This paper consists of 21 pages.

INSTRUCTIONS FOR A FULL MCQ EXAM WITH ASSESSMENT INFO TOOL ON

MYUNISA

1. The examination consists of Multiple-Choice Question types only.

2. The examination question paper counts 100 marks and consists of 50 Multiple-Choice
Questions each worth 2 marks. Answer all of the questions.

3. The duration of the examination is 2 hours. You will be allowed a further thirty (30)
minutes after the conclusion of the official examination period to upload your
examination responses (answers) onto the myUnisa platform for further processing.

4. This is an open-book examination. While the examination is in progress, you are not
allowed to consult another person in order to assist you to answer any of the questions
contained in this question paper. You may also not assist another student in answering
any of the questions contained in this question paper.

5. The answers to this MCQ examination may only be submitted online on myUnisa. The
Unisa MCQ App cannot be used for examination submissions.

5.1 Access myUnisa at https://my.unisa.ac.za/portal and login using your student number
and myUnisa password.

5.2 Click on the “myAdmin” tab in the top navigation panel.

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5.3 In the “Assessments” submenu, click on the “Assessment Info” tool in the drop-down
list
• A list of all available assessments will display
• Find the corresponding examination assessment number for your module
• Click on the Submit link in the Action column and follow the steps described
below.

Step 1: Enter the total number of questions required for the assessment.
• Enter the total number of questions for your assessment in the Number of
Questions field
• Click on the Continue button.

Step 2: Fill out multiple-choice question answers

The number of questions requested in the previous step will now be displayed with five
answer options next to each one. Please note that each row represents a question in
your assignment.
• Click on the radio button [the small circle] that corresponds to your answer for
that question.
• Click on the Continue button to move to step 3.
• If you want to restart the assignment, click on Clear Form to remove all your
selections and start from new.

Step 3: Verify the answers to your multiple-choice assignment

This screen presents a summary of all your answers. Use it as a final check.
• Click on the Continue button to submit your assignment. If you do not click
Continue, no submission action will take place.
• If you want to redo the answers to the assignment, click Back to go back to the
previous step.

Step 4: Assessment submission report

This is your proof that your examination answers were successfully submitted. If
you do not see this screen, Unisa has not received your submission.

It is advisable to print this page or make a screen capture for record purposes. A copy
of this page will also be emailed to your myLife email account.

PLEASE NOTE:

If you experience technical problems, of any kind, on the day of the examination and your
examination answers are not submitted by the cut-off time, you will be marked as absent and
automatically deferred to the October/November 2020 examination. No other type of
submission of your examination answers will be accepted.

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INTRODUCTORY STUDIES

QUESTION 1

Indicate the most accurate statement:

(1) When a claim for damages is instituted, the plaintiff must prove the guilt of the defendant.

(2) In civil proceedings, the parties comprise the complainant and the defendant.

(3) In civil proceedings, judgment will be granted in favour of the plaintiff if the defence raised by
the defendant is less probable than the claim proved by the plaintiff.

(4) As in the case of a superior court, a magistrates’ court has discretion regarding its own
procedure. (2)

QUESTION 2

Peter and Don are involved in a motor collision due to Don driving through a red traffic light under
the influence of alcohol. Peter sustains damages to his car, as well as personal injuries. Peter
alleges that his damages are due solely to Don’s negligence.

Indicate the most accurate statement:

(1) Peter is compelled by the state to institute civil proceedings against Don.

(2) Peter is compelled to lay criminal charges against Don.

(3) In the civil proceedings between Peter and Don the court may not interfere in the manner in
which they conduct the proceedings.

(4) If Don is acquitted in the criminal proceedings, this means that Peter has a minimal chance of
success if he later institutes civil proceedings. (2)

QUESTION 3

Indicate the most accurate statement:

(1) Traditional dispute resolution processes are grouped together under the ADR system of
dispute resolution because of their shared characteristics.

(2) When we refer to the reform of civil procedural law, we are in fact referring to the need to
effect certain proposed cosmetic changes.

(3) Mediation is an Alternative Dispute Resolution (ADR) process, and the mediator, like a judicial
officer, adjudicates disputes, but in an informal setting.

