ASSIGNMENT 02

QUESTION 1

Indicate the most accurate statement:

(1) The South African High Courts are creatures of statute because they
are subject to

the provisions of the Superior Courts Act, 2013.

(2) The Uniform Rules of Court are a common set of rules that uniformly
regulate the

conduct of proceedings in the magistrates’ courts.

compliance with its rules.

(4) The Minister of Justice and the Rules Board may make rules relating to
the manner

in which the Constitutional Court may be engaged.

ANSWER

The most accurate statement is: (3)

The rules exist for the sake of a court. This means that the rules of court
are intended

to facilitate the work of the courts. Therefore, a court may condone any
procedural

mistakes or determine any point of procedure. However, this does not

mean that

parties may be slack in observing the rules of court, but generally the
court will not be

overly formalistic and will assist parties where there is no prejudice. (See
Pete et al 11

and study guide unit 2.3.2.)

Statement (1) is incorrect. The South African High Courts are said to
exercise “inherent

jurisdiction”, meaning its jurisdiction is derived from common law and not
from statutes

(although statutes, in certain cases, may limit or increase this jurisdiction).

Lower
courts are sometimes called “creatures of statutes” simply because their
exercise of

jurisdiction depends on the extent to which their enabling statutes permit

them to

exercise jurisdiction. (See Pete et al 11-12 and study guide unit 2.3.1.)

Statement (2) is incorrect. The Uniform Rules of Court are a common set
of rules that

regulate the conduct of proceedings in the High Court uniformly (hence,

“Uniform

Rules”) and the name is of historic origin. The rules regulating the conduct
of

proceedings of the magistrates’ courts are simply referred to as the

magistrates’ courts

rules. (See Pete et al 12 and study guide unit 2.3.1.)

Statement (4) is incorrect. Previously, it was provided that the President of

the

Constitutional Court in consultation with the Chief Justice were to make

rules relating to

the manner in which the Constitutional Court may be engaged. This

position has since

changed, and in terms of section 29(1) of the Superior Courts Act, 2013
(SCA) the

Chief Justice, after consultation with the Minister, may now make such
rule.

QUESTION 2

Indicate the most accurate statement:

(1) Unlike the Supreme Court of Appeal, the Constitutional Court may
never be

approached directly.

(2) Disputes concerning the constitutional status, powers or functions

between

organs of state in the national or provincial spheres may only be

adjudicated
by the Constitutional Court.

(3) The Supreme Court of Appeal is competent to hear only non-

constitutional matters.

(4) A magistrate’s court is not competent to adjudicate upon the validity

of any

legislation but may pronounce upon the validity of the exercise of

executive powers

by the President.

ANSWER

The most accurate statement is: (2)

Section 167(4)(a) of the Constitution of the Republic of South Africa, 1996

(“the

Constitution”) specifically contains this provision, and it is one of the

matters that fall

within the exclusive jurisdiction of the Constitutional Court. (See Pete et al

9 and

study guide unit 4.1.)

Statement (1) is incorrect. Section 167(6)(a) of the Constitution provides

that the

Constitutional Court may, when it is in the interests of justice and with

leave of the

Constitutional Court, grant direct access. On the other hand, the Supreme
Court of

Appeal is a court of appeal only and is approached only after leave to

appeal has been

granted. (See Pete et al 9 and study guide unit 4.1 and 4.2.)

Statement (3) is incorrect. In terms of section 168(3) of the Constitution,

the Supreme

Court of Appeal may hear appeals in any matter arising from a High Court
(or a court of

similar status), which includes both constitutional and non -constitutional

matters. (See

Pete et al 9 and study guide 4.2.)

Statement (4) is incorrect. The Constitution, 1996 does not confer any
constitutional

jurisdiction upon magistrates’ courts but provides that legislation may

confer

constitutional jurisdiction on these courts, provided that they may not

enquire into or

rule on the constitutionality of “any legislation or any conduct of the

President”.

