2022 OCTOBER EXAM SOLUTIONS - Civil Procedure (CIV3701)

INTRODUCTORY STUDIES QUESTION 1 (a) Briefly explain the main characteristics of the adversarial system of civil procedure. (4) (b) Name any three (3) characteristics of court annexed mediation. (3) (c) Briefly explain the concurrent jurisdiction the High Court has with the Constitutional Court. (4) (d) Briefly explain the difference between domicile and residence. (4) [15] HIGH COURT JURISDICTION AND PROCEDURE QUESTION 2 (a) Y is an incola of Durban. Z wishes to commence proceedings against Y but is not sure what to do as she discovers that Y’s employer has sent Y to manage a project in Cape Town for three (3) months. With these facts in mind, answer the following questions: (i) May Z issue summons against Y in the Durban High Court under these circumstances. Give full reasons. (3) (ii) If Z decides to issue summons in the Durban High Court, would it be possible for the summons to be served of Y in Cape Town? Explain fully. (3) (iii) Y owns immovable property in Durban and Z decides to approach the Durban High Court for an order to attach this property. Fully explain whether Z may be able to do so or not. (4) (b) R and S are married to each other. They are both domiciled in Nigeria. R, the husband is sent by his employer to manage a project that his company has undertaken to perform in Cape Town. Having lived in Cape Town for eighteen (18) months, R decides to divorce S. S, the wife remains in Nigeria. With reference to the above facts, answer the following questions fully. (i) May R institutes divorce proceedings in Cape Town after residing there for 10 months? (2) (iii) Explain fully whether S may institute divorce proceedings in a Cape Town district or regional magistrate’s court? (3) [15] QUESTION 3 (a) The plaintiff has served simple summons on your client who instructs you to defend the matter. The period allowed in the Uniform Rules of Court for the plaintiff to file a declaration has since lapsed. What is the next procedural step that you would advise your client to take? Motivate your answer. (3) (b) In an application for summary judgement the defendant is granted leave to defend the matter by the court. Would your client, the plaintiff, who is not satisfied with the order, be able to lodge an appeal? Briefly motivate your answer. (3) (c) When are pleadings considered closed in the High Court? (4) (d) Discuss five functions of pleadings. (5) (e) Briefly explain the concept of “common law tender”. (5) [20] Confidential CIV3701 Page 8 of 9 October/November 2022 [TURN OVER] MAGISTRATES’ COURTS JURISDICTION AND PROCEDURE QUESTION 4 (a) 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 must 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. (i) Will the magistrates’ court situated in Pretoria have jurisdiction to hear the action instituted by Donald against Sipho? (2) (ii) 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) (iii) Would any district magistrates’ court have jurisdiction to hear the action if the amount of the claim was R 215 000 and Y owed X an admitted debt for R35 000? (5) (iv) Would a regional magistrate’s court have jurisdiction if, in the same summons, Y claims R215 000, R 250 000 and R 310 000, and each claim for breach of contract was based on a separate account for goods sold and delivered? (2) (v) What is the jurisdictional purpose of section 46 of the Magistrates’ Courts Act? (1) (vi) 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) (b) Briefly explain the importance of a pre-trial conference in a magistrate’s court. (3) (c) Name three remedies available to the party requesting further particulars for trial where the other party fails to furnish particulars timeously or sufficiently. (3) [20] QUESTION 5 (a) Advise your client B, on what action should be taken in the following circumstances: (i) B is a defendant in an action in which a plaintiff is claiming repayment of a loan which was due and payable in 2012, the action was instituted in 2021. He has entered an appearance to defend. (1) (ii) B is the defendant in an action where summons was served on him which he considered to be vague and embarrassing. He has entered an appearance to defend. (2) (iii) B is a defendant in an action relating to a motor collision. The plaintiff has claimed R90 000 as a result of damages to the motor vehicle. B considers himself to be 50% liable for the collision and he has R40 000 available. B has entered an appearance to defend and does not have a counterclaim as his vehicle was not damaged. (2) (b) B owns property in Durban, which she has rented to A. The monthly rental is R30 000. A is four months in arrears, and B suspects that A plans to leave the property to avoid paying the arrear rentals in the amount of R120 000. Advise B regarding the steps she may take to recover payment of the arrear rental. (5) [10] Confidential CIV3701 Page 9 of 9 October/November 2022 [TURN OVER] APPEAL, REVIEW AND VARIATION OF JUDGMENT QUESTION 6 (a) A magistrate has granted a judgement in favour of the plaintiff. The defendant has delivered a notice of appeal. You believe that the defendant will be successful. Name two things the plaintiff can do in order to try and save costs. (2) (b) Name four grounds upon which a judgment will be set aside in terms of common law. (4) (c) Name three circumstances where the court will not remit the matter to a particular body whose proceedings are reviewed. (6) (d) Name four grounds for review in terms of section 22(1) of the Superior Court Act, 2013. (4) (e) Briefly explain the procedural steps to be followed for an appeal from the magistrates’ court to High Court. (4) [20] TOTAL: [100] © Unisa