QUESTIONS / EXERCISES

ABANDONMENT & DEDUCTION

QUESTION 1

The cause of action is arises from a breach of contract. Your client, the plaintiff, seeks to bring a claim for
damages in the amount of R417 000 in the regional court. The defendant is likely to bring a counterclaim for
R17 000. The counterclaim is likely to succeed. What is preferable – to deduct or to abandon – to bring your
client’s claim within the jurisdiction of the regional court?

Suggested answer

Given that the counterclaim has good prospects of success, it is preferable to deduct from the outset. If your
client deducts from the outset (in accordance with section 39 of the MCA), and if she proves her entire claim,
she will receive R400 000. If she were to abandon R17 000 (in terms of section 38 of the MCA), and she were
to prove her entire claim, she would also receive R400 000. However, given that the counterclaim is likely to
succeed, it is likely that the amount of R17 000 would need to be set off against your client’s eventual
entitlement. This means that your client would receive R383 000 and not R400 000 which would have been
the case had she admitted and deducted from the outset.

JURISDICTION
QUESTION 1
Mr Main Koenyn holds an American passport (citizenship) and views himself as a resident of California in the
USA. Every year, without exception, he spends spring and summer in Cape Town where he sees himself as a
professional tourist who thoroughly enjoys the nightlife. He owns an exclusive bachelor flat in Loop Street.
Two years ago he formed a company in South Africa, Main Men (Pty) Ltd, of which he is the managing
director. The business rents offices in Johannesburg. You also establish that he travels around the world but
that, since the establishment of his business, he sleeps over at a house in Johannesburg belonging to his
company for three months of the year. According to the telephone directory one Miss Smalberger lives in the
house. Mr Koenyn also normally goes on holiday one week per year in Durban, where he owns timeshare in
the Holiday Club.
Your client, Ms Bruhella Buhrmeister, resides and works in Bloemfontein since 1999. She indicates that she is
domiciled in Jamaica since she enjoys going on holiday there twice a year. She did contract work in Durban
for six months, where she got involved in a scuffle with Mr Koenyn, who spent a weekend in Durban. She
approaches you to institute a civil assault claim against Mr Koenyn to claim R375 000 as damage for her
medical costs and general shock, pain and suffering.
Which specific court/s could exercise jurisdiction in the matter? Motivate fully.

QUESTION 2
Sipho and Amanda concluded a contract in terms of which Amanda sold her car to Sipho. At the time that the
contract was concluded, Amanda knew that the car had faulty brakes but did not tell Sipho about it.
Approximately three weeks after he took ownership of the car, Sipho was driving on the N2 road to Cape Town
when the brakes malfunctioned. The malfunctioning brakes forced Sipho to veer off the side of the road and
collide with an unknown object. Sipho suffered damages amounting to R204 000. Amanda also has a claim for
R40 000 which is the amount that Sipho still owes her in terms of the contract, payment of which was due one
week after Sipho took ownership of the car. Sipho wants to institute proceedings in the relevant District
Magistrate’s Court and he wants to know what his options are to bring the claim within the jurisdiction of the
District Court and, if so, what your advice would be as to the most appropriate approach to follow in the
circumstances. Assume that both parties will successfully prove their entire monetary claims. Keep in mind
that Amanda would prefer to litigate in the Regional Court.
QUESTION 3
George has been farming near Caledon since 1971. During January 2021 a new neighbour, Simpiwe,
commenced occupation of the farm neighbouring George’s farm. One morning as George was on his way to
town he saw that Simpiwe had put up, and locked, a gate on the dirt road that George uses to get to the main
road. George asked Simpiwe to unlock and to remove the gate as it was hindering his (George’s) only access
to the main road. Simpiwe agreed to unlock the gate this one time, but refused to have the gate removed.
Simpiwe argues that the dirt road forms part of his farm, which it does, and he therefore has the right to put up
the gate in order to control access to his farm. George tells you of his dilemma. Would it be possible for
George to approach a Magistrate’s Court for legal relief? Motivate your answer.

