1
CIVIL PROCEDURE QUESTIONS:
1. By comparison to High Courts, explain the reason for magistrate’s courts
being described as “creatures of statute”. (7)
Magistrates’ courts are termed “creatures of statute”. This means not only that
they have been created by statute, but also that they can only do what some
statute permits them to do.
Because the magistrates’ courts may exercise only statutory jurisdiction, the
common-law principles which you applied when determining jurisdiction in the
high courts, are not relevant when determining jurisdiction in magistrates’ courts.
Example:
A good example is the principle of forum domicilii: the high court of which a
defendant is an incola may exercise jurisdiction in respect of money claims. The
Magistrates’ Courts Act contains a similar provision in section 28(1) (a), which
provides that the magistrate’s court where a defendant resides, carries on
business or is employed has jurisdiction. A person is an incola where he is
domiciled or resident; a person can be domiciled at a completely different place to
that where he works or is employed, and so you could find that completely
different courts have jurisdiction depending on whether you have referred to
common law or what is often incorrectly viewed as its statutory equivalent.
2. Explain the inherent jurisdiction of superior courts. (6)
The courts jurisdiction is derived from common law.
When it is said that a court exercises “inherent jurisdiction”, this simply means
that its jurisdiction is derived from common law and not from statute (although
statute, in certain cases, may limit or increase this jurisdiction). One of the
implications of a superior court exercising its inherent jurisdiction is that it has
discretion in regard to its own procedure. In other words, a court may condone
any procedural mistakes or determine any point of procedure. The Constitution
confirms the continued existence of this common-law power of superior courts.
Section 173 states: The Constitutional Court, the Supreme Court of Appeal and
the High Courts have the inherent power to protect and regulate their own
process, and to develop the common law, taking into account the interests of
justice.
3. State any six aspects of process and procedure in terms of which the Rules
Board is competent to make, amend or repeal rules in terms of section 6 of
the Rules Board for Courts of Law Act 107 of 1985. (6)
In terms of Section 6(1) of the Rules Board of courts of law act, the rules board
have the power to regulate and amend the following rules:
1. The procedures of litigation
2. Regulate the form and the content of pleadings and processes
3. Regulate the practice of service of processes (the summons)
4. Regulates the procedures and practices of execution of pleadings and
processes
5. Regulates the appointment and duties of the sheriff
6. Appointment of commissioners to take evidence where the witness
cannot appear in court
, 2
7. The appointment and admission of sworn translators
8. The manner or recording or noting evidence and proceedings
9. The appointment of assessors in proceedings in lower courts
4. Koos purchases a fruit farm situated in Durban from Piet. Piet lives in
Johannesburg. Despite continuous demands from Koos, Piet refuses to take
steps to have the property registered in Koos’ name. With reference to these
facts, answer the following questions.
(a) Discuss whether Koos may institute the application for registration of
the property in the Johannesburg High Court or in the Durban High Court.
(6)
The Durban hc - this is due to the fact that the case concerns immovable property
and the registration thereof into Koos’ name – thus forum rei sitae is applicable
and this gives Durban exclusive J. JHB wont have J due to the forum rei sitae
principle.
(b) Giving reasons, state whether your answer to (a) would differ if Koos
institutes an action for damages on the grounds of breach of contract.
(2)
Yes my answer will change as the action now is a claim sounding in $ and that
one may use ratione domicilii of the def and sue in jhb.
5. State the provisions of section 2(1) of the Divorce Act of 1979 in regard to
the requirements for the exercise of divorce jurisdiction. (6)
An independent domicile for married woman is now conferred under section 1(1) of
the Act, in the following terms:
Every person who is of or over the age of 18 years, and every person under the age
of 18 years who by law has the status of a major…shall be competent to acquire a
domicile of choice, regardless of such person’s sex or marital status. The Domicile
Act not only amended the concept of domicile in the context of divorce jurisdiction,
but also introduced new grounds for the exercise of divorce jurisdiction. The
Domicile Act amended the Divorce Act by establishing both domicile and residence
as separate grounds for the exercise of divorce jurisdiction. The current legislative
position is that the domicile or ordinary residence of either spouse within the area
of a particular high court is enough to confer jurisdiction on that court.
