CIP301K/101/3/2010

SCHOOL OF LAW

DEPARTMENT OF CRIMINAL AND PROCEDURAL LAW

CIVIL PROCEDURE MODULE 2

(CIP301K)

Tutorial Letter 101/3/2010

Scheme of work, study resources and assignments

IMPORTANT INFORMATION: READ NOW

CONTENTS

1 INTRODUCTION

2 COMMUNICATION WITH YOUR LECTURERS

3 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION

4 STUDENT SUPPORT SYSTEM

5 TUTORIAL MATTER

6 ASSIGNMENTS

7 THE EXAMINATION AND ADMISSION TO THE EXAMINATION

 2

1 INTRODUCTION

1.1 WELCOME

Firstly, we would like to welcome you to this module. We hope that you will find it both
interesting and stimulating.

Before you begin your study of this module, you are advised to revise study units 1 to 5 of
Module 1 (CIP201G), which deal with the principles that underlie civil procedure. The
object of these study units is to place your study of civil procedure in a context that will
make the rules of practice meaningful for you. We encourage you not only to study but to
think carefully about the content of these study units in order to develop a critical
understanding of civil procedure. This will help you to master the study units that follow
and to place Module 2 (CIP301K) in context as well.

From the outset we want to emphasise that you will not pass the examination without a
great deal of preparation. Start your preparation as soon as possible. The following are
useful hints on preparation:

• Firstly, get an overview of the whole study guide.

• Before commencing with a study unit, get an overview of the whole study unit.
• Having done this, carefully study the whole study unit.
• Now do the activities and then assess your answers by referring to our feedback
• Lastly, think about what you have studied in a particular study unit and relate this
information to the rest of the study guide
• You will find that you will be able to grasp the information easily if you make sketches
and diagrams.

Finally, do not feel that you have to study in isolation. Contact your lecturers by phone or
by paying a personal visit if you have any questions about your studies.

1.2 STRUCTURE AND CONTENTS OF THE MODULE

CIP301K is a third-level module and the second module for Civil Procedure. This module
is a semester module.

The purpose of this module is for you to gain the necessary knowledge, skills, attitudes
and competencies to analyse and solve problems relating to the general principles of the
law of civil procedure, with specific reference to the procedure in the High Courts and the
magistrates’ courts (including the procedure relating to appeal, review and variation of
judgments). We are confident that the envisaged outcomes, as set out in your study guide,
will be achieved at the end of your studies.
 3 CIP301K/101
In the examination you will get a number of theoretical questions (where you will be
required to demonstrate your knowledge of the study content) as well as applied
questions (to assess your understanding of and ability to use this knowledge in practice).
Apart from such formal assessment during the examination, you, as a student learning
through distance education, have to constantly evaluate your own progress on the basis of
the outcomes stated at the beginning of each study unit. The activities at the end of each
study unit play an important role in this regard.

2 COMMUNICATION WITH YOUR LECTURERS

All queries that are not of a purely administrative nature but concern the contents of this
module should be directed to us. Please have your study material with you when
discussing your questions. Direct your written communications to:

The Lecturer (CIP301K)

Department of Criminal and Procedural Law
Unisa
PO Box 392
UNISA 0003

Prof JA Faris (012) 429 8340

Prof E Hurter (012) 429 8343
Prof OS Sibanda (012) 429 8374
Prof F Cassim (012) 429 8390

Fax (012) 429 3396

Lecturers can also be contacted telephonically. If a lecturer is not available, messages can
be left on his or her answering machine.

You are welcome to visit us to discuss any queries or problems. However, please make an
appointment. Our offices are on the 8th floor of the Cas van Vuuren Building, Main
Campus, Muckleneuk Ridge.

Prof JA Faris Cas van Vuuren Building 8-66

Prof E Hurter Cas van Vuuren Building 8-70
Prof OS Sibanda Cas van Vuuren Building 8-72
Prof F Cassim Cas van Vuuren Building 8-26

Note: Letters to lecturers may not be enclosed with or inserted into assignments.
 4

3 COMMUNICATION WITH THE UNIVERSITY ADMINISTRATION

Please address all queries about administrative matters which do not relate to the content
of this module, to the Unisa Contact Centre. Queries will then be channelled to the
respective departments. The details are as follows:

Calls (RSA only) 0861 670 411

International calls +27 11 670 9000
Fax number (RSA) (012) 429 4150
Fax number (International) +27 12 429 4150
E-mail study-info@unisa.ac.za

You may also consult the brochure Your Service Guide @ Unisa in this regard. This
brochure contains information on how to contact the University (who to write to, important
telephone and fax numbers, addresses and details of the times certain facilities are open).
If you have access to e-mail, you may contact us on the University's myUnisa on the
Internet at: http://my.unisa.ac.za.

