CIV3701 NEW - Questions and
Answers - New Pack 2022
,CIVIL PROCEEDINGS IN THE HIGH COURT
STUDY UNIT 1 – THE LETTER OF DEMAND AND THE FORMS OF PROCEEDINGS
Case Study: Abel sells his farm to Jafta for R500,000. Jafta takes possession of the farm
and begins farming. However, despite being reminded, Jafta refuses to make any payments
towards the purchase price as per the sale agreement. Jafta argues that the farmhouse is in
disrepair and that the borehole is weaker than he expected, hindering his irrigation plans and
rendering the farm less useful. Abel now wishes to cancel the sale due to Jafta's non-
payment and reclaim the farm. The question arises: which form of proceedings should Abel
pursue to obtain the desired relief?
1. What is the nature of the dispute between Jafta and Abel?
o Answer: A dispute of law.
2. Reason for the answer:
o Abel seeks contract cancellation based on Jafta’s non-compliance.
Determining if Abel has valid grounds for cancellation is primarily a legal
question.
3. Would the answers change if the dispute were about the contract's existence?
Substantiate.
o Answer: No. The issue remains a legal dispute as it involves the essential
terms of a purchase contract. However, if the dispute was based on potential
misrepresentation by the seller leading to contract formation, it would introduce
a factual dispute.
4. Appropriate proceedings based on the facts and reasoning above:
o Answer: Application proceedings. The issue is legal, without genuine factual
disputes, allowing resolution based on submitted documentation alone.
STUDY UNIT 2 – THE CONDUCT OF APPLICATION PROCEEDINGS
1. Case Study: Dra has passed her attorney’s admission exams, and her candidate
attorney contract is nearing its end. She wishes to be admitted as an attorney and
must approach the court with an application for admission. Her principal advises her
to draft the application herself. She needs to decide on the correct application type.
2. Case Study: Following his divorce from Theresa, Paul was awarded custody of their
minor child. Theresa took the child on holiday but now refuses to return the child to
Paul. Concerned about the child’s well-being and school attendance, Paul seeks a
court order for the child’s return. As the candidate attorney consulting Paul, you must
advise him on the procedure and timeline for relief.
3. Factors to determine the correct type of application:
o Are proceedings being initiated, or does the application relate to existing
proceedings?
o Whose rights or interests are affected by this application?
4. Type of application for Dra:
o Answer: An ex parte application. As no one else’s rights or interests are
affected, notice to other parties is unnecessary.
5. Documents required for the application:
o According to Rule 6(1), an application includes a notice of motion supported by
an affidavit outlining the facts of the application.
Case Analysis for Paul
, 1. Type of application required:
o Answer: An “ordinary” application. Theresa must be notified to provide her
side of the case.
2. Steps for expedited court hearing:
o The application may be filed as urgent under Rule 6(12), with a certificate of
urgency and a notice requesting deviations from standard service forms,
allowing for an expedited hearing.
STUDY UNIT 3 – THE CONDUCT OF SUMMONS PROCEEDINGS
No questions.
STUDY UNIT 4 – THE PARTIES TO LITIGATION
Case Study: A Pegasus Airlines plane with 450 passengers crashes into the Indian Ocean
due to inadequate maintenance. Approximately 200 of the deceased have dependants who
now face financial difficulties. These dependants wish to hold Pegasus liable, raising the
question of how to handle the claims efficiently to save time and costs.
1. Options for plaintiffs to save time and money:
o Answer: Under Rule 10, the 234 plaintiffs may join as plaintiffs in a single
action. Each has a claim against Pegasus, and the action is based on common
legal and factual issues (i.e., dependence on a deceased person and
Pegasus's alleged negligence).
2. Can additional plaintiffs join the existing action?
o Answer: Yes, Rule 12 permits others to join as plaintiffs by applying to the
court and showing a bona fide case with serious intent.
3. If Pegasus’s attorney argues a lack of mandate to represent plaintiffs, what
should be done?
o Answer: Submit a power of attorney, a written document authorizing an agent
to act on behalf of the principal in specific actions or generally.
STUDY UNIT 5 – SERVICE
Case Study: D is about to serve a summons on E. A tracing agent has located E’s address,
but E does not have a long-term lease or a phone. D discovers E’s cellphone number and
learns he plans to move to the Free State to conduct flea market business, with no
confirmed residence. With D’s claim near prescription, the summons must be served
urgently. What service method is appropriate?
1. Appropriate form of service:
o Answer: Substituted service.
2. Reasoning:
o E is within the Republic, but exact personal service is unfeasible as his
whereabouts are unclear.
3. Difference between substituted service and edictal citation:
o Substituted service is for defendants within the Republic with uncertain
locations, while edictal citation applies to defendants outside the Republic,
even if their overseas location is known.
, 4. Ensuring the audi alteram partem principle:
o Service ensures that the other party is notified and can defend themselves,
upholding the right to be heard (audi alteram partem) before any order is
issued against them.
STUDY UNIT 6 – THE SIMPLE SUMMONS AND THE COMBINED SUMMONS
Scenario:
X and Z retire and decide to build a smaller home. Z supplements his pension by appearing
in advertisements. Z contracts with Y to build a house at R3,000 per square meter. The
house plan, initialed by both parties and annexed to the contract, indicates a total area of
280 square meters. Construction issues arise, and a dispute ensues regarding the contract
price. Z claims that Y's poor workmanship entitles him to a reduced payment. While
inspecting the site with his attorney, Z falls into an unsecured shaft, resulting in
hospitalization and facial injuries that prevent him from appearing in advertisements. Z and Y
both plan to sue each other.
1. Key Factor for Summons Type:
The determining factor for the type of summons Z and Y will issue is the nature of
their respective claims.
2. Summons for Contract Price Claim by Y:
Y should use a simple summons because the claim is for a "debt" or a "liquidated"
amount. The contract price is a fixed amount calculated by multiplying the surface
area (280 sq. m.) by the agreed rate (R3,000 per sq. m.), which is a straightforward
calculation.
3. Summons for Damages Claim by Z:
Z should use a combined summons since the claim is for unliquidated damages.
The court determines damages based on evidence, and such claims are not
predefined in monetary terms.
4. Declaration Requirement:
A declaration will be necessary if a simple summons is issued and the defendant files
a notice of intention to defend. The plaintiff must then respond with a declaration.
STUDY UNIT 7 – PROVISIONAL SENTENCE
Scenario:
1. Security Services CC (SS) offers private security services in Scareville with a fixed
monthly fee. Clients who pay by cheque sometimes have their cheques returned for
insufficient funds, impacting SS's cash flow. SS seeks quick legal action to recover
the arrears.
2. Following their divorce, Peter must pay Sandra R550,000 based on their deed of
settlement, backed by an acknowledgment of debt that Peter signs. Sandra demands
payment, but Peter defaults, leaving her needing funds for her accommodation.
3. Procedure Choice for SS:
SS could choose either a provisional sentence summons or a simple summons.
Provisional sentence summons is appropriate when the claim is based on a liquid
document, establishing a definite debt. While both summons types are viable,
provisional sentence summons is often faster and more cost-effective.
4. Admission of Debt as Liquid Document:
Yes, an admission of debt is considered a liquid document, as it acknowledges a
specific, defined debt unconditionally.