The effect of this amendment is that the word “domicile” when used in the context
of divorce jurisdiction, must be interpreted in accordance with the definition
contained in section 1(1) of the Domicile Act and not in accordance with its common-
law definition
6. State three matters set out in section 167(4) of the Constitution of the
RSA in respect of which the Constitutional Court has exclusive
jurisdiction. (6)
Disputes between organs of state at national or provincial level concerning their
constitutional status, powers or function; the constitutionality of parliamentary or
provincial bills; whether or not parliament or the President has failed to comply
with a constitutional duty
, 3
7. Johan is a watch dealer who lives in Bloemfontein. Johan sells a valuable
Rolex to Pat, a jeweller, for a purchase price of R300 000. Pat lives in
Pretoria, but conducts his business from an office in Cape Town. The
contract is signed in Johannesburg but the Rolex must be personally
delivered to Pat’s Cape Town office and the purchase price will be paid on
delivery. After taking delivery of the Rolex, Pat refuses to pay the
purchase price.
Answer the following questions, in each instance giving brief reasons for
your answer.
(a) Johan wishes to sue Pat for an amount of R300 000, being the purchase
price of the Rolex. Explain whether the Johannesburg High Court and
the Cape Town High Court will be competent to exercise jurisdiction.
(4)
(b) Explain whether or not summons may be issued out of either of the High
Courts identified in (a) above during a period when Pat is in Durban for
business purposes. (3)
(c) The original facts remain the same, except that, Pat, the purchaser, is a
peregrinus of the Republic and his only asset in SA is his business in
Cape Town. Explain whether the Johannesburg High Court and the
Bloemfontein High Court will be competent to exercise jurisdiction.
(8)
(d) The original facts remain the same. However, Johan decides to sue Pat
for the return of the Rolex, which is stored in Pat’s safe in Cape Town,
Explain why both the Cape Town High Court and the Pretoria High Court
may exercise jurisdiction. (5)
(a) Both the Johannesburg HC and the Cape Town HC may hear the matter on
the basis that they are vested with jurisdiction ratione contractu.
(b) Summons may be issued by any court vested with jurisdiction and the
defendant’s whereabouts are irrelevant in this regard. His whereabouts are
relevant for purposes of service but as section 26(1) provides that processes
runs throughout the country, service may be effected on the defendant
anywhere in the country.
(c) As Pat is a foreign peregrine, arrest of his person or attachment of his
property will always be necessary before a court may exercise jurisdiction.
Section 19(1) (c) provides that attachment may take place anywhere in SA, so
his assets in CT may be attached to found or confirm jurisdiction. The
Bloemfontein High Court may exercise jurisdiction provided attachment ad
fundandam jurisdictionem is possible because John the plaintiff is an incola
of that court. The Johannesburg HC may exercise jurisdiction provided
attachment ad confirmandam jurisdictionem takes place, as this will
strengthen the partial jurisdiction it has because the cause arose in its
jurisdiction.
(d) This is now an action concerning property, not a claim sounding in money.
The place where the property is situated always has jurisdiction ratione rei
sitae. So the Cape Town HC has jurisdiction because the diamond is stored in
a bank vault there. As the property is moveable, this jurisdiction is not
necessarily exclusive and the place where the defendant is domiciled may
also be able to exercise jurisdiction, it is for this reason that the Pretoria HC
may possibly also exercise jurisdiction.
, 4
8. Tammy wishes to obtain a divorce from her husband Liam. The parties
were married in Durban. They then lived in Pretoria until two years ago,
when Liam left Tammy for another woman, Kim. Immediately afterwards,
Liam moved permanently to Bloemfontein to live there with Kim.
Answer the following questions, in each instance giving brief reasons for
your answer:
(a) Explain why both Liam and Tammy can institute a divorce action in
the Bloemfontein HC. (6)
A court may exercise divorce jurisdiction if both or either of the parties are
domiciled in its area of jurisdiction on the date on which the action is instituted.
