High court Procedures Notes 2017

Question 1 (10 marks)

1.1.1 John Brown institutes an action against Paul Naidoo. Paul Naidoo is
served with the summons and he approaches you. He informs you that
he has a good defence. What notice would you serve on the plaintiff.

Notice of intention to defend. (1)

1.2 How many days of grace do you have to do same.

10 court days. (1)

1.3 Draft the notice in 1.1 above. (Omit the heading and the endings)

NOTICE OF INTENTION TO DEFEND

PLEASE TAKE NOTICE that the defendant of (set out a residential or business
address) hereby gives notice of his intention to defend this action.

AND TAKE FURTHER NOTICE that, in accordance with the Rule 19(3) of the rules
of this Honourable Court, the defendant:

Appoints the office of his attorney set out below as the address at which he will
accept service of all notices, process and documents in this action.

________________
ABC Attorneys
Salmon Grove Chambers
Durban

1.4 What happens if the notice in 1.1 above is delivered late?

A notice of intention to defend, which was delivered late, may not be ignored,
provided that default judgment has not been granted yet. (2)

Question 2 (8 marks)

2.1 Rule 32(1) lists four types of claim for which an application for summary
judgment is competent. What are they?

The claims are:

On a liquid document
For a liquidated amount in money
For delivery of specified movable property
For ejectment

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2.2 The affidavit filed in support of the application for summary judgment
must be deposed to by someone who can express an opinion on two
issues. What are they?

The deponent must state that in his or her opinion

The defendant has no bona fide defence to the plaintiff’s action
Notice of intention to defend has been delivered solely for the purpose of
delay (2)

2.3 “One of the ways in which a defendant may successfully oppose a claim
for summary judgment is by satisfying the court by affidavit that he has
a bona fide defence to the claim. Where the defence is based upon facts,
in the sense that material facts alleged by the plaintiff in his summons,
or combined summons, are disputed or new facts are alleged
constituting a defence, the court does not attempt to decide these
issues or to determine whether or not there is a balance of probabilities
in favour of one party to the other.”

Per Corbett JA in Maharaj v Barclays National Limited 1976 (1) SA 418

(A) at 426.

The court enquires into two matters and if satisfied on these matters,
must refuse summary judgment, either wholly or in part, as the case
may be. What are these two matters.

(i) whether the defendant has “fully” disclosed the nature and grounds of his
defence and the material facts upon which it is founded. (1)

(ii) whether on the facts so disclosed, the defendant appears to have, as to either
the whole or part of the claim, a defence which is both bona fide and good in
law. (1)

Question 3 ( 6 marks)

List 6 (six) differences between the action and application procedure.

Action Application
1. Parties are called plaintiff and Parties are called applicant and
defendant. respondent

2. Deals with substantial factual Not such a substantial factual dispute

disputes. that it cannot be dealt with “on the
papers” before the court

Commences with the issuing of a

3. Commences with the issuing of a notice of motion and supporting
summons by the plaintiff founding affidavit

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4. Further pleadings are exchanged by Further affidavits are exchanged
the parties
There is no written “preparation for
5. After the exchange of pleadings a trial” stage.
stage called “preparation for trial”
follows. The motion procedure ends in the
motion court. In principle no oral
6.The action procedure ends in the trial evidence is presented and the parties
court where mainly oral evidence by do not testify.
the parties and their witnesses are
presented

Question 4 (12 marks)

Your client Mr Moon a well known businessman, approaches you. He has

information that the Sunshine Daily Newspaper will publish an article
containing certain information about him. Mr Moon informs you that this
information is defamatory and not true. You call the Editor at the Sunshine
Daily Newspaper and he confirms that they are indeed publishing the article
the following day. Your client instructs you to get a court order to stop them.

4.1 Draft the appropriate notice of motion which should accompany the
application for relief to the High Court. Omit the drafting of the heading,
preamble and ending of the Notice of Motion by restricting your answer
to only the relief you would seek from the court.

(i) That the court condones the non-compliance with the rules of court
(ii) That the court treats the application as urgent
(iii) That the Respondent is interdicted from publishing the defamatory
information in the Sunshine Daily Newspaper;
(iv) Costs
(v) Further and/or alternative relief

4. 2 List in point form the information and allegations which should be

included in the Applicant’s founding affidavit accompanying the notice
of motion you draft in 4.1
 The Applicant’s details
 The Respondent’s details
 That the court has jurisdiction to hear the matter
 That the Respondent is about to publish defamatory information about the
applicant
 That the publishing thereof will cause irreparable harm to the Applicant
 That the Applicant has no other remedy but to approach the Court for the
relief sought
 That the matter is urgent

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Question 5 (9 marks)

Describe (cite) the following parties, as you would, with reference to the
provisions of Rule 17 of the Uniform Rules of Court, have done to the relevant
pleading. (Make up your own facts where necessary.)

5.1 Daniel Steyn, born on 1 December 2000 as plaintiff

The plaintiff is Daniel Steyn, a minor male scholar born on 1 December 2000,
at 30 Church Street, Cape Town, herein assisted by his father and natural
guardian Pete Steyn, an adult attorney of the same address.

5.2 the Minister for Safety and Security as defendant

The defendant is the Minister for Safety and Security who is sued in his
capacity as Minister, Parliament Building Cape Town and whose address for
the purpose in these proceedings is that of the State Attorney, 22 Long Street,
Cape Town, WESTERN CAPE.

5.3 the John Brown Trust (IT2000/08) of which Gary Brown and Ian Long are
trustees.

Gary Brown and Ian Long in their capacities as trustees of the joint trust
(IT2000/08).

Question 6 (5 marks)

You act for the defendant in a High Court Civil action. Your client hands you a
copy of the plaintiff’s combined summons and particulars of claim. You see
the plaintiff claims damages to his motor vehicle which damages occurred as
a result of a collision on 7 March 2005. The summons was issued on 18 August
2008 and served on your client on 22 August 2008.

You establish that the claim has prescribed. Draft the special plea. Restrict
your answer to the wording only. Omit the heading and ending and do not
plead over the merits.

1. The cause of action sued upon arose on 7 March 2005.

2. The plaintiff’s claim constitutes a debt as defined by the Prescription Act 68 of

1969.

3. The summons in this action was served on the defendant on 22 August 2008,
that is more than three years after the claim arose.

4. In the premises and by virtue of section 11 of the Prescription Act 68 of 1969

the plaintiff’s claim has become prescribed.

WHEREFORE the defendant prays for judgment in the defendants favour with costs.

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Question 7 (10 marks)

The attached pleading contains numerous mistakes. Peruse the document

critically and identify eight of the mistakes.

IN THE SOUTH GAUTENG HIGH COURT

HELD AT JOHANNESBURG CASE NO. 1258/2010

In the matter between

A B Botes Plaintiff

Wilhelmina De Jongh 1st Defendant

Youth Forever CC 2nd Defendant

PLAINTIFF’S DECLARATION

1. Plaintiff is A B Botes, an adult male, resident at 8 Johannes Meyer Street,

Bassonia, Johannesburg and employed as a consultant at P & N
Insurance Brokers, 78 Loveday Street, Johannesburg.

2. 1st Defendant is Wilhelmina De Jongh, an adult female, residing at 12

West Street, Pretoria North, Pretoria and employed as a florist at Youth
Forever CC, 325 Schoeman Street, Pretoria.

3. The 2nd Defendant is Youth Forever CC, CK 97/3546, a close corporation,

duly registered in terms of the Close Corporations Act with registered
address at 325 Schoeman Street, Pretoria.

4. The above honourable court has jurisdiction to hear the matter by virtue of
the fact that it has concurrent jurisdiction with the North Gauteng High
Court, Pretoria

5. On the 26th of January 2010 at the intersection of Grosvenor and Church

Streets, Pretoria a collision occurred between a Toyota Corolla motor

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vehicle with registration number PST007GP, the property of the Plaintiff
and a Mercedes CLK 500 motor vehicle with registration number
KTH25GP, driven by the 1st Defendant. The latter vehicle is the property
of the 2nd Defendant who is the employer of the 1st Defendant.

6. As a result of the collision Plaintiff’s vehicle was damaged and the

necessary and reasonable costs of repair amount to R115 000,00.

7. Despite demand 1st and 2nd Defendant refuse or neglect to pay.

WHEREFORE Plaintiff claims judgment against 1st and 2nd Defendant for:

1. Payment of the amount of R115 000,00;

2. Interest at 18,5% from 26 January 2010 to date of payment;
3. Costs as between attorney and client;
4. Further or alternative relief.

Signed at Johannesburg on this 8th day of March 2010.

A Lovemore
Plaintiff’s Advocate

J B Patel
Attorney for Plaintiff
Answer:
1. South Gauteng High Court, Johannesburg does not have jurisdiction

2. Plaintiff’s full names should be stated

3. South Gauteng High Court and North Gauteng High Court do not have
concurrent jurisdiction.

4. No negligence alleged – no cause for action.

5. Ownership of Mercedes irrelevant.

6. Insufficient particulars alleged to found vicarious liability.

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7. No allegation that plaintiff has suffered damages.

