CIP301-K Revision Questions Memo

CIP301-K Revision Questions Page 1
THE GRADUATE ACADEMY

A REPUTATION FOR EXCELLENCE
CIVIL PROCEDURE II
CIP301-K
2009
Revision Questions &

Memo
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HIGH COURT PROCEDURE
STUDY UNIT 1 AND 2
Question 1
In terms of an order of divorce, custody of three minor children has been

awarded to the wife, Ann. For three years after the divorce, the divorced
couple live in Johannesburg. Ann now wishes to relocate to Cape Town but
does not inform her ex husband of the fact. The ex husband, Phil, hears about
the impending move two days before the time. The move to Cape Town
infringes directly on Phil's rights of access to the minor children in terms of the
order for divorce.
In regard to the above facts, answer the following questions. Give full reasons
for each answer.
(a) Why can Phil use application proceedings to uphold his rights of
access to the minor children? (3)
No real dispute of a fundamental question of fact – see page 6
(b) With reference to the exceptional circumstances of the case, indicate

what form of application would be used. (3)
Urgent application – page 11
(c) Name and describe the document that Phil must use to commence
proceedings. (2)
Notice of motion
(d) Name and describe the document that Phil must attach to the
document identified in (c) above.
Supporting affidavit – page 14
(e) If Ann opposes Phil's application, name and describe the documents
that may be exchanged between the parties. (5)
Notice of intention to oppose; answering affidavit; replying – page

14
(f) If a dispute arises between Ann and Phil which cannot be solved
without the hearing of viva voce evidence, what may the court do at the
hearing? (3)
Page 6
Question 2
In terms of an order for divorce, custody of the minor children is awarded to

the wife, S. The ex-husband is C. A few years after the divorce, C learns that
B has decided to immigrate to Canada. C receives this information 24 hours
before S intends to depart the RSA with the minor children from
Johannesburg International Airport. S's departure from the Republic with the
minor children directly infringes C's rights of access in terms of the divorce
order. C wishes to institute proceedings to protect his rights.
(a) Discuss the type of application that C should use to protect his rights.
(5)
Urgent application – page 11
(b) Name the documents that C must use to commence the proceedings
referred to in (i) above. (2)
Notice of motion and supporting affidavit
Question 3
(a) Name and briefly describe all the affidavits normally exchanged
between the parties in all opposed application proceedings (6)
Page 14
(b) Discuss the three questions that must be considered in order to

determine the correct form of proceeding. (6)
Page 5 – 6
(c) Explain what is meant by an interlocutory application and how it differs

from an ordinary application. (6)
Page 11
(d) Discuss the differences between application proceedings and illiquid

summons proceedings. (8)
Page 4
(e) Name four instances in which an ex parte application may be used. (8)
Page 10

(f) Explain the circumstances in which the following applications may be

used:
(i) ex parte applications
Page 10
(ii) ordinary applications
Ordinary applications are used when notice of the

proceedings must be given to other parties in terms of Rule
6(5) read with Rule 6(2).
(jii) urgent applications
Urgent applications are used in situations of urgency or

emergency (with the applicant not having created the
situation of urgency) and the normal rules of procedure are
dispensed with.
(iv) interlocutory applications (10)
Interlocutory applications used to approach the court for

relief in respect of matters related to proceedings that have
already been instituted in terms of Rule 6(11). An example
of an interlocutory application is the application for
disclosure of documents in terms of Rule 35(7).
Question 4
X and Y enter into a contract. A dispute arises between them. X wishes to

approach a High Court for relief. The dispute relates to the legal interpretation
of various clauses of the contract. The only factual dispute relates to Y's
address as given in the contract. Determine the form of proceedings X should
use to approach the court for relief. Give full reasons for your answer. (6)
This is a dispute of law, not of fact. Thus, application proceedings must

be used. See page 6
Question 5
D and F enter into a lease agreement, whereby D lease a portion of his farm
to F. However, after the lease is signed F refuses to pay the rent since D
refuses to give F access to the rented portion of his farm. F contends that the
lease agreement is subject to a servitude of a right of way, which D denies.
Determine the type of proceedings that F should use in order to approach the
court. (6)
This is the same answer as question 4. It is just an example of different

wording.
Question 6
Y is an elderly man who has-become a spendthrift and is wasting his life's

savings. His son, X, wishes to have Y declared a prodigal. He approaches a
High Court for a temporary interdict preventing Y from disposing of specific
assets. With these facts in mind, answer the following question, giving
reasons for your answer in each instance.
(a) What procedure must X follow to obtain this interdict? (2)
Application procedure
(b) Y will oppose any proceedings instituted by X. Briefly name and

describe the documents that X and Y will exchange in such opposed
proceedings. (6)
Notice of motion plus supporting affidavit; notice of intention to

oppose; answering affidavit; replying affidavit
Question 7
J cedes shares listed on the Johannesburg Stock Exchange to K as security

for an amount of money that J loaned to K. J repays the loan but K refuses to
cede the shares back to J.
(a) Name the type of application that J must use so as to obtain an order of
court compelling K to cede the shares back to J? (1)
Ordinary application
(b) If K opposes the application, name the affidavits that must be

exchanged between the parties. (3)
See question 1
(c) Name the procedure that J may use if K's affidavit contains
inadmissible evidence. (1)
Motion to strike out – page 15
Question 8
G and H are a divorced who have a minor child. Custody and control of the
minor child has been granted to G. H has limited rights of access with which
he is dissatisfied. At the end of a particular school term when G arrives at the
nursery school to fetch the minor child, it transpires that H has already taken
the child with him for the school vacation. The child’s teacher tells G that H
insisted that he had right of access to the child. G contests this. She consults

you with a view to removing the child from H. With these facts in mind. answer
the following questions.
(a) Explain whether you would proceed by means of an ex parte or an

ordinary opposed application. (4)
Ex parte application – page 10
(b) Name the document that you would use to commence the proceedings.
(1)
Notice of motion
(c) Identify and describe the documents that must be exchanged between
the parties. (5)
See question 1
Question 9
T has passed his attorneys' admission examination and his contract as a

candidate attorney has expired. T wishes to apply for admission as an
attorney. With these facts in mind, answer the following questions.
(a) What factors must be considered to determine the correct type of

application that must be used? (2)
See page 12
(b) In the light of these factors, explain the type of application that T may
lodge. (2)
See page 12
(c) Name the documents that comprise the type of application identified in
(b) above. (2)
See page 12
(d) Name the official to whom the documents identified in (iii) above must
be addressed. (1)
See Form 2 of the First Schedule to the Uniform Rules of Court
(e) Set out the information that must be contained in the documents
identified in (c) above. (3)
See page 13
Question 10
ZY (Pty) Ltd, trading as a furniture dealer, approaches the local High Court for
the sequestration of C's estate. B, the authorized official in the employ of ZY
(Ply) Ltd, in his supporting affidavit states, inter alia, that C is a cheat and a
rogue.
(i) Indicate briefly why ZY (Pty) Ltd may not use an ex parte application to
institute legal proceedings. (2)
Page 9 – notice of the proceedings must be given to C
(ii) C wishes to oppose the proceedings. Indicate how C must set about
opposing the application. (1)
page 14 – C must give ZY written notice of his intention to oppose,

within the dies induciae stated in the notice of motion.
(iii) C is offended at the personal remarks contained in B's supporting

affidavit. Advise C in this regard. (2)
Page 15 – motion to strike out
STUDY UNIT 3
Set out the processes and pleadings in convention and reconvention

exchanged in opposed proceedings where the claim is unliquidated. (Do not
deal with pre-trial judgments). (10)
Page 19
STUDY UNIT 4
Question 1
Write short notes on the following. Ensure that your answer in is proportion to
the marks allotted.
(a) locus standi in iudicio; (4)
Page 23
(b) what is understood by in forma pauperis proceedings; (2)
Page 27
(c) Explain what a power of attorney is and discuss the scope of its
application. (6)
Page 23

(d) Discuss representation by power of attorney, including when a power of

attorney is necessary and why a power of attorney is drawn up. (10)
Page 23
(e) Explain the purpose of the third party procedure contained in Rule 13 of
the Uniform Rules of Court. (3)
See page 26
Question 2
Ace Bank is liquidated due to fraud committed by its directors. Two hundred
and thirty-four plaintiffs, each of whom has a legally valid claim, get together
because they do not want to institute individual claims against the liquidators
of Ace Bank, for financial reasons. With these facts in mind, advise these
potential plaintiffs on the manner in which they could litigate against the
liquidators of Ace Bank. (6)
See page 24 and 27
STUDY UNIT 5
(a} Discuss the differences between substituted service and edictal

citation. (4)
The essential difference is found in the fact that in the case of

substituted service, the defendant is within the borders of the
Republic, but her exact whereabouts are unknown. In contrast to
this, edictal citation is used where the defendant is outside the
borders of the Republic, even if her whereabouts overseas are
known. The other important difference is procedural and you
should also comment on this.
(b) Explain substituted service. (6)
Page 31
(c) Name four methods by which normal service can be effected. (4)
Page 31
(d) Explain the method of service of a summons when a defendant is in the

Republic but the defendant's whereabouts are unknown. (6)
Page 31
(e) Your client instructs you to issue summons against Q. You establish
that Q is present in South Africa but his address is unknown. With
these facts in mind, answer the following question:
(i) Name the form of service that you would use; (1)
Substituted service
(ii) Describe the procedure that you would use to serve the
summons on Q. (5)
Page 31
STUDY UNIT 6
(a) C and D enter into a contract. D breaches the contract and C wishes to
issue summons against D. With these facts in mind answer the
following questions, giving adequate reasons for your answer in each
instance.
(i) What type of summons should C, the plaintiff, use for repayment
of the contract price, being in the amount of R400 000? (2)
The simple summons. The repayment of the contract price

falls within the definition of a "debt or liquidated demand"
since it is, inter alia, "fixed' and "definite".
(ii) What type(s) of summons could C use if D paid the contract

price by cheque but D’s cheque was dishonoured by his bank
because of insufficient funds? (4)
The simple summons because a liquid document is an

example of a debt or liquidated claim as well as the
provisional sentence summons since it was specifically
designed to address claims flowing from liquid documents.
(iii) What type of summons should C use in regard to a claim for

damages in the amount of R120 000 arising from D's breach of
contract? (2)
The combined summons. Damages constitute an

unliquidated claim, the extent of which will only be
determined or quantified after a court has heard evidence
proving the claim and has given a ruling
(b) Explain what is meant by a debt or liquidated demand.
You should deal briefly with the following in your answer: the
interpretation of the expression in terms of the old Transvaal Rule
42; the interpretation by the courts; the description of the demand
and the interpretation of "ascertained speedily". Your answer
should be illustrated by means of relevant examples. The answer
to this question is on page 35
(c) Name the type of summons that should be used in respect of the
following claims:
(i) payment of the contract price; (1) simple summons
(ii) payment of a cheque that has been marked “return to

