UNIVERSITY EXAMINATIONS. UNIVERSITEITSEKSAMENS. ~— ou UNISA lice C1V3701—aresee) —octtertovenber 2019 Civil Procedure uation Hows 100 Mane examiners se us up Noraaro ovine NoLazt SECOND BRON Closed book examination Ths examination question paper remains the property of the University of South Africa and may not be Femoved from the examinakon venue ’ oe THIS PAPER CONSISTS OF EIGHT (8) PAGES PLUS INSTRUCTIONS FOR COMPLETION OF A MARK READING SHEET. This examination paper remains the property of the Ui not be removed from the examination room sity of South Africa and may ‘THE QUESTIONS IN THIS PAPER COUNT 100 (ONE HUNDRED) MARKS. THIS PAPER CONSISTS OF TWO SECTIONS. SECTION A CONSISTS OF MULTIPLE CHOICE QUESTIONS (COUNTING 30 MARKS) AND MUST BE ANSWERED ON A SEPARATE MARK READING SHEET. SECTION B CONSISTS OF QUESTIONS THAT REQUIRE WRITTEN ANSWERS (COUNTING 70 MARKS) AND MUST BE ANSWERED IN THE EXAMINATION ANSWER BOOK. ANSWER BOTH SECTIONS PLEASE COMPLY WITH THE FOLLOWING INSTRUCTIONS WHEN ANSWERING THIS EXAMINATION PAPER. ‘Answer ALL 10 (TEN) questions in Section A and ALL FOUR in Section B Ensure that you give full reasons for each answer. A mere Yes/No will earn no marks. Ensure that the time you devote to each question Is proportionate to the marks allotted for the question. Please use the mark-reading sheet, which has been issued with your examination answer book to answer the questions in Section A. Read the instructions in connection with the use of the mark-reading sheet carefully. Failure to do so may result in the computer being unable to read your answers. Please ensure that the completed mark-reading sheet 1s handed in with your answer book. 5 Ten questions (marked 1 - 10) follow. Each question consists of four statements. Some statements are accurate and some are inaccurate. You have to decide which of the statements are most accurate and indicate it on the mark-reading sheet according to the number of the statement. For example, f you decide statement 2 of Question 1 1s the most accurate, you mark option [2] on the mark-reading sheet next to Question 1. 6 PLEASE COPY YOUR ANSWERS IN RESPECT OF SECTION A (QUESTIONS 1-10) ONTO ‘THE FIRST PAGE OF YOUR EXAMINATION ANSWER BOOK. THIS WILL ENSURE THAT THIS SECTION IS MARKED IF THE MARK READING SHEET IS LOST OR UNREADABLE. e one (TURN OVER]2 civ3701 OCTOBER/NOVEMBER 2019 SECTION A QUESTION 1 Indicate the most accurate statement (1) @) (3) @ Only the Constitutional Court may adjudicate any alleged violation of a fundamental nght entrenched under Chapter 2 of the Constitution, 1996 Disputes conceming the constitutional status, powers or functions between organs of state in the national or provincial spheres may only be adjudicated upon by the Constitutional Court The Supreme Court of Appeal is competent to hear only non-constitutional matters ‘A magistrate’s court 1s not competent to adjudicate upon the validity of any legistation, but may pronounce upon the validity of the exercise of executive powers by the President (3) QUESTION 2 Indicate the most accurate statement O) (2) (3) @ ‘Section 28(1A) of the Magistrates’ Courts Act 32 of 1944 provides that a regional ‘magistrates’ court shall have divorce junsdiction over either party who 1s an incola within the Jurisdictional area of the court Section 28(1A) of the Magistrates’ Courts Act 32 of 1944 prowdes that a regional magistrates’ court shall have jurisdiction to determine actions relating to the nullity of a marmage and divorce, as well as related matters A regional magistrates’ court may hear any matter provided for in terms of the Recognition of Customary Marriages Act, 1998 ‘Section 28(1A) of the Magistrates’ Courts Act 32 of 1944 provides that a district magistrates’ court shall have divorce junsdichion over either party who is resident or domiciled within the Junsdiction of the particular court 8) QUESTION 3 Indicate the most accurate statement (i) (2) (3) 4) A claim instituted by a registered company in the small clams court may not exceed the quantitative junsdiction of R20 000 imposed by the Minister of Justice and Correctional Services under the Small Claims Courts Act, 1984 ina small claims court, a