8. Insufficient particulars of damages to comply with Rule 18.

9. Costs to reinstate to pre accident condition not alleged.

10. Preamble to prayers wrong. Should be “jointly and severally the one paying
the other to be absolved”.

11. Rate of interest should be 15,5% pa.

12. Date from which interest runs can hardly be date of collision.

13. Attorney and client costs not applicable.

14. Wrong form of summons used. Should have been particulars of claim
(combined summons) not a declaration which follows a simple summons.

QUESTION 8 [42]

You are consulted by the accounting officer of a close corporation, Bell

Bottoms CC. Your client, which manufactures men’s trousers under the label
“Bliss Clothing”, is owed R350 000.00 by The Metro Man, a men’s clothing
boutique, for an order that it fulfilled for the shop in October 2009. The debt
has been unpaid since then.

Your client hands you copies of the debtor’s order form, from which you see
that it is in fact a company, as well as your client’s own tax invoice and
delivery note. It is not clear when the debt should have been paid, but your
client tells you that it is “months ago”.

1 Why do you think it would be prudent for you to demand payment on

your client’s behalf? (1 mark)
As the date on which the debt became due and payable is unclear, it would be
prudent to place the debtor in mora before issuing summons. A demand
achieves this.

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2 Draft the demand. Restrict yourself to the body of the letter, omitting its
heading and ending. (5 marks)
We act for Bell Bottoms CC, which carries on business as Bliss Clothing.

Our instructions are that you are indebted to our client in an amount of R350
000.00 for certain goods which were sold and delivered to you during or about
October 2009, and that, despite such indebtedness being long overdue, it
remains unpaid.

We have therefore been instructed to demand, as we hereby do, immediate

payment of the sum of R350 000.00.

Unless we receive payment by close of business on (date), summons will be

issued against you without further notice.

3 There is no response to your demand. Your instructions are to issue

summons. You decide it would not be competent for you to issue a
provisional sentence summons? Why not? (1
mark)
Your client is not in possession of a liquid document. Without a liquid
document, you cannot use the provisional sentence procedure.

4 Draft the citation of the plaintiff, using your imagination to make up any
additional facts. (3 marks)
The plaintiff is Bell Bottoms CC, a close corporation, duly registered and
incorporated in accordance with the Close Corporations Act of 1984, carrying
on business as manufacturers of men’s shirts under the label “Bliss Clothing”
at 777 Silver Oaks Avenue, Bryanston, Gauteng.

5 Draft the citation of the defendant, using your imagination to make up

any additional facts. (3 marks)
The defendant is The Metro Man (Proprietary) Limited, a company duly
registered and incorporated in accordance with the company laws of the

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Republic of South Africa, carrying on business as The Metro Man Shop, a
men’s clothing boutique, with its principal place of business within this
honourable court’s jurisdiction at Shop 22 Highgate Mall, 331 Rivonia Road,
Sandton, Gauteng.
6 After considering the rules of court, you decide to prepare a simple
summons. Draft the plaintiff’s cause of action and prayer for inclusion
in the summons. (6 marks)
hereby institutes action against the defendant, in which action the plaintiff
claims:

(a) payment of the sum of R350 000.00, being the purchase price that is due,
owing and payable by the defendant to the plaintiff for certain goods that were
sold and delivered by the plaintiff to the defendant during or about October
2009 in terms of an agreement concluded between the parties within this
honourable court’s jurisdiction during or about October 2009 and which said
sum, despite demand, remains unpaid;

(b) interest on the sum of R350 000.00 at the rate of 15,5% per annum a tempore
morae ; alternatively, interest thereon in accordance with law;

(c) costs of suit;

(d) further, other or alternative relief.

7 The action is defended. You advise your client to apply for summary
judgment. Draft the affidavit to be filed in support of the application.
OMIT the heading and ending, restricting yourself to the contents of the
affidavit itself. (6 marks)
I, the undersigned, (Insert deponent’s full name)
hereby make oath and say that:

1. I am the accounting officer of Bell Bottoms CC, the plaintiff in these

proceedings.

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2. I am duly authorised to make this affidavit and to bring this application on the
plaintiff’s behalf.
3. I hereby:
(a) confirm that the facts herein deposed to are within my personal
knowledge and belief;
(b) swear positively that the defendant is indebted to the plaintiff in the
amount and on the grounds set out in the summons;
(c) verify the plaintiff’s cause of action as set out in the summons and the
amounts therein claimed.
4. In my opinion, the defendant has no bona fide defence to this action and
notice of intention to defend has been delivered solely for the purpose of delay.

8 The defendant offers security for your client’s claim instead of

disclosing its defence on oath.You cannot agree the form or the amount
of security. The registrar is asked to do so. You are unhappy with the
registrar’s decision on the form of the security that the defendant must
provide. What, if anything, can you do about this? Briefly explain your
answer. (1 mark)
Nothing. The Registrar’s decision is final and binding on the parties.

9 You are now obliged to file the plaintiff’s declaration. Fundamentally,

the declaration must set out three things. What are they? (3 marks)
The declaration must set out :
1. the nature of the claim
2. the conclusions of law which the plaintiff is entitled to deduce from the
facts stated therein
3. a prayer for the relief claimed.

10 Six weeks after you receive the defendant’s plea, you are served with a
claim in reconvention.What should the defendant’s attorneys have done
before delivering the claim in reconvention? (4 marks)

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The claim in reconvention is out of time. It should have been delivered with the
defendant’s plea. The defendant’s attorneys should have asked the plaintiff’s
attorneys to confirm that their client consents to the claim in reconvention being
delivered out of time. If the plaintiff refuses, the defendant would have to approach
the court for leave to deliver the claim in reconvention at a later stage.

11 The pleadings are closed. What are the two most important things that
you, as the plaintiff’s attorney, should now do? (2 marks)
The plaintiff should immediately:
1. call on the defendant to discover in terms of rule 35 (1)
2. place the matter on the Registrar’s awaiting trial list (or do whatever
else is the local practice to obtain a trial date)
12 The defendant has discovered, but it is obvious that its discovery is
hopelessly inadequate. You follow the correct procedure as outlined in
rule 35 by giving the defendant an appropriate notice. What does this
notice oblige the defendant to do? (3 marks)
A rule 35 (3) notice obliges the defendant to :
1. make certain stated documents available for inspection in accordance
with rule 35 (6)
or
2. state on oath within ten days that such documents are not in its
possession, in which event the defendant must state their
whereabouts, if known.
13 In preparing for trial, you establish that the plaintiff’s declaration needs
to be amended. You draft an appropriate notice of intention to amend. What
is the very least that this notice must contain? (3 marks)

The plaintiff’s rule 28 notice must notify the defendant of its intention to
amend and such notice must:
1. set out particulars of the proposed amendment
2. state that unless written objection to the proposed amendment is
delivered within 10 days of delivery of the notice, the amendment will
be effected.

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14 There is no objection to the proposed amendment. The absence of an

objection means that the plaintiff is entitled to effect the amendment.
How does the plaintiff do so? (1 mark)
By delivering each relevant page of the declaration in its amended form.

5 MARCH 2011

Question 9 [5]

X causes a High Court summons issued from the North Gauteng Division to be
served on Y.

Indicate the dies (days) within which Y must serve and file his notice of
intention to defend in each of the following instances:

9.1 Y resides in the geographical area of the North Gauteng Division. (1)
Ten days / 10 court days
9.2 Y resides outside the geographical area of the North Gauteng Division
but within 100 miles (160 kilometres) from the seat of the court (1)
14 days / 14 calendar day.
9.3 Distinguish between the modes of calculating the respective days
referred to in your answers to 9.1 and 9.2 above. (2)
In 9.1 court days in terms of the rules exclude Saturdays, Sundays or public
holidays; whilst in 9.2 the days are calculated in terms of the Interpretation
Act and includes Saturdays, Sundays and public holidays.
a. Y is cited in his official capacity as Minister of Justice and
Constitutional Development. (1)
20 days / 20 court days

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Question 10 [5]

In terms of the Institution of Legal Proceedings against certain State Organs

Act 40/2002, action may not be instituted against an organ of state unless prior
notice was given to the state organ.
10.1 Within which time period from the date of the debt arising must such
notice be given? (1)
6 months
10.2 What must the notice referred to in 2.1 above set out?
(2) The facts giving rise to the debt and such particulars of such debt as
are within the knowledge of creditors.
10.3 How many days must lapse after the notice was served on the organ of
state before process may be served on it? (1)
30 days
10.4 Does the Act apply in respect of debts arising from contractual liability
(1)
Yes

Question 11 [12]

You act on behalf of the plaintiff. The defendant enters appearance to defend
the matter, whereupon you receive instructions to apply for summary
judgment.

11.1 In respect of which liquidated demands may summary judgment be

applied for? (4)
Claims based on liquid documents, liquidated amounts, delivery of specified
movables and eviction / ejectment.
11.2 Using your own facts in as far as it is necessary, draft applicant’s
affidavit in support of the application. You may omit any headings as
well as the commissioner of oaths attestation clause. (6)
“I, the undersigned,
(name)
do hereby make oath and say: (1)

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I am the plaintiff in this case. I have personal knowledge of the facts contained
in the summons.
(1)

I confirm the cause of action and the amount claimed in the summons
(2)

I verily believe the defendant has no bona fide defence to the action and has
delivered notice of intention to defend solely for purposes of delay.”
(2)

Note to marker: No additional evidence may be tendered.