drawer”;(1) provisional sentence summons
(iii) divorce; (1) combined summons
(iv) damages for defamation. (1) combined summons
(d) Describe the type and form of the summons that must be issued if the
claim is for a "debt or liquidated demand". (2)
Simple summons; form 9
STUDY UNIT 7
Question 1
(a) Explain the nature and effect of provisional sentence. (6)
Page 44
(b) Explain the meaning of the term "liquid document" for the purposes of
the provisional sentence summons. (6)
Page 42
(c) Explain the reason for a cheque being classified as a liquid document.
(5)
Page 42
(d) The provisional summons procedure is an enforcement procedure

which may be used after hearing prima facie evidence only. Name and
discuss the three protective mechanisms built into the procedure for the
sake of the defendant. (6)
Page 44
Question 2
S gives T a cheque for R200 000 as payment for goods sold and delivered.
The cheque is dishonoured by S's bank. T may make use of the simple
summons procedure or the provisional sentence procedure to obtain payment
of the amount stated in the cheque. Compare these procedures in the
following respects:
(a) the grounds in respect of which each procedure may be used (4)
See page 45
(b) the advantages and disadvantages of each procedure for the plaintiff
(10)
Page 35 and page 45
Question 3
X consults with you in regard to a cheque he received from his bank marked
"return to drawer" because there were insufficient funds in V's current
account. During the consultation you learn that X had sold computers to the
value of R500 000 to Y and that X needs to recover the money urgently from
Y in order to finance other transactions. With these facts in mind,
(a) determine whether you could commence proceedings by means of

either a simple summons or a provisional sentence summons; (3)
See page 45
(b) explain the implications for your client in regard to the use of the simple
summons; . (4)
If judgment is granted in favour of the plaintiff it is final. Describe

procedure of using simple summons – page 19
(c) explain the implications for your client in regard to the use of the
provisional sentence summons. (5)
If judgment is granted in favour of the plaintiff, it is provisional

and the defendant may still enter into the principal case. However,
this method is faster, more effective and cheaper
STUDY UNIT 8
(a) Determine whether the following are pleadings or process documents -
(i) a combined summons (2)
Both – page 48
(ii) a declaration (2)
Pleading – page 48
(iii) Explain fully whether a subpoena is a pleading or a process.

(5)
Process – page 47
STUDY UNIT 9
(a) Explain the meaning of the phrase: "claim in reconvention". (4)
Page 51
(b) You are the attorney for the defendant. Your client receives a
combined summons wherein the plaintiff avers that he incurred
damages as a result of a motor collision due solely to the negligence of
your client. During the consultation your client contends that the plaintiff
was equally negligent and as a result your client also suffered
damages. With these facts in mind, answer the following questions:
(i) Name the pleading that you would use to introduce your client's
claim; (1)
Counterclaim
(ii) When would you introduce this pleading? (1)
At the same time or after the plea
(iii) Name the pleading that the opposite party may use to respond
to the pleading in (i) above. (1)
Replication
(c) As the principal debtor, L obtains a loan from a bank in the amount of
R500 000. Due to a variety of circumstances the bank claims
repayment of the said amount by means of a summons. In his plea on
the merits, L admits the terms of the contract of loan but contends that
the bank had released him from his obligations. On the basis of these
facts:
(i) name the pleading that the bank's attorney should use to join
issue if the bank has a defence to L's allegation that he was
released from the debt; (1)
Replication
(ii) explain the situation should the bank's attorney fail to act as
required in (i) above. (3)
Pleadings will be deemed to be closed – page 53
(d) State whether the following statements are true or false, giving reasons
for each answer. :
(i) A notice of intention to defend is a means of raising a defence.

(2)
False. A plea is a means of raising a defence
(ii) A notice of intention to defend is a pleading. (1)
False. A notice of intention to defend is a process

document
STUDY UNIT 10
Question 1
(a) Explain the manner in which pleadings may be amended. (5)
Page 58
(b) In terms of section 2(1)(b) of the Divorce Act of 1979, either of the
spouses is competent to institute divorce proceedings. N issues a
summons for divorce against his wife, P, out of the Johannesburg High
Court. P is so infuriated when she learns that N wants to divorce her,
that she instructs her attorney also to issue summons against N out of
the Durban High Court. As N’s attorney, describe how you would
respond to the combined summons issued by P. (2)
I would first file notice of intention to defend and then file a

special plea of lis pendens
(c) Discuss the differences between the special plea and the exception. (8)
 A special plea is raised only against the declaration or the

particulars of claim. An exception is raised against any
pleading.
 An exception is raised on matters in pleading, while a special
plea raises facts outside pleadings.
 Give brief details on when each may be requested.
If you merely give details of the two procedures, but make no

attempt to compare them, you will be given credit, but will not
earn full marks
(d) Compare the plea on the merits and the special plea. (4)
A plea on merits deals with the merits of the plaintiff's case as set
out in the plaintiff's particulars of claim or declaration, as the case
may be. In a plea on merits, the plaintiff's allegations are admitted,
are denied, are placed in issue, or are confessed or avoided, and
all the material facts upon which the defendant relies are stated
clearly and concisely. In brief, a plea on merits raises a defence

against the plaintiff's claim. On the other hand, a special plea is a
means of raising an objection on the basis of certain facts which
do not appear in the plaintiff's declaration or particulars of claim,
and has the effect of destroying the action (pleas in abatement) or
postponing the action (dilatory pleas).
(e) Discuss the nature and purpose of the exception. (8)
An exception is a legal objection to the opponent's pleading in

terms of Rule 23(1) of the Uniform Rules of Court. The exception
contends that there are some defects or incompleteness inherent
in the pleading: the pleading does not disclose either a cause of
action or a defence, or the pleading is vague and embarrassing.
The exception is taken to the pleading as a whole, and not to a
portion of the pleading as is the case with striking-out.
The purpose of an exception is twofold: in the case of a pleading

that is vague and embarrassing, an exception is taken in order to
prevent the person excepting from being taken by surprise or
being prejudiced in his/her pleading, or at the trial. Where the
pleading discloses no cause of action or defence, an exception
provides a speedy method of determining the issue without
having to embark on the lengthy and expensive procedure of a full
trial.
Question 2
S and T are involved in a motor collision. S issues summons against T for the
damages caused to his vehicle. However, in his particulars of claim S fails to
aver that the motor collision was due solely to the negligence of T. T responds
by filing a special plea instead of an exception. With these facts in mind,
answer the following questions, giving reasons for each answer.
(a) Why would it be incorrect to file a special plea? (2)
A special plea is a means of raising an objection on the basis of

certain facts which do not appear in the plaintiff's declaration or
particulars of claim, and has the effect of destroying or
postponing the action.
(b) Why should T have instead filed an exception? (3)
An exception attacks the allegations in a pleading and the

pleading is attacked as a whole. No factual allegation outside the
pleading may be introduced. In this instance the averment
necessary to establish or disclose a cause of action is omitted.
Since this is one of the grounds on which an exception can be
raised, T should have filed an exception.

Question 3
S issues a simple summons against T in which a decree of divorce is

requested. With these facts in mind, answer the following questions, giving
reasons for each answer.
(a) If T is of the opinion that the incorrect form of summons has been used,
can T make use of any procedure to correct the situation? (2)
Application to set aside irregular proceedings
(b) When does the period commence within which the applicant must act?
(4)
The period within which the applicant must act commences as

soon as a party takes notice that a step has been taken or that a
proceeding has occurred, and not once the irregularity thereof
has come to his notice. See page 63
(c) If T files a notice of intention to defend prior to the taking of other steps,
will this prevent him from using the procedure you have referred to in
your answer to (i) above? (2)
No. Our courts have held that filing notice of intention to defend is
merely an act done to enable the defendant to put his defence
forward. It is not regarded as a further step
(d) What form of proceeding must T use in order to approach the court for
relief? (2)
Application proceedings
Question 4
You are acting for the defendant in a divorce matter. On behalf of your client
you receive a summons, attached to which a supporting affidavit. With these
facts in mind :
(a) Explain why summons is defective. (2)
Attached to the combined summons should be the particulars of

claim, not a supporting affidavit
(b) describe the procedure that you would use to remedy the defect; (5)
Application to set aside an irregular proceeding – page 63
(c) explain whether the filing of a notice of intention to defend constitutes a

"further step". (3)

No. page 63
Question 5
By means of a summons a bank claims payment of a specified amount from

the defendant who is the surety in terms of a deed of suretyship. The bank
fails to disclose a cause of action by omitting to allege that the principle
debtor, to whom the defendant has bound himself as surety, has failed and or
is not in a position to pay the debt. With these facts in mind identify the
pleading that the defendant may use in order to respond to this situation. Give
full reasons for your answer. (4)
Exception – page 59
Question 6
C issues a summons against D for damages arising out of a breach of

contract. With these facts in mind answer the following questions.
(a) Name the procedure that D must follow if C issues a simple summons
against D. (1)
Application on notice to set aside an irregular proceeding – page

63
(b) Discuss briefly the period within which D must commence the
procedure identified in (a) above. (3)
The period within which the applicant must act commences as

soon as a party takes notice that a step has been taken or that a
proceeding has occurred, and not once the irregularity thereof
has come to his notice. See Rule 30 (2)
(c) Name the type of proceedings that D must follow. (1)
Application
(d) Briefly explain why D acts correctly by serving and filing a notice of
intention to defend, despite the procedure that is followed in (a) above.
(3)
Page 63
(e) Name the orders that a court may make. (2)
Page 63
Question 7

In each of the instances given below, indicate briefly in what way the pleading
or process concerned is defective, and whether there is any procedure the
defendant may use to raise an objection against it.
(i) In his particulars of claim, the plaintiff alleges that the parties concluded
an agreement on 1 February 2070, instead of on 1 February 2007. (2)
Amendment of pleadings – page 58
(ii) The plaintiff institutes an action for divorce against the defendant by
way of a simple summons. (2)
Application to set aside irregular proceedings – page 63
(iii) The plaintiff claims payment of a specific amount from the defendant in
terms of an agreement on which the defendant would be liable for such
payment if a certain Z were to fail to pay this amount. In the particulars
of claim the plaintiff does not allege that Z has failed to pay the amount.
(2)
Exception – page 59
(iv) The plaintiff issues summons against the defendant in the Cape High
Court to the amount of R500 000 for damages resulting from a
motorcar collision. The court grants judgment to the amount of R300
000. The defendant subsequently moves to Pretoria and is sued by the
plaintiff in the Pretoria High Court for the balance of the claim, namely
R200 000. (2)
Special plea (res iudicata) – page 62
STUDY UNIT 11
(a) State the requirements that a plaintiff must meet in order to obtain an
order for an interim payment in terms of Rule 34A (4)
Page 69
(b) State the four requirements laid down in Rule 34(5) with which an offer
to settle must comply. (8)
Page 67
(c) Write concise notes on interim payments. (6)
instances when interim payments may be ordered, the form of
such order, the relevant damages, the exercise of the court's
discretion and the requirements with which the plaintiff must
comply.