Always supply your student number when you contact the University.

4 STUDENT SUPPORT SYSTEM

4.1 GENERAL

For information on the various student support systems and services available, please
consult the brochure Your Service Guide @ Unisa.

4.2 STUDY GROUPS

It is advisable to form study groups and to have contact with fellow students. The
addresses of students in your area may be obtained via the Unisa Contact Centre as set
out in 3 above.

4.3 myUnisa

The myUnisa student management system is Unisa’s virtual campus that helps students
communicate with their lecturers, with other students and with the administrative
departments at Unisa – all through the Internet. To go to this web-site, start at the main
Unisa web site, http://www.unisa.ac.za and click on the myUnisa link on the right-hand
side of the screen. You can also go there directly by typing http://my.unisa.ac.za.

For more information on myUnisa, please consult the brochure Your Service Guide @
Unisa.

4.4 DISCUSSION CLASSES

There are no discussion classes for this module.

 5 CIP301K/101

5 TUTORIAL MATTER

5.1 GENERAL

The tutorial matter for CIVIL PROCEDURE MODULE 2 (CIP301K) consists of the
following:

(1) prescribed textbook

(2) study guide

(3) tutorial letters which you will receive during the year

PLEASE NOTE: All the above-mentioned tutorial letters will not necessarily be
available when you register. TUTORIAL LETTERS WILL BE SENT
TO YOU AS SOON AS THEY ARE AVAILABLE.

5.2 INVENTORY

On registering you will receive the available tutorial matter as well as an inventory for the
current academic year which lists only the items available from the Department of
Despatch in Pretoria at that moment.

PLEASE NOTE: Your lecturers cannot help you with missing study material. Please
contact the Department of Despatch through the Unisa Contact
Centre. See also the brochure Your Service Guide @ Unisa (which
you received with your tutorial matter).

5.3 PRESCRIBED TEXTBOOK

There is one prescribed textbook for the course. The details are as follows:

Faris JA & Hurter E The student handbook for civil procedure (2002) Lexis Nexis
Butterworths.

Please consult the list of official booksellers and their addresses listed in Your Service
Guide @ Unisa. If you have any difficulties in obtaining this book from these bookshops,
please contact the Registrar at 012 429 4152 or the Contact Centre or by email at:
vospresc@unisa.ac.za

5.4 ADDITIONAL READING MATERIAL

If you wish to consult textbooks on civil procedure, the works mentioned under this
heading are your primary references.

You are encouraged to consult these works in order to supplement your knowledge.
However, mastering the content of the study guide is sufficient to enable you to answer the
questions in the examination. You are not expected to go further than this for examination
purposes.
 6

Farlam Fichardt Erasmus Superior court practice (1994) (loose-leaf ed) Juta (formerly
Van Loggerenberg Nathan, Barnett and Brink)

Patterson Eckard’s principles of procedure in the magistrates’ courts 4 ed

(2001) Juta

Cilliers Loots Nel Herbstein & Van Winsen The civil practice of the high courts of South
Africa (Vol 1 & 2) 5 ed (2009) Juta

5.5 STUDY GUIDE

Module 2 consists of a single study guide.

5.6 FURTHER TUTORIAL LETTERS

Besides the study guide, you will also receive other types of tutorial letters during the
semester dealing with, among other things, the following:

(1) the examination: The nature and format of the paper are explained and further
assistance given in regard to examination preparation.

(2) case studies: A number of reported court cases are analysed, using the question and
answer method.

(3) commentaries on the assignment.

6 ASSIGNMENTS

6.1 INTRODUCTORY REMARKS

This tutorial letter contains the assignments for both the first and the second semester.
Please ensure that you complete and submit the correct assignment for the semester for
which you have been registered. Two assignments have been set for each semester: one
assignment consisting of multiple choice questions, and one which requires written
answers.

6.2 COMPULSORY ASSIGNMENTS

The assignments form an important part of the learning material for this module. Two
compulsory assignments have been set: one assignment consisting of multiple choice
questions, and a written assignment. You must submit both assignments.