11.3 Briefly discuss the two avenues open to the defendant, should he wish
to resist the application. (2)
File an opposing affidavit (setting out a bona fide defence) (1)

Furnishing security for any order the court may make, (e.g. amount claimed
plus costs (1)

Question 12 [9]

12.1 In terms of Rule 18, a party who in his pleadings, relies upon a contract
should make certain averments regarding the contract. Bearing the
above in mind and using your own facts, improve on the following
paragraph as contained in particulars of claim by redrafting it.
“The parties entered into a written agreement” (5)
On the (date) (1) and at (place) (1) the plaintiff (e.g. acting personally (½), and the
defendant (e.g. duly represented by Smith (½) entered into a written agreement, a
copy of which is attached hereto (1) marked annexure “A” (1)
12.2 Likewise, in an action founded in delict, Rule 18 requires certain
necessary detail to be pleaded regarding the delict. What are these? (4)
The delict complained of(1) date when (½) , the place where (½) and the manner in
which the delict was committed (1) as well as the amount of the damages (1)
claimed.

Question 13 [5]

The Anton Piller order is obtained by way of a rule nisi issued on an ex parte
application and aims to preserve evidence.

13.1 Which are the necessary averments an applicant wishing to obtain such
an order must make in his affidavit? (5)

The applicant has a cause of action he wishes to pursue against the respondent. (1)

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The respondent has in his possession specific and specified documents or things
that constitute vital evidence. (2)

There is a real and well-founded fear that this evidence may be hidden or destroyed
or lost by the time the matter comes before court or at the stage of discovery.

Question 14 [5]

Your client hands you a summons which was served on him on the 14th of
February 2011. The cause of action arose from a motor vehicle collision that
happened on the 10th January 2008.

14.1 Draft the special plea that you will serve and file. Do not plead over on
the merits. You may omit the heading and the particulars of plaintiff’s
and defendant’s attorneys. (5)

The plaintiff’s claim is based on a motor vehicle collision that occurred on 10 January
2008 the plaintiff claim because due and payable on …………. (1)

The summons herein was served on 14 February 2011 (1) which is more than 3
years after the collision / plaintiff’s claim became due. (1)

The plaintiff’s claim has therefore prescribed in terms of the Prescription Act /
relevant legislation. (1)

Wherefore the defendant prays that the plaintiff’s claim be dismissed with costs. (1)

Question 15 [9]

Your client hands you a combined summons that was served on him. The
relevant portion of the particulars of claim relating to the cause of action is set
out hereunder. For purposes of answering the question, you may assume that
the parties were cited correctly, that the court has jurisdiction to entertain the
matter, that the quantum of the claim for damages was set out correctly and
that the relevant relief was sought in the prayers.

“
4.

At all relevant times that plaintiff was the driver of a Porsche vehicle with
registration number ABC123GP.

5.

On the 1st of January 2010 and at the intersection of Black and Blue Streets,
Johannesburg, a collision occurred between the vehicle driven by the plaintiff

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and a BMW vehicle with registration number XYZ456GP, driven by the
defendant.

6.

As a result of the aforementioned collision, plaintiff suffered damages in the

amount of R310 000, being the fair and reasonable costs of repair of the
vehicle restoring it to its pre-collision condition …
“

15.1 Can the defendant raise any formal objection against the summons?
Explain briefly. (2)
Yes, an exception can be raised on the basis of the particulars of claim not
disclosing a cause of action.

15.2 Draft the necessary notice, application or pleading to give effect to your
advice. (7)
NOTICE OF EXCEPTION

Please take notice that defendant hereby raises an exception against the
plaintiff’s particulars of claim in that it
(1)

Fails to indicate that the plaintiff has locus standi as there are no allegations
that the plaintiff is the owner of vehicle and thus personally sustained the
damages claimed.
(2)

It is not alleged that the damages were caused by the negligence of the
defendant. (1)

Wherefore the plaintiff prays that the exception be upheld (1) that the
plaintiff’s particulars of claim be set aside with costs (1) and that the plaintiff
be given leave, if so advised, to file amended particulars of claim within one
month (1).

20 AUGUST 2011

Question 16 [15 marks]

1.1 Rule 18 of the Rules of The High Court relates to pleadings generally.
With regard to matters in which a Plaintiff sues for damages for bodily
injuries, the Rule contains certain specific requirements, which must be
complied with in the particulars of claim.
List these requirements. (5)

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Any five of the following:

 Set them out in such manner as will enable the Defendant to reasonably
assess the quantum thereof.
 Date of birth.
 Nature and extent of injuries.
 Nature, effects and duration of the disability.
 Claim separately: medical / hospital and other similar expenses.
 Pain and suffering, stating whether temporary or permanent.
 Disability in respect of the earning of income, stating earnings lost to date
and how amount is made up.
 The enjoyment of the amenities of life, giving particulars.
Stating whether the disability concerned is temporary or permanent. Disfigurement
with full description thereof.

1.2 What is the effect of non-compliance with Rule 18? (1)

A Summons not complying with the provisions of Rule 18 is deemed to be an
irregular step in terms of Rule 30.

1.3 You act for a Defendant who is served with a summons, which does not
comply with the provisions of Rule 18. List the steps that you will take to
protect your client’s rights as well as time limits within which these
steps should be taken. (4)
Notice must be given to all parties specifying the particulars of the irregularity,
this may only be done if the applicant has taken no further steps, and has
within ten (10) days of becoming aware of the step, by written notice, afforded
his opponent an opportunity of removing the cause of complaint.

1.4 Draft the document which is the last step in the process, assuming that
the Plaintiff has not taken steps to rectify the defect. No supporting
affidavit is required. Use such imaginary facts as may be necessary to
draft your answer. (5)

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BE PLEASED TO TAKE NOTICE that Application will be made to the above
Honourable Court on Tuesday the…………….day of…………………2011 at
10:00 or so soon thereafter as Applicant’s Counsel may be heard for an Order
in the following terms:

1. Striking out the Plaintiff’s Summons as an irregular proceeding in terms of

the provisions of Rule 30.
2. Costs of this Application.
3. Further and/or alternative relief.

KINDLY ENROL the matter accordingly.

Question 17 [13 marks]

Your client, Mr John Jones, informs you that he has sold and delivered goods
to the value of R500 000 to one Helmutt Schröder, a businessman resident and
domiciled at 5 Hochstrasse, Berlin, Germany. The purchase price is due and
payable but has not been paid. You inform Jones that our courts do not have
jurisdiction to entertain the claim. Two weeks later your client informs you that
the German is owed an amount of R120,000 by a South African company ABC
(Pty) Ltd which trades in Pretoria. This amount is due and payable.

You accordingly advise your client that you will now proceed with an
application to court.
1 What are the initial proceedings you propose instituting called? (1)

An ex-parte application to found jurisdiction.

2 Do you use the long or the short form of Notice of Motion to institute the
proceedings? (1)
The short form

3 On whom do you serve the Notice of Motion? (1)

It is not served.

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4 Who will sign the Notice of Motion? (1)
An attorney. If the answer refers to the right to appear in terms of
Section 4(2) of Act 62 of 1995 no mark should be given.

5 Draw the founding affidavit including all the allegations necessary to

obtain an order. Include the heading as well as the relief claimed. (9)
The following points should be dealt with:
1. Full names, status and address of Applicant (1)
2. Full names, status and address of Defendant (1)
3. That Defendant is a peregrinus of the Republic of South Africa (1)
4. That Applicant has a prima facie cause of action against Defendant (by
attaching pro forma particulars of claim) (1)
5. That Defendant is owed a debt within the jurisdiction of the Court and
that the debt is due and payable and capable of attachment. (1)
6. That Applicant intends instituting action (1)
7. The Prayer is for an order calling on ABC (Pty) Ltd to show cause why
all amounts owing by the debtor to the Defendant should not be
attached to found jurisdiction for Applicant’s claim; for alternative relief
and costs. (2)

Question 18 [8 marks]

You act for a shopkeeper who is being sued for damages in the High Court
arising from personal injuries allegedly suffered by a plaintiff who slipped and
fell in your client’s shop.

18.1 List the document that the plaintiff’s attorney will have to file before the
hearing in order to be able to lead evidence to establish the quantum of
the plaintiff’s claim. When should it be filed? (4)
Give notice not later than 15 days before the hearing of intention to call a
medical practitioner [expert] to give evidence and not later than 10 days’
before the hearing supply a summary of his proposed evidence.

Note to examiner: These 2 notices may be rolled into one.

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18.2 Your client tells you that he is suspicious of the integrity of the medical
practitioner that the plaintiff has consulted and he suspects that the
practitioner and the plaintiff may have conspired with each other to
exaggerate the severity of the plaintiff’s injuries.
What steps can you take? (2)
Give notice that plaintiff is required to submit to medical examination by a
medical practitioner nominated by defendant.

18.3 Your client tells you that the floor in the part of the shop in which the
plaintiff fell has since been altered, but before it was altered he took
photographs of it.

You feel that if the court were to see the photographs it would show that
the plaintiff’s claim is improbable. What steps would you take to use the
photographs in the conduct of your client’s case? (2)
Give notice not less than 10 days before hearing of intention to use the
photographs.

