, CIV3701 Assignment 1 (COMPLETE ANSWERS) Semester 2
2025 – DUE 21 August 2025; 100% correct solutions and
explanations.
QUESTION 1
(a) Why an ordinary application (motion proceedings) is
inappropriate
1. Nature of the relief (unliquidated damages):
P’s claim is for contractual damages of R700 000.
Damages—especially where quantum must be proved—are
unliquidated and typically require evidence on breach,
causation, mitigation, and the amount. Courts expect such
claims to be brought by action (summons) proceedings, not
by motion, because the amount is not fixed or readily
ascertainable on simple proof.
2. Inevitable material disputes of fact:
A breach-of-contract dispute almost always raises genuine,
material disputes of fact (e.g., was there breach, was it
repudiation, was performance defective, was there compliance
with terms/notice clauses, what losses were caused, did P
mitigate?).
o In applications, the court decides the case on the papers
(affidavits) and does not hear oral testimony as of right.
o Where there is a real dispute of fact, the Plascon-Evans
principle means final relief is determined largely on the
respondent’s (Y’s) version if it is plausible—making an
application a strategically poor and procedurally
unsuitable choice for P.
3. Need for viva voce evidence and cross-examination:
Proving breach and quantifying damages typically requires
oral evidence, discovery, and cross-examination (e.g., about
performance standards, causation, market values, lost profits).
2025 – DUE 21 August 2025; 100% correct solutions and
explanations.
QUESTION 1
(a) Why an ordinary application (motion proceedings) is
inappropriate
1. Nature of the relief (unliquidated damages):
P’s claim is for contractual damages of R700 000.
Damages—especially where quantum must be proved—are
unliquidated and typically require evidence on breach,
causation, mitigation, and the amount. Courts expect such
claims to be brought by action (summons) proceedings, not
by motion, because the amount is not fixed or readily
ascertainable on simple proof.
2. Inevitable material disputes of fact:
A breach-of-contract dispute almost always raises genuine,
material disputes of fact (e.g., was there breach, was it
repudiation, was performance defective, was there compliance
with terms/notice clauses, what losses were caused, did P
mitigate?).
o In applications, the court decides the case on the papers
(affidavits) and does not hear oral testimony as of right.
o Where there is a real dispute of fact, the Plascon-Evans
principle means final relief is determined largely on the
respondent’s (Y’s) version if it is plausible—making an
application a strategically poor and procedurally
unsuitable choice for P.
3. Need for viva voce evidence and cross-examination:
Proving breach and quantifying damages typically requires
oral evidence, discovery, and cross-examination (e.g., about
performance standards, causation, market values, lost profits).
