CIV ASSIGNMENT 01.
CONTACT 0
QUESTION 1
a)
Ordinary application proceedings are used when notice of the proceedings must be
given to other parties. Such notice must conform to Form 2(a) of the Uniform Rules of
Court and it is brought on Notice of Motion.1
When legislation or the rules of cou...
a)
Ordinary application proceedings are used when notice of the proceedings must be
given to other parties. Such notice must conform to Form 2(a) of the Uniform Rules of
Court and it is brought on Notice of Motion.1
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 that a breach of contract 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.2
b)
In regard to a claim relating to a contract, the court in whose area of jurisdiction the
contract was concluded or where the contract was to be performed, either in whole or
in part will have jurisdiction. This is known as the exercise of jurisdiction ratione
contractus. Under common law, this falls within the ambit of ratione rei gestae.3
On the given facts, the breach of contract occurred in Cape Town, therefore, the
Western Cape High Court, Cape Town will have jurisdiction to institutes the proceedings
ratione contractus. 4 With contractual claims no further requirements needs to be met
before a court in whose area the cause of action arose may exercise jurisdiction.
c)
1 Pete S, Hulme D, Du Plessis M, Palmer R, Sibanda O and Palmer T Civil procedure A Practical
Guide 3rd ed (Oxford University Press 2016) 164-171.
2 Civil Procedure Only study guide for CIV3701 (University of South Africa 2019) 102.
3 Study guide 45.
4 Pete et al Civil procedure 103.
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