RHODES UNIVERSITY

FACULTY OF LAW

EXAMINATION: JUNE 2019

CIVIL PROCEDURE A
(LLB)

External Examiner: Mr G Barrow Marks: 70

Internal Examiner: Mr S Bergover Duration: 2 hours
Prof B Bester

GENERAL INSTRUCTIONS TO CANDIDATES

1. ANSWER ALL THE QUESTIONS.

ANSWER EACH SECTION IN A DIFFERENT ANSWER BOOK.

2. A planning document is available to you on the back of this cover sheet. You
are entitled to detach and to write on this planning document during reading
time, and during the examination.

3. Time management is very important. You should determine how much time to
dedicate to each question by determining how many minutes per mark for the
whole paper (eg 120 minutes for 70 marks) and then multiplying that figure by
the amount of marks for each question.

4. It is in your interest to write legibly.

5. The Oxford Concise English dictionary may be used during this examination for
the purpose of looking up words that are not legal terms relevant to the course
content. Invigilators may ask you which word you wish to look up, to determine
whether the use of the dictionary is appropriate.

6. It is in your interest to read the ENTIRE question carefully before attempting to

answer any of the questions.

7. At the end of the examination, place all extra answer books inside the first
book. Make sure that you have filled in all the required information on the front
cover. This includes how many books you have handed in, what questions you
have answered, and the order in which they have been answered.

Civil Procedure A – June 2019 Page 1 of 5

 PLANNING

Civil Procedure A – June 2019 Page 2 of 5

 SECTION A

Question 1

You are an attorney working at Lawyers for The People (LTP). You have been
approached by Mr Dan Smith who is the chairperson of Makhanda Working Together
(MWT). MWT is a community based organisation in Grahamstown that assists
members of the community, specifically with issues they have with the local
municipality. Mr Smith informs you that MWT would like to institute legal proceedings
against the Municipality for failing to fulfil its constitutional obligation, namely: its
obligation to provide RDP housing (in terms of section 26 of the Constitution) to
those who qualify in terms of the Municipality’s criteria. The community members
who applied for RDP housing more than 5 years ago are currently living in informal
squatter camps and others are still living with family. The Municipality has been
approached about its failure to provide access to housing. It acknowledges its
obligation but it has indicated that it does not have funding to build more houses.
Assuming the matter is ready to go to court, Mr Smith seeks your advice on the
following:
(a) Which court will have jurisdiction to hear this matter;
(4)
(b) Whether an action or application should be used to institute legal
proceedings;
(4)
(c) List the applicant(s) and respondent(s) to be cited in this matter; and
(4)
(d) The locus standi of each of the parties.
(3)

[15]

Question 2
Your client would like to divorce her husband. They have separated. He now lives
with his parents but he is hardly ever at home because he travels frequently for work
out of town. You advise her about the process that should be followed for a divorce
action, starting with the service of the summons on her husband. Your client
understands this process but she still has the following questions:
(a) Can the summons be served on someone else since her husband is hardly
ever at home and works out of town? Give reasons for your answer.
(3)

(b) Would your answer in (a) above be different if she was suing her neighbour
for a loan she had failed to pay back? Give reasons for your answer.
(2)
[5]

Civil Procedure A – June 2019 Page 3 of 5

Question 3
A concluded a contract with B in terms of which B had to build a house for A. In
terms of the contract A had to pay B the amount of R175 000 for his labour, which
amount would be due upon completion of the house. When the house was nearly
complete, A asked B to build a swimming pool, in addition. A agreed to pay B a
further R65 000 for the additional work. A has not yet paid B for the initial work (the
building of the house) and informs B that he will pay the full amount on completion of
the swimming pool. Three months after completion of all the work (the house and
swimming pool), A still has not paid B. After many verbal demands, B institutes a civil
action against A in the Grahamstown District Magistrates’ Court.
At the pleadings stage, A objects to the jurisdiction of the court. According to A the
court lacks jurisdiction because the amount claimed exceeds the jurisdictional limit of
the court. Will A’s objection succeed? Motivate your answer fully.
[6]

Question 4

You represent Mr Dube in a claim for R150 000 against his neighbour Mr Zuma. On
behalf of Mr Dube, you issue and successfully serve summons on Mr Zuma.
(a) Upon receipt of the summons, discuss the options available to Mr Zuma and
the consequences that will flow from each option.
(5)

(b) Assume that Mr Zuma chooses to ignore the summons. After 45 days you still
have not heard from him. What options does your client have in these
circumstances?
(4)
[9]
Question 5
Your represent Mr Joe White who slipped and fell on a wet floor at Pack n Pay. Mr
Joe White had had a few drinks the night before but claims that there were no signs
at the supermarket warning customers that the floor was wet. After assessing the
merits of your client’s case, you send a letter of demand to Pack n Pay. They
respond with a letter to you. In the top corner of the page are the words “WITHOUT
PREJUDICE”. The letter presents Pack n Pay’s version of the facts but also make an
offer to settle your client’s bills.
Fully explain what the term “without prejudice” means with reference to your client’s
matter.
[5]

[40]

Civil Procedure A – June 2019 Page 4 of 5

 SECTION B

Question 6

Write a brief note on only the legal principle of significance to civil procedure that can
be extracted from the following cases, having regard to the hint words furnished – a
summary of the peculiar facts of each case is not required :-

(a) Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd 1981 (4) SA 108 (C) - urgent
applications (2)

(b) Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung

MbH 1976 (3) SA 352 (A) - expert witnesses (2)

(c) Nkala and Others v Harmony Gold Mining Co Ltd and Others 2016 (5) SA 240
(GJ) - litis contestatio (4)

(d) Standard Bank of SA Ltd v Dawood 2012 (6) SA 151 (WCC) - simple
summons and The National Credit Act 34 of 2005 (8)

(e) SA Rugby Football Union and Others v President of the Republic of South
Africa and Others 1998 (4) SA 296 (T) – inspection of documents (2)

[18]

Question 7

A client, Ms Gucci, approaches you for advice and guidance. She wants to launch an
action for breach of contract and damages against a notorious family widely
implicated in the Zikhele Commission of Enquiry as wheeler-dealers of note and
incorrigibly corrupt and dishonest. Ms Gucci’s problem is that, although she has clear
proof of the breach of contract, every scrap of paper that she needs to quantify her
damages claim (such as invoices, receipts, orders, delivery notes, etc) is in the
hands of the family and without them, she cannot even begin to calculate what her
damages are, never mind prove them in court.
She is also very certain that if an action is launched, the family would destroy every
single document in an attempt to frustrate or defeat her claim, because they have
already been caught shredding incriminating documents by Zikhele Commission
investigators. She believes that there is a measure of urgency to do something
because they know that “the law is on to them”.
Advise Ms Gucci on what her procedural option is at this point, before an action is
launched, to ensure that the quantum documents are secured so that they will be
available for discovery at that action. Explain what that procedure is and what it
requires.
[12]
[30]

END OF THE EXAMINATION PAPER

Civil Procedure A – June 2019 Page 5 of 5