JURISDICTION OF THE HIGH COURT

EXERCISE 1

Our client informs us that on 20 April 2022, she was driving her Opel Kadett 1.4 with registration number
CM2221 along Merriman Street in the direction of the R44. When our client stopped at the traffic light at the
intersection of Merriman Street and Bird Street, which traffic light had turned red, a white Jetta with
registration number PF3334, driven by yourself, drove into the back of and collided with our client’s vehicle.
Our instructions are that you were negligent in that you failed to apply the brakes of your motor vehicle
timeously, adequately, or at all, and that you failed to avoid the collision when by the exercise of reasonable
care, you could and should have done so. As a result of your negligent conduct our client has suffered
damage to her vehicle in the amount of R20 500,00.

EXERCISE 2
Our client instructs us as follows / ons kliënt se instruksies is as volg:
• You were employed with our client as a Technical Representative until 4 January 2021. / U was in diens
van ons kliënt as ‘n Tegniese Verteenwoordiger tot 4 Januarie 2021.
• During your employment with our client, you were exposed to our client’s confidential business information
(including its trade connections, costing structures, strategic plans and client database) and considerable
know-how regarding our client’s business and you developed relationships with our client’s customers. /
Gedurende u indiensname by ons klient, was u blootgestel aan ons klient se vertroulike besigheidsinligting
(insluitende handelskonneksies, kostestrukture, strategiese planne en kliënte databasis) en aansienlike
kennis rakende ons kliënt se besigheid en u het verhoudinge met ons kliënt se kliënte ontwikkel.
• With a view to protecting our client’s abovementioned interests (amongst others), our client concluded a
written restraint of trade agreement with you, in terms of which inter alia you were restrained from working
for a competitor of our client for a period of 12 months after the termination of your employment with our
client. / Met die doel om ons kliënt se bostaande belange (onder andere) te beskerm, het ons kliënt ‘n
handelsbeperkings-oooreenkoms met u gesluit in terme waarvan u beperk word om vir ‘n kompeteerder te
werk vir ‘n periode van 12 maande na die beeïndiging van u indiensname by ons klient.
• Despite the above, our client has learnt that you have taken up employment with a business, known as
XXX, which operates in competition with our client. / Ten spyte van die bostaande, dra ons kliënt kennis dat
u nou in diens is van ‘n kompeterende besigheid, naamlik XXX.

Is there a failure to disclose a cause of action in the following scenarios? / Is daar ‘n versuim om ‘n eisoorsaak
te openbaar in die volgende omstandighede?

1) The Plaintiff claims payment of a specified amount from the Defendant as surety in terms of a deed of
suretyship, but fails to allege that the debtor, to whom the Defendant has bound himself as surety, has
failed / is not in a position to pay the debt.

Die Eiser eis betaling van ‘n gespesifiseerde bedrag van die Verweerder as borg in terme van ‘n borgakte,
maar beweer nie dat die skuldenaar aan wie die Verweerder homself verbind het as borg, nie sy skuld
betaal het nie of nie in ‘n posisie is om sy skuld te betaal nie.
 2) The Plaintiff sues for breach of contract but fails to allege where the contract was concluded.

Die Eiser dagvaar vir kontrakbreuk maar versuim om te beweer waar kontraksluiting plaasgevind het.

Identify the averments that constitute the cause of action. / Identifiseer die beweringe wat die eisoorsaak opmaak
Facts: / Feite:
Oral agreement between Jane and Shiandi concluded on 1 March 2021. Shiandi is currently vacationing in
Durban. She has three brothers. Her parents are both deceased. She is embroiled in an inheritance dispute with
her brothers. Litigation is pending in the High Court situated in the Free State. In terms of the agreement
concluded with Jane, Shiandi sold to Jane her Mercedes motor vehicle for the amount of R430 000. Jane is
dissatisfied with the purchase and regrets it. Jane had to pay the full amount within 30 days of contract conclusion
to Shiandi. The vehicle has been delivered, 30 days have lapsed, but still no payment has been made. Shiandi
has not sent a letter of demand. Draft the POC on Shiandi’s behalf.
Mondelinge ooreenkoms tussen Jane en Shiandi op 1 Maart 2021 gesluit. Shiandi is tans op vakansie in Durban.
Sy het drie broers. Haar ouers is beide oorlede. Sy is tans in ‘n geskil oor haar erfporsie met haar broers
verwikkel. Litigasie is hangende in die Hooggeregshof gelee in die Vrystaat. Ingevolge die ooreenkoms met
Jane, het Shiandi haar Mercedes motorvoertuig aan Jane vir ‘n bedrag van R430 000 verkoop. Jane is ontevrede
met die koop en is daaroor spyt. Jane moet die volle bedrag binne 30 dae na kontraksluiting betaal aan Shiandi.
Die voertuig is gelewer, 30 dae het verval, maar geen betaling is gemaak nie. Shiandi het nie ‘n aanmaning
gestuur nie. Stel die BVV namens Shiandi op.

