Paper 1: Theory

Question 1

What is an ex parte application

Answer 1

An application brought without notice to anyone except the registrar of the high court either because no relief is sought against any person or it is not necessary to give notice to the respondent.

Question 2

what would you include in the POC where the people are refusing to sign the contract for a transfer of property?

Answer 2

• P and D
• entered into a written agreement + copy attached
• P paid and fulfilled obligations
• D refused to transfer
• court has jurisdiction
• prayers (transfer of property or sheriff signs)
• costs of suits/f and a relief

Question 3

list 6 acts of insolvency

Answer 3

(1) absence from republic or dwelling
(2) failure to satisfy judgment
(3) disposition prejudicing creditors or preferring one creditor
(4) removal of property with intent to prejudice or prefer
(5) offer of arrangement
(6) failure to apply for surrender

Question 4

Absence from the Republic or dwelling

Answer 4

(If he leaves the Republic, or being out of the Republic, remains absent from the Republic, or departs from his dwelling or otherwise absents himself, with intent by
doing so evade or delay payment of his debts).

Question 5

Failure to satisfy judgment

Answer 5

If a court has given judgment against him/her and he/she fails, upon the demand of the officer whose duty it is to execute the judgment, to satisfy it or to indicate to the
officer disposable property sufficient to satisfy it, or it appears from the return made by the officer that he has not found sufficient disposable property to satisfy the judgment).

Question 6

Disposition prejudicing creditors or preferring one creditor

Answer 6

(If he/she makes, or attempts to make, any disposition of any of his/her property which
has, or would have, the effect of prejudicing his/her creditors or of preferring one
creditor above another).

Question 7

Removal of property with intent to prejudice or prefer

Answer 7

(If he/she gives notice in writing to any one of his/her creditors that he/she is unable to
pay of his/her debts

Question 8

Offer of arrangement

Answer 8

(If he/she makes, or offers to make, an arrangement with any of his/her creditors for releasing him/her wholly or in part from his debts).

Question 9

Notice of inability to pay

Answer 9

(If he/she gives notice in writing to any one of his/her creditors that he/she is unable to
pay any of his/her debts)

Question 10

what type of application would you bring to ensure that someone does not destroy evidence/material/documentation?

Answer 10

ex parte application, anton pillar order to preserve the evidence/ material /documentation

Question 11

How is an ex parte/ anton pillar order enforced?

Answer 11

The order would provide for service of the order by sheriff
- who should be accompanied by an independent (not connected to applicant’s attorneys) supervising attorney
- both the independent supervising attorney and sheriff should make an inventory
of all items removed by the sheriff in terms of the order to prevent any future
disputes relating to removed items
- sheriff may also be required to file a report describing the manner in which the order was complied with

Question 12

Draw a s115 statement and s112 statement including the heading:
Your client Bandi Fundien is a town councillor of the Municipality of Nozuko. He attends a council meeting which becomes heated and degenerates into a brawl between members of the various political parties. In the heat of the incident, he grabs a jug of water and hits a fellow councillor on the head. The councillor sustains serious injuries, is hospitalised for two weeks incurring medical expenses and loses wages as a consequence of being absent from his employment.
Fundien is duly charged with assault to do grievous bodily harm. The state wishes to present as evidence a number of medical reports which are admitted by your client.

Answer 12

[draw]

Question 13

Explain a criminal claim for damages

Answer 13

s300 CPA:

• a court can award compensation where an offence has caused damage or loss of property
• The injured person or prosecutor acting on instructions of the injured party has to apply to the court to award the injured party compensation for such damage or loss
• The complainant may claim hospital and medical expenses, loss of wages and general damages

Question 14

How would the court determine damages in terms of s300 of the CPA?

Answer 14

In determining the amount of compensation, the court may refer to evidence and the proceedings at the trial or hear further evidence either upon affidavit or orally.

