CIV3701-mcqa_combined

Civil Procedure MODULE 2 : CIP3701 Multi Choice Type Question & Answers S1 2014 - CIP3701/101/3/2014 ASSIGNMENT 02 : Unique number: QUESTION 1 M issues summons against N for damages as a result of breach of contract. The nature of the claim that M has against N is — Indicate the most accurate statement. (1) a liquidated claim (2) an illiquid claim (3) an unliquidated claim (4) a liquid claim QUESTION 2 The facts in Question 1 remain the same. In order to commence proceedings, M must issue one of the following summonses: Indicate the most accurate statement. (1) an illiquid summons (2) a combined summons 14 (3) a simple summons (4) a provisional sentence summons QUESTION 3 Determine which of the following groups of procedures are not related to each other: (1) default judgment and summary dismissal (2) an exception and an application to strike out (3) an ex parte application and a rule nisi (4) a notice of motion and a declaration QUESTION 4 Indicate the most accurate statement. 2 (1) One of the rules for the drafting of processes is that only facts, and not the law, must be pleaded. (2) To be defined as a liquid document, payment of the debt must be unconditional and must appear ex facie the document. (3) In the High Court, the amount tendered in settlement need only be available for payment and need not be paid into court. (4) The Uniform Rules of Court provide that the plaintiff has the sole responsibility to apply for the set-down of a matter. QUESTION 5 Indicate the most accurate statement. In the High Courts the position is as follows: (1) Pleadings are deemed closed only after the plaintiff has filed his or her replication. (2) In reply to a defendant’s counterclaim, a defendant in reconvention may file a replication in reconvention. (3) An exception may be lodged only against a declaration or particulars of claim. (4) It is possible to inspect a clearly specified document or tape recording in a party’s possession and relating to a reasonably anticipated issue in the action before the close of pleadings. CIP3701/101 15 QUESTION 6 Indicate the most accurate statement. Summary judgment is relevant in the following circumstances: (1) where the defendant gives notice of his intention to defend on time (2) where the defendant fails to timeously deliver a notice of intention to defend (3) where the defendant has no bona fide defence to the plaintiff’s claim (4) where the action was instituted by means of a provisional sentence summons QUESTION 7 Indicate the most accurate statement. 3 (1) Some of the items of property exempt from execution in terms of section 67 of the Magistrates’ Courts Act 32 of 1944 are “professional books, documents or instruments necessarily used by the debtor” in his or her profession, in so far as the value of these items does not exceed R2 000. The most accurate statement is: (1) Section 67 specifically excludes these items from execution. (See study unit 29 and activity question 2 at the end thereof). (2) A cost order de bonis propriis is granted if a party to the action has been guilty of bad behaviour in conducting the action. Option (2) is incorrect, in that costs de bonis propriis are costs which the court directs the unsuccessful party to pay out of his or her own pocket, where he or she instituted proceedings or defended the matter in a representative capacity (for example, as attorney or executor). This usually applies where the litigation in question was conducted in a mala fide, negligent or unreasonable manner. (See study unit 28). (3) The National Credit Act 34 of 2005 requires a written notice by way of a summons to be properly served on the defendant. Option (3) is incorrect, because the plaintiff must send a notice as contemplated in section 129(1) of the National Credit Act, 2005. There is no provision indicating that a summons must be used. (See section 129(1) of the National Credit Act, 2005). (4) The plaintiff’s summons must contain a reference to section 26(1) of the Constitution in instances where he or she seeks an order for movable property to be declared executable in the magistrates’ court. Option (4) is incorrect, in that such a notice is required in the instance of a summons in which an order is sought to declare, immovable property, which is the home of the defendant, executable. (See study unit 18). 4 QUESTION 8 Indicate the most accurate statement. (1) The National Credit Act 34 of 2005 requires that the debt collection process must start with a letter of demand. (2) The request for further particulars in the magistrates’ court is meant only to allow a party to prepare a plea on the merits. (3) An exception in the magistrates’ court is raised on a pleading which contains scandalous or vexatious allegations. (4) A replication or subsequent pleading, which would amount to a mere denial of allegations in the previous pleading, is unnecessary and pleadings will be deemed closed in terms of rule 21A(b) of the Magistrates’ Court Rules.16