TUTORIAL LETTER 3

GUIDELINES FOR ANSWERS FOR ASSIGNMENT QUESTIONS

Year 2022
Semester FIRST SEMESTER
Module CIVIL PROCEDURE
Module code LCP500

1. DETAILS OF LECTURER/FACILITATOR OF LEARNING

Lecturer/Facilitator of Learning Adv. Francisca Nel

Consultation times Please refer to the “Meet your Lecturer” page on Canvas

082 258 5644

Telephone
I prefer that you send me an email please

Email fnel@stadioDL.ac.za
2. FOR ANSWERS FOR ASSIGNMENT QUESTIONS

Question 1 [20]
Students can begin the answer with a summary of the general principles.
Summary of the common-law jurisdictional principle:
• On page 93 textbook (2020) the following summary is provided:
o PRINCIPLE OF TERRITORIALITY/EFFECTIVENESS – Establish a ratio
jurisdictionis between plaintiff’s claim and court’s territory
o VALUE OF CLAIM – (Small Claims Court) small amounts – (District) and
(Regional) larger amounts – (High Court) unlimited amounts
o NATURE OF CLAIM – ratione rei gestae- ratione rei sitae
o ACTOR SEQUITUR FORUM REI – ratione domicilli/ratone
residentii/place of business of defendant
o CONVENIENCE – where more than two connecting links between claims and
court’s territory
o SUBMISSION/CONSENT
o INCOLA AND FOREIGN PEREGRINUS – MONEY CLAIMS Attachment to
found/confirm jurisdiction or personal service of summons. Textbook (2020) page 93.
(10)

• Of importance here is also the National Credit Act and Consumer Protection Act. Paragraph
3.8 of the textbook deals with these. Paragraph 4.9 also refers to the impact of the National
Credit Act and Consumer Protection Act on jurisdiction. In University of Stellenbosch
Legal Aid Clinic and others v Minister of Justice and Correctional Services and Others 2016
6 SA 596 (CC) the Constitutional Court held that the NCA’s provisions in section 90
(2)(K)(vi) trump the provisions relating to consent to jurisdiction in section45 of the
Magistrate’s Courts Act. This means that a debtor who is a consumer under a credit
agreement governed by the NCA cannot validly consent to the jurisdiction of a
Magistrate’s Court other than that in which the debtor resides or is employed. In Nedbank
LTD v Gqirana NO and Similar Matters 2019 6 SA 139 (ECG) a full court of the Eastern
Cape Division held that all matters pertaining to causes of action arising from the NCA must
be instituted in the Magistrate’s Court. Textbook (2020) page 68.
(10)
Textbook: Chapter 4.
Study Guide: Topic 2.

Question 2 [15]
It is very important for a lawyer to be well prepared before entering a court room.
In Chapter 18 of the textbook the following processes are discussed:
Enrolment and set down
Discovery of documents
The discovery procedure
Medical examinations
Inspection of property and things
Presentation of a plan, diagram, mode
 Expert evidence
Further particulars the pre-trial conference judicial case management
Witness subpoenas
Evidence on affidavit, commission and interrogatives
Discovery of other forms of evidence
1 mark for discussing a process.
Textbook: Chapter 18.
Study Guide: Topic 7.

Question 3 [20]
The book Practical Drafting Skills by Ismael Hussain deals mainly with the practical side of drafting
a plea. It is a very handy book to have in a person’s possession.
Th following 10 steps are relevant in drafting the plea. A suggestion is first to write down the steps
and then to apply them to the case scenario.
Step 1: Gather all the facts
Step 2: Begin by answering: what happened according to the client’’\s version and write down all
the facts
Step 3: Contextualise the matter. What area of the law is relevant or applicable?
Step 4: Know the law or research the law. Look at applicable case law.
Step 5: Identify all the elements of the course of action. What are the material facts?
Step 6: Check if these facts tell a story about what happened according to your client’s version.
Step7: Ask yourself if you have all the facts to prove each of these elements
Step 8: Prepare a plan how you will draft the particulars.
Step 9: Draft the final product.
Step 10: Read over your first draft and make sure of the following:
Setting the clients version - Accurately setting out the nature of the case
- Stating the client’s cause of action
- A complying with the uniform rules and directives

Thus particulars of claim should include following:

The parties
Jurisdiction
Locus Standi
Defendant’s vehicle
The collision
First defendant’s negligence
Consequences
Plaintiff’s claim against defendant
 Quantum of plaintiff/s claim
The relief
Demand
The prayer
Now you are ready to draft the plea.
Textbook: Chapter 16.
Study Guide: Topic 5.

