CIV3701 MAY/JUNE EXAM 2023 STUDENT NO:

QUESTION 1
a. ADR processes are distinguished from formal litigation in the following
important respects:
• Contrary to the litigation process, which is based on precise rules of
procedure for the conduct of proceedings, alternative dispute resolution
(ADR) processes are informal since the disputants themselves set the rules
for the particular process.
• ADR procedures are adaptable to the needs of different disagreement
types, whereas litigation procedures are not only formal but also extremely
technical.
• Except where ADR processes are court connected, they are described as
voluntary because the disputants choose to enter the process, unlike in
litigation
• In ADR processes the outcome is reached through the consent of both
disputants (it is thus consensual), whereas the outcome in litigation (typically
the judgment) is imposed on the litigants by a judicial officer (and is enforced
by execution proceedings)
• ADR processes deal with the interests of the disputants, while in litigation
the rights of litigants are protected and enforced
• ADR processes emphasize the relationship between the disputants 9 is thus
relational) and strive to maintain such relationships. Litigation is often
criticized for its adversarial nature and the consequent breakdown in
relationships that often occur
• Apart from arbitration, ADR processes do not concentrate on and apportion
blame for past events but seek to establish or re-establish future
relationships between disputants. It is thus future orientated. By contrast,
the purpose of litigation is to obtain a judgment against the litigant who
caused the injury or other wrong.

b. The introduction of the small claims court is successful in increasing access to

justice for litigants in South Africa for the following reasons:

• It makes the administration of justice more accessible to all South Africans;

• It provides a forum for the settling of minor civil disputes;
• It removes time-consuming, formalistic, and expensive procedures;
• It introduces informal and simplified procedures to reduce the cost of
litigation and provide for a speedy determination of small claims;
• It establishes a consumer-oriented court.

c. Every natural person who is a party to civil proceedings is entitled to represent

himself personally. Such a person would usually instruct an attorney to act on
his behalf. These instructions are confirmed and specified in a document known
as a power of attorney. A power of attorney is a written document in which an
agent is given the authority to act on behalf of his principal either in a specified
situation or to act on behalf of such principal in respect of all actions which the
principal could perform himself. A client may terminate his mandate to an
attorney at any time, but an attorney may, after accepting a client’s brief,
withdraw only with sound reasons.
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When is a power of attorney required in litigation? There is no need for a power

of attorney for issuing a summons or a notice of intention to defend but is
required to conduct or defend a civil appeal. The rules of the Supreme Court
provide that a power of attorney need not be filed with the registrar unless the
authority of a legal practitioner to act on behalf of a party is disputed.
Why is a power of attorney drawn up? A carefully drawn-up power of attorney
is essential for the protection of both the attorney and the client, and to
determine the extent of the attorney’s brief. Therefore, there should always be
a power of attorney kept on the client’s file. The power of attorney generally
contains details of the action to be instituted and of the relief to be claimed.
The client does not wish to be involved, unknowingly or unwillingly, in expensive
litigation, or in an appeal, which he never contemplated.
On the other hand, the attorney is entitled to protection as far as his own costs
are concerned. Should the attorney conduct litigation without the authority of
the client, he will not be entitled to recover the costs incurred from his client,
since there is no contractual relationship will exist.

d. The different types of interdicts and the purpose of each.

• Prohibitory interdict: This is an interdict in the more literal and restricted
sense of the word, and may be described as an order requiring a person to
abstain from committing a threatened wrong, or from continuing an existing
one.
• Mandatory interdict: It’s an order compelling a person to perform some
positive act in order to remedy a wrongful state of affairs that the respondent
has brought about, or to do something which he is in law obliged to do if the
complainant is not to be deprived of his rights. Where the act is to be
performed by a public official, the order is called a mandamus.
• Restitutory interdict: Where a person is unlawfully disturbed in the
possession of the property, he is entitled to immediate restitution – even
before the merits of the dispute are investigated by the court. This order
restores the status quo and is known as a mandamenten van spolie.

