CIV3701/201/1/2024

Tutorial Letter 201/1/2024

CIVIL PROCEDURE
CIV3701

Semester 1

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
This tutorial letter contains the commentary on the assignment 01 for CIV3701-24-
S1.

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Open Rubric
 CONTENTS

1 INTRODUCTORY REMARKS

2 COMMENTARY ON ASSIGNMENT 01

3 COMMENTARY ON ASSIGNMENT 02

4 EXAMINATION INSTRUCTIONS

5 CONCLUDING REMARKS

1. INTRODUCTORY REMARKS

This tutorial letter contains commentary on assignments 01 and assignment 02. Please
study the feedback carefully and follow up on the study unit references.

A number of students obtained satisfactory marks for this assignment. However, a good
mark for this assignment does not mean that you have mastered the work, as you completed
the assignment with an open study guide next to you.

Please note the extent of the answers, as well as the presentation of the answers. Time and
again, students phone us after an examination and express amazement at the fact that they
failed the module. When perusing their scripts, we find that they wrote very little in their
answers or that they did not follow the instructions contained in the questions. If you write
very little when answering the questions, there is very little for us to mark, and if you answer
the question only halfway, only that half can be assessed! In the examination there is a direct
correlation between a question’s mark allocation and the expected content of the answer.

2. COMMENTARY ON ASSIGNMENT 01

QUESTION 1

(a) The constitution has In broad terms, civil litigation can no longer be conducted without
considering the values embodied in section 36 of the Constitution (1) (i.e., that
Chapter 2 rights may only be limited if reasonable and justifiable in an open and
democratic society), as Chapter 2 rights apply to “all law”. (1) In civil procedural
context important areas are equality before the law; the right to freedom and security;
property; the right of access to adequate housing; access to court. See study guide
unit 3.7 and Pete et al 12. (2)

(b) The small claims courts have been made more accessible and user friendly in the
following aspect:

• These are: Representation of a litigant by a legal practitioner is forbidden in

order to keep legal costs to a minimum (1)
• Pre-trial formalities have been simplified and reduced to barest essentials (1)

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• The commissioner performs an active, inquisitorial role and assists litigants in

the presentation of their respective cases. (1)
• See study guide unit 4.6 and Pete et al 551-562 (3)
[5

QUESTION 2

(a) Since the defendant is a foreign peregrinus, a court will generally only have
jurisdiction to hear an action against such defendant if the defendant has attachable
property. There are two forms of attachment: attachment ad fundandam
iurisdictionem (which requires that the plaintiff must be an incola of the court
concerned plus the attachment of the property) (and attachment ad confirmandam
iurisdictionem (which requires that the cause of action must have occurred in the area
of the court concerned plus the attachment of property).

In the present instance, the cause of action (breach of contract) occurred in

Johannesburg, the plaintiff is an incola of the Johannesburg court, and the defendant
owns attachable property (the flat) which is situated in Johannesburg (thus in the
court’s area of jurisdiction). Consequently, the plaintiff will succeed with an application
to the Johannesburg court for attachment of the defendant’s property both ad
fundandam iurisdictionem and ad confirmandam iurisdictionem. See study guide unit
8.4 and Pete et al 128-135. (4)

(b)(i) It must be determined whether the rights of another person than the applicant may
be affected by any order in the proceedings or has any party have interest in any
such order, in which event notice must be given to such other party. See study guide
unit 15.2 and Pete et al 179. (2)

(ii) Lerato may lodge an ex parte application as only her rights are affected and only she
has an interest in the order in the proceedings. See study guide unit 15.2.1 and Pete
et al 182. (2)

(iii) These are: Notice of Motion and founding Affidavit. See study guide unit 15.3.2 and
Pete et al 182-186. (2)
[10]

QUESTION 3

(a)(i) The purpose of the letter of demand is to inform the prospective opposing party about
the nature and content of the claim against him/her, what action is required (and the
consequences in the event of failure to comply), in order to convince such person to
meet his/her obligations in order to avoid litigation. See study guide unit 12.4 and
Pete et al 143-148. (1)

(ii) Substituted service: this form of service is used when a person is believed to be within
the borders of the Republic, but the person's particular whereabouts are unknown.
See study guide unit 14.2.2 and Pete et al 166. (2)

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 (iii) In terms of the Uniform Rules of Court (Rule 7(1) the filing of a power of attorney is
not required for the issuing of a summons. However, it is required for the conduct of
or defence of a civil appeal (Rules 7(2) and 7(3)). See study guide unit 12.3.1 and
Pete et al 64-70. (2)

Marking guidance: You may award half a mark if students state that a power of
attorney must be filed/presented if an attorney's authority to act is disputed.
(b) Traditionally, orders for “specific performance” were granted by the High Court only
as they were deemed competent to make such orders. Section 46(2)(c) of the MCA
confirms this position, but two questions have arisen: Does the phrase relate to
performance in terms of a contract only, or does it relate to performance in general?
Could payment of money amount to specific performance?

