Exam (elaborations)
TLI4801 May June Portfolio 2024
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- University Of South Africa (Unisa)
TLI4801 May June Portfolio 2024
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TLI4801EXAM PAPER
DUE 29 MAY 2024
, TLI4801 MAY JUNE 2024
THE QUESTION PAPER:
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.
As EBA (Pty) Ltd is aiming to recover a fixed sum of R1.5 million from DSA Equipment
(Pty) Ltd, a simple summons should be used to initiate the claim. According to Rule
2(b), a simple summons is appropriate for claims involving a liquidated demand or debt,
such as a specific and fixed amount of money owed. The agreement between EBA and
DSA for the supply and delivery of components on 30-day credit terms, along with the
invoice given to Mr. Smith, clearly establishes the fixed amount owed. Therefore, EBA
should proceed with legal action using a simple summons to recover the outstanding
amount from DSA. This method is suitable for cases where the obligation is clearly
liquidated and the sum can be easily calculated. Using a simple summons aligns with
the requirements of this situation and will facilitate the efficient resolution of the claim for
the amount owed by DSA.
6
, (b) Assuming that DSA opposes EBA’s claim, discuss whether summary judgment
may be used in the above instance.
A plaintiff can only apply for summary judgment if their claim is based on:
a liquid document,
a liquidated amount of money,
delivery of specified movable property, or
ejectment.
In this case, EBA (Pty) Ltd can apply for summary judgment against DSA Equipment
(Pty) Ltd for the outstanding amount of R1.5 million. The claim is based on a liquidated
amount of money, supported by a written agreement and an invoice confirming the
delivery and value of the goods. EBA's summary judgment application would aim to
expedite the resolution, arguing that DSA has no legitimate defense and is merely
delaying payment. However, summary judgment is typically granted only in clear cases
where the defendant's defense lacks substance. Courts are cautious in granting such
judgments to ensure compliance with the Audi alteram partem rule, which guarantees a
fair hearing. Consequently, EBA must thoroughly demonstrate that DSA's opposition is
unfounded and that the claim is incontrovertible. Given the apparent
straightforwardness of the case—documented agreement, delivery, and non-payment—
summary judgment appears appropriate, provided EBA can establish the absence of
any legitimate defense from DSA.
(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.
With response to DSA's intention to defend the matter, EBA should prepare a declaration
pleading. A declaration is a formal written statement outlining the cause of action and
the material facts on which it is based, and must be prepared in accordance with Rule
20.3. The declaration should detail the written agreement between DSA and EBA for the
supply and delivery of components on 30-day credit terms, the delivery of the goods,
and the outstanding amount of R1.5 million. It should also include information about the
numerous calls and the formal letter of demand sent to DSA for payment, as well as the
lack of response from DSA or Mr. Smith. By including all relevant facts, the declaration
allows DSA to argue or defend against EBA's claims. Therefore, to address DSA's
intention to defend the matter, EBA must draft a comprehensive declaration pleading to
support their case for recovering the outstanding amount.
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