UNIVERSITY OF BOTSWANA

DEPARTMENT OF LAW

END OF SEMESTER ONE EXAMINATIONS 2002/2003

FRONT PAGE

COURSE NO. LA W331 DURATION: 3 HRS DATE: DEC. 2002

TITLE OF PAPER: CIVIL PROCEDURE AND PRACTICE

LA}Y

TITLE OF EXAMINATION:
MORNING/AFTERNOON

INSTRUCTIONS: 1. CANDIDATES MUST ANSWERINCLUDING

FOUR QUESITONS,
QUESTION
~.
2. QUESTION~ IS MANDATORY.

3. ALL QUESTIONS CARRY EQUAL

MARKS.

DO NOT TURN OVER THIS PAGE UNTIL YOU HAVE

BEEN TOLD TO DO SO BY THE SUPERVISOR

SUBJECT:
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Ouestion One (Mandatory Question)

Mogwera has instructed you to file a suit on behalf of his son Edward
Boy Mogwera aged 12 years. He informs you that during the first quarter
of year 2000 and prior to 3 March 2000 Band E (Botswana) (Pty)
Limited was engaged in drilling, quarrying and on blasting operations at
Ramaphata about 30 kilometres from Mogoditshane on the new
Gaborone -Kanye Road.

After completing its operations or activities the employees of the

company removed all plant and equipment from the operational area
except for yet an unused or unspentexplosive or electric detonator or fuse
used for blasting which the company's employees had gathered, stored
and collected in the area.

On or about the 3 March, 2000 Edward Boy Mogwera, who was then
aged 10 years, removed or picked up the said explosive device or electric
detonator and took it home and while playing with it or after lifting the
device it exploded and injured the boy.

He sustained severe injuries on his left hand and right thigh as follows.
Left hand: loss of his ring and little finger through their bases at the
function of metacarpaljoints; loss of tip of middle finger at the level of
D.I.P. joint; radial angu1atory deformity of left thumb at I.P. joint;
ankylosis of I.P. and M.P joint. On the right thigh: multiple
hypertrophied scars of varying sixes over the anterior aspectof right thigh
giving rise to cosmetic deformity.

The boy had to undergo surgical inte on three occasions namely,

detriment on the 4 March 2000, split skin graft on 2 April 2000; skin graft
31 May 2000. In addition he received anti-biotics, analgesics,
physiotherapy and resuscitation.

You are required to draft the necessary PARTICULARS OF

CLAIM.
[25 marks]

Question Two

Molefe's neighbour, wishes to cut down a historical tree avenue on the

common border between his property and that of Molefe. Molefe wishes
to approachthe court for an order from doing so.

rventions
 3

a)

[5 marks]
b) Explain the procedure which Molefe will have to follow in order to
obtain the necessaryrelief and indicate the type of order which the
court is likely to make.

[20 marks]
[Total: 25 marks]
Question Thre~

The inherent jurisdiction of the court was defined by the Manitoba Court
of Appeal (Canada) in the following terms:

, ...the reserve or fund of powers, a residual source of powers,

which the court may draw upon as necessary whenever it is just
or equitable to do so, and in particular to ensure the observance
of the due process of law to prevent improper vexation or
oppression, to do justice between the parties, and to secure a
fair trial between them:

Do the courts in Botswana acknowledge being in possession of such

inherent jurisdiction? If so, what is the content of such jurisdiction and
its source?
[25 marks]
Question Four

a) In which circumstances may a plaintiff apply for summary

judgment?
[5 marks]
b) What courses are open to the defendant following an application
for summaryjudgment by the plaintiff?

Discuss with the aid of case law.

[10 marks]
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c Discuss the grounds on which a defendant could except to a

plaintiff s writ of summons.

[10 marks]
[Total: 25 marks]
Question Fi~

a) Bearing in mind the rules which are applicable in drafting

pleadings discuss what, if anything, is wrong with the following
excerpts from pleadings.

i) 'After the collision the defendant, in the presence of one

Mpho, an eye witness, apologised to me for not having
noticed that the traffic light had changed colour for him'
[10 marks]

b) 'Defendant devices that the plaintiff is entitled to a reduction

in the purchaseprice as well as damagesbecause in terms of
actio quanti minoris the plaintiff is only entitled to claim a
reduction in the purchaseprice'
[10 marks]
b)
[5 marks]
[Total: 25 marks]
Question Six

a) Discuss the situations which occur when:

i) the defendant and (ii) the plaintiff respectively fail to appear

at the trial and (c) when the trial is called on, neither party
appears.
[18 marks]
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b) Briefly discuss the principles formulated by the courts that have to

be considered when a party applies to have a casere-opened for the
purpose of leading new evidence.
[7 marks]
[Total: 25 marks]

Question Seven

a) State the grounds on which the proceedings of administrative

authorities and domestic tribunals may be reviewed.
[7 marks]

b) Describe the procedure to be followed when the review of the

proceedings of a domestic tribunal or that of an inferior court are
brought under review.
[18 marks]
[Total: 25 marks]

END OF QUESTIONS PAPER