Question 15

What is the effect of any order made by the court ito s300 of the CPA and what remedy is available to the complainant should the accused fail to comply with the court order?

Answer 15

The effect of the award is that of a civil judgment of that court and the injured person has all the civil remedies at his / her disposal in order to recover the award

Question 16

what is the difference between withdrawing a charge and stopping a prosecution?

Answer 16

After a matter had been withdrawn, one can be prosecuted of the same charge again. That
is not the position when prosecution had been stopped

Question 17

explain withdrawal of charge

Answer 17

A charge may be withdrawn only before an accused pleads to a charge . After the withdrawal, the accused shall not be entitled to a verdict of acquittal in respect of that charge.

Question 18

explain stopping of a prosecution?

Answer 18

It can be done any time after an accused has pleaded but before conviction. The court must then acquit the accused in respect of that charge.

Question 19

In a collision claim, what type of evidence should P lead to his witness to establish the damages to his vehicle?

Answer 19

The Plaintiff should lead evidence by an expert as to the cost of repairs to the motor vehicle.

Question 20

In a collision claim, on what points should the P lead the witness to establish the damages to the vehicle?

Answer 20

the nature of his experience, that he has examined the

motor vehicle, and what he estimates the cost of repairing the motor vehicle.

Question 21

In a collision claim, where P wishes to lead evidence - what procedural steps should P take first to enable him to lead such evidence?

Answer 21

The Plaintiffs’ attorney must give 15 days’ notice of his intention to lead the evidence of an expert and 10 days’ notice to give a summary of his opinions.

Question 22

In a Magistrate’s court action, the Plaintiff failed to respond to a notice calling on him to discover.

What remedies does the Defendant’s attorney have?

Answer 22

Defendant may apply to Court for an order requiring Plaintiff to discover; (1)
Defendant may object to the Plaintiff using such document in the action; (1)
Defendant may apply for an adjournment of the trial. (1)

Question 23

In a Magistrate’s court action, the Plaintiff failed to respond to a notice calling on him to discover. The Plaintiff duly filed his discovery affidavit in a Magistrate’s court action. The Defendant believes the Plaintiff has in his possession a letter which is relevant to the case. What are the options open to the Defendant?

Answer 23

Defendant may give the Plaintiff notice that he requires the document to be made available for inspection or that the Plaintiff declares that the document is not in his
possession and state the whereabouts if known to him.

Question 24

In an action in the Magistrate’s Court, the magistrate finds that the Plaintiff’s damage to his vehicle amounts to R60 000.00 and the damage to the Defendant’s vehicle amounts to R50 000.00. The magistrate further finds that Plaintiff was 40% to blame for the collision and the Defendant was 60% to blame. Defendant made a without prejudice tender of R18 000.00 plus costs in terms of Rule 18 to settle Plaintiff’s claim. Plaintiff did not accept the tender.

What amount would the magistrate award and to whom would he make such award?

Answer 24

Defendant is liable to pay 60% of R60 000.00, which amounts to R 36 000.00 (1), and is entitled to recover 40% of R50 000.00, amounting to R 20 000.00 (1), i.e. Defendant is to pay R16 000.00 (1) to the Plaintiff. (1)

Question 25

The magistrate was not aware of the tender when he gave judgment. What should the Defendant do?

Answer 25

When the magistrate is giving judgment or within five (5) days thereafter the Defendant can draw the attention of the court to his tender (1) and can expect that the order for costs will be amended to provide for the Plaintiff to pay the Defendant’s costs from the time of the tender. (1)

Question 26

what should a notice of motion for liquidation of a CC include (apart from heading)

Answer 26

• order will be sought that costs be costs in the liquidation;
• affidavit of X will be used in support of the application;
• request that the matter be placed on the role accordingly;
• It should be dated and signed on behalf of the Applicant; It should be addressed to the Respondent;
• It should also be addressed to the Clerk of the Registrar of the relevant Regional Court;
• An address where the notice will be served on the employees and/or trade union of employees of the respondent CC; and
• An indication that the notice will be served on SARS

