CIV3701 Exam Prep 2021.

CIV3701 EXAM PREP Assignment 1: Semester 1 Question 1 X has a claim against Z in the amount of R600 000 based on breach of contract which occurred in Cape Town. X is an incola of Cape Town and Z is an incola of Pretoria. With these facts in mind, answer the following questions. Give full reasons for your answers. (a) Explain why it will be inappropriate for X to use an ordinary application to institute proceedings against Z. (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. On the given facts, a breach of contract case involves a material dispute of fact. Since such a dispute can only be resolved by hearing oral evidence, combined summons will be appropriate. See study guide unit 12.6.2 and 12.6.3. and Pete et al 145–149. (b) Explain why X can institute proceedings against Z in the Cape Town High Court. (2) In regard to a claim relating to a contract, the court in whose area of jurisdiction the contract was concluded or where the contract was to be performed, either in whole or in part will have jurisdiction. This is known as the exercise of jurisdiction ratione contractus. (Under common law, this falls within the ambit of ratione rei gestae). On the given facts, the breach of contract occurred in Cape Town, therefore, the Western Cape High Court, Cape Town will have jurisdiction to institutes the proceedings ratione contractus. See study guide unit 6.1 and 8.2. (c) Would your answer to (b) above differ if Z was a foreign peregrinus of the Republic? (4) Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a South African court will exercise jurisdiction over such a person only after attachment of his or her property has taken place, attachment ad confirmandam jurisdictionem (requiring the cause of action to have occurred within the particular court’s area of jurisdiction apart from attachment). On the given facts, the defendant is a peregrinus of the whole Republic, the cause of action (breach) occurred in Cape Town and there is no attachable property within the Republic, especially within the Cape Town area of jurisdiction. In this instance it is irrelevant whether the plaintiff is an incola or peregrinus of the court. The attachment confirms or strengthens the partial or imperfect jurisdiction that the court has by reasons of the fact that the cause of action arose within its area. Therefore, the Western Cape High Court Local Division, Cape Town will not have jurisdiction on the basis of attachment ad confirmandum, since there is no attachable property within the Republic, especially in the Cape Town area of jurisdiction. See study guide unit 8.4 and Pete et al 109–112 (d) Would your answer to (b) above differ if the claim related to the registration of fixed property, and the property was situated in Johannesburg? (2) In regard to a claim relating to immovable property, the court where the immovable property is situated has exclusive jurisdiction in actions to determine the title to immovable property or the transfer of property. This is known as the exercise of jurisdiction ratione rei sitae. On the given facts, the property is situated in Johannesburg. Therefore, the Johannesburg High Court will have jurisdiction for the claim on registration of the house ratione rei sitae. Question 2 J and T are married to each other and are domiciled in Lesotho. After having been married to each other for a period of eight years, J wishes to divorce his wife, T. At the time of the institution of the divorce proceedings, J had been living in Pretoria for ten months while T remained in Lesotho. With these facts in mind, answer the following questions. Give full reasons for your answers. (a) Will the Pretoria High Court have jurisdiction to hear the action for divorce? (3) The Divorce Act of 1979 establishes domicile and residence as two separate grounds for divorce jurisdiction. Thus, in terms of section 2(1)(a) of the Divorce Act of 1979 read with section 1(1) of the Domicile Act 1992, a court may exercise divorce jurisdiction where both or either of the spouses are/is domiciled or resident (not “and”) in the area of jurisdiction of a High Court on the date on which the action is instituted. However, according to section 2(1)(b), a court will have jurisdiction over proceedings if the period of residence is not less than one year within the Republic immediately prior to the action. On the given facts, J is an ordinary residence in the Republic for a period of less than one year. Accordingly, the High Court in Pretoria, is not competent to exercise jurisdiction in terms of section 2(1)(b) over the divorce action. See study guide unit 10.3 and Pete et al 113. (b) If J decides to issue summons against T, explain how the summons will be served on T. (2) Summons will be served by means of edictal citation. Edictal citation is a form of service that is effected on a defendant who is believed to be outside the Republic. The service is effected by a person in the foreign country who is authorised by the law of such country to serve processes and documents. See study guide unit 14.2.3 and Pete et al 142–143.