(4) Court-annexed mediation has increased access to justice by allowing a magistrate or a judge
to suspend a matter brought before him or her if the matter is deemed suitable for mediation,
and to proceed to mediate the matter in an attempt to help the parties reach a settlement.
(2)

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QUESTION 4

Indicate the most accurate statement:

(1) The South African Superior Courts are creatures of statute because they are subject to the
provisions of the Superior Courts Act, 2013.

(2) Small Claims Courts have an inferior status because they are not courts of record.

(3) In the Anglo-American system of civil procedure the judge is always passive during the pre-
trial stage of the proceedings.

(4) All South African civil courts adhere to the adversarial system of civil litigation. (2)

QUESTION 5

Indicate the most accurate statement:

(1) The court may interfere with civil proceedings during the pre-trial and trial stages at the request
of either of the parties.

(2) The state has an interest in civil proceedings since it provides the parties with court
infrastructure and enforces the judgments of courts.

(3) Every citizen is able to afford litigation because court time and court administration are paid
for by the state.

(4)The objective of civil proceedings is to establish liability on a balance of probabilities, which

means the court must be satisfied that the version put forward by the plaintiff is mostly true.
(2)
QUESTION 6

Indicate the most accurate statement:

(1) A juristic person is allowed to commence an action in the Small Claims Courts only when
represented by a duly nominated director or other natural persons.

(2) An important objective of introducing Small Claims Courts is to increase ordinary citizens’
access to justice.

(3) Small Claims Courts are limited to hearing only claims of up to R15 000, except where the
parties consent in writing for the court to hear a claim in excess of R15 000.

(4) Matters that Small Claims Courts are absolutely not competent to adjudicate, are identical to
those that the magistrates’ courts are not competent to hear in terms of the Magistrates’
Courts Act 32 of 1944. (2)

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QUESTION 7

Indicate the most accurate statement:

(1) As in the case of a small claims court, a magistrates’ court has a discretion in regard to its
own procedure.

(2) The Uniform Rules of Court are a common set of rules that uniformly regulate the conduct of
proceedings in the magistrates’ courts.

(3) The Minister of Justice and the Rules Board may make rules relating to the manner in which
the Constitutional Court may be engaged.

(4) Since the rules exist for the courts, a High Court may condone a litigant’s non-compliance with
its rules. (2)

QUESTION 8

Indicate the most accurate statement:

(1) Dispute resolution in African customary law entails that disputes are settled by the headman
or by family groups, with no recourse to the courts of law whatsoever.

(2) Disputes concerning the constitutional status, powers or functions between organs of state in
the national or provincial spheres may be adjudicated by the Constitutional Court only.

(3) A magistrates’ 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.

(4) The Supreme Court of Appeal is competent to hear only non-Constitutional matters. (2)

QUESTION 9

Indicate the most accurate statement:

(1) Arrest or attachment either ad fundandam iurisdictionem or ad confirmandam iurisdictionem

apply only in respect of a defendant who is a peregrinus of the whole of the Republic.

(2) Section 8 of the Constitution provides that Chapter 2 (Bill of Rights) applies to “all law”. Within
the context of the law of civil procedure this means that the Constitution impacts legislation
pertaining to courts, but not the rules of court.

(3) In the structure of the South African court system, the Constitutional Court can be described
as the “apex court”.

(4) The effect of the Constitutional Court ruling in Gundwana v Steko Development and others
2011 3 SA 608 (CC) and subsequent decisions (protecting the right to adequate housing) is
that a judgment debtor’s immovable property, if it is the debtor’s primary residence, cannot be
declared specially executable. (2)

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QUESTION 10

Indicate the most accurate statement:

(1) Because a small claims court is not a court of record, a matter cannot be taken on review.

(2) The main source of the professional code of conduct of legal practitioners is the Legal Practice
Act, 2014 and the Regulations promulgated thereunder.

(3) All superior courts function as either a court of first instance, or as a court of appeal.

