, PLEASE USE THIS DOCUMENT AS A GUIDE TO ANSWER YOUR ASSIGNMENT
QUESTION 1
1. P has a claim against Y in the amount of R700 000 based on breach of contract which
occurred in Bloemfontein. P is an incola of Bloemfontein and Y is an incola of Johannesburg.
With these facts in mind, answer the following questions. Give full reasons for your answers.
A) Explain why it will be inappropriate for P to use an ordinary application to institute
proceedings against Y.
It would be inappropriate for P to use an ordinary application to institute proceedings against Y
because the claim in question involves R700,000 for breach of contract, which typically constitutes
an unliquidated claim1. Claims for unliquidated damages, which have not been fixed, are generally
excluded from application proceedings as these claims necessitate the introduction of evidence to
determine the exact amount2. Furthermore, cases involving unliquidated damages often involve
significant factual disputes that can only be resolved through the presentation of oral evidence and
cross-examination, which are better suited to action proceedings rather than application
proceedings3.
B) Explain why P can institute proceedings against Y in the Bloemfontein High Court.
P can institute proceedings against Y in the Bloemfontein High Court because the court has
jurisdiction ratione rei gestae, meaning that the cause of action arose within its territorial area. The
breach of contract occurred in Bloemfontein, thereby establishing the cause of action in this
jurisdiction4. While Y is an incola of Johannesburg, making Y a local peregrinus in the Bloemfontein
High Court, the court can still assert jurisdiction as the breach took place within its area5. Thus, the
Bloemfontein High Court has the necessary jurisdiction to hear the case6.
C) Would your answer to (b) above differ if Y was a foreign peregrinus of the Republic?
Yes, the answer would differ if Y were a foreign peregrinus, as the court would require the
attachment of Y's property to establish jurisdiction. A foreign peregrinus, being neither domiciled
nor resident in the Republic, would necessitate an attachment of property to confirm the court's
jurisdiction. This is based on the doctrine of effectiveness, which ensures that the court can give and
enforce an effective judgment7. Since the cause of action (breach of contract) occurred in
Bloemfontein, the Bloemfontein High Court would have jurisdiction ratione rei gestae. However, the
attachment of property would be necessary to secure Y's assets and ensure the judgment is
enforceable, particularly if Y were to leave the country8.
D) Would your answer to (b) above differ if the claim related to the registration of fixed
property, and the property was situated in Pretoria?
Yes, the answer would differ if the claim related to the registration of fixed property and the property
was situated in Pretoria. In such a case, the Pretoria High Court would have jurisdiction because, for
claims involving immovable property, the competent court is determined by the location of the
property, not the plaintiff's incola status or where the breach occurred. Jurisdiction is governed by the
principle of forum rei sitae, meaning that the court where the property is situated has the authority to
hear the case9. Therefore, even though the breach occurred in Bloemfontein, the Pretoria High Court
would be the appropriate forum for a claim concerning the registration of fixed property10.
QUESTION 1
1. P has a claim against Y in the amount of R700 000 based on breach of contract which
occurred in Bloemfontein. P is an incola of Bloemfontein and Y is an incola of Johannesburg.
With these facts in mind, answer the following questions. Give full reasons for your answers.
A) Explain why it will be inappropriate for P to use an ordinary application to institute
proceedings against Y.
It would be inappropriate for P to use an ordinary application to institute proceedings against Y
because the claim in question involves R700,000 for breach of contract, which typically constitutes
an unliquidated claim1. Claims for unliquidated damages, which have not been fixed, are generally
excluded from application proceedings as these claims necessitate the introduction of evidence to
determine the exact amount2. Furthermore, cases involving unliquidated damages often involve
significant factual disputes that can only be resolved through the presentation of oral evidence and
cross-examination, which are better suited to action proceedings rather than application
proceedings3.
B) Explain why P can institute proceedings against Y in the Bloemfontein High Court.
P can institute proceedings against Y in the Bloemfontein High Court because the court has
jurisdiction ratione rei gestae, meaning that the cause of action arose within its territorial area. The
breach of contract occurred in Bloemfontein, thereby establishing the cause of action in this
jurisdiction4. While Y is an incola of Johannesburg, making Y a local peregrinus in the Bloemfontein
High Court, the court can still assert jurisdiction as the breach took place within its area5. Thus, the
Bloemfontein High Court has the necessary jurisdiction to hear the case6.
C) Would your answer to (b) above differ if Y was a foreign peregrinus of the Republic?
Yes, the answer would differ if Y were a foreign peregrinus, as the court would require the
attachment of Y's property to establish jurisdiction. A foreign peregrinus, being neither domiciled
nor resident in the Republic, would necessitate an attachment of property to confirm the court's
jurisdiction. This is based on the doctrine of effectiveness, which ensures that the court can give and
enforce an effective judgment7. Since the cause of action (breach of contract) occurred in
Bloemfontein, the Bloemfontein High Court would have jurisdiction ratione rei gestae. However, the
attachment of property would be necessary to secure Y's assets and ensure the judgment is
enforceable, particularly if Y were to leave the country8.
D) Would your answer to (b) above differ if the claim related to the registration of fixed
property, and the property was situated in Pretoria?
Yes, the answer would differ if the claim related to the registration of fixed property and the property
was situated in Pretoria. In such a case, the Pretoria High Court would have jurisdiction because, for
claims involving immovable property, the competent court is determined by the location of the
property, not the plaintiff's incola status or where the breach occurred. Jurisdiction is governed by the
principle of forum rei sitae, meaning that the court where the property is situated has the authority to
hear the case9. Therefore, even though the breach occurred in Bloemfontein, the Pretoria High Court
would be the appropriate forum for a claim concerning the registration of fixed property10.
