QUESTION 1.1.

The most relevant form of proceedings from the facts is action procedure. The basis of this
position was established in the case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd1 wherein the court stated that there are certain types of matters which the court is
prohibited by statute from deciding on application. Examples would be an action for divorce
or an action to recover damages which are unliquidated that is damages which are not fixed,
and which require evidence to establish their precise quantum or amount. In the facts at hand
Mrs Daka’s claims for the pain and suffering, loss of future earnings, loss of amenities of life
etc are unliquidated claims meaning that she has to go through the action procedure wherein
the amount will be argued and she will produce the evidence before the court to establish
their precise quantum or amount.

In addition, Mrs Daka should proceed by action procedure because there is a possibility of a
real dispute of fact between the parties on who was responsible for the collision and it has to
be resolved in court. Pete et al states that in cases where there is such a dispute of fact it is
necessary to proceed by way of action in order to properly test and challenge the evidence.
This is because it will be necessary for the parties to lead the evidence of witnesses, and for
such witnesses to be cross-examined, for the court to decide whose version is the more
probable. The court has to make a credibility finding after hearing and seeing the witnesses
testify as this cannot be achieved merely by reading the respective versions contained in the
affidavits of the parties.2

In summation, for the above-mentioned reasons Mrs Daka is advised to proceed with her
claim by way of action procedure.

1
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949. (3) SA 1155(T).
2
S Pete Civil Procedure: A Practical Guide, 3rd edition 2016, Oxford University Press.
QUESTION 1.2.

Jurisdiction may be defined as the power or competence which a particular court has to hear
and determine an issue between parties brought before it as was stated by the court in the case
of Graaff-Reinet Municipality v Van Ryneveld’s Pass Irrigation Board.3 The East London
High Court has the jurisdiction to preside over this matter. The basis of this two-fold that is
the monetary value of the claim and the place where the cause of action arose.

First the East London High Court has the appropriate jurisdiction to preside over this matter
because Mrs Daka’s claim has the potential to exceed R400 000 which is the starting point for
a claim to be heard in a South African High Court. In the facts it is stated that Mrs Daka
suffered medical costs, her motor vehicle was damaged, she suffered pain and suffering, loss
of amenities of life, she lost her R66 000 salary for six months and is likely to loose future
earnings. This all point out that the claim is surely likely to be way above R400 000 meaning
that it falls within the High Court jurisdiction. Reference can be made to the case of
Langham Court (Pty) Ltd v Mavromaty4 wherein the court held that if the claim reasonably
expected is over R400 000, the matter must be heard in a division of the High Court. If the
claim is reasonably expected is more than R200 000 but not more than R400 000, the matter
must be heard in a Regional Magistrates’ Court.

In addition, the East London High Court is the precise court to preside over this matter
because the cause of action arose in the court’s area of jurisdiction that is East London. In the
case of Standard Bank of South Africa v Nkosi 5 the court held that a division will, inter alia,
have jurisdiction over a person if the cause of action arose in the area of jurisdiction of the
court.

3
Graaff-Reinet Municipality v Van Ryneveld’s Pass Irrigation Board 1950 (2) SA 420 (A).
4
Langham Court (Pty) Ltd v Mavromaty 1954 (3) SA 742 (T).
5
Standard Bank of South Africa v Nkosi [2023] ZAGPPHC 361; 57944/2021 (28 February 2023).
QUESTION 1.3.

IN THE HIGH COURT OF SOUTH AFRICA CASE NO: 562/24

EAST LONDON DIVISION
HELD AT EAST LONDON

In the matter between:

KHWEZI DAKA PLAINTIFF
and
ROAD ACCIDENT FUND 1ST DEFENDANT
SAKHUMZI NGOZI 2ND DEFENDANT

COMBINED SUMMONS

To the above named Defendants:

The Plaintiff claims against the Defendants jointly and severally liable, one paying the other
to be absolved, for payment of, R2 500.000.00 (Two Million Five Hundred Thousand Rands)
being the total amount of damages suffered by the Plaintiff as a result of the 1 st Defendant’s
negligent conduct.

If you wish to oppose any of the Plaintiff’s claims, you must: -

(a) Enter an appearance to defend by making an appropriate entry in the appearance book
kept in the office of the Registrar of High Court of South Africa within ten (10) days after
service of this summon (Saturdays, Sundays and public holidays are not counted as part of
the ten (10) day period, nor is the day on which this summons was served) and;
(b) Notify the Plaintiff or her Legal Practitioner, in writing at the address given below, of
your entry of appearance to defend. You must give the Plaintiff or the Legal Practitioner an
address for service within five (5) km of the court specified above, together with a postal
address.
If you do not enter an appearance to defend, the Plaintiff’s claims will be heard and dealt with
by the High court without further notice to you.

