UNIVERSITY EXAMINATIONS

October/November 2022

CIV3701

Civil Procedure

100 Marks
Duration 4 Hours (in Arial 11pt)

First examiner: Ms. MP Mothapo Ms. M Mkhabela

Second examiner: Adv. Ndlazi

This paper consists of 9 pages.

INSTRUCTIONS FOR A TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

EXAMINATION QUESTIONS.

1. The examination question paper counts 100 marks.

2. It consists of 06 number of questions. Answer ALL of the questions.

3. The duration of the examination on the timetable is 04 hours.

4. In addition to the duration of the examination indicated on the timetable, you are given 30
minutes to FINALISE the uploading of your exam file. Your exam file must be uploaded via
the myExams platform on 29 October 2022 12:30pm (South African Standard Time).
5. This a closed-book examination. While the examination is in progress, you are not allowed to
consult another person or any source in order to assist you to answer any of the questions
contained in this question paper. While the examination is in progress, you may not assist
another student in answering any of the questions contained in this question paper.

6. This examination is proctored via the Invigilator App. You are required to activate the Invigilator
app between 7:45am and 8:30am (South African Standard Time).

The QR code is below:

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7. Your exam file must be uploaded on the myExams platform.

7.1 When ready to submit, open the Take-Home (Assignment) assessment again and click on the
Add Submission button. Note: You only get 15 minutes after the due time to submit your
script on the Invigilator App and 30 minutes on the myExams portal.

7.2. Note the file requirements such as:

a. File size limit.
b. Number of files that can be submitted.
c. File formats allowed.

7.3. Check the acknowledgment checkbox and upload your answers document and then click on
the Save changes button.

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7.4. Review your submission information regarding the status and click on your submission file link
to check if it's correct.

7.5. If you need to resubmit a file, you can click on the Edit Submission button. Note: You will need
to delete any existing files.

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7.6 Use proper PDF conversion software to create the final file for upload. Free PDF conversion
software is available on the Internet.

7.7 Add your student number and the module code in the file name. That will assist you to select the
correct document to upload during submission.

7.8 You are advised to preview your submission (answer script) to ensure legibility and that the
correct answer script file has been uploaded.

8. The cover page for your take-home exam must include your name, student number and the
module code.

9. It is preferred that your take-home exam is typed. However, handwritten submissions will also
be accepted. If the take-home exam is typed, the maximum length is 12 pages (which includes
the cover page and the bibliography). If the take-home exam is handwritten, the maximum length
is 12 pages (which includes the cover page and the bibliography).

10. Whether your answers are typed or handwritten, your submission on the myExams platform on
Moodle must be made in the form of one PDF document. Only the last file uploaded and
submitted will be marked.

10.1 The exam answer file that you submit must not be password protected or uploaded as a “read
only” file.

10.2 Your examination answer file will not be marked if:

10.2.1 you send your examination answer file via email.

10.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
10.2.3 you submit your exam answer file on an unofficial examination.
10.2.4 you submit your examination answer file in the incorrect file format.
10.2.5 you submit a password-protected document.

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10.2.6 you submit your examination answer file late
10.2.7 you submit your answer file from a registered student account that is not your own.

10.3 The mark awarded for an illegible examination answer file submission will be your final mark.
You will not be allowed to resubmit after the scheduled closing date and time of the exam.

11. If your answers are typed, ensure that the following requirements are adhered to. Items 11.3-
11.6 applies to written assignments as well.

11.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph, and
double line spacing after the paragraph.

11.2 The text must be justified.

11.3 All of the pages must be numbered in the right hand corner at the bottom of the page.

11.4 All margins must be 2.5cm, but the left margin must be 3cm.

11.5 South African English and not American English should be used. For example, the correct
spelling is “Labour” and not “Labor”.

11.6 Do not use abbreviations or SMS language.

12. The arguments that you make must be logical, well-structured and substantiated by all of the
relevant legal principles. Use the time given wisely.

12.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL of
the relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or
in your footnotes.

12.2 You are required to have read and summarised the prescribed cases yourself. The summaries
in the Study Guide are not sufficient for this exam. When using case law to support your answer,
please include complete references to the relevant cases in your footnotes. This means that you
must not only include the name of the case but also the exact page and section and/or paragraph
where the information can be found. The same applies to articles and books used.

12.3 A number of students lose marks because they do not approach problem-type questions
correctly. When answering such questions, it is important to first clarify for yourself the area of
work where the answer must be sought. Once you have done this, set out the relevant legal
principles. Deal only with those principles that relate to the given facts. Next, apply these
principles to the facts. This is where most of the students lose marks - they set out the law in
some detail, but then do not illustrate how it applies to the factual situation they have been asked
to solve. Finally, state your conclusion.

13. You must complete the online declaration of own work when submitting.

13.1 By ticking the Honesty Declaration, you confirm that you have read (i) the University’s Policy on
Copyright Infringement and Plagiarism and the Student Disciplinary Code, which are both
available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to student
values and plagiarism that is found at https://www.unisa.ac.za/sites/myunisa/default/Study-@-
Unisa/Student-values-and-rules.

13.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with other students, or request
assistance from other students during examinations. Plagiarism is a violation of academic
integrity, and students who do plagiarise or copy verbatim from published work will be in violation
of the Policy on Academic Integrity and the Student Disciplinary Code and may be referred to

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disciplinary hearing. Unisa has a zero tolerance for plagiarism and/or any other forms of
academic dishonesty.