(4) Dispute resolution mechanisms in African customary law are influenced by Western
traditions, and that can be seen from their use of the processes of arbitration and mediation.
(2)

QUESTION 11

Indicate the most accurate statement:

(1) Whereas substantive law determines the rights and duties of individuals, adjective law
provides the mechanism through which these rights and duties are enforced.

(2) The principle that litigants have the competence to either commence or defend proceedings
and to prosecute their respective cases, support their right to negotiate an out-of-court
settlement.

(3) The trial in Anglo-American civil procedure is marked by its orality which applies to the parties,
their counsel and witnesses only.

(4) Because the conduct of litigation is so specialised, litigants normally instruct attorneys and
advocates to conduct litigation on their behalf in all South African courts. (2)

JURISDICTION

QUESTION 12

Indicate the most accurate statement:

(1) An incola of a particular High Court is someone who is domiciled or resident in that court’s
area of jurisdiction, and who is also a South African citizen.

(2) The forum rei sitae will exercise jurisdiction over immovable property only following the
attachment thereof.

(3) On the basis of the actor sequitur forum rei rule, a High Court will never exercise jurisdiction
unless the defendant is domiciled or resident within its area of jurisdiction.

(4) An application for attachment must be brought before the main action commences, and the
applicant must show that, prima facie, he or she has a cause of action. (2)

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QUESTION 13

A High Court may exercise jurisdiction ad fundandam iurisdictionem if --

Indicate the most accurate statement:

(1) both the plaintiff and the defendant are peregrini of the court concerned, and attachment has
taken place

(2) the defendant is a peregrinus of the court concerned, but an incola of the Republic, provided
that attachment has taken place

(3) attachment has taken place in an instance where the defendant is a peregrinus of the court
concerned and of the whole Republic, irrespective of whether the plaintiff is an incola or
peregrinus of the court concerned, provided that the cause of action has arisen within the
court’s area of jurisdiction

(4) the plaintiff is an incola of the court concerned and the defendant is a peregrinus of such court
as well as of the Republic, in an instance where the cause of action did not arise within the
area of jurisdiction of the court concerned, provided attachment has taken place. (2)

QUESTION 14

A High Court may exercise jurisdiction on the basis of an order for –

Indicate the most accurate statement:

(1) attachment ad confirmandam iurisdictionem if the defendant is a peregrinus of the court

concerned, the plaintiff is an incola of the court concerned, the cause of action occurred within
the area of jurisdiction of the court concerned, and attachment has taken place.

(2) attachment ad confirmandam iurisdictionem if the defendant is a peregrinus of the court

concerned as well as of the Republic, attachment has taken place and the cause of action
occurred within the area of jurisdiction of the court concerned.

(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 took place
within the area of jurisdiction of the court and attachment has taken place.

(4) attachment ad fundandam iurisdictionem if the defendant is a peregrinus of the Republic, the
cause of action took place outside the jurisdiction area of the court concerned, the plaintiff is
an incola of another court and attachment has taken place. (2)

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QUESTION 15

Indicate the most accurate statement:

Section 2(1) of the Divorce Act of 1979 read with section 1(1) of the Domicile Act of 1992 provides
that a court may exercise divorce jurisdiction on the following grounds:

(1) Only if the wife is resident in the same High Court where her husband is resident.

(2) Only if the wife is domiciled and resident within the area of jurisdiction of a High Court at the
time of the institution of the action.

(3) If both or either of the spouses are/is domiciled in the area of jurisdiction of a High Court on
the date on which the action is instituted.

(4) If both or either of the spouses are/is ordinarily resident in the area of jurisdiction of a High
Court and in the Republic on the date on which the action is instituted, for one year
immediately prior to the date of the marriage. (2)

QUESTION 16

Indicate the most accurate statement:

(1) 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.

(2) The ratione rei gestae applies when a court in whose area of jurisdiction property or a person
is situated/resident, has exclusive jurisdiction over that property or person.

(3) A court would not accept a submission to its jurisdiction in regard to a claim sounding in money
if the plaintiff is an incola of the court concerned and the defendant is an incola of another
South African court, and the cause of action has occurred outside the court’s area of
jurisdiction.

