CIV3701 PORTFOLIO MEMO - OCTOBER 2021 - GUIDELINES - SUPER SEMESTER UNISA

INTRODUCTORY STUDIES QUESTION 1 Confidential CIV3701 Page 5 of 7 Oct/Nov 2021 (a) When determining why a magistrate’s court has jurisdiction to hear a matter, the question is answered by reference to sections 28, 29 and 46 of the Magistrates’ Courts Act, 32 of 1944, and not on the grounds of common law jurisdiction. Explain why this is the case. (6) (b) Briefly discuss an application to set aside irregular proceedings. (6) (c) Briefly discuss the concept of ‘offer to settle” in terms of the Uniform Rule 34 and rule 18 of the magistrate’s court rules. (4) (d) Explain the meaning of the term “Liquid document” for the purposes of provisional sentence summons (4) [20] HIGH COURT JURISDICTION AND PROCEDURE QUESTION 2 (a) J learns that K, who is a journalist for Sunday Times newspaper, is in possession of J’s photos in a very comprising situation and is about to publish them the following day. Answer the following questions: (i) Name the type of application that J must use in order to prevent K from publishing the photographs. (1) (ii) Name the affidavits that must be exchanged between the parties. (3) (iii) Name the procedure that J may use if K’s affidavit contains inadmissible evidence. (1) (b) B wishes to obtain a divorce from her husband M. merely state the correct answer to each question that follows. You must not give reasons for your answers. (i) What type of summons must B use to institute the action? (1) (ii) How will the summons be served on M if he is in Nigeria? (1) (iii) What document can B sign whereby authorising her attorney to act on her behalf? (1) (iv) What is the first process that M must file if he wishes to oppose the divorce proceedings? (1) (v) What pleading must M file in order to raise his defence? (1) (vi) What procedure should a party use if the name of one the minor children is stated incorrectly in the plea? (1) (vii) What procedure can B use if M files a plea that contains a scandalous statement about B? (1) (viii) What pleading can B file if M raises a new averment in his plea? (1) (ix) What proceedings may B use after pleadings have closed in order to establish what documents M will raise as evidence at trial? (1) (x) What form of cost order will B request if she is of the opinion that M seriously misconducted himself during the course of proceedings? (1) [15] QUESTION 3 (a) S and T attend a conference for law lecturers in Cape Town. While delivering his paper, S shares a joke with the audience about T. The joke is defamatory, and T is not happy about it. The following day, T gets a call from his wife in Johannesburg about the joke which had been published in the newspaper Sowetan. Both S and T live in Mamelodi (Pretoria). T confronts S in his hotel room and later stones his car. The damages to the car repair amount to R500 000. S is unhappy about the whole situation and wants to sue for the damages. With these facts in mind, answer the following questions and give full reasons for your answers: (i) Will the Western Cape High Court, Cape Town; Gauteng Division, Pretoria; or Gauteng Local Division, Johannesburg have jurisdiction to hear the matter against Thabo? (6) (ii) Assume that T is a Nigerian resident and has a holiday home in Durban. Will the Gauteng Division, have jurisdiction in the matter? (4) (iii) Will your answer to (ii) above change if T consent to the Gauteng Division, Pretoria? Your answer should refer to applicable case law. (5) (b) X and Y have been married to each other for 2 Years. They both reside in Botswana. Y is sent to Durban for employment. Whilst in Durban for 8 months, Y decides to divorce X. With these facts in mind answer the following questions: (i) Will the KwaZulu-Natal local Division, Durban have jurisdiction on the matter? (3) (ii) Does Y have a choice to institute the proceeding in a regional or district magistrates’ Court? (2) [20] MAGISTRATES’ COURTS JURISDICTION AND PROCEDURE QUESTION 4 (a) Discuss under what circumstances the court will grant a request for amendment of pleadings.(4) (b) Name the judgments which a court may grant after the plaintiff and the defendant have closed their respective case and presented argument. (3) (c) List any three items that are exempt from execution in terms of section 67 of the Magistrate’s Court Act of 1944. (3) (d) S wishes to sue R in the amount of R120 000 for goods sold and delivered, which R, despite demands, refuses to pay. Answer the following questions. (i) Briefly discuss the type of summons S may use to commence the action. (2) (ii) Briefly explain the purpose of a pre-trial conference in the magistrates’ courts. (3) [15] Question 5 (a) X enters into a contract with Y in Pretoria. In terms of the contract, Y will build a house for X in Soweto. X pays Y R400 000 for the project. Y resides in Krugersdorp. Y fails to finish building the house and refuses to do so. X wants Y to finish building the house. Will any magistrate’s court mentioned herein be competent to force X to finish building the house? (5) (b) B owns property in Durban, which she has rented to A. The monthly rental is R30 000. A is four months in arrears, and B suspects that A plans to leave the property to avoid paying the arrear rentals in the amount of R120 000. Advise B regarding the steps she may take to recover payment of the arrear rental. (5) (c) N, who lives in Johannesburg, buys a truck for R190 000 from T in Bloemfontein. T lives in Bloemfontein. N pays T R160 000 of the purchase price and undertakes to pay the balance of R30 000 on delivery of the truck. T delivers the truck to N’s home, but despite demand, N fails to pay the balance of the purchase price. Will any magistrate’s court in all the centres mentioned above have jurisdiction to hear an action instituted by T against N for the return of the truck? Give detailed reasons for your answer. (5) APPEAL, REVIEW AND VARIATION OF JUDGMENT QUESTION 6 (a) (b) (c) (d) (d) (e) (f) If X appeals against the judgment of a single judge, may Y, the plaintiff, execute this judgment given in his favour? (4) Name the procedure that must be followed when variation of judgment is sought in terms of Rule 42 of the Uniform Rules of Court. (1) Name the procedure to be followed when variation of judgment in terms of the common law is sought. (1) During a trial, plaintiff’s representative objects to admission of inadmissible evidence. Counsel’s objection is overruled by the Magistrate and the Magistrate bases a substantial part of the judgment on the evidence contended to be inadmissible. The plaintiff’s claim is dismissed. With these facts in mind answer the following questions. (i) Should the plaintiff appeal the judgment or take it on review? (1) (ii) Depending on your answer to (i) above, name the procedure that should be used. (1) (iii) Name the two distinctions between appeal and review. (2) Briefly explain why the Constitutional court may be approached directly on appeal from any other court. (1) Which essential information must be included in a notice of appeal from magistrate court? (2) What essential information must be included in a notice of appeal from High Court? (2) © Unisa 2021 [15]