CIV3701 EXAM PACK 2021.

2020 – SEMESTER 1 – ASSIGNMENTS WITH MEM0S QUESTION 1 Peter is domiciled in Pretoria. While on a holiday in Durban, Peter is involved in a motor vehicle accident with Portia who failed to stop at a stop street. Portia is domiciled in Johannesburg and owns a flat in Cape Town. Peter suffered damages to this vehicle due to the collision in the amount of R500 000. Bear these facts in mind and answer the following questions. Give full reasons for each answer. (a) May Peter institute proceedings for damages against Portia in the Johannesburg High Court? (2) When a defendant is domiciled or resident within the Republic, he or she is an incola of the Republic, and the court where the defendant is domiciled, or resident will have jurisdiction to hear the matter based on the principle actor sequitur forum rei. In this instance, the defendant is domiciled in Johannesburg and therefore, the Johannesburg court will have jurisdiction ratione domicilii. (See study guide unit 6.1 and 8.2.) (b) May Peter institute proceedings for damages against Portia in the Durban High Court? (1) Under common law, a court will be vested with jurisdiction in respect of monetary claims ratione rei gestae if the delict on which the claim is based was committed within a court’s area of jurisdiction. On the given facts, the delict (a motor vehicle accident) occurred in Durban, and Peter may thus institute proceedings. The Durban court will have jurisdiction ratione delicti commissi. (See study guide unit 6.1.) (1) (c) May Peter institute proceedings for damages against Portia in the Cape Town High Court? (2) Where a defendant is neither domiciled, nor resident in the jurisdictional area of the court concerned, such defendant is a peregrinus of that particular court, but because he or she is still domiciled or resident somewhere in the Republic, such defendant is termed a local peregrinus, and the usual common-law jurisdiction principles still apply. On the given facts, Peter may not institute action in the Cape Town High Court, as there is no jurisdictional nexus to the court (the defendant is neither domiciled, nor resident in Cape Town and the cause of action did not arise within the court’s area of jurisdiction). The mere fact that Portia’s property is situated in the court’s area of jurisdiction provides no nexus, as the claim is one sou nding in money, and not a property claim. (See study guide unit 8.3.) (d) Will the Pretoria High Court be competent to exercise jurisdiction if, on the same facts, Portia is now an American citizen who is domiciled in New York and the flat is situated in Pretoria? (4) Where a defendant is neither domiciled nor resident within the borders of the Republic, such defendant is a foreign peregrinus. In instances where the defendant is a peregrinus of the whole Republic, a court will assume jurisdiction only if attachment of the defendant’s property occurs. One such form of attachment is when the plaintiff is an incola of the court concerned and attachment of the defendant’s property has taken place (this is known as 3 attachment ad fundandam iurisdictionem). For an order of attachment to found ANNEjuXrUisRdiEct1ion, it is not necessary for the cause of action to have arisen within the court’s area of jurisdiction: attachment ad fundandam iurisdictionen alone constitutes the ground on which the assumption of jurisdiction is justified. On the given facts, the defendant is a peregrinus of the Republic of South Africa and has attachable immovable property (a flat) situated within the Pretoria High Court’s jurisdictional area. Therefore, the Pretoria High Court will have jurisdiction to hear the matter ad fundandam iurisdictionem. (See study guide unit 8.4.2.) (4) COMMENT: From the above, you will note that a particular approach was adopted in answering the questions: we started off by stating the applicable legal principle(s), then we applied the legal principle(s) to the given facts, and finally we reached a conclusion. This method ensures a logical and well-constructed answer, and we strongly suggest that you adopt this approach when answering all problem-type questions. QUESTION 2 Donald, who lives in Pietermaritzburg, buys electronic equipment from Sipho, who lives in Pretoria. The contract is concluded in Johannesburg and the equipment is stored in a warehouse next to the harbour in Durban, where delivery mu st take place. Donald pays Sipho R180 000 for the equipment, but Sipho, despite demand, fails to deliver the equipment to Donald. Bearing these facts in mind, answer the following questions. Give full reasons for each answer. (a) Will the magistrates’ court situated in Johannesburg have jurisdiction to hear the action instituted by Donald against Sipho? (3) Section 28(1)(d) of the Magistrates’ Court Act 32 of 1944 provides that a magistrates’ court will have jurisdiction over a person if the cause of action arose “wholly” within the area of a district or regional division. Case law has interpreted this to mean that in respect of contractual claims, not only must the contract have been concluded within the district or regional division concerned, but the breach must have occurred there as well for the court to have jurisdiction. On the given facts, the contract was concluded in Johannesburg, but the breach of contract occurred in Durban. Therefore, the Johannesburg (district) magistrates’ court will not have jurisdiction in terms of section 28(1)(d) of the Act, as the cause of action did not “wholly” arise within this court’s area of jurisdiction. (See study guide unit 11.4.2.) (3) (b) Will the magistrates’ court situated in Pretoria have jurisdiction to hear the action instituted by Donald against Sipho? (1) Section 28(1)(a) of the Magistrates’ Court Act 32 of 1944 provides that a magistrates’ court will have jurisdiction to hear the matter in respect of any person who “resides, carries on business or is employed” within its district or regional 4 division. On the given facts, the defendant “resides” in Pretoria, and therefore, the Pretoria (district) magistrates’ court will have jurisdiction in terms of section 28(1)(a) of the Act to hear the matter. (See study guide unit 11. 4.2.) (c) Will the magistrates’ court situated in Durban have jurisdiction to hear the action instituted by Donald in terms of section 28(1)(g) of the Magistrates’ Courts Act 32 of 1944? (2) Section 28(1)(g) of the Magistrates’ Court Act 32 of 1944 provides that the magistrates’ court will have jurisdiction to hear a matter in respect of any person who owns immovable property within the district or regional division in actions in respect of such property or in respect of the mortgage bonds thereon (our emphasis). On the given facts, the matter is clearly of a contractual nature and does not relate to immovable property within the district or regional division as required by section 28(1)(g) of the Act. Therefore, the Durban magistrates’ court will not have jurisdiction in terms of this section. (See study guide unit 11.4.2.) (d) Will any magistrates’ court have jurisdiction to hear the action instituted by Donald to force Sipho to deliver the equipment to him without claiming damages in the alternative? (2) A magistrates’ court is prohibited by section 46 of the Magistrates’ Court Act 32 of 1944 to adjudicate matters in which specific performance is sought without an alternative claim for payment of damages. However, this prohibition is subject to the exceptions contained in section 46(2)(c)(i)-(iii), and does therefore not apply when the delivery or transfer of property, movable or immovable, and not exceeding in value of the amount determined by the Minister from time to time by notice in the Gazette, is claimed. “Specific performance” has been interpreted by the courts to refer to the performance of a contractual act only. Equipment is clearly movable property, and as its delivery falls within the exception provided for in section 46(2)(c)(ii), the court may, on the given facts, make an order directing a defendant to deliver the equipment. (See study guide unit 11.2.3.2.) (2) QUESTION 3 Z wishes to issue summons against his neighbour, B, for defamation. Answer the following questions. Give reasons for your answers where required. (a) Explain why Z may not use an ordinary application to institute action against B. (2) 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 th at 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. (See study guide unit 12.6.2 and