Explain Whether You Would Proceed by Means of an Ex Parte Or an Ordinary

G and H are a divorced couple who have a minor child. Custody and control of the minor child has been granted to G. H has limited rights of access with which he is dissatisfied. At the end of a particular school term, when G arrives at the nursery school to fetch the minor child, it transpires that H has already taken the child with him for the school vacation. The child’s teacher tells G that H insisted that he had right of access to the child. G contests this. She consults you with a view to removing the child from H. With these facts in mind, answer the following questions.

Explain whether you would proceed by means of an ex parte or an ordinary

opposed application. (2)

G would proceed by means of an “ordinary” opposed application since H must be

given notice of the application in order to have a chance to respond or to give his

version of the story. On the given facts, notice of the application should be given to the respondent H, and the ex parte application is therefore not relevant in this instance.

Excluding the notice of motion, identify and describe the documents that must be

exchanged between the parties. (4)

(i) The founding/supporting affidavit of the applicant will be attached to the notice ofmotion. It will set out clearly the circumstances which render the matter urgentand the reasons why a hearing in the normal course of events will not affordproper redress.

(ii) The answering affidavit by the respondent in terms of Rule 6(5) (d) (ii). In this

affidavit, the respondent deals paragraph by paragraph with the allegations andthe evidence contained in the founding/supporting affidavit.

(iii) The replying affidavit by the applicant in terms of Rule 6(5) (e) in which the

applicant deals paragraph by paragraph, in so far as may be necessary, with theallegations and evidence contained in the respondent’s answering affidavit.

(iv) A certificate of urgency signed by the applicant’s advocate must accompany thedocuments. See study unit 2.3.2.

Z wishes to obtain a divorce from her husband, X. Merely state the correct answer to each of the questions that follow. You must not give reasons for your answers.

(a) Name the type of summons that Z must use to institute the action. (1)

Combined summons

(b) What is the first document that X must file if he wishes to oppose the divorce action? (1)

Notice of intention to defend

What pleading must X file in order to raise his defence? (1)

Plea on the merits

(d) What pleading must X file if he has already commenced divorce proceedings

against Z in another High Court? (1)

Special plea of lispendens.

(e) What procedure should a party use if the name of one of the minor children is

stated incorrectly in the plea? (1)

Notice of amendment

(f) What procedure may Z use if X files a plea on the merits that contains a scandalousstatement about Z? (1)

Application to strike out

(g) What proceeding may Z use after pleadings have closed in order to establish whatdocuments X will raise as evidence at the trial? (1)

Notice to discover

(h) What form of cost order will Z request if she is of the opinion that X seriously

misconducted himself during the course of proceedings? (1)

Attorney and client costs

By means of a summons, a bank claims payment of a specified amount from the

defendant, who is the surety in terms of a deed of suretyship. The bank fails to disclose a cause of action by omitting to allege that the principal debtor, to whom the defendant has bound himself as surety, has failed to pay the debt and/or is not in a position to do so. With these facts in mind, identify the pleading that the defendant may use in order to respond to this situation. Give full reasons for your answer. (4)

The defendant may use exception in order to respond to this situation. A party may except to the pleadings on the grounds that

(1) the pleadings as drafted is vague and embarrassing or

(2) it discloses no cause of action or defence, that is, the pleading will not in law constitute a valid claim or defence, even if the party can prove all the allegations in the pleading under attack. The purpose of excepting to a pleading which discloses no cause of action or defence is to provide a speedy and inexpensive method of determining the issue without having to embark on the lengthy and expensive procedure of a full trial. On the given facts, the bank fails to disclose a cause of action, and therefore the defendant may use an exception.

You are the attorney for the defendant. Your client receives a combined summons in which the plaintiff avers that he incurred damages as a result of a motor collision due solely to the negligence of your client. During the consultation, your client contends that the plaintiff was equally negligent and as a result your client also suffered damages. With these facts in mind, answer the following questions.

(a) Name the pleading that you would use to introduce your client’s claim. (1)

the counterclaim or claim in reconvention

(b) When would you introduce this pleading? (1)

together with the plea or at a later stage with the leave of the plaintiff, or if refused, thecourt’s leave

(a) above. (1)

plea on the counterclaim or plea in reconvention

J has renovations done to his house by K, who is a building contractor. Throughout the period when the renovations were done, J complained to K about the lack of skill and workmanship but K failed to rectify this. As a result, J refused to pay the balance of the contract price until K had rectified all the defects. To J’s surprise, he receives a summons from K for payment of the balance of the contract price. J takes the summons to you and you immediately respond by entering a notice of intention to defend on J’s behalf. K’s attorney responds by serving an application for summary judgment on your client. With these facts in mind, answer the following questions.

