Module : Civil Procedure

Module code : CIV3701

Assignment :1

Assignment code : 667667

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Question 1

a. When there has been no prohibition of the use of application proceedings, it must be determined
whether there exists a material dispute of fact.1 If it is found that there is a material dispute of fact,
the use of application proceedings will be considered inappropriate.2 In the given set of facts, the use
of application proceedings would be inappropriate as a breach of contract constitutes a material
dispute of fact.

b. In the circumstances where a defendant is a resident within South Africa, the court/s where the
defendant is a residence will have jurisdiction to hear the matter based on the grounds of ratione
domicilii.3 Jurisdiction is given to the court where the defendant is an incola of its area at the moment
when the action occurred.4

However, in terms of common law, a court can be given jurisdiction in the circumstances where
monetary claims are concerned. On of these circumstances include when the delict on which the claim
was founded had occurred within the area that the court is in; that court is then given the jurisdiction
over the matter.5

In application to the given facts, the claim that X has against Z is in the amount of R600 000 and is
based on a breach of contract. This breach of contract occurred in Cape Town. Therefore, the Cape
Town High Court has jurisdiction over the matter and furthermore, X can institute proceedings against
Z at the Cape Town High Court.

c. In the case where the defendant is a foreign peregrinus of the whole Republic of South Africa, it is
necessary to attach property to them to have a hold on them, to make sure that the ruling that the
court makes can be executed, before a monetary claim can be instituted; this is known as attachment
ad fundandam iurisdictionem.6 The court that falls within the area that the plaintiff is domiciled will
then be given the jurisdiction of hearing the matter provided that the defendant has property taken
as attachment.7

1
Pete S and Hulme D et al, Civil Procedure: A Practical Guide 3rd edition (Oxford University Press 2017) 181.
2
Pete S and Hulme D et al, Civil Procedure: A Practical Guide 3rd edition (Oxford University Press 2017) 181.
3
University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa 2018) 44.
4
University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa 2018) 44.
5
Pete S and Hulme D et al, Civil Procedure: A Practical Guide 3rd edition (Oxford University Press 2017) 96.
6
University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa 2018) 46.
7
University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa 2018) 46.
 In application to the given facts, since X is an incola of Cape Town, they can seek an order for
attachment ad fundandam iurisdictionem. There must be an attachment of Z’s property to ensure
that the Cape Town High Court gets jurisdiction and that the judgment of the court will be effective.

d. If the claim is not breach of contract but rather a claim that related to the registration of fixed
property, the court where the property is located would have exclusive jurisdiction over the matter
and whether the defendant is an incola or peregrinus is considered irrelevant.8 Therefore, in terms of
the matter at hand, the South Gauteng High Court will have jurisdiction over the matter.

Question 2

a. Section 2(1)(a) of the Divorce Act 70 of 1979 (hereinafter referred to as ‘the Divorce Act’) provides
that a court may have jurisdiction over a divorce matter if both or either of the parties are domiciled
in the area of the court at the time that the divorce action is instituted.9 Section 2(1)(b) of the Divorce
Act states that a court also has the jurisdiction if both or either of the parties are ordinarily resident
within the area of the court on the date that the action is instituted and has been in the Republic for
no less than one year from the date the action was instituted.10

Applying this to the given matter, J had been living in Pretoria for ten months which is under a year
and therefore does not satisfy section 2(1)(b) and as a result the Pretoria High Court does not have
the jurisdiction to preside over the divorce matter.

b. According to the Uniform Rule 5 and Rule 10 of the rules of court provide how summons should be
served to a defendant who does not reside in the Republic, which is by the means of an edictal
citation.11 If J wishes to issue a summons against T, who still currently resides in Lesotho, the summons
must be served by a way of an edictal citation.

Question 3:

a. Combined summons is used in cases where the plaintiff’s claim is unliquidated and often involves
serious factual disputes.12 Actions for damages are not considered unliquidated. In application to the

8
University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa 2018) 52.
9
University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa 2018) 56.
10
University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa 2018) 56.
11
University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa 2018) 96.
12
University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa 2018) 113.
 given set of facts, B is claiming for damages to his vehicle as well as bodily injury and B may use the
combined summons to begin the proceedings.

b. In matters where the claim is over the amount of R200 000 but less than R400 000, the Regional
Magistrates’ Court has jurisdiction over the matter. Section 28(1)(d) of the Magistrates’ Courts Act 32
of 1944 provides that if the cause of action occurs within the district or regional division, then the
jurisdiction falls to the district or regional magistrates’ court.

Applying the abovementioned to the given set of facts, the total value of the claim for damages are
worked out as follows:

Claim for vehicle damages + claim for damages due to bodily injury

= R100 000 + R300 000

= R400 000

Since the collision occurred in Durban, the regional magistrates’ court in Durban will have the
jurisdiction to preside over the action instituted by B.

c. According to Uniform Rule 35(14) and magistrates’ courts Rule 23, discovery may only occur after the
completion of the proceedings, unless a judge or magistrate obtains leave first. Due to the fact that
the proceedings are still ongoing in the given set of facts, B must wait until the proceedings have
ended before requesting the discovery of the documents and tape recordings.

d. Since C was successful, B is liable for party-to-party costs which are defined as the costs that are
usually awarded to the successful party which are provided for by the Rules of Court and the
unsuccessful party is ordered to pay.13 B is thus liable to pay R15 000.

Attorney-and-client costs are defined as cost that an attorney is entitled to from their client for
professional services rendered during the course of the trial.14 B is therefore liable for the R12 000
attorney-to-client cost.

B is therefore liable for both costs and his total comes to R R27 000.

13
Pete S and Hulme D et al, Civil Procedure: A Practical Guide 3rd edition (Oxford University Press 2017) 713, 341.
14
Pete S and Hulme D et al, Civil Procedure: A Practical Guide 3rd edition (Oxford University Press 2017) 701, 342.
Bibliography

Books:

Pete S and Hulme D et al, Civil Procedure: A Practical Guide 3rd edition (Oxford University Press 2017)

University of South Africa, Civil Procedure: Only Study Guide for CIV3701 (University of South Africa
2018)