TLI4801/201/1/2020
Tutorial Letter 201/1/2020
Techniques in trial and litigation
TLI4801
Semester 1
Department of Criminal and Procedural Law
IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2020-S1, as well as your group website.
Note: This is an online module and therefore it is available on myUnisa. However, in order to
support you in your learning process, you will also receive some study material in printed
format.
BARCODE
,1. INTRODUCTION
Dear Student
This tutorial letter contains the commentary to Assignments 01 and 02 for the 1st semester of
2020. Please read its contents carefully. This tutorial letter is important for examination
purposes.
This commentary is merely a guideline and it may well contain brief answers for some
questions. Therefore, students need to elaborate in their answers to achieve good marks.
Your answers for both assignments must not exceed 15 pages (including bibliography
and declaration of authenticity).
2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02
ASSIGNMENT 01 (CIVIL PRACTICE): SEMESTER 01
UNIQUE NUMBER: 768183
Note: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 4th edition
(2019 LexisNexis). Students must not regurgitate what’s in the prescribed textbook but
write in their own words as far as possible! Students are also expected to “identify the
pertinent legal principles” and also to demonstrate how these principles apply to the
facts presented. To this extent, the student was required to also conduct independent
legal research. This essentially entailed perusing relevant legal sources in order to
advice the client accordingly.
1(a) It should be noted that an action procedure involves the exchange of pleadings or the
summons procedure and evidence is presented by oral evidence. This procedure is not
applicable here. An application procedure is initiated by the issue of a notice of motion
or application, and evidence is presented in the form of affidavits.
Rule 35(7) involves the process whereby, a party giving notice to discover, may apply to
the court for an order for compliance from the other party, and failing such compliance,
dismiss the claim or strike out the defence. An application to compel discovery is an
example of an interlocutory or procedural application. An interlocutory application
involves an interim or procedural relief made during the course of or in anticipation of an
action or substantive application.
Application to facts: In the light of the above, it is recommended that it is more
appropriate for Mr X to use an application procedure rather than the action procedure.
Note: Students need to distinguish between an action and application proceeding. (4)
2
, TLI4801/201/1/2020
(b) A pleading refers to a written document containing averments by the parties to an action.
The material facts supporting the claim or defence are clearly and concisely set out in the
pleading. On the other hand, a process refers to a step proceeding from the court such
as inter alia, a subpoena or notice.
The interlocutory application referred to in 1(a) is a process. An interlocutory application
such as, an application to compel discovery is used to compel compliance with the Rules
or to resolve procedural issues (see Rule 35(7) of the Uniform Rules). It is brought purely
on notice. A party can use the interlocutory application to approach the court for relief in
respect of matter that has already commenced, been instituted or is pending. An
interlocutory application therefore involves an interim or procedural relief made during the
course of or in anticipation of an action or substantive application.
Note: Students need to distinguish between a pleading and a process. (6)
[See chapter 10; Marnewick]
2 Attorneys often advise their clients by letter or confirm their oral advice by letter, and they
may explain counsel’s opinion or convey the substance of counsel’s advice to their client
by a letter. Therefore, the letter contains the contents of counsel’s advice or the
ramifications of such advice. Advice by letter is usually aimed at the “lay” client (average
man or woman); therefore, it is important that this letter be written in such a way that the
style and content of the letter provides the lay client with a clear understanding of his or
her options, how to proceed further with the matter and his or her position in law.
The advantages of advising by letter are:
The client has an opportunity to read and re-read the letter and to reflect upon it.
The client can then take further advice after reflection, before finally making a
decision.
The disadvantages are:
There is no opportunity for the client to ask questions or for the lawyer to determine
whether the client understands the advice so as not to make a mistake.
It is difficult to counsel a lay client in a letter as the counselling process is too
personal, too important and too dynamic.
[See Marnewick (4th edition): pages 38-39 or Marnewick (3rd edition): pages 34-35] (4)
3(a) A combined summons is used where the claim is unliquidated, such as, an action for
damages or personal injuries, which needs to be proved by evidence. A provisional
sentence summons is used where the claim is liquid such as a cheque. A liquid
document is evidence of an established monetary debt, as the claim that arises also falls
within the definition of a “debt” or liquidated demand. A provisional sentence summons
will not be applicable here, as the claim is unliquidated.
