QUESTION or defend proceedings and to move (prosecute)


 QUESTION1ThreeFundamental principles that underlie within our system of civil procedure areexpressed below. (A)·        BilateralityTheprinciple of Bilaterality assumes that both litigants (or all parties, if therearemorethan two litigants) will have a fair and balanced opportunity to present eithertheirrespective claims or defences1. Theprinciple belief inherently refers to that the truth will emerge if eachpartypresentstheir own biased view of the issues in dispute. Both parties are thereforeplacedin an adversarial (competitive) relationship with each other. As rivals, thelitigantspresent separate and contradictory versions of the case for considerationbythe court.

 ·        PartyprosecutionPartyprosecution refers to the competence of a litigant either to commence(begin)or defend proceedings and to move (prosecute) the case forward throughallits procedural stages. Thisprinciple reinforces the notion that litigation is a private matter that isconductedby both litigants without any interference from the court, except whereitsintervention is requested by one of the litigants. Inpractical terms this means that a person whose substantive rights have beeninfringedor alienated has a choice either to commence civil proceedings or simplydo nothingabout the matter. Likewise, if a person commences proceedings as aplaintiffor applicant, then the person against whom proceedings have beencommenced(i.e. the defendant or respondent) may also make certain choices2.

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 ·        PartypresentationPartypresentation refers to the competence of a litigant to investigate his or herowncause or defence, to formulate the issues in dispute, as well as to present thematerialfacts concerned and to prove these facts and raise legal argument insupportof these acts before a court. Theprinciple of party presentation confirms that a litigant has control of thecontentof his or her cause of defence, as the case may be. Litigants arecompetentto determine the scope of the controversy (i.e.

the issues in dispute)andto define the boundaries (scope) of the dispute without the interference of thecourt. Theprinciple of party presentation supports the idea that the litigants should bemastersof their rights. Litigants take primary responsibility for determining theissuesin fact and in law that relate to the dispute, without judicial interference. (B) Boththe National Credit Act 34 of 2005 and the Consumer Protection Act68of 2008 were enacted to provide a specific regulatory framework for thesettlementof consumer-related disputes. Thoughperipheral to traditional civil procedure legislation, these statutes mayhavea significant impact on a range of civil procedure issues, including theenforcementof debts and the determination of a forum having jurisdiction over aparticularcivil claim.

 TheNCA further has limited application to credit guarantees, as it will only applytosuchguarantees to the extent that it is applicable to the credit transaction orcreditfacilityin respect of which the guarantee is granted.88 Many credit agreements thatwere entered into prior to the commencement of the NCA will still be in force longafter its effective date, such as mortgage agreements. Schedule 389 item 4 setsout the extent to which the NCA applies to pre-existing credit agreements. Item4(1) provides that as a point of departure all agreements that would have beensubject to the NCA, had the NCA been in force when the agreements were enteredinto, will be subject to the NCA. Certain provisions are fully applicable, othershave limited application and some are not applicable at all.

A detailed discussionof the provisions that apply to pre-existing agreements falls beyond the scopeof this dissertation.90 Even though the NCA has limited application to incidentalcredit agreements, agreements where juristic persons act in their capacityas consumers and pre-existing credit agreements, the provisions dealing withdebt enforcement are fully applicable to these agreements. As mentioned above,credit guarantees will follow the principal debt3. (c)        The small claims courts, as courts ofminor jurisdiction, have beenestablishedas an alternative to litigating in the magistrates’ courts. The purpose istoextend access to justice in cases of small claims relating to consumer matters,neighbourhooddisputes and, in general, minor disputes that are not worth the costoflitigating in a higher court4. Further to this theimplementation of the small courts actionsaims to encourage the resolutions of disputes outside of the court system thisis known as ”alternate dispute resolution”. (d) TheConstitutional Court exercises concurrent jurisdiction with the High Courtsinrespect of all other constitutional matters. This means that the usual way ofdealingwith a constitutional matter is to approach the relevant High Court for adecision.

