CIV3701 Assignment 1 Semester 2 2024 | Due 25 August 2024 - All Questions Answered.
QUESTION 1
X has a claim against Z in the amount of R600 000 based on breach of contract which occurred in Cape Town. X is an incola of Cape Town and Z is an incola of Pretoria. With these facts in mind, answer ...
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Question 1
1. X has a claim against Z in the amount of R600 000 based on breach of contract which
occurred in Cape Town. X is an incola of Cape Town and Z is an incola of Pretoria. With these
facts in mind, answer the following questions. Give full reasons for your answers.
A) Explain why it will be inappropriate for X to use an ordinary application to institute
proceedings against Z.
Using an ordinary application to institute proceedings against Z is inappropriate because ordinary
applications are suitable for cases where there is no dispute of fact, and the matter can be resolved
based on the affidavits presented. In this case, the claim involves a breach of contract, which likely
involves factual disputes requiring oral evidence and cross-examination. Such matters are more
appropriately handled through action proceedings rather than motion proceedings.
B) Explain why X can institute proceedings against Z in the Cape Town High Court.
X can institute proceedings against Z in the Cape Town High Court because the breach of contract
occurred in Cape Town. This establishes jurisdiction based on the principle of ratione rei gestae,
which allows a court to hear a case if the cause of action arose within its jurisdiction. Additionally, X
is an incola (resident) of Cape Town, which further supports the jurisdiction.
[OR]
The Cape Town High Court can assume jurisdiction over the matter because X, the plaintiff, is an
incola (resident) of Cape Town. According to the common law principle actor sequitur forum rei, the
defendant should be sued in the jurisdiction where they reside or are domiciled. However, South
African law also permits the plaintiff to institute proceedings in the jurisdiction where the cause of
action arose. Since the breach of contract occurred in Cape Town, the Cape Town High Court has
jurisdiction over the matter.
C) Would your answer to (b) above differ if Z was a foreign peregrinus of the Republic?
Yes, the answer would differ if Z was a foreign peregrinus. In cases where the defendant is a foreign
peregrinus, different jurisdictional principles apply. Specifically, an attachment to found or confirm
jurisdiction is usually required to ensure that the court's judgment will be effective. This means that
before proceeding, X would need to attach Z's property within the jurisdiction of the court.
[OR]
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