May/ June 2023 CIVIL PROCEDURE: CIV3701 STUDENT NUMBER: 67156177 QUESTION 01 (a) Alternative Dispute Resolution (ADR) and Formal litigation share mutual characteristics that include, the participation of a neutral or an impartial third party with the duty of facilitating both the procedures through which the dispute between the parties may be resolved. ADR processes are said to be informal in nature meaning that they are not bound by fixated rules of procedure just as formal litigation is. ADR processes are also known to be flexible which means they can apply to any type of dispute without complications attached to their procedure compared to Formal litigation it is complex in a way that it cannot function in out of court settlements. They are also viewed as voluntary in a sense that disputants are not compelled to enter into the process whereas Formal litigation has the ability to compel disputants to enter into the process. They also seen as consensual meaning the decision or outcome of the process comes out through consensual means of both parties in dispute on the other hand formal litigation is structured through logic which emulates from legal argument containing deductive reasons. ADR is also interest-based meaning it is fixed more to the interests of the parties compared to formal litigation which is fixed on the rights of the parties involved. Notably ADR is relational meaning over and above seeking a resolution it also seeks to secure normal relations between parties whereas Formal litigation shifts focus to right of recourse of the party appearing to be violated by the conduct of the other party. This is so because ADR processes are also viewed as future-oriented because the build future relationships rather than focus and blame to the past. Having said this it is clear to see that the common methods applied in ADR diverge from those of Formal litigation the clear distinguishing factor is that ADR is informal, and Litigation is based on the rule of law and providing justice to the one party being violated by the other said party. (b) - Pre-trial formalities have been simplified and reduced to the barest essentials (no pleadings are required only a letter of demand and a summons is used) - The Judicial officer has a passive role. The commissioner plays an active role. - Representation of a litigant by a member of legal profession is forbidden. The intention is to keep a minimum of any legal costs to be incurred. - To facilitate self-representation by each of the litigants, pre-trial proceedings are informal, rules of evidence have been relaxed and the role of the judicial officer has been radically modified. (c) It is said every natural person who is a party to civil proceedings is entitled to represent him/herself personally. Such a person would usually instruct an attorney to act on his behalf. These instructions are confirmed and specified in a document known as a power of attorney. A power of attorney is a written document in which an attorney is given the authority to act on behalf of his principal either in a specified situation or to act on behalf of such principal in respect of all actions which the principal could perform himself. A client may terminate his mandate to an attorney at any time, but an attorney may, after accepting a client’s brief, withdraw only with sound reasons. When is a power of attorney required in litigation? There is no need for a power of attorney for issuing a summons or a notice of intention to defend but it is required to conduct or defend a civil appeal. The rules of the Supreme Court provide that a power of attorney need not be filed with the registrar unless the authority of a legal practitioner to act on behalf of a party is disputed. (d) Namely we have prohibitory interdicts, mandatory interdicts and restitutionary interdicts. A prohibitory interdict is an order that prohibits some from performing an act on the other hand a mandatory interdict compels someone to perform an act or a restitutionary interdict which orders the return of property or restore possession to someone. Notably the relief grant by the court through an interdict may be final or temporary nature. QUESTION 02 (a) (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) B V V V B G G G QUESTION 03 (a) In general terms, the purpose of the ‘rule 37 conference’ or pre-trial conference, as it is known in practice, is to curtail the proceedings as much as possible, to achieve this, the parties should try to define the points in issue between them and reach an agreement on as many issues as they can, and decide upon the most effective way of conducting the trial (for example, which party has the duty to begin leading evidence; whether or not the parties will produce a combined ‘trial bundle’ of documents to be used at the trial, and so on. The pre-trial conference also gives the parties a chance to curb costs and possibly to settle the matter. (b) M (c) M (d) Section 21(3) provides that any Division may issue an order for the attachment of property to confirm jurisdiction. This section, however, only provides for attachment of property ad confirmandam jurisdictionem and makes no reference to ad fundandam jurisdictionem. As it has been noted attachment ad fundandam jurisdictionem has been part of our common law as such the provisions of this section must be read together with the common-law principles regarding attachment ad fundandam jurisdictionem. Consequently, the position regarding attachment ad fundandam jurisdictionem is governed by common law the contention is that the property in respect of which the attachment is sought must be located within the area of jurisdiction of that particular court that matters. QUESTION 04 (a) (b) An exception is limited to an attack on the allegations in the pleading wholistically, assuming that those allegations are true and with one of the distinguishing features being that no factual allegation pleading attack may be introduced. The pleading is judged exactly as it stands. In common with an exception, a special plea assumes the truth of all the allegations in the declaration and does not deal with the merits of the action at all. It differs from an exception in two respects, firstly it alleges special facts unconnected with the merits of the action as a result of which the action is either destroyed or postponed. A special plea may only be pleaded to a declaration or particulars of claim, whereas an exception can ought to be brought against any pleading. (c) (d) B may proceed by filing for an automatic rent interdict although an ordinary interdict may be used to prohibit the removal of household effects, the Magistrates’ Court Act has created a simpler and less expensive procedure in section 31. This provides that when summons is issued for arrear rental, the plaintiff may include in the summons a notice prohibiting anyone from removing from the leased premises any of the household effects that are subject to the hypothec, until an order dealing with such goods has been made by court. The notice in the summons serves automatically as an interdict forbidding anyone with knowledge thereof to remove goods from the premises, and no court application or other formalities are required. The lessee or anyone else who is affected in this case it is A, may apply to court to have it set aside. B has to write to court in his or her statement she must state the amount of rent due and in arrears, that the rent has been demanded in writing for at least 7 days or if this is not so that he believes that the lessee is about to move . QUESTION 05 QUESTION 06 (a) M (b) N (c) The grounds upon which the proceedings of the Magistrates Court may be brought under review before a court of division are: • Absence of jurisdiction on the part of the court, • Interest in the cause, bias, malice, or corruption on the part of the presiding judicial officer; • Gross irregularity in the proceedings; and • The admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence. (d) N (e) N (f)