This decision may then be taken on appeal, in which case theConstitutional Courtis the court of final instance and no further appeal is possible. The mattersin respect of which the Constitutional Court has exclusive jurisdiction arelisted in section 167(4). They include disputes between organs of state atnational or provincial level concerning their constitutional status, powers orfunction; the constitutionality of parliamentary or provincial bills; whetheror not parliament or the President has failed to comply with a constitutionalduty; and the certification of provincial constitutions.

It is clear from thislist that the majority of constitutional issues will not fall within thisexclusive jurisdiction and that the Constitutional Court will seldom beapproached directly on the basis that it is the only court that may hear amatter. The Constitutional Court exercises concurrent jurisdiction with theHigh Courts in respect of all other constitutional matters. This means that theusual way of dealing with a constitutional matter is to approach the relevantHigh Court for a decision.

This decision may then be taken on appeal, in whichcase the Constitutional Court is the court of final instance and no furtherappeal is possible. Unlike the position under the interim Constitution, theConstitutional Court no longer has the exclusive jurisdiction to determinewhether an Act of parliament is invalid, and a High Court or theSupreme Court ofAppeal may also make such a finding. However, it remains necessary for theConstitutional Court to confirm such a finding made by any other court beforethe order has any force. This is, in effect, a limitation on the concurrentjurisdiction exercised by the other courts.   QUESTION2(a)       Inthis matter, Sipho is the plaintiff and a local peregrinus of Cape Town andThabo is the defendant and also a localperegrinus of Cape Town. Sipho cantherefore institute proceedings at the WesternCape High Court, Cape Town whichwould be vested with jurisdiction on thebasis that the action arose in Cape Town. (b)       Yes,the Western Cape High Court, Cape Town will be vested withjurisdiction. However, the Gauteng Division,Pretoria may also hear the matter asthe defendant “Sipho” need not be physicallypresent in the court’s area ofjurisdiction at the time when action isinstituted.

Further, if a defendant is domiciledin the area of one court and resident in thearea of another, both courts mayexercise jurisdiction on the ground ofratione domicilii. (c)        Undercommon law, a court will be vested with jurisdiction in respect ofmonetary in the following instances: (1) Ifthe contract that is the subject of thelitigation was concluded, was to be performedor was breached within the court’sarea of jurisdiction, any of these groundswill be sufficient to vest a court withjurisdiction.  A court is then said to be vested withjurisdiction ratione contractus.

(2) If the delict on which the claim is basedwas committed within a court’s area ofjurisdiction, a court is vested withjurisdiction ratione delicti commissi.On the given facts, the delict, i.e. thedefamatory comment made about Thabo bySipho occurred in Cape Town and therefore theCape Town High Court would bevested with jurisdiction ratione delicticommissi. (d) (e)       Yes,the KwaZulu-Natal Local Division, Durban will be vested withjurisdiction.

 Where the object of relief is immovable property, the court in whoseterritorial area the immovable thing issituated has exclusive jurisdiction in actions. (f)        Thedefendant need not be physically present in the court’s area ofjurisdiction at the time when action isinstituted. A person may be domiciled at aplace where he is not currently resident, andsuch a court will still have jurisdictionratione domicilii. It is also possible that aperson will be working or on holidayoutside the court’s jurisdictional area atthe time when action is instituted. If adefendant is domiciled in the area of onecourt and resident in the area of another,both courts may exercise jurisdiction on theground of ratione domicilii. On the given facts, neither the defendant norplaintiff is resident in the GautengLocal Division, Johannesburg’s’ area ofjurisdiction and therefore X “Thabo” willnot be able to approach this court toinstitute proceedings against Y “Sipho”.               QUESTION 3(a)       On the basis of the facts given, N, thewife, is ordinarily resident inPolokwaneand therefore can institute proceedings in the Limpopo Local Division,Polokwane. As,section 2(1)(b) of the Divorce Act 70 of 1979 provides that a court iscompetent to exercise divorce jurisdiction if one of the parties to a marriageis resident in its area of jurisdiction at the time of the institution of theaction, and that this party has been resident in the Republic for one yearprior to the institution of the action.

