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Summary Attorneys admission exams - Paper 1 - Court Procedure - Magistrates Court
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Notes for Paper 1 - Court Procedure - Magistrates Court
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Magistrates Court PracticeSummary of Exams supplemented by course pack
1. DEMAND
A letter of demand is necessary to place the debtor in mora if no time for performance has been agreed
upon. Interest runs from date of expiry as set out in the demand. The demand can be included in the
summons.
With regard to cancellation a demand is required in order to put the other party on notice to perform
within a reasonable time. A second letter is required to cancel the contract.
A demand is also necessary ito certain statutes e.g. actions against the state. notification.
Action against the police
Ito of the SAPS Act 68 of 1995 no proceedings can be instituted before expiry of at least one calendanr
month after written
Example:
Your client needs to address a letter of demand to the Minister of Safety and Security claiming and setting
out his damages and how it is calculated . The amendment to the Prescribed Rate of Interest Act provides
that interest may be claimed from the date of such a demand.
Your client needs give notice to the Minister of Safety and Security, or the National Commissioner of
Police, or the Regional Commissioner of Police, setting out his claim and stating that if the amount
claimed is not paid within one calendar month of receipt of the notice, summons will be issued.
Precedent of notice which is a prerequisite for the summons against the minister
By registered Post / By Hand
Minister of Safety and Security The commissioner of the SAPS
Civitas Building Wachthuis
Struben Street OR Thibault
Pretoria Pretoria
Dear Sir
Re: Collision on (date) at (place), vehicles
Our client is David Julies
On the above date and place a collision took place between a MV with RN BB700T, of which our client,
Mr D Julies, is the owner and a police vehicle, driven by constable Koos van Der Merwe, who was at the
time in the employ of the SAPS and acting within the course and scope of his duties.
The collision was caused by the sole negligence of the said constable van der Merwe in that the vehicle he
was driving collided with the rear of our clients MV.
,As a result of the collision our client’s vehicle was damaged beyond economic repair. The preaccident
value of our clients vehicle was R50000 and the post accident value was R10000.
We have been instructed to claim from you, as we hereby do, payment of the sum of the R40000. Unless
the said amount is paid at our offices within one calendar month of receipt of this letter, summons will be
issued against you.
Yours faithfully
Joe Attorney
Action against the SADF
If an individual was acting within the course and scope of his employ within the navy, action may be
instituted as against both Seaman and the ministry of defence NO.
It may be required to give notice in terms of s113 of the Defence Act 44 of 1957 one month prior to the
institution of the action. The CC in Mohlomi v Minister of Defence 1997 (1) SA 124) has declared
unconstitutional the prescription period of 6 months contained in s113. It has however not ruled on the
requirement of notice. Therefore normal prescription periods will apply subject to proper prior notice
being given.
2. JURISDICTION
Jurisdiction refers to the power and competence of a court to hear and determine an issue between the
parties. A MC is creature of statute and therefore possesses no inherent jurisdiction but only what is set
out in the Act.
Various factors may play a role in decisions whether to sue in MC or HC being convenience, importance
of claim to client, speed and urgency, costs, quality of the justice dispensed and complexity of the matter.
Territorial Jurisdiction – jurisdiction in respect of persons
Section28(1)
(a) -- `any person who resides, carries on business or is employed within the district': - Residence of 1.
State – Pretoria 2. Business – registered office or principal place of business.
(b) any partnership which has business premises situated or nay member whereof resides in the district
– rule 54 provides that if sue a partnership can serve notice demanding list of partners at date of
issue. Judgment is deemed to apply only against those parties therefore no notice no claim.
(c) any person whatever, in respect of any proceedings incidental to any action or proceeding instituted
in the court by such person himself – counterclaim
(d) `any person, whether or not he resides, carries on business or is employed within the district, if the
cause of action arose wholly within the district – every fact which it would be necessary to prove in
order support right to judgment but not every piece of evidence eg. for a delict must be all the
elements (facta probanda)
(e) `interpleader proceedings where either execution creditor or third party reside, carry on businees or
are employed within the district, subject matter has been attached by a process of court, all the
parties consent - interpleader proceedings are proceedings that enable someone who is in possession
, of property that is not his own and that is being claimed from him by two or more other persons
contesting title against each other to call upon those persons to appear before the court in order to
determine who is entitled to the property e.g sheriff attaching property which is claimed by third
party.
