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CIV3701 - PAST EXAM SOLUTIONS NOTES
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- University Of South Africa (Unisa)
CIV3701 - PAST EXAM SOLUTIONS NOTES
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CIV3701EXAM SOLUTIONS
SEMESTER 01 – 2023
1
(a) ADR processes, or Alternative Dispute Resolution processes, are distinguished
from formal litigation in several important respects:
Voluntary Participation: ADR processes, such as mediation or arbitration, are
voluntary in nature. Parties involved in a dispute have the choice to engage in these
processes or pursue formal litigation. In contrast, formal litigation is typically
compulsory when a lawsuit is filed.
Informality: ADR processes tend to be less formal compared to formal litigation. They
provide a more relaxed and flexible setting for resolving disputes, allowing parties to
have more control over the process. In contrast, formal litigation follows strict
procedural rules and is conducted in a courtroom setting.
Control over the Outcome: In ADR processes, parties have more control over the
outcome of their dispute. They can actively participate in negotiations and reach a
mutually agreeable solution. In formal litigation, the outcome is determined by a judge
or jury, and parties have limited control over the final decision.
Time and Cost Efficiency: ADR processes are generally faster and less costly than
formal litigation. They avoid lengthy court proceedings and associated expenses, such
as legal fees. ADR processes can help parties save time and money while resolving
their disputes.
Confidentiality: ADR processes often offer greater confidentiality compared to formal
litigation. Parties can discuss sensitive issues without public scrutiny, maintaining the
privacy of their disputes. In formal litigation, court records are typically public, and
hearings are open to the public.
(b) The introduction of small claims courts in South Africa was successful in increasing
access to justice for litigants due to the following reasons:
Simplified Procedures: Small claims courts have simplified procedures that are
designed to be user-friendly and accessible to individuals without legal representation.
The rules and processes are less complex, making it easier for litigants to present their
cases without extensive legal knowledge.
Lower Cost: Small claims courts are intended for claims of relatively low monetary
value. The court fees for filing a case in small claims court are lower compared to
regular courts, reducing the financial burden on litigants. This makes justice more
affordable and accessible, especially for individuals with limited resources.
Informal Setting: Small claims courts provide a less formal setting compared to
traditional courts. The judges, known as commissioners, adopt a more informal
approach to proceedings. This can help litigants feel more comfortable and confident
in presenting their case, without the intimidating atmosphere of a formal courtroom.
, Expedited Resolution: Small claims courts aim to resolve disputes quickly. The
hearings are scheduled promptly, and the decisions are rendered expeditiously. This
allows litigants to have their cases heard and resolved in a timely manner, avoiding
prolonged delays commonly associated with regular court systems.
Prohibition of Legal Representation: In small claims courts, litigants are generally not
allowed legal representation. This prevents the potential advantage of well-funded
parties with legal expertise, ensuring a level playing field for all litigants. It encourages
individuals to represent themselves, thereby reducing reliance on expensive legal
services.
(c) Representation by power of attorney refers to the authority given to an individual
(the attorney-in-fact or agent) to act on behalf of another person (the principal) in legal
or financial matters. A power of attorney is necessary in situations where the principal
is unable or prefers not to act personally, but still wants someone to represent their
interests. It is drawn up to establish the legal relationship between the principal and
the attorney-in-fact.
A power of attorney may be necessary in various circumstances, including:
Incapacity: If the principal becomes incapacitated due to illness, injury, or age-related
issues, they may be unable to manage their own affairs. In such cases, a power of
attorney allows the designated attorney-in-fact to make decisions and take actions on
their behalf.
Convenience: The principal may grant a power of attorney for convenience, especially
in situations where they are unable to be physically present for certain legal
transactions or financial matters. For example, if the principal is traveling abroad, they
can authorize someone to sign documents or handle financial transactions in their
absence.
Specific Transactions: A power of attorney can be created for a specific purpose or
transaction. For instance, if the principal is unable to attend a real estate closing, they
can grant someone the authority to sign documents and complete the transaction on
their behalf.
A power of attorney is drawn up through a legal document, which specifies the scope
of authority granted to the attorney-in-fact. The document must comply with legal
requirements and may require notarization or witnessing. It is important to carefully
consider the powers granted and choose a trustworthy attorney-in-fact, as they will
have the legal authority to act on behalf of the principal.
(d) Different types of interdicts serve distinct purposes in legal contexts. Here are some
examples:
Interdictum prohibitorium: This type of interdict is aimed at preventing a party from
engaging in a specific action or behavior. It seeks to prohibit someone from doing
something that may cause harm or infringe upon the rights of another party. For
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