Furthermore, section

110 of the Magistrates’ Courts Act 32 of 1944 provides that these courts
may not pronounce

on the validity of “any law” or on the validity of any conduct of the

President.

court concerned, the defendant is a peregrinus of the Republic, the cause

of

action took place outside the jurisdictional area of the court concerned,
and

(4) Attachment ad fundandam iurisdictionem if the plaintiff is an incola of

the

QUESTION 3

Indicate the most accurate statement:

A High Courtmay exercise jurisdiction to obtain an order for:

(1) Attachment ad confirmandam iurisdictionem if the defendant is a

peregrinus of the

court concerned, the plaintiff is an incola of the court concerned, and

attachment

has taken place.

(2) Attachment ad confirmandam iurisdictionem if both the plaintiff and

the defendant

are incolae of the court concerned and attachment has taken place.

(3) Attachment ad fundandam iurisdictionem if the plaintiff is a peregrinus

of the court
concerned, the defendant is a peregrinus of the whole Republic, the cause
of action

occurred within the area of jurisdiction of the court concerned, and

attachment has

taken place within the jurisdictional area of the court.

attachment has taken place.

ANSWER

The most accurate statement is: (4)

This statement satisfies all the requirements for attachment ad

fundandam jurisdictionem. In regard

to attachment ad fundandam jurisdictionem, the following requirements

must be met:

• the defendant is a peregrinus of the whole Republic

• attachment of the defendant's property has taken place

• the plaintiff is an incola of the court concerned, even in instances where

the cause of action

has arisen outside the court's area of jurisdiction. (See Pete et al 110-111
and study guide unit

8.4.2.)

Statement (1) is incorrect. Attachment ad confirmandam jurisdictionem

occurs where the defendant

is a foreign peregrinus, the cause of action arose within the court’s area of
jurisdiction and

attachment of defendant’s property has taken place. A “peregrinus of the

court concerned” implies

that the defendant is a local peregrinus, not a foreign peregrinus. Section

28 (SCA) also prohibits

the attachment of the property of an incola of the Republic. (Note that in

this form of attachment, the

status of the plaintiff is irrelevant.) (See Pete et al 110-111 and study

guide unit 8.3.)

Statement (2) is incorrect. See comments under statement (1) above.

Statement (3) is incorrect. For attachment ad fundandam jurisdictionem
the plaintiff must be an

incola of the court concerned, not a peregrinus. Where the cause of action
arose is irrelevant in this

instance.

(1) Section 2(1) of the Divorce Act, 1979 read with section 1(1) of the
Domicile Act,

1992 provides that a court may exercise jurisdiction only if the wife is
domiciled and

resident in the area of jurisdiction of a High Court on the date when the
action is

instituted.

(3) A magistrates’ court would be competent to exercise jurisdiction if the

cause

(2) The Roman-law rule actor sequitur forum rei means that the plaintiff
must institute

action against the defendant in the High Court within whose area of
jurisdiction the

defendant is a citizen.

(3) The High Court in whose area of jurisdiction immovable property is

situated, has

exclusive jurisdiction in an action for the delivery of such property.

(4) A High Court will accept submission to its jurisdiction in regard to a

claim sounding

in money if both parties to the action are foreign peregrini and the cause
of action

occurred outside the particular court’s area of jurisdiction.

QUESTION 5

Indicate the most accurate statement:

(1) A magistrates’ court may only exercise jurisdiction over the person of a
defendant if

the defendant is domiciled in its area of jurisdiction.

(2) The magistrates’ court for the district of Pretoria is competent to
exercise jurisdiction

if the conclusion of the contract occurred in Pretoria and the contract was
breached

in the magisterial district of Johannesburg,

of action did not occur wholly within its district, but there is compliance
with

the provisions of sections 29 and 46, and the defendant raises no

objection.

(4) Section 31 of the magistrates’ Courts Act 32 of 1944 provides that an

interdict

prohibiting the removal of furniture or other effects from the leased

premises only

becomes effective after application is made to court in this regard.

