CIV3701 NOTES, QUESTIONS AND ANSWERS
[Document subtitle]
Joseph
0784683517
0
,Page 1 of 387
,2020 – SEMESTER 1 – ASSIGNMENTS WITH MEM0S
QUESTION 1
Peter is domiciled in Pretoria. While on a holiday in Durban, Peter is involved in a motor
vehicle accident with Portia who failed to stop at a stop street. Portia is domiciled in
Johannesburg and owns a flat in Cape Town. Peter suffered damages to this vehicle due to
the collision in the amount of R500 000.
Bear these facts in mind and answer the following questions. Give full reasons for each
answer.
(a) May Peter institute proceedings for damages against Portia in the Johannesburg
High Court? (2)
When a defendant is domiciled or resident within the Republic, he or she is an
incola of the Republic, and the court where the defendant is domiciled, or resident
will have jurisdiction to hear the matter based on the principle actor sequitur forum
rei. In this instance, the defendant is domiciled in Johannesburg and therefore, the
Johannesburg court will have jurisdiction ratione domicilii. (See study guide unit 6.1
and 8.2.)
(b) May Peter institute proceedings for damages against Portia in the Durban High
Court? (1)
Under common law, a court will be vested with jurisdiction in respect of monetary
claims ratione rei gestae if the delict on which the claim is based was committed
within a court’s area of jurisdiction. On the given facts, the delict (a motor vehicle
accident) occurred in Durban, and Peter may thus institute proceedings. The
Durban court will have jurisdiction ratione delicti commissi. (See study guide unit
6.1.) (1)
(c) May Peter institute proceedings for damages against Portia in the Cape Town High
Court? (2)
Where a defendant is neither domiciled, nor resident in the jurisdictional area of the court
concerned, such defendant is a peregrinus of that particular court, but because he or she is
still domiciled or resident somewhere in the Republic, such defendant is termed a local
peregrinus, and the usual common-law jurisdiction principles still apply. On the given facts,
Peter may not institute action in the Cape Town High Court, as there is no jurisdictional nexus
to the court (the defendant is neither domiciled, nor resident in Cape Town and the cause of
action did not arise within the court’s area of jurisdiction). The mere fact that Portia’s property
is situated in the court’s area of jurisdiction provides no nexus, as the claim is one sou nding in
money, and not a property claim. (See study guide unit 8.3.)
(d) Will the Pretoria High Court be competent to exercise jurisdiction if, on the same facts,
Portia is now an American citizen who is domiciled in New York and the flat is situated
in Pretoria? (4)
Where a defendant is neither domiciled nor resident within the borders of the
Republic, such defendant is a foreign peregrinus. In instances where the defendant
is a peregrinus of the whole Republic, a court will assume jurisdiction only if
attachment of the defendant’s property occurs. One such form of attachment is
when the plaintiff is an incola of the court concerned and attachment of the
defendant’s property has taken place (this is known as attachment ad fundandam
iurisdictionem). For an order of attachment to found
2
, ANNEjuXrUisRdiEct1ion, it is not necessary for the cause of action to have arisen within
the
court’s area of jurisdiction: attachment ad fundandam iurisdictionen alone
constitutes the ground on which the assumption of jurisdiction is justified.
On the given facts, the defendant is a peregrinus of the Republic of South Africa and
has attachable immovable property (a flat) situated within the Pretoria High
Court’s jurisdictional area. Therefore, the Pretoria High Court will have jurisdiction to
hear the matter ad fundandam iurisdictionem. (See study guide unit 8.4.2.) (4)
COMMENT:
From the above, you will note that a particular approach was adopted in answering the
questions: we started off by stating the applicable legal principle(s), then we applied the
legal principle(s) to the given facts, and finally we reached a conclusion. This method
ensures a logical and well-constructed answer, and we strongly suggest that you adopt
this approach when answering all problem-type questions.
QUESTION 2
Donald, who lives in Pietermaritzburg, buys electronic equipment from Sipho, who lives in
Pretoria. The contract is concluded in Johannesburg and the equipment is stored in a
warehouse next to the harbour in Durban, where delivery mu st take place. Donald pays
Sipho R180 000 for the equipment, but Sipho, despite demand, fails to deliver the equipment
to Donald. Bearing these facts in mind, answer the following questions. Give full reasons for
each answer.
(a) Will the magistrates’ court situated in Johannesburg have jurisdiction to hear the
action instituted by Donald against Sipho? (3)
Section 28(1)(d) of the Magistrates’ Court Act 32 of 1944 provides that a magistrates’
court will have jurisdiction over a person if the cause of action arose “wholly” within
the area of a district or regional division. Case law has interpreted this to mean that
in respect of contractual claims, not only must the contract have been concluded
within the district or regional division concerned, but the breach must have occurred
there as well for the court to have jurisdiction.
On the given facts, the contract was concluded in Johannesburg, but the breach of
contract occurred in Durban. Therefore, the Johannesburg (district) magistrates’ court
will not have jurisdiction in terms of section 28(1)(d) of the Act, as the cause of action
did not “wholly” arise within this court’s area of jurisdiction. (See study guide unit
11.4.2.) (3)
(b) Will the magistrates’ court situated in Pretoria have jurisdiction to hear the action
instituted by Donald against Sipho? (1)
Section 28(1)(a) of the Magistrates’ Court Act 32 of 1944 provides that a magistrates’
court will have jurisdiction to hear the matter in respect of any person who “resides,
carries on business or is employed” within its district or regional division.