 Accordingly,the Limpopo Local Division, Polokwane is competent to exercise jurisdiction, interms of section 2(1)(b), to grant a divorce order to N. (b)       Section 28(1A) of the Magistrates’ CourtsAct provides that a regionalmagistrate’scourt shall have divorce jurisdiction over both or either party who is”(i)domiciled in the court’s area of jurisdiction on the date on which the (i)domiciledin the court’s area of jurisdiction on the date on which the proceedingsareinstituted; or (ii) ordinarily resident in the court’s area of jurisdiction onthe saiddateand been ordinarily resident in the Republic for a period of not less than oneyearimmediately prior to that date”. Interms of section 29(1B)(b), a regional magistrate’s court hearing any of theseMattersshall have the same jurisdiction as any High Court regarding such matter. Therefore,in this case, the Polokwane Magistrate’s Court will have jurisdiction inthematter.

 (c)        On the basis of the facts given, “S” isordinarily resident in Zambia andneitherdomiciled or resident in the jurisdictional area of the Limpopo LocalDivision,Polokwane but nevertheless can institute divorce proceedings in thejurisdictionalarea of that court. Assection 2(1) of the Magistrates’ Courts Act contains the words “if the partiesareoreither of the parties is”; which means that a court is competent to exercisedivorcejurisdiction if only one of the spouses complies with the domicile orresidencerequirements and therefore the domicile or residence of the spouse issufficientto endow the court with jurisdiction, even if the other spouse is domiciledorresident outside the Republic. Accordingly,because N complies with the provisions of section 2(1)(b), Smayinstitute divorce proceedings in the Limpopo Local Division, Polokwane eventhoughhe is domiciled in Zambia and may have never been to Polokwane.               QUESTION4(a)(i)    Section28(1)(a) of the Magistrates’ Courts Act, 1944 (MCA) provides that amagistrate’s court will be competent toexercise jurisdiction over any person who”resides, carries on business or is in theemploy” within the court’s jurisdictionalarea. Section 28(1)(d) of the MCA further providesthat a magistrate’s court may exercise jurisdiction over any person whether ornot he resides, carries on business, or is employed within the district if thecause of action arose wholly within the particular jurisdictional area ordistrict of the court.

To have arisen “wholly”, conclusion of the contract aswell as breach of contract must have occurred within the same jurisdictionalarea. On the given facts, the Durban districtmagistrate’s court will have jurisdiction interms of section 28(1)(a) of the Act as Dresides there. (ii)        No,my answer will not change as Section 45 of the Magistrates’ Courts Act,1944 sets out how the parties can consent tothe jurisdiction of a particularmagistrate’s court if the amount claimed ishigher than the limit of that particularmagistrate’s court. Parties may thus consent to a claim that isgreater than R300 000 being brought ina regional magistrate’s court, as opposed toa High Court (in terms of section 45 ofthe Magistrates’ Courts Act). Similarly,parties may consent to a claim that is morethan R100 000, but not more than R300 000,being brought in a districtmagistrate’s court, as opposed to a regionalmagistrate’s court (in terms of section46(2)(c)(iii) of the Magistrates’ CourtsAct). (b)(i)    Aperson may have more than one place of residence, in which case he orshe should be sued in the jurisdictional areaof the court in which he or she isresiding at the time of service of thesummons.