Question 19 [4 marks]

You are approached by Mr Jan de Wet, the managing director of ABC (Pty) Ltd.
He informs you that he entered into a written agreement on behalf of the
company with Mr Joe Crocks, a debt collector. You notice that in terms of the
agreement Crocks would collect monies due to the company. For this he
would receive 10% of all monies collected. A list containing names, addresses
and amounts due was handed to him. It now appears that the debt collector
did in fact collect the money or a part thereof from the debtors or at least from
some of them. Despite demand he has failed to account to your client or to pay
any money over to them.

19.1 Draft the prayers to the particulars of claim. You need not draft the
heading or the particulars of claim. (4)
 An order that the defendant renders a full account for the period _____ to
_____ supported by documentary proof. (1)

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 Debatement of the said account. (1)
 Payment of the amount that the court finds due. (1)
 Interest of 15,5% per annum a tempore morae (1)
 Costs of suit. (1)

Question 20 [4 marks]

Your client instructs you to institute action based on delict, against two
defendants who are held liable for his damages in the amount of R400,000.

20.1 Draft the preamble to the prayers as well as the prayers that you will
include in the particulars of claim. Do not draft the summons or the
particulars of claim. (4)
Plaintiff claims against First and Second Defendant, jointly and severally (1),
the one to pay the other to be absolved (1) payment of:

 R 400,000
(½)
 Interest at 15.5% per annum a tempore morae
(½)

 Costs
(½)
 Further and alternative relief
(½)
Question 21 [5 marks]

Which are the correct next procedural steps that you must take in each of the
following circumstances?

21.1 You caused a simple summons to be issued and served on the

defendant. He failed to enter appearance to defend and the dies have
expired. (1)

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Apply for default judgment

21.2 The plaintiff failed to file his plea to your client’s claim in reconvention
and the dies have expired. (1)
Serve a notice of bar

21.3 Your client wishes to sue for divorce and her spouse is residing at an
address in England. (1)
Apply for an order authorising edictal citation

21.4 You entered an appearance to defend on behalf of your client. Your

instructions are that the plaintiff’s claim has prescribed. (1)
Serve and file a special plea

21.5 The opposing party in a High Court action disputes your mandate to act
on behalf of your client. (1)
Lodge a power of attorney

30 AUGUST 2012 same as 2010 SUPPLEMENTARY EXAMINATION 7 SEPT 2010

3 MARCH 2012

QUESTION 23 [10]

Your client Jim Jones, a major male pensioner hands you a summons issued
from the Northern Cape Division, Kimberley and served on him by the sheriff
at his place of residence, 15 Church Street, Pretoria. The particulars of claim
state inter alia: “On the 3rd of November 2009 and at the premises of the Grand
Hotel, Nelson Mandela Drive, Pretoria the defendant unlawfully assaulted
plaintiff by hitting him with a walking stick”.

You further notice that in the summons the defendant is called upon to enter
appearance to defend, should he so wish, within 21 days from date of service
of the summons. Subsequent enquiries show that your client had received the
summons nearly 2 months ago.

23.1 Does the time period of 21 days refer to court days or calendar days? (1)

Calendar days

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23.2 When should a defendant be granted 21 days to defend a matter? (2)

Where a defendant resides outside the area of jurisdiction of the court from
which the summons is issued and the distance between the seat of the court
and the address where the summons is served is more than 160 kilometres.

23.3 Your client is clearly out of time but would you still be able to enter
appearance to defend? Briefly explain. (2)

Yes, provided plaintiff has not yet obtained a default judgment.

23.4 You inform your client that you intend to file a special plea in this
matter. Draft the special plea that you have in mind. You may omit the
heading and ending. (5)

“Defendant denies that this honourable court has jurisdiction to hear

plaintiff’s claim for damages as
1) the delict complained of allegedly occurred at Grand Hotel, Nelson
Mandela Drive, Pretoria which is outside the area of jurisdiction of the
court.
2) the defendant resides at 15 Church Street Pretoria, an address which
is outside the jurisdiction of the court.

Wherefore defendant prays that plaintiff’s claim be dismissed with costs.

QUESTION 24 [15]

Your client Shaheda Ismael informs you that she bought and received certain
goods from ABC Supplies (Pty) Ltd and that the purchase price of R1 million is
due and payable. However she has now received a letter and supporting
documents from XYZ Credit (Pty) Ltd informing her that it lays claim to
payment of the amount on the grounds that the claim has been ceded to XYZ
Credit (Pty) Ltd. ABC denies the existence of the cession. Your client is willing
and able to pay but is uncertain to whom of these claimants payment must be
made.

24.1 What will you do to safeguard your client’s interest? (1)

I will draft an interpleader

24.2 Draft the necessary notice to give effect to your advice. (6)

__________________________
__________________ DIVISION

Case No …….

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In the matter between

Straheda Ismael Applicant

and

ABC Goods (Pty) Ltd First Claimant

And

XYZ Credit (Pty) Ltd Second Claimant

_______________________________________________________________

INTERPLEADER NOTICE
_______________________________________________________________

Please take notice that Shaheda Ismael (Applicant) has today paid into Court in
terms of Rule 58 an amount of R1 million to which first and second claimants are
making adverse claims.

The applicant hereby calls upon the first and second claimants to deliver particulars
of their claims within a period of fifteen days from date of service of these papers on
them.

Applicant furthermore hereby notifies the first and second claimant that she will apply
to court for a decision as to her liability or validity of the respective claims at the date
to be fixed by the Registrar, not being less than 15 days from the date as specified
above for the delivery of claims.

Take further notice that the applicant’s affidavit attached hereto will be used in
support hereof.

Dated at ……… on this ….. day of 2012.

Applicant Attorney

To: The Registrar

To: First Claimant
To: Second Claimant

24.3 Draft the supporting affidavit. You may use such additional facts as you
deem necessary.
(8)
AFFIDAVIT

Marks can be awarded for:

 The introductory paragraph of the affidavit

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 Correct citation of the applicant
 Correct citation of the 1st and 2nd claimant
 An averment that the court has jurisdiction to entertain the matter
 A logical exposition of the facts
 Attachments mentioned and marked, e.g. Annexure A: letter received from 2nd
claimant.

The following allegations must be addressed in the affidavit:

 Claimant has no interest in the subject matter of the dispute (other than for
charges and costs)
 Does not collude with any of the claimants and
 Is willing to dealt with or act with regard to the subject matter of the dispute as the
court may direct
 Applicant has paid the money to the registrar.

QUESTION 25 [15]

Your client wishes to institute action against a police officer as well as the
Minister of Police for damages sustained as a result of an unlawful assault by
the officer.

25.1 Advise your client with regard to any preliminary statutory requirements
regarding what must be complied with before such action may be
instituted. In your answer refer to relevant time periods as well as the
contents of the preliminary statutory requirement. (5)

 No legal proceeding shall be instituted against an organ of state unless prior

notice has been given or the organ of state has consented in writing to the
institution of legal proceedings.

 Such notice must be given within six months from the date when the debt
became due.

 Such notice shall set out the particulars of the debt and the facts giving rise to
such debt.

25.2 What would you have to allege in your particulars of claim to hold the
Minister liable? (1)
That the police officer acted within the course and scope of his employment.

25.3 How many days should you allow the Minister to enter appearance to
defend the matter? (1)

20 Court days

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25.4 A part of your client’s claim is for damages for personal injuries. What
must be specified in this regard (Rule 18(10) applies). (5)

Rule 18(10) provides that a plaintiff suing for damages shall specify: (5)
 His date of birth
 The nature and extent of the injuries
 The nature, effects and duration of the disability alleged to give rise to
such damages and Shall as far as practically state separately what
amount, if any, is claimed for:
o Medical costs, hospital and similar expenses and how these costs
and expenses are made up
o Pain and suffering, stating whether permanent or temporarily and
which injuries caused it
o Disability in respect of:
 The earning of income (stating the earnings lost to date and
how the amount is made up) and the future estimated loss
and the nature of the work the plaintiff will in future be able to
do
 The enjoyment of amenities of life (giving particulars) and
stating whether the disability is temporary or permanently
and
 Disfigurement, with a full description thereof and stating
whether it is temporary or permanent.

25.5 Draft the preamble to the Plaintiff’s prayers. (3)

Jointly and severally, the one to pay the other to be absolved.

QUESTION 26 [10]

Your client, John Palmer entered into a written agreement with James Smith in
terms of which he bought Smith’s farm. A week before Palmer is to take
occupation of the property he receives a letter from Smith’s attorney refusing
him occupation. In the letter Smith’s attorney states: ”the contract does not
contain a clause on occupational rental and that occupational rental is a
material and essential term of an agreement of sale of land. “He consequently
argues that Smith is not bound by the “Contract”. Perusing the contract you
note that nothing was stated about occupational rental.

Palmer wishes to obtain an interdict directing Smith to honour the agreement

and to allow him to take occupation of the property.

You are aware of the fact that either the action or the application procedure
can be used to obtain the relief sought, depending on whether you can foresee
a real dispute of fact.

