CIV 3701 SEMESTER 1 AND 2 2021 ASSINGMENT 1 SOLUTIONS
QUESTION 1
a. When legislation or the rules of court neither prescribe nor prohibit the use of application
proceedings, the final test to apply is whether there is a material dispute of fact. If there is
a material dispute of fact (or can be reasonably anticipated), the use of application
proceedings is inappropriate and will normally be penalized by way of an adverse costs
order.
In the present matter, use of the application procedure is clearly inappropriate, as it stands
to reason that a breach of contract case will involve a material dispute of fact. Since such
a dispute can only be resolved by hearing oral evidence, summons proceedings will be
appropriate.
b. In regard to a claim relating to a contract, the court in whose area of jurisdiction the
contract was concluded or where the contract was to be performed, either in whole or in
part will have jurisdiction. This is known as the exercise of jurisdiction ratione
contractus. (Under common law, this falls within the ambit of ratione rei gestae)
On the given facts, the breach of contract occurred in Cape Town, therefore, the Western
Cape High Court, Cape Town will have jurisdiction to institutes the proceedings ratione
contractus.
c. Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a South
African court will exercise jurisdiction over such a person only after attachment of his or
her property has taken place, attachment ad confirmandam jurisdictionem (requiring the
cause of action to have occurred within the particular court’s area of jurisdiction apart
from the attachment).
Therefore, on the given facts, the defendant is a peregrinus of the whole Republic. The
High Court in whose area of jurisdiction the cause of action (breach) occurred, will be
QUESTION 1
a. When legislation or the rules of court neither prescribe nor prohibit the use of application
proceedings, the final test to apply is whether there is a material dispute of fact. If there is
a material dispute of fact (or can be reasonably anticipated), the use of application
proceedings is inappropriate and will normally be penalized by way of an adverse costs
order.
In the present matter, use of the application procedure is clearly inappropriate, as it stands
to reason that a breach of contract case will involve a material dispute of fact. Since such
a dispute can only be resolved by hearing oral evidence, summons proceedings will be
appropriate.
b. In regard to a claim relating to a contract, the court in whose area of jurisdiction the
contract was concluded or where the contract was to be performed, either in whole or in
part will have jurisdiction. This is known as the exercise of jurisdiction ratione
contractus. (Under common law, this falls within the ambit of ratione rei gestae)
On the given facts, the breach of contract occurred in Cape Town, therefore, the Western
Cape High Court, Cape Town will have jurisdiction to institutes the proceedings ratione
contractus.
c. Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a South
African court will exercise jurisdiction over such a person only after attachment of his or
her property has taken place, attachment ad confirmandam jurisdictionem (requiring the
cause of action to have occurred within the particular court’s area of jurisdiction apart
from the attachment).
Therefore, on the given facts, the defendant is a peregrinus of the whole Republic. The
High Court in whose area of jurisdiction the cause of action (breach) occurred, will be