As stated in 6.4 below, no extension for submission of the assignments will be granted to
any student.
 7 CIP301K/101

6.3 THE COMPULSORY ASSIGNMENTS AND THE YEAR MARK

The compulsory assignments will contribute 20% towards a student’s final mark for the
module. Each assignment contributes 10% of the final mark.

Please note that you need to obtain at least 40% in the examination before your year
mark will be taken into account for your final mark.

6.4 CLOSING DATES

The closing dates are as follows:

Semester 1
Assignment 01: 26 February 2010
Assignment 02: 25 March 2010

Semester 2
Assignment 01: 13 August 2010
Assignment 02: 14 September 2010

Unisa has to supply proof of active study regarding registered students to the Department
of Education before a certain date each year. Consequently no extension of the due
dates for the assignments is possible.

Another reason why extension cannot be granted is that commentaries on the

assignments are mailed to all students on or before the due date. Obviously, if an
extension is granted, certain students would be able to copy their answers from the
commentaries.

6.5 FEEDBACK ON THE ASSIGNMENTS

Feedback on the assignments is sent to all registered students so that everyone may reap
the benefit from this. Please read your answers in conjunction with the feedback as this
provides you with a good learning opportunity.

6.6 INSTRUCTIONS

For your convenience the assignments are attached to this tutorial letter as annexures.

Annexure 1 contains Assignment 01 (Semester 1)

Complete the assignment as indicated.

Annexure 2 contains Assignment 02 (Semester 1)

Fill in the mark-reading sheet, enclose the mark-reading sheet in the official assignment
cover, and mail it to the Assignment Section in the Unisa assignment envelope. Under
no circumstances may you send your assignment directly to your lecturers.
 8

Annexure 3 contains Assignment 01 (Semester 2)

Complete the assignment as indicated.

Annexure 4 contains Assignment 02 (Semester 2)

Fill in the mark-reading sheet, enclose the mark-reading sheet in the official assignment
cover, and mail it to the Assignment Section in the Unisa assignment envelope. Under
no circumstances may you send your assignment directly to your lecturers.

6.7 SUBMISSION OF ASSIGNMENTS

You may submit assignments done on mark-reading sheets either by post or electronically
via myUnisa. Assignments may not be submitted by fax or e-mail. For detailed
information and requirements regarding assignments, see Your Service Guide @ Unisa.

To submit an assignment via myUnisa:

• Go to myUnisa.
• Log in with your student number and password.
• Select the module.
• Click on assignments in the left-hand menu.
• Click on the assignment number you want to submit.
• Follow the instructions on the screen.

6.8 PLAGIARISM

Although students may work together when preparing assignments, each student must
write and submit his or her own assignment. It is unacceptable for students to submit
identical assignments on the basis that they worked together. That amounts to plagiarism
and none of the assignments will be marked. Students may also be subjected to
disciplinary proceedings by the University.

Plagiarism is the act of taking words, ideas and thoughts of others and passing them off as
your own.

7 THE EXAMINATION AND ADMISSION TO THE EXAMINATION

7.1 THE EXAMINATION

This module is a semester module, which means that if you are registered for the first
semester, you will write the examination in May/June 2010 and the supplementary
examination in October/November 2010. If you are registered for the second semester,
you will write the examination in October/November 2010 and the supplementary
examination in May/June 2011.

At the end of each semester you will write a two-hour paper for this module. The paper
counts 100 marks. As explained in 6.3 above, the examination mark contributes 80% of
the final mark for the module and the assignment 20%. There is also a sub-minimum of
40% applicable.
 9 CIP301K/101

Please note that the examination paper will comprise a written part (70%) as well as a part
consisting of multiple choice questions (30%).

Information on the preparation for and the writing of examinations will be provided in a
later tutorial letter. Study this tutorial letter carefully since it gives an indication of the basic
information required from you in the examination.

7.2 ADMISSION TO THE EXAMINATION

Admission to the examination is not automatic. To be admitted to the examination, you

must submit the compulsory assignments. See 6.3 above.

7.3 PREVIOUS EXAMINATION PAPERS

Previous examination papers are not available to students. You may, however, accept
that examination questions will be similar to the questions asked in the activities in your
study guide and in the assignments.

We hope that you enjoy this course and wish you success with your studies.

