Exam (elaborations)
TLI4801 PORTFOLIO Semester 1 2024 (790512) - DUE 28 May 2024
- Course
- TLI4801 (TLI4801)
- Institution
- University Of South Africa (Unisa)
TLI4801 MAY JUNE PORTFOLIO Semester 1 2024 (790512) - DUE 28 May 2024
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TLI4801 MAY JUNEPORTFOLIO Semester
1 2024 (790512) - DUE
28 May 2024
[Company address]
,TLI4801 MAY JUNE PORTFOLIO Semester 1 2024
(790512) - DUE 28 May 2024
QUESTION 1:
CIVIL PRACTICE [50]
1.1 Darren Smith is the director and shareholder of DSA Equipment (Pty) Ltd (“DSA”)
and the company manufactures medica electronic equipment. Mr. Smith approached EBA
(Pty) Ltd (“EBA”), the local supplier of the components needed for the manufacturing of
the electronic equipment by DSA, and the parties entered into a written agreement for the
supply and delivery of the components on 30-day credit terms. The goods are delivered by
EBA to DSA’s premises and a copy of the invoice to the value of R1,5 million is handed to
Mr. Smith who was present to receive them. Despite numerous calls followed by a formal
letter of demand addressed to DSA for payment of the outstanding amount following the
expiry of the 30-day period, EBA does not receive any formal response from DSA and/or
Mr. Smith. EBA (Pty) Ltd now wants to institute legal proceedings to recover the
outstanding amount. EBA’s director approaches you for legal advice or assistance
regarding the proceedings that can be instituted for the recovery of the outstanding
amount from DSA. Answer all the following questions, using proper references. Note: In
your answers, you are required to make up facts to supplement the given facts of the case
in so far as your own rendition does not detract from the core issues.
(a) Discuss the type of court proceedings that must be used to institute EBA’s claim. (4)
(b) Assuming that DSA opposes EBA’s claim, discuss whether summary judgment may be
used in the above instance. (4)
(c) Assuming that there is no application for summary judgment, name and discuss the
pleading that must be drafted by EBA in response to DSA’s intention to defend the matter.
(4)
(d) Draft the pleading referred to in (c) above. It must include, inter alia, a heading, the
description of the parties, their locus standi (if applicable), the court’s jurisdiction,
material facts and the prayer. (20)
(e) The written agreement between EBA and DSA also provides for an alternative dispute
resolution mechanism that may be used to resolve disputes between the parties. EBA now
requests your advice about a suitable ADR (alternative dispute resolution) mechanism that
may be used to resolve the dispute with DSA expeditiously as opposed to instituting court
proceedings. Discuss briefly whether arbitration or negotiation is the most suitable ADR
mechanism having regard to the given facts and advise EBA accordingly. (6) (38)
(a) Type of Court Proceedings for EBA’s Claim
, To recover the outstanding amount of R1.5 million from DSA Equipment (Pty) Ltd, EBA (Pty)
Ltd should institute an action in the High Court. The High Court has jurisdiction over claims
exceeding the monetary threshold for the Magistrates' Court, which is typically up to R400,000
for civil matters. The claim amount of R1.5 million falls within the jurisdiction of the High
Court. The proceedings should be initiated by issuing a summons, which will formally
commence the legal action against DSA.
(b) Suitability of Summary Judgment
Summary judgment is a procedure used to expedite court proceedings when the plaintiff believes
that the defendant has no valid defense to the claim. In this case, if DSA opposes EBA’s claim,
EBA can apply for summary judgment. Summary judgment is appropriate because:
1. EBA has a clear and straightforward claim for a liquidated amount (R1.5 million).
2. There is documented evidence of the debt (the written agreement and the invoice).
3. DSA’s lack of response to the demand for payment suggests that they may not have a
substantial defense.
Therefore, summary judgment can be an effective means to obtain a swift resolution, provided
EBA can prove that DSA has no bona fide defense to the claim.
(c) Pleading to be Drafted in Response to DSA’s Intention to Defend
Assuming there is no application for summary judgment, EBA must draft a replication. A
replication is the plaintiff’s response to the defendant’s plea. It addresses any new facts or
defenses raised by the defendant and reinforces the plaintiff’s original claim. The replication
must be concise and directly respond to the points raised in the defendant’s plea.
(d) Drafting the Replication
IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION,
JOHANNESBURG)
Case No: 12345/2024
In the matter between:
EBA (PTY) LTD
(Registration No: 2001/012345/07)
Plaintiff
and
DSA EQUIPMENT (PTY) LTD
(Registration No: 1998/076543/07)
Defendant
REPLICATION
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