(4) On the basis of the ground ratione domicilii, a High Court may not exercise jurisdiction unless
the defendant is physically present within its area of jurisdiction. (2)

QUESTION 17

Indicate the most accurate statement:

(1) When it is said that a court exercises “inherent” jurisdiction, it means that the court’s
jurisdiction is derived from statute.

(2) The South African civil procedural system is inquisitorial in nature.

(3) In terms of the doctrine of effectiveness, a court will not exercise jurisdiction unless full
compliance with the judgment is ensured.

(4) The doctrine of effectiveness means that a court will be competent to exercise jurisdiction if
compliance with the judgment can be expected. (2)

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QUESTION 18

Indicate the most accurate statement:

(1) A High Court will be able to hear a contractual claim regardless of whether the contract was
entered into or was breached within the particular court’s area of jurisdiction.

(2) Despite the defendant being resident within the Johannesburg High Court’s area of
jurisdiction, this court will not have jurisdiction in respect of a claim for the delivery of a motor
vehicle where the motor vehicle is situated within the jurisdiction area of the Pretoria High
Court.

(3) The jurisdictional connecting factor ratione rei sitae is relevant only in respect of claims
sounding in money.

(4) The domicile of a person who has been sentenced to ten years’ imprisonment changes from
that of his home address to that of the correctional facility upon entering the facility. (2)

QUESTION 19

X is a travelling salesman and only returns to his wife in Johannesburg over Easter and the
Christmas period every year when he has time off from work. However, in between his travels in
KwaZulu-Natal, he often spends time in his flat in Durban that he purchased for purposes of having
a place where he could catch up on administrative work while there.

For jurisdictional purposes --

Indicate the most accurate statement:

(1) X is resident in both Durban and Johannesburg.

(2) X is resident in Johannesburg.

(3) X is resident in every location where he is lawfully present.

(4) If X is seconded to Cape Town by his company for a period of three months, X is resident in
Cape Town for this period. (2)

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QUESTION 20

Ben lives in Johannesburg, but also owns a farm outside Port Elizabeth. Sam lives in Pretoria. Ben
sells his farm to Sam for R2 million (two million rand). Sam pays the purchase price, but Ben fails
to sign the transfer documents.

Indicate the most accurate statement:

(1) Sam may institute action against Ben in the Johannesburg High Court, asking the court to
determine the title to the property.

(2) Sam may institute action in the High Court of Pretoria for an order for the transfer of the farm.

(3) If a tractor, instead of a farm had been sold, the Johannesburg High Court and the Pretoria
High Court will be able to hear an action for the determination of ownership.

(4) If a tractor, instead of a farm had been sold, both the Johannesburg High Court and the Port
Elizabeth High Court may be able to hear an action for the determination of ownership. (2)

QUESTION 21

Indicate the most accurate statement:

(1) A court may exercise divorce jurisdiction only if both or either of the parties are/is domiciled in
the Republic on the date on which the action is instituted.

(2) A court may exercise divorce jurisdiction only if both or either of the parties are/is resident in
its area of jurisdiction on the date on which the action is instituted and has/have been ordinarily
resident in the Republic for a period of not less than one year immediately prior to the
institution of the action.

(3) A court may exercise divorce jurisdiction if both or either of the parties are/is ordinarily resident
in its area of jurisdiction on the date on which the action is instituted and has/have been
ordinarily resident in the Republic for a period of not less than one year immediately prior to
the institution of the action.

(4) A court may exercise divorce jurisdiction if both or either of the parties are/is domiciled in the
Republic on the date on which the action is instituted and the parties are/is resident in its area
of jurisdiction on the date on which the action is instituted and has/have been ordinarily
resident in the Republic for a period of less than one year immediately prior to the institution
of the marriage. (2)

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QUESTION 22

Indicate the most accurate statement:

Determine in which one of the following situations a High Court will be competent to exercise
jurisdiction.

(1) The plaintiff is an incola of the court in which the cause of action arose and the defendant is
an incola of the Republic.

(2) Both parties to the action are peregrini in which the cause of action arose outside the court’s
jurisdictional area. The defendant submits to the jurisdiction of this court.

