CIVIL PROCEDURE – CIV3701

ASSIGNMENT 1

QUESTION 1 (a)

Anglo-American civil procedure is known to be adversarial in nature and which

considers litigation to be a private matter between the parties concerned. Anglo-
American civil procedure is characterised by the contest between the parties
represented by their legal representatives with the view to wining at all cost.

Court-annexed mediation on the other hand is where the conflicting parties engage
the services of an independent, impartial mediator to assist the parties to reach an
agreement. The mediator plays no role in deciding the outcome of the process which
is the sole prerogative of the conflicting parties. As mediation is a voluntary process,
the parties are involvement in the process and feel empowered.

Due to the high success rate of mediated matters, and to give effect to the
Constitutional imperative in terms of section 34 for access to courts, court-annexed
mediation was adopted as an alternative dispute resolution mechanism within the
civil court system with special emphasis on disputes in magistrates’ courts. To give
effect to this new ADR mechanism, the magistrates’ courts rules were mended
whereby Chapter 2 was inserted into the under GN R 183 of 18 March 2014.
These rules make provision for the parties to voluntarily submit themselves to a
mediated outcome to the conflict.

QUESTION1 (b)

The courts in South Africa do not have automatic jurisdiction to hear matters
anywhere in the country as a court of first instance. Therefore, before any actions
are instituted it is essential to first determine whether the court in question has the
jurisdiction to hear the matter. To determine whether a specific court has jurisdiction
there must be a nexus between the court and the parties themselves or the subject
matter of the dispute.

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It is also important that the court in question be able to give effect to an enforceable
judgement before it can hear the matter. Accordingly, jurisdiction is the first
consideration of an applicant or plaintiff in a matter. It therefore follows that a court
will not hear a matter if it is not vested with jurisdiction thereby wasting time and
money.

Where an applicant proceeds directly to a High Court with a matter which falls within
the ambit of a magistrate’s court, the High Court may make an award on the scales
applicable to magistrates’ courts.

To summarise, jurisdiction means the power vested in a court to adjudicate upon,

determine and dispose of a matter subject to two requirements:
(1) The court must have the authority to hear the matter.
(2) The court must have the power to enforce its judgment.

QUESTION 2 (a)

As Z is not domiciled nor a resident in the jurisdiction of the High Court of South
Africa, Western Cape Division, Cape Town, he is a local peregrinus of that court,
because he is still domiciled or resident somewhere in the Republic.
Accordingly, because Z is a local peregrinus of the High Court in Cape Town, the
court may exercise jurisdiction only if the cause of action originated within its
jurisdiction. Therefore, because the cause of action (breach of contract) arose in
Cape Town, the court has jurisdiction.

QUESTION 2 (b)

In terms of the Superior Courts Act 2013 at clause 21, a High Court will have
jurisdiction where the contract, which is the subject of the litigation is either
concluded or breached within its jurisdiction or where performance of that contract
was to be affected. This jurisdiction is vested in terms of ratione contractus.
Therefore, because the contract was concluded and breached in Cape Town, the
High Court Cape Town will have jurisdiction.

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QUESTION 2 (c)

As Z is a peregrinus of the whole Republic, he is termed a foreign peregrinus, and

only a court in which the cause of action originated and if attachment of the
defendant’s property has taken place within its jurisdiction, will have jurisdiction.

This attachment of a foreign peregrinus’s property strengthens the court’s jurisdiction

and is known as attachment ad confirmandam jurisdictionem by reason of the fact
that the cause of action arose within its jurisdiction.

A court will not have jurisdiction by virtue of ratione rei gestae where the cause of
action arose within its area of jurisdiction unless attachment ad confirmandam
iurisdictionem has first taken place because the defendant is a foreign peregrinus.

Therefore, even though the cause of action arose in Durban, the court in Durban will
only have jurisdiction if it has achieved ad confirmandam iurisdictionem.

QUESTION 3 (a)

In the absence of any rules of court or legislation to the contrary, the test to
determine whether an application contains a material dispute of fact will be the
determining factor in deciding which proceedings will be appropriate. The use of
application proceedings will normally be penalised if it contains a material dispute of
fact. In the defamation matter under consideration, a material dispute of fact will
arise which can only be resolved by oral evidence. Therefore, in this matter
summons proceeding and not application proceedings will be appropriate.

QUESTION 3 (b)

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The courts are reluctant to infringe on the audi alteram partem rule meaning “hear
the other side”, to ensure that every person is entitled to be heard before an order or
judgment is granted against him or her.
In the current matter B has given notice within the specified time (dies induciae) of
his intention to defend the matter, therefore the court will not grant a summary
judgement.

QUESTION 3 (c)

B may on his own volition approach the other party with a view to settling the matter
out of court. Alternative B can utilise the procedure provided at Uniform Rule 34 of
the Uniform Rules of Court in the event the negotiations to settle fail.

QUESTION 3 (d)

The Uniform Rules of Court number 37 contains absolute provisions requiring the
parties to take measures to shorten the trial by settling all matters which can be
achieved prior to commencement of the trial.
The meeting between the parties for the purpose of endeavouring to shorten the trial
is known as a pre-trial conference.

QUESTION 3 (e)

In the instance where a witness cannot personally be in court on good grounds, he

may be allowed to give evidence as follows:

1. by way of interrogatories where the person resides outside the court’s

jurisdiction or is outside this area at that stage in terms of section 40 of the
Superior Courts Act, 2013.
2. by way of affidavit

QUESTION 4 (a)

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If a review application is successful, the court will set aside the decision or the
proceedings that it has reviewed and return the matter to the court whose decision or
proceedings is being review for reconsideration.

QUESTION 4 (b)

In terms of Section 83 of the Magistrates’ Courts Act 32 of 1944, an appeal from a

magistrate’s court will be heard by a single judge of the High Court in who’s
jurisdiction the magistrate’s court is situated.
In terms of Section 1 of the Superior Courts Act, 2013, a full bench consisting of
three judges will hear an appeal from a single High Court.

QUESTION 4 (c)

It is required that the notice of appeal must clearly state what part of the judgment or
order is appealed against, and the whole judgement is not set aside.

QUESTION 4 (d)

The Uniform Rules of Court make provision for a notice of appeal to be filed 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 the granting of leave to appeal.

QUESTION 4 (e)

The Constitutional Court as the apex court may decide not only constitutional
matters, but any matter which it considers to be of general public interest. Before the
Constitutional Court will hear a matter, it must grant leave to appeal to it.

Academic Honesty Declaration

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I, Alicia Leonore Fisher, Student number: 67949541 declare that I am the author of
this assignment.

By signing this declaration, I acknowledge that I am aware of what plagiarism is.

I declare that this is my own, original work and that where I used other information
and resources, I did so in a responsible manner.

I did not plagiarize in any way, and I have referenced and acknowledged any legal
resources that I have consulted and used to complete this examination.
I did not use a current or previous student’s work submitting it as my own.
I did not allow anyone to copy my work and submit it as their own.

Furthermore, I acknowledge that I am aware of UNISA’s policy on plagiarism and

understand that if there is evidence of plagiarism within this document, UNISA will
take the necessary action.

31 March 2022