Question 27

what circumstances: rent interdict summons

Answer 27

A rent claim in which you wish to seize Defendant’s furniture. (1)

Question 28

what circumstances: provisional sentence summons

Answer 28

Based on a liquid document

Question 29

what circumstances: interpleader summons issued at the instance of a party who is not a sheriff

Answer 29

Plaintiff has an asset but does not know who the rightful owner is

Question 30

what circumstances: a simple summons

Answer 30

Plaintiff has a liquidated claim against the defendant

Question 31

what circumstances: declaration

Answer 31

Plaintiff has an unliquidated claim or is suing for a divorce.

Question 32

The Plaintiff, in an action in the High Court, in which you represent the Defendant, serves and files a notice of withdrawal of the action before the matter is formally set
down for trial, without tendering costs.

What remedy does your client have in the circumstances?

Answer 32

Apply to court for an order that Plaintiff pays the costs of the action as well as costs of the application. Within 20 court days from the date of receiving of the notice of withdrawal.

Question 33

What would be included in the notice of motion for an application for P to pay costs of the action and application where D has withdrawn before matter set down for trial without tendering costs (no heading)

Answer 33

• Take note that …
• date and time ….
• order for the P to pay costs of the withdrawn action
• order for P to pay costs of the application
• affidavit of X will be used in support of the affidavit
• kindly enrol the matter accordingly

Question 34

List the documents to be in Counsel’s brief in the case of opposed claim for provisional sentence. (6 docs)

Answer 34

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

Question 35

In which instances can a party to proceedings apply for a default judgment?

Answer 35

1. Where the Defendant is in default with his Notice of intention to defend.
2. Where the Defendant failed to plead after service on him/her of Notice of Bar.
3. Where the Plaintiff failed to deliver a Declaration and was barred from doing so.
4. Where the Plaintiff or Defendant failed to appear at the hearing

Question 36

when may a Plaintiff/Applicant apply for summary judgment?

Answer 36

after the defendant has filed their plea

Question 37

What must the Plaintiff demonstrate in the founding affidavit supporting summary judgement?

Answer 37

• Plaintiff must prove that there is no bona fide defence and attach the plea.
• Plaintiff must identify any point of law relied upon, the facts upon which the Plaintiff’s claim is based, and explain briefly why the defence pleaded does not
  raise any issue for trial.

Question 38

what is a special plea?

Answer 38

A special plea does not concern itself with the merits of the case but with some special defence or objection to Plaintiff’s case (pleas that could postpone Plaintiff’s
case i.e. dilatory special pleas or pleas that could destroy Plaintiff’s case i.e. special pleas in abatement)

Question 39

List 6 special pleas

Answer 39

Arbitration
Lis Pendens
Prescription
Misjoinder/Non-joinder
Jurisdiction
Non locus standi in iudicio
Res judicata

Question 40

Draft a special plea of jurisdiction

Answer 40

• hon court lacks jur
• resides outside area of court
• cause of action arose outside area of court
• prays for case to be dismissed with costs

Question 41

what sentences can be imposed in terms of s276 of the CPA?

Answer 41

1. Imprisonment
2. Periodical imprisonment
3. A fine
4. Correctional supervision (Section 276(h))
5. Correctional supervision, that is imprisonment from which such a person may be
   placed under correctional supervision in his discretion by the Commissioner (Section
   276 (i)).

Question 42

what are the benefits of correctional supervision?