party is entitled to cross-examine his or her opponent ‘A.small clams court can hear an action for seduction or breach of promise to marry A letter of demand ts the first document in small claims court proceedings @ (TURN OVER]3 civs701 OCTOBER/NOVEMBER 2019 QUESTION 4 Indicate the most accurate statement A distnct magistrate's court has junsdiction to hear the following matters a) 2) (3) (4) ‘An action by Y to compel Solly’s Construction (Pty) Ltd to build a garage on Y's property in terms of a valid building contract A contractual action in terms of section 1 of the Credit Agreements Act of 1980 where the claim 1s for R90 009, being the outstanding balance of the purchase price and the value of the item sold 1s R200 000 ‘An action for damages as a result of a motor vehicle collision which occurred outside its area of jurisdiction, but the defendant's immovable property is situated in its area of junsdiction ‘An action for breach of contract in the amount of 150 000 and the plaintiff “resides” within the court's area of jurisdiction in torms of section 28(1)(a) of the Magistrates’ Courts Act 32, of 1944 3 QUESTION 5 Indicate the most accurate statement a) 2) ‘An incola of a particular High Court is a person who 1s domiciled or resident in that court's area of junsdiction, and must be a South African citizen The forum rer sitae will exercise jurisdiction over immovable property only following the attachment thereof (3) Onthe basis of the actor sequitur forum rei rule, a High Court may not exercise jurisdiction over a defendant unless the defendant is domiciled or resident within its area of junsdiction (4) An application for attachment must be brought before the main action commences, and the applicant must show that, prima facie, he or she has a cause of action @) QUESTION 6 Indicate the most accurate statement Application proceedings may be instituted by (1) (2) (3) (4) ‘only the ex parte application only the ordinary application cther the ex parte application or the ordinary application either the ex parte application, the ordinary application, the interlocutory application or the urgent application 8) [TURN OVER]4 civ3701 OCTOBER/NOVEMBER 2019 QUESTION 7 Indicate the most accurate statement a @ Ifa dispute arises over whether a summons was served on a particular party, such dispute can be resolved by referring to the retum of service of the shentf Leaving a copy of a summons at the defendant's place of employment does not fulfill the stated requirements for ordinary service (3) A combined summons 1s @ unique document in the sense that the summons and the declaration are inextricably linked (4) Annotice of intention to defend is the first pleading which is exchanged between parties after ‘service of the summons on the defendant 3) QUESTION 8 Indicate the most accurate statement Bar is relevant in the following circumstances ay (2) The defendant fails to tmeously give notice of his intention to defend A party fails to appear at the tral (3) Aparty fails to timeously deliver a plea on the menits (4) A party fails to timeously request further particulars for tral 3) QUESTION 9 X hands over a cheque to Y as payment in terms of a contract The bank retums the cheque to Y, marked “refer to drawer" As a result, Y now wishes to institute action against XY may institute the action in the following manner Indicate the most accurate statement (at) (2) (3) (4) by using a combined surnmons only by using the simple summons by applying for summary judgment by using either the provisional sentence summons or the simple summons (3) [TURN OVER)5 c1v3701 OCTOBER/NOVEMBER 2019 QUESTION 10 Indicate the most accurate statement a) A titigant who 1s dissatisfied with the outcome of a matter in the magistrates’ court always hhas one appeal as of night (2) The proceedings of all courts and quastudicial bodies are subject to review by the High Court in terms of the Superior Courts Act, 2013 (3) __Interms of Rule 42 of the Uniform Rules of Court, any vanation of judgment sought under this rule must be done by action procedure (4) Interms of common law a judgment of the High Court may be set aside because of error on the part of the court (3) (10x3) [30] SECTION B PROCEDURE IN THE HIGH COURT QUESTION 1 (a) (b) (c) @® Wote a short note on the meaning of jurisdiction (4) Xs an incola of the Durban High Court Z wishes to commence proceedings against X, but 1s not sure whether he should proceed to do so This 1s because Z discovers, after seeing X's house closed up and shuttered, that X's employer sent him to manage a project in. Cape Town for three months With these facts in mind, answer the following questions () Fully explain whether Z may issue summons against X out of the Durban High Court (4) (u) FZ does decide to tssue summons out of the Durban High Court, would it be possible to serve the summons on X in Cape Town? Fully explain your answer 2) Ri wishes to apply for an order for attachment ad fundandam nsdictonem Fully explam whether a High Court would grant such an order in the following circumstances ~ (sf both the plaintiff and the defendant are peregrin of the Republic? 4 (u) ifthe cause of action arose outside the jurtsdictional area of the court concerned? (2) 'S enters into a contract of sale with T, whereby S purchases T's immovable property () Tis delaying the transfer of a certain property by failing to obtain clearance cerificates for the payment of municipal rates and taxes S wishes to commence proceedings against T because of this delay Discuss the grounds on which a High Court may exercise jurisdiction if S wishes to proceed as indicated @ (u) Discuss the grounds on which a High Court may exercise junsdiction if T wants 10 institute proceedings against S because S, despite demand, failed to pay the deposit due and payable under the contract 2) {20} [TURN OVER]6 civ3701 OCTOBER/NOVEMBER 2019 QUESTION 2 (a) Xand Y are mamed A sons born out of the mariage The husband, X, wishes to emigrate to Canada However, the wile, Y, refuses to leave South Afnca, andinsists that the child, which ts stil a minor, remains with her Ten days before X 1s due toleave for Canada, 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 Give full reasons for each answer () Discuss whether Y should use the action or application proceedings to commence proceedings (4) (0) _ Ifthe matters opposed by X, name and descnbe the documents which will be exchanged between the parties (4) (ui) What procedure may X use if Y's documents contain inadmissible evidence? () (iv) What type of order 1s the court likely to grant in favour of Y in these circumstances? (1) [10] (©) Q's landlord, and Z his tenant Z 1s in arrears with his rental Q issues summons against Z for the arrear rental With regard to these facts, determine, giving full reasons for each answer ~ () what the letter of demand sent to Z by Q would generally seek to achieve (ty (¥)__ the form of service of the summons if Z vacates the property in the dead of night without leaving a forwarding address, but 1s believed to be living somewhere in the same province 2) () the procedure that Q could use if Z fails to respond to the summons within the time stated in the summons oy () the procedure that Q may use if Z files a notice of intention to defend within the dies induciae and Q believes that Z has done so for no good reason and 1s simply playing for time @ (v) whether its necessary for Q's attorney to file a power of attorney with the court when instituting proceedings on Q's behalf (2) (w) whether Z will succeed in requesting the court to award him costs de bonis propis against Q's attorney if Z succeeds in successfully defending him against the procedure referred to in (wv) above 2) 10) [20] [TURN OVER]7 civs701 OCTOBER/NOVEMBER 2019 MAGISTRATES’ COURTS PROCEDURE QUESTION 3 V lives in Pretoria and works in Johannesburg While in Alberton, V is involved in a motor collision with W, who lives in Soweto W wishes to clam damages from V in the amount of R200 000, alleging that the motor collision was due solely to the negligence on the part of V With these facts in mind, answer the following questions, (@)_ May any magistrates’ court (as opposed to the High Court) hear the action? Fully explain (2) {b) Would the magistrates’ courts for the distnct of Pretona and Johannesburg be competent to exercise junsdiction? (3) (©) Will