Alternatively, a court may also exercise jurisdiction if both or either of the parties
are ordinarily resident in its area of jurisdiction on the date on which the action is
instituted, and have/has been ordinarily resident in the Republic for a period of
not less than one year immediately prior to the institution of the action. Liam
moved to Bloem and if he has the intention to be domiciled there, Bloem can hear
their divorce based on s2(1)(a) = domicile.
(b) Explain the concept “domicile” in the context of divorce jurisdiction.
(7)
Every person who is of or over the age of 18 years, and every person under the age
of 18 years who by law has the status of a major…shall be competent to acquire a
domicile of choice, regardless of such person’s sex or marital status.The Domicile
Act not only amended the concept of domicile in the context of divorce
jurisdiction, but also introduced new grounds for the exercise of divorce
jurisdiction. The Domicile Act amended the Divorce Act by establishing both
domicile and residence as separate grounds for the exercise of divorce jurisdiction.
The current legislative position is that the domicile or ordinary residence of either
spouse within the area of a particular high court is enough to confer jurisdiction
on that court.
The effect of this amendment is that the word “domicile” when used in the context
of divorce jurisdiction, must be interpreted in accordance with the definition
contained in section 1(1) of the Domicile Act and not in accordance with its common-
law definition
(c) Tammy wishes to have her marriage declared void as she has
discovered that Liam was already married to Kim when he purported
to marry her. Which court/courts will have jurisdiction to hear this
action? (4)
An action for the declaration of nullity of a void marriage does not alter the status
of the parties, because, in reality it is merely of a declaratory nature. In such a
case no valid marriage in fact existed and the parties are only seeking legal
confirmation of this fact before, for instance, marrying other persons.
In accordance with our common law, as interpreted by our courts, the following
courts have jurisdiction:
The forum loci celebrationis (the court of the place where the marriage was entered
into) – Durban.
The court where the plaintiff or the defendant is domiciled at the time nullity
proceedings is instituted – Bloem for Liam or Pretoria for Tammy.
CIVIL PROCEDURE QUESTIONS:
1. By comparison to High Courts, explain the reason for magistrate’s courts
being described as “creatures of statute”. (7)
Magistrates’ courts are termed “creatures of statute”. This means not only that
they have been created by statute, but also that they can only do what some
statute permits them to do.
Because the magistrates’ courts may exercise only statutory jurisdiction, the
common-law principles which you applied when determining jurisdiction in the
high courts, are not relevant when determining jurisdiction in magistrates’ courts.
Example:
A good example is the principle of forum domicilii: the high court of which a
defendant is an incola may exercise jurisdiction in respect of money claims. The
Magistrates’ Courts Act contains a similar provision in section 28(1) (a), which
provides that the magistrate’s court where a defendant resides, carries on
business or is employed has jurisdiction. A person is an incola where he is
domiciled or resident; a person can be domiciled at a completely different place to
that where he works or is employed, and so you could find that completely
different courts have jurisdiction depending on whether you have referred to
common law or what is often incorrectly viewed as its statutory equivalent.
2. Explain the inherent jurisdiction of superior courts. (6)
The courts jurisdiction is derived from common law.
When it is said that a court exercises “inherent jurisdiction”, this simply means
that its jurisdiction is derived from common law and not from statute (although
statute, in certain cases, may limit or increase this jurisdiction). One of the
implications of a superior court exercising its inherent jurisdiction is that it has
discretion in regard to its own procedure. In other words, a court may condone
any procedural mistakes or determine any point of procedure. The Constitution
confirms the continued existence of this common-law power of superior courts.
Section 173 states: The Constitutional Court, the Supreme Court of Appeal and
the High Courts have the inherent power to protect and regulate their own
process, and to develop the common law, taking into account the interests of
justice.
