Exam (elaborations)
CIV3701 EXAM PACK
- Course
- CIV 3701
- Institution
- University Of South Africa (Unisa)
CIV3701 EXAM PACK CIV3701 EXAM PACK
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CIV3701 EXAM PACK 2021., 2020 – SEMESTER 1 – ASSIGNMENTS WITH MEM0S
QUESTION 1
Peter is domiciled in Pretoria. While on a holiday in Durban, Peter is involved in a motor
vehicle accident with Portia who failed to stop at a stop street. Portia is domiciled in
Johannesburg and owns a flat in Cape Town. Peter suffered damages to this vehicle due
to the collision in the amount of R500 000.
Bear these facts in mind and answer the following questions. Give full reasons for each
answer.
(a) May Peter institute proceedings for damages against Portia in the Johannesburg
High Court? (2)
When a defendant is domiciled or resident within the Republic, he or she is an
incola of the Republic, and the court where the defendant is domiciled, or resident
will have jurisdiction to hear the matter based on the principle actor sequitur forum
rei. In this instance, the defendant is domiciled in Johannesburg and therefore, the
Johannesburg court will have jurisdiction ratione domicilii. (See study guide unit 6.1
and 8.2.)
(b) May Peter institute proceedings for damages against Portia in the Durban High
Court? (1)
Under common law, a court will be vested with jurisdiction in respect of monetary
claims ratione rei gestae if the delict on which the claim is based was committed
within a court’s area of jurisdiction. On the given facts, the delict (a motor vehicle
accident) occurred in Durban, and Peter may thus institute proceedings. The
Durban court will have jurisdiction ratione delicti commissi. (See study guide unit
6.1.) (1)
(c) May Peter institute proceedings for damages against Portia in the Cape Town High
Court? (2)
Where a defendant is neither domiciled, nor resident in the jurisdictional area of the court
concerned, such defendant is a peregrinus of that particular court, but because he or she is
still domiciled or resident somewhere in the Republic, such defendant is termed a local
peregrinus, and the usual common-law jurisdiction principles still apply. On the given facts,
Peter may not institute action in the Cape Town High Court, as there is no jurisdictional nexus
to the court (the defendant is neither domiciled, nor resident in Cape Town and the cause of
action did not arise within the court’s area of jurisdiction). The mere fact that Portia’s property
is situated in the court’s area of jurisdiction provides no nexus, as the claim is one sou nding
in money, and not a property claim. (See study guide unit 8.3.)
(d) Will the Pretoria High Court be competent to exercise jurisdiction if, on the same
facts, Portia is now an American citizen who is domiciled in New York and the flat is
situated in Pretoria? (4)
Where a defendant is neither domiciled nor resident within the borders of the
Republic, such defendant is a foreign peregrinus. In instances where the
defendant is a peregrinus of the whole Republic, a court will assume jurisdiction
only if attachment of the defendant’s property occurs. One such form of
attachment is when the plaintiff is an incola of the court concerned and
attachment of the defendant’s property has taken place (this is known as
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, attachment ad fundandam iurisdictionem). For an order of attachment to found
ANNEjuXrU
isR
diEc1io
t n, it is not nece ssary for the cause of action to have arisen within the
court’s area of jurisdiction: attachment ad fundandam iurisdictionen alone
constitutes the ground on which the assumption of jurisdiction is justified.
On the given facts, the defendant is a peregrinus of the Republic of South Africa
and has attachable immovable property (a flat) situated within the Pretoria High
Court’s jurisdictional area. Therefore, the Pretoria High Court will have jurisdiction
to hear the matter ad fundandam iurisdictionem. (See study guide unit 8.4.2.) (4)
COMMENT:
From the above, you will note that a particular approach was adopted in answering the
questions: we started off by stating the applicable legal principle(s), then we applied
the legal principle(s) to the given facts, and finally we reached a conclusion. This
method ensures a logical and well-constructed answer, and we strongly suggest that
you adopt this approach when answering all problem-type questions.