The phrase was considered in various decided cases. In Maisel v Camberleigh Court
(Pty) Ltd 1953 4 SA 371 (C) it was held that the words were limited to the performance
of an act that was contractually undertaken to perform.

In Tuckers Land and Development Corporation (Edms) Bpk v Van Zyl 1977 3 SA
1041 (T) it was held that a claim for payment of a purchase price (although strictly
speaking a claim for specific performance) was not a claim for specific performance
in terms of this section and that a claim sounding in money can never be a claim for
specific performance.

The final result of these cases is that this subsection applies only where there is a
claim for specific performance of a contractual act as undertaken to be done (e.g., to
build a wall).See study guide unit 11.2.3.1 and Pete et al 95-98. (5)
[10]
TOTAL [25]

3. COMMENTARY ON ASSIGNMENT 02

QUESTION 1

The most accurate statement is: (4)

Section 167(4) of the Constitution, 1996 sets out the matters in respect of which the
Constitutional Court has exclusive jurisdiction. The disputes referred to in this particular
instance is contained in section 167(4)(a) and may thus only be heard by the Constitutional
Court. (See Pete et al 8-9 and study guide unit 4.1.)

Statement (1) is incorrect. Section 168 of the Constitution, 1996 provides that the Supreme
Court of Appeal may decide appeals in any matter arising from the High Court or a court of
similar status (except in respect of labour or competition matters), provided it is an appeal.
The Supreme Court of Appeal may hear appeals on both constitutional and non-
constitutional matters. Also, section 167(5) of the Constitution, 1996 provides that any
finding regarding the constitutionality of legislation or the conduct of the President will only
have any force after the order has been confirmed by the Constitutional Court. The wording
of this section clearly envisages such a finding by a court other than the Constitutional Court.
(See Pete et al 8 and study guide unit 4.2 and 28.3.3.)

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Statement (2) is incorrect. Section 167(4) of the Constitution, 1996 does not make provision
for exclusive jurisdiction in this regard. In fact, section 8 of the Constitution, 1996 specifically
provides that the Bill of Rights “applies to all law, and binds … the judiciary …”. Furthermore,
section 8(3) provides that when applying a provision of the Bill of Rights in order to give
effect to a right in the Bill, “… a court…” must apply (and develop, if necessary) the common
law. (See Pete et al 8 and study guide unit 4.2 and 5.3.)

Statement (3) is incorrect. Section 170 of the Constitution, 1996 does not confer any
constitutional jurisdiction upon magistrates’ courts but provides that legislation may confer
constitutional jurisdiction of these courts, provided that it does not confer jurisdiction to
determine the validity of “any legislation or any conduct of the President”. Furthermore,
section 110 of the Magistrates’ Courts Act 32 of 1944 provides that these courts may not
pronounce on the validity of “any law” or on the validity of any conduct of the President. (See
Pete et al 3 and study guide unit 4.4.)

QUESTION 2

The most accurate statement is: (4)

Section 15(a) of the Small Claims Courts Act 61 of 1984 provides for actions for the delivery
or transfer of any property, movable or immovable, which does not exceed the quantitative
jurisdiction of the court. The quantitative jurisdiction is currently set at R20 000. (See Pete
et al 552; section 15 of the Small Claims Courts Act 61 of 1984; and Study Guide unit 4.5.)

Statement (1) is incorrect. Small claims courts are not inferior courts; they are simply courts
that appear lower down in the hierarchical structure of the court system. The low value of
the claims can also not be seen to indicate an inferior status – the purpose of these courts
is to improve access to justice by creating a forum for the settling of minor civil disputes in a
speedy and cost-effective manner. A wide range of matters are heard in these courts, and
the legal issues involved are not necessarily simple, despite the low value. (See Pete et al
552 and Study Guide unit 3.4.7.)

Statement (2) is incorrect. Party presentation is one of the cornerstones of the adversarial
system. Although the relationship between the litigants in a small claims court remains
adversarial, compared to the other courts, the small claims courts are more inquisitorial by
nature, inter alia because the commissioner plays an active role in assisting the litigants to
present their respective cases at the trial. (See Pete et al 351 and Study Guide unit 3.1.)

