CIV3701 Exam Prep.
CIV3701 EXAM PREP
Assignment 1: Semester 1
Question 1
X has a claim against Z in the amount of R600 000 based on breach of contract
which occurred in Cape Town. X is an incola of Cape Town and Z is an incola of
Pretoria. With these facts in mind, answer the following questi...
X has a claim against Z in the amount of R600 000 based on breach of contract
which occurred in Cape Town. X is an incola of Cape Town and Z is an incola of
Pretoria. With these facts in mind, answer the following questions. Give full reasons
for your answers.
(a) Explain why it will be inappropriate for X to use an ordinary application to
institute proceedings against Z. (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.
On the given facts, a breach of contract case involves a material dispute of fact. Since
such a dispute can only be resolved by hearing oral evidence, combined summons will be
appropriate. See study guide unit 12.6.2 and 12.6.3. and Pete et al 145–149.
(b) Explain why X can institute proceedings against Z in the Cape Town High Court.
(2)
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).
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. See study guide unit 6.1 and 8.2.
, (c) Would your answer to (b) above differ if Z was a foreign peregrinus of the
Republic? (4)
Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a South
African court will exercise jurisdiction over such a person only after attachment of his or
her property has taken place, attachment ad confirmandam jurisdictionem (requiring the
cause of action to have occurred within the particular court’s area of jurisdiction apart from
attachment).
On the given facts, the defendant is a peregrinus of the whole Republic, the cause of
action (breach) occurred in Cape Town and there is no attachable property within the
Republic, especially within the Cape Town area of jurisdiction. In this instance it is
irrelevant whether the plaintiff is an incola or peregrinus of the court. The attachment
confirms or strengthens the partial or imperfect jurisdiction that the court has by reasons of
the fact that the cause of action arose within its area. Therefore, the Western Cape High
Court Local Division, Cape Town will not have jurisdiction on the basis of attachment ad
confirmandum, since there is no attachable property within the Republic, especially in the
Cape Town area of jurisdiction. See study guide unit 8.4 and Pete et al 109–112
(d) Would your answer to (b) above differ if the claim related to the registration of
fixed property, and the property was situated in Johannesburg? (2)
In regard to a claim relating to immovable property, the court where the immovable
property is situated has exclusive jurisdiction in actions to determine the title to immovable
property or the transfer of property. This is known as the exercise of jurisdiction ratione rei
sitae.
On the given facts, the property is situated in Johannesburg. Therefore, the Johannesburg
High Court will have jurisdiction for the claim on registration of the house ratione rei sitae.
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