QUESTION 2
Donald, who lives in Pietermaritzburg, buys electronic equipment from Sipho, who lives in
Pretoria. The contract is concluded in Johannesburg and the equipment is stored in a
warehouse next to the harbour in Durban, where delivery mu st take place. Donald pays
Sipho R180 000 for the equipment, but Sipho, despite demand, fails to deliver the
equipment to Donald. Bearing these facts in mind, answer the following questions. Give full
reasons for each answer.
(a) Will the magistrates’ court situated in Johannesburg have jurisdiction to hear the
action instituted by Donald against Sipho? (3)
Section 28(1)(d) of the Magistrates’ Court Act 32 of 1944 provides that a
magistrates’ court will have jurisdiction over a person if the cause of action arose
“wholly” within the area of a district or regional division. Case law has interpreted
this to mean that in respect of contractual claims, not only must the contract have
been concluded within the district or regional division concerned, but the breach
must have occurred there as well for the court to have jurisdiction.
On the given facts, the contract was concluded in Johannesburg, but the breach of
contract occurred in Durban. Therefore, the Johannesburg (district) magistrates’
court will not have jurisdiction in terms of section 28(1)(d) of the Act, as the cause of
action did not “wholly” arise within this court’s area of jurisdiction. (See study guide
unit 11.4.2.) (3)
(b) Will the magistrates’ court situated in Pretoria have jurisdiction to hear the action
instituted by Donald against Sipho? (1)
Section 28(1)(a) of the Magistrates’ Court Act 32 of 1944 provides that a
magistrates’ court will have jurisdiction to hear the matter in respect of any person
who “resides, carries on business or is employed” within its district or regional
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, division.
On the given facts, the defendant “resides” in Pretoria, and therefore, the Pretoria
(district) magistrates’ court will have jurisdiction in terms of section 28(1)(a) of the
Act to hear the matter. (See study guide unit 11. 4.2.)
(c) Will the magistrates’ court situated in Durban have jurisdiction to hear the action
instituted by Donald in terms of section 28(1)(g) of the Magistrates’ Courts Act 32 of
1944? (2)
Section 28(1)(g) of the Magistrates’ Court Act 32 of 1944 provides that the
magistrates’ court will have jurisdiction to hear a matter in respect of any person
who owns immovable property within the district or regional division in actions in
respect of such property or in respect of the mortgage bonds thereon (our
emphasis).
On the given facts, the matter is clearly of a contractual nature and does not relate
to immovable property within the district or regional division as required by section
28(1)(g) of the Act. Therefore, the Durban magistrates’ court will not have
jurisdiction in terms of this section. (See study guide unit 11.4.2.)
(d) Will any magistrates’ court have jurisdiction to hear the action instituted by Donald
to force Sipho to deliver the equipment to him without claiming damages in the
alternative? (2)
A magistrates’ court is prohibited by section 46 of the Magistrates’ Court Act 32 of
1944 to adjudicate matters in which specific performance is sought without an
alternative claim for payment of damages. However, this prohibition is subject to
the exceptions contained in section 46(2)(c)(i)-(iii), and does therefore not apply
when the delivery or transfer of property, movable or immovable, and not
exceeding in value of the amount determined by the Minister from time to time by
notice in the Gazette, is claimed. “Specific performance” has been interpreted by
the courts to refer to the performance of a contractual act only.
Equipment is clearly movable property, and as its delivery falls within the
exception provided for in section 46(2)(c)(ii), the court may, on the given facts,
make an order directing a defendant to deliver the equipment. (See study guide
unit 11.2.3.2.) (2)
QUESTION 3
Z wishes to issue summons against his neighbour, B, for defamation. Answer the following
questions. Give reasons for your answers where required.
(a) Explain why Z may not use an ordinary application to institute action against B. (2)
When legislation or the rules of court neither prescribe nor prohibit the use of application
proceedings, the final test to apply is whether there is a material dispute of fact. If there is a material
dispute of fact (or can be reasonably anticipated), the use of application proceedings is
inappropriate and will normally be penalised by way of an adverse costs order. In the present
matter, use of the application procedure is clearly inappropriate, as it stands to reason th at a
defamation case will involve a material dispute of fact. Since such a dispute can only be resolved by
hearing oral evidence, summons proceedings will be appropriate. (See study guide unit 12.6.2 and
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