Question 1

X lives and works in Pretoria. Y lives in Johannesburg.They both enter in to a contract in

Pretoria, to the value of R200 000 in terms of which X has to deliver goods to Y’s business
premises in Johannesburg. X fails to deliver the goods. Y wishes to institute proceedings
against X in the Magistrates’ court for breach of contract. In relation to these facts,
answer the following question and give brief reasons for your answer.
(a) could Y institute proceedings against X in the magistrates’ court for the district of
Johannesburg? (4)
Extracted from the study guide
Section 28(1)(d): “Cause of action arose wholly” In the High Court, for example, it is
sufficient to show – in an action based on a contract – that the contract was concluded,
breached, or was to be performed, within a particular jurisdictional area. In the magistrates’
court, however, it must be shown not only that the contract was concluded within the
district or regional division concerned, but also that the breach occurred there as well; in
other words, the cause of action must have arisen “wholly” within the district or regional
division.
What does the word “wholly” mean in the context of the Act? The concept of “whole cause
of action” has been considered in a number of court decisions. It has been described
(Abrahamse & Sons v SAR & H 1933 CPD 626) as the entire set of facts which gives rise to an
enforceable claim and includes every fact which is material to be proved to entitle a plaintiff
to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order
to disclose a cause of action.
The purpose of this subsection is to make matters more convenient for the plaintiff and
witnesses in certain kinds of cases. For example, it frequently happens that a person is
involved in a transaction that occurs in a district or regional division other than that in which
he or she resides or carries on business. Thus, a visitor from Pretoria is involved in a motor
vehicle collision while on holiday in Cape Town, and a local resident is injured. Were it not
for section 28(1)(d), the local resident would have to sue in Pretoria, and he or she and his
or her witnesses would have to travel all the way there to give evidence.

The Johannesburg district magistrates’ court will not have jurisdiction in terms of section
28(1)(d) of the Magistrates’ Courts Act 32 of 1944 (MCA), since this section requires that the
“whole cause of action” must arise within a particular court’s jurisdiction area. According to
the courts, “whole cause of action” means that not only must the conclusion of the contract
take place within a particular court’s area, but also the breach. Here conclusion of contract
occurs in Pretoria, but the breach thereof occurs in Johannesburg. Therefore, neither of
these courts will have jurisdiction on this particular ground, as the cause of action did not
“wholly” occur in either court’s area. (Study unit 11.4.2)
(b) would any district magistrate 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)

In terms of section 29(1) (MCA), the monetary jurisdiction of a district magistrates’ court is
limited to an amount of R200 000. In the present instance, the claim of R215 000 exceeds
the quantitative limit of a district magistrates’ court. Therefore, it would appear that no
district magistrates’ court will have jurisdiction, and that the claim can be brought in the
regional magistrates’ court.

However, it is possible to bring the claim within the jurisdiction of a district magistrates’
court by deduction of an admitted debt (s 39 (MCA)). From the facts, it is apparent that Y
owes X an amount of R35 000. This would enable Y to deduct this amount as an admitted
debt from the amount of R215 000 claimed in terms section 39. The effect of section 39 is to
bring the claim within the quantitative/qualifiable jurisdiction of a district magistrates’
court (R215 000 – R35 000 = R180 000). However, the plaintiff will always be awarded the
amount proved in court, less the amount admitted as being due to the defendant. (Study
unit 11.6.2)
(c) having entered an appearance to defend, Y realizes that the cause of action has
prescribed. What pleading mat Y now file to address the matter? (1)

Y may raise a special plea.

This procedure (special plea) is raising to objection to an issued not apparent ex facie the
declaration or particulars of claim, so, this is on the basis of certain facts that do not
appear in the plaintiff’s declaration or particulars of claim, that has the effect of
destroying or postponing the action. For example where you object to the jurisdiction of
the court or the action has prescribed.
Remember that a defendant still has to file the plea on the merits (deals with the merits of
the plaintiff’s claim as set out in his or her declaration or particulars of claim, as the case may
be.). (study unit 21.5)

(d) explain fully why it would be inappropriate for Y to file an exception in the
circumstances described in 1.

An exception may only be raised on specific grounds set out in the rules of court and is
aimed at attacking allegations contained in a pleading. Where instead of relying to a plea on
the merits, a plaintiff may except to the pleading on one of the following grounds, that a
pleading is vague and embarrassing or a pleading discloses no cause of action or a defence.