The Deputy Sheriff is hereby required to serve a copy of this summons on the Defendant
named above and, immediately after doing so, to return a further copy of the summons, with
a return of service duly completed, to the Registrar who issued it.
DATED AT EAST LONDON THIS 17TH DAY OF MARCH 2024.

.........................................................................
INFINITY ATTORNEYS AT LAW
Plaintiff’s Attorneys
44 St Peter’s Road
Quigney
East London

TO: THE REGISTRAR

High Court of South Africa
East London Division

AND TO: ROAD ACCIDENT FUND

1st Defendant

AND TO: SAKHUMZI NGOZI

2nd Defendant
786 Fleet Street
Quigney
East London
IN THE HIGH COURT OF SOUTH AFRICA CASE NO: 562/24
EAST LONDON DIVISION
HELD AT EAST LONDON

In the matter between:

KHWEZI DAKA PLAINTIFF
and
ROAD ACCIDENT FUND 1ST DEFENDANT
SAKHUMZI NGOZI 2ND DEFENDANT

PLAINTIFF’S PARTICULARS OF CLAIM

1. The Plaintiff in this matter is KHWEZI DAKA, an adult female of legal status whose
address of service is in the care of its undersigned attorneys of record.
2. The 1st Defendant is ROAD ACCIDENT FUND, a
3. The 2nd Defendant in this matter is SAKHUMZI NGOZI, an adult male of legal
status whose address of service is 786 Fleet Street, Quigney in East London.
4. The material facts are that on or about the 22nd of July 2022 and at approximately
11:14 the Plaintiff was driving a grey VW Polo (Reg. No: 735 246 EC) along Second
Avenue in East London.
5. A collision occurred between a vehicle driven by the Plaintiff and a white Toyota
Quantum (Reg. No: 180 256 EC) driven by one 2nd Defendant.
6. The 2nd Defendant was solely to blame for the collision.
7. The Plaintiff was taken to hospital where after medical examination it transpired that
she suffered compression fractures of T8 and T12 of the thoracic spine. The
Surgeon’s report (X-Ray) to this effect is attached as Annexure “A”.
8. The Plaintiff had to undergo medical treatment. The doctors inform that she is in a lot
of pain; will experience future pain, suffering and discomfort; has been disabled and
will suffer further disability in future; suffered and will suffer a loss of amenities of
life. The doctor’s report to that effect has been attached as Annexure “B”.
 9. It is common cause that prior to the accident the Plaintiff was employed as a Land
Surveyor by P & P Civils (Pty) Ltd earning R66 000, 00 per month. Kindly take note
of the Plaintiff’s payslip attached to this claim as Annexure “C”.
10. As a result of the Accident the Plaintiff was unable to work for 8 months and only
received sick leave for 3 months. The employer’s report showing the period of
absence and leave has attached to this claim as Annexure “D”.
11. When the Plaintiff returned to work she can only perform light, and office bound
duties but due to her disabilities.
12. The requisite claim documents have been lodged with the 1 st Defendant and there has
been due compliance with the procedural and other requirements of the Road
Accident Act.
13. However, despite compliance with the requirement set by the Act relating to the
lodgement of claims, no settlement has been forthcoming from the RAF.
14. The Plaintiff avers that she suffered the following damages as a result of the accident:
 Pain and suffering R500 000.00
 Medical expenses R500 000.00
 Future medical expenses R400 000
 Loss of income R540 000.00
 Loss of future earnings R550 000.00
 Loss of amenities of life R
15. Despite the Plaintiff’s efforts to make the Defendants pay the money, the Defendants
have refused/neglected/refused to pay the full amount of the money.
16. WHEREFORE the Plaintiff prays for judgment against the Defendants in the
following:
17. A sum of R2 500.000.00 (Two Million Five Hundred Thousand Rands)
18. Costs of suit
19. Interest at a prescribed rate
20. Further or alternative relief

DATED AT EAST LONDON THIS 17TH DAY OF MARCH 2024.