Question 4 [10]
This question deals with class actions and public-interest actions. (1)
In terms of section 38(c) of the Constitution a class action or a representative action allows a
person or persons to institute an action on behalf of and in the interest of a group, or class of
persons, having the same defined issues of fact and/or law in common. (2)
In 1998 the South African Law Reform Commission published a research report that defined a
class action. You are referred to page 123 of the textbook for a discussion. Here the Commission
emphasized relevant questions that needed to be asked. (6)
In the case Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 )(CC) guidelines to be followed
were provided in a matter that deals with class action. (2)
Textbook: Chapter 7 pages 123–128

Question 5 [15]
The principle when a party to litigation is not satisfied with the judgement of the court, the party
may, depending on the circumstances, take the judgement on appeal or review.
The purpose will be to set aside the judgement.
When will an appeal be appropriate?
When the litigating party is of the view that the court has come to a wrong conclusion on the facts
in issue or the law and therefore wants to question the substantive correctness of the decision.
Thus, the party wishes to attack the legal result of the proceedings when the decision-maker
makes a bona fide mistake in law. The appeal is thus concerned with the facts of law.
In the textbook page 374 the following is referred to:
The following generally constitutes questions of law based on incorrect judgements or
decisions which ought to be taken on appeal:
➢ A judgement which is not justified by the evidence
➢ A decision regarding the right of a party to amend a plea
➢ A decision regarding the striking-out of certain allegations
➢ A decision relating to the party upon whom the onus of proof lies.
Please study pages 379 and further regarding appeals.
Briefly refer to relevant cases taken on appeal based on:
- Judgement given not justified by evidence
- A decision regarding the right of a party to amend pleadings

A decision relating to the party upon whom the onus of proof lies
- What does the striking out of certain allegations entail?
Take note of the following:
 When does an appeal lie?
 Examples of decisions.
 Read page 381. Can you add/refer to more examples?
 Instances in which no appeal lies
 When leave to appeal will be granted?
Do you agree with these instances? Motivate or add more by way of reference to a relevant
case.
 Appeals from magistrate’s court
 Appeals from superior courts. Take note of procedure to be followed.
Also of interest are the powers of the court of appeal.
The Court may:
➢ Dispose of an appeal without the hearing of oral arguments
➢ Receive further evidence
➢ Remit the case to the court of first instance for further hearing, with instructions as
to the taking of further evidence or otherwise as may be deemed necessary
➢ Confirm, amend or set aside the decision appealed against and render any decision
which the circumstances may require.
Refer to any relevant case:
- where a court disposes of an appeal without the hearing of oral arguments
- where a court receives further evidence
- where a court remits the case to the court of first instance
- where a court confirms the decision appealed against
- where a court sets aside the decision appealed against.

When will a review be appropriate?

When the litigating party is of the view that the method used by the court in arriving at its
conclusion was flawed or irregular and therefore wants to question the procedural fairness of the
proceedings. The question is thus not on the correctness of the decision but on its validity. Thus,
the party wishes to attack the method by which the legal result was arrived at which is generally an
irregularity or illegality. The focus here is on ‘grave irregularities or illegalities occurring during the
course of such proceedings.’
Grounds upon which the proceedings of any magistrate’s court may be brought under review
before a court of a division of a High Court are as follows:
➢ Absence of jurisdiction on the part of the court
➢ Interest in the cause, bias, malice or corruption on the part of the presiding officer
➢ Gross irregularity in the proceedings
➢ The admission of inadmissible or incompetent evidence or the rejection of admissible or
component evidence. Of interest is that a mere irregularity by itself is not a ground for
setting aside a decision on review. It must be a ‘gross irregularity’. It must cause
prejudice to the party seeking the relief. It is not necessary to establish actual prejudice;
likelihood of prejudice will be sufficient. Refer to textbook page 376 and further.
Read and summarize the case Magano and Another v District Magistrate Johannesburg and
Others (2) 1004 (4) SA 172 (W).
Please study pages 375 to 379 regarding appeals.
Study textbook page 373 and further for a discussion of the fundamental distinctions between the
nature of appeals and reviews.
In the study guide pages 27 and further the following is discussed:
Time periods:
There are strict time periods applicable to appeals. In respect of reviews there are no time
limits, but the general rule is that a review must be launched within a reasonable period. It
is not of cardinal importance that students have the different time periods relating to
appeals at their fingertips, but students must have a proper appreciation of the rule that
specific time periods apply in respect of appeals and also the process necessary in the
event of non-compliance with time rules – an application for condemnation. This is
 something that occurs frequently in practice and is frowned upon by courts. Once a review
is launched there are also time periods that have to be adhered to.
Leave:
Leave is not required for a review, but it is required in the superior courts to apply for leave.
Previous records:
In the event of an appeal only the record of the proceedings of the lower court would be
before the court of appeal unless there has been an application to the court of appeal to
adduce further evidence. In the case of review, it will not be only the record but also
reasons and any extrinsic evidence to prove the irregularity or illegality complained of.
There would also be a notice of motion and affidavits from the parties involved in the review
when it is heard. In essence, the review is heard as an application whilst this is not the case
with an appeal.
In an appeal there would also be heads of argument as such is prescribed by the Rules
whilst this is not necessarily case with reviews.
Grounds:
The grounds for review are dealt with in Chapter 21.2.1.1. This is not a closed list and the
High Court is prepared to intervene in the proceedings of a lower court in a broader range
of circumstances than those set out in section 22(1). However, there must be exceptional
circumstances which infringe a fundamental right protected by Chapter 2 of the
Constitution.
Successful review/appeal:
In the case of a successful review, the court of review may set aside the proceedings
reviewed or a specific decision in the proceedings and may remit the matter to the court a
quo or the tribunal in question for further hearing with directions to substitute its own
decision. In an appeal the powers of the court are wider. It may for example receive further
evidence or render any decision which the circumstances may require.
Finality of decision:
In order to take a matter on appeal, the decision on appeal must be final, definitive of the
rights of the parties and must have the effect of disposing of a substantial portion of the
relief claimed by either party. Students can refer to Chapter 21.3.2 containing examples of
such decisions.
It is not necessary that a decision be final for it to be taken on review. However, courts are
slow to interfere in proceedings whilst it is still running as the outcome of
the matter may determine that an application for review may have been unnecessary.
Study Guide: Topic 8.
Textbook: Chapter 21 page 373 and further.

