Name XXXXXXXXXXXXXX
Student number XXXXXXXXXXXXXX
Module code TLI4801
Unique number 705316
Assessment type Take home examination
Due date for examination 16 October 2023
DECLARATION OF AUTHENTICITY AND ACCURACY
I declare that this submission is my own original work. Where secondary material has
been used (either from a printed source or from the Internet), this has been carefully
acknowledged and referenced in accordance with departmental requirements. I have
not allowed anyone else to borrow or copy my work. I understand what plagiarism is
and have read the university’s policy in this regard, available at:
http://www.unisa.ac.za/static/corporate_web/Content/Apply%20for%20admission/
Documents/Policy_copyright_infringement_plagiarism_16November2005.pdf
I understand that I will be reported to the University’s Student Disciplinary Section if any
instances of plagiarism are found in my submission. If found guilty, I may be suspended
for up to two years.
Name:
Student number:
Signature:
Date:
,QUESTION 1: CIVIL PRACTICE
A. DISCUSS WHETHER MR BARNES WILL USE A PROVISIONAL SENTENCE
SUMMONS OR A COMBINED SUMMONS TO INSTITUTE HIS CLAIM OR ACTION:
A combined summons is used where the claim is unliquidated, such as, an action for
damages or personal injuries, which needs to be proved by evidence. A
provisional sentence summons is used where the claim is liquid such as a
cheque. A liquid document is evidence of an established monetary debt, as the claim
that arises also falls within the definition of a “debt” or liquidated demand. A provisional
sentence summons will not be applicable here, as the claim is unliquidated. 1
Application to facts: This is an action for personal injuries sustained as a result
of collision with a taxi, and damages to a bicycle. Therefore, Mr Barnes will use a
combined summons as the action involves an unliquidated claim for damages and
personal injuries, and the quantum must be proved or determined.
B. DISCUSS THE PLEADING THAT WILL BE ANNEXED TO THE SUMMONS TO
SUPPORT MR BARNES’ CLAIM OR ACTION:
The document that will be appended to the summons for purposes of Mr Barne’s case is
known as the particulars of claim form. An unliquidated claim is advanced by means of
the particulars of claim, which is a distinct claim and is attached to the combined
1
Marnewick CG, Litiga,tion Skills for South African Lawyers 4th edition (2019 LexisNexis).
, summons. The particulars of claim form contain the essential facts upon which the
plaintiff relies for their cause of action. In addition, the combined summons must adhere
to the specifications outlined in Rule 17(2) and take the form prescribed in Form 103 of
the First Schedule.
C. DEFINE THE TERM “FACTA PROBANDA”:
The material facts are referred to as the facta probanda. The cause of action is a set of
facts giving rise to a claim in terms of the law. In legal terms, "facta probanda" pertains
to the crucial and material facts that must be specifically pleaded. These material facts
are indispensable legal elements that are required to form a cause of action, charge, or
defense. Hence, it is essential to state the material facts in a manner that incorporates
the specific facts of the case at hand. The facts should be presented in a way that is
applicable to the particular case being considered, as it is mandated by law.
D. DRAFT THAT SECTION OF THE PLEADING (REFERRED TO IN 1 (B) ABOVE)
THAT SETS OUT MR BARNES’ FACTA PROBANDA ONLY:
The facta probanda that will be set out in Mr. Barnes' pleading are as follows:
1. On the morning of 2 July 2023, Mr. Barnes, a member of the local bicycle club "Easy
Riders," was riding on Lynnwood Road, Pretoria.
2. Mr. Barnes was struck from behind by a speeding taxi with registration number
BN264GP driven by Joe Speedy.
3. As a result of the accident, Mr. Barnes sustained the following injuries:
3.1. A broken right leg