(a) Explain to your client why K is not justified in bringing an application for summary judgment. (2)

An application for summary judgment can only be brought if the claim falls within the

provisions of 32(1) of the Uniform Rules of Court. Each of these types of claims falls within the definition of a “debt or liquidated demand”. A debt or liquidated claim/demand is capable of speedy and prompt ascertainment. On the given facts, the defendant raised complaints about the quality of work performed by the plaintiff. For this reason, oral evidence is required to clarify the areas of dispute, and therefore, the nature of the claim does not fall within the definition of a “debt or liquidated demand”. The facts in this questions are similar to the facts in Neves Builders & Decorators V De La Cour1985(1) SA 540 (C). See study units 12.4.1 and 6.3.2 and Tutorial letter 104/3/2011.

(b) Describe briefly the step that you would take to oppose K’s application for

summary judgment.

A defendant who wants to oppose an application for summary judgement has two options,namely:

(i) he or she may give security to the plaintiff to the satisfaction of the registrar

(ii) he or she may satisfy the court by affidavit, or with the leave of the court, by oral

evidence by himself or any other person who can swear positively to the facts that

he or she has a bona fide defence to the action. Such affidavits or evidence shall

disclose fully the nature and grounds of the defence and the material facts relied

upon.

On the given facts, J may oppose K’s application for summary judgment by filing an

affidavit or giving security to the plaintiff. See study unit 12.4.3, read with Rule 32

A and B are involved in a motor collision. A suffers serious injuries to his back,

and he will have to undergo several operations. A sues B and claimsdamages. The pleadings are closed and both parties begin to prepare for trial.The parties need to be informed on how they can present their evidence tothe trial court. Discuss the various ways in which evidence can be placedbefore the trial court. (6)

(i) Unless special circumstances exist, a witness must give evidence viva voce and in open court.

(ii) If a witness cannot give evidence in person, and if the necessary circumstances are present, he or she may be allowed to give evidence in the following ways:

(a) on commission.

(b) by means of interrogatories.

The courts are reluctant to grant such leave, and are usually disposed to do so only when the evidence so required is of a formal nature.

Abe and Mary were married for four years. They lived in Johannesburg,

Gauteng. Abe abandons Mary and goes to work in Botswana. Mary has no

contact with Abe, and she decides to divorce him after a year. She only has

his last known work address. On the basis of these facts, answer the following

questions.

(i) What form of service is necessary to serve the summons on Abe? (1)

The form of service is edictal citation. Edictal citation is used where the defendant is

outside the borders of the Republic, even if his/her whereabouts overseas are

known.

(ii) What form of service is necessary to serve the summons on Abe if he is at

an unknown address in South Africa? (1)

The form of service is substituted service. In the case of substituted service, the

defendant is within the borders of the Republic, but his/her exact whereabouts are

unknown.

(iii) In what way does service ensure that the audialterampartemmaxim is

acknowledged? (2)

The maxim means that the other party to the litigation must be heard before an order

can be granted against such a person. The purpose of service is that this party is

given notice that an action is being instituted against him or her. In this way, he or

she will be able to defend himself or herself against the action (ie he or she will be

heard).

Q is a landlord and Z is his tenant. Z is in arrears with his rental. Q issues a

summons against Z for the arrear rental and ejectment. With regard to the

given facts, determine the procedure that Q would use if Z failed to respond to

the summons within the time stated in the summons. (5)

The nature of the claim is one of debt or liquidated demand. A default judgment may be sought without notice to the defendant by means of a written request for judgment submitted to the registrar to the court. The registrar is empowered to make a variety of orders and no evidence in respect of the claim need be led.

S and T are involved in a motor collision. S issues summons against T for the

damages caused to his vehicle. However, in his particulars of claim S fails to

aver that the motor collision was due solely to the negligence of T. T respons

by filling a special pleas. Discuss whether the correct pleading was filled by T.

T has filed the incorrect pleading. He should have filed the exception instead. A

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, and has the effect of

destroying or postponing the action. An exception attacks the allegations in a

pleading, and the pleading is attacked as a whole. No factual allegation outside the pleading may be introduced. In this instance, the averment necessary to establish or

disclose a cause of action is omitted. Since this is one of the grounds on which an

exception can be raised, T should have filed an exception.

X purchases a second-hand vehicle from Y and pays the purchase price of

R150 000 by cheque. The cheque is dishonoured by X’s bank. Bear these

facts in mind and indicate if the following procedures are correct or not, and

give reasons for your answers. Where necessary, indicate the correct

procedure.

