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MODULE NAME: MODULE CODE:

CIVIL PROCEDURE CIPR8411

ASSESSMENT TYPE: EXAMINATION (PAPER ONLY)

TOTAL MARK ALLOCATION: 100 MARKS
TOTAL HOURS: 3 HOURS (+10 minutes reading time)
INSTRUCTIONS:
1. Please adhere to all instructions in the assessment booklet.
2. Independent work is required.
3. 10 minutes is dedicated to reading time before the start of the assessment. You may make
notes on your question paper, but not in your answer sheet. Calculators may not be used
during reading time.
4. You may not leave the assessment venue during reading time, or during the first hour or
during the last 15 minutes of the assessment.
5. Ensure that your name is on all pieces of paper or books that you will be submitting. Submit
all the pages of this assessment’s question paper as well as your answer script.
6. Answer all the questions on the answer sheets or in answer booklets provided. The phrase
‘END OF PAPER’ will appear after the final set question of this assessment.
7. Remember to work at a steady pace so that you are able to complete the assessment within
the allocated time. Use the mark allocation as a guideline as to how much time to spend on
each section.

Additional instructions:
1. This is a CLOSED BOOK assessment.
2. Calculators are not allowed.
3. Answer all questions.

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Statement of Facts ________________

Marx Reid, a 38-year-old male, works as the head mechanic for VK Saxon Automobiles (Pty) Ltd, a
company duly incorporated under the company laws of South Africa. The company specialises in the
repair and maintenance of luxury vehicles. Their principal place of business is situated at 30 Castle
Crescent, Pinetown, KwaZulu Natal.
• Sibu Ngidi, a female chemical engineer, is the owner of a black 2022 Audi R8, with Registration
Number ND 426-307. Her car is valued at R 2 500 000 – 00. Sibu resides in Johannesburg,
Gauteng. However, she is currently in KwaZulu Natal for 6 weeks on business. She is working at
a laboratory situated on 2 June Street, Umhlanga, Durban.
• Upon being referred to VK Saxon Automobiles (Pty) Ltd, Sibu sends her vehicle for repairs and
maintenance, as she has encountered the following problems:
o Both her headlights have stopped working; and
o She would like to upgrade the engine.
• Marx is tasked with the repair and the maintenance of Sibu’s car.
• The company has a policy that all cars must be test driven before being handed back to the
owner. The test drives must be done with the owner of the vehicle present in the vehicle.
• On 2 November 2023, Marx is required to work late because there is a backlog at the workshop.
At around 00:30 am, he finishes working on the engine but he has not yet attended to the
broken headlights. Nonetheless, he decides to take the car out for a test drive.
• At around 01:00 am, Marx was travelling on the M13 near Fields Hill heading towards Durban.
He was travelling at 160 km/h in the extreme left lane.
• Thando Dube, the driver of a red Mercedes SLK with registration 2FAST4U – ZN, is at the Kloof
on-ramp, driving at 60km/h and is simultaneously texting with her husband, Dawood Dube.
• Thando merges onto the M13 without stopping at the on-ramp. She did not see the Audi (driven
by Marx), as at the time, the area was experiencing load-shedding and Marx had no headlights
on because he had not repaired them yet.
• As Thando merges onto the freeway, Marx, who is travelling downhill at 160km/h, comes
around the bend and they collide.
• The following damages were sustained:
o Both the Audi and Mercedes are damaged beyond repair; and
o Marx suffered injuries to his spine, which will affect his ability to work in the future.

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What appears below is a graphic representation of the collision between Marx and Thando:

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Question 1 (Marks: 40)

You are the principal attorney at Goorbhare Incorporated. You were approached by Sibu Ngidi to
recover the damages owed to her from the motor vehicle collision. You instruct your candidate legal
practitioner to do the following:

• Provide you with the court heading for the face of the summons; and
• Draft a particulars of claim based on the above given set of facts.

Your candidate legal practitioner provides you with the following drafts of the abovementioned
documents. The drafts appear below.

