QUESTION or applicant, then the person against whom


 

QUESTION
1

Three
Fundamental principles that underlie within our system of civil procedure are
expressed below.

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(A)

·        
Bilaterality

The
principle of Bilaterality assumes that both litigants (or all parties, if there
are

more
than two litigants) will have a fair and balanced opportunity to present either

their
respective claims or defences1.

 

The
principle belief inherently refers to that the truth will emerge if each
party

presents
their own biased view of the issues in dispute. Both parties are therefore

placed
in an adversarial (competitive) relationship with each other. As rivals, the

litigants
present separate and contradictory versions of the case for consideration

by
the court.

 

·        
Party
prosecution

Party
prosecution refers to the competence of a litigant either to commence

(begin)
or defend proceedings and to move (prosecute) the case forward through

all
its procedural stages.

 

This
principle reinforces the notion that litigation is a private matter that is

conducted
by both litigants without any interference from the court, except where

its
intervention is requested by one of the litigants.

 

In
practical terms this means that a person whose substantive rights have been

infringed
or alienated has a choice either to commence civil proceedings or simply

do nothing
about the matter. Likewise, if a person commences proceedings as a

plaintiff
or applicant, then the person against whom proceedings have been

commenced
(i.e. the defendant or respondent) may also make certain choices2.

 

·        
Party
presentation

Party
presentation refers to the competence of a litigant to investigate his or her

own
cause or defence, to formulate the issues in dispute, as well as to present the

material
facts concerned and to prove these facts and raise legal argument in

support
of these acts before a court.

 

The
principle of party presentation confirms that a litigant has control of the

content
of his or her cause of defence, as the case may be. Litigants are

competent
to determine the scope of the controversy (i.e. the issues in dispute)

and
to define the boundaries (scope) of the dispute without the interference of the

court.

 

The
principle of party presentation supports the idea that the litigants should be

masters
of their rights. Litigants take primary responsibility for determining the

issues
in fact and in law that relate to the dispute, without judicial interference.

 

(B) Both
the National Credit Act 34 of 2005 and the Consumer Protection Act

68
of 2008 were enacted to provide a specific regulatory framework for the

settlement
of consumer-related disputes.

 

Though
peripheral to traditional civil procedure legislation, these statutes may

have
a significant impact on a range of civil procedure issues, including the

enforcement
of debts and the determination of a forum having jurisdiction over a

particular
civil claim.

 

The
NCA further has limited application to credit guarantees, as it will only apply
to

such
guarantees to the extent that it is applicable to the credit transaction or
credit

facility
in respect of which the guarantee is granted.88 Many credit agreements

that
were entered into prior to the commencement of the NCA will still be in force

long
after its effective date, such as mortgage agreements. Schedule 389 item 4

sets
out the extent to which the NCA applies to pre-existing credit agreements.

Item
4(1) provides that as a point of departure all agreements that would have

been
subject to the NCA, had the NCA been in force when the agreements were

entered
into, will be subject to the NCA. Certain provisions are fully applicable,

others
have limited application and some are not applicable at all. A detailed

discussion
of the provisions that apply to pre-existing agreements falls beyond the

scope
of this dissertation.90 Even though the NCA has limited application to

incidental
credit agreements, agreements where juristic persons act in their

capacity
as consumers and pre-existing credit agreements, the provisions dealing

with
debt enforcement are fully applicable to these agreements. As mentioned

above,
credit guarantees will follow the principal debt3.

 

(c)        The small claims courts, as courts of
minor jurisdiction, have been

established
as an alternative to litigating in the magistrates’ courts. The purpose is

to
extend access to justice in cases of small claims relating to consumer matters,

neighbourhood
disputes and, in general, minor disputes that are not worth the cost

of
litigating in a higher court4. Further to this the
implementation of the small courts

actions
aims to encourage the resolutions of disputes outside of the court system

this
is known as ”alternate dispute resolution”.