PROF JA FARIS
PROF E HURTER
PROF OS SIBANDA
PROF F CASSIM

UNISA
/KR
 10

ANNEXURE 1

CIVIL PROCEDURE (CIP301K)

SEMESTER 1

ASSIGNMENT 01

WRITTEN ASSIGNMENT

DUE DATE: 26 FEBRUARY 2010

Instructions

1. Answer the following questions by filling in the answers in the space provided.

2. Before you answer a question, read the question carefully to ensure that you know
exactly what is required of you.

Guidance

1. Question 1 is based on the content of study unit 6, 9, 10, 11 and 13; question 2 on
study unit 17,18, 19, 21 and 23; question 3 on study unit 30, 31 and 32.

2. Limited space is provided for each answer. This has a tutorial purpose. You have to

• make the relevant information in the study guide your own

• reduce this information to the essential principle relating to the given facts
• apply the principle to the given facts

3. You may expect similar questions in the examination.

4. This assignment is a good exercise for examination purposes, and will indicate
whether your answers are detailed enough without being too lengthy.
 11 CIP301K/101

Question 1

C issues summons against D in the local High Court to the amount of R250 000 for goods
sold and delivered to D. On the basis of these facts, determine in each instance whether
the procedures followed by either C or D are correct or incorrect. If incorrect, state the
correct procedure. In each instance give reasons your answer.

(a) C issues a combined summons. (2)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(b) D alleges in his plea on the merits that C owes him an amount of R400 000 for a
piece of land that C bought from him. (2)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(c) C excepts to D’s plea because it contains an allegation that “C is always

untrustworthy”. (2)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(d) C applies for the amendment of the plea on the merits to change the amount of the
alleged purchase price to R200 000. (1)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(e) D makes a verbal offer to settle C’s claim in terms of Uniform Rule 34(1). (1)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(f) C informs Z by letter that she is herewith compelled to give evidence at the trial, and
stating further the date and time of the trial as well as the particulars of the trial
court. (2)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………
[10]
12
 13 CIP301K/101

PROCEDURE IN THE MAGISTRATES’ COURT

QUESTION 2

X and Y litigate in the magistrates’ court. X is the plaintiff, and Y is the defendant. Answer
the following questions:

(a) Name the type of application that X will have to bring to amend his summons after
service thereof. (1)

…………………………………………………………………………………………………………

(b) Explain briefly in what circumstances X’s attorney must file a power of attorney. (2)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(c) Name the procedure that Y may use if Y admits liability for the amount claimed as
damages in the summons. (1)

…………………………………………………………………………………………………………

(d) How would your answer to (c) above be affected if the amount claimed is the
amount stated in a duly executed acknowledgment of debt? Explain briefly. (3)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(e) Y decides to defend the action. X fails to timeously deliver further particulars to Y.
What step may Y now take? (1)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(f) Y wishes to place the matter on the roll as soon as possible. Explain when
pleadings are deemed closed. (2)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………… [10]
14
 15 CIP301K/101

APPEAL, REVIEW AND VARIATION OF JUDGMENTS

QUESTION 3

The following statements are all false. Briefly state the correct position.

(a) Despite the noting of an appeal, execution of the original judgment takes place
automatically. (1)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(b) Three judges constitute a full bench hearing an appeal from a magistrate’s court. (1)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(c) If a High Court judgment contains a patent error, the whole judgment will be
rescinded. (1)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(d) High Court judgments may be taken on review. (1)

…………………………………………………………………………………………………………

(e) Leave to appeal against a decision of a single judge must always be noted at the
time when judgment is given. (1)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………
[5]
[25]
16
 17 CIP301K/101

ANNEXURE 2

CIVIL PROCEDURE (CIP301K)

SEMESTER 1

ASSIGNMENT 02

Due date: 25 March 2010

1. Your unique number is : Unique number 242914

2. This number must appear on your mark-reading sheet cover.

Instructions

1. Your answer must be completed on a Unisa mark-reading sheet.

2. Only one of the statements (ie (1)-(4)) is correct. You must therefore mark only one
of the squares in respect of each question. If you mark more than one square in
respect of a specific question, you will receive no mark for your answer.

3. Bear in mind that some of the statements in a given question might be partially
correct. However, you must select the one which is the most accurate.