Answer 42

• less intrusive than imprisonment and can be applied when fine inappropriate
• family life of offender can continue
• compulsory training and education can develop skills of the offender
• offender will not be exposed to negative influences in prison
• cost effective and involves the community
• personal circumstances make it possible to maintain effective control and supervision

Question 43

what should be included in a notice of appeal against a sentence

Answer 43

• mag erred and did not take pers circ into consideration
• did not take alternative forms of punishment into consideration
• over emphasising interests of public over that of the appellant
• no substantial and compelling circumstances to not impose a minimum sentence
• sentence imposed a sense of shock

Question 44

Mary entered into a contract with Bob Builder Close Corporation (BBCC) who undertook to build a swimming pool at the cost of R120 000. She paid a deposit
of R60 000 and shortly after work commenced, she paid a further sum of R10 000. BBCC informs Mary that it entered into a large contract in Johannesburg and was unable to continue the work. Mary then obtained another quotation at a fair and reasonable price of R70 000 to complete the swimming pool. You were asked to sue for the damages Mary suffered. Explain what Mary can sue for and for how much?

Answer 44

Mary is paying out R140 000 , i.e. R20 000 more than her contract price.

Question 45

what procedure should you adopt to amend a summons?

Answer 45

Notice to amend recording that if no objection is made the summons will be amended. The defendant can object within 10 days giving reasons. If court gives permission to amend you can file the amended page on behalf of your plaintiff.

Question 46

what must you do before photographs can be used at a trial?

Answer 46

Plaintiff must give 10 days’ notice that he will be using the photographs.

Question 47

What steps can the Plaintiff take if the Defendant objects to the photographs being used at a trial ?

Answer 47

The photographer will have to be called (Magistrate may penalise the Defendant with a costs order).

Question 48

In the course of a building contract, an apprentice drove a truck into the Plaintiffs’ garage causing considerable damage to the garage. You act for the garage owner. You sued the builder who entered a plea in which his only defence was that the apprentice did not have a driver’s license. Draft the document, including the heading and the prayers that you would file.

Answer 48

Exception:

13. 2 The clerk of the Court and;
14. 3 Defendant’s attorney;
15. 4 Please take notice that Plaintiff excepts to the Defendant’s plea in that it fails to disclose a defence;
16. 5 Particulars;
17. 6 The fact that apprentice does not have a licence does not excuse his negligence;
18. 7 Prayer;
19. 8 That this exception be upheld with costs.

Question 49

State which of the following should be included in the Plaintiff’s discovery affidavit
schedule and which should not:
14.1 A statement obtained by an attorney in Zambia for the purpose of trial; (1)
14.2 Notes you made of a phone conversation with Defendant’s attorney; (1)
14.3 In a collision claim, notes made by your client at the time of the collision; (1)
14.4 The terms of an offer of settlement made by Defendant’s father. (1)

Answer 49

14. 1 No, not included. (1)
15. 2 Yes, included. (1)
16. 3 Yes, included. (1)
17. 4 Yes, included. (1)

Question 50

Name the two disclosures, in terms of Section 60 (11B) of the Criminal Procedure Act, which an accused is compelled to make to the Court at a bail application.

Answer 50

He has previously been convicted of any offence; and
There are any charges pending against him or her and whether he or she has been released on bail in respect of these charges.

Question 51

What are the possible consequences of an accused wilfully failing to make such disclosures? s60(B)

Answer 51

offence punishable by a fine or to imprisonment.

court can withdraw bail

Question 52

when is written permission from a spouse not needed when they are married in ICOP?

Answer 52

• Actions between spouses.
  • The spouse’s separate property.
  • The recovery of damages due to the commission of a delict against the spouse.
  • Any matter relating to the trade, profession or business of the spouse.

Question 53

Are you entitled to advise a client to plead not guilty?

Answer 53

yes

Question 54

If your client is guilty - In the event of your client deciding to plead not guilty what ethical principles are
applicable?

Answer 54

The attorney is an officer of the Court and may accordingly not mislead the Court in any way.