(3) A spouse who is domiciled in the United Kingdom may not independently institute proceedings
in a South African High Court in which the other spouse is domiciled.

(4) In claims relating to property, the forum rei sitae has exclusive jurisdiction, which means it will
always have jurisdiction regardless of the nature of the property. (2)

QUESTION 23

Indicate the most accurate statement:

(1) A magistrates’ court may exercise jurisdiction over the person of a defendant if the defendant
is domiciled in its area of jurisdiction.

(2) A magistrates’ court may exercise jurisdiction if the plaintiff resides, carries on business or is
employed in its area of jurisdiction.

(3) A magistrates’ court would be competent to exercise jurisdiction if the cause of action did not
wholly occur 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. (2)

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QUESTION 24

Indicate the most accurate statement:

(1) 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.

(2) A claim for the delivery of specific movable property without an alternative claim for
damages, even though the claim does not exceed R200 000, cannot be instituted in any
magistrates’ court because it is a claim for specific performance.

(3) A plaintiff may claim two amounts, namely R90 000 and R180 000 in the same summons,
even if the joint amount of the claims exceeds the district magistrates’ courts’ jurisdiction under
section 29 of the Magistrates’ Courts Act 32 of 1944, provided that the parties are the same
and provided that each claim is based on a separate cause of action.

(4) It was held in Badenhorst v Theophanous 1988 1 SA 793 (C) that magistrates’ courts may
grant prohibitory interdicts, provided that such orders amount to “orders ad factum
praestandum in terms of a contractual obligation”. (2)

QUESTION 25

X has a claim against B for damages in the amount of R420 000. However, X owes B R30 000 as
payment for goods which B has sold and delivered to him.

Indicate the most accurate statement:

(1) If X deducts R30 000 from his claim in terms of section 39 of the Magistrates’ Courts Act 32
of 1944, and thereupon succeeds in proving that B is liable for R390 000, the court will award
R390 000 as damages.

(2) If X abandons R30 000 from his claim in terms of section 38 of the Magistrates’ Courts Act 32
of 1944, and thereupon succeeds in proving that B is liable for R390 000, the court will award
R390 000 as damages.

(3) If X does not rely on section 38 or 39 of the Magistrates’ Courts Act 32 of 1944, there is no
other way in which he will be able to bring this action within the jurisdiction of the magistrates’
court.

(4) X is entitled to claim R400 000 from B and thereafter institute an action for the balance of his
claim, namely R20 000. (2)

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QUESTION 26

C and D enter into a contract in Durban in terms of which C has to deliver goods to D’s business
premises in Pretoria. Despite demand, C fails to deliver the goods. C lives in Pietermaritzburg and
D lives in Johannesburg. D intends issuing summons against C for delivery of the goods.

Indicate the most accurate statement:

(1) Only the magistrates’ court of Johannesburg will have jurisdiction to hear the matter.

(2) Only the magistrates’ courts of Durban and Pietermaritzburg will have jurisdiction to hear the
matter.

(3) Only the magistrates’ courts of Durban, Pietermaritzburg and Pretoria will have jurisdiction to
hear the matter.

(4) Only the magistrates’ court of Pietermaritzburg will have jurisdiction to hear the matter. (2)

QUESTION 27

Indicate the most accurate statement:

(1) The district magistrates’ courts may hear divorce matters in terms of the Jurisdiction of the
Regional Magistrates’ Courts Amendment Act, 2013.

(2) Unlike the High Court, the magistrates’ court may exercise divorce jurisdiction only if the wife
is resident within the jurisdictional area of the court concerned and the husband is resident
outside the Republic.

(3) Section 28(1A) of the Magistrates’ Courts Act confers divorce jurisdiction on the regional
magistrates’ courts.

(4) A magistrates’ court may exercise divorce jurisdiction and may determine actions relating to
the nullity of a marriage, but may not dissolve customary marriages. (2)

QUESTION 28

While attending an outdoor expo in Johannesburg, P enters into a contract with Q in terms of which
Q is to build a barbecue for P’s home in Polokwane. P pays Q an amount of R280 000 for building
the barbecue, but Q fails to build the barbecue. P is a resident of Polokwane and wishes to institute
court proceedings against Q for damages suffered due to this failure in the amount of R280 000. Q
is a resident of Pretoria.