Marking of Assignment 02

1. Each correct answer counts one mark.

2. No mark will be awarded for an incorrect answer.

3. No mark will be awarded for an unanswered question.

4. This assignment is not marked negatively, that is, marks will not be deducted for
incorrect answers.

Tutorial comment

1. This assignment covers the whole study guide.

2. This assignment is the compulsory assignment. It is very important that you give it
your full attention since it provides important guidance for examination purposes.
 18

QUESTION 1

Indicate the statement which is the most accurate.

(1) A 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 audi alteram partem 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 2

Indicate the statement which is the most accurate.

(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 defendant’s 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”.
 19 CIP301K/101

QUESTION 3

Indicate the statement which is the most accurate.

(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 4

Indicate the statement which is the most accurate.

C issues a simple summons against D in which he claims D’s ejection because D is

allegedly 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 5

Indicate the statement which is the most accurate.

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.
 20

QUESTION 6

Indicate the statement which is the most accurate.

(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 7

Indicate the statement which is the most accurate.

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 8

Indicate the statement which is the most accurate.

(1) In the magistrate’s court, unlike the High Court, three 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 no further steps are taken within three years thereafter.
 21 CIP301K/101

QUESTION 9

Indicate the statement which is the most accurate.

(1) A subpoena duces tecum compels a witness to present himself at a civil trial.

(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 magistrates’ court absolution from the instance will be considered only at the
end of the plaintiff’s case, because the plaintiff must discharge his or her onus of
proof.

(4) Banknotes do not form part os movable property that may be attached for purposes
of execution in terms of section 68 of the Magistrates’ Courts Act 32 of 1944.

QUESTION 10

Indicate the statement which is the most accurate.

(1) In terms of Rule 42 of the Uniform Rules of Court, any variation of judgment sought
under this rule must be 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.
 22

ANNEXURE 3

CIVIL PROCEDURE (CIP301K)

SEMESTER 2

ASSIGNMENT 01

WRITTEN ASSIGNMENT

Due date: 13 August 2010

Instructions

1. Answer the following questions by filling in the answers in the space provided.

2. Before you answer a question, read the question carefully to ensure that you know
exactly what is required of you.

Guidance

1. Question 1 is based on the content of study units 6, 7, 10, 12 and 13; question 2 is
based on the content of study unit 18, 24, 25 and 27; question 3 is based on the
content of study unit 32.

2. Limited space is provided for each answer. This has a tutorial purpose. You have to

• make the relevant information in the study guide your own

• reduce this information to the essential principle that relates to the given facts
• apply the principle to the given facts

3. You may expect similar questions in the examination.

4. This assignment is a good exercise for examination purposes, and will also indicate
whether your answers are detailed enough.
 23 CIP301K/101

PROCEDURE IN THE HIGH COURT

QUESTION 1

(a) C and D conclude a contract. D breaches the contract and C wishes to issue
summons against D. With these facts in mind, answer the following questions,
giving reasons for your answer in each instance.

(i) What type of summons should C, the plaintiff, issue if the claim is for the
repayment of the contract price of R400 000? (2)

…………………………………………………………………………………………………

…………………………………………………………………………………………………

(ii) What type of summons(es) could C issue if D paid the contract price by
cheque, but D’s cheque was dishonoured by his bank because of insufficient
funds? (4)

…………………………………………………………………………………………………

…………………………………………………………………………………………………

…………………………………………………………………………………………………

…………………………………………………………………………………………………

…………………………………………………………………………………………………

…………………………………………………………………………………………………

…………………………………………………………………………………………………

(iii) What type of summons should C issue if his claim for damages to the
amount of R120 000 arises from D’s breach of contract? (2)

……………………………………………………………………………………………..…..

………………………………………………………………………………………..……..…

…………………………………………………………………………………………………

…………………………………………………………………………………………………

[8]
24
 25 CIP301K/101

(b) A institutes proceedings against B whereby he claims damages to the amount of

R150 000. A sustained these damages on account of a motor vehicle collision with
B. With these facts in mind, answer the following questions.

