CIV3701- Civil Procedure Assignment 01 Unique number: 648426
Due date: 31 May 2021 Ashleigh Hala
Question 1
(a) It would be inappropriate for X to use an “ordinary” application to institute
proceedings against Z, as using this type of application requires the person
instituting the claim to notify the other person involved. In this case, if X were to
use “ordinary” application and notify Z, the giving of notice could defeat the
purpose of the application in the first place (Pete et al, 2016). If Z were to receive
notice from X, he may be inclined to go back on the breach of contract and correct
his actions, thus not having to pay any money to X and getting off with no
consequence.
(b) According to section 29 of the Magistrates’ Courts Act of 1944, there are
financial limitations placed on the magistrates’ courts and a claim that is over
R400 000 (University of South Africa 2018), which in this case it is over this
threshold at R600 000, falls within the jurisdiction of the High Court (University of
South Africa 2018). Secondly, the matter will be able to be heard in a court where
a particular defendant is a resident or domiciled and as X is an incola of Cape
Town, this court can hear the matter ratione domicilii. In addition, the breach of
contract occurred in Cape Town, so X can institute proceedings against Z giving
jurisdiction to the Cape Town High Court in this matter ratione res gestae.
(c) No, the answer would not differ if Z were a foreign peregrinus of the Republic,
as the Cape Town High Court would still have jurisdiction to hear the matter.
However, the procedure to establish jurisdiction in the case of a claim sounding in
money against a foreign peregrinus differs to that of an incola in (b). If Z was a
foreign peregrinus, an application for an attachment to confirm jurisdiction, ad
confirmandam jurisdictionem, may be brought to the court that has jurisdiction
over the area whereby the plaintiff, X, is domiciled or resides, as well as it being
the area where the cause of action occurred. In this case, as X is an incola of
Cape Town and the breach of contract occurred there, the Cape Town High Court
has jurisdiction over the matter (Pete et al, 2016).
, CIV3701- Civil Procedure Assignment 01 Unique number: 648426
Due date: 31 May 2021 Ashleigh Hala
(d) Yes, the answer would differ if the claim related to the registration of fixed
property and the property was situated in Johannesburg, as the common-law
principle of forum rei sitae states that the court whose area the property is in has
jurisdiction to hear claims relating to that particular property. As the property is
situated in Johannesburg, the matter will have to be heard in the High Court in
Johannesburg and not in Cape Town based on the principles of forum rei sitae
(University of South Africa 2018).
Question 2
(a) Section 2(1)(b) of Divorce Act 70 of 1979 states that a court can exercise
jurisdiction if one of the parties to a marriage is ordinarily resident in its area of
jurisdiction on the date on which the action is instituted and has been ordinarily
resident in the Republic for a period of not less than one year immediately prior to
the institution of action (University of South Africa 2018).
In terms of the given facts, J has been living in Pretoria for ten months, which is a
period of less than a year. Therefore, even though he is living in the area on the
date on which the action is instituted, the Pretoria High Court is not competent to
exercise jurisdiction to hear J’s action in terms of section 2(1)(b).
(b) If J were to issue summons against T, the summons would be served on T in
the form of edictal citation, as according to the rules of the court (Uniform Rule 5;
rule 10), this is how service must be effected on a defendant who is believed to be
outside the Republic, even when the persons location is known. The facts of this
case show that T, the defendant, does in fact live outside of the Republic, in
Lesotho and therefore cannot be summonsed before our courts in any other way
other than that of edictal citation (University of South Africa 2018).
Due date: 31 May 2021 Ashleigh Hala
Question 1
(a) It would be inappropriate for X to use an “ordinary” application to institute
proceedings against Z, as using this type of application requires the person
instituting the claim to notify the other person involved. In this case, if X were to
use “ordinary” application and notify Z, the giving of notice could defeat the
purpose of the application in the first place (Pete et al, 2016). If Z were to receive
notice from X, he may be inclined to go back on the breach of contract and correct
his actions, thus not having to pay any money to X and getting off with no
consequence.
(b) According to section 29 of the Magistrates’ Courts Act of 1944, there are
financial limitations placed on the magistrates’ courts and a claim that is over
R400 000 (University of South Africa 2018), which in this case it is over this
threshold at R600 000, falls within the jurisdiction of the High Court (University of
South Africa 2018). Secondly, the matter will be able to be heard in a court where
a particular defendant is a resident or domiciled and as X is an incola of Cape
Town, this court can hear the matter ratione domicilii. In addition, the breach of
contract occurred in Cape Town, so X can institute proceedings against Z giving
jurisdiction to the Cape Town High Court in this matter ratione res gestae.
(c) No, the answer would not differ if Z were a foreign peregrinus of the Republic,
as the Cape Town High Court would still have jurisdiction to hear the matter.
However, the procedure to establish jurisdiction in the case of a claim sounding in
money against a foreign peregrinus differs to that of an incola in (b). If Z was a
foreign peregrinus, an application for an attachment to confirm jurisdiction, ad
confirmandam jurisdictionem, may be brought to the court that has jurisdiction
over the area whereby the plaintiff, X, is domiciled or resides, as well as it being
the area where the cause of action occurred. In this case, as X is an incola of
Cape Town and the breach of contract occurred there, the Cape Town High Court
has jurisdiction over the matter (Pete et al, 2016).
, CIV3701- Civil Procedure Assignment 01 Unique number: 648426
Due date: 31 May 2021 Ashleigh Hala
(d) Yes, the answer would differ if the claim related to the registration of fixed
property and the property was situated in Johannesburg, as the common-law
principle of forum rei sitae states that the court whose area the property is in has
jurisdiction to hear claims relating to that particular property. As the property is
situated in Johannesburg, the matter will have to be heard in the High Court in
Johannesburg and not in Cape Town based on the principles of forum rei sitae
(University of South Africa 2018).
Question 2
(a) Section 2(1)(b) of Divorce Act 70 of 1979 states that a court can exercise
jurisdiction if one of the parties to a marriage is ordinarily resident in its area of
jurisdiction on the date on which the action is instituted and has been ordinarily
resident in the Republic for a period of not less than one year immediately prior to
the institution of action (University of South Africa 2018).
In terms of the given facts, J has been living in Pretoria for ten months, which is a
period of less than a year. Therefore, even though he is living in the area on the
date on which the action is instituted, the Pretoria High Court is not competent to
exercise jurisdiction to hear J’s action in terms of section 2(1)(b).
(b) If J were to issue summons against T, the summons would be served on T in
the form of edictal citation, as according to the rules of the court (Uniform Rule 5;
rule 10), this is how service must be effected on a defendant who is believed to be
outside the Republic, even when the persons location is known. The facts of this
case show that T, the defendant, does in fact live outside of the Republic, in
Lesotho and therefore cannot be summonsed before our courts in any other way
other than that of edictal citation (University of South Africa 2018).