The following magistrate’s courts will have jurisdiction to hear the action instituted by P.

Indicate the statement the most accurate statement:

(1) Only the district magistrates’ courts of Johannesburg and Pretoria.

(2) Only the regional magistrate' courts of Pretoria and Johannesburg.

(3) Only the district magistrates’ court of Pretoria.

(4) Only the regional magistrates’ court of Pretoria. (2)

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PROCEDURE

QUESTION 29

Indicate the most accurate statement:

Application proceedings may be instituted by

(1) only the ex parte application

(2) only the ordinary application

(3) either the ex parte application or the ordinary application

(4) either the ex parte application, the ordinary application, or the urgent application. (2)

QUESTION 30

Indicate the most accurate statement:

(1) An interlocutory application is brought by way of a notice.

(2) If a party wishes to oppose an application, he or she must deliver a notice of intention to
defend within the dies induciae.

(3) An ex parte application is brought when one party approaches the court in terms of Uniform
Rule 35(7) for an order to compel the other party to discover particular documents.

(4)The formal documents used in application proceedings comprise pleadings and processes.
(2)
QUESTION 31

Indicate the most accurate statement:

(1) The rules of court allow only three sets of affidavits to be exchanged between the parties in
opposed application proceedings.

(2) If the plaintiff’s claim is based on a duly executed acknowledgement of debt, the action may
be instituted by way of the provisional sentence summons.

(3) The commencement of action proceedings must always be preceded by a letter of demand.

(4) In accordance with the audi alteram partem maxim, and in order to notify defendants of
proceedings instituted against them, notices of motion and summonses must be served on
the defendants personally. (2)

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QUESTION 32

X issues summons against Y for damages in the amount of R700 000 for defamation. The nature
of the claim that X has against Y is—

Indicate the most accurate statement:

(1) a liquidated claim

(2) an illiquid claim

(3) an unliquidated claim

(4) a liquid claim. (2)

QUESTION 33

Indicate the most accurate statement:

(1) A party who fails to timeously deliver a notice of intention to defend, is automatically barred.

(2) A party who fails to timeously deliver a declaration and who, despite having received a notice
of bar persists in such failure, is in default as well as barred.

(3) A notice of bar applies to a replication and subsequent pleadings, and failure to react to such
notice will result in a party being automatically barred.

(4) A defendant who fails to timeously deliver a notice of intention to defend must first be given a
notice of bar before a plaintiff may request default judgment, provided the defendant ignores
the notice of bar. (2)

QUESTION 34

Indicate the most accurate statement:

(1) X avers in the particulars of claim that breach of contract occurred on 1 March 1917, instead
of on 1 March 2017. Y notices the error and applies for the amendment of the particulars of
claim.

(2) Y delivers a plea on the merits because she wishes to give notice that she intends defending
the action.

(3) X is of the opinion that Y does not have a bona fide defence and that she has entered an
appearance simply to delay the action. Consequently, X applies for summary judgment.

(4) X is of the opinion that Y’s plea on the merits does not sustain a defence, and therefore he
objects to Y’s plea by raising an exception. (2)

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QUESTION 35

Indicate the most accurate statement:

(1) In terms of Rule 35 of the Uniform Rules of Court, a party may lawfully refuse to disclose
correspondence exchanged “without prejudice”.

(2) It is an accepted rule that an offer to settle in terms of Uniform Rule 34 and a tender in terms
of the common law may not be disclosed in court before judgment has been given.

(3) An interlocutory application is brought by way of a notice of motion.