3. State any six aspects of process and procedure in terms of which the Rules
Board is competent to make, amend or repeal rules in terms of section 6 of
the Rules Board for Courts of Law Act 107 of 1985. (6)
In terms of Section 6(1) of the Rules Board of courts of law act, the rules board
have the power to regulate and amend the following rules:
1. The procedures of litigation
2. Regulate the form and the content of pleadings and processes
3. Regulate the practice of service of processes (the summons)
4. Regulates the procedures and practices of execution of pleadings and
processes
5. Regulates the appointment and duties of the sheriff
6. Appointment of commissioners to take evidence where the witness
cannot appear in court
, 2
7. The appointment and admission of sworn translators
8. The manner or recording or noting evidence and proceedings
9. The appointment of assessors in proceedings in lower courts
4. Koos purchases a fruit farm situated in Durban from Piet. Piet lives in
Johannesburg. Despite continuous demands from Koos, Piet refuses to take
steps to have the property registered in Koos’ name. With reference to these
facts, answer the following questions.
(a) Discuss whether Koos may institute the application for registration of
the property in the Johannesburg High Court or in the Durban High Court.
(6)
The Durban hc - this is due to the fact that the case concerns immovable property
and the registration thereof into Koos’ name – thus forum rei sitae is applicable
and this gives Durban exclusive J. JHB wont have J due to the forum rei sitae
principle.
(b) Giving reasons, state whether your answer to (a) would differ if Koos
institutes an action for damages on the grounds of breach of contract.
(2)
Yes my answer will change as the action now is a claim sounding in $ and that
one may use ratione domicilii of the def and sue in jhb.
5. State the provisions of section 2(1) of the Divorce Act of 1979 in regard to
the requirements for the exercise of divorce jurisdiction. (6)
An independent domicile for married woman is now conferred under section 1(1) of
the Act, in the following terms:
Every person who is of or over the age of 18 years, and every person under the age
of 18 years who by law has the status of a major…shall be competent to acquire a
domicile of choice, regardless of such person’s sex or marital status. The Domicile
Act not only amended the concept of domicile in the context of divorce jurisdiction,
but also introduced new grounds for the exercise of divorce jurisdiction. The
Domicile Act amended the Divorce Act by establishing both domicile and residence
as separate grounds for the exercise of divorce jurisdiction. The current legislative
position is that the domicile or ordinary residence of either spouse within the area
of a particular high court is enough to confer jurisdiction on that court.
The effect of this amendment is that the word “domicile” when used in the context
of divorce jurisdiction, must be interpreted in accordance with the definition
contained in section 1(1) of the Domicile Act and not in accordance with its common-
law definition
6. State three matters set out in section 167(4) of the Constitution of the
RSA in respect of which the Constitutional Court has exclusive
jurisdiction. (6)
Disputes between organs of state at national or provincial level concerning their
constitutional status, powers or function; the constitutionality of parliamentary or
provincial bills; whether or not parliament or the President has failed to comply
with a constitutional duty
, 3
7. Johan is a watch dealer who lives in Bloemfontein. Johan sells a valuable
Rolex to Pat, a jeweller, for a purchase price of R300 000. Pat lives in
Pretoria, but conducts his business from an office in Cape Town. The
contract is signed in Johannesburg but the Rolex must be personally
delivered to Pat’s Cape Town office and the purchase price will be paid on
delivery. After taking delivery of the Rolex, Pat refuses to pay the
purchase price.
Answer the following questions, in each instance giving brief reasons for
your answer.
(a) Johan wishes to sue Pat for an amount of R300 000, being the purchase
price of the Rolex. Explain whether the Johannesburg High Court and
the Cape Town High Court will be competent to exercise jurisdiction.
(4)
(b) Explain whether or not summons may be issued out of either of the High
Courts identified in (a) above during a period when Pat is in Durban for
business purposes. (3)
(c) The original facts remain the same, except that, Pat, the purchaser, is a
peregrinus of the Republic and his only asset in SA is his business in
Cape Town. Explain whether the Johannesburg High Court and the
Bloemfontein High Court will be competent to exercise jurisdiction.
(8)
(d) The original facts remain the same. However, Johan decides to sue Pat
for the return of the Rolex, which is stored in Pat’s safe in Cape Town,
Explain why both the Cape Town High Court and the Pretoria High Court
may exercise jurisdiction. (5)
(a) Both the Johannesburg HC and the Cape Town HC may hear the matter on
the basis that they are vested with jurisdiction ratione contractu.