• onus is on state
• no explanation of plea/ right to remain silent
• no misleading questions can be put to witnesses
• accused cannot give evidence
• if state proves case then will have to change plea

Question 55

what certificate must an estate agent have

Answer 55

valid fidelity fund certificate issued to him in terms of section 29(a) of Act 112 of 1976 and who had fidelity insurance in terms of section 26(b) of Act 112 of 1976.

Question 56

what summons would you use in the magistrate’s court for: arrear rental and ensure that the assets, brought by the tenant onto the rental premises during the period of the lease agreement, will not be removed from the premises

Answer 56

summons + rent interdict

Question 57

what summons would you use to claim delictual damages from the defendant?

Answer 57

combined summons

Question 58

what summons would you use if your client holds an amount of cash to which three persons make adverse claims

Answer 58

interpleader summons

Question 59

what summons would you use where your client is owed money in terms of a liquid document and your client would like payment of the amount due before the defendant debtor is allowed to defend the action?

Answer 59

provisional sentence summons

Question 60

What are the requirements the court may consider to enable the court to grant voluntary surrender?

Answer 60

(i) The debtor’s estate is, in fact, insolvent (1).
(ii) The debtor owns realisable property of sufficient value to defray all costs of the sequestration which will, in terms of the Act, be payable out of the free residue of his estate (1).
(iii) Sequestration will be to the advantage of creditors (1).
(iv) All formalities as required in the Insolvency Act have been complied with (1).

Question 61

List the matters /instances where Rule 43 is available for a spouse in a matrimonial matter?

Answer 61

1. Maintenance pendente lite.
2. a contribution towards the costs of a pending matrimonial action
3. interim care of any child
4. interim contact with any child

Question 62

List any six essential matters which must appear from the minutes of a pre-trial conference by virtue of the provisions of Rule 37(6).

Answer 62

The date, place and duration of the conference and the names of the parties present
• The nature of prejudice and non-compliance if any (1)
• That every party claiming relief has requested such party’s opponent to make a settlement proposal and that such opponent has reacted thereto (1)
• Whether any issue has been referred by the parties for mediation, arbitration or decision by third party (1)
• Whether the case should be transferred to another court (1)
• Which issues should be decided separately (1)

Question 63

You are an attorney and receive instructions from a client to appear on his behalf in the Criminal Court. You establish that you have never appeared before the Magistrate. What do the rules of the profession and ethics require from you before the court proceedings commence?

Answer 63

You approach the prosecutor (1) and request him/her to accompany you to the Magistrate and to introduce you to him/her (1)

Question 64

Your client is out on bail but cannot attend crim court as he is hospitalized - what must you do to protect the interests of your client?

Answer 64

Obtain a letter from the doctor/hospital where the client is being treated which can confirm it. / convey to the court that your instructions are that the client is in hospital and you will make letter available at next court appearance.

Show the letter to the prosecutor. (1)

Request the Magistrate to receive the letter. (1)

Request the Court to issue a warrant but the execution to be held over until a future date.

Postpone the case to a next date.

Question 65

Name the five (5) grounds that have to be considered by the Magistrate to determine whether it is in the interest of justice to grant bail to an accused or to refuse bail.

Answer 65

The likelihood that the accused will try to evade his trial.

The likelihood that the accused will try to influence and/or intimidate the potential state witnesses or conceal/destroy evidence.

The likelihood that the accused will undermine or jeopardise the objectives of the proper functioning of the criminal justice system, including the bail system.

The likelihood that the accused will endanger the safety of the public and/or any particular person or will commit a schedule 1 offence. (1)

The likelihood that in exceptional circumstances, the release of the accused will disturb the public order or undermine public peace or security.

Question 66

In a civil trial in the Magistrate’s court, your client must prove the value of certain household items. You intend calling a sworn appraiser as an expert to prove the value of the items. List five aspects of testimony you would
present to the court by the evidence of the appraiser to establish the value of the items.

Answer 66

The expert witness must testify on:

a) his occupation
(b) his expertise (experience
(c) he inspected the items
(d) his opinion of the value