(4) The amendment procedure is used only to correct errors in pleadings, and may not, for
instance, be used to extend the relief claimed. (2)

QUESTION 36

The plaintiff, A, claims payment from B in the amount of R500 000 in terms of an agreement in
respect of which the defendant, B, would be liable for such payment should Z fail to pay this amount.
The plaintiff does not aver in the particulars of claim that Z failed to pay the amount. The defendant
may respond to this defect in the pleading in the following manner:

Indicate the most accurate statement:

(1) the defendant may apply for the setting aside of the pleading as an irregular proceeding in
terms of Uniform Rule 30

(2) the defendant may raise an exception

(3) the defendant may deliver a special plea

(4) the defendant may apply for an amendment of the particulars of claim. (2)

QUESTION 37

Indicate the most accurate statement:

(1) Although the general rule is that evidence must be given viva voce and in open court, the
court may, for sufficient reasons, order that evidence be given on affidavit.

(2) A notice of intention to defend is the first of the pleadings that are exchanged between litigating
parties.

(3) Passengers of a minibus suffer damage in that their personal possessions are either
damaged or destroyed in a collision. Because actions for damages tend to be of a
protracted nature and most passengers involved suffer financial hardship while the
action drags on, the passengers may, in terms of Uniform Rule 34A apply to court for interim
payment.

(4) If a plaintiff issues two summonses against the same defendant on the same cause of action
in two different courts, the defendant may approach the court to have the more recent
summons struck out on the ground that such summons is vexatious. (2)

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QUESTION 38

Indicate the most accurate statement:

Summary judgment is relevant in the following circumstances:

(1) where the claim is for damages and the defendant gives a notice of intention to defend simply
to delay proceedings

(2) where the claim is for goods sold and delivered and the defendant’s plea on the merits does
not raise any issue for trial

(3) where the claim is for specific performance and the defendant does not have a bona fide
defence

(4) where the claim is for the delivery of ten specially marked cows and the defendant fails to
timeously deliver a notice of intention to defend. (2)

QUESTION 39

Indicate the most accurate statement:

(1) Orders ad factum praestandum are orders in terms of which the debtor is ordered to perform
a certain action, namely the payment of money.

(2) An exception may only be raised against a declaration or particulars of claim.

(3) Striking out is a procedure available to parties in both application and action proceedings.

(4) A judgment can only be delivered at the end of a trial, because the court is only competent to
deliver a judgment after hearing and properly considering the evidence. (2)

QUESTION 40

Indicate the most accurate statement.

(1) As dominus litis the plaintiff is responsible for placing a matter on the roll for hearing, and if
he or she fails to do so, the defendant may approach the court for an order compelling him or
her to do so.

(2) Uniform Rule 40 provides for a procedure whereby indigent persons may obtain free legal aid
by approaching the Legal Aid Board.

(3) Any dispute of fact is an indication that summons proceedings, and not application
proceedings, must be used to commence court proceedings.

(4) Substituted service of a summons upon a defendant may occur only if the court permits such
service. (2)

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QUESTION 41

Indicate the most accurate statement:

(1) A case management judge may refuse to certify a case as trial-ready if parties failed to clearly
set out the issues in dispute.

(2) The express purpose of delivering a notice and summaries in respect of expert witnesses in
terms of Uniform Rule 36(9) is to shorten the duration of the trial.

(3) The authority of all courts of law in South Africa to grant judgments is derived from statutory
law.

(4) The general rule is that a party who has closed his or her case may not present further
evidence, save in rebuttal. (2)

QUESTION 42

Indicate the most accurate statement:

(1) In the magistrates’ courts a plaintiff’s summons must contain a reference to section 26(1) of
the Constitution in instances where he or she seeks an order for movable property to be
declared executable.

(2) The automatic rent interdict is a unique type of summons used in the magistrates’ courts and
is called so because it offers a speedy procedure to landlords suing for outstanding rental
payments.

(3) The magistrates’ court is competent to decide to subpoena a person as a witness if the court
is of the opinion that such a witness would be able to contribute towards settling the dispute.

(4) The effect of an order for absolution of the instance is that the parties are placed in the same
position as if the case had never been brought. (2)

QUESTION 43

During the trial it becomes clear that X concealed certain documents which were prejudicial to his
case, and lied about their existence. At the end of the trial Y’s advocate argues that in these
circumstances it would be appropriate for the court to make the following costs order –

Indicate the most accurate statement:

(1) de bonis propriis against X

(2) party-and-party costs against X

(3) attorney-and-client costs against X

(4) that costs should be costs in the cause. (2)

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QUESTION 44

Indicate the most accurate statement:

(1) Leaving a copy of a summons at the defendant’s place of employment does not fulfil the stated
requirements for ordinary service as set out in the various rules of court.

