CIV3701 Assignment 1 Semester 1 & 2 2021

QUESTION 1 Explain why it will be inappropriate for X to use an ordinary application to institute proceedings against Z. When legislation or the rules of court neither prescribe nor prohibit the use of application proceedings, the final test to apply is whether there is a material dispute of fact. If there is a material dispute of fact (or can be reasonably anticipated), the use of application proceedings is inappropriate and will normally be penalised by way of an adverse costs order. In the present matter, use of the application procedure is clearly inappropriate, as it stands to reason that a defamation case will involve a material dispute of fact. Since such a dispute can only be resolved by hearing oral evidence, summons proceedings will be appropriate. Explain why X can institute proceedings against Z in the Cape Town High Court. In regard to a claim relating to a contract, the court in whose area of jurisdiction the contract was concluded, where the contract was to be performed, or where the contract was breached, will have jurisdiction. This is known as the exercise of jurisdiction ratione contractus. (Under common law, this ground of jurisdiction falls within the ambit of ratione rei gestae). On the given facts, the contract was breached in Cape Town. Therefore, X may institute the proceedings in the Cape Town High Court, ratione contractus. ...............................................continued