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26.1 With regard to the above set of facts, will you use the action or the
application procedure. Motivate your answer. (3½)

As both forms of procedure can be used, candidates should consider if a real

dispute of fact can be foreseen. In this case both parties agree that nothing
was said about occupational rental. The dispute is whether occupational
rental (legally speaking) is one of the essential and material clauses in an
agreement of sale. This is a legal dispute and therefore application procedure
can be sued and will be used as it provides a speedier and cheaper remedy.

26.2 Distinguish between the requirements for interim and final interdicts.
(3½)

Interim interdict:
 Prima facie right (½)
 Irreparable harm (½)
 Balance of convenience must favour applicant (½)
 No alternative remedy (½)

Final Interdict:
 A clear right (½)
 A actual injury or at least threatened violation of applicant’s rights (½)
 No alternative remedy (½)

26.3 Assume the court at the hearing of the matter finds that there is a real
dispute of fact but that Palmer could not have foreseen it. What orders
could the court make to facilitate resolving the issue? (2)

If the dispute is simple and a speedy resolution is desirable, the court may
refer the matter for oral evidence. (1)

If the dispute is comprehensive or complicated the court may refer the matter
to trial with appropriate directions as the exchange of pleadings.

26.4 What would the court order if it finds there is a dispute of fact and that
Palmer should have foreseen it / was aware of it? (1)

The court may dismiss the application.

QUESTION 27 [ ]

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You are instructed by Mr Gontse Baloyi who practises as an advocate at High
Court Chambers, 220 Madiba Street, Pretoria, to issue summons from the High
Court North Gauteng, Pretoria against the Minister of Police and against
Captain John Jones. Advocate Baloyi is the duly appointed curator ad litem of
Mr Ben Botha, an unemployed major male residing at 15 Florence Street,
Colbyn, Pretoria. The facts of the matter are as follows: On the 11 th of April
2011 and at the intersection of Black and Blue Streets, Pretoria, a collision
took place between a SAPS vehicle with registration number ABF 472 GP,
driven by Captain Jones who was on his way to a meeting with the newly
appointed Commissioner of Police, and a Ferrari with registration number XYZ
792 GP, the property of Mr Botha. From the facts presented it is clear that the
collision was caused by the negligent driving of Captain Jones who failed to
stop at a red traffic light, drove too fast in the prevailing circumstances and
failed to consider the rights of other road users. Mr Botha sustained serious
injuries and according to an assessors report, his Ferrari which caught fire
after the accident had a pre-collision value of R712 000.00 and is not
economically repairable i.e. “is a complete write off”. Using such additional
facts as may be necessary attend to the following:
27.1 Draft the particulars of claim in accordance with your instructions. You
may omit the heading. (16)
The plaintiff is Gotse Baloyi NO, a major male advocate practising as such at High
Court Chambers, 220 Madiba Street, Pretoria, Gauteng, acting in his capacity as
duly appointed curator ad litem for Ben Botha, an unemployed major male residing at
15 Florence Street, Colbyn, Pretoria, Gauteng. (2)
2
The first defendant is the Minister of Police in his official capacity, who accepts
service at the premises of the State Attorney’s office … (1)
3
The second defendant is John Jones, a major male police officer employed as such
by the South African Police Services and whose full and further particulars are
unknown to the Plaintiff. (1)
4

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At all relevant times hereto the second defendant was a member of the SAPS and
employed by the first defendant in his official capacity. (1)
5
At all relevant times hereto the first defendant was vicariously liable for the unlawful
acts or omissions of the second defendant who acted within the course and scope of
his employment duties with the first defendant. (1)
6
The plaintiff has complied with the provisions of sections 3(1) and 3(2) of the
Institution of Legal Proceedings against certain State Organs Act 40 of 2002 in
respect of the claim against the first defendant. (1)
7
The whole cause of action arose within the jurisdiction of the above honourable
court. (1)
8
On the 11th of April 2011 and at the intersection of Black and Blue Streets, Pretoria,
a collision occurred between the vehicle with registration number ABF 472 GP driven
by the second defendant who was at the time acting within the course and scope of
his duties with the first defendant, and the vehicle with registration number XYZ 792
GP which was the property of the plaintiff / Botha. (2)
9
The aforementioned collision was caused by the sole negligence of the second
defendant who was negligent in one or more of the following ways: (1)
9.1 He failed to stop at a red traffic light
9.2 he failed to keep a proper lookout
9.3 he drove too fast in the prevailing circumstances
9.4 he failed to regard the rights of other road users.

10
As a result of the aforementioned, Plaintiff suffered damages in the amount of
R712 000.00 being the pre-collision value of the vehicle of the plaintiff, which vehicle
was not economically repairable. (1)
11

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Despite lawful demand, the first and second defendants neglected or refused to pay.
(1)
12
Wherefore the plaintiff prays for judgment against the first and second defendants,
jointly and severally, the one to pay the other to be absolved for: (1)
1 Payment of the amount of R712 000.00 (1)
2 Interest at 15.5% per annum a tempore morae (½)
3 Costs of suit (½)

27.2 Suppose appearances to defend are entered – would you be able to

apply for summary judgment? Briefly motivate your answer with reference
to the claims upon which summary judgment can be applied for.
(5)
No, as the claim is for damages i.e. an unliquidated amount. Summary
judgment may only be applied for in the following circumstances:

a) claims based on a liquid document

b) claims for payment of a liquidated amount of money
c) claims for delivery of specified movables
d) claims for eviction

27.3 You intend to use four photographs of the accident scene at the trial.
Draft the wording of the notice that you will serve on the defendants’
attorneys. You may omit the heading and particulars of the attorneys.
(5)
Kindly take notice that the defendant intends to present the following
documents as evidence in the trail of the above matter:
four colour photographs of the accident scene copies of which are attached
hereto and marked annexures A1, A2, A3 and A4;
The originals may be inspected at the office of the defendant’s attorneys on
weekdays between 8h00 to 16h00.
Take further notice that the plaintiff is requested to indicate within 10 days
from this notice, whether he has any objection to the admission into evidence
of the said photographs, failing which the said photographs will be tendered
as evidence without further proof thereof.

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27.3.1 If you received instructions to institute a further action for damages
based on the personal injuries sustained by Ben Botha, who would you
cite as defendant? (1)
The road accident fund

27.4 Rule 18(10) provides that a plaintiff suing for damages for personal
injury shall specify certain aspects with regard to the damages suffered, a
number of things. Name these aspects.
(5)
His date of birth (½) The nature and extent of his injuries
The nature, effect and duration of the disability (½) alleged to give rise to
such damages and shall as far as practically state separately what
amount, if any, is claimed for:
Medical costs, hospital and similar expenses (½) and how these costs and
expenses are made up (½); Pain and suffering (½), stating whether
permanent of temporarily and which injuries caused it (½); Disability in
respect of: The earning of income stating the earnings lost to date and
how the amount is made up (½) and the future estimated loss and the
nature of the work the plaintiff will in future be able to do (½); The
enjoyment of amenities of life (given particulars) and stating whether the
disability is temporary or permanently (½) and Disfigurement (½), with a
full description thereof and stating whether it is temporary or permanent
(½).

27.5 Which procedural remedies would the defendants’ attorneys have at

their disposal in each of the following instances:

27.5.1 Your particulars of claim fail to disclose a cause of action (1/2)

Exception

27.5.2 You used a simple summons (1/2)

Irregular proceeding
27.5.3 You issued summons from the wrong court (1/2)

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Special plea or exception where the lack of jurisdiction shows from the
pleadings
27.5.4 Your client’s claim has become prescribed (1/2)
Special plea
27.6 After the close of pleadings you served a request for further particulars
to enable you to prepare for trial on the defendants’ attorneys. They
failed to furnish the particulars. Draft only the notice of motion that you
will file to compel them. You may omit the heading and particulars of
the attorneys. You also do not need to draft the affidavit.
(4)
Question 28

You act for the defendant in a defended high court action.The trial date is in 6
weeks time.Shortly after the close of pleadings you served a request for
further particulars on the plaintiff's attorney.He has failed to respond thereto
as well as to a letter that you wrote to him reminding him of his failure to
furnish the particulars.You are being prejudiced in your preparation for trial
and decide to launch an interlocutory application to court for an appropriate
order.

28.1 Draft the form of order prayed for in your notice of motion.Omit the
heading, pre-amble and ending of the notice of motion.Begin your answer with
the words "for an order in the following terms" and restrict your answer to the
you want the court to grant to your client.(4)

For an order in the following terms:

that the respondent/plaintiff is directed to furnish his reply to the request for further
particulars which was served and filed on (date) within 5 days of service of the order
of this Honourable Court on the attorneys for the defendat/applicant that the
plaintiff/respondent pays the costs of this application that the defendant/applicant is
granted such further or alternative relief as the honourable court may deem fit

28.2 Draft the affidavit which you will file in support of the application.You may
omit the heading and the commissioner of oaths' attestation clause.Do not
repeat the relief which the defendant seeks in the notice of motion in the
affidavit. (8)

I the undersigned, (name)

do hereby make oath and say that
1.
I am a major male/female attorney practicing under name and style of ...
2.
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The facts contained herein are within my personal knowledge and belief, unless
stated to the contrary and are true and correct
3.
I am attorney of record for the defendant herein.
4.
After the close of pleadings the attached request for further particulars annexure "A"
was served on the plaintiff's attorneys on ... and the court is respectfully referred to
their acknowledgment of receipt hereof
5.
As no response was received to the said notice I wrote a letter to Plaintiff's attorney
on the (date) putting him on terms for filing of the particulars.
The court is referred to annexure "B" hereto being a copy of said letter.
6.
No response was received to this letter
7.
The trial date herein is six weeks away/the matter is set down for trial on. (date)

8.
The defendant is being prejudiced in his preparation for trial by the non delivery of
the particulars
9.
(wherefore I pray for an order in terms of the notice of motion)

QUESTION 29 [9]

Your client hands you a summons that was served on him. The relevant
portion of the particulars of claim relating to the cause of action is set out
hereunder. For purposes of answering the question, you may assume that the
parties were cited correctly, that the court has jurisdiction to entertain the
matter, that the quantum of the claim for damages was set out correctly and
that the relevant relief was sought in the prayers.
4.