Question 6 [10]
Fundamentally, the difference between the two procedures is that application proceedings are
based on the exchange of affidavits (motion proceedings), whilst action proceedings are based on
a trial (trial proceedings). In practice we say if a matter can be decided “on paper”, application
procedure is apposite. If viva voce evidence (witnesses testifying in court) is required, then the
matter must go to trial procedure.
Action proceedings:
Action proceedings involve the calling of witnesses, they give evidence orally before the
court, and the legal representatives will summarise the evidence and argue before the court.
The court must then weigh up evidence and make a ruling based on the balance of
probabilities. The parties are called the plaintiff and defendant.

The trial-action procedure is thus divided into three stages:

1. The pleading stage. Pleadings set out the material facts of a claim, defence or
answer to a defence and they specify relief sought by a party in a prayer.
2. The preparation for trial stage
3. The actual trial hearing.
Thus, for action proceedings you will need to be familiar with the following documents and
procedures:
Summons
Particulars of claim
Service of summons
Default judgement
Notice of intention to defend
Further particulars
Declaration
Defence
Plea
Special plea
Counterclaim
Replication and the plea in reconvention
Close of pleadings
Pre-trial pleadings
Chapter 9 pages 169 and further deal with the action procedure.
Application proceedings:
Application proceedings are based on the exchange of affidavits. The idea is to dispose of
the vive voce or oral evidence. The parties are called the applicant and respondent. The
following documents and procedures are relevant for the application process:
Notice of motion
Affidavit
Let us look at the case Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3)
SA 1155 (T)
Read the case Room Hire Co. (Pty) Ltd v Jeppe Street Mansions again.
The question of whether a party should proceed by way of the application procedure or by
way of action procedure was dealt with in this case. As a general rule the choice between the
application and action procedures depends on whether a bona fide material dispute of fact
should have been anticipated by the party launching the proceedings.
 ✔ When such a dispute is anticipated a trial action should be instituted.
✔ Otherwise, motion proceedings are permissible in order to avoid the delay and
expense involved in a trial action.

THUS: from this general rule, motion proceedings should not be instituted in:
Claims for liquidated damages
Matters in which it is anticipated that a material dispute of fact will arise, unless the
application procedure is specifically authorised for that kind of claim e.g., claims for
divorce.
In certain types of proceedings, the application proceedings should always be used.
Examples are:
Insolvency proceedings
If a party seeks urgent relief.
Let us look at the question when a dispute of fact may arise:
According to the Room Hire case a dispute of fact may arise in the following situations:
Where the respondent denies all the material allegations made by the various deponents on
behalf of the applicant and furnishes positive evidence by the deponents or witnesses to the
contrary.
a) Where the respondent admits the allegations in the applicant’s founding or
b) supportive affidavit, but raises other facts which in turn are denied by the applicant.
c) Unreliable
d) Where the respondent states that he or she can lead no evidence himself or herself or
by others to dispute the truth of the applicant’s statement, which are peculiarly within
the applicant’s knowledge, but he or she puts the applicant to the proof thereof by oral
evidence subject to cross-examination.
How do we resolve a dispute of fact? Dismissal of the application, presentation of oral
evidence, referral to trial.
A step-by-step comparison of the two types of application.
Textbook: Chapters 8 and 9.
Study Guide: Topic 4.

Question 7 [10]

The amended HCR 46 regulates execution against immovable property.

Pages 460–467 in the textbook contain a discussion. Of relevance are the general rules namely
the amended section 46 of the HCR that regulates the process. The requirements before a writ of
execution against the immovable property of a judgement debtor may be issued is referred to in
this section. Of relevance is also the execution against the primary residence of the judgement
debtor. In Absa Bank v Mokebe and Related Cases 2018 (6) SA 492 (GJ) it is stated that before a
court, in terms of HCR 46 A (2)(b) authorises execution against immovable property that is the
primary residence of a judgement debtor, the court must consider all relevant factors and
determine if execution is warranted.
Textbook: Chapter 22.
Study Guide: Topic 9.

3. CONCLUSION

I hope you all enjoyed this assignment as it covers a very interesting and fascinating part of the
law.

Regards
Adv Francisca Nel