QUESTION 2
a.

b.
(i) Where the defendant is a peregrinus of the whole Republic (foreign
peregrinus), a South African court will exercise jurisdiction over such a
person only after attachment of his or her property has taken place,
attachment ad confirmandam jurisdictionem (requiring the cause of action
to have occurred within the particular court’s area of jurisdiction apart from
the attachment).
On the given facts, the defendant is a peregrinus of the whole Republic (he
resides in Namibia). The High Court in whose area of jurisdiction the cause
of action (collision) occurred will be able to exercise jurisdiction ad
confirmandam jurisdictionem, provided that the defendant has attachable
property within the Republic, especially within the particular court’s area of
jurisdiction. In this instance it is irrelevant whether the plaintiff is an incola or
peregrinus of the court. The attachment confirms or strengthens the partial
 CIV3701 MAY/JUNE EXAM 2023 STUDENT NO:

or imperfect jurisdiction that the court has by reasons of the fact that the
cause of action arose within its area.
Therefore, KwaZulu-Natal Local Division, Durban does not have jurisdiction
on the basis of attachment ad confirmandum, since the attachable property
is situated within the Cape Town court’s area of jurisdiction, and not within
the Durban High Court’s area.

(ii) Section 42(2) of the SCA provides that a civil process of a Division runs
throughout the Republic and may be served or executed within the
jurisdiction of any Division.
This means that the process issued by a particular court (eg. summons or
notice of motion) may be served within the jurisdiction of any division of the
High Court in the Republic. This also means that the judgment or order of a
particular court is enforceable within the jurisdiction of any division of the
High Court in the Republic.
The result is that even if a defendant or his property is situated outside the
jurisdiction of a particular court, that court is able to exercise control over
the person or property of the defendant, provided that he is an incola of
South Africa.
However, in those instances where the defendant is a peregrinus of South
Africa, neither the defendant nor any of his property may be in the country
when judgment is granted against him. This would render the judgment
ineffective. Therefore, in order to establish jurisdiction in a claim sounding
in money against a foreign peregrinus, an attachment of such defendant’s
property is usually required (Bid Industrial Holdings –here, the court
considered alternative options when attachment was not possible).
(iii)

QUESTION 3
(a) According to High Court Rule 37, the parties must hold a pre-trial meeting no
later than six weeks before to the trial date. The "rule 37 conference," as it is
known in practice, is generally used to limit the proceedings as much as
possible. To do this, the parties should attempt to clarify the disagreements that
are at issue, agree on as many issues as they can, and choose the best strategy
for conducting the trial (for instance, which party has the responsibility to start
offering evidence; whether or not the parties will jointly prepare a "trial bundle"
of documents to be used at the trial, etc.). Numerous peremptory clauses in
Uniform Rule 37 demonstrate the genuine effort being made to accomplish the
goal of expediting the trial. According to Rule 37(9)(a), the court must decide
whether to make a special order regarding costs against a party or their attorney
if they did not show up for the conference or if there was a significant failure to
encourage the efficient resolution of the case.
Rule 37A, which has now been repealed, was a separate rule that dealt with
pre-trial conferences in the Western Cape Division.

(b) The attachment has to happen with the court where the cause of action arose.
The attachment strengthens the partial or imperfect jurisdiction that the court
 CIV3701 MAY/JUNE EXAM 2023 STUDENT NO:

has by reason of the fact that the cause of action (breach of contract) arose
within its area of jurisdiction.
(c) An application for an attachment to found jurisdiction (ad fundandam
jurisdictionem) may be brought in the court which exercises territorial
jurisdiction over the area within which the plaintiff is either domiciled or
resides(unless part of the cause of action also arose in that area, in which case
the application will be for an attachment to confirm jurisdiction) when dealing
with a claim sounding in money against a foreign peregrinus, an attachment ad
confirmandam or ad fundandam jurisdictionem is usually required.
(d) Section 21(3) provides that any Division may issue an order for the attachment
of property to confirm jurisdiction. The section does not specifically provide
where attachment must take place. Therefore, this provision must be read with
the common-law principles regarding attachment and, consequently, the
requirement is that the property must be situated within the area of jurisdiction
of the particular court approached for the order.