3
, Application to facts: This is an action for personal injuries sustained as a result of
collision with a taxi, and damages to a bicycle. Therefore, Mr Smith will use a combined
summons as the action involves an unliquidated claim for damages and personal injuries,
and the quantum has to be proved or determined.
Note: Students need to discuss both types of summons and apply the law to the relevant
facts [See Marnewick: chapter 6] (4)
(b) One can claim from the Road Accident Fund (“RAF”) in the following circumstances: if
you suffered personal injuries as a result of the accident and you were not the driver
solely responsible for the accident. Drivers, passengers, pedestrians, cyclists and
motorcyclists can all claim from the RAF if they were not solely responsible for the
accident.
The RAF provides compensation for inter alia:
medical expenses that result from the motor vehicle accident,
general damages for pain and suffering provided you sustained a serious injury such
as sustained serious disfigurement,
mental impairment or the loss of a bodily function,
loss of earnings if you were unable to work as a result of an accident.
A claim for damages to the bicycle (delictual action) can be instituted against Mr Joe
Soap. Mr Smith’s claim for personal injuries can be instituted against the Road Accident
Fund (“RAF”). Mr Soap can also institute an action against the RAF for any personal
injuries sustained (although not stated in facts) if he is not the owner of the vehicle and
the accident was caused by the owner’s failure to replace worn brake pads on the
vehicle. The RAF hears claims involving cyclists; so the RAF can be litigated against as a
defendant. Therefore, the RAF can be approached in this matter having regard to the
given facts. (Also see Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)). (4)
(c) The procedure is one of application to strike out.
Joe Soap may use a notice of application to strike out as the pleading contains
scandalous, vexations and or irrelevant statements. Only that part of the pleading
that contains the vexatious, scandalous or irrelevant statement or averment may be
struck out (“as taxi drivers are in the habit of doing”) and not the entire pleading. The
court will grant such application only if it is satisfied that the applicant will suffer
prejudice in the conduct of his or her claim or defence if the application is not granted.
As the proceedings relate to proceedings that have already been instituted and are
pending, it is an interlocutory application brought on notice. [See Marnewick: chapters 6
and 9) (4)
4
Tutorial Letter 201/1/2020
Techniques in trial and litigation
TLI4801
Semester 1
Department of Criminal and Procedural Law
IMPORTANT INFORMATION
Please register on myUnisa, activate your myLife e-mail address and
make sure that you have regular access to the myUnisa module
website, TLI4801-2020-S1, as well as your group website.
Note: This is an online module and therefore it is available on myUnisa. However, in order to
support you in your learning process, you will also receive some study material in printed
format.
BARCODE
,1. INTRODUCTION
Dear Student
This tutorial letter contains the commentary to Assignments 01 and 02 for the 1st semester of
2020. Please read its contents carefully. This tutorial letter is important for examination
purposes.
This commentary is merely a guideline and it may well contain brief answers for some
questions. Therefore, students need to elaborate in their answers to achieve good marks.
Your answers for both assignments must not exceed 15 pages (including bibliography
and declaration of authenticity).
2. FEEDBACK TO ASSIGNMENT 01 AND ASSIGNMENT 02
ASSIGNMENT 01 (CIVIL PRACTICE): SEMESTER 01
UNIQUE NUMBER: 768183
Note: Some of the answers to the Questions in this Assignment are sourced from the
prescribed textbook, Marnewick CG Litigation Skills for South African Lawyers 4th edition
(2019 LexisNexis). Students must not regurgitate what’s in the prescribed textbook but
write in their own words as far as possible! Students are also expected to “identify the
pertinent legal principles” and also to demonstrate how these principles apply to the
facts presented. To this extent, the student was required to also conduct independent
legal research. This essentially entailed perusing relevant legal sources in order to
advice the client accordingly.
1(a) It should be noted that an action procedure involves the exchange of pleadings or the
summons procedure and evidence is presented by oral evidence. This procedure is not
applicable here. An application procedure is initiated by the issue of a notice of motion
or application, and evidence is presented in the form of affidavits.
Rule 35(7) involves the process whereby, a party giving notice to discover, may apply to
the court for an order for compliance from the other party, and failing such compliance,
dismiss the claim or strike out the defence. An application to compel discovery is an
example of an interlocutory or procedural application. An interlocutory application
involves an interim or procedural relief made during the course of or in anticipation of an
action or substantive application.
Application to facts: In the light of the above, it is recommended that it is more
appropriate for Mr X to use an application procedure rather than the action procedure.