Statement (3) is incorrect. In terms of section 26(3) of the Small Claims Courts Act 61 of
1984 a litigant in a small claims court may not question or cross-examine any other litigant
to the proceedings (or a witness called by such litigant). (See Pete et al 354 and study guide
unit 3.2.)

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QUESTION 3

The most accurate statement is: (3)

Interlocutory applications are brought purely by way of a notice. It is brought where a party
approach the court for a relief in respect of a matter relating to the proceedings that have
already been instituted. Therefore, only a notice is used to institute the proceedings. (See
Pete et al 155; Uniform Rule 6(11) and study guide unit 15.2.3.)

Statement (1) is incorrect. A rule nisi applies to ex parte applications as well as in urgent
applications. Where the right of other persons may be affected by any order granted in terms
of ex parte application, the court will not grant a final order, but it will issue a rule nisi. The
rule nisi is an order calling upon the respondent, or all other interested persons to show
cause on a day fixed in the rule known as “a return day of the rule nisi” why relief stated in
the rule nisi should not be made final. (See Pete et al 155-157 and study guide unit 15.2.1.)

Statement (2) is incorrect. An affidavit may not save in exceptional cases of urgency contain
hearsay evidence and if it does, the opposing party may apply to have the application struck
out of court. (See Pete et al 161. study guide unit 15.3.3.)

Statement (4) is incorrect. Notice of legal proceedings is facilitated by service of the

documentation personally by a party or his legal representative or by the sheriff. An urgent
application or ex parte application is the exception to the audi alteram partem rule that notice
of the litigation should be given to everyone whose rights may be affected by any order in
the legal proceedings or who has an interest in any such order. Uniform Rule 6(4) provides
that every application brought ex parte shall be filed with registrar and set down. The
application does not have to be served as only the interest of the applicant are affected by
the order. Uniform Rule 6(12)(a) provides that in an urgent application the court may
dispense with forms and service provided for in the rules and may dispose such matter at
such time and place and in a manner and in accordance with such procedure as it seems
meet. Therefore, all types of application are not served by the sheriff. (See Pete et al 157
and study guide unit 12.5; 15.2.3 and 15.2.5.)

QUESTION 4

The most accurate statement is: (4)

This statement satisfies all the requirements for attachment ad fundandam jurisdictionem.
In regard to attachment ad fundandam jurisdictionem, the following requirements must be
met:

• the defendant is a peregrinus of the whole Republic

• attachment of the defendant's property has taken place
• the plaintiff is an incola of the court concerned, even in instances where the cause of
action has arisen outside the court's area of jurisdiction. (See Pete et al 113-115 and
study guide unit 8.4.2.)

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Statement (1) is incorrect. In attachment ad fundandam jurisdictionem only the defendant

must be the peregrinus of the court concerned as well as of the republic. Where the cause
of action arose is irrelevant in this instance. (See Pete et al 113-115 and study guide unit
8.4.)

Statement (2) is incorrect. See comments under statement (1) above.

Statement (3) is incorrect. In attachment ad fundandam jurisdictionem the plaintiff must be

an incola of the court concerned. Where the cause of action arose is irrelevant in this
instance. (See Pete et al 113-115 and study guide unit 8.4.)

QUESTION 5

The most accurate statement is: (3)

The wording of section 2(1) of the Divorce Act 70 of 1979 makes it clear that a court shall
have jurisdiction if both or either of the parties comply or complies with the domicile or the
residence requirements: see section 2 that provides “… if the parties are or either of the
parties is …” (See Pete et al 87; 135-136 and study guide unit 10.3.)

COMMENT:

It is important to note that only one spouse needs to comply for the court to jurisdiction in
divorce matters in terms of section 2(1)(a) and (b) of Divorce Act 70 of 1979.

Statement (1) is incorrect. The provisions of section 2(1)(a) of Divorce Act 70 of 1979
requires that both or one spouse must be an ordinary resident in the area of jurisdiction of
the court on the said date. It is important to note that a court may exercise jurisdiction in the
case of a divorce if only one of the parties is either domiciled or resident in its area of
jurisdiction. (See Pete et al 87;135-136 and study guide unit 10.3.)

Statement (2) is incorrect. Domicile and residence are alternative grounds for jurisdiction:
note the wording of section 2 which refers to domicile ‘’or’’ residence as jurisdiction grounds.
(See Pete et al 87.135-136 and study guide unit 10.3.)

