Exam (elaborations)

CIV3701 EXAM PACK 2024

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Course
CIV3701

Institution
University Of South Africa

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Uploaded on November 4, 2024
Number of pages 356
Written in 2024/2025
Type Exam (elaborations)
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civ3701 exam pack 2024

Excellentstudyresources001 Member since 3 year 1037 documents sold

CIV3701
EXAM PACK
2024

, CIVIL PROCEEDINGS IN THE HIGH COURT
STUDY UNIT 1 – THE LETTER
OF DEMAND AND THE FORMS
OF PROCEEDINGS
Abel sells his farm to Jafta for R500,000. Jafta takes occupation of the farm and
begins to farm. Despite a reminder, he refuses to make any payments towards the
purchase price of the farm as stipulated in the contract of sale. Jafta alleges that the
farmhouse is derelict and that the borehole is not as strong as he believed when he
viewed the farm. Consequently, he claims that he will not be able to irrigate as much
land as he planned, rendering the farm useless to him.

Abel wishes to cancel the sale due to Jafta's failure to pay the purchase price and to
reclaim possession of his farm. The question arises as to which form of proceedings
Abel should pursue to obtain the desired relief.

1. What is the nature of the dispute that arose between Jafta and Abel?

A dispute of law.

2. What is the reason for your answer?

Abel seeks to cancel the contract based on Jafta’s behavior. The question of
whether Abel has valid grounds for cancellation is fundamentally a legal
question.

3. Would your answers to the above two questions differ if the dispute
between the parties had been about whether there was a legal contract
between them? Substantiate your answer.

No. Since the dispute pertains to the essentialia of a purchase contract, it
remains a legal dispute. However, if the disagreement were regarding whether
the seller misrepresented facts to the purchaser, leading to the conclusion of the
contract, this would create a factual dispute.

4. With reference to the set of facts, which type of proceedings would be
appropriate in light of the above questions? Substantiate your answer.

Application proceedings. The matter involves a legal dispute, not a genuine
dispute of fact. Therefore, the issue can be resolved based solely on the
documentation presented to the court.

STUDY UNIT 2 – THE CONDUCT
OF APPLICATION
PROCEEDINGS
1. Dra has passed her attorney’s admission examination, and her contract as a
candidate attorney is set to expire soon. She wishes to be admitted as an

, attorney and must approach the court with an application for admission.
Sandra's principal advises her to draft the application herself, and she needs to
determine the correct type of application.
2. Following his divorce from his wife Theresa, Paul was awarded custody of
their minor child. As agreed, Theresa took the child on holiday, but upon
returning, she refuses to return the child to Paul. Concerned about the child’s
welfare and school attendance, Paul approaches the court for an order to have
the child removed from Theresa’s possession and returned to him. You are the
candidate attorney consulting with Paul, and he seeks guidance on the legal
procedure applicable in this scenario and the expected timeline for relief.
3. Indicate what factors must be considered in determining the correct type
of application to be used.
o Are proceedings being instituted, or is the application related to existing
proceedings (i.e., proceedings that have already been initiated)?
o Whose rights or interests are affected by this application?
4. In light of these factors, what type of application must Sandra lodge?

An ex parte application. No one else's rights or interests will be affected by the
application; hence, she is not required to give notice to any other party.

5. What documents comprise this application?

Rule 6(1) stipulates that an application consists of a notice of motion supported
by an affidavit detailing the facts upon which the application is based.

Read through the second set of facts at the beginning of the study unit, then answer the
following questions:

1. Advise Paul on the type of application that must be used in his case.

An “ordinary” application is appropriate since Theresa must be notified of the
application to allow her the opportunity to present her side of the case.

2. Advise Paul on the steps that must be followed to ensure that the case is
heard more quickly than usual before the court.

The application can be presented to the court as a matter of urgency under Rule
6(12). The application will follow the same procedure as any other application,
except it must include a certificate of urgency, and the notice of motion should
indicate that the court is requested to allow deviations from the standard
service forms, treating the application as urgent.

STUDY UNIT 3 – THE CONDUCT
OF SUMMONS PROCEEDINGS
No questions.

, STUDY UNIT 4 – THE PARTIES TO LITIGATION

A Pegasus Airlines plane takes off from Durban airport with 450 passengers onboard.
A hundred miles east of Durban, the plane crashes into the Indian Ocean. After
analyzing the flight data recorder, it is clear that the accident was caused by Pegasus’s
failure to maintain the plane adequately. Approximately 200 of the deceased have
dependants who are now in financial difficulty. These dependants hold Pegasus liable
for their situation. Pegasus faces the possibility of receiving hundreds of individual
claims, and each of these hundreds of potential plaintiffs will have to prove basically
the same thing. The question is: what practical solution is there to save costs and time?

1. If 234 plaintiffs, each of whom has a legally valid claim, get together
because they do not want to institute individual claims against Pegasus for
financial reasons, what actions should they consider to save time and
money?

In terms of Rule 10, the 234 plaintiffs may voluntarily join as plaintiffs in a
single action, as each of them has a claim against Pegasus (the same defendant)
and would be entitled to institute a separate action against Pegasus.
Additionally, the action would depend on the same legal or factual questions
(each person is a dependant of one of the deceased, and each one’s damage
results from negligence on the part of Pegasus).

2. Can other plaintiffs who are not part of this group of 234 people join in
the action that has already been instituted? Explain.

Yes, Rule 12 provides that a person may join as a plaintiff to an action. Under
Rule 12, a person entitled to join may apply for leave to join as a plaintiff.
However, such an applicant must demonstrate to the court that they have a
bona fide case and that their application is made seriously.

3. If you are the attorney for the plaintiffs mentioned in (2) above, and
during court proceedings, the attorney for Pegasus argues that you do not
have a mandate to act for the plaintiffs, what should you do now?

You should file a power of attorney, which is a written document in which an
agent is given authority to act on behalf of their principal either in a specific
situation or to act on behalf of such principal in all actions that the principal
could perform themselves.

STUDY UNIT 5 – SERVICE

D is about to serve a summons on E. A tracing agent has established E’s address.
Since E has only a short-term lease on the property, he does not have a telephone.
However, D has fortuitously come across E’s cellphone number. She phones this
number and introduces herself as an agent for the cellphone network provider. In this
way, she discovers that E does not live at his given address and that he intends to
move to the Free State, where he plans to conduct business from flea market to flea

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CIV3701 EXAM PACK 2024

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