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CIV3701 EXAM PACK 2023
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- University Of South Africa
CIV3701 EXAM PACK 2023
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CIV3701EXAM
PACK 2023
, CLS cc ©
Civil Procedure 2 Questions - 2015
1
GENERAL DIRECT QUESTIONS:
1. Answer the following questions.
(a) Discuss representation by power of attorney, including when a
power of attorney is necessary and why a power of attorney is
drawn up. (5)
Every natural person who is a party to civil proceedings is
entitled to represent himself personally. Such a person would
usually instruct an attorney to act on his behalf.
These instructions are confirmed and specified in a document
known as a power of attorney.
A power of attorney is a written document in which an agent is
given the authority to act on behalf of his principal either in a
specified situation or to act on behalf of such principal in respect
of all actions which the principal could perform himself. A client
may terminate his mandate to an attorney at any time, but an
attorney may, after accepting a client’s brief, withdraw only with
sound reasons.
When is a power of attorney required in litigation?
There is no need for a power of attorney for issuing a summons
or a notice of intention to defend, but is required to conduct or
defend a civil appeal. The rules of the Supreme Court provide
that a power of attorney need not be filed with the registrar
unless the authority of a legal practitioner to act on behalf of a
party is disputed.
Why is a power of attorney drawn up?
A carefully drawn up power of attorney is essential for the
protection of both the attorney and the client, and to determine
the extent of the attorney’s brief. Therefore, there should always
be a power of attorney kept on the client’s file. The power of
attorney generally contains details of the action to be instituted
and of the relief to be claimed.
The client does not wish to be involved, unknowingly or
unwillingly, in expensive litigation, or in an appeal which he
never contemplated.
On the other hand, the attorney is entitled to protection as far as
his own costs are concerned. Should the attorney conduct
litigation without the authority of the client, he will not be
entitled to recover the costs incurred from his client, since there
is no contractual relationship will exist.
(b) State the four requirements laid down in Rule 34(5) with
which an offer to settle must comply.
Critical Law Studies CC ©
, CLS cc ©
Civil Procedure 2 Questions - 2015
2
(8)
Ito Rule 34, a defendant may, at any time, unconditionally or
without prejudice, offer to settle a plaintiff’s claim where
1. payment of a sum of money is claimed, or
2. the performance of an act is claimed
Claim for payment of a monetary sum
The offer to pay a monetary sum must be in writing and must be
signed by the defendant or by the defendant’s duly authorized
attorney.
For the purposes of this Rule, a defendant includes any person
joined as a defendant or as a third party, as well as a defendant
in reconvention or a respondent in application proceedings.
In terms of the Rule, the following expressions have the following
meanings:
• unconditional = liability in respect of the claim is accepted
• without prejudice = liability is denied
The plaintiff may, within 15 days of receiving the notice of the
offer, accept the offer by delivering a notice of acceptance at the
address of the defendant indicated for the purposes hereof.
If the plaintiff fails to accept the offer within the period, it may
thereafter be accepted only with the written consent of the
defendant, or with the courts consent.
The defendant must, within 10 days of delivering the acceptance,
effect payment as offered.
If he fails, the plaintiff may, after giving 5 day’s written notice to
this effect, apply through the registrar to a judge for judgment in
terms of the offer, plus costs,
To receive payments, the plaintiff would then have to take steps
to obtain execution against the defendant.
2. Answer the following questions. Ensure that your answer is in
proportion to the marks allotted.
(a) Set out the processes and pleadings in convention and
reconvention exchanged in opposed proceeding where the claim
is unliquidated. (Do not deal with pre-trial judgments). (10)
A claim which is unliquidated means no quantum has yet
been determined, and thus a combined summons must be
issued and served by the pl, attached to which is a POC, to
set out the pl’s claim. A combined summons is served for a
divorce or a claim for damages. The summons is served on
the defendant who has the dies induciae to send his NOITD
(a process). This is not a means of raising a defence but to
state to the pl that he intends defending the action. The
def must then, after the dies induciae in the NOITD, send
his plea on the merits (a pleading), which sets out the def’s
defence, which may be one of admit, deny, or confess and
Critical Law Studies CC ©
, CLS cc ©
Civil Procedure 2 Questions - 2015
3
avoid. This plea answers the claims in the pl’s POC. If
issues are joined in the plea, pleadings are closed and
preparation for trial may begin, however, if a defence of
confess and avoid was pleaded by the def, or if issues are
not joined in the plea, the pl may respond to a new issue in
the plea by sending a replication. To which the def may
answer with a rejoinder. Pleading are then closed. The def
may add to his plea on the merits (or in a separate doc)
send a counter claim. Pleadings then go from “in
convention” to become “in reconvention”. Thus the pl in
convention becomes the def in reconvention and the def in
convention becomes the pl in reconvention. The def in
reconvention then needs to answer the pl in reconvention’s
claim with a plea on the counterclaim (or a plea in
reconvention). Pleadings in convention then continue in
reconvention.
(b) Discuss the differences between the special plea and the
exception. (8)
Difference between the special plea and the exception
An exception is limited to an attack on the allegations in
the pleading as a whole, on the assumption that such
allegations are true.
A special plea assumes the truth of all the allegations in the
declaration, and does not deal with the merits of the action
at all.
It differs from an exception in 2 aspects.
It alleges fact unconnected with the merits of the action as
a result of which the action is either destroyed or
postponed. (defendant only)
A special plea may only be pleaded to a declaration or
particulars of claim, whereas an exception can be brought
against any pleading. (any party may use)
(c) State the various ways in which evidence may be placed before
the trial court. (6)
(a) The plaintiff will issue a combined summons to the
defendant – this is the summons (process) and the POC
(pleading) attached (setting out the pl’s claim). The defendant
has the choice then to defend the action by sending a NOITD
(process) within the dies induciae stated in the summons (or
thereafter pays the costs of the pl’s application for DJ and
Critical Law Studies CC ©
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