Statement (4) is incorrect. The provisions of section 2(1)(b) of Divorce Act 70 of 1979
requires that both or either of the parties must be an ordinary resident in the area of
jurisdiction of the court on the said date and must have been ordinary resident “in the
Republic for a period of not less than a one year immediately prior to that date”. (See Pete
et al 87;135-136 and study guide unit 10.3.)

QUESTION 6

The most accurate statement is: (4)

The magistrate’s court of Pietermaritzburg has jurisdiction based on section 28(1)(a) of the
Magistrates’ Courts Act 32 of 1944 (the Act) which provides that a court has jurisdiction over
a defendant who “resides, carries on business or is in the employ” within that court’s area of
jurisdiction. In this instance the defendant, C, lives in Pietermaritzburg, and therefore

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“resides” in terms of this section. Because the cause of action did not “wholly” arise in either
Durban or Bloemfontein (see below), Pietermaritzburg is the only court vested with
jurisdiction in terms of section 28 of the Act. (See Pete et al 98 and study guide unit 11.4.2.)

Statement (1) is incorrect. Although Pietermaritzburg does have jurisdiction to hear the
action (see statement (1) above), there is no ground of jurisdiction on which the magistrate’s
court of Johannesburg can exercise jurisdiction. Although section 28 of the Act refers to “any
person”, in all instances referred to in this section, “person” means the defendant only – the
position of the plaintiff is not relevant for jurisdictional purposes. (See Pete et al 98-100 and
study guide unit 11.4.1.)

Statement (2) is incorrect. Although Pietermaritzburg does have jurisdiction to hear the
action (see statement (1) above), there is no ground of jurisdiction on which the magistrate’s
court of Durban can exercise jurisdiction. Section 28(1)(d) of the Act provides that a
magistrate’s court will have jurisdiction over an action “if the cause of action arose wholly”
within the court’s area of jurisdiction. The meaning of “wholly” has been held by the courts
to mean, in the case of a contract, that the conclusion of the contract, as well as the breach
of contract must occur within the same court’s area of jurisdiction. In this instance, only the
conclusion of the contract occurred in Durban, and therefore the cause of action did not
“wholly” arise within the Durban court’s area of jurisdiction. (See Pete et al 105-108 and
study guide unit 11.4.2.)

Statement (3) is incorrect. As discussed in the commentary above, although the magistrate’s
court of Pietermaritzburg has jurisdiction, the Durban magistrate’s court does not. The
Bloemfontein magistrate’s court also does not have jurisdiction in terms of section 28(1)(d),
because only breach of contract (the failure to deliver the goods) occurred in Bloemfontein.
Again, the cause of action did not arise “wholly” in the court’s area of jurisdiction. (See study
Pete et al 105-108 and guide unit 11.4.2.)

QUESTION 7

The most accurate statement is: (2)

A defendant may consent to judgment for a smaller amount than claimed in the summons,
but he or she may then defend the action in respect of the balance of the claim. (See Pete
et al 480 study guide unit 22.2.)

Statement (1) is incorrect. Discovery is not only important in the magistrates’ court, but also
in the High Court because it enables a litigant to prepare for his or her trial. The procedure
does thus not in any way relate to the set-down of a matter for trial. (See Pete et al 315
study guide unit 24.2.)

Statement (3) is incorrect. Magistrates’ courts rule 16 clearly provides that unless such
further particulars as are strictly necessary to enable the requesting party to prepare for trial
is sought, further particulars may not be requested. Furthermore, it follows that a request for
further particulars may be requested only after close of pleadings. (See Pete et al 265-267
study guide unit 24.4.1.)

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Statement (4) is incorrect. Apart from the fact that parties may agree in writing that pleadings
are closed (magistrates’ courts rule 21A(c)), pleadings shall be considered closed if

- either party has joined issues without alleging any new matter, and without adding
any further pleading;
- the last day allowed for filing a replication or subsequent pleading has elapsed and it
has not been filed; or
- the parties are unable to agree as to the close of pleadings, and the court upon the
application of a party declares them closed. (See Pete et al 263-265 and 311 study
guide unit 20.4 and 24.2.)

QUESTION 8

The most accurate statement is: (1)

The Uniform Rules 34(14) provides that this rule shall apply mutatis mutandis where the
relief is claimed on motion or a claim in reconvention or in terms of Rule 13. An offer to settle
is thus clearly applicable also in application (motion) proceedings. (See Pete et al 480-484
study guide unit 22.2.)

Statement (2) is incorrect. Judgment is not “only” delivered at the end of a trial. There are
various instances in which a party may approach the court for judgment prior to a trial, such
as consent to judgment; default judgment and bar; summary judgment and summary
dismissal. (See Pete et al 284-307 and study guide unit 23.)

