CIV3701 PORTFOLIO MEMO - MAY/JUNE 2023 - SEMESTER 1 - UNISA - (DETAILED ANSWERS - DISTINCTION GUARANTEED!)

CIV3701 PORTFOLIO MEMO - MAY/JUNE 2023 - SEMESTER 1 - UNISA - (DETAILED ANSWERS - DISTINCTION GUARANTEED!) INTRODUCTORY STUDIES QUESTION 1 (a) Briefly explain in which important respects ADR processes are distinguished from formal litigation. (6) (b) Briefly explain why the introduction of the small claims courts was successful in increasing access to justice for litigants in South Africa. (6) (c) Discuss representation by power of attorney, including when a power of attorney is necessary and why a power of attorney is drawn up. (4) (d) Name different types of interdicts and the purpose of each. (4) HIGH COURT JURISDICTION AND PROCEDURE QUESTION 2 (a) X and Y are involved in a motor collision. Y dies as a result of injuries sustained in the collision, and his wife, Z, institutes a High Court action for damages against M, the insurer of the motor vehicle driven by X. The head office of M is situated in Namibia. Bearing these facts in mind, merely name: (i) The procedure which Z can use to relieve the financial hardship she is enduring as a result of the delay in the finalisation of the action. (1) (ii) The procedure M may use in an attempt to settle the matter in terms of the Uniform Rules of Court. (1) (iii) The procedure M may use if Z issues a simple summons rather than a combined summons to commence proceedings. (1) (iv) The pleading that M must deliver if M is of the opinion that the court is not vested with jurisdiction to hear the action. (1) (v) The procedure that Z may use to correct wrong factual information contained in her summons. (1) (vi) The manner in which service of the summons on M must be effected. (1) (vii) The document M must use to indicate that the matter will be opposed. (1) (viii) The procedure that M may use if an allegation in Z's particulars of claim was vexatious. (1) (ix) The pleading that Z would use if M had introduced new factual issues in its plea on the merits. (1) (x) The procedure that X and Z are compelled to arrange and attend before trial in order to attempt shorten the trial? (1) (b) Q is a citizen of Namibia residing in Namibia. Q is invited to a business conference in Durban. Q owns a house in Cape Town. Whilst in Durban on his way to the conference, Q collides with another car driven by Y. Y resides in Pretoria and was also attending the conference. Y alleges that the collision was solely caused by Q. Y suffers damages in the amount of R500 000. Y wants to sue Q for damages suffered. (i) Advise Y whether the KwaZulu-Natal Local Division, Durban and the Western Cape Division, Cape Town will have jurisdiction to hear the matter. (6) (ii) Discuss the relevance of section 42(2) of the Superior Courts Act, 2013 to the facts. (4) (iii) Will your answer to (i) above change if Q consent to the Kwazulu-Natal local Division, Durban? Your answer should make reference to applicable case law. (5) [25] QUESTION 3 (a) What is the purpose of a pre-trial conference in High Court? (4) (b) What are the requirements for an order for attachment ad confirmandum jurisdictionem? (4) (c) What are the requirements for an order for attachment ad fundandam jurisdictionem? (4) (d) What is the effect of section 21(3) of the Superior Courts Act, 2013 in respect of the location of the property for purposes of attachment? (3) [15] MAGISTRATES’ COURTS JURISDICTION AND PROCEDURE QUESTION 4 (a) X enters into a contract with Y in Pretoria. In terms of the contract, Y will build a house for X in Soweto. X pays Y R400 000 for the project. Y resides in Krugersdorp. Y fails to finish building the house and refuses to do so. X wants Y to finish building the house. Will any regional magistrate’s court (in Pretoria or Soweto or Krugersdorp) be competent to force X to finish building the house? (6) (b) Discuss the differences between a special plea and an exception. (4) (c) Briefly indicate the requirements which an offer to settle must meet in terms of Rule 34(5) of the Uniform Rules of Court. (4) (d) B owns property in Durban, which she has rented to A. The monthly rent is R30 000. A is four months in arrears, and B suspects that A plans to leave the property to avoid paying the arrear rent in the amount of R120 000. Advise B regarding the steps she may take to recover payment of the arrear rent. (6) (e) Write a concise note explaining, with reference to case law, what the phrase “specific performance” means within the context of section 46(2)(c) of the Magistrates’ Courts Act 32 of 1944 which prevents magistrates’ courts from making orders for specific performance. (5) APPEAL, REVIEW AND VARIATION OF JUDGMENT QUESTION 6 (a) If X, the defendant, appeals against the judgment of a single judge, may Y, the plaintiff, execute this judgment given in his favour? (4) (b) Name the procedure that must be followed when variation of judgment is sought in terms of Rule 42 of the Uniform Rules of Court. (1) (c) Name the four (4) grounds for review contained in section 22 of the Superior Courts Act, 2013. (4) (d) Briefly explain when a Superior Court will review proceedings of quasi-judicial bodies. (2) (e) Which essential information must be included in a notice of appeal from a magistrates’ court? (2) (f) Briefly explain when the Constitutional Court may be approached directly on appeal from any other court. (2) [15] TOTAL: [100]