At all relevant times that plaintiff was the driver of a Porsche vehicle with
registration number ABC123GP.

5.

On the 1st of January 2010 and at the intersection of Black and Blue Streets,
Johannesburg, a collision occurred between the vehicle driven by the plaintiff
and a BMW vehicle with registration number XYZ456GP, driven by the
defendant.
6.

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As a result of the aforementioned collision, plaintiff suffered damages in the
amount of R310 000, being the fair and reasonable costs of repair of the
vehicle restoring it to its pre-collision condition …
29.1 On which two grounds can an exception be raised against summons?
(2)
Vague and embarrassing (1)
and failure to disclose a cause of action (1)
29.2 Draft the exception that you will raise against the particulars of claim.
(7)
NOTICE OF EXCEPTION

Please take notice that defendant hereby raises an exception against the
plaintiff’s particulars of claim in that it (1)

Fails to indicate that the plaintiff has locus standi as there are no allegations
that the plaintiff is the owner of vehicle and thus personally sustained the
damages claimed. (2)

It is not alleged that the damages were caused by the negligence of the
defendant. (1)

Wherefore the plaintiff prays that the exception be upheld (1) that the
plaintiff’s particulars of claim be set aside with costs (1) and that the plaintiff
be given leave, if so advised, to file amended particulars of claim within one
month (1).

QUESTION 30 [20]

In a simple summons issued from the High Court North Gauteng in Pretoria
the plaintiff, cited as J.P. Baloyi, a minor male student residing at 12 Nelson
Mandela Avenue, Pretoria institutes action against a defendant, cited as Jim
Jones, an adult male teacher residing at 15 Adderley Street, Cape Town.

The cause of action reads:

1. For payment of the amount of R 312 000 being the fair and reasonable
costs of repair of vehicle XYZ 123 GP, driven by the plaintiff and damaged
as a result of a collision with vehicle CA 157, the property of the
defendant. The collision took place at the intersection of Black and Blue
Streets, Cape Town on the 12th of January 2012.

2. Interest at the rate of 18.5% per annum from 12 January 2012 to date of
payment.

3. Costs on the scale as between attorney and client.

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4. Further or alternative relief.

With reference to the above, identify the ten errors that you can find and briefly
motivate your answer.
1. Wrong form of summons used. As the claim is for damages, the combined
summons (Form 10) should have been used, not the simple summons (Form 9).

2. The North Gauteng Division of the High Court does not have jurisdiction as the
defendant resides in Cape Town and the cause of action (collision) occurred in
Cape Town.

3. The plaintiff is not cited correctly. Full names should be used.

4. The plaintiff lacks locus standi. He is a minor who and should be assisted by a
parent/guardian (or if applicable, a curator ad litem).

5. The plaintiff should be cited in his capacity as owner of the vehicle or the
averment should have been made that the risk of damage or loss of the vehicle
had passed on to him.

6. The defendant’s ownership of the vehicle is irrelevant. His negligent driving or

vicarious liability should be alleged, i.e. the summons to disclose a cause of
action.

7. The interest rate of 18,5% should be 15,5% in terms of the Prescribed Rate of
Interest Act 1975.

8. Interest on a liquidated debt can only be claimed from date of service of

summons, alternatively from the date set for payment in a prior letter of demand.

9. Attorney and client costs cannot be claimed unless contractually agreed to.

10. The damages claimed should be set out in such a manner that the defendant can
reasonably assess the quantum thereof.

Note : 1 mark for each error identified and 1 mark for each correct motivation. Use
your discretion.

QUESTION 31 [24]

You are Sipho Madlingozi, an attorney in partnership with Thabo Ngomezulu,

practising under the name and style of Madlingozi Attorneys at Suite 105, Absa
Building, Church Street, Bloemfontein. During the period February to
November 2012 your firm attended to various commercial matters, duly
instructed thereto by John Smith and his brother Jim Smith, both auditors, in
their capacity as the trustees of the Smith Family Trust.

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You have, despite rendering accounts for the outstanding amount of R 350 000
and a letter of demand calling on them to pay on or before the 30 th of January
2013, not received any response. You now decide to issue summons.

31.1 Is your claim based on:

a) Liquidated demand
b) Unliquidated demand
c) Liquid document
d) Damages

Liquidated demand (payment of a debt).

31.2 Both you and your partner, Thabo, happened to be married in

community of property. Would you, in terms of section 17(1) of the
Matrimonial Property Act 88 of 1984, need your respective spouses’
permission to sue? Briefly motivate your answer. (2)

No, one of the exceptions to the rule (requiring permission from a spouse), is
regarding “any matter relating to a spouse’s profession, trade or business.

31.3 Using such additional facts as you may require, draft the citation of the
plaintiff/s. (2)

The plaintiff is Madlingozi Attorneys, a firm of attorneys practising as such at

Suite 105, Absa Building, Church Street, Bloemfontein.

31.4 Using such additional facts as you may require, draft the citation of the
defendant/s. (2)

First defendant is Johan Smith, an adult male auditor of (address) in his

capacity as trustee of the Smith Family Trust. Second defendant is Jim
Smith, an adult male auditor of (address) in his capacity as trustee of the
Smith Family Trust.

31.5 Draft the cause of action only. Include the plaintiff’s prayers, but omit
the heading and other standard form wording. (6)

Against first and second defendants, jointly and severally, the one paying the
other to be absolved for payment of the amount of R350,000 being the
amount which is due, owing and payable by the defendant to the plaintiff for
professional services rendered to the defendants during or about the period
February 2012 to November 2012 and which amount despite demand
remains unpaid, interest at the rate of 15,5% per annum a tempore
morae, costs of suit further or alternative relief.

31.6 No appearance to defend is entered and the dies have expired. What is
the next procedural step that you will take? (1)

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Apply to the Registrar for default judgment.

31.7 With reference to your answer in 31.6 above, draft the relevant
document. (6)

The plaintiff hereby applies that

a) summons having been properly served on the first defendant on (date)

and on the second defendant on (date).
b) the time for entering appearance having expired on (date) and date
respectively.
c) the defendants not having entered an appearance to defend judgment
by default be given for plaintiff against first and second defendant,
jointly or severally, the one to pay the other to be absolved, for:

i) payment of the amount for R350,000

ii) interest thereon at the rate of 15,5% per annum to date of
payment
iii) costs of suit
iv) further or alternative relief

Take notice that the plaintiff’s original summons and the original return of service of
the sheriff are attached hereto in support of the application.

31.8 If appearance to defend was entered, would you have been able to apply
for a summary judgment? In your answer refer to the instances in which
summary judgment may be applied for. (4)

Yes, summary judgment can be applied for in the following instances:

- claims for payment of a liquidated amount;

- claims based on a liquid document;
- claims for delivery of specified immovables
- claims for evictional ejectment

QUESTION 32 [6]

32.1 What is a rule nisi and when is it used? (3)

A rule nisi is a form of relief granted in motion proceedings, especially urgent

applications brought ex parte where the applicant requires interim relief
without (or with limited) notice but where the respondent is given the
opportunity of opposing the granting of a final order. Interdicts are common
examples.

32.2 Define a liquid document. (3)

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A liquid document is a document evidencing an acknowledgment of
unconditional liability for payment of a fixed or easily ascertainable amount of
money signed by the debtor or his agent.

Question 33 [20]

You act on behalf of the plaintiff in a High Court action which is set down for
trial in six weeks’ time. After the close of pleadings you served and filed a
request for particulars to enable you to prepare for trial. The defendant’s
attorneys did not respond to the request or to a letter sent to them reminding
them that the particulars are due. You are being prejudiced in your preparation
for trial. You advise your client to launch an interlocutory application. With
reference to the above, answer the following questions:

33.1 Who must sign the request for further particulars? (2)

An attorney with the right of appearance in the High Court alternatively an

attorney and counsel.

33.2 When are pleadings deemed to be closed? (2)

Pleadings are deemed to be closed in terms of Rule 29.

 If any of the parties joined issue without alleging any new matter and without
adding any further pleadings (1/2)
 If the last day allowed for filing of a replication or subsequent pleading has
elapsed and it has not been filed (1/2)
 If the parties agree in writing that the pleadings are closed and such
agreement is filed with the registrar
 If the parties are unable to agree as to the close of pleadings the court may on
application of a party, declare them closed.

