CIV3701 CIP3701
TUTORIALS TUTORIALS
2020 SEM 1 2017 SEM 1
2019 SEM 1 2017 SEM 2
2019 SEM 2 2016 SEM 1
2018 SEM 1 2016 SEM 2
2018 SEM 2 2015 SEM 1
2015 SEM 2
2014 One of the semesters
2013 One of the semesters
CIP3701 EXAM PAPERS
NOV 2017---- TODD
NOV 2016
NOV 2015
JUNE 2015
JUNE 2014
NOV 2013
JUNE 2013
CIV3701 EXAM PAPERS
NOV 2019 --- MEL
JUNE 2019--- EMMA
NOV 2018--- LUKIE
JUNE 2018 PAPER 1—BRITT
JUNE 2018 PAPER 2 - JACKY
ADDITIONAL STUFF:
o SAMPLE PAPER – UNISA ANSWERS
o CIVIL PROCEDURE QUESTIONS AND ANSWERS PACK ONE
o CIVIL PROCEDURE QUESTIONS AND ANSWERS PACK TWO LATEST
CLS Q
o CIV3701 -CIVIL PRODEDURE REVISION STUDY PACK 2019
2020 – SEMESTER 1 – Assignment 1
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
attachment ad fundandam iurisdictionem). For an order of attachment to found
jurisdiction, 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 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 12.6.3.)
(b) If B gives notice of intention to defend within the dies induciae, explain fully why Z
may not apply for summary judgment. (2)
Rule 32 of the Uniform Rules of Court and magistrates’ courts rule 14 set out the types of
claim in respect of which summary judgment may be applied for. Damages are claimed in a
defamation case, and the nature of such a claim is unliquidated. (These types of claim also fall
within the definition of a “debt or liquidated demand”.) A claim for damages clearly falls outside
the categories of claims contained in the said court rules, and therefore Z may not apply for
summary judgment. Furthermore, the rules of court provide that a plaintiff may only after
receipt of a plea on the merits apply for summary judgment. This provides a second reason
why Z cannot apply for summary judgment. (See study guide unit 23.4.)
(c) B does not wish to continue litigating, and wishes to end the litigation as
soon as possible, but without paying the full amount of the claim. Advise
B how to achieve this objective.(1)
B may offer to settle either in terms of Uniform Rule 34 or magistrates’
courts Rule 18.
(d) Briefly explain to Z and B what the purpose is of a pre-trial conference in
terms of Uniform Rule 37.(1)
The primary purpose of Uniform Rule 37 is the shortening of the trial (thus
promoting the effective disposal of litigation). (See study guide unit 24.4.2.)
(e) When the trial starts, Z learns that an important witness is in the hospital
and unable to testify in court. Advise Z of any two possible methods by
which a witness may place his or her evidence before court.(2)
Other methods by which evidence may be given if a witness cannot give
evidence in person, are –
by affidavit;
on commission; and
by way of interrogatories.
Note: Naturally, factual and practical considerations will determine the most appropriate method
to be used in practice. (See study guide unit 24.5.2.)
2020 – SEMESTER 1 – Assignment 2
TUTORIALS TUTORIALS
2020 SEM 1 2017 SEM 1
2019 SEM 1 2017 SEM 2
2019 SEM 2 2016 SEM 1
2018 SEM 1 2016 SEM 2
2018 SEM 2 2015 SEM 1
2015 SEM 2
2014 One of the semesters
2013 One of the semesters
CIP3701 EXAM PAPERS
NOV 2017---- TODD
NOV 2016
NOV 2015
JUNE 2015
JUNE 2014
NOV 2013
JUNE 2013
CIV3701 EXAM PAPERS
NOV 2019 --- MEL
JUNE 2019--- EMMA
NOV 2018--- LUKIE
JUNE 2018 PAPER 1—BRITT
JUNE 2018 PAPER 2 - JACKY
ADDITIONAL STUFF:
o SAMPLE PAPER – UNISA ANSWERS
o CIVIL PROCEDURE QUESTIONS AND ANSWERS PACK ONE
o CIVIL PROCEDURE QUESTIONS AND ANSWERS PACK TWO LATEST
CLS Q
o CIV3701 -CIVIL PRODEDURE REVISION STUDY PACK 2019
2020 – SEMESTER 1 – Assignment 1
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
attachment ad fundandam iurisdictionem). For an order of attachment to found
jurisdiction, 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 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 12.6.3.)
(b) If B gives notice of intention to defend within the dies induciae, explain fully why Z
may not apply for summary judgment. (2)
Rule 32 of the Uniform Rules of Court and magistrates’ courts rule 14 set out the types of
claim in respect of which summary judgment may be applied for. Damages are claimed in a
defamation case, and the nature of such a claim is unliquidated. (These types of claim also fall
within the definition of a “debt or liquidated demand”.) A claim for damages clearly falls outside
the categories of claims contained in the said court rules, and therefore Z may not apply for
summary judgment. Furthermore, the rules of court provide that a plaintiff may only after
receipt of a plea on the merits apply for summary judgment. This provides a second reason
why Z cannot apply for summary judgment. (See study guide unit 23.4.)
(c) B does not wish to continue litigating, and wishes to end the litigation as
soon as possible, but without paying the full amount of the claim. Advise
B how to achieve this objective.(1)
B may offer to settle either in terms of Uniform Rule 34 or magistrates’
courts Rule 18.
(d) Briefly explain to Z and B what the purpose is of a pre-trial conference in
terms of Uniform Rule 37.(1)
The primary purpose of Uniform Rule 37 is the shortening of the trial (thus
promoting the effective disposal of litigation). (See study guide unit 24.4.2.)
(e) When the trial starts, Z learns that an important witness is in the hospital
and unable to testify in court. Advise Z of any two possible methods by
which a witness may place his or her evidence before court.(2)
Other methods by which evidence may be given if a witness cannot give
evidence in person, are –
by affidavit;
on commission; and
by way of interrogatories.
Note: Naturally, factual and practical considerations will determine the most appropriate method
to be used in practice. (See study guide unit 24.5.2.)
2020 – SEMESTER 1 – Assignment 2