On the given facts, D lives in Durban andtherefore the Durban Magistrates’ Courtwill be vested with jurisdiction. (ii)        Thecompetence of a district magistrate’s court to grant an interdict in termsof the provisions of section 30(1) is subjectto the jurisdictional limitationsprescribed by the Magistrates’ Courts Act 32of 1944. Section 46(2)(c) providesthat a magistrate’s court is prohibited fromgranting an order for specificperformance without an alternative fordamages. In Badenhorst v Theophanous 1988(1) SA 793(C), an application fora prohibitory interdict to restrainTheophanous from trading in Albertinia in terms ofa restraint-of-trade agreement in factamounts to a request for the enforcement ofa contractual obligation. An order so grantedwould be one ad factumpraestandum and hence, in practice, be theequivalent of an order for specificperformance without the alternative fordamages. Such an order would thereforebe contrary to the provisions of section46(2)(c), and therefore beyond thejurisdictional competence of a districtmagistrate’s court. In this case, considering the order would becontrary to the provisions of section46(2)(c), and therefore beyond thejurisdictional competence of a districtmagistrate’s court, none of the magistrates’courts mentioned would be in aposition to exercise jurisdiction.exercise jurisdiction.

 (iii)       Adefendant who is owed money by a plaintiff is always free to institute acounterclaim for a higher amount than thatadmitted as due by a plaintiff in termsof section 39 of the Magistrates’ Courts Act.The defendant must then prove theamount claimed that exceeds the amountadmitted by the plaintiff, but obviouslyneed not prove the admitted amount, as the plaintiffhas already conceded his orher indebtedness in this amount. In this case, D’s claim would have no effecton C’s claim, however C would haveto prove the amount claimed that exceeds theamount admitted by himself. (iv)       Section38 of the Magistrates’ Courts Act 32 of 1944 provides that (1) Inorder to bring a claim within thejurisdiction, a plaintiff may in his summons orat any time thereafter explicitly abandonpart of such claim. (2) If any part of aclaim be so abandoned it shall thereby be finallyextinguished: Provided that, if theclaim be upheld in part only, the abandonmentshall be deemed firstto take effect upon that part of the claimwhich is not upheld. Section 39 provides that in order to bring aclaim within the jurisdiction a plaintiffmay, in his summons or at any time after theissue thereof, deduct from his claim,whether liquidated or unliquidated, anyamount admitted by him to be due byhimself to the defendant. On the given facts, an amount of R50 000is due by C to D and therefore I wouldadvise that D uses the provision of Section39 to recover the amount owed by theplaintiff.

 (v)        Section46(2)(b) of the Magistrates’ Courts Act 32 of 1944 provides that amagistrate’s court is not empowered todeclare a person insane or to declare aperson incapable of managing his or her ownaffairs. However, in terms of section 33, note that amagistrate is authorised to appoint acurator ad litem for a person who has alreadybeen declared insane or incapableof managing his or her own affairs. Thecurator ad litem then manages thisperson’s affairs during a trial in themagistrate’s court in which the person isinvolved. Therefore, on the given facts, consideringthat there is only suspicion of D’s mentalinability, which has not been declared by acourt.

C may not approach anymagistrates’ court for the appointment of acurator ad litem.                      DECLARATIONOF AUTHENTICITY I,Raveshin Veerasamy Studentnumber: 6025-381-9 declarethat I am the author of this examination in CIP2601. I further declare that theentire examination is my own, original work and that where I used otherinformation and resources, I did so in a responsible manner. I did notplagiarise in any way and I have referenced and acknowledged any legalresources that I have consulted and used to complete this examination.

Bysigning this declaration I acknowledge that I am aware of what plagiarism is,and the consequences thereof. Furthermore, I acknowledge that I am aware ofUNISA’s policy on plagiarism and understand that if there is evidence ofplagiarism within this document, UNISA may take the necessary action. Date:23 January 2018Place:DurbanSignature:RAVESHIN VEERASAMY 1 Civil Procedure guide – 24 2 Civil Procedure guide 3 The impact of the national creditact on civil procedural aspects relating to debt enforcement – Hermie Coetzee21 4 Civil Procedure guide 28

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