33.3 What is an interlocutory application? (2)

An interlocutory application does not concern itself with the merits of a case but with
some procedural aspect adjunct thereto.

33.4 Will you use the long form (Form 2) or short form (Form 2A) notice of
motion? (1)
Short form (Form 2A).

33.5 By whom is the application served? (1)

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By the plaintiff’s attorney.

33.6 Upon whom is it served? (1)

Upon the defendant’s attorney

33.7 What relief would you request in the notice of motion? You need not
draft the notice of motion merely the relief sought. (3)

That the defendant/respondent be directed to furnish the particulars required by the

plaintiff on …(1) within five days of service of this order on the defendant’s /
respondent’s attorneys (1), defendant/respondent be ordered to pay costs of the
application (1) (further or alternative relief)

33.8 Draft the affidavit in support of this application. (6)

I the undersigned
____________________
Do hereby make an oath and say that:
1.
I am a major male/female attorney practising under the name and style of . . .
2.
The facts herein contained are within my personal knowledge and belief unless
stated to the contrary, and are true and correct.

3.
I am the attorney of record for the plaintiff herein.
4.
After the close of pleadings the attached request for particulars being annexure “A”
was served on the attorneys for the defendant/respondent as will more fully appear
from the acknowledgement of receipt appearing thereon and filed with the registrar
of this honourable court on ______.
5.
As no response was received I addressed a letter to the defendant’s/respondent’s
attorneys on ______, attached hereto as annexure “B”. No response was received.
6.

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As a result of the non-furnishing of the particulars the plaintiff/applicant is being
prejudiced in his preparation for trial which is six weeks away.

7.
Wherefore I pray for an order in terms of the notice of motion.

33.9 If you succeed in your application and the defendant fails to comply with
the court order obtained, what relief will you be seeking in your
subsequent application?
(2)
An order dismissing he defendant/respondent’s defence to the plaintiff’s claim
with costs (1) costs of this application (1)

Question 34 [30]

You are consulted by Mr James Pringle, the sole member of Pringle

Distributors CC, a close corporation doing business as an import-export
agency at 12 Stanza Bopape Road, Pretoria. He informs you that on the 12 th of
February 2013 at the premises of the CC he, on behalf of the CC, entered into a
written agreement with one James Short, a jeweller residing at 144 Florina
Street, Colbyn, Pretoria in terms of which the CC sold 400 “Essence” watches
to Short at R1 000 per watch. Perusing the agreement you notice it provides
for delivery of the watches to Smith and requires him to make payment within
30 days of delivery. Pringle confirms delivery was effected on the 1st day of
March 2013 at the Colbyn, Pretoria address and that Smith failed to effect
payment to date hereof, despite a letter of demand having been sent to him on
the 14th of April 2013. You caused a simple summons for goods sold and
delivered to be served on Short, who enters appearance to defend.

34.1 Name four liquidated claims for which simple summons can be used. (2)

Any four of the following claims:

 Payment of a debt
 Delivery of specified movables
 Transfer of immovable property
 Cancellation of an agreement
 Eviction/ Ejectment

34.2 For which claims would you be able to apply for summary judgement?
(2)
 Liquidated amount
 Liquid document

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 Delivery of specified movables
 Eviction/ Ejectment

34.3 If the claim had been for damages to a motor/vehicle in the amount of
R212 402.58 being the fair and reasonable costs of repair as assessed
by an assessor, would you still be able to apply for summary
judgement?
Briefly motivate your answer. (2)

No, damages are never regarded as liquidated. Damages will only become
liquidated upon order of court or award in arbitration proceedings.

34.4 Having been served with the notice of intention to defend you proceed
with an application for summary judgement. Draft the affidavit you will
use in support of the application. Omit the heading and attestation
clause of the Commissioner of Oaths. (6)

I the undersigned
______________

do hereby make an oath and say:

I am the sole member of the plaintiff/applicant herein, duly authorised to depose of

this affidavit.

I have personal knowledge of the facts set out in the summons.

I confirm the cause of action and the amount claimed in the summons.

In my opinion the defendant has no bona fide defence to the action and has
delivered notice of intention to defend solely for the purpose of delay.

Note to examiner: Candidates who tender additional evidence should be penalised.

34.5 Which avenues are open to a defendant who wishes to resist an

application for summary judgement? (4)

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He can furnish security for the amount claimed plus costs or he can file an
opposing affidavit, setting out a bona fide defence (or counterclaim)

34.6 The court grants leave to defend the matter and you must now file your
declaration. What is a declaration? (2)

When a simple summons is used and the defendant enters appearance to

defend a declaration, containing the plaintiff’s particulars of claim and the
relief requested is filed by the plaintiff. It fully expounds the plaintiff’s claim
which was concisely stated in the simple summons.

34.7 What procedural step can the defendant take if you fail to file the
declaration? (2)

A notice of bar can be served on the plaintiff calling on him to file the
declaration within five days.

34.8 With reference to the given facts and adding such additional facts as
you deem necessary draft the declaration. (10)

THE PLAINTIFF’S DECLARATION

1
The parties are as described in the plaintiff’s summons.

Note to examiner:
 As the summons will have incorporated the proper citation of the parties in terms
of rule 17(4), it is not necessary to repeat this information in the declaration, but
 it would not be wrong to do so again and candidates citing the parties should not
be penalised.
2
On the 12th of February 2013 and at 12 Stanza Bopape Road, Pretoria, the plaintiff
and defendant concluded a written agreement (“the agreement”) in terms of which
the plaintiff sold to the defendant, who purchased, 400 Essence watches (“the
watches”). A copy of the agreement is attached hereto marked annexure “A”,
3
In concluding the agreement:

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(a) the plaintiff was represented by James Pringle; alternatively, its duly
authorised representative;
(b) The defendant acted personally.
4
The material terms of the agreement were inter alia:
(a) The plaintiff would sell and deliver the watches to the defendant;
(b) The defendant would pay the plaintiff the agreed price for the watches;
(c) The purchase price was payable within 30 days of delivery of the watches.
5
Pursuant to the agreement, the plaintiff duly delivered the watches to the defendant
at 144 Florina Street, Colbyn, Pretoria, the premises of the defendant on the 1st of
March 2013.
6
The agreed purchase price of the watches was R 400 000 being R 1 000 per watch.
7
By virtue of the aforegoing, the said sum of R 400 000 was due and payable by the
defendant to the plaintiff on or about 31 March 2013.

8
Despite demad, the defendant has failed or refused to pay the plaintiff the said sum
of R 400 000 or any portion thereof.

WHEREFORE the plaintiff prays for judgement in its favour against the defendant
for:
(a) payment of the sum of R 400 000;
(b) interest thereon at the prescribed rate of 15,5% per annum with effect from 31
March 2013 to the date of payment;
(c) costs of suit;
(d) further, and/or alternative relief

1 MARCH 2014

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QUESTION35 [10]

You are approached by Mr P who is the managing director of Bafana Builders

CC who hands an extract from Beeld newspaper wherein a notice of sale in
execution for the sale of their immovable property to take place in two months’
time on the 28th February 2014 and upon your investigations all the documents
were served at the offices of their accountants.

Draft the notice of motion for the application of rescission of judgment and
where necessary use imaginary facts.

Mr N Applicant(1)

and
Respondent(1)
Mr X

NOTICE OF MOTION

KINDLY TAKE NOTICE that application will be made on behalf of the Applicant /
Defendant on Tuesday the 15th April 2012 at High Court at 10:00 or so soon
thereafter as the matter may be heard for an Order in the following terms:(1)
1. That the late filing of this application be condoned; (1)
2. That the judgment as entered against the Applicant/Defendant on or about the
11th of March 2010, be rescinded;(1)
3. That the Applicant/Defendant be ordered to pay the costs of this application in
the event they oppose. (1)
4. Further and/or alternative relief(1)
BE FURTHER PLEASED TO TAKE NOTICE that the Affidavit by Mr P has been
attached hereto in support of the application. (1)

Signed at JOHANNESBURG on this the 11 day of March 2012

TO: THE REGISTRAR OF HIGH COURT(1)

JOHANNESBURG

______________________
Applicant’s attorney (1)

QUESTION 36 [15]

You act for XYZ Builders who entered into a contract with Mala Constructions
CC for supply of building materials. They hand you a cheque in an amount of

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R350 000.00 which was returned marked “refer to the drawer” and
dishonoured by the bank.