Facts: / Feite:
Oral agreement between Jane and Shiandi concluded on 1 March 2021. Shiandi is currently vacationing in
Durban. She has three brothers. Her parents are both deceased. She is embroiled in an inheritance dispute with
her brothers. Litigation is pending in the High Court situated in the Free State. In terms of the agreement
concluded with Jane, Shiandi sold to Jane her Mercedes motor vehicle for the amount of R430 000. Jane is
dissatisfied with the purchase and regrets it. Jane had to pay the full amount within 30 days of contract conclusion
to Shiandi. The vehicle has been delivered, 30 days have lapsed, but still no payment has been made. Draft the
POC on Shiandi’s behalf.
Mondelinge ooreenkoms tussen Jane en Shiandi op 1 Maart 2021 gesluit. Shiandi is tans op vakansie in Durban.
Sy het drie broers. Haar ouers is beide oorlede. Sy is tans in ‘n geskil oor haar erfporsie met haar broers
verwikkel. Litigasie is hangende in die Hooggeregshof gelee in die Vrystaat. Ingevogle die ooreenkoms met
Jane, het Shiandi haar Mercedes motorvoertuig aan Jane vir ‘n bedrag van R430 000 verkoop. Jane is ontevrede
met die koop en is daaroor spyt. Jane moet die volle bedrag binne 30 dae na kontraksluiting betaal aan Shiandi.
Die voertuig is gelewer, 30 dae het verval, maar geen betaling is gemaak nie. Stel die BVV namens Shiandi op.

1. The plaintiff is Shiandi… / Die eiser is…

2. The defendant is Jane… / Die verweerder is…
3. The court has jurisdiction over the matter as [insert].
4. On 1 March 2021 and at Johannesburg, the plaintiff and the defendant (both acting personally) entered
into an oral agreement in terms of which the plaintiff sold to the defendant a certain second-hand
Mercedes motor vehicle for an amount of R430 000. / Op 1 Maart 2021 by Johannesburg, het die eiser
en die verweerder (beide in ‘n persoonlike hoedanigheid) ‘n mondelinge ooreenkoms gesluit ingevolge
waarvan die eiser aan die verweerder ‘n sekere tweede-handse Mercedes motorvoertuig vir die bedrag
van R430 000 verkoop het.
5. It was a term of the agreement that payment would be made by the defendant to the plaintiff within 30
days of contract conclusion. / Dit was ‘n kontraktuele term dat betaling binne 30 dae na kontraksluiting
deur die verweerder gemaak moet word.
6. Notwithstanding the lapse of 30 days after conclusion, the defendant has failed to pay the sum of
R430 000. / Nieteenstaande die verloop van 30 dae na kontraksluiting, het die verweerder versuim om
die R430 000 te betaal.
7. In the premises, the defendant is indebted to the plaintiff in the sum of R430 000. / In die omstandighede,
is die verweerder aan die eiser die bedrag van R430 000 verskuldig.

WHEREFORE plaintiff claims: / Derhalwe smeek eiser:

1. Payment of the sum of R430 000; / betaling van die bedrag van R430 000;
 2. Interest thereon a tempore morae; / rente a tempore morae;
3. Costs of suit; / koste van die geding
4. Further and/or alternative relief. / verdere en/of alternatiewe regshulp.