(d) As attorney for the plaintiff you have issued summons against the
defendant wherein damages are claimed for the plaintiff’s medical
costs as well as plaintiff’s loss of income as a result of his physical
incapacity. The stage of the litigation is that judgment has been given in
favour of your client but the issue of quantum has not yet been settled.
Your client has serious financial problems. With these facts in mind
answer the following questions:
(i) What can you do to alleviate your client's financial situation? (2)
Apply for interim payments
(ii) Would you use application or summons procedure to obtain this

relief? (1)
(iii) Set out one of the requirements in terms of which the plaintiff
must satisfy the court that he / she is entitled to such relief. (2)
Page 69
(e) Briefly indicate the requirements which an offer to settle must meet in
terms of Rule 34(5) of the Uniform Rules of Court. (4)
Page 67
STUDY UNIT 12
Question 1
(a) Q is a Landlord and Z is his tenant. Z is in arrears with his rental. Q

issues a summons against Z for the arrear rental and ejectment. With
regard to the given facts, determine the procedure that Q would use if-
(i) Z failed to respond to the summons within the time stated in the
summons; (5)
Your answer should cover the following: the nature of the

claim (debt or liquidated demand); that default judgment
may be sought without notice to the defendant; the manner
in which judgment may be sought and the registrar's
powers in respect of orders without hearing evidence.
(ii) Z files a notice of intention to defend within the time stated in the
summons and Q believes that Z has done so solely for the
purpose of delaying the proceedings. (5)
Summary judgment – page 75

(iii) Z files a notice of intention to defend within the time stated in the
summons but fails to file his plea on the merits timeously. (4)
Failure to file a plea – page 74
(b) Name four instances in which default judgment may be granted. (4)
Page 73
(c) Indicate what is meant by "sound reasons" in regard to setting aside an

order for default judgment. (3)
Page 75
(d) Write short notes on automatic bar and notice of bar (7)
page 73
(e) State the grounds for summary judgment. (4)
Page 75
(f) Indicate and discuss under what circumstances a court will use its
discretion to set aside a default judgment in terms of Rule 31 of the
Uniform Rules of Court. (4)
Page 74 – 75
Question 2
C issues and serves summons in a High Court against D for D's ejectment
from certain premises owned by C. With these facts in mind, comment on the
correctness of the procedure followed. Give reasons for your answers and
where necessary, state what the correct procedure should be and why.
(a) Although D fails to serve and file a notice of intention to defend within
the stipulated dies induciae, C serves and files his particulars of claim.
(5)
Incorrect. C should have applied for default judgment – page 73
(b) D reacts to the summons by serving and filing a notice of intention to

defend outside the stipulated dies induciae. C immediately responds by
claiming D has ipso facto (automatically) been barred from delivering
the notice of intention to defend. (6)
Incorrect. C should have approached the court to have the

appearance set aside as an irregular step – page 74

(c) D reacts to the summons by serving and filing a notice of intention to

defend within the stipulated dies induciae. C reacts by applying for
default judgment. (4)
Incorrect. C should have afforded D the opportunity to file his plea

within the stipulated dies induciae – page 74
(d) The matter proceeds to the trial phase. After close of pleadings and for
purposes of shortening the trial, C requests D to make discovery in
terms of Rule 35 of the Uniform Rules of Court of all documents
pertaining to the action. (3)
Correct, but discovery is primarily to prevent the parties being

taken by surprise and not to shorten the trial
Question 3
C has already paid the purchase price of a motor vehicle in full, which was
brought from D. C issues summons against D in the High Court for the
delivery of the motor vehicle. D responds to the summons by delivering a
notice of intention to defend. C is of the opinion that D is simply employing
delaying tactics and proceeds with steps to obtain judgment against D. On the
basis of these facts, answer the following questions. Give brief reasons
for your answer.
(a) What procedure must C follow to obtain judgment? (2)
Summary judgment. The question deals with delivery of a

specified movable property (a car). This is one of the grounds for
summary judgment.
(b) Discuss the steps that C must take to obtain judgment. (4)
If the plaintiff (C) wishes to apply for summary judgment, he or

she must, within a specific period after receipt of a notice of
intention to defend, deliver a notice of such application. This
application must be accompanied by an affidavit deposed to by
the plaintiff or by someone else who can confirm the facts upon
which the cause of action and the amount (if any) are based. The
affidavit must indicate the following (and may contain no further
averments):
• that, in his or her opinion, there is no bona fide defence to

the action
• that the purpose of entering an appearance is merely to
delay an action
If the claim is based on a liquid document, a copy thereof must be

attached to the application.

(c) Indicate the steps that D can take to avert the proceedings which C has
instituted against him. (4)
The defendant (D) has the choice either to give security to the
plaintiff (C) for any judgment including costs which may be given,
or to satisfy the court by affidavit (which shall be delivered within
the specified period) or with the leave of the court by oral
evidence by himself or by any other person who can swear
positively to the fact that he has a bona fide defence to the action;
this affidavit or oral evidence must disclose fully the nature and
grounds of the defence and the material facts relied upon
therefore.
Question 4
You are acting for the defendant. Summons is issued against the defendant
for damages arising out of breach of warranty. Your client acknowledges that
the product is defective and admits full liability. Furthermore, your client
requests you to keep costs to a minimum. Describe how you would respond to
your client’s instructions. (8)
Consent to judgment – page 72
Question 5
J has renovations done to his house by K who is a building contractor.

Throughout the period that the renovations were done, J complained to K
about the lack of skill and workmanship which K failed to rectify. As a result, J
refused to pay the balance of the contract price until K had rectified all the
defects. To J's surprise, he received a summons from K for payment of the
balance of the contract price. J takes the summons to you and you
immediately respond by entering a notice of intention to defend on J’s behalf.
K's attorney responds by serving an application for summary judgment on
your client. With these facts in mind,
(a) explain to your client why K is not justified in bringing an application for
summary judgment. (2}
Because J has a bona fide defence – page 75
(b) describe the step that you would take to oppose K’s application for
summary judgment. (6)
Page 75
Question 6
X issues a combined summons against Y for damages arising out of breach of

contract. Y responds with a notice of intention to defend. With these facts in
mind, answer the following questions.
(a) May X bring an application for summary judgment in response to Y's

notice of intention to defend? (2)
No. summary judgement can only brought on a simple summons.

Page 75
(b) Discuss the procedure that X may follow if Y fails to file a plea on the
merits. (3)
First notice of bar. Page 74
(c) Discuss the procedure that X may follow if Y fails to file a plea on the
merits, despite the procedure discussed in (b) above. (5)
Application for default judgment. Page 73
STUDY UNIT 13
Question 1
(a) State the ways in which evidence may be placed before the trial court;
(7)
Page 83
(b) Describe the information that must be contained in a discovery affidavit.

(3)
Page 81
(c) Describe the three matters that must be set out in a discovery affidavit.
(6)
Same as (b) but for 6 marks -Page 81
(d) Name the three methods by which evidence may be presented before
the court if the witness is unable to give evidence in person. (3)
Page 83
(e) L and M are involved in a motor vehicle accident. L suffers serious

injuries to his back and has to have a number of major operations. L
sues M and claims for damages. At this state, the pleadings have
closed and both parties begin to prepare for trial. With these facts in
mind, answer the following questions:
(i) Name two procedures that may be used to prevent the parties
from being caught unprepared at the trial. (2)

Any two of the following
• Discovery
• Request for further particulars for trial
 Notice of expert witnesses
• The production of plans, diagrams, models and
photographs
• Inspection or production of documents and tape
recordings
(ii) Name two steps that may be taken to shorten the trial as
required under the Uniform Rules of Court. (2)
The pre-trial conference and the exchange of the

summaries of expert testimony by experts
(iij) Name two methods by means of which the parties may present
their evidence in court (2)
Personal or viva voce evidence; otherwise on commission,

by way of interrogatories or on affidavit
STUDY UNIT 14
the marks allotted.
(a) party and party costs; (6)
Page 88
(b) Discuss the differences between party-and-party costs and attorney-

and-client costs. (10)
Page 88
(c) Briefly discuss in what two important ways attorney and client costs
and party and party costs differ from each other. (6)
Page 88
STUDY UNIT 15
Judgment is granted against the defendant. Upon the defendant's failure to

pay the judgment debt, you issue a writ of execution against the defendant's
movable property. The Sheriff furnishes you with a nulla bona return. What is
the next step that you may take to enforce the judgment (2)
Page 91

STUDY UNIT 16
Question 1
the marks allotted.
(a) the requirements for granting a final interdict. (7)
page 96
(b) Name and explain the purpose of the different types of interdicts. (6)
Page 95
(c) Describe fully the grounds for a temporary interdict. (7)
establishment of a clear right or prima facie right; what the
applicant must prove if a right is established only prima facie; the
balance of convenience and the question of a satisfactory remedy.
(d) State the three grounds required for a final interdict. (3)
Page 96
(e) Write short notes on the different types of interdicts and the purpose of
each. (7)
Page 95
COMBINATION QUESTIONS ON HIGH COURT
Question 1
Z wishes to obtain a divorce from her husband X. Merely state the correct
answer to each of the questions that follow. You must not give reasons for
your answers.
(a) What type of summons must Z use to institute the action? (1)
Combined summons
(b) What pleading must be attached to the summons?
Particulars of claim
(c) What document can Z sign whereby Z authorises her attorney to act on
her behalf? (1)

Power of attorney
(d) What form of service is necessary to serve the summons on X who is

at a known address in South Africa? (1)
Personal service
(e) What form of service of summons is necessary if X is living overseas at

the time when summons is issued? (1)
Edictal citation
(f) What form of proceedings must Z follow to obtain permission to use the
form of service referred to in (e) above? (1)
Application proceedings
(g) What is the first document that X must file if he wishes to oppose the
divorce action? (1)
Notice of intention to defend
(h) What pleading must X file in order to raise his defence? (1)
Plea
(i) What step must Z take if X files the document referred to in (h) above
but fails to file a plea? (1)
notice of bar
(j) What further step may Z take if X still fails to respond to the document
referred to in (i) above? (1)
Application for default judgment
(k) What procedure should a party use if the name of one of the minor
children is stated incorrectly in the plea? (1)
Amendment procedure
(l) Which party is responsible for using the procedure referred to in (h)
above? (1)
Any party wanting to amend his own pleadings – in this case the
DEFENDANT
(m) What procedure can Z use if X files a plea that contains vexatious
statements about Z? (1)

