CIV 3701 CIVIL PROCEDURE LATEST COMPLETE REVISION EXAM STUDY PACK 2020

2020 – SEMESTER 1 – ASSIGNMENTS WITH MEM0S QUESTION 1 Peter is domiciled in Pretoria. While on a holiday in Durban, Peter is involved in a motor vehicle accident with Portia who failed to stop at a stop street. Portia is domiciled in Johannesburg and owns a flat in Cape Town. Peter suffered damages to this vehicle due to the collision in the amount of R500 000. Bear these facts in mind and answer the following questions. Give full reasons for each answer. (a) May Peter institute proceedings for damages against Portia in the Johannesburg High Court? (2) When a defendant is domiciled or resident within the Republic, he or she is an incola of the Republic, and the court where the defendant is domiciled, or resident will have jurisdiction to hear the matter based on the principle actor sequitur forum rei. In this instance, the defendant is domiciled in Johannesburg and therefore, the Johannesburg court will have jurisdiction ratione domicilii. (See study guide unit 6.1 and 8.2.) (b) May Peter institute proceedings for damages against Portia in the Durban High Court? (1) Under common law, a court will be vested with jurisdiction in respect of monetary claims ratione rei gestae if the delict on which the claim is based was committed within a court’s area of jurisdiction. On the given facts, the delict (a motor vehicle accident) occurred in Durban, and Peter may thus institute proceedings. The Durban court will have jurisdiction ratione delicti commissi. (See study guide unit 6.1.) (1) (c) May Peter institute proceedings for damages against Portia in the Cape Town High Court? (2) Where a defendant is neither domiciled, nor resident in the jurisdictional area of the court concerned, such defendant is a peregrinus of that particular court, but because he or she is still domiciled or resident somewhere in the Republic, such defendant is termed a local peregrinus, and the usual common-law jurisdiction principles still apply. On the given facts, Peter may not institute action in the Cape Town High Court, as there is no jurisdictional nexus to the court (the defendant is neither domiciled, nor resident in Cape Town and the cause of action did not arise within the court’s area of jurisdiction). The mere fact that Portia’s property is situated in the court’s area of jurisdiction provides no nexus, as the claim is one sou nding in money, and not a property claim. (See study guide unit 8.3.) (d) Will the Pretoria High Court be competent to exercise jurisdiction if, on the same facts, Portia is now an American citizen who is domiciled in New York and the flat is situated in Pretoria? (4) Where a defendant is neither domiciled nor resident within the borders of the Republic, such defendant is a foreign peregrinus. In instances where the defendant is a peregrinus of the whole Republic, a court will assume jurisdiction only if attachment of the defendant’s property occurs. One such form of attachment is when the plaintiff is an incola of the court concerned and attachment of the defendant’s property has taken place (this is known as attachment ad fundandam iurisdictionem). For an order of attachment to found ANNEjuXrUisRdiEct1ion, it is not necessary for the cause of action to have arisen within the court’s area of jurisdiction: attachment ad fundandam iurisdictionen alone constitutes the ground on which the assumption of jurisdiction is justified. On the given facts, the defendant is a peregrinus of the Republic of South Africa and has attachable immovable pro...................................continued