 

(d) The
Constitutional Court exercises concurrent jurisdiction with the High Courts

in
respect of all other constitutional matters. This means that the usual way of

dealing
with a constitutional matter is to approach the relevant High Court for a

decision.
This decision may then be taken on appeal, in which case the

Constitutional Court
is the court of final instance and no further appeal is possible. The matters
in respect of which the Constitutional Court has exclusive jurisdiction are
listed in section 167(4). They include disputes between organs of state at
national or provincial level concerning their constitutional status, powers or
function; the constitutionality of parliamentary or provincial bills; whether
or not parliament or the President has failed to comply with a constitutional
duty; and the certification of provincial constitutions. It is clear from this
list that the majority of constitutional issues will not fall within this
exclusive jurisdiction and that the Constitutional Court will seldom be
approached directly on the basis that it is the only court that may hear a
matter. The Constitutional Court exercises concurrent jurisdiction with the
High Courts in respect of all other constitutional matters. This means that the
usual way of dealing with a constitutional matter is to approach the relevant
High Court for a decision. This decision may then be taken on appeal, in which
case the Constitutional Court is the court of final instance and no further
appeal is possible. Unlike the position under the interim Constitution, the
Constitutional Court no longer has the exclusive jurisdiction to determine
whether an Act of parliament is invalid, and a High Court or the

Supreme Court of
Appeal may also make such a finding. However, it remains necessary for the
Constitutional Court to confirm such a finding made by any other court before
the order has any force. This is, in effect, a limitation on the concurrent
jurisdiction exercised by the other courts.

 

 

 

QUESTION
2

(a)       In
this matter, Sipho is the plaintiff and a local peregrinus of Cape Town and

Thabo is the defendant and also a local
peregrinus of Cape Town. Sipho can

therefore institute proceedings at the Western
Cape High Court, Cape Town which

would be vested with jurisdiction on the
basis that the action arose in Cape Town.

 

(b)       Yes,
the Western Cape High Court, Cape Town will be vested with

jurisdiction. However, the Gauteng Division,
Pretoria may also hear the matter as

the defendant “Sipho” need not be physically
present in the court’s area of

jurisdiction at the time when action is
instituted. Further, if a defendant is domiciled

in the area of one court and resident in the
area of another, both courts may

exercise jurisdiction on the ground of
ratione domicilii.

 

(c)        Under
common law, a court will be vested with jurisdiction in respect of

monetary in the following instances: (1) If
the contract that is the subject of the

litigation was concluded, was to be performed
or was breached within the court’s

area of jurisdiction, any of these grounds
will be sufficient to vest a court with

jurisdiction.  A court is then said to be vested with
jurisdiction ratione contractus.

(2) If the delict on which the claim is based
was committed within a court’s area of

jurisdiction, a court is vested with
jurisdiction ratione delicti commissi.

On the given facts, the delict, i.e. the
defamatory comment made about Thabo by

Sipho occurred in Cape Town and therefore the
Cape Town High Court would be

vested with jurisdiction ratione delicti
commissi.

 

(d)

 

(e)       Yes,
the KwaZulu-Natal Local Division, Durban will be vested with

jurisdiction. 
Where the object of relief is immovable property, the court in whose

territorial area the immovable thing is
situated has exclusive jurisdiction in actions.

 

(f)        The
defendant need not be physically present in the court’s area of

jurisdiction at the time when action is
instituted. A person may be domiciled at a

place where he is not currently resident, and
such a court will still have jurisdiction

ratione domicilii. It is also possible that a
person will be working or on holiday

outside the court’s jurisdictional area at
the time when action is instituted. If a

defendant is domiciled in the area of one
court and resident in the area of another,

both courts may exercise jurisdiction on the
ground of ratione domicilii.

 

On the given facts, neither the defendant nor
plaintiff is resident in the Gauteng

Local Division, Johannesburg’s’ area of
jurisdiction and therefore X “Thabo” will

not be able to approach this court to
institute proceedings against Y “Sipho”.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

QUESTION 3

(a)       On the basis of the facts given, N, the
wife, is ordinarily resident in

Polokwane
and 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 is
competent to exercise divorce jurisdiction if one of the parties to a marriage
is resident in its area of jurisdiction at the time of the institution of the
action, and that this party has been resident in the Republic for one year
prior to the institution of the action.

