CIV3701 EXAM PACK 2022

CIV3701 EXAM PACK 2022. CIV3701 - Civil Procedure Discuss representation by power of attorney, including when a power of attorney is necessary and why a power of attorney is drawn up. (5) Every natural person who is a party to civil proceedings is entitled to represent himself personally. Such a person would usually instruct an attorney to act on his behalf. These instructions are confirmed and specified in a document known as a power of attorney. A power of attorney is a written document in which an agent is given the authority to act on behalf of his principal either in a specified situation or to act on behalf of such principal in respect of all actions which the principal could perform himself. A client may terminate his mandate to an attorney at any time, but an attorney may, after accepting a client’s brief, withdraw only with sound reasons. When is a power of attorney required in litigation? There is no need for a power of attorney for issuing a summons or a notice of intention to defend, but is required to conduct or defend a civil appeal. The rules of the Supreme Court provide that a power of attorney need not be filed with the registrar unless the authority of a legal practitioner to act on behalf of a party is disputed. Why is a power of attorney drawn up? A carefully drawn up power of attorney is essential for the protection of both the attorney and the client, and to determine the extent of the attorney’s brief. Therefore, there should always be a power of attorney kept on the client’s file. The power of attorney generally contains details of the action to be instituted and of the relief to be claimed. The client does not wish to be involved, unknowingly or unwillingly, in expensive litigation, or in an appeal which he never contemplated. On the other hand, the attorney is entitled to protection as far as his own costs are concerned. Should the attorney conduct litigation without the authority of the client, he will not be entitled to recover the costs incurred from his client, since there is no contractual relationship will exist. (b) State the four requirements laid down in Rule 34(5) with which an offer to settle must comply. CLS cc © Civil Procedure 2 Questions - 2015 2 Critical Law Studies CC © (8) Ito Rule 34, a defendant may, at any time, unconditionally or without prejudice, offer to settle a plaintiff’s claim where 1. payment of a sum of money is claimed, or 2. the performance of an act is claimed Claim for payment of a monetary sum The offer to pay a monetary sum must be in writing and must be signed by the defendant or by the defendant’s duly authorized attorney. For the purposes of this Rule, a defendant includes any person joined as a defendant or as a third party, as well as a defendant in reconvention or a respondent in application proceedings. In terms of the Rule, the following expressions have the following meanings: • unconditional = liability in respect of the claim is accepted • without prejudice = liability is denied The plaintiff may, within 15 days of receiving the notice of the offer, accept the offer by delivering a notice of acceptance at the address of the defendant indicated for the purposes hereof. If the plaintiff fails to accept the offer within the period, it may thereafter be accepted only with the written consent of the defendant, or with the courts consent. The defendant must, within 10 days of delivering the acceptance, effect payment as offered. If he fails, the plaintiff may, after giving 5 day’s written notice to this effect, apply through the registrar to a judge for judgment in terms of the offer, plus costs, To receive payments, the plaintiff would then have to take steps to obtain execution against the defendant. 2. Answer the following questions. Ensure that your answer is in proportion to the marks allotted. (a) Set out the processes and pleadings in convention and reconvention exchanged in opposed proceeding where the claim is unliquidated. (Do not deal with pre-trial judgments). (10) A claim which is unliquidated means no quantum has yet been determined, and thus a combined summons must be issued and served by the pl, attached to which is a POC, to set out the pl’s claim. A combined summons is served for a divorce or a claim for damages. The summons is served on the defendant who has the dies induciae to send his NOITD (a process). This is not a means of raising a defence but to state to the pl that he intends defending the action. The def must then, after the dies induciae in the NOITD, send his plea on the merits (a pleading), which sets out the def’s defence, which may be one of admit, deny, or confess and CLS cc © Civil Procedure 2 Questions - 2015 3 Critical Law Studies CC © avoid. This plea answers the claims in the pl’s POC. If issues are joined in the plea, pleadings are closed and preparation for trial may begin, however, if a defence of confess and avoid was pleaded by the def, or if issues are not joined in the plea, the pl may respond to a new issue in the plea by sending a replication. To which the def may answer with a rejoinder. Pleading are then closed. The def may add to his plea on the merits (or in a separate doc) send a counter claim. Pleadings then go from “in convention” to become “in reconvention”. Thus the pl in convention becomes the def in reconvention and the def in convention becomes the pl in reconvention. The def in reconvention then needs to answer the pl in reconvention’s claim with a plea on the counterclaim (or a plea in reconvention). Pleadings in convention then continue in reconvention. (b) Discuss the differences between the special plea and the exception. (8) Difference between the special plea and the exception An exception is limited to an attack on the allegations in the pleading as a whole, on the assumption that such allegations are true. A special plea assumes the truth of all the allegations in the declaration, and does not deal with the merits of the action at all. It differs from an exception in 2 aspects. It alleges fact unconnected with the merits of the action as a result of which the action is either destroyed or postponed. (defendant only) A special plea may only be pleaded to a declaration or particulars of claim, whereas an exception can be brought against any pleading. (any party may use) (c) State the various ways in which evidence may be placed before the trial court. (6) (a) The plaintiff will issue a combined summons to the defendant – this is the summons (process) and the POC (pleading) attached (setting out the pl’s claim). The defendant has the choice then to defend the action by sending a NOITD (process) within the dies induciae stated in the summons (or thereafter pays the costs of the pl’s application for DJ and CLS cc © Civil Procedure 2 Questions - 2015 4 Critical Law Studies CC © within 20 days of the summons being served), or the defendant can ignore the summons and run the risk of DJ being granted against him, or he can offer to settle. The defendant has to then send his plea on the merits – which sets out the defendants defence. Pleadings are then usually closed, but if the def raises a new issue in his plea, or issues are not joined in the plea, the pl can reply with a replication (pleading), and if new issues are raised in the replication, the def may send a rejoinder (pleading). The defendant can also send, along with, or after, the plea on the merits, a special plea (which raises an issue totally unconnected with the facts of the action – raising an issue like no jurisdiction, or res iudicata), or he can attach to or send after the plea on the merits, a counterclaim (if he has a claim against the plaintiff) and this creates pleadings in reconvention, where the defendant in convention becomes the plaintiff in reconvention, and the plaintiff in convention becomes the defendant in reconvention. The defendant in reconvention must then answer the CC with a plea on the counterclaim, setting out his defence to the CC. If the plaintiff in convention wishes to answer this, he may send a replication on the CC etc.