CIV3701 ASSIGNMENT 1

Question 1

(a) The Law of Civil Procedure in the nation has been influenced a lot by the 1996 South African
Constitution. The following are some of the significant ways in which it has impacted the Law of
Civil Procedure:
(i) Protection of Rights> A number of rights, including the rights to equality, dignity, and access to
the legal system, are guaranteed by the Constitution. This has resulted in a civil procedure that
is increasingly rights-based and guarantees everyone's equal access to the judicial system
(ii) Constitutional Court> The Constitution has an interpretive and enforcement framework thanks
to the formation of the Constitutional Court. Because of this, the constitutional principles have
impacted the civil procedure which resulted in advancements in areas like access to justice and
the right to a fair trial.

By bringing South African civil procedural rules into line with the constitution and guaranteeing the
better protection for the individual rights, these modifications have had a significant influence on how
the laws are interpreted and also applied.

(b) There are numerous ways in which small claims courts have been improved for litigants to utilize
and access:
(i) Simplified Procedures> Small claims courts frequently have streamlined processes that let p
arties represent themselves without an attorney's helper.
(ii) Reduced Expenses>Small claims courts often have cheaper filing fees and other expenses th
an other courts, which makes it more affordable for litigants to pursue their claims.
(iii) Informal Atmosphere> Small claims courts are meant to be less formal
which makes plaintiffs feel less intimidated.
(iv) Informal Atmosphere> People are more likely to participate actively in the proceedings in
these courts because of the more relaxed, less frightening atmosphere.
(v) Speedier Resolution> Shorter legal proceedings can be resolved more swiftly and with less
stress because small courts typically handle cases more quickly.
(vi) Individualized Support>Court employees may provide litigants in smaller courts with more
individualized support, which will enable them to better comprehend the legal system and
their legal rights.

Small courts, in their endeavor to guarantee that justice is more easily available to everyone, have made
great progress toward enhancing accessibility and user-friendliness for litigants.

Question 2

(a)
(i) As an incola of the Johannesburg High Court, the plaintiff is entitled to request that the defe
ndant's Johannesburg property be attached.
The attachment of assets to ensure a future judgment is the foundation for this.
 The defendant's Johannesburg apartment qualifies as local property that can be attached.
Because the plaintiff might seek attachment as security for potential damages stemming fro
m the breach of contract, the court has authority over the defendant's property within its te
rritorial jurisdiction.
To support the request for attachment, the plaintiff must, however, adhere to the correct le
gal processes and offer adequate proof.
(b)
(i) An ex parte application. Lerato will be affected by the application. Therefore, she is not
obliged to give notice of the application to anyone else.
(ii) Rule 6(1) determines that an application consists of a notice of motion, supported by an
affidavit containing the facts on which the application rests.

Question 3

(i) No court application or other formalities are necessary; the notice contained in the
summons acts as an automatic interdict, prohibiting anybody with knowledge of it from
removing goods from the premises.

A formal request for Z to pay Q the arrears for rent is made in the form of a demand for
payment.
Legal Notice> If Z does not pay the arrears, Q will formally notify them and state that
she will pursue legal action.
Making a Record> It documents the demand and makes a record that might be needed
in later court cases.
(ii) A summons would probably be served in the following manner if Z leaves the property
in the middle of the night without leaving a forwarding address and is thought to be
residing in the same province:
Substituted Service > Q might be permitted to use an alternative method of serving the
summons, like posting it on the property in question or publicizing it in a local
newspaper.

(iii) When starting legal action on behalf of Q, Q's attorney must submit a power of attorney
to the court. Establishing the attorney's legitimacy to represent Q in court is crucial.

(iv) A legal remedy known as "specific performance" is applied when one party is compelled
by the terms of the contract to carry out their contractual responsibilities. However,
magistrates' courts are prohibited from issuing orders for particular performance under
section 46(2)(c) of the Magistrates’ Courts Act 32 of 1944. This means that magistrates'
courts may grant alternative remedies like damages or injunctions but are not
authorized to compel parties to carry out particular actions as part of their contractual
responsibilities.
Two questions arose from this:
(1) Was the term "specific performance" restricted to contract-specific performance or
to performance generally?
(2)Would specific performance ever include paying money to fulfill a contractual
obligation (ad pecuniam solvendam), or was it restricted to carrying out a specified task
(ad factum praestandum)?
• The first question was resolved in Maisel v. Camberleigh Court (Pty) Ltd 1953 (4) SA
371 (C), where the court determined that the terms could not be expanded to
encompass any order to perform a specific action (such as an interdict), and were only
intended to refer to specific performance under the terms of a contract.