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Practice Questions and answers for civil procedure 371
- Grado
- Institución
Practice questions compiled by going through past papers of commonly asked questions with the correct answers and how to answer.
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Answers to possible Q’sMC jurisdiction Q:
Plaintiff is: and defendant is
Need to establish substantive jurisdiction. This is a matter can be adjudicated on in terms of
s 29(1)(?) of the Magistrate Courts Act (MCA) because … and is not excluded from High
court jurisdiction in terms of s 46 so therefore this is in the Magistrate Courts Jurisdiction.
To determine which division, either the district or regional magistrate court, the plaintiff can
approach we can look at the monetary amount being claimed. As this amount is below
R200 000 this will fall under the district magistrate court. OR as this amount is below
R400 000 this will fall under the regional magistrate court.
To determine which district magistrate court has jurisdiction we need to look at territorial
jurisdiction in terms of s 28(1) of the MCA. S 28(1)(a) of MCA says that jurisdiction can be
determined where the defendant resides, is employed, or conducts business so therefore,
(inserts name of place that would have juris), could say place of (residence and workplace-
say 28(1)(a) twice tho). Furthermore, in terms of s 29(1)(d) of the MCA, it can be argued that
the cause of action rose wholly in (insert place name) so therefore (insert place name and
district/regional magistrate court) can also have jurisdiction.
This is further enforced by the case in Dushekio v Millburn where the cause of action rose
wholly the district magistrate court in Johannesburg. The contract for lease was enacted and
concluded in Johannesburg. This was shown from the averments in the summons. The
judge said that the circumstances and place where the mandate was conferred by defendant
upon Messrs. Kennedy and Co. are no more than pieces of evidence and is therefore not
material facts. S 29(1)(d) is concerned where the cause of action arose wholly. This means
where the facta probanda which means the facts of the case must fall within the jurisdiction
of the court which is necessary for the plaintiff to prove. Therefore, not the evidence or facta
probantia which means that the whole cause of action do not have to rise in court
jurisdiction. Messrs.Kennedy and Co. were facta probans as they were acting as agents for
the plaintiff.
MCR 5(6)(a) states that when this ground of jurisdiction is relied on the summons must have
an averment saying that the whole cause of action arose within the area of jurisdiction of the
court approached.
King's Transport v Viljoen dealt with vicarious liability claim. The employment contract was
signed outside the court’s jurisdiction and it was argued that it contributes to facta probanda.
The court said no, it contributes to facta probantia. The fact is that the employee was alleged
to be employed at the time of the employment. So, where the contract was signed was facta
probantia. It not part of the material facts which is necessary to sustain cause of action.
Therefore, all facta probanda, not facta probantia, must occur within district/regional division.
To bring matter in specific court
Can consent in terms of s 45 MCA: both parties can consent to have the matter be brought
into the magistrate jurisdiction even if the claim falls outside the monetary jurisdiction of the
MC in terms of s 29(1). As long as the matter is not excluded in terms of s 46 High court
jurisdiction. Both parties must consent in writing.
, Or can abandon an amount in terms of s 38 of MCA or admit and deduct an amount in terms
of s 39 of the MCA.
If Abandon, then get what you can prove up to maximum of R200 000
If admit and deduct from the outset, then get what you can prove up to the maximum
of R200 000 less the admitted debt
If there’s a successful counterclaim its better to deduct
Citation
Where the plaintiff is a child under 7 – you write the “the plaintiff is (their mother/father or
guardians name” and that they are being acting in their representative capacity
If plaintiff is over 7 then you can write “the plaintiff is (the child over 7’s name)” and that they
are being assisted by their parent or guardian or could also be curator ad litem.
The defendant is [NAME AND SURNAME] an adult [OCCUPATION], who resides at
[ADDRESS] (1), who sues herein in his/her representative capacity as father/mother
and natural guardian (1) of [INSERT NAME AND SURNAME] a child who resides at
[ADDRESS] (1)
Small claims court
The small claims court has been established to provide cheap and efficient access for
natural persons to court for claims less than R20 000. So that they can have their disputes
resolved without acquiring major costs as it is less expensive and more accessible to all. The
small claims court sits after hours at the local district magistrate courts so that litigants don’t
lose money taking off work thus making it more accessible. Juristic persons cannot institute
claims but can be cited as the defendant to the proceedings. The state can also not be a
party to these types of proceedings.
A demand is required before you can litigate in the Small claims court (SCC). The plaintiff
must send the letter of demand to opposing party and must be given 14 days to respond. If
the demand is not delivered or if less than 14 days is given to the opposing party to respond
the SCC will not have jurisdiction over the matter. The opposing party could raise a special
plea for lack of jurisdiction. If 14 days has lapsed, then you can go to the SCC and the clerk
of the court will help you in completing a summons to be delivered to the defendant. They
will not be able to help you if the letter hasn’t been sent or hasn’t been 14 days. Its also
important to receive proof of service of letter of demand so then opposing part cannot raise
lack of jurisdiction.
S 14 (1) of the small claims court act says that plaintiff can institute proceedings where the
defendant resides, is employed, carries on business, or the cause of action arose. Is
inquisitorial in nature where the commissioner is active and the parties are more passive.
The commissioner poses questions. Parties cannot examine or cross examine another party
or witnesses. S 23 of SCCA allows for the proceedings to be suspended where the facts of
the case are difficult to determine. The plaintiff can then institute the actio de novo in another
competent court. The SCC only has jurisdiction over causes of action stipulated in s 15 of
the SCCA such as delivery or transfer of property, ejectment, a liquid document or credit
agreement.
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