Preliminary questions -

civil action
CAUSE OF ACTION
General: Civil cause of action
• Write down:
• “A cause of action in a civil case must be set out in such a way that it
alleges all the material facts in order to: (a) constitute a lawful cause
of action and (b) provides the material facts to enable the other party
to ANSWER (should he wish) to, to these allegations”.
• “Cause of action” =“cause of complaint”.
• Compare In the criminal process, this is the charge that the accused
person is accused of. Summons v Charge Sheet.
Cause of action
• Civil claim-like criminal charge-substantive law -elements-must be
alleged and proved for success.
• In practice-attorney/advocate DRAFTS these-important skill.
• Causes of action often in delict, contract, Constitution, or in terms of
legislation.
Delictual causes of action
• Frequent causes of action from delict are motor collisions and assault.
• Consider-Drunken taxi driver disregards traffic light, crashes into your
car driven by your wife-you have suffered damages.
• Issues arising:
Delictual causes of action
• 1. The civil claim is separate from any criminal charge.
• 2. If your wife-physically injured-she may have a third-party or MVA
claim.
• 3. Who must sue?
• 4. Who must be sued: there could be vicarious liability.
• 5. Remember main elements of delict. (Allege and prove)
Delictual elements
• Remember: (a)Wrongful act [conduct], (b) fault, (c) causation, (d) damages.
• Applied, your cause of action would read: “on 3 February 2024 at/near the
corner of First and Second Street, Bloemfontein, a collision occurred between
motor car DYN123FS, the property of the plaintiff, driven by the plaintiff’s
wife, and motor car BEN123FS, driven by the defendant. The collision was
caused by the sole negligent driving of the (1st) defendant (in course and
scope of his employment with the 2nd defendant). As a result of the collision,
the plaintiff has suffered damages in the sum of R40 000.00 representing the
fair and reasonable costs of repair to his car.”
• Quantum of damages – market value or fair and reasonable costs of repair.
Example assault cause of action
• Example 2 under par. 2: read the facts-16 year old son-punched on
nose by bouncer-operation to straighten his nose, is scarred and
unable to partake in two soccer matches.
• 1. Who must sue?: minor-must be “duly assisted” or “duly
represented” by father/natural guardian.
• 2. Who must be sued? (Both)
• 3. What can be sued for-patrimonial damages-represented by… plus
general damages-pain and suffering, loss of amenities, scarring.
Contractual causes of action
• Very common causes of action.
• Substantive law of contract, determines remedies in different
scenario's.
• See the facts in textbook (Example 1 under par. 3).
• The seller’s remedies: (a) try to enforce contract-called “specific
performance” (b) she may cancel contract, get bakkie back; this is
called cancellation and restitution, (c) if there is damage to bakkie she
may claim that too.
Contractual causes of action
• Whichever option, allegations must be:
• 1. There was a valid agreement to buy and sell.
• 2. There was agreement on the item to be bought and sold.
• 3. Agreement on price and how to be paid.
• 4. Essential contractual terms; particularly in regard to process and
remedies on breach AND that this was complied with.
Allegations in case use of rei vindicatio.
• 1. She is owner of bakkie
• 2. Defendant was in possession of bakkie at time of institution action
• Also alternative relief – actio ad exhibendum.
• Buyer’s remedies.
• Patent/latent defect?
• Did seller know about defect?
• Yes – 2 options – Stick to contract + damages or cancel contract + damages.
• Neither knew – Voetstoots/CPA applies. No voetstoots – actio redhibitoria
OR actio quanti minoris.
Divorce actions
• Procedurally different from other claims: (a) special jurisdiction rules;
(b) personal service; (c) interim relief is possible.
• Several claims each constituting separate cause of action.
• Allegations and proof of:
• 1. There was valid marriage;
• 2. The court has jurisdiction;
• 3. Marital regime-how married;
• 4. Whether children under 18;
Divorce claims.
• 5. Guardianship / care / contact.
• 6. Amount for maintenance for children.
• 7. Compliance with Act 24/1987 and HC Rule 41A.
• 8. Divorce grounds.
• 9. Spousal maintenance.
• 10. Was there settlement agreement?
• 11. Division joint estate, asset transfer or accrual?
• 12. Benefit forfeiture?
Causes of action based on liquid document.
• 1. A liquid document refers to a liquid sum: “I acknowledge that I owe
you R1000 for money lent to me”-court does not have to ascertain
amount-it is fixed.
• 2. Common examples: acknowledgements of debt, bonds.