QUESTION 4
(a) This is a claim for specific performance. Section 46(2)(c) Magistrates’ Courts
Act provides that a magistrate’s court may not hear claims for specific
performance without an alternative claim for damages. Specific performance
is the performance of an act that a person has contractually undertaken to
perform. According to the courts’ definition of specific performance, what is
referred to is the performance of an act that was contractually undertaken (ad
factum praestandum) and does not include ad pecuniam solvendam as it was
confirmed in Maisel v Camberleigh.
In the given facts, X wants the court to compel Y to finish building as per
agreement. Therefore, directing Y to finish building would amount to an order
for specific performance without an alternative claim for damages, which
cannot be heard by a magistrate’s court. Therefore, neither of the courts
mentioned will have jurisdiction in the matter.

(b) The exception

- Except to a pleading on merits if it vague and embarrassing, discloses no cause
of action or defence,
- Exception must be taken to the whole document as a whole and not a portion of
the documented.
- Important to note that where a party intends to except to a pleading on the ground
that it is vague & embarrassing, he or she must, by notice, afford his or her
opponent an opportunity of removing the cause for complaint.
The special plea
- Is a means of raising an objection on the basis of certain facts which do not appear
in the plaintiff’s declaration or particulars of claim, & has the effect of destroying or
postponing the action.
- Plea on the merits must however be submitted as failure to submit this may result
in judgement by default.
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(c) The notice of an offer to settle must state:

• If the offer is unconditional or without prejudice as an offer to settle;
• If it is accompanied by an offer to pay all or only part of the costs of the
party to whom the offer is made, subject to such conditions as may be
stated therein;
• If the offer is made by way of settlement of both claim and costs or of the
claim only;
• If the defendant disclaims liability for the payment of costs or for part
thereof, in which case the reasons for such disclaimer shall be given.
(d) I would advise B to issue a simple summons which is employed when the
plaintiff’s claim is for a debt or liquidated demand, as is the case when rental
is in arrears. If A vacates the property without leaving a forwarding address but
is believed to be living somewhere in the same province, I would advise B to
make use of a substituted service. A substituted service is used where a person
is believed to be within the Republic, but service cannot be effected on him or
her in terms of the rules of the court, because it is not known precisely where
such person is to be found. If A fails to respond to the summons within the time
stated in the summons, B may apply for default judgment against A.
(e) Magistrates’ Court Act 32 of 1944 to adjudicate matters in which specific
performance is sought without an alternative claim for payment of damages.
However, this prohibition is subject to the exceptions contained in section
46(2)(c)(i)-(iii), and does therefore not apply when the delivery or transfer of
property, movable or immovable, and not exceeding in value of the amount
determined by the Minister from time to time by notice in the Gazette, is
claimed. “Specific performance” has been interpreted by the courts to refer to
the performance of a contractual act only.

QUESTION 6
(a) No, it is a common law rule in the high courts that the execution of a judgment is
automatically suspended. This rule is also reflected in the rules of court which
provide that it is not merely the right to levy execution, but also the “operation of
execution”. Consequently, the judgment is of no effect, pending the appeal. If Y
wishes to have the judgment carried out, he has to approach the court which gave
judgment for leave to execute and has to provide reasons why the judgment should
be carried out. If his application is successful, he will be required to furnish security
de restituendo.
(b) The application procedure.
(c) Gh
(d) Gf
(e) A party’s right to appeal from a magistrates’ court entails that leave to appeal need
not be obtained.
This right to appeal, however, be excluded by a written agreement by the parties
before the trial commences that the decision of the court will be final (s 82). In terms
of section 83, the right of appeal accrues only to a party to a civil suit or proceeding,
and this section also provides that appeals may be brought only against the following
three types of decision:
(1) any judgment described in section 48
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(2) any rule or order having the effect of a final judgment, including an order relating
to execution in terms of Chapter IX of the Act and on an order as to costs (3) in
certain circumstances, any decision overruling an exception.

(f) The Constitutional Court is a court of appeal as well as a court of first instance,
depending on the type of matter it is hearing. Section 167(4) sets out the instances
of exclusive jurisdiction when the Constitutional Court will act as a court of first
instance.
Section 167(3) provides that it is the highest court of appeal in all matters. In
addition, section 167(6)(a) provides that the Constitutional Court may be
approached directly in exceptional circumstances, that is, in instances other than
those in which it has exclusive jurisdiction.