CIV3701 FULL EXAM PACK New 2023. Long Questions with detailed Answers
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Course
CIV3701 - Civil Procedure (CIV3701)
Institution
University Of South Africa (Unisa)
CIV3701 Long Questions with Detailed Answers
(All Past Assignments; Activities; Exams, Case Studies & Notes).
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CIV3701 Long Questions with
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From 2015 - 2023
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CIV 3701 Exam 2022 - Comprehensive essays with well
articulated solutions and illustrations.
Question 1
The sections set out the way a particular matter may be tied to the area of jurisdiction of
a particular Magistrates’ court or Courts. There must be some link (nexus) between the
court and the parties or the subject matter of the dispute before a particular court will be
vested with jurisdiction. The judicial officer plays a passive role during the litigation
process; he does not have to interfere in the proceedings except when he is requested
to do so by one of the litigants
Where the party has taken an irregular step during the course of litigation, Rule 30
provides the other party with a mechanism by means of which the irregularity may be
set aside or dealt with. Rule 30(2) states that an application to set aside an irregular
proceeding shall be on notice to all the parties specifying the particulars of the
irregularity and made only if:
the applicant himself has not taken a further step with knowledge of the irregularity
The applicant has within 10 days of becoming aware of the step by giving notice to his
opponent a chance to remove the complaint within 10 days and application was
delivered within 15 days.
Examples of irregularities are the failure by an advocate to sign the particulars of claim,
the premature set-down of a case, and the use of the wrong type of summons. The
period within which the applicant must act commences as soon as a party takes notice
that a step has been taken or that a proceeding has occurred, and not once the
irregularity thereof has come to his notice.
Compared to the requirements at common law, as applied for the purposes of
jurisdiction in the High Court, the term "cause of action" is given a restricted meaning in
regard to the exercise of jurisdiction by a magistrate's court. In the High Court, either the
conclusion of a contract or its performance or its breach would be regarded as a
sufficient cause of action for the exercise of jurisdiction. In the magistrate's court, the
whole cause of action must have arisen within the district (or regional division)
concerned, for example, the conclusion and breach of a contract.
There is no statutory equivalent for the plaintiff. A plaintiff chooses the forum in which to
litigate and therefore he or she must bear the consequences of doing so. A plaintiff who
has instituted an action in the magistrate’s court is free to change his or her mind and
abandon the action in the lower court, and commence proceedings in a High Court, with
resulting cost implications
Question 2
(a) ..
Urgent applications
supporting affidavit, the answering affidavit and the replication.
Application or motion to strike out.
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(b) ..
Combined summons because this form of summons is used where the
plaintiff’s claim is unliquidated. That is where it’s not a claim for a debt or liquidated
demand.
Edictal citation: Rule 5 prescribes how service must be affected on a defendant who is,
or is believed to be, outside the Republic.
NOITD
POC
Notice of the intention to defend
Notice of intention to amend
Application to strike out
Replication
Discovery
party-and-party costs
Question 3.
a.(i). According to the common law notion of Ratione domicilii, the court where the
defendant is either domiciled or resident always has jurisdiction to hear a claim
sounding in money. Therefore, in this case both the plaintiff and the defendant are
residents of Pretoria which gives the North Gauteng Division in Pretoria the jurisdiction
to hear the matter based on the principle actor sequitur forum rei.
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 find 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 within a certain court’s jurisdiction then that court
will have jurisdiction to hear the matter.
In the case of the defendant consenting that the matter be heard in the Gauteng
Division in Pretoria the situation would have changed because the defendant doesn’t
have any immovable property attached and therefore the Cape town Division would
have been the court of jurisdiction to hear the matter. However, because of the fact that
the plaintiff is domiciled in Pretoria and the defendant a peregrinus of the Republic of
South Africa consent for the matter to be heard in Pretoria then the Gauteng Division in
Pretoria will have the jurisdiction to hear the matter.
(b). (i) The KwaZulu Natal local division will not hear the matter because the local
magistrates’ courts are not vested with the jurisdiction to hear divorce matters or
matters of separation between married people.
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(ii). Section 46(1) provides firstly that a magistrate’s court cannot grant a divorce.
Divorce affects the status of the parties and in principle matters of status must be
decided by the High Court. However, the JRCAA (The Amendment of the Jurisdiction of
the Regional Courts Act, 2008) has amended the Magistrates' Courts Act, so as to
confer jurisdiction on regional divisions of courts in respect of certain civil disputes. The
Civil Regional Court will be jurisdictionally limited to those matters where the quantum of
the claim is between R200 000 and R400 000. Therefore, in this case Y have a choice
of the Regional Magistrates’ court if their estate falls within that range.
Question 4
A request for amendment of pleadings is outlined in Rule 55A and section 111(1) of the
act. In Rosner, the court held that the general rule was that an amendment of notice of
motion, a summons or pleading in action, would always be allowed unless the
application to amend was mala fide or the amendment would cause injustice or
prejudice to the other side. The aim of the amendment is to obtain a proper solution to
the dispute between the parties and to identify the real issues in the matter. However,
the party seeking to amend its pleadings should not consider itself to have the right to
that effect. Instead, it is seeking an indulgence, and has to offer an explanation as to the
reasons for the amendment.
S111 (1) provides that the court may, at any time before judgment, amend a pleading.
The considerations for the amendment of pleadings, which are applicable in the high
court, also apply in the magistrates’ courts. S111(1) In any civil proceedings the court
may any time before judgement, amend any summons (or other doc forming part of the
record) provided that the amendment doesn’t prejudice any other party affected.
Rule 55A provides an easy way of effecting amendments to pleadings. If the other party
objects to the proposed amendment, the party who wishes to amend must, within 10
days, lodge an application for leave to amend. If no objection is delivered within the 10
days above, every party who received notice shall be deemed to have consented, and
the amendment as applied for, may be effected.
. In favour of plaintiff.
. In favor of defendant.
. Absolution at the close of the plaintiff’s case.
. absolution from the instance at close of defendant’s case where onus on plaintiff.
. absolution at close of defendant’s case where onus on defendant.
Any three items that are exempt from execution in terms of Section 67 are asfollows:
. the necessary beds, bedding and wearing apparel of the execution debtor and of his
family.
. the necessary furniture (other than beds) and household utensils in so far as they do
not exceed in value the sum of R 2000.
. stocks, tools and agricultural implements of a farmer in so far as they do not exceed in
value the sum of R 2000.
The monetary jurisdiction limits for the district court and the regional court in terms of
section 29 of the Magistrates’ Courts Act 32 of 1944 is currently R200 000 and R400
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