Analyse the drafts that were handed to you and answer the questions that follow. Remember to
cite any and all authority, including the relevant court rules and case law in your answers, where
applicable:

N THE MAGISTRATES COURT FOR THE DISTRICT OF PINETOWN

HELD AT PINETOWN
CASE NO.:

In the matter between: -

SIBU NGIDI PLAINTIFF

AND

THANDO DUBE DEFENDANT

_______________________________________________________________________________

COMBINED SUMMONS
_______________________________________________________________________________

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________________________________________________________________________________
PARTICULARS OF CLAIM
________________________________________________________________________________

1. The Plaintiff is Sibu Ngidi (ID number 820823 0024 087), an adult female engineer, who
resides at 2 June Street, Umhlanga.
2. The Defendant is Thando Dube (ID number 840221 0024 087), an adult female who resides
at 22 Swift Lane, Pinetown and whose full and further particulars are unknown to the
Plaintiff.
3. The cause of action occurred in this honourable court’s jurisdiction.
4. At all material times herein, the Plaintiff was the owner of a black 2022 Audi R8, with
Registration Number ND 426-307. Proof of ownership of the said vehicle is attached hereto,
marked annexure “A”.
5. On or about 2 November 2023 at about 01:00 am near Pinetown, a collision occurred
between the Plaintiff’s motor vehicle ND 426 - 307 and a motor vehicle with registration
numbers and letter 2FAST4U – ZN driven by the Defendant.
6. The sole cause of the collision was the negligence of the Defendant, who was negligent in
one or more of the following respects:
6.1. she drove her motor vehicle at a speed which was excessive in the circumstances;
6.2. she failed to keep a proper look out;
6.3. she failed to exercise any or proper control over the vehicle she was driving;
6.4. she failed to apply the brakes of her vehicle timeously or at all; and/or
6.5. she failed to avoid the collision when by the exercise of reasonable care she could and
should have done so.
7. As a result of the Defendant’s negligence, the Plaintiff has suffered the following damages:
7.1. Damage to her vehicle, totalling R 2 500 000 – 00; and
7.2. The cost of leasing a vehicle for a period of 3 months, totalling R 30 000 – 00.
8. The Defendant is therefore liable to the Plaintiff in the sum of R 2 530 000 – 00, as evidenced
by the quote annexed hereto marked “B”.
9. On or about 16 January 2024, the Plaintiff caused a letter of demand to be served on the
Defendant via Sheriff. A copy of the letter, together with the sheriff’s return of service, is
annexed hereto marked “C” and “D” respectively.

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10. Despite demand the Defendant has failed and/or refused and/or neglected to pay such sum
or any part thereof.

WHEREFORE the Plaintiff prays for judgment against the Defendant for:

1. payment of the amount of R 2 530 000 – 00.

2. interest on the aforesaid amount at the maximum rates prescribed by law from time to time,
currently being the rate of 11,5 % per annum, calculated from date of service of summons to
date of payment in full.
3. costs of suit.
4. further and/or alternative relief.

Q.1.1 Explain whether or not the correct court has been cited in the combined summons. (4)
If not, you are required to identify the correct court to hear this matter.

Q.1.2 Using the tests for locus standi, evaluate whether or not Marx Reid and VK Saxon (20)
Automobiles (Pty) Ltd have locus standi in the matter.

NOTE: 15 marks are to be awarded for your evaluation and 5 marks are to be
awarded for the skill that you use to answer this question.

Q.1.3 Based on your answer above, it comes to light that both VK Saxon Automobiles (Pty)
Ltd and Marx Reid must be cited as Defendants in the matter. Draft the following
paragraphs only:

Q.1.3.1 The paragraph citing VK Saxon Automobiles (Pty) Ltd as a party. (4)
Q.1.3.2 The paragraph citing Marx Reid as a party. (2)
Q.1.3.3 The paragraph alleging the negligence of the parties. (5)
Q.1.3.4 The paragraph establishing the basis of VK Saxon Automobiles (Pty) Ltd.’s (2)
liability in the matter.

Q.1.4 Based on the addition of the above parties to the draft documents that you (3)
reviewed, draft only the opening sentence of the prayer that you need to amend.

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Question 2 (Marks: 35)

After the service of the combined summons on the parties, you receive returns of service from the
Sheriff. The returns indicate that the summons was served on all three parties, VK Saxon
Automobiles (Pty) Ltd, Marx Reid and Thando Dube.

You receive the following responses by the time that the dies have lapsed:

• Notices of Intention to Defend from both VK Saxon Automobiles (Pty) Ltd and Thando
Dube’s attorneys; and
• Nothing from Marx Reid or his attorney.

Q.2.1 Decide on what must be done next due to Marx Reid’s failure to serve a Notice of (4)
Intention to Defend.

Q.2.2 Taking into account your answer to Q.2.1 above, distinguish between liquidated and (8)
unliquidated demands. As part of your answer, you must indicate whether or not
the claim in terms of the particulars of claim is a liquidated or unliquidated demand.

Q.2.3 Taking into account your answer in Q.2.1 above, advise on what the plaintiff needs (3)
to do to have this particular judgment against Marx heard and who will argue the
matter before court.