ANSWER

The most accurate statement is: (3)

Section 45 of the Magistrates’ Courts Act 32 of 1944 (MCA) gives parties

the opportunity to

consent to a magistrate’s court hearing a matter between them, despite

the fact that such a court

does not have jurisdiction in terms of either section 28 or 29 of the Act.

However, it is important to

note that this section clearly provides that parties cannot consent to a
court hearing a matter that

is excluded from jurisdiction by section 46. (See study guide unit 11.6.3.)

Statement (1) is incorrect. Section 28(1)(a) provides that a magistrates’

courts will have

jurisdiction over a defendant who “resides, carries on business or is

employed” within its area of

jurisdiction. The section does not provide for domicile! In fact, domicile as
a jurisdictional factor is

used only in the High Court, and students will be penalised for using
incorrect terminology in the

examination. (See study unit 11.4.2.)

Statement (2) is incorrect. Section 28(1)(d) (MCA) provides that a
magistrate’s court may

exercise jurisdiction if the “whole cause of action” arose in the district or

regional division of a

court. This phrase has been interpreted by our courts to mean that both
conclusion of contract

10

(1) Substituted service

and breach thereof must occur within the same jurisdictional area of a
particular court for the

cause of action to occur “wholly”. Therefore, neither of the courts

mentioned has jurisdi ction in

terms of this section of the Act. (See study unit 11.4.2.)

Statement (4) is incorrect. The purpose of section 31 (MCA) is precisely to

avoid having to

approach a court to obtain an interdict, and therefore a notice prohibiting

the removal of

household effects from the leased premises is included in the summons:

this notice acts as an

interdict and becomes effective when a summons is issued (hence the

name “automatic rent

interdict”).

QUESTION 6

D, who lives in Gauteng, wishes to divorce her husband, F. F lives in a

caravan and drifts

around the KwaZulu-Natal south coast where he works as a handyman,

doing repairs to

holiday homes. D does not know his exact whereabouts. The summons
must be served on

F by way of -

Indicate the most accurate statement:

(2) Normal service

(3) Edictal citation

(4) A combination of substituted service and edictal citation.

ANSWER

The most accurate statement is: (1)

Substituted service is used when normal service cannot be effected on a

defendant

who is believed to be within the borders of the Republic, but whose exact
whereabouts

are unknown. In the given facts, the defendant (F) is believed to be within
the Republic

(KwaZulu-Natal south coast). However, D does not know his exact

whereabouts as he

“drifts” around. (See Pete et al 141; study unit 14.2.2; and Uniform Rule
4(2).)

Statement (2) is incorrect. Normal service is effected when the

defendant’s

whereabouts are known within the Republic and the sheriff is able to
deliver a copy of

the summons to the defendant (often personally). In the given facts,

normal service in

terms of the rules of court by a sheriff will not be possible, since the
defendant’s

whereabouts are unknown. (See Pete at al 134-140 and study units 14.1
and 14.2.1.)

Statement (3) is incorrect. Edictal citation is a form of service that is

effected on a

defendant who is believed to be outside the Republic, even when his/her

exact

whereabouts are known, and personal service is possible. The service is

effected by a

person in the foreign country who is authorised by the law of such country
to serve

processes and documents. On the given facts, the defendant is believed

to be within
the Republic, and therefore, edictal citation will not be appropriate. (See
Pete et al 141

and study unit 14.2.3.)

Statement (3) is incorrect. There is no provision for such service method in

the rules of

11

court. See also the discussion of edictal and substituted service above
under options

(1) and (3) above.

QUESTION 7

Indicate the most accurate statement:

(1) The basic rule for the drafting of pleadings is that the material facts
upon which the

claim or defence is based must be fully pleaded. Evidence is thus also

pleaded.

(2) A notice of intention to defend is the first pleading delivered by a

defendant who

wishes to defendan action.

(3) Whether an action is instituted by way of a combined or a simple

summons,

the prescribed dies induciae for the delivery of a plea (with or without a

counterclaim) is the same.

(4) In the High Court, pleadings are deemed to be closed as soon as the
plaintiff has

delivered a replication.