Statement (3) is incorrect. In terms of Uniform Rule 35(14) and magistrates’ courts rule 23
discovery may not be requested until after the close of pleadings. Discovery relates to all
documents and tape recordings relevant to any matter in dispute in the action. (See Pete et
al 314 and study guide unit 24.2.)

Statement (4) is incorrect. Although the general rule is that a witness must give evidence
viva voce (orally) and in open court (Uniform Rule 38(2)), there are exceptions to the rule
where special circumstances exist. A witness may then be allowed to give evidence in the
following ways: on commission; by way of interrogatories and by way of affidavit. (See Pete
et al 334 and study guide unit 24.5.2.)

QUESTION 9

The most accurate statement is: (3)

An appeal from a magistrates’ court may be noted against the following in terms of section
83 of the Magistrates’ courts Act:

(1) any judgement described in terms of section 48;

(2) any rule or order having the effect of a final judgment, including an order relating to
execution in terms of chapter IX of the Act and an order as to costs;

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(3) in any circumstances, any decision overruling an exception. (See study guide unit
28.2.1.)

Statement (1) is incorrect. A litigant who is not satisfied with a decision of a magistrates’
court, is allowed one appeal as of right. As such, a litigant does not need to apply for leave
to appeal. (See Pete et al 408 and study guide unit 28.1.)

Statement (2) is incorrect. Section 14(3) of the Superior Courts Act, 2013 provides that a
court hearing an appeal from a lower court consists of two judges. (See Pete et al 408 and
study guide unit 28.2.1.)

Statement (4) is incorrect. Section 167(4) of the Constitution provides that the Constitutional
Court has exclusive jurisdiction. The Constitutional Court is the highest court of appeal in
respect of both constitutional and non-constitutional matters (s 167(3)(a)) of the Constitution
of the Republic of South Africa, 1996. The Constitutional Court is also a court of first
instance, depending on the type of matter it is hearing. (See Pete et al 410 and Study guide
unit 4.1.)

QUESTION 10

The most accurate statement is: (3)

A power of attorney usually seeks to define the extent of an attorney’s mandate. See page
55 of the textbook. (See Pete et al 64-66 and study guide unit 12.3.)

Statement (1) is incorrect. The combined summons consists of the summons and particulars
of claim which are inextricably linked. (See study guide unit 17.3.)

Statement (2) is incorrect. Obviously, the defendant must deliver his counterclaim to
plaintiff’s claim together with the plea if he or she has a counterclaim. If there is no
counterclaim such a step would not make sense. (See Pete et al 247 and 260 and study
guide unit 12.3.)

Statement (4) is incorrect. A legal representative of a party need not, as a general rule, file
a power of attorney in order to prove that he/she possesses the necessary authority to act.
However, should the mandate of the attorney be disputed, it must be proved. (See Pete et
al 64-66 and study guide unit 12.3.)

4. EXAMINATION INSTRUSCTIONS

Examination related matters will be communicated in announcements in the Moodle

Platform.

Take note that CIV3701 May/June Examination is 2 Hours MCQ (quiz) EXAM
UPLOADED ON THE MYEXAMS PLATFORM

Check your Examination timetable on Link below:

https://my.unisa.ac.za/unisa-findtool/default.do?sharedTool=unisa.publicexamtimetable

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 CIV3701/201/1/2024

The student needs to make sure that he or she is admitted to the exam for each module that
is checked using the above link.

Student webinars on online examination preparation:

https://mymodules.unisa.ac.za/access/content/group/WESTERN-CAPE-
REGION/ADOVH/Invitation%20to%20Student%20Webinar%20Training%20May-
June%20Exams%202022.pdf

Recordings available at:

https://dtls-qa.unisa.ac.za/course/view.php?id=33239&section=10

5. CLOSING REMARKS

We trust that you found this assignment interesting, that it helped you to understand the
work better and to grasp the full extent of the material to be studied. You need to understand
from the outset that you will not master the work for the examination without a great deal of
preparation, and that you will not be successful unless you start your preparation for the
examination early. In the course of this commentary, we have pointed out on various
occasions that had you read the rules of court or certain sections in relevant legislation, you
would have found the correct answer. This underlines the importance of studying the rules
of court and the applicable sections in legislation as prescribed and indicated in the study
guide.

We wish you success in your preparation for the examination.

MS M MOTHAPO [email protected]
DR MB NDLAZI [email protected]
MS M MKHABELA [email protected]

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