TLI4801
EXAM PACK
,TECHNIQUES IN TRIAL AND LITIGATION - TLI4801
SEMESTER 2 FINAL OCTOBER 2025
EXAM ANSWERS
QUESTION 1: CIVIL PRACTICE [50]
Question 1.1
(a) Letter of demand
Yes. It would be advisable for Mrs Slipper to send the hotel a formal letter of demand
before instituting summons, although a letter of demand is not invariably a prerequisite
for instituting a delictual claim.
The letter should set out the material circumstances of the incident, namely that Mrs
Slipper slipped on spilled bottled water in the hotel lobby, that the hotel had a policy
requiring its staff to continuously patrol the lobby for hazards, that the hazard was not
detected or removed, and that Mrs Slipper consequently suffered serious injuries. The
letter should identify the damages claimed, including past and future medical expenses,
pain and suffering, loss of amenities of life and any other legally recoverable damages.
The letter of demand may have several advantages:
1. It gives the hotel an opportunity to settle the dispute without expensive and
time-consuming litigation.
2. It may encourage an admission of liability, particularly where the hotel
acknowledges that its staff failed to comply with the patrol policy.
3. It can narrow the issues in dispute, because the hotel may identify which
allegations it accepts or disputes.
4. It provides an opportunity to obtain compensation promptly, which is
important because Mrs Slipper has already incurred substantial medical
expenses.
, 5. It may facilitate negotiations or mediation before summons is issued.
6. It may assist with costs, because an unreasonable refusal to settle a properly
formulated claim can potentially become relevant when a court considers costs.
The letter should preferably be sent by Mrs Slipper's attorney and should contain a
reasonable period within which the hotel must respond. It should also reserve Mrs
Slipper's rights to institute proceedings if the hotel fails to respond or refuses to
compensate her.
(b) Provisional sentence summons or combined summons
Mrs Slipper should institute her claim by combined summons, rather than provisional
sentence summons.
A provisional sentence summons is appropriate where the plaintiff relies on a liquid
document and seeks provisional sentence on the basis of that document. Typical
examples include claims founded on negotiable instruments or other documents
constituting liquid proof of indebtedness.
Mrs Slipper's claim is a delictual claim for damages arising from negligence. The
amount of damages, particularly future medical expenses, pain and suffering and loss of
amenities of life, requires proof and cannot ordinarily be established merely by a liquid
document.
A combined summons is therefore appropriate because it is accompanied by a
particulars of claim, which sets out the material facts relied upon by Mrs Slipper. The
hotel can then deliver a plea and, if necessary, the matter can proceed to discovery,
pre-trial procedures and trial.
The proper procedure would therefore be:
combined summons → particulars of claim → hotel’s plea → replication where
necessary → further procedural steps → trial.
, (c) Pleading to be annexed to the summons
The pleading accompanying the combined summons would be the particulars of
claim.
The particulars of claim must contain the material facts or facta probanda necessary
to establish Mrs Slipper's cause of action. It should not contain the evidence through
which those facts will ultimately be proved, known as the facta probantia.
The particulars should identify:
the parties;
the court's jurisdiction;
the circumstances giving rise to the incident;
the hotel's legal duty toward its guests;
the hotel's negligent conduct;
the causal connection between the negligence and the injuries;
the injuries and resulting damages; and
the relief claimed.
The pleading should allege the elements of the delict, namely wrongfulness,
fault/negligence, causation and harm.
Mrs Slipper should specifically allege that the hotel knew or ought reasonably to have
known that liquid on a polished limestone lobby floor constituted a slipping hazard and
that, despite its patrol policy, its employees failed to identify and remove the spilled
water or adequately warn guests.
(d) Draft of material facts/facta probanda
The following is an appropriate draft of the material-facts portion of the particulars of
claim:
MATERIAL FACTS / FACTA PROBANDA
EXAM PACK
,TECHNIQUES IN TRIAL AND LITIGATION - TLI4801
SEMESTER 2 FINAL OCTOBER 2025
EXAM ANSWERS
QUESTION 1: CIVIL PRACTICE [50]
Question 1.1
(a) Letter of demand
Yes. It would be advisable for Mrs Slipper to send the hotel a formal letter of demand
before instituting summons, although a letter of demand is not invariably a prerequisite
for instituting a delictual claim.
The letter should set out the material circumstances of the incident, namely that Mrs
Slipper slipped on spilled bottled water in the hotel lobby, that the hotel had a policy
requiring its staff to continuously patrol the lobby for hazards, that the hazard was not
detected or removed, and that Mrs Slipper consequently suffered serious injuries. The
letter should identify the damages claimed, including past and future medical expenses,
pain and suffering, loss of amenities of life and any other legally recoverable damages.
The letter of demand may have several advantages:
1. It gives the hotel an opportunity to settle the dispute without expensive and
time-consuming litigation.
2. It may encourage an admission of liability, particularly where the hotel
acknowledges that its staff failed to comply with the patrol policy.
3. It can narrow the issues in dispute, because the hotel may identify which
allegations it accepts or disputes.
4. It provides an opportunity to obtain compensation promptly, which is
important because Mrs Slipper has already incurred substantial medical
expenses.
, 5. It may facilitate negotiations or mediation before summons is issued.
6. It may assist with costs, because an unreasonable refusal to settle a properly
formulated claim can potentially become relevant when a court considers costs.
The letter should preferably be sent by Mrs Slipper's attorney and should contain a
reasonable period within which the hotel must respond. It should also reserve Mrs
Slipper's rights to institute proceedings if the hotel fails to respond or refuses to
compensate her.
(b) Provisional sentence summons or combined summons
Mrs Slipper should institute her claim by combined summons, rather than provisional
sentence summons.
A provisional sentence summons is appropriate where the plaintiff relies on a liquid
document and seeks provisional sentence on the basis of that document. Typical
examples include claims founded on negotiable instruments or other documents
constituting liquid proof of indebtedness.
Mrs Slipper's claim is a delictual claim for damages arising from negligence. The
amount of damages, particularly future medical expenses, pain and suffering and loss of
amenities of life, requires proof and cannot ordinarily be established merely by a liquid
document.
A combined summons is therefore appropriate because it is accompanied by a
particulars of claim, which sets out the material facts relied upon by Mrs Slipper. The
hotel can then deliver a plea and, if necessary, the matter can proceed to discovery,
pre-trial procedures and trial.
The proper procedure would therefore be:
combined summons → particulars of claim → hotel’s plea → replication where
necessary → further procedural steps → trial.
, (c) Pleading to be annexed to the summons
The pleading accompanying the combined summons would be the particulars of
claim.
The particulars of claim must contain the material facts or facta probanda necessary
to establish Mrs Slipper's cause of action. It should not contain the evidence through
which those facts will ultimately be proved, known as the facta probantia.
The particulars should identify:
the parties;
the court's jurisdiction;
the circumstances giving rise to the incident;
the hotel's legal duty toward its guests;
the hotel's negligent conduct;
the causal connection between the negligence and the injuries;
the injuries and resulting damages; and
the relief claimed.
The pleading should allege the elements of the delict, namely wrongfulness,
fault/negligence, causation and harm.
Mrs Slipper should specifically allege that the hotel knew or ought reasonably to have
known that liquid on a polished limestone lobby floor constituted a slipping hazard and
that, despite its patrol policy, its employees failed to identify and remove the spilled
water or adequately warn guests.
(d) Draft of material facts/facta probanda
The following is an appropriate draft of the material-facts portion of the particulars of
claim:
MATERIAL FACTS / FACTA PROBANDA