______________________________
JOHANNES RADEBE
WITH RIGHT OF APPEARANCE
JOHANNES RADEBE ATTORNEYS
ATTORNEYS FOR THE PLAINTIFF
431 KIRKNESS STREET
SUNNYSIDE, PRETORIA
DOCEX 5, SUNNYSIDE
REF: RADEBE/HC/H1
TEL: 012 345 6789
FAX: 012 354 6789

IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF WYNBERG

HELD AT WYNBERG

CASE NUMBER: 1/2017

In the matter between

Ryno Plaatjies PLAINTIFF

and

Lendl Philander DEFENDANT

DEFENDANT'S SPECIAL PLEA

The Defendant pleads as follows:

The above Honourable Court has no jurisdiction in respect of the person of the Defendant in terms of section 28

of Act 32 of 1944, as amended, because:

(a) The Defendant does not work, reside or carry on business within the area of jurisdiction of the above

Honourable Court; and

(b) The cause of action did not arise wholly within the area of jurisdiction of the above Honourable Court.

WHEREFORE the defendant prays that plaintiff’s claim be dismissed with costs.
DATED AT WYNBERG ON THIS __________ DAY OF ____________________ 2017

_________________________________
THEMBA NKOSI ATTORNEY
ATTORNEY FOR THE DEFENDANT
420 SOUTH STREET
WYNBERG
REF: NKOSI/RAF/001
TEL: 021 345 9876
FAX: 021 345 9877

TO: THE CLERK OF THE COURT, WYNBERG

AND TO: JOHANNES RADEBE ATTORNEYS
ATTORNEYS FOR THE PLAINTIFF
431 NORTH STREET
WYNBERG
REF: RADEBE/MC/B1
TEL: 021 345 6789
FAX: 021 345 6788
A2 TEST FEEDBACK

QUESTION 1 [7]
What are the requirements for certification of a class action? Briefly list the requirements; no discussion is
required.
One mark per requirement below.
1. There must be a class, identifiable by objective criteria
2. There must be a cause of action raising a triable issue
3. There must be issues of fact and/or law common to all the members of the class
4. The relief sought or damages claimed must flow from the cause of action and must be ascertainable
and capable of determination
5. If the claim is for damages, there must be an appropriate procedure for allocating damages to the class
members
6. The proposed representative must be suitable to be permitted to conduct the action and to represent
the class
7. It must be shown that a class action is the most appropriate means of adjudicating the claims of the
class members

QUESTION 2 [5]
Indicate, with regard to each of the statements below, whether the statement is true or false. Briefly motivate
your answer.

2.1. Where the defendant is an incola and the plaintiff is a foreign peregrinus, jurisdiction must be confirmed or
found. (2)
False. (1) Where the defendant is an incola, there is a prohibition on attachment to found or confirm jurisdiction
(s 28 Superior Courts Act) / also unnecessary, reliance can be placed on the common law grounds to establish
jurisdiction. (1).

2.2 Jody leases her flat to Clayton at R50 000 per month, which amount is payable by Clayton to Jody on a
monthly basis, as agreed between the parties. Clayton fails, for five months, to pay Jody for his rental. The
matter must be heard by a Regional Magistrate’s Court. (3)
False. (1). The District Court may be approached as each cause of action is R50 000. (1). Section 43 of the
MCA: If two or more claims, each based upon a different cause of action, are combined in one summons, the
court shall have the same jurisdiction to decide each such claim as it would have had if each claim had formed
the sole subject of a separate action. (1).

QUESTION 3 [5]
You want to have a civil union nullified on behalf of your client. Which court will you approach in this regard
and why?
Section 29(1B)(a) of the MCA (1) provides that a court for a regional division, in respect of causes of action
shall have jurisdiction to hear and determine suits relating to the nullity of a marriage or a civil union and
relating to divorce between persons and to decide upon any question arising therefrom, and to hear any matter
and grant any order provided for in terms of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of
1998). (1). Section 29(1B)(b) (1) provides that a court for a regional division hearing a matter shall have the
same jurisdiction as any High Court in relation to such a matter. (1). Justify recommendation to Regional Court
(e.g. on basis of speed and costs). (1).