Application to strike out the vexatious portions
(n) What pleading can X use if he has already issued summons in another
court in which he has instituted divorce proceedings against Z? (2)
Special plea – lis pendens
(o) What pleading can Z file if X raises new matter in his plea? (1)
Replication
(p) What may Z do immediately after pleadings have closed to ensure a

speedy allocation of a trial date? (1)
Apply for set down of trial
(q) What procedural step can Z take, after close of pleadings, if she feels
that the pleadings contain insufficient information to enable her to
prepare for trial? (2)
Request for further particulars
(r) What procedure may Z use after pleadings have closed in order to
establish what documents X will raise as evidence at the trial? (1)
Discovery
(s) What proceeding are X and Z compelled to arrange and attend before
the trial in order to attempt to shorten the trial? (1)
Pre-trial conference
(t) What form of cost order will Z request if she is of the opinion that X
seriously misconducted himself during the course of proceedings? (1)
Attorney and client costs
Question 2
F intends to sue G in the amount of R150 000 for goods sold and delivered by
F to G, for which despite demand, G fails to pay. With these facts in mind,
answer the following questions.
(a) Name the type of summons F should use to institute the action for
payment of the contract price. (1)
Simple summons
(b) Explain why you selected the summons stated in your answer to (a)
above. (2)
It is for a debt or liquidated demand
(c) Name the options available to G within the prescribed period stated in
the summons. (2)
Page 36
(d) Indicate the step F may take if G fails to exercise the options stated in
your answer to (c) above? (1)
Application for default judgment
(e) If G indicates that he wishes to defend the action, determine whether F

must deliver a declaration or bring an application for summary
judgment. (2)
F can react by serving and filing a declaration within a prescribed

period, PROVIDED the plaintiff does not apply for summary
judgment.
(f) Would your answer to (a) above differ if G paid F for the goods sold
and delivered but G's cheque was dishonoured payment stopped?
Explain. (2)
Simple summons could still be used, but the plaintiff would have
the additional option of using provisional sentence summons, as
he has a liquid document.
(g) Would your answer to (a) above differ if F's claim was for defamation?
Explain. (2)
Yes, the answer would be different. As it is a claim for

satisfaction, a combined summons must be used.
Question 3
Q is a landlord and Z is his tenant. Z is in arrears with his rental. Q issues a

summons against Z for the arrear rental and ejectment.
(a) Name the summons that Q must issue against Z. (1)
Simple summons
(b) Explain why Q must issue this type of summons. (4)
A claim for ejectment is regarded as a debt or liquidated demand –

see page 35

(c) Name the procedure that Z may use if he/she does not want to defend
the action but wishes to dispose of the claim by means of a pre-trial
judgment. (1)
Consent to judgment
(d) Describe the procedure identified in (c) above. (3)
Page 72
(e) Name the procedure that Q may use if Z fails to respond to the
summons within period of time stated therein. (1)
Default judgment
(f) Describe the procedure identified in (e) above. (4)
Page 73
(g) Name the procedure that Q may use if Z enters' a notice of intention to
defend but Q believes that Z does not have a bona fide defence. (1)
Summary judgment
(h) Describe the procedure that Q must use in order to bring the
application identified in (g) above. (5)
Page 75
(i) What document must Q file in response to Z’s notice of intention to

defend? (1)
Declaration
Question 4
X and Y are involved in a motor vehicle collision. X alleges that the collision
was due solely to the negligence of Y. On account of the collision, X claims for
loss of earnings, medical expenses as well as pain and suffering. In the light
of these facts, you must merely NAME -
(a) the nature of X's claim against Y; (1)
Claim for damages
(b) the type of summons that X must issue against Y; (1)
Combined summons
(c) the method of serving the summons if Y is in South Africa but his
address is unknown; (1)
Substituted service
(d) the pleading that Y must deliver to X after Y has filed a notice of
intention to defend; (1)
Plea
(e) the notice which X will serve on Y if Y fails to file the pleading referred
to in (d) above; (1)
Notice of bar
(f) the pleading which Y will use (in conjunction with his pleading referred
to in (d) above) if Y has a claim in reconvention against X; (1)
Counterclaim
(g) the pleading that X will use if Y introduces new facts in the pleading
referred to in (d) above; (1)
Replication
(h) the pleading that Y must use if he is of the opinion that X's particulars
of claim do not disclose a cause of action; (1)
Exception
(i) the pleading that Y will use if X's claim has prescribed; (1)
Special plea - prescription
(j) the process that Y may use if X's particulars of claim contain
allegations that are vexatious; (1)
Application to strike out
(k) the procedure that Y will use in order to correct his motor vehicle
registration number stated in his pleading referred to in (d) above; (1)
Amendment procedure
(I) the procedure that Y must follow if X has used the wrong type of
summons to institute the action; (1)
(m) the procedure that X must follow if, during the course of the
proceedings, he requires assistance in paying his medical costs; (1)

Application for interim payments
(n) the procedure that Y may use in order to settle the matter in terms of
Rule 34; (1)
Offer to settle
(o) the notice that should be delivered by X (or by Y upon X's failure to do
so) once pleadings have closed; (1)
Notice of set down
(p) the meeting that X must arrange in terms of Rule 37 after receipt of
notice of the trial date; (1)
Pre-trial conference
(q) the type of application that X may use to request relief from the court in
regard to V's failure to deliver his discovery affidavit to X; (1)
Application to compel discovery
(r) the usual costs which the court will order Y to pay if X succeeds in his
claim. (1)
Party and party costs
Question 5
X purchases a second-hand vehicle from Y and pays the purchase price of

R150 000 by cheque. The cheque is dishonoured by X's bank. Y issues a
provisional sentence summons against X for an amount of R150 000. Bearing
these facts in mind, merely STATE:
(a) What document must be attached to the provisional sentence

summons (1)
Copy of the liquid document
(b) What process must X, the defendant, file if he wishes to dispute liability
for the debt? (1)
Affidavit setting forth the grounds upon which he disputes liability
(c) What are the two matters on which the court may hear oral evidence
during the provisional sentence proceedings; (2)
Authenticity of the defendant’s signature or that of his agent, or

the authority of the defendant’s agent

(d) Once the court grants provisional sentence, what is the defendant
entitled to demand from the plaintiff before making payment? (1)
Security de restitutiendo
(e) What document must the defendant file to indicate that he wishes to
enter into the principal case? (1)
Notice of intention to defend
(f) Within what period must the defendant file the document stated in (e)
above? (1)
Within 2 months after provisional sentence has been granted
(g) What is the next pleading that must be filed in the principal case? (1)
Plea
(h) What notice must X serve on Y if Y fails to file the pleading referred to
in (g) above? (1)
Notice of bar
(i) What procedure may Y follow if X has commenced proceedings by

using the wrong type of summons? (1)
(j) What notice should be delivered by X (or by Y upon X's failure to do so)
once pleadings have closed? (1)
Notice of set down
(k) What procedure can X use if X fears that Y is about to leave the
country to avoid payment of the debt before the judgment becomes
final? (1)
Arrest suspectus de fuga
(I) What document will the registrar issue which authorises the sheriff to
arrest Y in the circumstances described in (k) above? (1)
Writ of arrest
(m) After the issue of the provisional sentence summons, what type of
order must Y obtain in order to prevent X from selling the vehicle? (1)
Prohibitory Interdict

(n) Will Y use summons or application proceedings to obtain such an

order? (1)
Question 6
C claims damages from D in the amount of R500 000 on the grounds of

defamation. The action is instituted in the High Court by means of a combined
summons. On the basis of these facts, determine whether the procedure used
by either C or D is correct or incorrect. Give reasons for each answer and
where necessary, state what the correct procedure should be.
(a) D raises a defence on the merits by means of a notice of intention to

defend. (3)
Incorrect. D must file a notice of intention to defend and raise a

defence on the merits by means of a plea
(b) D applies for an amendment of C's particulars of claim on the grounds

that the intention to defame has not been alleged by C. (4)
Incorrect. If D believes C’s particulars do not disclose a cause of

action, he must except to the summons
(c) C brings a motion to strike out the whole of D's plea on the merits on
the grounds that it contains the words " .. It is well-known that C is a
dishonest politician". (3)
Incorrect. C has brought the correct application, but an

application to strike out is only to strike out the offending words
and not the whole document.
(d) In his/her plea, D confesses the defamatory words but raises truth and
the public interest as a defence in avoidance of the claim. D assumes
that the pleadings are closed in terms of rule 29(a) and sets the matter
down for trial. (4)
Incorrect. D has raised a special defence in his plea, to which the

plaintiff can respond by replication. Thus, the pleadings have not
closed. Also it is the plaintiff’s right to set the matter down for
trial. It is only if the plaintiff fails to do so, that the Defendant can
do so.
(e) Once the pleadings have closed, C requests further particulars in

respect of the evidence which D will lead at the trial. (2)
Incorrect. C can request further particulars for the purpose of

preparing for trial. However no party is ever required to reveal the
evidence he will present at the trial.
Question 7
B wishes to sue her husband, C, for divorce in a High Court
(a) Why is it appropriate for B to issue a combined summons in this

instance? (2)
it is an unliquidated claim
(b) Name the usual processes and pleadings that will be exchanged
between the parties if the action is opposed. (8)
combined summons and particulars of claim (plaintiff); notice of

intention to defend (defendant); plea (defendant); possible
counterclaim (defendant); replication (plaintiff)
(c) C, the husband, has always refused to settle down in any one place
and prefers to travel around South Africa doing odd jobs and selling
wooden crafts. Briefly identify and discuss the procedure that B will
have to follow to effect service of summons upon C under these
circumstances. (8)
Substituted service – page 31
(d) C, the husband, fears that B may leave the country, taking their two
minor children with her. C approaches the court for a temporary
interdict to prevent such an occurrence.
(i) Name the type of proceedings that C would use to obtain the
interdict. (1)
application procedure
(ii) Name the documents that the parties must exchange if B

opposes the proceedings. (5)
notice of motion plus supporting affidavit; notice of

intention to oppose; answering affidavit; replying affidavit
Question 8
F intends to sue G for damages in the amount of R200 000 arising from
breach of contract.
(a) Explain why F should use a combined summons and not a simple
summons to institute his action against G. (4)
The claim for damages is an unliquidated claim. This means that

the quantum still has to be proved by the leading of evidence.
Only then can a court make a finding. Consequently, the

combined summons is the correct summons to use. A simple
summons is only used if a claim falls within the definition of a
"debt or liquidated demand"; in other words, this refers to a claim
that is (amongst others) fixed and definite or easily ascertainable.
(b) Explain why it would not be correct for F to institute the action by way
of application procedure. (3)
There would clearly be a real dispute of fact (or a real dispute over
any fundamental question of fact), which cannot satisfactorily be
settled without hearing oral evidence.
(c) Name the options available to G if he wishes to respond within the

prescribed period stated in the summons. (3)
The defendant has various options and can
 admit the claim and pay the amount claimed

 give notice of his/her intention to defend
 consent to judgment
(d) Explain the procedures that F must follow if G fails to deliver his plea
on the merits. (6)
Default judgment – page 73. The plea on the merits is not a

pleading as envisaged by Rule 26; namely, a "replication or
subsequent pleading". The defendant is therefore is not
automatically barred; the plaintiff first has to deliver a notice of
bar to the defendant in which he or she is instructed to deliver his
or her plea on the merits. Should the defendant fail to do so,
he/she is in default and is automatically barred. The plaintiff can
now request default judgment. (since the claim is unliquidated,
evidence to prove the quantum is required and you would have
received credit.) Please note that one cannot apply for a notice of
bar (or any other notice for that matter); a party simply issues a
notice.
Question 9
X and Y enter into an agreement of sale in terms of which X has to deliver 10

specially selected and branded oxen to Y. The agreed purchase price is R300
000. Y pays the purchase price by cheque. X fails to deliver the oxen and Y
issues summons against X for delivery of the oxen.
(a) Discuss the procedure that Y may use if X delivers a notice of intention
to defend and Y is of the opinion that X did this to gain time and to
prevent Y from obtaining the relief. (6)

