CIV3701
EXAM PACK
, lOMoARcPSD|21997160
Module: CIV3701 (Civil Procedure)
Question 1: Due Date: 17 June 2023
(a) The importance respects ADR processes are distinguished from formal
litigation would be that the ADR process is an informal process unlike the
litigation process which is very formal and has a strict process in the form of
strict procedures on how to conduct proceedings. In ADR, the disputants
are the ones who determine the rules in the proceedings they are in. Due to
this, this makes ADR processes much more flexible than formal litigation
and helps in the adaptation of ones needs in the in a dispute unlike formal
litigation which is much more procedural. In ADR, disputants can choose
whether to enter the process of their dispute as it is voluntary unlike
litigation which is unvoluntary. Unlike formal litigation, ADR process deals
with the importance of the disputants’ interests whilst in formal litigation, the
litigants’ rights are enforced and protected by procedures and laws. In
formal litigation, normally the judgement, is enforced upon the litigants by
the judicial officer who presided over the proceedings, whilst in ADR, the
outcomes of the process would be from the consent of the both the
disputants, which means that both the disputants would need to agree on
the outcomes of the process and not just one. Finally, as formal litigation
looks to past events to obtain a judgment for a litigant who caused an injury
or wrongdoing to the other litigant, ADR is more focused on repairing or
creating a relationship with the disputants.
(b) The introduction of the small claims courts was successful in increasing
access to justice for litigants in South Africa because it made it more
accessible to all South Africans who needed the opportunity or space to
settle small civil disputes amongst one another. This means that they were
able to forgo expensive and formal procedures to one that better suits them,
which means that they are presented with an informal and simple procedure
which helps with litigants not having to pay to much for the small courts.
(c) The representation by power of attorney, including when a power of
attorney is necessary and why a power of attorney is drawn up is due to the
power of attorney is a document that gives the representative the authority
2
, lOMoARcPSD|21997160
to act on behalf of the person they are representing in a specific situation or
in situations where the person (client) being represented is unable to
perform duties on his/ her own. The client can terminate their order with
their attorney at any given time and the attorney can also withdraw from the
client after accepting the briefing if the reason for withdrawing is sound. A
power of Attorney is drawn up to protect the attorney and their client and to
also help with the extent of the attorney’s brief, which is why the document
should be kept in the client’s files. The power of attorney document also
normally contains information such as what actions the attorney should
institute and relief of claims.
(d) The different types of interdicts are the prohibitory interdict, the mandatory
interdict and the restitutory interdict and their purpose are as follows; in
terms of Prohibitory interdict, the indict is an order that requires a person to
refrain from committing a wrong or threatening to do wrong or continuing
from doing wrong from towards the other person. A mandatory interdict is
an order that convinces a person to do a positive act in order to fix the
wrongfulness in which the respondent has brought or make them do
something that the law has obligated them if the complainant has not been
deprived of their rights yet. However, if the act is done by a police officer,
then the interdict would be called a mandamus. A restitutory interdict is and
interdict that is used if a person has unlawfully distributed a possession of
property and they are permitted to immediate restitution, even before the
accreditation of the dispute is seen or investigated in court.
Question 2:
(a)
(i) Application for interim payments
(ii) Ad fundandam iurisdictionem
(iii) Notice of Intent to defend.
(iv) Ratione domicilii
(v) An application to set aside the summons as an irregular proceeding.
3
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(vi) .
(vii) Answering Affidavit
(viii) Motion to strike out
(ix) The rejoinder
(x) A pre-trial conference
(b)
(i) The Western Cape Division, Cape Town will have jurisdiction to hear
the matter due to ad confirmandam jurisdictionem. Since Q is a
citizen of Namibia, this would make him a peregrinus of the whole of
South Africa. This means that the South African court would need to
exercise their jurisdiction by attaching the defendant’s property that
they have in South Africa to them to determine which court has
Jurisdiction as well as cause of action. The court in which the
collision occurred would normally be able to exercise the jurisdiction
of ad confirmandam jurisdictionem, as long as the defendant has
property within South Africa. However, the court that has the
attachment within its jurisdiction would confirm the impartial or partial
strength of the jurisdiction of the court. This means that the High
Court of the Western Cape Division would have jurisdiction to hear
the matter and not the Durban High Court as the ad confirmandam
jurisdictionem of Q is in Cape Town and not in Durban. Therefore,
even though the cause of action happened in Durban, the Durban
High Court would need to transfer the matter to the Western Cape
Division, Cape Town as it has impartial or partial jurisdiction to hear
the matter due to Q’s attachment being in Cape Town and not in the
area where the cause of action occurred.
(ii) Section 42 (2) of the Superior Courts Acts states that a civil process
of a division can run throughout the Republic of South Africa and
may be served or executed within the jurisdiction of any division. This
means that if there is a process that was issued by a specific court,
such as a summons or a notice of motion, then it can be served with
the jurisdiction of any division with the High Court of South Africa.
