CIV 3701 Long Questions Q AND A PACK

GROUP WORK QUESTIONS QUESTION 1 (a) You passed your attorneys ’ admission e xamination and your contract as candidate attorney expires shortly. You want to be admitted as an attorney. Bear these facts in mind, and answer the following questions. (i) Explain which type of application you may use. (2) An Ex parte application: this type of application is used when the interests and rights of no -one other than the applicant will be affected by the application (therefore applicant is not oblige d to give notice of the application to anyone else). On the given facts the applicant is the only person who is interested or affected by the relief sought. See SGU 2.2.1. (ii) Name the documents that comprise the type of application identified in (i) a bove. (2) Notice of motion supported by a supporting affidavit. See Rule 6 (1) (a). (iii) Explain why the type of application referred to in (i) above is not an interlocutory application. (2) An interlocutory application is used when a party approaches the court for relief in respect of matters related to proceedings that have already been instituted. On the given facts the application relates to proceedings that have not yet been instituted. T herefore, this type of application is not an interlocutory application. See SGU 2.2.3. (iv) If the application now relates to leave to serve a document overseas by way of edictal citation, name four aspects that the content of such applicat ion must cover as prescribed by Uniform Rule 5(2). (4) It must set out concisely the nature and extent of the claim, the grounds upon which the claim is based and upon which the court has jurisdiction to entertain the claim, and also the manner of service which the court is asked to authorise. If such manner b e other than personal service, the applicant shall further set forth the last known whereabouts of the person to be served and the enquiries made to ascertain his present whereabouts. See Rule 5 (2). (b) X issues a simple summons against Y for ejectm ent. Answer the following questions. (i) Explain why X will not be able to use the provisional sentence summons to institute the action. (2) Provisional sentence summons can be used only if the cause of action is based on a liquid document. On the given facts summons was issued for ejectment. A claim for ejectment is a claim for liquidated demand. Therefore provisional sentence summons cannot be used if the plaintiff’s claim is for a debt or liquidated demand. See SGU 6.2.2 and 7.2. (ii) Name the procedure that X may use if Y enters an appearance to defend timeously, but X is convinced that Y does not have good grounds to do so. (1) Summary judgment. See SGU 12.4. (iii) Y enters an appearance to defend, and X fails to deliver his declaration timeously. Discuss the procedure that Y may follow in these circumstances. (3) Where a party fails to deliver a pleading other than a replication or one of the ensuing pleadings on time, a notice of bar must first be served on that party. A declaration is such a pleading, and therefore Y must first deliver a notice of bar to X, re questing delivery within a specified time limit. Should X thereafter fail to deliver the declaration, he or she will be in default and ipso facto be barred from doing so. Y may then request for absolution of the instance owing to the fact that the plain tiff has not proved his or her claim, or judgment. See SGU 12.3.2.3. (iv) If X delivers his declaration, name the pleadings in convention that thereafter could, in the usual way, be exchanged between the parties in the correct order . (2) Plea on the merits and replication. See SGU 9.3 and 9.4. (v) Name two procedures that may be used after close of pleadings to prevent the parties from being caught unprepared at the trial. (2) Request for further particulars for purposes of trial and discovery of documents and tape recordings. See SGU 13.3.1 and 13. 3.3, as well as the feedback on the first assignment for other possible procedures. QUESTION 2 (a) In each of the instances set out below, indicate briefly in what way the pleading or the procedure followed is defective, and whether there is any procedure the defendant may use to raise an objection against it. (i) In his particulars of clai m the plaintiff alleges that the parties concluded an agreement on 1 February 2070, instead of on 1 February 2007. (2) There is a factual error in the plaintiff’s particulars of claim. Since a party may amend only his or her own pleadings, it is only the p laintiff that may apply to amend his or her declaration, not the defendant in this case. See SGU10.4. [Note: Well done to the Cape Town discussion group for immediately spotting this point! Prof E Hurter]. (ii) The plaintiff institutes an action for divorce against the defendant by way of a simple summons. (2) An incorrect summons was used. A combined summons is used when the plaintiff’s claim is unliquidated. A claim for divorce is unliquidated, and the plainti ff did not comply with the formal requirements of Rule 17(2). Non -compliance with the provisions of a specific Rule will be deemed to be an irregular step. Defendant may thus apply to set aside the summons as an irregular proceeding. See Rule 19(2) and SGU10.7. (iii) The plaintiff claims payment of a specific amount from the defendant in terms of an agreement on which the defendant would be liable for such payment if a certain Z were to fail to pay this amount. In the particulars of claim the plaintiff does not alleg e that Z has failed to pay the amount. (2) The pleading as drafted discloses no cause of action. A party may except to the pleading if it discloses no cause of action or defence. On the given facts the plaintiff does not allege that Z failed to pay the amount (thus making the defendant liable); therefore the defendant may except to the plaintiff’s particulars of claim. See SGU 10.5. (iv) The plaintiff issues summons against the defendant in the Cape High Court in the amount of R700 000 for damages resulting from a motorcar collision. The court grants judgment in the amount of R300 000. The defendant subsequently moves to Pretoria and issued by the plaintiff in the Pretoria High Court for the balance of the claim, namely R400 000. (2) Special plea of res iudicata. There has been final judgment on t he same matter and the matter cannot be raised again in the same or a different court. See SGU 10.6.2.2. (v) Because it appears that B wishes to flee the country so as not to abide the judgment of the court, X applies for the arrest of B ’s person ad fundandam iurisdictionem . (2) In the first instance the procedure is incorrect: arrest ad fundandam iurisdictionem was in the past used to vest a court with jurisdiction, and arrest tanquam s uspectus de fuga should have been used. Secondly, this procedure has been ruled unconstitutional by the Constitutional Court in Malachi v Cape Dance Academy International (Pty) Ltd 2010 6 SA 1 (CC) in relation to section 30 (3) of the Magistrates’ Cou rt Act, 1944. Although this decision does not affect Uniform Rule 9 directly, one can expect such a ruling in respect of the High Court too if the matter is raised (see Bid case whe re “arrest” was ruled unconstitutional since it impacts a person’s freedom). See Tutorial Letter 103/3/2012.