 

Accordingly,
the Limpopo Local Division, Polokwane is competent to exercise jurisdiction, in
terms of section 2(1)(b), to grant a divorce order to N.

 

(b)       Section 28(1A) of the Magistrates’ Courts
Act provides that a regional

magistrate’s
court 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)

domiciled
in the court’s area of jurisdiction on the date on which the proceedings

are
instituted; or (ii) ordinarily resident in the court’s area of jurisdiction on
the said

date
and been ordinarily resident in the Republic for a period of not less than one

year
immediately prior to that date”.

 

In
terms of section 29(1B)(b), a regional magistrate’s court hearing any of these

Matters
shall have the same jurisdiction as any High Court regarding such matter.

 

Therefore,
in this case, the Polokwane Magistrate’s Court will have jurisdiction in

the
matter.

 

(c)        On the basis of the facts given, “S” is
ordinarily resident in Zambia and

neither
domiciled or resident in the jurisdictional area of the Limpopo Local

Division,
Polokwane but nevertheless can institute divorce proceedings in the

jurisdictional
area of that court.

 

As
section 2(1) of the Magistrates’ Courts Act contains the words “if the parties
are

or
either of the parties is”; which means that a court is competent to exercise

divorce
jurisdiction if only one of the spouses complies with the domicile or

residence
requirements and therefore the domicile or residence of the spouse is

sufficient
to endow the court with jurisdiction, even if the other spouse is domiciled

or
resident outside the Republic.

 

Accordingly,
because N complies with the provisions of section 2(1)(b), S

may
institute divorce proceedings in the Limpopo Local Division, Polokwane even

though
he is domiciled in Zambia and may have never been to Polokwane.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

QUESTION
4

(a)(i)    Section
28(1)(a) of the Magistrates’ Courts Act, 1944 (MCA) provides that a

magistrate’s court will be competent to
exercise jurisdiction over any person who

“resides, carries on business or is in the
employ” within the court’s jurisdictional

area.

 

Section 28(1)(d) of the MCA further provides
that a magistrate’s court may exercise jurisdiction over any person whether or
not he resides, carries on business, or is employed within the district if the
cause of action arose wholly within the particular jurisdictional area or
district of the court. To have arisen “wholly”, conclusion of the contract as
well as breach of contract must have occurred within the same jurisdictional
area.

 

On the given facts, the Durban district
magistrate’s court will have jurisdiction in

terms of section 28(1)(a) of the Act as D
resides there.

 

(ii)        No,
my answer will not change as Section 45 of the Magistrates’ Courts Act,

1944 sets out how the parties can consent to
the jurisdiction of a particular

magistrate’s court if the amount claimed is
higher than the limit of that particular

magistrate’s court.

 

Parties may thus consent to a claim that is
greater than R300 000 being brought in

a regional magistrate’s court, as opposed to
a High Court (in terms of section 45 of

the Magistrates’ Courts Act). Similarly,
parties may consent to a claim that is more

than R100 000, but not more than R300 000,
being brought in a district

magistrate’s court, as opposed to a regional
magistrate’s court (in terms of section

46(2)(c)(iii) of the Magistrates’ Courts
Act).

 

(b)(i)    A
person may have more than one place of residence, in which case he or

she should be sued in the jurisdictional area
of the court in which he or she is

residing at the time of service of the
summons.

On the given facts, D lives in Durban and
therefore the Durban Magistrates’ Court

will be vested with jurisdiction.

 

(ii)        The
competence of a district magistrate’s court to grant an interdict in terms

of the provisions of section 30(1) is subject
to the jurisdictional limitations

prescribed by the Magistrates’ Courts Act 32
of 1944. Section 46(2)(c) provides

that a magistrate’s court is prohibited from
granting an order for specific

performance without an alternative for
damages.