This also means that a judgement or an order from a specific court
4
EXAM PACK
, lOMoARcPSD|21997160
Module: CIV3701 (Civil Procedure)
Question 1: Due Date: 17 June 2023
(a) The importance respects ADR processes are distinguished from formal
litigation would be that the ADR process is an informal process unlike the
litigation process which is very formal and has a strict process in the form of
strict procedures on how to conduct proceedings. In ADR, the disputants
are the ones who determine the rules in the proceedings they are in. Due to
this, this makes ADR processes much more flexible than formal litigation
and helps in the adaptation of ones needs in the in a dispute unlike formal
litigation which is much more procedural. In ADR, disputants can choose
whether to enter the process of their dispute as it is voluntary unlike
litigation which is unvoluntary. Unlike formal litigation, ADR process deals
with the importance of the disputants’ interests whilst in formal litigation, the
litigants’ rights are enforced and protected by procedures and laws. In
formal litigation, normally the judgement, is enforced upon the litigants by
the judicial officer who presided over the proceedings, whilst in ADR, the
outcomes of the process would be from the consent of the both the
disputants, which means that both the disputants would need to agree on
the outcomes of the process and not just one. Finally, as formal litigation
looks to past events to obtain a judgment for a litigant who caused an injury
or wrongdoing to the other litigant, ADR is more focused on repairing or
creating a relationship with the disputants.
(b) The introduction of the small claims courts was successful in increasing
access to justice for litigants in South Africa because it made it more
accessible to all South Africans who needed the opportunity or space to
settle small civil disputes amongst one another. This means that they were
able to forgo expensive and formal procedures to one that better suits them,
which means that they are presented with an informal and simple procedure
which helps with litigants not having to pay to much for the small courts.
(c) The representation by power of attorney, including when a power of
attorney is necessary and why a power of attorney is drawn up is due to the
power of attorney is a document that gives the representative the authority
2
, lOMoARcPSD|21997160
to act on behalf of the person they are representing in a specific situation or
in situations where the person (client) being represented is unable to
perform duties on his/ her own. The client can terminate their order with
their attorney at any given time and the attorney can also withdraw from the
client after accepting the briefing if the reason for withdrawing is sound. A
power of Attorney is drawn up to protect the attorney and their client and to
also help with the extent of the attorney’s brief, which is why the document
should be kept in the client’s files. The power of attorney document also
normally contains information such as what actions the attorney should
institute and relief of claims.
(d) The different types of interdicts are the prohibitory interdict, the mandatory
interdict and the restitutory interdict and their purpose are as follows; in
terms of Prohibitory interdict, the indict is an order that requires a person to
refrain from committing a wrong or threatening to do wrong or continuing
from doing wrong from towards the other person. A mandatory interdict is
an order that convinces a person to do a positive act in order to fix the
wrongfulness in which the respondent has brought or make them do
something that the law has obligated them if the complainant has not been
deprived of their rights yet. However, if the act is done by a police officer,
then the interdict would be called a mandamus. A restitutory interdict is and
interdict that is used if a person has unlawfully distributed a possession of
property and they are permitted to immediate restitution, even before the
accreditation of the dispute is seen or investigated in court.
Question 2:
(a)
(i) Application for interim payments
(ii) Ad fundandam iurisdictionem
(iii) Notice of Intent to defend.
(iv) Ratione domicilii
(v) An application to set aside the summons as an irregular proceeding.
3
, lOMoARcPSD|21997160
(vi) .
(vii) Answering Affidavit
(viii) Motion to strike out
(ix) The rejoinder
(x) A pre-trial conference
(b)
(i) The Western Cape Division, Cape Town will have jurisdiction to hear
the matter due to ad confirmandam jurisdictionem. Since Q is a
citizen of Namibia, this would make him a peregrinus of the whole of
South Africa. This means that the South African court would need to
exercise their jurisdiction by attaching the defendant’s property that
they have in South Africa to them to determine which court has
Jurisdiction as well as cause of action. The court in which the
collision occurred would normally be able to exercise the jurisdiction
of ad confirmandam jurisdictionem, as long as the defendant has
property within South Africa. However, the court that has the
attachment within its jurisdiction would confirm the impartial or partial
strength of the jurisdiction of the court. This means that the High
Court of the Western Cape Division would have jurisdiction to hear
the matter and not the Durban High Court as the ad confirmandam
jurisdictionem of Q is in Cape Town and not in Durban. Therefore,
even though the cause of action happened in Durban, the Durban
High Court would need to transfer the matter to the Western Cape
Division, Cape Town as it has impartial or partial jurisdiction to hear
the matter due to Q’s attachment being in Cape Town and not in the
area where the cause of action occurred.
(ii) Section 42 (2) of the Superior Courts Acts states that a civil process
of a division can run throughout the Republic of South Africa and
may be served or executed within the jurisdiction of any division. This
means that if there is a process that was issued by a specific court,
such as a summons or a notice of motion, then it can be served with
the jurisdiction of any division with the High Court of South Africa.
This also means that a judgement or an order from a specific court
4