ANSWER

The most accurate statement is: (3)

The rules of court lay down the dies induciae for the delivery of a plea on
the merits,

regardless of the summons by which action is commenced. It is merely the

starting

point for calculating the dies induciae which differs according to the
summons used:
thus, either after service of a declaration, or after delivery of a notice of
intention to

defend, as the case may be. (See Uniform Rule 22; rule 17 of the
magistrates’ courts

rules; Pete et al 202-203; and study guide unit 20.3.)

Statement (1) is incorrect. The basic rules for the drafting of pleadings
require that the

material facts upon which a claim, defence or reply is based, must be

clearly and

concisely stated, and evidence must not be pleaded. (See Uniform Rule
18;

magistrates’ courts rules 17 and 20; and study guide unit 19.4.)

Statement (2) is incorrect. A notice of intention to defend is a notice that

informs the

plaintiff that the defendant intends to defend the action. It is therefore not
a pleading,

but a process, as it contains no averments by the defendant to an action

relating to the

factual basis of his or her defence. (See Pete et al 198-199 and study
guide unit 20.2.

See also study guide unit 19.2 for a discussion of the distinction between
a pleading

and a process.)

Statement (4) is incorrect. Uniform Rule 29(b) specifically states that

pleadings are

considered closed if the last day allowed for filing a replication or

subsequent pleading has

elapsed and filing has not taken place.

12

QUESTION 8

“A court has a wide discretion when awarding costs after passing

judgment.” This

statement implies the following:

Indicate the most accurate statement:

(1) A party who loses a case will be ordered to pay the winner’s costs.

(2) A party who wilfully destroys documents beneficial to his opponen t’s
case, may be

ordered to pay costs de bonis propriis.

(3) A party who continues to defend a matter during trial despite knowing
that he

or she is liable for payment of the full amount claimed, may be ordered to
pay

attorney- and-client costs.

(4) A party may be awarded party-and-party costs if the court is of the

opinion that it is

unreasonable to deprive such a party of costs reasonably incurred before

issue of

summons.

ANSWER

The most accurate statement is: (3)

Attorney-and-client costs is awarded to a party when the party has

conducted himself or herself in a

reckless, vexatious or malicious manner, or where the party has been

dishonest or fraudulent in

conducting the trial. Therefore, a party who continues to defend a matter

during trial despite kn owing

that he or she is liable for full payment, is conducting himself or herself in

a reckless or vexatious

manner and may be ordered to pay attorney- and-client costs. (See Pete
et al 333 and study guide

unit 25.4.1.)

Statement (1) is incorrect. That the party who loses a case will
automatically be ordered to pay the

winner’s costs, is by no means a foregone conclusion. The awarding of

costs is in the court’s
discretion. Thus, a “successful party” (that is usually awarded costs) is not
necessarily the party in

whose favour judgment is given. (See Pete et al 327 and study guide unit
25.4.)

Statement (2) is incorrect. Costs de bonis propriis is awarded against a

person who acts in a

representative capacity (such as a legal representative or an executor).

Therefore, a party (not

acting in a representative capacity) who wilfully destroys documents

beneficial to his opponent’s

case may be ordered to pay attorney-and-client costs, not costs de bonis

propriis. (See Pete et al

335 and study guide unit 25.4.3.)

Statement (4) is incorrect. Party-and-party costs are costs that have been
incurred by a party during

legal proceedings which the court orders the other party to pay him or her.
The costs are awarded

for legal proceedings that have commenced. Therefore, costs incurred

before the issue of summons

are costs incurred for a party’s own account and payable to his or her
attorney in terms of the

mandate given to the attorney.

13

(4) It is possible to inspect a clearly specified document or tape recording

in a

QUESTION 9

In the High Courts the position is as follows --

(1) Pleadings are deemed closed only after the plaintiff has filed his or her
replication.

(2) In reply to a defendant’s counterclaim, a defendant in reconvention

may file a

replication in reconvention.

