Exam (elaborations)
CIV Portfolio Guidelines and Answers
- Course
- CIV 3701
- Institution
- University Of South Africa (Unisa)
CIV Supersemester Portfolio Guidelines and Answers. Contains footnotes.
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By: neldianso • 2 year ago
By: cetapera • 3 year ago
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INTRODUCTORY STUDIESQuestion 1
(a) When determining why a magistrate’s court has jurisdiction to hear a matter,
the question is answered by reference to sections 28, 29 and 46 of the
Magistrates’ Courts Act, 32 of 1944, and not on the grounds of common law
jurisdiction. Explain why this is the case. (6)
Common law jurisdiction grounds apply only to superior courts (in particular, the High
Court), and never to the magistrates’ courts. These common law jurisdiction grounds
may thus never be used to describe jurisdiction grounds in a magistrates’ court, and
you will be penalised in the examination for doing so. Remember, magistrates’ courts
are creatures of statute, so therefore the Magistrates’ Courts Act 32 of 1944 contains
the various grounds for exercising jurisdiction in a particular instance.1
(b) Briefly discuss an application to set aside irregular proceedings. (6)
The required procedure to set aside an irregular step in the High Court is set out in
rule 30(2)–(4) of the High Court Rules and rule 60A(2)–(4) of the Magistrates’ Courts
Rules, respectively:
1. The applicant may not himself take a further step in the matter after becoming
aware of the irregular step.
2. Instead, within 10 court days of the applicant’s becoming aware of the step, he
must send a written notice to the opposing party pointing out the irregularity,
and giving that party 10 court days to remove the irregularity.
3. If the opposing party does not remove the irregularity within the ten-day period,
the applicant must serve the application papers on the opposing side within 15
court days after the expiry of the ten-day period.
4. Once the court has heard the application, it will make an order as to what is to
be done about the irregular proceedings. It has a wide discretion in terms of
rule 30(3) to set the irregular proceedings aside in whole or in part, grant leave
to amend, or make any other suitable order. The court will not set aside an
irregularity that does not substantially prejudice the applicant.
1 Stephan Pete and others, Civil Procedure: A Practical Guide (3 edn, Oxford University Press
2016) 97.
, 5. In terms of rule 30(4), until a party has complied with the order of the court in
respect of the irregular proceeding, that party may not take any further steps in
the matter.2
(c) Briefly discuss the concept of ‘offer to settle” in terms of the Uniform Rule
34 and rule 18 of the magistrate’s court rules. (4)
Sometimes, all attempts to settle a matter without litigation fail. An aggrieved party
may, for example, refuse to accept an offer of compromise and proceed to issue
summons or, having accepted an offer of compromise, may decide to sue your client
for the outstanding balance of his original claim, despite the settlement agreement.
The procedures for making and accepting offers during litigation are designed to
encourage and support defendants who are prepared to make an offer of compromise
to settle matters without further litigation. A well-calculated offer made in terms of these
rules can take the wind out of the sails of the plaintiff’s case, and effectively place the
plaintiff on the defensive from the time
the offer is made.3
(d) Explain the meaning of the term “Liquid document” for the purposes of
provisional sentence summons (4)
A liquid document has been defined in the case of Rich and Others v Lagerwey4 as a
document which evidences by its own terms, without the need for extrinsic evidence,
an unconditional acknowledgement of indebtedness in an ascertained sum of money,
the payment of which is due. A liquid document may be defined as a document in
which the debtor acknowledges by means of his/her signature (or a duly authorised
representative), his/her liability for the payment of a certain and ascertainable amount
of money, or is legally deemed to have acknowledged such liability without signature
in question having in reality been appended thereto. A provisional sentence summons
is used in cases where the plaintiff’s claim is based or founded on a liquid document
such as an acknowledgment of a debt.5
HIGH COURT JURISDICTION AND PROCEDURE
2 Pete and others, Civil Procedure 261.
3 Pete and others, Civil Procedure 451.
4 Rich and Others v Lagerwey 1974 (4) SA 748 (A).
5 Pete and others, Civil Procedure 459.
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