Clearly, summary judgment should have been identified on the

basis of the given facts. You need to identify the types of claim
which give rise to this procedure. You have to state the 2 grounds
for summary judgment – page 75
(b) During the court proceedings referred to in (i) above, but before the
court delivers its judgment, Y is informed that X is finalising
arrangements to leave the country. Explain which remedy is available
to Y under these circumstances as well as its purpose. (5)
Arrest suspectus de fuga. The writ of arrest is issued by the

Registrar and that the court is not directly involved – page 99
(c) Name the process that Y may use in order to commence the
proceedings referred to in (ii) above. (1)
Writ of arrest
(d) If X delivers the oxen but Y's cheque is dishonoured by his bank, name
the two types of summons which X may select to institute the action.
(2)
Simple summons and provisional sentence summons
Question 10
X and Y are married to each other. A minor son is born out of the marriage.
The husband X wishes to emigrate to Australia. However, Y the wife, refuses
to leave South Africa and insists that the minor child remain with her. Ten
days before X is due to leave for Australia, he abducts the minor child. Y
wishes to obtain an order for the custody and control of the minor child.
Bearing these facts in mind, answer the following questions.
(a) Should Y use action or application proceedings? (4)
Ex parte application procedure
(b) If the matter is opposed by S, name and describe the documents which
will be exchanged between the parties. (4)
Notice of motion plus supporting affidavit; notice of intention to

oppose; answering affidavit; replying affidavit
(c) What procedure may X use if Y's documents contain inadmissible

evidence? (1)
Motion to strike out
(d) What type of order is the court likely to grant in favour of Y? (1)

Rule nisi
Question 11
S issues a summons against T for goods sold and delivered in the amount of
R120 000, which T refuses to pay despite demand. With these facts in mind,
answer the following questions, giving adequate reasons for your answer
where necessary.
(a) What should T, the defendant, do if he/she acknowledges that part of

the claim is due and owing and wishes to settle this part of the claim
immediately? (2)
A written offer to settle in terms of Rule 34 (study unit 11.2). Note:

Strictly speaking, common law tender can also be considered,
(b) What procedure should S, the plaintiff, use if T does not respond to the
summons within the period stated in the dies induciae? (1)
Default judgment
(c) Should S deliver a notice of bar to T before S can apply for the
procedure stated in (ii) above? (1)
No. The reasons are twofold: since the defendant did not give a
notice of intention to defend, he/she is not a party to the matter
and therefore does not need to be involved in the matter any
further. Secondly, the notice of intention to defend is not a
pleading and bar applies only in respect of pleadings
(d) Name the procedure that S may use if T files a notice of intention to
defend within the period in the dies induciae but does so merely to
delay the action?
Application for summary judgment
(e) Indicate the steps that T can take to defend the proceedings instituted
by S in (iv) above. (2)
T can convince the court by way of affidavit that he/she has a

bona fide defence or, with the leave of the court, by way of oral
evidence
(f) Discuss the differences in the nature of evidence presented by both S

and T at the hearing of the proceedings instituted by S in (iv) above.
(3)
The plaintiff may not include evidence in support of his/her claim

in the affidavit, while the defendant must fully disclose the nature
and grounds of his/her defence
Question 12
B is totally shocked when he is informed that an order for default judgment

has been granted against him. The claim is for goods sold and delivered to
him in the amount of R140 000 and in respect of which B has written to the
supplier stating that he was withholding payment because the goods were
defective. To B's knowledge a summons had not been served on him.
However B’s 18 year old daughter confesses that she accepted service of the
summons and was so busy with her UNISA exams that she forgot to give the
summons to B. She finds the summons hidden away between her study
material. B consults you. Explain.
(a) whether proper service was effected; (2)
YES – page 31
(b) what steps can be taken to assist B. (4)
Page 74
Question 13
X purchases a second-hand vehicle from Y and pays the purchase price of

R150 000 by cheque. The cheque is dishonoured by X's bank. Bear these
facts in mind and indicate if the following procedures are correct or not, and
give reasons for your answers. Where necessary, indicate the correct
procedure.
(a) Y issues a combined summons against X since the claim is for a debt
or a liquidated demand. (6)
Although the claim falls within the definition of a "debt or

liquidated demand", it is incorrect to issue a combined summons.
A combined summons is used when the claim is unliquidated. Y
should have issued either a simple summons, or a provisional
sentence summons, since, on the one hand, a claim based on a
(dishonoured) cheque is an example of a "debt or liquidated
demand" (it is also one of the types of claim on which summary
judgment can be given). On the other hand, the provisional
sentence summons procedure is specifically designed to
accommodate claims based on liquid documents (eg, a cheque).
(b) Y issues an appropriate summons. X wishes to defend the matter and

serves and files his plea on the merits. (4)
One does not indicate one's wish to defend a matter by serving

and filing a plea on the merits, a notice of intention to defend is
used for this purpose. The latter is only a notice to that effect and
nothing more. Only after this notice (and within the stated dies
induciae) is a plea on the merits served and filed, detailing in clear

terms the grounds of the defendant's defence in answer to the
plaintiff's claim.
Note: This is a fairly complex question in the sense that each

aspect touched upon in the statements has to be commented on.
Therefore you should read this question carefully and should you
encounter a similar one in the examination, you should make sure
that your answer covers all aspects of the question.
Question 14
M issues a combined summons against N for damages arising out of breach

of contract. N responds with a notice of intention to defend. Thereafter, within
the prescribed time limit, N files a plea on the merits along with a
counterclaim. With these facts in mind, answer the following questions.
(a) Name the pleading that must be filed by M if N in his plea on the merits
responds to one of the allegations contained in M's particulars of claim
by means of confession and avoidance. (1)
Replication
(b) Name the pleading that M must file in response to the allegations
contained in N's counterclaim. (1)
Plea on the counterclaim
(c) Name the pleading that N may use if M's pleading referred to in (b)
above does not disclose a valid defence. (1)
Exception
(d) Name the procedure that M may use if M believes that N is in

possession of a tape recording of the negotiations between M and N
and which gave rise to the conclusion of the contract. (1)
Request inspection of the tape recording
Question 2
X and Y, with their toddler, emigrate from Poland to South Africa. After six
months X, the husband, decides to leave South Africa and settles in Namibia.
The wife, Y, remains behind and later decides to institute divorce proceedings.
Answer the following questions, giving full reasons for each answer where
appropriate.
(a) Why is it inappropriate for Y to issue a simple summons in this

instance? (2)

It is an action for divorce – combined summons must be used.
(b) Why is it inappropriate for Y to use application proceedings to institute

action? (1)
In terms of the rules, it is compulsory to use summons

proceedings - page 6
(c) Briefly explain why Y's attorney should draw up a power of attorney,
despite the fact that Rule 7(1) of the Uniform Rules of Court does not
require one for the issuing of the summons in the action. (2)
Page 23
(d) In matrimonial actions it is the practice of most courts to insist on

personal service. Does this mean that Y will not be able to sue X for
divorce in South Africa? (3)
No. Use edictal citation – page 31
(e) Why would it be necessary for Y to deliver a replication if X's defence is

one of confession and avoidance? (1)
Page 53
(f) In the Deed of Settlement X has undertaken to pay Y an amount of

R500 000, but pending a divorce order Y is strapped for cash. Can she
make use of the procedure contained in rule 34A to obtain an interim
payment? (3)
No. Interim payments are only in the case of personal injuries or

death of a person – page 69. Y must make use of the R43
application procedure.
(g) If X wishes to claim financial support from Y, may he do so in his plea

on the merits? (3)
No – see page 51
(h) Y is successful in obtaining an order for divorce. Explain whether the

court is compelled to award Y party and party costs. (5)
No – see page 88
MAGISTRATES COURT PROCEDURE
STUDY UNIT 17
(a) Name three types of applications in the magistrates' courts. (4)

Page 106
(b) Discuss the circumstances in which the use of an ex parte application

is permissible in the magistrates' courts. (8)
Page 103
(c) Briefly discuss the ex parte application in magistrates' court procedure.

(5)
Page 103
STUDY UNIT 18
(a) State any eight (8) particulars that must be contained in a summons
issued out of a magistrate's court. (8)
(1) the dies induciae

(2) a warning of the consequences which will result if the
defendant fails to comply with the request in the summons
(3) a notice of consent to judgment
(4) a notice of intention to defend
(5) a notice drawing the defendant's attention to the provisions
of section 109 of the Act
(6) a notice (where claim based on a debt) in which the
defendant's attention is drawn to sections 57,58 and 65A
and 65D
(7) the address at which the plaintiff will receive pleadings
(8) a description of the parties
(9) averments in respect of jurisdiction
(10) particulars of claim
(11) the prayers
(b) As clerk of the court, state
(i) the formalities with which you must comply in order to issue the
summons. (4)
Page 114
(ii) what you must do if the plaintiff amends the summons before it
is served. (1)
Page 116
STUDY UNIT 19
Question 1
(a) Discuss fully consent to judgment in terms of rule 11. (10)

Page 120
(b) Explain the procedure that must be followed in order to obtain judgment
by default in terms of rule 12 of the Magistrates' Courts Rules. (8)
Page 121
(c) Discuss the notice of intention to defend in the magistrates' courts. (8)
Page 120
(d) Name six (6) circumstances under which a defendant may require a
plaintiff to provide security for costs. (6)
Page 120
(e) Discuss the four (4) instances when default judgment may be granted
against a party in a magistrate's court. (8)
Default judgment may be granted in the following instances:
 If the defendant fails to enter an appearance to defend within

the dies induciae.
 Where the defendant enters appearance to defend, but fails to
deliver a plea within the time stipulated in the notice of bar in
terms of Rule 12(1)(b). Speelman v Duncan 1997 1 SA 868 (C) is
authority for the preposition that five days written notice in
terms of rule 12(1)(b) means five days from the date of receipt
of the notice within which the defendant may comply with it,
and not five days from the date on which the notice was
delivered to the clerk of the court.
 If the plaintiff or applicant does not appear at the time set down
for the hearing in the trial of the action or in the application.
The action or application may be dismissed with costs.
 If a party fails to comply with a court order obliging him or her
to comply with the provisions of the rules of court in terms of
rule 60(2) and (3). The court may for example, have ordered a
plaintiff to supply further particulars and he or she fails to
furnish further particulars within the time stipulated in the
court order. The judgment is granted on application in terms of
rule 60(3).
(f) Name five documents that must be forwarded to a court in order to

obtain a judgment by default. (5)
Page 121
(g) Discuss payment without prejudice of rights by way of an offer in

settlement. (6)
Page 123
(h) Summons is served on a defendant. However, the defendant does not

wish to defend the action. Describe the steps that the defendant must
take under these circumstances. (5)
Page 120
Question 2
S is a bachelor who goes on an extended holiday overseas. When he returns

he discovers that summons has been served on him. He consults with his
attorney who informs him that the dies induciae has expired. Nevertheless, S
instructs his attorney to file a notice of intention to defend. Determine whether
the notice of intention to defend is valid. (5)
Page 121
STUDY UNIT 20
(a) Describe the steps that the defendant may take to oppose a summary
judgment application in terms of rule 14(3). (6)
Page 128
(b) Describe the steps that a defendant may take to ward off summary
judgment. (5)
Same question as above – just different wording
(c) Name four types of claims upon which summary judgment can be
granted in terms of rule 14(1) of the magistrates' courts rules. (4)
Page 127
(d) Outline the three requirements for the supporting affidavit which must
be filed by the plaintiff together with the notice for summary judgment.
(5)
Page 130
(e) Write notes on the orders that a court may make at the hearing of a
summary judgment application (5)
The court may make the following orders:
* The court may give leave to defend to a defendant so

entitled and give judgment against a defendant not so
entitled.