.........................................................................
 INFINITY ATTORNEYS AT LAW
Plaintiff’s Attorneys
44 St Peter’s Road
Quigney
East London

TO: THE REGISTRAR

High Court of South Africa
East London Division

AND TO: SAKHUMZI NGOZI

1st Defendant
786 Fleet Street
Quigney
East London

AND TO: ROAD ACCIDENT FUND

2ND Defendant

QUESTION 2
INTRODUCTION

In the South African civil procedure law, there are legal avenues that are available to a
litigant like Mr Zaza who has a claim that is above the jurisdiction of the Magistrate’s Court
by an amount of R100 000, 00 but seeks to institute legal proceedings against the defendant
in the Magistrates Court instead of instituting action proceedings in the High Court. These
options are three that is consent, abandonment or deduction of an admitted debt. These will
be explained in detail in the legal opinion below with reference to relevant and applicable
legal authorities.

LEGAL OPINION

Consent

The first legal avenue that Mr Zaza can consider in order to bring his claim under the
jurisdiction of the Magistrates court is consent. According to Pete et al one possible way in
which a claim for over R200 000 or for over R400 000 may be brought within the jurisdiction
of the District Magistrates’ Courts or the Regional Magistrates’ Courts, as the case may be, is
for the parties to consent to such jurisdiction. 6 It must be stated that in terms of section 45(1)
the Magistrates’ Courts shall have jurisdiction to determine any action or proceeding
otherwise beyond their jurisdiction if the parties consent in writing thereto. This is provided
that no court other than a court having jurisdiction under section 28 – except where such
consent is given specifically with reference to particular proceedings already instituted or
about to be instituted in such court – shall have jurisdiction in any such matter. The first point
to note is that the parties must consent in writing. This written consent need not, however,
take the form of an express agreement which is signed by the parties. All that is required is
some sort of writing or writings which amount to proof that each of the parties has consented
to jurisdiction.7 In the case of Pfeiffer v First National Bank of SA Ltd 8 it was determined that
the words appearing in Section 45(1) being “otherwise beyond its jurisdiction” has reference
to the amount being claimed. Therefore, these words allow for a creditor to bring a monetary
claim, which is above the magisterial jurisdictional amount, before the Magistrates Court if
this was consented to by the parties.

Abandonment

6
S Pete Civil Procedure: A Practical Guide, 3rd edition 2016, Oxford University Press.
7
S Pete Civil Procedure: A Practical Guide, 3rd edition 2016, Oxford University Press.
8
Pfeiffer v First National Bank of SA Ltd [1998] 3 All SA 397 (A).
This is the second legal avenue that Mr Zaza can consider in order to bring his claim under
the jurisdiction of the Magistrates court is consent despite exceeding with R100 000.00. This
option requires for the plaintiff to abandon that part of his claim which is over R200 000 or
over R400 000 (as the case may be). In terms of section 38(1), in order to bring a claim
within the jurisdiction of the Magistrates’ Courts, a plaintiff may in his summons or at any
time thereafter explicitly abandon part of such a claim. 9 This means that in order to claim
against the defendant in the Magistrates Court in respect of the outstanding balance of the
purchase price of a motor vehicle he sold to the defendant Mr Zaza’s must abandon an
amount of R100 000, 00 from the claim so that the claim can be brought within the monetary
value of the jurisdiction of the Magistrate’s Court. Mr Zaza can consider including the below
paragraph in his particulars of claim abandoning the R100 000.00:

The defendant is indebted to the plaintiff in the amount of R300 000.00 and in order
to bring his claim within the jurisdiction of the Regional Magistrates’ Courts in terms
of section 38(1) of the Magistrates’ Courts Act 32 of 1944, the plaintiff hereby
abandons the amount of R100 000.00 of his claim. In terms of section 38(2), if
any part of a claim is abandoned in terms of section 38(1), it is thereby finally
extinguished; provided that if the claim be upheld in part only, the abandonment shall
be deemed first to take effect upon that part of the claim which is not upheld.

In the case of Jacobz NO v de Clerk and Another 10 the court noted that litigant a must be
entitled to abandon any part of a claim prior to judgment or even before judgment on appeal.
In the case of General Carpets v De Villiers11 it was held that even at the appeal stage, a party
is entitled to abandon a part of his or her claim. This means that Mr Zaza can abandon the
exceeding amount and bring the matter in the jurisdiction of the Magistrate’s Court.