13.3 Unless a student is exempted because of disability or incarceration, students who have not
utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s examination
rules and will have their marks withheld.

PLEASE NOTE:

If you experience challenges with the Invigilator app, please send a WhatsApp message to the technical
helpdesk on 073 505 8273. Do not contact the lecturers.

For all other exam-related challenges, you may contact the SCSC on 080 000 1870 or e-mail
Examenquiries@unisa.ac.za or refer to Get-Help for the list of additional contact numbers.

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INTRODUCTORY STUDIES
QUESTION 1
(a) Briefly explain the main characteristics of the adversarial system of civil procedure. (4)
(b) Name any three (3) characteristics of court annexed mediation. (3)
(c) Briefly explain the concurrent jurisdiction the High Court has with the Constitutional Court. (4)
(d) Briefly explain the difference between domicile and residence. (4)
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HIGH COURT JURISDICTION AND PROCEDURE

QUESTION 2
(a) Y is an incola of Durban. Z wishes to commence proceedings against Y but is not sure what to
do as she discovers that Y’s employer has sent Y to manage a project in Cape Town for three (3)
months. With these facts in mind, answer the following questions:

(i) May Z issue summons against Y in the Durban High Court under these circumstances. Give
full reasons. (3)
(ii) If Z decides to issue summons in the Durban High Court, would it be possible for the
summons to be served of Y in Cape Town? Explain fully. (3)
(iii) Y owns immovable property in Durban and Z decides to approach the Durban High Court
for an order to attach this property. Fully explain whether Z may be able to do so or not. (4)

(b) R and S are married to each other. They are both domiciled in Nigeria. R, the husband is sent by
his employer to manage a project that his company has undertaken to perform in Cape Town.
Having lived in Cape Town for eighteen (18) months, R decides to divorce S. S, the wife remains
in Nigeria. With reference to the above facts, answer the following questions fully.
(i) May R institutes divorce proceedings in Cape Town after residing there for 10 months? (2)
(iii) Explain fully whether S may institute divorce proceedings in a Cape Town district or regional
magistrate’s court? (3)
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QUESTION 3
(a) The plaintiff has served simple summons on your client who instructs you to defend the matter.
The period allowed in the Uniform Rules of Court for the plaintiff to file a declaration has since
lapsed. What is the next procedural step that you would advise your client to take? Motivate your
answer. (3)
(b) In an application for summary judgement the defendant is granted leave to defend the matter by
the court. Would your client, the plaintiff, who is not satisfied with the order, be able to lodge an
appeal? Briefly motivate your answer. (3)
(c) When are pleadings considered closed in the High Court? (4)
(d) Discuss five functions of pleadings. (5)
(e) Briefly explain the concept of “common law tender”. (5)
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MAGISTRATES’ COURTS JURISDICTION AND PROCEDURE
QUESTION 4
(a) 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 must 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.

(i) Will the magistrates’ court situated in Pretoria have jurisdiction to hear the action instituted
by Donald against Sipho? (2)

(ii) 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)

(iii) Would any district magistrates’ court have jurisdiction to hear the action if the amount of the
claim was R 215 000 and Y owed X an admitted debt for R35 000? (5)

(iv) Would a regional magistrate’s court have jurisdiction if, in the same summons, Y claims
R215 000, R 250 000 and R 310 000, and each claim for breach of contract was based on
a separate account for goods sold and delivered? (2)

(v) What is the jurisdictional purpose of section 46 of the Magistrates’ Courts Act? (1)

(vi) 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)

(b) Briefly explain the importance of a pre-trial conference in a magistrate’s court. (3)

(c) Name three remedies available to the party requesting further particulars for trial where the other
party fails to furnish particulars timeously or sufficiently. (3)
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QUESTION 5
(a) Advise your client B, on what action should be taken in the following circumstances:

(i) B is a defendant in an action in which a plaintiff is claiming repayment of a loan which was
due and payable in 2012, the action was instituted in 2021. He has entered an appearance
to defend. (1)

(ii) B is the defendant in an action where summons was served on him which he considered to
be vague and embarrassing. He has entered an appearance to defend. (2)

(iii) B is a defendant in an action relating to a motor collision. The plaintiff has claimed R90 000
as a result of damages to the motor vehicle. B considers himself to be 50% liable for the
collision and he has R40 000 available. B has entered an appearance to defend and does
not have a counterclaim as his vehicle was not damaged. (2)

(b) B owns property in Durban, which she has rented to A. The monthly rental is R30 000. A is four
months in arrears, and B suspects that A plans to leave the property to avoid paying the arrear
rentals in the amount of R120 000. Advise B regarding the steps she may take to recover payment
of the arrear rental. (5)
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APPEAL, REVIEW AND VARIATION OF JUDGMENT
QUESTION 6
(a) A magistrate has granted a judgement in favour of the plaintiff. The defendant has delivered a
notice of appeal. You believe that the defendant will be successful. Name two things the plaintiff
can do in order to try and save costs. (2)

(b) Name four grounds upon which a judgment will be set aside in terms of common law. (4)

(c) Name three circumstances where the court will not remit the matter to a particular body whose
proceedings are reviewed. (6)

(d) Name four grounds for review in terms of section 22(1) of the Superior Court Act, 2013. (4)

(e) Briefly explain the procedural steps to be followed for an appeal from the magistrates’ court to
High Court. (4)
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TOTAL: [100]

Unisa 2022

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