(e) on the given facts, 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? (1)
Yes. In terms of section 43 (MCA), a regional magistrates’ court has cumulative/collective
jurisdiction. This is so, provided the parties are the same, and provided the claims are based
on different causes of action. In the present instance, this is the case. (Study unit 11.6.4)

Question 2
Z wishes to issue summons against his neighbour, B, for defamation. Answer the following
questions. Give reasons for your answers where required.
If B gives notice of intention to defend within the dies induciae, explain fully why Z may
not apply for summary judgment.
There are two grounds in which Summary judgement may be applied for.
First, an application for summary judgment can only be brought if the claim falls within the
provisions of Rule 32 of the Uniform Rules of Court. Each of these types of claims falls within
the definition of a debt or liquidated demand.
Secondly, where a claim does fall within the ambit of Rule 32, summary judgment may only
be applied for after delivery of a plea on the merits, and not after delivery of a notice of
intention to defend.

Rule 32 of the Uniform Rules of Court and magistrates’ courts rule 14 set out the types of
claim in respect of which summary judgment may be applied for. summary judgment
should follow from a simple summons only (where the nature of the claim is a debt or
liquidated claim where the amount my be determined by mathematical calculation) (These
types of claim also fall within the definition of a “debt or liquidated demand”.) Damages are
claimed in a defamation case, and the nature of such a claim is unliquidated (in
unliquidated claim, there are serious factual dispute that requires the leading of oral
evidence. The claim/quantum must be determined by court after hearing of evidence). (The
court also has the discretion to make any other order.).
A claim for damages clearly falls outside the categories of claims contained in the said court
rules, and therefore Z may not apply for summary judgment. Furthermore, the rules of court
provide that a plaintiff may only after receipt of a plea on the merits apply for summary
judgment. This provides a second reason why Z cannot apply for summary judgment. (See
study guide unit 23.4.)

The summary judgment procedure is designed to protect a plaintiff who has a claim of a
particular nature, against a defendant who has no valid defence to his or her claim, and
who has simply entered an appearance to defend for the purpose of gaining time and
preventing the plaintiff from obtaining the relief he or she seeks and deserves.
Take note

Simple summons is a process but a declaration is a pleading

Combined summons is a process and a pleading

Pleading is a written document containing averments by the parties to an action in which

the material facts on which they rely on in support of their claim or defence are clearly and
concisely set out to enable the opponent to plead thereto, and which is exchanged between
such parties. The pleadings constitute a formal, summary record of the issues in dispute
between the parties, which may be decided at the trial. In this way, they serve to prevent
future disputes between the parties regarding issues that have already been adjudicated
upon. Pleadings serve to define and limit the disputed issues of fact and law for the benefit
of both the court and the parties. In this way, time and money are saved, and justice can be
dispensed more quickly and effectively encouraging the settlement of a dispute. Pleadings
also serve to apprise each party of the case he or she is expected to answer thus preventing
parties from being taken by surprise at trial. The parties are, therefore, given the
opportunity to prepare their cases and the evidence that they intend leading in support of
their own contentions and in rebuttal of their opponent’s. The pleadings determine the
onus of proof.

In contrast, Process is merely a step in the litigation process and whereby litigation is
instituted. This step can only be taken with the help of a court official (the Registrar or
Assistant Registrar must first issue the summons before the plaintiff can use it any further).
See study guide unit 19.2-19.3

Question 3
X issues a combined summons against Y for damages arising out of a breach of contract. Y
responds with a notice of intention to defend. With these facts in mind, answer the
following question.
(a) Discuss the procedure that may follow if Y fails to file a plea on the merits. (3)
If Y fails to file a plea on the merits, X must first serve and file a notice of bar on Y in terms
of which Y is directed to serve and file his plea within the stated further dies induciae.
Should Y persist in his failure to do so, he will be in default and ipso facto barred from
delivering his plea. (Study unit 23.3)
Bar procedure applies to pleadings ONLY. A Notice of intention is not a pleading but a
process
Bar procedure prevents the delivery of any further pleadings in an action where a party fails
to timeously deliver a particular pleading.
(b) Discuss the procedure that X may follow if Y fails to file a plea on the merits, despite
the procedure discussed in (a) above. (2)
The plaintiff may set the matter down and apply for default judgment. As the claim is
unliquidated, judgment will only be given after presentation of evidence to prove the
quantum (unliquidated claim, there are serious factual dispute that requires the leading of
oral evidence. The claim/quantum must be by court after hearing of evidence). (The court
also has the discretion to make any other order.) (See Rule 31(2) and study unit 23.3)