3
[Document subtitle]
Joseph
0784683517
0
,Page 1 of 387
,2020 – SEMESTER 1 – ASSIGNMENTS WITH MEM0S
QUESTION 1
Peter is domiciled in Pretoria. While on a holiday in Durban, Peter is involved in a motor
vehicle accident with Portia who failed to stop at a stop street. Portia is domiciled in
Johannesburg and owns a flat in Cape Town. Peter suffered damages to this vehicle due to
the collision in the amount of R500 000.
Bear these facts in mind and answer the following questions. Give full reasons for each
answer.
(a) May Peter institute proceedings for damages against Portia in the Johannesburg
High Court? (2)
When a defendant is domiciled or resident within the Republic, he or she is an
incola of the Republic, and the court where the defendant is domiciled, or resident
will have jurisdiction to hear the matter based on the principle actor sequitur forum
rei. In this instance, the defendant is domiciled in Johannesburg and therefore, the
Johannesburg court will have jurisdiction ratione domicilii. (See study guide unit 6.1
and 8.2.)
(b) May Peter institute proceedings for damages against Portia in the Durban High
Court? (1)
Under common law, a court will be vested with jurisdiction in respect of monetary
claims ratione rei gestae if the delict on which the claim is based was committed
within a court’s area of jurisdiction. On the given facts, the delict (a motor vehicle
accident) occurred in Durban, and Peter may thus institute proceedings. The
Durban court will have jurisdiction ratione delicti commissi. (See study guide unit
6.1.) (1)
(c) May Peter institute proceedings for damages against Portia in the Cape Town High
Court? (2)
Where a defendant is neither domiciled, nor resident in the jurisdictional area of the court
concerned, such defendant is a peregrinus of that particular court, but because he or she is
still domiciled or resident somewhere in the Republic, such defendant is termed a local
peregrinus, and the usual common-law jurisdiction principles still apply. On the given facts,
Peter may not institute action in the Cape Town High Court, as there is no jurisdictional nexus
to the court (the defendant is neither domiciled, nor resident in Cape Town and the cause of
action did not arise within the court’s area of jurisdiction). The mere fact that Portia’s property
is situated in the court’s area of jurisdiction provides no nexus, as the claim is one sou nding in
money, and not a property claim. (See study guide unit 8.3.)
(d) Will the Pretoria High Court be competent to exercise jurisdiction if, on the same facts,
Portia is now an American citizen who is domiciled in New York and the flat is situated
in Pretoria? (4)
Where a defendant is neither domiciled nor resident within the borders of the
Republic, such defendant is a foreign peregrinus. In instances where the defendant
is a peregrinus of the whole Republic, a court will assume jurisdiction only if
attachment of the defendant’s property occurs. One such form of attachment is
when the plaintiff is an incola of the court concerned and attachment of the
defendant’s property has taken place (this is known as attachment ad fundandam
iurisdictionem). For an order of attachment to found
2
, ANNEjuXrUisRdiEct1ion, it is not necessary for the cause of action to have arisen within
the
court’s area of jurisdiction: attachment ad fundandam iurisdictionen alone
constitutes the ground on which the assumption of jurisdiction is justified.
On the given facts, the defendant is a peregrinus of the Republic of South Africa and
has attachable immovable property (a flat) situated within the Pretoria High
Court’s jurisdictional area. Therefore, the Pretoria High Court will have jurisdiction to
hear the matter ad fundandam iurisdictionem. (See study guide unit 8.4.2.) (4)
COMMENT:
From the above, you will note that a particular approach was adopted in answering the
questions: we started off by stating the applicable legal principle(s), then we applied the
legal principle(s) to the given facts, and finally we reached a conclusion. This method
ensures a logical and well-constructed answer, and we strongly suggest that you adopt
this approach when answering all problem-type questions.
QUESTION 2
Donald, who lives in Pietermaritzburg, buys electronic equipment from Sipho, who lives in
Pretoria. The contract is concluded in Johannesburg and the equipment is stored in a
warehouse next to the harbour in Durban, where delivery mu st take place. Donald pays
Sipho R180 000 for the equipment, but Sipho, despite demand, fails to deliver the equipment
to Donald. Bearing these facts in mind, answer the following questions. Give full reasons for
each answer.
(a) Will the magistrates’ court situated in Johannesburg have jurisdiction to hear the
action instituted by Donald against Sipho? (3)
Section 28(1)(d) of the Magistrates’ Court Act 32 of 1944 provides that a magistrates’
court will have jurisdiction over a person if the cause of action arose “wholly” within
the area of a district or regional division. Case law has interpreted this to mean that
in respect of contractual claims, not only must the contract have been concluded
within the district or regional division concerned, but the breach must have occurred
there as well for the court to have jurisdiction.
On the given facts, the contract was concluded in Johannesburg, but the breach of
contract occurred in Durban. Therefore, the Johannesburg (district) magistrates’ court
will not have jurisdiction in terms of section 28(1)(d) of the Act, as the cause of action
did not “wholly” arise within this court’s area of jurisdiction. (See study guide unit
11.4.2.) (3)
(b) Will the magistrates’ court situated in Pretoria have jurisdiction to hear the action
instituted by Donald against Sipho? (1)
Section 28(1)(a) of the Magistrates’ Court Act 32 of 1944 provides that a magistrates’
court will have jurisdiction to hear the matter in respect of any person who “resides,
carries on business or is employed” within its district or regional division.
3