Q.2.4 Explain whether or not you will have to serve a Notice of Set Down on Marx. Give a (3)
reason for your answer.

Q.2.5 Assume for this question only that your judgment is granted by the court. Argue for (2)
whether or not the judgment is final and, if not, whether there is a procedure that
Marx can follow to have the judgment removed from his name.

Q.2.6 Devise the procedure relating to the application for rescission of judgment and the (15)
requirement of “wilful default”.

NOTE: 10 marks are to be awarded for the correct content of your answer and 5
marks are to be awarded for the skill that you use to answer this question.

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Question 3 (Marks: 25)

Assume for this question only that you act for VK Saxon Automobiles (Pty) Ltd. You receive the
following counterclaim from Thando Dube’s attorneys:

COUNTERCLAIM

1. The Plaintiff in Reconvention is the third Defendant in convention, and the third Defendant
in Reconvention is the Plaintiff in Convention.
2. The First Defendant is VK Saxon Automobiles (Pty) Ltd, a company duly incorporated under
the company laws of the Republic, with Registration Number 2005/178611/29 and with its
principal place of business being 30 Castle Crescent, Pinetown, KwaZulu Natal.
3. The Second Defendant is Marx Reid (ID number 810325 5126 087), an adult male mechanic,
who carries on business at 30 Castle Crescent, Pinetown, KwaZulu Natal.
4. The Defendant repeats the contents contained in paragraph 4 of the Plaintiff’s Particulars of
Claim, save as is consistent with the attached Plea, and prays that the contents be read as if
specifically incorporated herein.
5. The First Defendant is liable on the basis that the Second Defendant is its employee and at
the time of the collision, the Second Defendant was acting in the course and scope of his
employment.
6. The sole cause of the collision was the negligence of the First and Second Defendants.
The Second Defendant who was driving the vehicle was negligent in the following ways:
6.1. He was driving at an excessive speed;
6.2. He failed to have the headlights on; and
6.3. He failed to keep a proper look out.
7. As a result of the negligence, the Plaintiff in Reconvention has suffered damages in the
amount of R 1 200 000 – 00 [One Million Two Hundred Thousand Rands] in respect of the
damage to her vehicle which is damaged beyond repair. A copy of the damage report is
annexed hereto marked “A1”.
8. Despite demand, which has been annexed hereto marked “B1”, the Defendants have failed,
neglected and/or refused to make payment.

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WHEREFORE the Plaintiff pays for judgment against the First and Second Defendants, jointly and
severally, the one paying the other to be absolved, for the following:

1. Payment of the amount of R 1 200 000 – 00.

2. Interest on the aforesaid amount at the maximum rates prescribed by law from time to time,
currently being the rate of 11,5 % per annum, calculated from date of service of summons to
date of payment in full.
3. Costs of suit.
4. Further and/or alternative relief.

For the first defendant (VK Saxon Automobiles (Pty) Ltd), draft the Plea to Counterclaim, including
all headings and signatures.

NOTE: Use the marking rubric titled APPENDIX A to assist you with answering this question.

END OF PAPER

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APPENDIX A – MARKING RUBRIC FOR QUESTION 3

MODULE NAME: MODULE CODE:

CIVIL PROCEDURE CIPR8411

STUDENT NAME: STUDENT NUMBER:

Marking Criteria Does not meet the required Meets the required standard Partially exceeds the required Greatly exceeds the required
standard standard standard

HEADING 0–1 2–3 4 5

- Correct Court • Format is correct. • Format is partially correct. • Most of the heading is correct • Heading is complete.
- Case Number • Wrong court. • One or two parties only with one or two minor errors. • Formatted correctly.
- All Parties • Wrong parties. mentioned. • All information is correct.
included • No case number. • Court is correct with minor
- Tramlines errors.
PLEADING 0–7 8 – 10 11 – 14 15
- Correct pleas • Poorly formulated. • Some aspects of the pleading • Plea is well formulated with • Plea is excellently formulated.
- No bare denials • Pleas are incorrect. are poorly formulated. minor errors. • Pleas are correct and are
- Formatted • Language is mostly • Pleas are correct with a few • Pleas are correct with one or correctly set out in the
correctly informal with many errors. major errors. two minor errors. required format.
- Appropriate • Language is appropriate with a • Language is appropriate with • Language is appropriate
register and few major errors. one or two minor errors. throughout the pleading.
language
- Date line 0 1–2 3–4 5
- Signature line
- Attorneys
• Information included but • Some information included, • All information included and
address and • Not included at the end.
incorrect. with one or two minor errors. correct.
information
- Reference

FEEDBACK TO STUDENT:

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