(f) `any defendant (whether in convention or reconvention) who appears and takes no objection to the
jurisdiction of the court – if no objection court assumes jurisdiction.
(g) any person who owns immovable property within the district in actions in respect of such property
or in respect of mortgage bonds thereon':
Example:
Where the whole cause of action arose (Section 28(1 )(d))
Where the Defendant driver is employed and where the employer conducts business (Section 28(1)(a)).
In choosing between one or more jurisdictions one must look at proximity to residence of plaintiff and to
the expert.
In a partnership as long as one of the partners is ordinarily resident within the jurisdiction of the MC then
the court has jurisdiction over the partnership and all its partners.
Value
-Value is limited to 100 000 eg delivery of MV of 150 000 and transfer of farm of 500 000.
Jurisdiction in respect of causes of action
Matters included
Section 29:
(a) ‘actions in which is claimed the delivery or transfer of any property, movable or immovable, not
exceeding the value limit determined by the Minister’ :
(b) `actions of ejectment against the occupier of any premises or land within the district: Provided that,
where the right of occupation of any such premises or land is in dispute between the parties, such
right does not exceed the amount determined by the Minister in clear value to the occupier' – clear
value to the occupier means value over and above the rent payable, it is the economic advantage
which he enjoys from the exercise of that right.
(c) `actions for the determination of a right of way, notwithstanding the provisions of section 46':
(d) `actions on or arising out of a liquid document or a mortgage bond, where the claim does not exceed
the amount determined by the Minister…’:
(e) `actions on or arising out of any credit agreement as defined in section 1 of the Credit Agreements
Act, 1980 (Act No 75 of 1980), where the claim or the value of the property in dispute does not
exceed the amount determined by the Minister...’
(f) `actions in terms of section 16(1) of the Matrimonial Property Act, 1984, where the claim or the
value of the property in dispute does not exceed the amount determined by the Minister…’:
(fA) `actions, including an application for liquidation, in terms of the Close
Corporations Act, 1984 (Act No 69 of 1984)' -
(g) `actions other than those already mentioned in this section, where the claim or the value of the
matter in dispute does not exceed the amount determined by the Minister…':
, Section 30
In terms of section 30 the court may grant against persons and things orders for 1. arrest tanquam
suspectus de fuga 2. attachment 3, interdicts – no limit on type 4. mandament can spolie
Matters Excluded
Sections 46
(a) Matters in which the validity or interpretation of a will or other testamentary document is in question
(s46(2)(a)),
(b) Matters in which the status of a person in respect of mental capacity is sought to be affected
(s46(2)(b)),
(c) Matters in which is sought specific performance without an alternative claim for the payment of
damages (s46(2)(c)) except:-
(d)
(i) the rendering of an account not exceeding the value limit of the jurisdiction of the
magistrates’ courts (presently R100 000) -example for royalties or commission due to the
plaintiff
(ii) the delivery or transfer of property, movable or immovable, not exceeding the value limit
of the court’s jurisdiction;
(iii) the delivery or transfer of property, movable or immovable, exceeding the value limit,
where the consent of parties has been obtained ito s45. (Section 45 allows parties to extend
the value limit of the court by written agreement).
Does not include claims for money due.
(e) Matters in which a decree of perpetual silence is sought (s46(2)(d))
Other:
Actions for divorce (s46(1)) – the general principle is that status should be dealt with in the high court.
Insolvencies of natural persons and companies are to be dealt with in the High Court and of CC in
magistrate courts. This found in the Insolvency Act.
Example
Available
- Application for liquidation of CC.
- Determination of right of way s29(1)(c)
- Declaration of Mortgage Bond to be specially excecutable.
- Interim interdict permitted ito s30 of the Act eg to prevent use of thing which is subject matter of
litigation instituted by the applicant.
Not available
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