Note: Students need to distinguish between an action and application proceeding. (4)
2
, TLI4801/201/1/2020
(b) A pleading refers to a written document containing averments by the parties to an action.
The material facts supporting the claim or defence are clearly and concisely set out in the
pleading. On the other hand, a process refers to a step proceeding from the court such
as inter alia, a subpoena or notice.
The interlocutory application referred to in 1(a) is a process. An interlocutory application
such as, an application to compel discovery is used to compel compliance with the Rules
or to resolve procedural issues (see Rule 35(7) of the Uniform Rules). It is brought purely
on notice. A party can use the interlocutory application to approach the court for relief in
respect of matter that has already commenced, been instituted or is pending. An
interlocutory application therefore involves an interim or procedural relief made during the
course of or in anticipation of an action or substantive application.
Note: Students need to distinguish between a pleading and a process. (6)
[See chapter 10; Marnewick]
2 Attorneys often advise their clients by letter or confirm their oral advice by letter, and they
may explain counsel’s opinion or convey the substance of counsel’s advice to their client
by a letter. Therefore, the letter contains the contents of counsel’s advice or the
ramifications of such advice. Advice by letter is usually aimed at the “lay” client (average
man or woman); therefore, it is important that this letter be written in such a way that the
style and content of the letter provides the lay client with a clear understanding of his or
her options, how to proceed further with the matter and his or her position in law.
The advantages of advising by letter are:
The client has an opportunity to read and re-read the letter and to reflect upon it.
The client can then take further advice after reflection, before finally making a
decision.
The disadvantages are:
There is no opportunity for the client to ask questions or for the lawyer to determine
whether the client understands the advice so as not to make a mistake.
It is difficult to counsel a lay client in a letter as the counselling process is too
personal, too important and too dynamic.
[See Marnewick (4th edition): pages 38-39 or Marnewick (3rd edition): pages 34-35] (4)
3(a) A combined summons is used where the claim is unliquidated, such as, an action for
damages or personal injuries, which needs to be proved by evidence. A provisional
sentence summons is used where the claim is liquid such as a cheque. A liquid
document is evidence of an established monetary debt, as the claim that arises also falls
within the definition of a “debt” or liquidated demand. A provisional sentence summons
will not be applicable here, as the claim is unliquidated.
3
, Application to facts: This is an action for personal injuries sustained as a result of
collision with a taxi, and damages to a bicycle. Therefore, Mr Smith will use a combined
summons as the action involves an unliquidated claim for damages and personal injuries,
and the quantum has to be proved or determined.
Note: Students need to discuss both types of summons and apply the law to the relevant
facts [See Marnewick: chapter 6] (4)
(b) One can claim from the Road Accident Fund (“RAF”) in the following circumstances: if
you suffered personal injuries as a result of the accident and you were not the driver
solely responsible for the accident. Drivers, passengers, pedestrians, cyclists and
motorcyclists can all claim from the RAF if they were not solely responsible for the
accident.
The RAF provides compensation for inter alia:
medical expenses that result from the motor vehicle accident,
general damages for pain and suffering provided you sustained a serious injury such
as sustained serious disfigurement,
mental impairment or the loss of a bodily function,
loss of earnings if you were unable to work as a result of an accident.
A claim for damages to the bicycle (delictual action) can be instituted against Mr Joe
Soap. Mr Smith’s claim for personal injuries can be instituted against the Road Accident
Fund (“RAF”). Mr Soap can also institute an action against the RAF for any personal
injuries sustained (although not stated in facts) if he is not the owner of the vehicle and
the accident was caused by the owner’s failure to replace worn brake pads on the
vehicle. The RAF hears claims involving cyclists; so the RAF can be litigated against as a
defendant. Therefore, the RAF can be approached in this matter having regard to the
given facts. (Also see Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)). (4)
(c) The procedure is one of application to strike out.
Joe Soap may use a notice of application to strike out as the pleading contains
scandalous, vexations and or irrelevant statements. Only that part of the pleading
that contains the vexatious, scandalous or irrelevant statement or averment may be
struck out (“as taxi drivers are in the habit of doing”) and not the entire pleading. The
court will grant such application only if it is satisfied that the applicant will suffer
prejudice in the conduct of his or her claim or defence if the application is not granted.
As the proceedings relate to proceedings that have already been instituted and are
pending, it is an interlocutory application brought on notice. [See Marnewick: chapters 6
and 9) (4)
4
