Civil Procedure

Question 1 _ General Principles

a) The rules of substantive law define the rights and duties of persons in their ordinary relationship with each other. Whereas adjective law deals with the procedure to be adopted in order to enforce a right or duty.

The rules in regard to damages and the grounds for breach of contract; against Thandi; are related to substantive rights. The issuing of the summons; by Solly; is regulated by adjective law.

It is clear that substantive and adjective law are dependent on each other.

b) The following are the three fundamental differences between small claims court and regional magistrates courts.

1) The representation of a litigant by a member of the legal profession is disallowed. The reason for this is to minimize any legal costs that would be incurred.

2) The pre-trial formalities have been simplified and reduced to the barest essentials.

3) Although the relationship between the litigants remains adversarial, the role of the judicial officer has changed. This means that the judicial officer has a passive role, while in the small claims court the commissioner plays an active role in assisting the litigants to present their cases at the trial.

Question 2 _ Jurisdiction of the Superior Courts

a) Yes, the Western Cape High Court, Cape Town will be competent to exercise jurisdiction to hear the action for damages because Q; as the defendant; is a peregrinus of the Republic and therefore attachment of his property has to take place for a South African court to have jurisdiction over him.

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The cause of action arose in Cape Town and therefore attachment ad confirmandam jurisdictionem is applicable. Ratione rei gestae; jurisdiction ratione delicti commissi.

b) Yes, the Kwazulu-Natal High Court, Durban will be competent to exercise jurisdiction to hear the action for damages ratione domicilii of the defendant based on actor sequitor forum rei.

c) Yes,theWesternCapeHighCourt,CapeTownwillhavejurisdictionif the defendant; Q;...