(i) Name the pleading that B may use if A fails to allege in his particulars of
claim that the collision was caused solely by the negligence of B. (1)

…………………………………………………………………………………………………

…………………………………………………………………………………………………

(ii) Name the pleading that B may use if he is of the opinion that the court does
not have jurisdiction to hear the matter because the collision did not occur
within the court’s jurisdiction area. (1)

…………………………………………………………………………………………………

…………………………………………………………………………………………………

(iii) Name the process that A has to serve on B if B fails to deliver his plea on the
merits timeously, and A wishes to obtain judgment against B. (1)

…………………………………………………………………………………………………

…………………………………………………………………………………………………

(iv) When may a party refuse to discover a document in terms of Uniform Rule
35? (1)

…………………………………………………………………………………………………

…………………………………………………………………………………………………
[4]
[12]
26
 27 CIP301K/101

PROCEDURE IN THE MAGISTRATES’ COURT

QUESTION 2

(a) Name three (3) matters that may be discussed at a pre-trial conference. (3)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

(b) Briefly indicate in which circumstances the clerk of the court may refuse to issue a
summons. (2)

…………………………………………………………………………………………………………

………………………………………………………………………………………………………...

(c) Briefly discuss whether an error in a party’s further particulars may be amended. (2)

……………………………………………………………………………………………………….

……………………………………………………………………………………………………….

……………………………………………………………………………………………………….

(d) Indicate the effect of an order for absolution of the instance. (1)

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………
[8]

APPEAL, REVIEW AND VARIATION OF JUDGMENT

QUESTION 3

Name the courts in respect of whose judgments appeal may only be noted once leave to
appeal has been obtained. Also state which court will grant such leave in each instance.

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………… [5]
[25]
28
 29 CIP301K/101

ANNEXURE 4

CIVIL PROCEDURE (CIP301K)

SEMESTER 2

ASSIGNMENT 02

Due date: 14 September 2010

1. Your unique number is : Unique number 227481

2. This number must appear on your mark-reading sheet cover.

Instructions

1. Your answer must be completed on a Unisa mark-reading sheet.

2. Only one of the statements (ie (1)-(4)) is correct. You must therefore mark only one
of the squares in respect of each question. If you mark more than one square in
respect of a specific question, you will receive no mark for your answer.

3. Bear in mind that some of the statements in a given question might be partially
correct. However, you must select the one which is the most accurate.

Marking of Assignment 02

1. Each correct answer counts one mark.

2. No mark will be awarded for an incorrect answer.

3. No mark will be awarded for an unanswered question.

4. This assignment is not marked negatively, that is, marks will not be deducted for
incorrect answers.

Tutorial comment

1. This assignment covers the whole study guide.

2. This assignment is the compulsory assignment. It is very important that you give it
your full attention since it provides important guidance for examination purposes.
 30

QUESTION 1

Indicate the statement which is the most accurate:

An ex parte application may be brought in the High Court when

(1) requesting that a writ of execution be issued

(2) applying for the attachment of property ad fundandam iurisdictionem

(3) applying for a final interdict

(4) one of the parents apply for an amendment of access rights in respect of minor
children.

QUESTION 2

Indicate the statement which is the most accurate:

If the plaintiff’s claim is based on an acknowledgment of debt, the action may be instituted
by way of the following summons(es):

(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 3

Indicate the statement which is the most accurate:

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).
 31 CIP301K/101

QUESTION 4

Indicate the statement which is the most accurate:

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 5

Indicate the statement which is the most accurate:

(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 give a notice of bar before he or she may apply for default judgment against the
defendant.

(3) Passengers of a minibus taxi suffer damages because their personal possessions
were 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.
 32

QUESTION 6

Indicate the statement which is the most accurate:

(1) Both the plaintiff and the defendant may, as soon as pleadings in a matter have
closed, immediately 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 7

Indicate the statement which is the most accurate:

(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) of the
Magistrates’ Courts Act, 1944, is excipiable.

(3) If a defendant fails to give notice of his intention to defend within the stated dies
induciae in the magistrates’ courts, 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.
 33 CIP301K/101

QUESTION 8

Indicate the statement which is the most accurate:

(1) If a claim in the magistrates’ courts is based on a liquid document, the plaintiff must
attach the original liquid document to the application for summary judgment.

(2) The grounds for raising an exception in the magistrates’ court are the same as
those in the High Court.

(3) If a court, after hearing evidence from both parties, is convinced that there is a
person who should be called as a witness because such a person possesses vital
information, the court may call such a person as a witness.

(4) Tools and implements of trade up to a value of R2 000 form part of the items that
are exempt from execution in terms of section 67 of the Magistrates’ Court Act,
1944.

QUESTION 9

Indicate the statement which is the most accurate:

(1) After entering an appearance to defend, the defendant must deliver a plea on the
merits, together with a special plea in order to raise a defence on the merits.

(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 10

Indicate the statement which is the most accurate:

(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 from 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.