* The court may give leave to defend to a defendant as to

such part of the claim and give judgment against the
defendant as to the balance of the claim unless the
defendant shall have paid such balance to the court.
* It may make both such orders.
(f) Your client instructs you to bring an application for summary judgment.
In order to do so, describe
(i) the type of document that must be attached to the application;(1)
Supporting affidavit
(ij) the content of this document. (4)
Page 131
(g) Set out the three requirements for the supporting affidavit that must be
filed by the plaintiff together with the notice for summary judgment. (5)
Activity 2 – page 130
STUDY UNIT 21
(a) Name the five grounds in terms of which an exception can be raised to
a summons. (5)
(1) the summons does not disclose a cause of action

(2) the summons is vague and embarrassing
(3) the summons does not comply with the requirements of
rules 5 or 6
(4) the summons has not being properly served
(5) the copy of the summons served upon the defendant differs
materially from the original (rule 17 (2))
(b) Discuss the differences between the application to strike out and an
exception. (7)
Page 139
(c) Discuss the differences between a request for further particulars and a
notice of exception. (8)
Page 138
(d) Acting on behalf of the defendant, you receive a summons alleging that
your client is in arrears regarding the rental under a lease agreement.
Name the step would take and explain the reason for the procedure
that you would use if the prayers for relief read as follows:

Wherefore the plaintiff claims:
(i) arrear rental in the amount of R35 604.98;

(ii) ejectment for unlawful occupation;
(iii) costs
(iv) further and/or alternative relief. (2)
Application to strike out – page 138
(e) You represent the defendant. The plaintiff serves a summons on your
client. You read through the summons and notice that it contains
averments that are so vague that you are unable to prepare a plea on
the merits on behalf of your client. With these basic facts in mind:
(i) state the step that you could take to rectify the situation; (1) and
Exception
(ii) explain the procedure that must be used. (4)
Page 135
STUDY UNIT 22
(a) Name the instances when a defendant may deliver his/her plea in
terms of rule 19(1) of the Magistrate’s Courts Rules. (7)
Page 145
(b) Write a short note on the provisions governing the form and content of
a plea on the merits in the magistrates' courts. (8)
The plea contains the defence. It contains the defendant's answer

to the plaintiffs averments in the particulars of claim attached to
the summons. Rule 19 contains precisely formulated provisions
governing the form, content, time and manner of filing pleas. The
following provisions are important, namely it must:
(1) have a case number (rule 3(2)

(2) be in writing (rule 19(1))
(3) be dated and signed by the defendant or his or her attorney
(rule 19(3))
(4) comply with the provisions of subrules 19(4) and 19(6).
The plea must be formulated sufficiently clearly to inform the

plaintiff precisely of the basis of the defendant's defence. A bare
denial of liability or defence of a general issue is not permissible,
although specific allegations in the summons may be denied in so
far as such denials are not inconsistent with the rest of the
defence. The defence must admit (admission relates not only to
facts explicitly admitted but also necessary implications or results

of facts explicitly admitted) or deny (the defendant must clearly
and explicitly deny all the facts which he or she wishes to deny) or
confess and avoid all the material facts alleged in the summons
(this arises when the defendant admits all or certain of the facts in
the plaintiffs summons but proceeds to raise other facts which
put a different complexion on the facts admitted, thereby
neutralising them) and state clearly and concisely the nature
thereof (defendant must indicate whether he or she admits or
denies the allegations, whether confession and avoidance will
apply or whether he or she will file a special plea) and provide all
the material facts on which his or her defence rests (defendant
must not only indicate the nature of the defence but must also
indicate the actual facts on which his or her defence rests).
(c) List any five examples of special pleas. (5)
Page 144
STUDY UNIT 24
Discuss the amendment of pleadings in the magistrates' courts. (8)
A party may conclude during the exchange of pleadings that he or she

wishes to rectify an error. The main aim is to obtain a proper solution to
the dispute between the parties and to identify the real issues in the
matter. Amendment is usually allowed unless the application is mala
fide or the amendment would cause injustice or prejudice to the other
side which could not be compensated by an order of costs (see Rosner
v Lydia Swanepoel Trust 1998 (2) SA 123 (WLD)). Section 111(1)
provides that the court may, at any time before judgment, amend a
pleading. A party wishing to amend a pleading may deliver a notice in
terms of Rule 55A. If the other party objects to the proposed
amendment, the party who wishes to amend must, within 10 days, lodge
an application for leave to amend. The amending party is liable for costs.
STUDY UNIT 25
(a) Set out five (5) matters that can be discussed at a pre-trial conference.
(5)
Page 158
(b) Discuss discovery of documents in terms of rule 23 of the Magistrates'

Courts Rules. (10)
Page 155
(c) Name the five grounds in terms of which an exception can be raised to
a summons. (5)

Page 135
STUDY UNIT 27
(a) Describe the judgments which a magistrate's court may make in terms
of section 48 of the Magistrates' Courts Act of 1944. (8)
Page 165
(b) Name the judgments which a court may grant after the plaintiff and the
defendant have closed their respective cases and presented argument.
(8)
Same answer as (a)
(c) Explain absolution from the instance at the close of the defendant's
case. (6)
Page 163
(d) Discuss absolution from the instance when the onus is on the
defendant at the close of the case. (3)
Where onus is on the defendant, the court can never grant

absolution from the instance at the end of the entire case. Where
the defendant fails to discharge this onus on a balance of
probabilities, the court must give judgment for the plaintiff. Where
the defendant does discharge this onus on a balance of
probabilities, the court must give judgment in his or her favour.
Thus, there is no room for a judgment of absolution in this
situation.
(e) You are a magistrate. The onus rests on the defendant and at the end
of the defendants case it is evident that he has not discharged the onus
on the balance of probabilities. Under these circumstances would you
be justified in granting an order of absolution of the instance? (3)
The court can never grant absolution – page 164
STUDY UNIT 29
(a) May a creditor at will elect to issue a warrant of execution against the
movable or immovable property of the judgment debtor? Discuss
briefly. (4)
Your answer should be along the following lines: No. The

successful litigant can only enforce the judgment given in his or
her favour. There is a specific order in which goods may be
attached, namely as much movable property as may be necessary
to satisfy the judgment given; only then, if these goods are
insufficient or on good grounds shown, may immovable property

be attached. Incorporeal property may also be attached and
certain property is excluded from attachment.
(b) List any three items that are exempt from execution in terms of section
67 of the Magistrate's Court Act of 1944. (3)
Page 172
COMBINATION QUESTION MAGISTRATES COURT
(a) Vusi is cited as the defendant in a matter commenced in a magistrate's

court. With these facts in mind, answer the following questions.
(i) Name three of the specified circumstances in which Vusi may

require the plaintiff to furnish security. (3)
Page 119
(ii) Advise Vusi about the procedure and the related implications if
he should decide to make an unconditional payment into court.
(4)
Page 122
(iii) If Vusi does enter a notice of intention to defend and the plaintiff
brings an application for summary judgment against Vusi, what
steps may Vusi take to ward off the application for summary
judgment? (3)
Page 131
(iv) If the court sets aside the application for summary judgment and
Vusi wishes to object to the summons, name the various
grounds on which Vusi may raise an exception. (5)
Page 135
(b) When drafting Vusi’s plea on the merits, describe the manner in which
Vusi’s attorney may deal with the allegations of fact contained in the
plaintiffs particulars of claim by means of:
(i) admitting certain allegations; (3)
Page 142
(ii) confessing and avoiding certain allegations. (2)
Page 143

(c) Vusi wishes to amend his plea on the merits. With this in mind, answer
the following questions:
(i) What would the approach of the court be in regard to the

amendment of Vusi’s plea on the merits? (3)
Page 152
(ii) Describe the procedure that must be used to effect an

amendment of a pleading. (2)
Page 152
(d) X, a plaintiff, and Y, a defendant, are preparing for a trial in the

magistrate's court. Merely name the procedure which must be followed
in each instance.
(i) X notices a factual error in his summons and wishes to correct it.
(1)
Page 152 - amendment
(ii) Y wishes to find out what documents X intends to use to prove

his case. (1)
Page 155 - discovery
(iii) X wishes to ensure that a witness will be present in court to give

evidence on his behalf. (1)
Page 156 - subpoena
(iv) Y wishes to obtain particulars regarding X's state of health to

enable him (Y) to determine the correctness of the amount
claimed by X for damages due to personal injury. (1)
Page 156 – rule 24
(v) X fails to give notice of trial within the prescribed time limit. (1)
APPEAL, REVIEW AND VARIATION OF JUDGMENT
QUESTION 1
X, the plaintiff, institutes proceedings in a magistrate's court against B, the

defendant. Judgment is granted against B. B is dissatisfied and takes the
matter on appeal to a High Court. Bearing these facts in mind, answer the
following questions, giving brief reasons for your answer where necessary.

(a) With reference to the given facts, state two reasons why B cannot take
the matter on review. (4)
If B is dissatisfied with the judgment, he must take the matter on

appeal, not review – page 184
(b) How many judges must hear the appeal? (1)
At least 2
(c) If B is dissatisfied with the judgment given by the court of first appeal,
to which court(s) does a further appeal lie, if any? (3)
The Supreme Court of Appeal – page 199
(d) Does a right of appeal exist in respect of (c) above? (1)
No. see page 199
(e) May X execute the original judgment given in his favour in the
magistrate's court before the appeal is finalised? (3)
Noting of appeal automatically suspends execution of judgment,

pending the outcome of the appeal. See page 194
(f) What information must be contained in the notice of appeal? (3)
Page 197
QUESTION 2
M, a disc jockey, is sued in the Pretoria magistrate's court by P, a supplier of

stereo sound equipment, for the non-payment of his account. M's contention
is that the equipment that he purchased is defective. The magistrate, in
passing judgment in favour of P, stated inter alia that: "Only a degenerate,
drunken DJ would neglect to pay his debts". With these facts in mind answer
the following questions, giving full reasons in each instance.
(a) Should M appeal against the judgment or take it on review in terms of

the requirements of section 24 of the Supreme Court Act of 1959?
Explain. (2)
M should take it on review. He is concerned about the method

employed in achieving the result. The magistrate has displayed
interest in the cause and bias – page 185
(b) Depending on your answer to (a) above, state the procedure that must
be used. (1)
Page 187
(c) Discuss two basic differences between appeal and review. (4)
Page 184
QUESTION 3
Z institutes proceedings in a magistrate's court against X for damages arising

out of breach of contract. The magistrate grants judgment against X. X is
dissatisfied and takes the matter on appeal. On the basis of these facts,
answer the following questions.
(a) Must X apply for leave to appeal to a High Court? (2)
No: there is an automatic right of appeal (or perhaps more

technically correct, one appeal as of right)
(b) How many judges must hear the appeal?
At least two
(c) Describe how X must note his/her appeal to a High Court.
X must note the appeal within (20) days of the date of the
judgment appealed against, or within (20) days of the clerk of the
court providing a copy of the written judgment, whichever is the
longer. An appeal is noted by delivering a notice, and, unless the
court of appeal directs otherwise, by furnishing security for the
costs of appeal to an amount of R1 000. No security is required
from the state
(d) Explain the implications for X if Z abandons part of the judgment

granted in his/her favour. (2)
If Z (plaintiff) abandons part of the judgment granted in his/her

favour, judgment in respect of the part abandoned shall be
entered for the defendant (X) with costs. Such judgment has the
same effect as if it was originally pronounced by the court.
(e) In what manner does the noting of the appeal affect the execution of
the judgment given in the magistrate’s, pending the hearing of the
appeal? (2)
Noting of appeal automatically suspends execution of judgment,

pending the outcome of the appeal. See page 194
(f) May X still conduct the appeal if he/she satisfies any part of the
judgment against which the appeal is brought? (1)

