on the appropriate proceedings, the
question remains whether oral evidence is necessary or not.)
(4) With reference to the set of facts, which type of proceedings would be appropriate in the
light of the above questions? Substantiate your answer.
Application proceedings. We are dealing with a legal dispute and not with a genuine dispute
of facts. Consequently, the dispute may be decided simply on the basis of the documents
before the court.
See pg 4
,Question 4
STUDY UNIT 2 - THE CONDUCT OF APPLICATION PROCEEDINGS
Sandra has passed her attorney's admission examination and her contract as a candidate attorney
expires soon. She would like to be admitted as an attorney and must approach the court with an
application to be admitted. Sandra's principal advises her to draw up the application herself, and
she must decide which type of application is the correct one.
On his divorce from his wife, Theresa, Paul was awarded custody of their minor child. As agreed,
Theresa takes the child on holiday but at the end of the holiday she refuses to return the child to
Paul. Paul is very worried about the child's welfare and school attendance, and approaches the
court for an order to have the child removed from Theresa's possession and care and be returned
to him. You are the candidate attorney with whom Paul is consulting. Paul wants to know what
legal procedure can be used in these circumstances and also how soon he can expect the relief he
seeks.
(1) Indicate what factors must be considered in determining the correct type of application to be
used.
they are determined by the ff questions:
1. are proceedings being instituted or is the application related to existing proceedings (ie
proceedings which have already been instituted)?
2. whose rights or interests are affected by this application?
(2) In the light of these factors, what type of application must Sandra lodge?
An Ex parte application: the above questions should have indicated that (independent)
proceedings will be instituted and that the interests and rights of no-one other than Sandra
will be affected by the application. Therefore, she is not obliged to give notice of the
application to anyone else.
(3) What documents comprise this application?
Rule 6(1) determines that an application consists of a notice of motion, supported by an
affidavit containing the facts on which the application rests.
,(4) Name the official to whom the documents identified in (3) above must be addressed?(1)
The registrar of the court.
(5) Set out the information that must be contained in the documents identified in (3) above.(3)
(1) Advise Paul on the type of application which must be used in his case.
The ``ordinary'' application will be used since Theresa must be given notice of the
application in order to have the opportunity to put her side of the story.
(2) Advise Paul on the steps which must be followed to ensure that the case is served more
quickly than usual before the court.
This application can be brought before the court as a matter of urgency in terms of Rule
6(12). The application will be the same as any other application, except that it will be
accompanied by a certificate of urgency, and the notice of motion will show that the court is
asked for leave to deviate from the prescribed forms of service and that the application be
dealt with as an urgent application.
C and D are neighbours. D runs a shabeen from this home. Because of the noise and loud
music, C and his family have little privacy and are unable to sleep at night. C confronts D
about the problem. However, D refuses to reduce the noise levels. In order to pursue his
rights, C brings an application against D. With these facts in mind, answer the following
questions.
(a) Discuss whether C would bring an ordinary or an interlocutory application. (4)
C would bring an ordinary application since D must be given notice of the application in order to
have a chance to respond or to give his or her version of the story. An interlocutory
application is used in respect of matters related to proceedings which have already been instituted.
This is the case in respect of summons proceedings and the interlocutory application is
therefore not relevant in this instance
(b) Name the document that must be used to commence the proceedings. (1)
A notice of motion supported by an affidavit containing the facts on which the application rests
must be used to commence the proceedings
Explain the circumstances in which an ordinary application may be used.
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. Consequently, the
dispute may be decided simply on the basis of the documents before the court.
, Urgent application. This application can be brought before the court as a matter of urgency in terms
of Rule 6(12). The application will be the same as any other application, except that it will be
accompanied by a certificate of urgency, and the notice of motion will show that the court is asked
for leave to deviate from the prescribed forms of service and that the application be dealt with as an
urgent application.
Notice of Motion….
Supporting Affidavit containing the facts on which the application rests.
(1) The supporting affidavit of the applicant, which is attached to the notice of motion.
(2) The answering affidavit by the respondent in terms of Rule 6(5)(d)(ii). 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 terms of Rule 6(5)(e), 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.
Where a genuine dispute of fact arises which cannot be settled without the hearing of viva voce
evidence, the court hearing the motion proceedings may
(1) dismiss the application (although this happens very seldom, if ever, in practice) (see Rule 6(5)(g))
(2) order oral evidence to be heard on specified issues (see Rule 6(5)(g))
(3) order the parties to trial with appropriate directions as to pleadings, the definition of issues, et
cetera (see Rule 6(5)(g))
Urgent Application should be used. This application can be brought before the court as a matter of
urgency in terms of Rule 6(12). The application will be the same as any other application, except that
it will be accompanied by a certificate of urgency, and the notice of motion will show that the court
is asked for leave to deviate from the prescribed forms of service and that the application be
dealt with as an urgent application.
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