QUESTION 4 [5]
Provide a brief factual scenario to demonstrate when it would be preferable to admit and deduct a debt from
the outset rather than first abandoning the amount that exceeds the magistrates’ courts’ jurisdiction.

Example: the cause of action is arises from a breach of contract. The plaintiff seeks to bring a claim for
damages in the amount of R417 000 in the regional court. The defendant is likely to bring a counterclaim for
R17 000. The counterclaim is likely to succeed. If the counterclaim has good prospects of success, it is
preferable to deduct from the outset. If deducts from the outset (in accordance with section 39 of the MCA),
and if she proves her entire claim, she will receive R400 000. If she were to abandon R17 000 (in terms of
section 38 of the MCA), and she were to prove her entire claim, she would also receive R400 000. However,
given that the counterclaim is likely to succeed, it is likely that the amount of R17 000 would need to be set off
against her eventual entitlement. This means that she would receive R383 000 and not R400 000 which would
have been the case had she admitted and deducted from the outset.
Explanatory note: 3 marks were allocated to the accuracy of the factual scenario. Amounts should have been
used and contrasted (abandonment v deduction from the outset and eventual entitlements). 2 marks were
allocated to referencing the relevant sections of the MCA.

QUESTION 5 [15]
Provide in bullet form a step-by-step guide to determining whether, generally, a high court or a magistrate’s
court has jurisdiction and how to determine whether a specific magistrate’s court or high court has jurisdiction.
• To determine which general type of court competent to hear matter, consider the monetary value of the
claim and the nature of the matter. To consider the specific MC or HC, link matter to geographical
jurisdiction of area of court. (1)
• Claim value: general rule: claim > R400 000 = HC; ≤ R400 000 = MC; Matters heard in MC: < R200
000 = District MC; > R200 000, but ≤ R400 000 = Regional MC. (1)
• Section 29(1) sets out various grounds in which the monetary value of certain types of claims are set
out (although there is a catch all provision in section 29(1)(g). The matter must be linked to one of
these grounds. Not all the grounds have monetary amounts attached to them e.g. section 29(1)(c)
determination of a right of way – no monetary value. (1)
• Exceptions (where claim exceeds monetary jurisdiction): consent to court’s jurisdiction (s 45 of the
MCA), abandon portion of claim (s 38) and deduction (s 39) (1)
• Re nature of claim: certain claims involve amounts of R400 000/less, but not allowed in MC due to
nature. Examples: interpretation of will (HC), claim for specific performance without alternative of
damages (HC). Section 46 MCA. (1)
• Re specific MC: section 28 applies. The linkage can either be conducted on the basis of where the
defendant resides, carries on a business or is employed (section 28(1)(a)) (1), or on the basis of the
cause of action arising wholly within the district or region (section 28(1)(d)). (1)
• If during the process of determining jurisdiction it becomes apparent that the HC should be
approached, then the specific division of the HC should be linked to the specific matter by using the
common law grounds at one’s disposal:
Ratione domicilii (defendant/respondent domiciled/resident in court’s area) (1) Ratione rei gestae (COA
in court’s area) (1)
Ratione rei sitae (property in claim in court’s area) (1)
• If defendant is a foreign peregrinus, it may be necessary to confirm (ad confirmandam) or found (ad
fundandam) jurisdiction. (1) Property belonging to the defendant would need to be attached. (1). An
alternative is service of summons on the defendant whilst still in SA and adequate connection with
court (Bid Industrial). (1)
• 2 impression marks allocated mainly on the basis of reference to ancillary aspects, such as actor
sequitur forum rei, section 21 of Superior Courts Act, sections 37, 40, 43 MCA.

QUESTION 6 [3]
What does the term ‘vagabundus’ mean and how is it relevant in a jurisdictional context?
Someone who is not resident anywhere. It is relevant to determining whether a person is resident within the
territorial jurisdiction of a court for the purpose of establishing jurisdiction. Our courts (as held in Mayne v
Main) do not recognise vagabundus.

TOTAL [40]