(3) An exception may be raised only against a declaration or the

particulars of claim.
party’s possession and relating to a reasonably anticipated issue in the

action before the close of pleadings.

ANSWER

The most accurate statement is: (4)

Uniform Rule 35(14) specifically provides for this situation where an

opponent refers to

documents or tape recordings in pleadings and affidavits, and a party

would need

copies thereof for purposes of pleading. This provision forms an exception

to the rule

that discovery is possible only after close of pleadings. (See Pete et al

226; Uniform

Rule 35(14); and study guide units 24.3.6 and 24.4.4.)

Statement (1) is incorrect in two respects. Uniform Rule 29 sets out four
instances

when pleadings are deemed closed. Therefore, it is clearly incorrect to

state that

pleadings are deemed closed “only” (after a certain event occurs). Be

careful of socalled absolute statements. (Statements containing words
such as “only”, or “always”

are absolute statements and should be carefully considered, because,

depending on

the statement, more often than not exceptions may apply or there may be
several

options, etcetera available, thus rendering the statement incorrect.)

Furthermore,

Uniform Rule 29(b) specifically states that pleadings are considered closed
if the last

day allowed for filing a replication or subsequent pleading has elapsed

and filing

has not taken place. This particular instance was thus stated in too narrow
terms, and

this option could only have been eliminated had students consulted the
particular court
rule. (See Pete et al 223-224 and study guide unit 20.4.)

Statement (2) is incorrect. When a defendant files a counterclaim, the

claim in

reconvention is introduced. The plaintiff (who is now the defendant in

reconvention),

should respond to the counterclaim of the defendant (now the plaintiff in

reconvention),

by filing a plea on the merits in reconvention (and not a replication in

reconvention!).

As in the case in convention where a defendant must respond to the

plaintiff’s claim, so

must a defendant in reconvention also respond to the claim in

reconvention. If not, he

or she runs the risk of having a default judgment being granted against
him or her.

Note: a replication is used only when a defendant (either in convention or

reconvention) raises new facts in a plea on the merits which require a

response from

the plaintiff (either in convention or in reconvention). (See Uniform Rule

25(1) and (2),

as well as study unit 20.4.)

14

Statement (3) is incorrect. A party may in terms of the court rules raise an
exception to any pleading if

that pleading is (a) vague and embarrassing, and/or (b) does not disclose
a cause of action or defence.

Clearly the ambit of the statement is too narrow, as a defence is raised in

a plea on the merits. Again, note

the word “only”!

QUESTION 10

Indicate the most accurate statement:

(1) The heads of argument, as the name suggests, simply consists of the
advocate’s
main points of argument to the court.

(2) Both appeals and review proceedings are instituted by way of notice of
motion.

(3) A party who is dissatisfied with the result of a trial may take the matter
on review.

ANSWER

The most accurate statement is: (4)

Section 21(1)(b) of the Superior Courts Act, 2013 authorises the High
Court to review

the proceedings of lower courts, while the High Courts have inherent
jurisdiction to

entertain all causes arising within their jurisdictional areas. This includes
the reviewing

of proceedings of any body or tribunal empowered to perform statutory

duties, as well

as of quasi-judicial bodies. (See study guide units 27.3.1 and 27.3.2.)

Statement (1) is incorrect. The heads of argument comprise the main

points to be

made in counsel’s address to court, as well as a list of the authorities to

be quoted in

support of each point. Clearly, heads of argument comprise more than the
option

statement suggests. (See study guide unit 28, activity question (4)).

Statement (2) is incorrect. An appeal must be noted and prosecuted

according to

statutory provisions, supplemented by the rules of court. Reviews, on the

other hand,

are brought on notice of motion. (See s 16 and 21 of the Superior Courts

Act, 2013;

Pete et al 362- 365; and study guide units 27 and 28.)

Statement (3) is incorrect. An appeal is aimed at the result of a trial,

whereas a review is aimed at the

method by which results is obtained (in other words, the proceedings of a

court are reviewed).
Consequently, a party who is dissatisfied with the result of a trial must
lodge an appeal