(2) If a dispute arises over whether a summons was served on a particular party, such dispute
can be resolved, by referring to the return of service of the sheriff.

(3) The main objective of the pre-trial conference in terms of both Uniform Rule 37 and
magistrates’ courts rule 54 is to facilitate a settlement between the parties.

(4) One of the rules for the drafting of processes is that only facts, and not the law, must be
pleaded. (2)

QUESTION 45

Indicate the most accurate statement:

(1) An offer to settle in terms of Uniform Rule 34 may be used in both summons and application
proceedings.

(2) In the magistrates’ court, a power of attorney must be filed with the registrar or clerk of the
court as proof of mandate before a summons may be issued.

(3) In reply to a defendant’s counterclaim, a defendant in reconvention may file a replication in

reconvention.

(4) A party wishing to demand security for costs from his or her opponent in the magistrates’ court
may approach the clerk of the court or the registrar for an order directing the party to furnish
such security. (2)

APPEAL, REVIEW AND VARIATION OF JUDGMENT

QUESTION 46

Indicate the most accurate statement:

(1) The proceedings of all courts and quasi-judicial bodies are subject to review.

(2) If review proceedings are successful, the High Court which reviewed the proceedings will
always refer the matter back to the particular body for a decision according to the correct
procedure.

(3) Both appeals and review proceedings are commenced by way of notice of motion.

(4) Parties are restricted to the record of the proceedings complained about during review, and
may thus not go beyond it. (2)

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QUESTION 47

Indicate the most accurate statement:

(1) A litigant who is dissatisfied with the outcome of a matter, always has one appeal as of right.

(2) A court hearing an appeal from a lower court, as in the case of a court of first instance, consists
of a single judge.

(3) An appeal from a magistrates’ court may only be noted against a decision which is final in
effect.

(4) The Constitutional Court is the highest court of appeal in respect of all civil matters. (2)

QUESTION 48

Indicate the most accurate statement:

(1) Uniform Rule 42 provides that any variation of judgment sought under this rule must be
brought by way of the application procedure.

(2) A judgment of a High Court which was procured by fraud may be set aside even if it is shown
that the successful litigant was not a party to such fraud.

(3) When judgment is granted against a litigant who is not physically present in court but is
represented by a legal practitioner, the court is authorised in terms of section 36 of the
Magistrates’ Court Act 32 of 1944 to thereafter vary or rescind the order by virtue of the fact
that this litigant was “absent” for purposes of this section.

(4) A magistrates’ court judgment becomes final and unalterable once it is pronounced by the
magistrate, and can under no circumstance be varied or rescinded. (2)

QUESTION 49

Indicate the most accurate statement:

(1) The Supreme Court of Appeal is competent to hear appeals in respect of decisions or
judgments handed down by the Competition Court.

(2) The single judge of the High Court whose judgment or order is being appealed against, may
sit on the full bench at the hearing of the appeal.

(3) Both appeal and review must take place within a reasonable time.

(4) Once an appeal has been noted, a plaintiff may not continue to execute a judgment given in
his favour, unless authorised by the court. (2)

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QUESTION 50

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 be presented to court.

(2) An appeal may be noted against interim orders, because the granting of such orders means
that the party against whom it was given, has lost the case.

(3) If a magistrate allowed inadmissible evidence, the proceedings may be reviewed, and in some
cases may be appealed against.

(4) A party dissatisfied with the outcome of a matter in any High Court, may approach the
Supreme Court of Appeal directly. (2)
(50 x 2 marks each)
TOTAL: [100]

DECLARATION OF AUTHENTICITY

I,………………………………………………………………(Full name/s and surname)

Student number: ..………………………………………..

declare that I am the author of this examination in CIV3701. 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 in order 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: ……………………………..………………………..

Place:………………………………………………………

Signature:………………………..……………………….
(provide an electronic signature or type or write your name or surname again)

©
Unisa 2020

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