(b) Summons may be issued by any court vested with jurisdiction and the
defendant’s whereabouts are irrelevant in this regard. His whereabouts are
relevant for purposes of service but as section 26(1) provides that processes
runs throughout the country, service may be effected on the defendant
anywhere in the country.
(c) As Pat is a foreign peregrine, arrest of his person or attachment of his
property will always be necessary before a court may exercise jurisdiction.
Section 19(1) (c) provides that attachment may take place anywhere in SA, so
his assets in CT may be attached to found or confirm jurisdiction. The
Bloemfontein High Court may exercise jurisdiction provided attachment ad
fundandam jurisdictionem is possible because John the plaintiff is an incola
of that court. The Johannesburg HC may exercise jurisdiction provided
attachment ad confirmandam jurisdictionem takes place, as this will
strengthen the partial jurisdiction it has because the cause arose in its
jurisdiction.
(d) This is now an action concerning property, not a claim sounding in money.
The place where the property is situated always has jurisdiction ratione rei
sitae. So the Cape Town HC has jurisdiction because the diamond is stored in
a bank vault there. As the property is moveable, this jurisdiction is not
necessarily exclusive and the place where the defendant is domiciled may
also be able to exercise jurisdiction, it is for this reason that the Pretoria HC
may possibly also exercise jurisdiction.
, 4
8. Tammy wishes to obtain a divorce from her husband Liam. The parties
were married in Durban. They then lived in Pretoria until two years ago,
when Liam left Tammy for another woman, Kim. Immediately afterwards,
Liam moved permanently to Bloemfontein to live there with Kim.
Answer the following questions, in each instance giving brief reasons for
your answer:
(a) Explain why both Liam and Tammy can institute a divorce action in
the Bloemfontein HC. (6)
A court may exercise divorce jurisdiction if both or either of the parties are
domiciled in its area of jurisdiction on the date on which the action is instituted.
Alternatively, a court may also exercise jurisdiction if both or either of the parties
are ordinarily resident in its area of jurisdiction on the date on which the action is
instituted, and have/has been ordinarily resident in the Republic for a period of
not less than one year immediately prior to the institution of the action. Liam
moved to Bloem and if he has the intention to be domiciled there, Bloem can hear
their divorce based on s2(1)(a) = domicile.
(b) Explain the concept “domicile” in the context of divorce jurisdiction.
(7)
Every person who is of or over the age of 18 years, and every person under the age
of 18 years who by law has the status of a major…shall be competent to acquire a
domicile of choice, regardless of such person’s sex or marital status.The Domicile
Act not only amended the concept of domicile in the context of divorce
jurisdiction, but also introduced new grounds for the exercise of divorce
jurisdiction. The Domicile Act amended the Divorce Act by establishing both
domicile and residence as separate grounds for the exercise of divorce jurisdiction.
The current legislative position is that the domicile or ordinary residence of either
spouse within the area of a particular high court is enough to confer jurisdiction
on that court.
The effect of this amendment is that the word “domicile” when used in the context
of divorce jurisdiction, must be interpreted in accordance with the definition
contained in section 1(1) of the Domicile Act and not in accordance with its common-
law definition
(c) Tammy wishes to have her marriage declared void as she has
discovered that Liam was already married to Kim when he purported
to marry her. Which court/courts will have jurisdiction to hear this
action? (4)
An action for the declaration of nullity of a void marriage does not alter the status
of the parties, because, in reality it is merely of a declaratory nature. In such a
case no valid marriage in fact existed and the parties are only seeking legal
confirmation of this fact before, for instance, marrying other persons.
In accordance with our common law, as interpreted by our courts, the following
courts have jurisdiction:
The forum loci celebrationis (the court of the place where the marriage was entered
into) – Durban.
The court where the plaintiff or the defendant is domiciled at the time nullity
proceedings is instituted – Bloem for Liam or Pretoria for Tammy.