any magistrate’s court be competent to exercise yunsdiction if W's claim was for F420 000, and V has a counterclaim against W in the amount of R20 000 based on contnbutory negligence on the part of W? Fully explain (4) (¢)_ Will any magistrate's court be competent to exercise jurisdiction if mn the same summons W clams an amount of F170 000 for pain and suffering and FI50 000 for medical expenses? (4) {e) If W enters into a contract with X to repair his motor vehicle, and X fals to do so for a period of four months, will any magistrate’s court be competent to grant an order to compel X to return the motor vehicle to W? (4) (Fully discuss the meaning of the words “cause of action arose wholly” as contained in section 28(1)(d) of the Magistrates’ Courts Act 32 of 1944, and give an example to illustrate the meaning (3) [20] QUESTION 4 ‘S wishes to sue T in the amount of R90 000 for goods sold and delivered which T, despite demand, refuses to pay Answer the following questions (@)_ Name and explain the type of summons that S may use to commence the action (2) (b) Name the pleading that must be filed by S in response to T's appearance todefend (1) (c) Name the step that must be followed by T if S faiis to file the pleading referred to in (b) above (1) (¢) Having entered an appearance to defend, T realises that the cause of action has prescribed What pleading may T now file to address the matter? a) (©) Explain why it would be nappropnate for T to file an exception in the circumstances descnbed in (d) above (2) [TURN OVER]8 clv3701 OCTOBER/NOVEMBER 2019 (f) Name the procedure that must be followed if T fails to discover documents in terms of rule 23 of the magistrates’ courts rules after being requested to do so a) (g) Name the procedure which must be followed if S wishes to ensure that a witness will be present in court to give evidence on her behalf a) (h) Name the procedure which must be followed if T wishes to obtain more information from S regarding the matter to enable him to prepare for tral a) [19] [70] TOTAL: [100] © nea 2019university of sours arrica UN] SA Ea ‘Ste UNIVERSITEIT VAN SUID-AFRIKA EXAMINATION MARK READING SHEET EKSAMEN-MERKLEESBLAD For use by examination invigilator fi Vir gebruk deur eksamenopsiener |e EE e aes Gea as) ar magia s ara thence Bs 8 rs series tego ag has as ea eyMARK READING SHEET INSTRUCTIONS Your mark reading sheet 1s marked by computer and should therefore be filled in thoroughly and correctly USE ONLY AN HB PENCIL TO COMPLETE YOUR MARK READING SHEET PLEASE DO NOT FOLD OR DAMAGE YOUR MARK READING SHEET Consult the illustration of a mark reading sheet on the reverse of this page and follow the instructions step by step when working on your sheet Instruction numbers @ to @ refer to spaces oa your mark wading sheet which you should fil an as follows @ Were your paper code in these eight squares, for stance [P[s[¥[2 ofo[- [x © ine paper number pertains only to first-level courses consisting of two papers WRITE for the first paper and for the second If only one paper, then leave blank © Fitlin your mals and surname © Falinthe date of the examination © Fat nthe name of the examination centre © WRITE the digi of your student number HORIZONTALLY (from left to nght) Begin by filling in the frst git of your student number i the first square onthe lf, then fill a the other digits, each one na separate square @ _incach verucal column mark the digit that corresponds to the digit wn your student number as follows, u ° WRITE your unique paper number HORIZONTALLY [NB _Your unique paper number appears at the top of your examination paper and consists only of digits (eg 403326) © in each vertical column mark the digit that corresponds to the digit number 1n your unique paper ‘number as follows [-] © question numbers 1 to 140 dicate corresponding question numbers mn your examination paper The five spaces with digits | to 5 next to each question number méicate an alternative answer to each {question ‘The spaces of which the number correspond to the answer you have chosen for each question and should be marked as follows [-] © Forofficial use by the mnvgiletor Do not fll n any information here