No: section 85 specifically provides that an appellant does not

lose his/her right of appeal.
(g) Will execution of the judgment given in the magistrate's court be

suspended pending the decision of the appeal in the High court? (2)
The noting of an appeal automatically suspends the execution of

the judgment. However, the court may, on application, order that
the judgment be put into effect
QUESTION 4
(a) Name the grounds on which an order or judgment of a High Court may
be set aside in terms of common law. (4)
Page 179
(b) Name the judgments that may be rescinded by a court in terms of

section 36 of the Magistrates' Courts Act of 1944? (8)
Page 177
(c) Explain what constitutes a quorum of the Supreme Court of Appeal in

civil matters. (2)
Page 196
(d) What is the effect of noting an appeal from a magistrate's court to a

High Court? (2)
The noting of an appeal automatically suspends the execution of

the judgment. However, the court may, on application, order that
the judgment be put into effect
(e) Name-two instances when a court will interfere with a decision taken by
a quasi-judicial body. (2)
The court will interfere in the following instances:
* if a public body or individual exceeds its powers
* if a public body although confining itself within the scope of

its powers, acts mala fide or dishonestly, or for ulterior
reasons which ought not to influence its judgment
(f) Explain what is meant by the term "heads of argument" (1)
Briefly it refers to the main points to be made in counsel's

address to court as well as a list of the authorities relied upon in
support of those points.
(g) State the grounds for reviewing the proceedings of any lower court as
set out in section 24 of the Supreme Court Act 1959. (4)
Page 185
(h) Describe the procedure to be followed when noting an appeal as

prescribed by rule 51 of the magistrates' courts rules. (9)
Page 196 – 199
(i) State the information must appear in a notice of appeal from a

magistrate's court? (4)
The notice of appeal must state what part of the judgment or order
is appealed against and state the particular respect in which the
variation of the judgment or order is sought. See 34.4.3.2 of the
study guide on page 189.
(j) Explain the meaning of the term "review". (3)
Review is a process whereby proceedings of a lower court

(including various statutory bodies) is considered by a higher
court for gross irregularities (or some similar phrase). The term
"review" is also used when the proceedings of various statutory
bodies are reconsidered by a superior court.
(k) Name the procedure to be followed when variation of judgment in terms

of Uniform Rule 42 is sought. (1)
Page 180
(l) Name the procedure to be followed when variation of judgment in terms

of the common law is sought. (1)
Page 180
(m) Name the procedure that the defendant must follow in order to appeal
to the Supreme Court of Appeal. (1)
An application for leave to appeal must be lodged in duplicate

with the Registrar of the Supreme Court of Appeal within the time
limits prescribed by the law. See 34.4.3.2 of the study guide on
page 189.
QUESTION 5
During a trial, plaintiff's counsel objects to the admission of inadmissible

evidence. Counsel's objection is overruled by the magistrate and the
magistrate bases a substantial part of the judgment on the evidence that is
contended to be inadmissible. The plaintiff's claim is dismissed. With these

facts in mind answer the following questions:
(a) Should the plaintiff appeal against the judgment or take it on review?
(1)
Review
(b) Depending on your answer to (i) above, name the procedure that
should be used. (1)
Page 187
(c) Name two distinctions between appeal and review. (2)
Page 184
MULTIPLE CHOICE QUESTIONS
QUESTION 1
Indicate the most accurate statement.
Mrs Mabena is recently divorced and cannot earn sufficient to support herself
and her three young children. In order to generate extra income, she opens a
shabeen that she runs at night. Mrs Mabena is Mr Mavuso's neighbour. The
Mavuso family cannot sleep at night because of the laughter and shouting;
drunk strangers often enter their yard and there are often vicious fights in the
street. Mr Mavuso respectfully asks Mrs Mabena to close her shabeen but she
laughs at him and says she is making so much money she is going to do it
hill-time. In order to prohibit Mrs Mabena from running the shabeen, Mr
Mavuso must approach a High Court by means of
(1) a writ of arrest suspectus de fuga;

(2) a summons;
(3) an ordinary application;
(4) a warrant of execution.
QUESTION 2
X sells machinery to Y to the value of R600 000. Y pays X by means of a

cheque to the full value of the machinery. A few days later, Y's cheque is sent
to X marked "return to drawer' on account of there being insufficient funds in
Y's bank account. In order to recover the purchase price of the machinery, X
may proceed by means of
(1) a simple summons:

(2) a provisional sentence summons;
(3) a simple summons or a provisional sentence summons;

(4) a combined summons.
QUESTION 3
An interprovincial conference is held in Johannesburg dealing with the topic of

environmental waste management. During one of the sessions, Mr Toksick is
involved in a heated and personal exchange with a delegate representing
Green Peace, Mr Org Anic. Approximately a week later, the a combined
summons issued out of the Johannesburg High Court is served on Mr Toksick
in term of which Mr Anic claims damages on the grounds of defamation. In
order to respond to the summons, Mr Toksick must file the following pleading
(1) a counterclaim;
(2) a notice of intention to defend;
(3) a plea on the merits;
(4) a notice of bar.
QUESTION 4
The facts in Question 3 remain the same. In response to Mr Anic’s particulars

of claim, Mr Toksick admits that the statement concerning Mr Ant was
defamatory but that it was stated as a matter of truth in the public interest. Mr
Anic must respond by means of
(1) rejoinder,
(2) a plea in reconvention;
(3) replication;
(4) a notice of amendment to delete the words stated as truth in the public
interest.
QUESTION 5
The facts in Question 3 remain the same. However, Mr Toksick is now a

Nigerian domiciliary and the conference was held in London. Acting through
his attorney who has offices in Johannesburg, Mr Toksick must respond to Mr
Anic's particulars of claim by means of
(1) an exception;
(2) a plea in bar;
(3) a special plea;
(4) an application to strike out the particulars of claim as a whole on the
grounds of its irrelevance.

QUESTION 6
The facts in Question 3 remain the same. If Mr Toksick wishes to settle the
claim in full, one of the following procedures may be used:
(1) Mr Anic may apply the provision of rule 34A;

(2) Mr Toksick may make an unconditional written offer to settle in
respect of both the claim and costs:
(3) Mr Toksick may make an unconditional payment into court
(4) Mr Anic must assure the court that Mr Toksick has the means at his
disposal to settle the claim.
QUESTION 7
Determine which one of the following groups of procedures are not related to
each other.
(1) an ex parte application and a rule nisi;

(2) the combined summons and the simple summons;
(3) default judgment and summary dismissal;
(4) discovery of documents and a declaration.
QUESTION 8
(1) A power of attorney must be filed before a summons may be issued in

the magistrates' courts.
(2) A summons in the magistrates' courts which does not state that
the whole cause of action arose within the court's area of
jurisdiction in terms of section 28(1)(d), is excipiable.
(3) In the magistrates' courts, if a defendant fails to give notice of this
intention to defend within the dies induciae, he will be in default and will
not be permitted to file a late notice of intention to defend.
(4) All applications for default judgment in the magistrates' courts are
granted by a magistrate sitting in an open court.
QUESTION 9
(1) The Magistrates' Courts Rules rule 15 enables a defendant to obtain

copies of all documents or accounts which relate to the action.
(2) The Magistrates' Courts Rules do not provide for the exchange of
any further pleadings after the delivery of the reply.

(3) After close of pleadings, a party involved in litigation in a magistrate's

court may request further particulars to enable him to prepare for trial.
(4) A defendant may raise res iudicata as a defence should the plaintiff
again issue summons on the same cause of action in respect of which
an order for absolution of the instance was granted.
QUESTION 10
(1) Fraud is not a ground for setting side a judgment of a superior

court.
(2) The review of proceedings must be commenced within a prescribed
period.
(3) A judgment of a superior court may always be executed when an
appeal has been noted.
(4) If an appeal is granted in regard to an appeal from a superior court, a
notice of appeal must be lodged with the registrar of the Supreme
Court of Appeal and with the registrar of the court a quo within one
month after the date of granting leave to appeal.
QUESTION 11
Indicate the statement which is the closest to being correct.
(1) The supporting affidavit is the equivalent of a pleading in summons

proceedings. Consequently its contents can, as in the case of a
pleading, be amended in the event of a factual error.
(2) Summons proceedings are instituted by way of either the illiquid or the
liquid summons.
(3) If a pedestrian sustains bodily injuries as a result of a collision
between two vehicles but does not know which of the drivers was
negligent, he or she may join both drivers as defendants.
(4) In accordance with the Judi alteram pattern maxim, and in order to
notify defendants of proceedings instituted against them, notices of
motion and summons must be served on the defendants personally.
QUESTION 12
(1) The term "combined summons' bears reference to the distinctive

composition of this particular summons, namely that it combines in one
document the summons and the declaration.
(2) A contract of suretyship, in terms of which the surety undertakes to pay
an unspecified amount if the debtor fails to do so, is an example of a
liquid document, and any action that may arise from it may therefore be
instituted by way of a provisional sentence summons.
(3) The fact that after the granting of sentence in provisional
sentence proceedings a plaintiff may proceed to enforce the
judgment only after providing security de restituendo means that

a defendants interests are protected.
(4) A specific loan amount that is repayable at an interest rate of "prime
plus 2%" is an example of a "debt or liquidated demand".
QUESTION 13
(1) The basic rule for the drafting of pleadings is that the material facts
upon which the claim or defence is based must be fully pleaded.
Evidence is therefore also pleaded.
(2) A notice of intention to defend is the first pleading delivered by a
defendant who wishes to defend an action.
(3) Whether an action is instituted by way of a combined or a simple
summons, the prescribed dies induciae for the delivery of a plea
(with or without a counterclaim) is the same.
(4) In the High Court, pleadings are deemed to be closed as soon as the
plaintiff has delivered a replication.
QUESTION 14
C issues a simple summons against D in which he claims Ds ejection because

of D's allegedly being six months in arrears with his rent. On receipt of the
summons, D may react in one of the following ways:
(1) He may deliver a special plea in which he disputes the jurisdiction of

the court.
(2) He may note an exception on the ground that the claim is vague and
embarrassing.
(3) He may deliver a plea on the merits in which he fully discloses his
defence.
(4) He may apply for the summary dismissal of C's action, since he
(D) vacated the premises concerned six months after terminating
the lease in a proper manner.
QUESTION 15
Indicate the statement which is the closest to being correct. The question of
bar is raised in the following circumstances:
(1) the defendant does not timeously give notice of his intention to defend
(2) a party fails to appear at the trial
(3) a party fails to timeously deliver a replication
(4) a party fails to timeously request further particulars for the purposes of
trial.
QUESTION 16
(1) In terms of Rule 35 of the Uniform Rules of Court, a party may

lawfully refuse to disclose correspondence exchanged "without
prejudice”
(2) It is an accepted rule that an offer to settle in terms of Rule 34 and a
tender may not by disclosed in court before judgment has been given.
(3) Failure by an advocate to sign the particulars of claim causes the
document to be defective and enables the defendant to use the remedy
known as the ''special plea" with which to rectify the defect.
(4) The amendment procedure is used only to correct errors in pleadings
and may not, for instance, be used to extend the relief claimed.
QUESTION 17