Deduction Of An Admitted Debt

This is the last legal avenue that Mr Zaza can consider in order to bring his claim under the
jurisdiction of the Magistrates court is consent despite exceeding with R100 000.00. In terms
of this option the plaintiff should deduct from her claim a debt which she owes to the
defendant. In terms of section 39, in order to bring a claim within the jurisdiction of the
Magistrates’ Courts, a plaintiff may, in her summons, or at any time after the issue thereof,
deduct from her claim, whether liquidated or unliquidated, any amount admitted by her to be

9
Pete et al Civil Procedure: A practical guide 3rd edition 2016.
10
Jacobz NO v de Clerk and Another (1439 / 2016) [2021] ZAWCHC 49 (19 March 2021).
11
General Carpets v De Villiers 1990 (4) SA 411 (W).
due by herself to the defendant.12 This option is more convenient when the plaintiff owes the
defendant money and the plaintiff deducts the that he or she owes the defendant with the
intention to reduce the money to bring it within the jurisdiction of the relevant Magistrates’
Courts. Pete recommends that if your claim is over the limit for either the District
Magistrates’ Courts or the Regional Magistrates’ Courts, and you know that you owe the
defendant a debt, it is always wise to deduct the amount you owe the defendant in terms of
section 39, rather than abandoning part of your claim in terms of section 38, in order to bring
the matter within the jurisdiction of the District Magistrates’ Courts or the Regional
Magistrates’ Courts (as the case may be).

CONCLUSION

In conclusion, the above are some of the options that Mr Zaza can consider in order to bring
his claim under the jurisdiction of the Magistrates court is consent despite exceeding with
R100 000.00.

QUESTION 3

The concept of a dispute of fact is part and parcel of our civil procedure in South Africa.
A fact is said to be in dispute when it is alleged by one party and denied by the other. There
are several ways a dispute of fact can arise. In the Room Hire v Jeppe Street Mansions13 case
the court stated these different ways in which a dispute of fact may arise that is when the
respondent denies all the material allegations made by the applicant, and when the respondent
may admit the applicant’s affidavit evidence but allege other facts and lastly the respondent
‘may concede that he has no knowledge of the main facts stated by the applicant, but may
deny them, putting applicant to the proof 14 and lastly the respondent states that he can lead no
evidence to dispute the truth of the applicant’s statements but puts the applicant to the proof
thereof by oral evidence subject to cross-examination. It is well established under the
Plascon-Evans15 rule that where in motion proceedings disputes of fact arise on the affidavits,
a final order can be granted only if the facts averred in the applicant's affidavits, which have
been admitted by the respondent together with the facts alleged by the latter, justify such
order.

12
Pete et al Civil Procedure: A practical guide 3rd edition 2016.
13
Room Hire v Jeppe Street Mansions 1949 (3) SA 1155.
14
Pete et al Civil Procedure: A practical guide 3rd edition 2016.
15
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
There are several ways that the courts can deal with a dispute of fact and these were dealt
with in Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd16 to include the following:

 The court may decide the matter on the affidavits alone, the court will usually deal
with the matter on the basis of the undisputed fact.

 The court may refer the matter to oral evidence. Referral to oral evidence is usually
done only where the disputed facts are restricted to a narrow range of issues.
However, in Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 17 it was stated
that (except in interlocutory matters) it is undesirable to attempt to settle disputes of
fact solely on probabilities disclosed in contradictory affidavits as opposed to viva
voce evidence.

 The court may refer the matter to trial that is if the disputed facts cover a broad range
of issues, or are relatively complicated.

 The court will usually refer the matter to trial.

 The court may dismiss the matter, with costs that is if a real dispute of fact should
have been foreseen by the applicant, the court may dismiss the application, with costs.

 In certain cases, the court may decide to make no order. That is the court may decline
to make any order on the application itself, and give the applicant leave to renew the
application on the same papers or postpone the application sine die that is without a
return date with leave to file further affidavits.

In the case of Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 18 the court
held that where there is a dispute as to the facts a final interdict should only be granted in
notice of motion proceedings if the facts as stated by the respondents together with the
admitted facts in the applicant’s affidavits justify such an order. In cases where it is clear that
facts, though not formally admitted, cannot be denied, they must be regarded as admitted.

BIBLIOGRAPHY

Case Law

16
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).
17
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).
18
Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C).
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949. (3) SA 1155(T).

Graaff-Reinet Municipality v Van Ryneveld’s Pass Irrigation Board 1950 (2) SA 420 (A).

Langham Court (Pty) Ltd v Mavromaty 1954 (3) SA 742 (T)

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C)

Jacobz NO v de Clerk and Another (1439 / 2016) [2021] ZAWCHC 49 (19 March 2021)

General Carpets v De Villiers 1990 (4) SA 411 (W)

Pfeiffer v First National Bank of SA Ltd [1998] 3 All SA 397 (A)

Textbooks

S. Pete, Civil Procedure: A Practical Guide, 3rd edition 2016, Oxford University Press.