36.1 Draft the provisional sentence summons for issuing thereof by the
Registrar. (10)

INFORM Mala Construction CC a duly registered business with its principal place of
business at 10 Mala Street, Johannesburg and hereinafter called the defendant.(1)

1. that they are hereby called upon immediately to pay XYZ Builders a duly
registered company with its principal place of business at 50 XYZ Street,
Johannesburg hereinafter called the plaintiff an amount of R350 000 together
with interest at the rate of 15.5%per annum as from 12th February 2012
claimed by the plaintiff for a cheque drawn by the plaintiff in favour of the
defendant which was returned by the bank marked “refer to the drawer” in
favour of the defendant for supply of goods and a copy of the document is
annexed hereto;(1)

2. that failing such payment they are hereby called upon to appear before this
Court personally or represented by an advocate or by an attorney who, under
section 4(2) of the Right of Appearance in Courts Act, 1995, has the right to
appearance in the Supreme Court, at Johannesburg on 01 April 2012 at 10:00
in the forenoon (or as soon thereafter as the matter can be heard) to admit or
deny his liability for the said claim.(1)

3. that if he denies liability for the same, they shall not later than noon on 07th
April 2012 file an affidavit with the registrar of this court and serve a copy
thereof on plaintiff’s attorney, which affidavit shall set forth the grounds of their
defence to the said claim and in particular states whether they admit or deny
the claim.(1)

AND INFORM the said defendant further that in the event of them not paying the
amount and the abovementioned interest to the plaintiff immediately and if the said
defendant fails to file an affidavit as aforesaid and to appear before this Court at the
time stated above provisional sentence may be granted against them with costs and
interest.(1)

AND serve a copy of this summons of the said XYZ Builders on the said defendant
and return this summons to the registrar with your return of what you have done
thereon.(1)

_______________________
REGISTRAR OF HIGH COURT (1)

________________________
PLAINTIFF’S ATTORNEY (1) “By Sheriff” (1)

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36.2 List documents to be in Counsel’s brief in the case of opposed claim for
provisional sentence. (5)

1. Copy of the summons together with the documents on which the claim rests (1)
2. The copy of the return of service (1)
3. The original liquid document (1)
4. A copy of the defendant’s answering affidavit (1)
5. A copy of the plaintiff’s affidavit (1)
6. A copy of notice of set down (1)

QUESTION 37 [8]

You act for the plaintiff in the High Court action and the matter has been set
down for trial and the pleadings had closed.

37.1 Draft a notice in terms of Rule 35(1) and where necessary use imaginary
facts. (6)

In the matter between :

Mr N Plaintiff

and
Defendant
Mr X

PLAINTIFF’S NOTICE IN TERMS OF

RULE 35(1)

TWENTY (20) days of service hereof of all documents and tape recordings relating
to any matter in question in this action (whether such matter is one arising between
the Plaintiff and Defendant or not), which are or have at any time been in the
possession or control of the Defendant.

Dated at Craighall Park on this TAKE NOTICE that in terms of Rule 35(1) the
Plaintiff requires the Defendant to make discovery of oath within 27th day of July
2011

________________________
XYZ INC
Plaintiff’s Attorneys

TO : THE REGISTRAR
SOUTH GAUTENG HIGH COURT
Johannesburg

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AND TO : ABC INC

Defendant’s Attorneys

37.2 When are pleadings considered to be closed? (2)

1. If any of the parties joined issue without alleging any new matter and without
adding any further pleadings. (½)
2. If the last day allowed for filing of a replication or subsequent pleading has
lapsed and it has not been filed. (½)
3. If parties agree in writing that the pleadings are closed and such agreement is
filed with the registrar. (½)
4. if the parties are unable to agree as to the close of pleadings and the court
upon the application by the other party declare them closed. (½)

QUESTION 38 [18]

You act for the defendant who has been served with a simple summons, an
appearance to defend was entered on his behalf by your firm. The plaintiff fails
to deliver the declaration and also does not apply for summary judgment.

38.1 What options are available to the defendant in this matter?

(3)
4.1.1 The defendant may serve a notice of bar on the plaintiff requiring
him/her to deliver his/her declaration within 5 days after service of the notice.
(1½)
4.1.2 The defendant may apply for absolution from the instance or after
adducing evidence proceed to apply for judgment.(1½)

38.2 Explain the difference between appeal and review. (5)

1. An appeal is normally subject to any further court orders a rehearing on the

merits but only limited to the evidence or information on which the decision
was given.(2½)
2. These are decisions of lower courts or tribunals that are brought into question
in higher courts where grave irregularities are found to be occurring or have
occurred in these lower courts or tribunals.(2½)

38.3 Identify six instances when the filing of a special plea would be
appropriate. (3)

1. Lis pendens(½)
2. Arbitration(½)

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3. Non-joinder(½)
4. Prescription(½)
5. Res judicata(½)
6. Absence of jurisdiction(½)

38.4 In terms of Rule 4 of the Uniform Rules of Court service of a summons is

issued out of the High Court may be affected in one or other of the
following ways. Answer true or false. (3)

38.4.1 At the chosen domicilium of the defendant.

True

38.4.2 On any agent who is duly authorised thereto in writing to accept service
on behalf of the defendant.
True
38.4.3 At the residential address of the Mayor of the Municipality in a case
where municipality is the defendant.

False

38.4.4 At the residential address of the director of a company which has its
registered address elsewhere.

False

38.4.5 In the case of a partnership on a partner at his/her residential address

where the partnership has no registered address.

True

38.4.6 Personally on each of the trustees of an inter vivos at their respective

business addresses.

True

38.4.5 When is the combined used?

A combined summons is used in all cases where action procedure is appropriate.

Question 39 [10]

1.1 List three types of summonses that can be used and in what
circumstances. (3)

1. Simple summons (½)-it can only be used for liquidated demands. (½)

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2. Combined summons (½)-it can be used in all cases where action procedure is
appropriate. (½)

3. Provisional sentence summons (½)-it can only be used in cases where the
claim is based on a liquid document. (½)

1.2 List six instances where the use of application procedure is mandatory.
(3)

1. Appeals (½)

2. Rule 43 applications (½)

3. Interdicts (½)

4. Consolidation of actions (½)

5. Third party procedure (½)

6. Joinder of parties (½)

1.3 Explain what is an ex parte application?

(1)

It is an application brought without notice to anyone, either because no relief is

sought against any person, or it is not necessary to give notice to the respondent.
(1)

Question 40 []

40.1 You act for the plaintiff in the High Court action. You need to know what
documents the defendant holds, knows of or has under his control that
has bearing on either party’s case. Draft a discovery notice using
imaginary facts. (8)

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 68/13

In the matter between:

Mr N Plaintiff

and

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Mr X Defendant
_______________________________________________________________

PLAINTIFF’S NOTICE IN TERMS OF RULE 35(1)

PLEASE TAKE NOTE that the Plaintiff requires the defendant to make discovery
within (20) days of service hereof of all documents and tape recordings relating to
any matter in question in this action (whether such matter is one arising between the
Plaintiff and Defendant or not), which are or have at any time been in the possession
or control of the Defendant.

Signed at JOHANNESBURG on this the 11 day of March 2012

___________________________
XYZ INC
Plaintiff’s Attorneys
TO: THE REGISTRAR
SOUTH GAUTENG HIGH COURT

AND TO: ABC INC

Defendant’s Attorneys

Question 41 [12]

41.1 List instances where a party to proceedings can apply for a default
judgment. (2)

1. Where the defendant is in default with his Notice of intention to defend.

(½)

2. Where the defendant failed to plead after service on him/her of Notice of

Bar. (½)

3. Where the plaintiff failed to deliver a Declaration and was barred from
doing so. (½)

4. Where the plaintiff or defendant failed to appear at the hearing. (½)

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41.2 You are approached by Mr P who is the managing director of Bafana
Builders CC.He hands you a tear sheet from Beeld newspaper. It shows
an advertisement of a sale in execution of the immovable property of the
CC.The sale is to be held on Friday,25th April 2014.Mr P says that the
plaintiff was paid in full a year ago and the CC knows nothing about any
court process.You investigate and find that all papers in the matter had
been served on the offices of the accounting practitioner of the CC
since last July.

41.2.1 What action will you advise Mr P to take?

(1)

To apply for rescission of judgment (1)

41.2.2 Draft the necessary notice using imaginery facts(where necessary)
including capacities of the litigants, addresses and your own firms’
details, dies applicable in and the venue of the division where you are a
candidate. (9)

NORTH GAUTENG HIGH COURT, JOHANNESBURG

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 16/13

Mr N Applicant

and

Mr X Respondent

NOTICE OF MOTION

KINDLY TAKE NOTICE that application will be made on behalf of the Applicant /

Defendant on Tuesday the 15th April 2014 at High Court at 10:00 or so soon

thereafter as the matter may be heard for an Order in the following terms :(1)

1. That the judgment as entered against the Applicant/Defendant on or about the

11th of March 2010, be rescinded;(1)

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2. That the Applicant/Defendant be ordered to pay the costs of this application in the

event they oppose. (1)

3. Further and/or alternative relief(1)

BE PLEASED TO TAKE FURTHER NOTICE that the Affidavit by Mr P has been

attached hereto in support of the application. (1)

Signed at JOHANNESBURG on this the 11 day of March 2012

TO: THE REGISTRAR OF HIGH COURT(½)

JOHANNESBURG

______________________

Applicant’s attorney (½)

Question 42 (7)

42.1 You act for the defendant who has been served with a simple summons;
an appearance to defend was entered on his behalf by your firm. The
plaintiff does not apply for summary judgment and also fails to deliver
declaration.

What options are available to the defendant in this matter? (4)

42.1.1 The defendant can opt to do nothing.(1)

42.1.2 If the defendant opts to further the matter he should write his opponent a
courtesy letter advising him that he is out of time with the declaration.(1)
42.1.3 In the event having sent the plaintiff a courtesy letter and the plaintiff remains
in default the defendant can deliver a notice of bar.(1)
42.1.4 In the event plaintiff failing to comply with the notice of bar the defendant may
apply for dismissal of plaintiff’s action. (1)

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