lOMoAR cPSD| 32110785
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, lOMoAR cPSD| 32110785
QUESTION 1: CIVIL PRACTICE
1. Mr Tom Dobbs, a businessman, has purchased goods on credit to
the value of R 350,000 from Blackblue (Pty) Ltd. The goods are
delivered by Blackblue (Pty) Ltd to Mr Dobbs, and a copy of the
invoice is handed to Mr Dobbs. Despite requests by Blackblue
(Pty) Ltd, the purchaser does not pay or settle the amount.
Blackblue (Pty) Ltd wants to sue Mr Dobbs for the outstanding
amount. The company’s director approaches you for legal
advice or assistance regarding the proceedings to be instituted
against Mr Dobbs.
Answer the following questions, using proper references. Note:
In your answers, you are required to make up facts to
supplement the given facts of the case in so far as your own
rendition does not detract from the core issues.
(a) Discuss the type of summons that will be used to institute
Blackblue (Pty) Ltd’s action.
(4)
There are generally 3 types of summons .
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, lOMoAR cPSD| 32110785
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.
However, in this set of facts, a simple summons will be used.
A simple summons may only be used for those cases in which the
plaintiff’s claim is for a debt or liquidated demand, in other words,
where the claim is for a fixed, certain or ascertained amount or
thing. Clearly, a claim for a specified amount of money owed (e.g.
a claim for the purchase price of goods sold and delivered) will
qualify as a claim for a debt or liquidated demand.1
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. Therefore,
Blackblue (Pty) can use the simple summons as the above applies and
the debt is ascertainable.
1 Civil Procedure: Only study guide for CIV 3701 (Unisa Press Pretoria) 216.
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, lOMoAR cPSD| 32110785
(b) Discuss whether summary judgment may be used in the
above instance.
(4)
Summary judgment are regulated by rules 32 and 58 respectively.2
The provisions of the specific rule have to be complied with as far as
the form and content of the notice and affidavits are concerned.
As per rule 32(1), A summary judgment application is used in the
following instances:
• where there is a liquid document, (A liquid document is a
document in which the defendant has admitted or acknowledged
his or her indebtedness to the plaintiff)
• liquidated claim,
• specified movable property or ejectment.3
As payment of an outstanding amount in respect of goods sold and
delivered is ascertainable, the claim can be described as a liquidated
claim. A simple summons would be appropriate. A summary
judgment application is applicable with a simple summons.
2 Uniform Rules of the Court.
3 Uniform Rules of the Court.
Downloaded by Vincent Cosmas ()
Downloaded by Vincent Cosmas ()
, lOMoAR cPSD| 32110785
QUESTION 1: CIVIL PRACTICE
1. Mr Tom Dobbs, a businessman, has purchased goods on credit to
the value of R 350,000 from Blackblue (Pty) Ltd. The goods are
delivered by Blackblue (Pty) Ltd to Mr Dobbs, and a copy of the
invoice is handed to Mr Dobbs. Despite requests by Blackblue
(Pty) Ltd, the purchaser does not pay or settle the amount.
Blackblue (Pty) Ltd wants to sue Mr Dobbs for the outstanding
amount. The company’s director approaches you for legal
advice or assistance regarding the proceedings to be instituted
against Mr Dobbs.
Answer the following questions, using proper references. Note:
In your answers, you are required to make up facts to
supplement the given facts of the case in so far as your own
rendition does not detract from the core issues.
(a) Discuss the type of summons that will be used to institute
Blackblue (Pty) Ltd’s action.
(4)
There are generally 3 types of summons .
Downloaded by Vincent Cosmas ()
, lOMoAR cPSD| 32110785
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.
However, in this set of facts, a simple summons will be used.
A simple summons may only be used for those cases in which the
plaintiff’s claim is for a debt or liquidated demand, in other words,
where the claim is for a fixed, certain or ascertained amount or
thing. Clearly, a claim for a specified amount of money owed (e.g.
a claim for the purchase price of goods sold and delivered) will
qualify as a claim for a debt or liquidated demand.1
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. Therefore,
Blackblue (Pty) can use the simple summons as the above applies and
the debt is ascertainable.
1 Civil Procedure: Only study guide for CIV 3701 (Unisa Press Pretoria) 216.
Downloaded by Vincent Cosmas
()
, lOMoAR cPSD| 32110785
(b) Discuss whether summary judgment may be used in the
above instance.
(4)
Summary judgment are regulated by rules 32 and 58 respectively.2
The provisions of the specific rule have to be complied with as far as
the form and content of the notice and affidavits are concerned.
As per rule 32(1), A summary judgment application is used in the
following instances:
• where there is a liquid document, (A liquid document is a
document in which the defendant has admitted or acknowledged
his or her indebtedness to the plaintiff)
• liquidated claim,
• specified movable property or ejectment.3
As payment of an outstanding amount in respect of goods sold and
delivered is ascertainable, the claim can be described as a liquidated
claim. A simple summons would be appropriate. A summary
judgment application is applicable with a simple summons.
2 Uniform Rules of the Court.
3 Uniform Rules of the Court.
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