In the High Courts the position is as follows'
(1) pleadings are deemed to be closed only after the plaintiff has filed his
or her replication
(2) in reply to a defendant's counterclaim, a defendant in reconvention may
file a replication in reconvention
(3) an exception may be lodged only against a declaration or particulars of
claim.
(4) it is possible to inspect a clearly specified document or tape
recording in a party's possession and relating to a reasonably
anticipated issue in the action before the close of pleadings.
QUESTION 18
Indicate the statement which is the closest to being correct
(1) In the magistrate's court, unlike the High Court, tree types of
applications may be distinguished where a respondent is cited.
(2) One of the consequences of issuing a summons is that it interrupts
prescription.
(3) Summonses may be amended at any time before the defendant enters
an appearance to defend and by having the clerk of the court initial
them.
(4) A summons lapses if it is not served within three years after issue, or if
it is issued but not further steps are taken within three years after that.
QUESTION 19
(1) A subpoena duces tecum compels a witness to present himself at a

civil Mal.

(2) In principle, no book or document that has not been disclosed

may be used for any purpose during the trial by the party in
whose possession or under whose control it is.
(3) In the magistrate's court absolution from the instance will be
considered only attic end of the plaintiff's case, because the plaintiff
must discharge his or her onus of proof.
(4) Banknotes do not form part as movable property that may be attached
for purposes of execution in terms of section 68 of the Magistrates'
Courts Act 32 of 1944.
QUESTION 20
(1) In terms of Rule 42 of the Uniform Rules of Court, any variation of

judgment sought under this rule must be done by way of the action
procedure.
(2) Although the noting of an appeal against a decision of the High
Court automatically suspends the execution of the judgment
pending the outcome of the appeal, the party in whose favour
judgment was given may approach the court that granted the
original order for an order allowing execution.
(3) In terms of section 13(2)(a) of the Supreme Court Act 59 of 1959, a
court hearing an appeal from a lower court may consist of only one
judge.
(4) In terms of section 20(2)(a) of the Supreme Court Act 59 of 1959, a
person has a right of appeal to the Supreme Court of Appeal against
the judgment of a single judge.
QUESTION 21
Indicate the statement which is the closest to correct:
An ex parte application may be used when applying
(1) for an order of arrest suspectus de fuga

(2) to attach property ad fundandam iurisdictionem
(3) for a final interdict
(4) for an amendment of access rights in respect of minor children by one
of the parents.
QUESTION 22
If the plaintiffs claim is based on an acknowledgment of debt, the action may

be instituted by way of the following summons:
(1) only the simple summons

(2) only the provisional sentence summons
(3) only the combined summons

(4) both the provisional sentence summons and the simple
summons.
QUESTION 23
D wishes to divorce her husband, F. F lives and works in London, but D does
not know his exact whereabouts. The summons must be served on F
(1) by way of substituted service (because F's exact whereabouts are

unknown)
(2) by way of normal service (because it is a matrimonial action)
(3) by way of edictal citation (because F is overseas)
(4) by way of a combination of substituted service and edictal citation
(because of a combination of factors).
QUESTION 24
X sues Y in the Transvaal Provincial Division of the High Court. X

subsequently moves to Cape Town and sues Y in the Cape Provincial
Division of the High Court in respect of the same cause of action. To prevent
the second action against her being proceeded with, Y must
(1) raise an exception

(2) deliver a special plea
(3) apply for the striking out of the matter
(4) in terms of Rule 30 of the Uniform Rules of Court apply to have the
summons set aside as an irregular proceeding.
QUESTION 25
(1) Although the general rule is that evidence must be given viva
voce and in open court, the court may, for sufficient reasons,
order that evidence be given on affidavit.
(2) If a defendant fails to timeously give notice of intention to defend, the
plaintiff must first xi give a notice of bar before he or she may apply for
default judgment against the defendant.
(3) Passengers of a minibus suffer damage in that their personal
possessions are either damaged or destroyed in a collision. Because
actions for damages tend to be of a protracted nature and most
passengers involved suffer financial hardship while the action drags on,
the passengers may, in terms of Rule 34A of the Uniform Rules of
Court, apply to court for interim payment.

(4) If a plaintiff issues two summonses against the same defendant on the
same cause of action and in two different courts, the defendant may
approach the court to have the more recent summons struck out on the
ground that that summons is irrelevant.
QUESTION 26
(1) Shortly after the granting of judgment against Y (the defendant), X (the
plaintiff), learns that Y is about to leave the country. According to X's
attorney an order of arrest suspectus de fuga would be the proper
remedy with which to prevent Y from leaving the country in order to
avoid payment of the judgment debt.
(2) A High Court will make an order, or give a judgment, only if the parties
have exchanged pleadings or process documents.
(3) Pre-trial judgments, just like post-trial judgments, bring matters to
a dose.
(4) The material difference between inspection in terms of Rule 35(14) and
inspection in terms of Rule 35(6) of the Uniform Rules of Court is that in
the former information is requested for the purposes of pleading, and in
the latter for the purposes of preparation for trial.
QUESTION 27
(1) An interdict may be defined as an extraordinary procedure, the object

of which is to protect a person against the unlawful deprivation of his or
her rights.
(2) Negotiable instruments are the only documents that, by definition, are
liquid documents.
(3) If a court makes a costs order in terms of which each party pays
his own costs, the effect of such an order is a though attorney-
and-client costs are awarded against each party with regard to his
or her own costs.
(4) A case that has been closed may be reopened only if a party can show
that he or she could not reasonably have known that certain facts are
relevant to the case.
QUESTION 28
(1) In principle, both the plaintiff and the defendant may, after
pleadings in a matter have closed, set down the case on the roll
for the allocation of a trial date.
(2) If a party or his or her attorney fails to attend a pretrial conference
properly convened in terms of Rule 37 of the Uniform Rules of Court,

the court may penalise such conduct at trial by ordering him or her to
pay party-and-party costs.
(3) Because the South African legal system forms part of the Anglo-
American legal system, the principle applies that the losing party in a
court case is ordered to pay the winning party's legal costs.
(4) High Court judgments are enforced by way of a writ of execution,
issued by the registrar of the Court concerned
QUESTION 29
(1) After entering an appearance to defend, the defendant, in order to raise

a defence on the merits, must deliver a plea on the merits, together
with a special plea.
(2) The grounds on which an application to strike out may be brought
in the magistrate's court are more extensive than those on which
such application may be brought in the High Court.
(3) Lower court proceedings are reviewed by way of the summons
procedure.
(4) A party may rectify an error in his or her pleading by simply lodging an
application for leave to amend and offering to pay costs.
QUESTION 30
(1) Although a magistrate may, during a trial, recall any witness for
further examination, he or she may not mero motu call a new
witness.
(2) If a plaintiff in a magistrate's court action adduces new allegations of
fact in his or her reply, the defendant may react to it by way of a
rejoinder.
(3) The single judge of the High Court whose judgment or order is being
appealed against may sit on the full bench at the hearing of the appeal.
(4) if the court has granted absolution form the instance, the matter is res
iudicata, and the defendant will be able to raise this defence if the
plaintiff again issues a summons on the identical cause of action.


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CIP301-K Revision Questions Page 1

THE GRADUATE ACADEMY

Revision Questions &

HIGH COURT PROCEDURE

STUDY UNIT 1 AND 2

In terms of an order of divorce, custody of three minor children has been

No real dispute of a fundamental question of fact – see page 6

(b) With reference to the exceptional circumstances of the case, indicate

Urgent application – page 11

Supporting affidavit – page 14

Notice of intention to oppose; answering affidavit; replying – page

In terms of an order for divorce, custody of the minor children is awarded to

Urgent application – page 11

Notice of motion and supporting affidavit

(b) Discuss the three questions that must be considered in order to

(c) Explain what is meant by an interlocutory application and how it differs

(d) Discuss the differences between application proceedings and illiquid

© The Graduate Academy

(f) Explain the circumstances in which the following applications may be

(i) ex parte applications

(ii) ordinary applications

Ordinary applications are used when notice of the

(jii) urgent applications

Urgent applications are used in situations of urgency or

(iv) interlocutory applications (10)

Interlocutory applications used to approach the court for

X and Y enter into a contract. A dispute arises between them. X wishes to

This is a dispute of law, not of fact. Thus, application proceedings must

This is the same answer as question 4. It is just an example of different

Y is an elderly man who has-become a spendthrift and is wasting his life's

(a) What procedure must X follow to obtain this interdict? (2)

(b) Y will oppose any proceedings instituted by X. Briefly name and

Notice of motion plus supporting affidavit; notice of intention to

J cedes shares listed on the Johannesburg Stock Exchange to K as security

(b) If K opposes the application, name the affidavits that must be

Motion to strike out – page 15

© The Graduate Academy

(a) Explain whether you would proceed by means of an ex parte or an

Ex parte application – page 10

T has passed his attorneys' admission examination and his contract as a

(a) What factors must be considered to determine the correct type of

See Form 2 of the First Schedule to the Uniform Rules of Court

Page 9 – notice of the proceedings must be given to C

page 14 – C must give ZY written notice of his intention to oppose,

(iii) C is offended at the personal remarks contained in B's supporting

Page 15 – motion to strike out

Set out the processes and pleadings in convention and reconvention

(a) locus standi in iudicio; (4)

(b) what is understood by in forma pauperis proceedings; (2)

© The Graduate Academy

(d) Discuss representation by power of attorney, including when a power of

See page 24 and 27

(a} Discuss the differences between substituted service and edictal

The essential difference is found in the fact that in the case of

(b) Explain substituted service. (6)

(d) Explain the method of service of a summons when a defendant is in the

The simple summons. The repayment of the contract price

(ii) What type(s) of summons could C use if D paid the contract

The simple summons because a liquid document is an

(iii) What type of summons should C use in regard to a claim for

The combined summons. Damages constitute an

(b) Explain what is meant by a debt or liquidated demand.

(i) payment of the contract price; (1) simple summons

(ii) payment of a cheque that has been marked “return to