Y issues a combined summons against X, since the claim is for a debt

or a liquidated demand. (6)

Although the claim falls within the definition of a “debt or liquidated demand”, it is incorrect to issue a combined summons. A combined summons is used when the

claim is unliquidated. Y should have issued either a simple summons or a provisional-sentence summons since, on the one hand, a claim based on a (dishonoured) cheque is an example of a “debt or liquidated demand” (it is also one of the types of claim on which summary judgment can be given). On the other hand, the provisional-sentence-summons procedure is specifically designed to accommodate claims based on liquid documents (eg a cheque)

Y issues an appropriate summons. X wishes to defend the matter and

serves and files his plea on the merits. (4)

One does not indicate one’s wish to defend a matter by serving and filing a plea on

the merits: a notice of intention to defend is used for this purpose. The latter is only a

notice to that effect, and nothing more. Only after this notice (and within the stated

dies induciae) is a plea on the merits served and filed, detailing in clear terms the

grounds of the defendant’s defence in answer to the plaintiff’s claim. See 9.2 and 9.3

in the study guide.

X and Y are involved in a motor collision in Johannesburg. X suffers damages

in the amount of R70 000. X issues summons against Y in the amount of R70

000. Y intends to defend the action. Y notices that the summons contains

insufficient particulars. What steps may Y take to remedy this defect in the

summons?

Y may make a request for further particulars to X in terms of Rule 16. He may also

apply for copies of documents or accounts upon which the action is founded in terms

of Rule 15.

Pleadings have closed between the parties. The parties now begin to prepare

for trial. They need to disclose to each other certain aspects of the evidence

which they hope to adduce at the trial. On the basis of these facts, answer the

following questions:

(i) What is the reason for discovery? (2)

Discovery of documents is important so that parties may prepare for trial and not be

taken by surprise. This would prevent unnecessary postponements, delays and

costs.

(ii) Name any three (3) matters to be considered at a pre-trial conference in

terms of section 54. (3)

(i) Simplification of the issues

(ii) the necessity or desirability of amendments to the pleadings.

(iii) the limitation of the number of expert witnesses.

Peter succeeds in his action against John, and the court orders John to pay Peter damages in the amount of R80 000. Despite reminders, John refuses and/or fails to comply with the court judgment. Peter discovers that John owns movable and immovable property. Peter elects to issue a warrant of execution against John’s property. May Peter at will elect to issue a warrant of execution against John’s movable or immovable property? Discuss briefly. (3)

No. The successful litigant can only enforce the judgment given in his or her favour. There is a specific order in which goods may be attached, namely as much movable property as may be necessary to satisfy the judgment given: only then, if these goods are insufficient or on good grounds shown, may immovable property be attached. Incorporeal property may also be attached, and certain property is excluded from attachment

Z institutes proceedings in a magistrate’s court against X for damages arising out of breach of contract. The magistrate grants judgment against X. X is dissatisfied and takes the matter on appeal. On the basis of these facts, answer the following

questions:

(a) Must X apply for leave to appeal to a High Court? (2)

No, X need not apply for leave to appeal as he has one appeal as of right in terms

of section 83 of the Magistrates’ Courts Act. The appeal lies to the appropriate

provincial or local division of the High Court from the judgment of a magistrate’s

court.

(b) How many judges must hear the appeal? (1)

An appeal from the inferior courts must be heard by at least two judges (s

13(2)(a)(i)).

51(3). (5)

An appeal may be noted within 20 days after the date of the judgement appealed against or within 20 days after the clerk of the court has so supplied a copy of the written judgement to the party applying therefor, whichever period shall be the longer. An appeal shall be noted by the delivery of a notice, and, unless the court of appeal shall otherwise order, by giving security for the respondents costs of appeal to the amount of R1000.

(d) Explain the implications for X if Z abandons part of the judgment granted in his orher favour. (2)

If Z (plaintiff) abandons part of the judgment granted in his or her favour, judgment in

respect of the part abandoned is entered for the defendant (X) with costs. Such

judgment has the same effect as if it was originally pronounced by the court.

What types of claim can give rise to an application for summary judgment?

(i) on a liquid document

(ii) for a liquidated amount in money.

(iii) for delivery of specified moveable property

(iv) for ejectment

together with any claim for interest and costs.

When does a dispute of fact arise?

It arises when

(a) the respondent denies material allegations made on the applicants behalf and

produces positive evidence to the contrary

(b) the respondent admits the allegations contained in the applicants affidavit, but alleges

other facts which the applicant disputes

applicant, but may deny them, putting the applicant to the proof thereof, while giving

evidence to show that the applicant (and his/her deponents) are biased and untruthful

or unreliable and t