 

In Badenhorst v Theophanous 1988(1) SA 793
(C), an application for

a prohibitory interdict to restrain
Theophanous from trading in Albertinia in terms of

a restraint-of-trade agreement in fact
amounts to a request for the enforcement of

a contractual obligation. An order so granted
would be one ad factum

praestandum and hence, in practice, be the
equivalent of an order for specific

performance without the alternative for
damages. Such an order would therefore

be contrary to the provisions of section
46(2)(c), and therefore beyond the

jurisdictional competence of a district
magistrate’s court.

 

In this case, considering the order would be
contrary to the provisions of section

46(2)(c), and therefore beyond the
jurisdictional competence of a district

magistrate’s court, none of the magistrates’
courts mentioned would be in a

position to exercise jurisdiction.

exercise jurisdiction.

 

(iii)       A
defendant who is owed money by a plaintiff is always free to institute a

counterclaim for a higher amount than that
admitted as due by a plaintiff in terms

of section 39 of the Magistrates’ Courts Act.
The defendant must then prove the

amount claimed that exceeds the amount
admitted by the plaintiff, but obviously

need not prove the admitted amount, as the plaintiff
has already conceded his or

her indebtedness in this amount.

 

In this case, D’s claim would have no effect
on C’s claim, however C would have

to prove the amount claimed that exceeds the
amount admitted by himself.

 

(iv)       Section
38 of the Magistrates’ Courts Act 32 of 1944 provides that (1) In

order to bring a claim within the
jurisdiction, a plaintiff may in his summons or

at any time thereafter explicitly abandon
part of such claim. (2) If any part of a

claim be so abandoned it shall thereby be finally
extinguished: Provided that, if the

claim be upheld in part only, the abandonment
shall be deemed first

to take effect upon that part of the claim
which is not upheld.

 

Section 39 provides that in order to bring a
claim within the jurisdiction a plaintiff

may, in his summons or at any time after the
issue thereof, deduct from his claim,

whether liquidated or unliquidated, any
amount admitted by him to be due by

himself to the defendant.

 

On the given facts, an amount of R50 000
is due by C to D and therefore I would

advise that D uses the provision of Section
39 to recover the amount owed by the

plaintiff.

 

(v)        Section
46(2)(b) of the Magistrates’ Courts Act 32 of 1944 provides that a

magistrate’s court is not empowered to
declare a person insane or to declare a

person incapable of managing his or her own
affairs.

 

However, in terms of section 33, note that a
magistrate is authorised to appoint a

curator ad litem for a person who has already
been declared insane or incapable

of managing his or her own affairs. The
curator ad litem then manages this

person’s affairs during a trial in the
magistrate’s court in which the person is

involved.

 

Therefore, on the given facts, considering
that there is only suspicion of D’s mental

inability, which has not been declared by a
court. C may not approach any

magistrates’ court for the appointment of a
curator ad litem.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DECLARATION
OF AUTHENTICITY

 

I,
Raveshin Veerasamy

 

Student
number: 6025-381-9

 

declare
that I am the author of this examination in CIP2601. I further declare that the
entire examination is my own, original work and that where I used other
information and resources, I did so in a responsible manner. I did not
plagiarise in any way and I have referenced and acknowledged any legal
resources that I have consulted and used to complete this examination. By
signing this declaration I acknowledge that I am aware of what plagiarism is,
and the consequences thereof. Furthermore, I acknowledge that I am aware of
UNISA’s policy on plagiarism and understand that if there is evidence of
plagiarism within this document, UNISA may take the necessary action.

 

Date:
23 January 2018

Place:
Durban

Signature:
RAVESHIN VEERASAMY

 

1 Civil Procedure guide – 24

2 Civil Procedure guide

3 The impact of the national credit
act on civil procedural aspects relating to debt enforcement – Hermie Coetzee
21

4 Civil Procedure guide 28

x

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