Paper 3: Litigation Flashcards
list 6 examples of contempt of court in facie curiae
(1) insulting or threatening the bench
(2) wilfully interrupting or disturbing court proceedings
(3) defying the rulings or directions of the bench
(4) failure to appear in court
(5) destroying documents
(6) breach of court orders
(7) breaching sub judice rule
what does in faciae curiae mean
direct contempt of court - intended to embarass or engender disrespect for the court
explain civil contempt of court
failure to perform an act that is ordered by a court as a means to enforce the rights of individuals or to secure remedies for parties in a civil matter
explain criminal contempt of court
can happen in a civil or criminal matter - behaviour that assaults the dignity of the court or impairs the ability of the court to conduct its work
explain indirect contempt of court
occurs outside the presence of the court but intention to belittle, mock, obstruct , interrupt or degarde the court and its proceedings
what arrangements can you make with a creditor regarding fees?is there an applicable tariff? can you work on a contingency basis?
- various law societies have rules on attorney and client fees for debt collection
- you may enter a contingency fee agreement - in writing in the prescribed form (stating on what contingency you become entitled to a fee, how it was calculated and that your client was informed of all options
- explain what you can recover in a contingency fee
what fees and disbursements can you recover from debtors if you get default judgment
you may recover the tariff stipulated in the rules of the magistrates court for undefended actions or any attorney client fees if the debtor consented in writing (In the Northern Province rule 81 will apply)
A specific debtor is unable to pay but hands you a deed of suretyship signed by his one brother - it provided for two brothers sign jointly and severally as sureties. Against whom would you proceed?
- brothers intended to bind themselves jointly and severally as it appears from the deed
- failure by one brother to sign the document will render it invalid - s6 Act 50, 1956
- you would not succeed against the signatory unless the suretyship specifically provides otherwise
In several cases the debtor’s present address is unknown, how is this normally dealt with and how would you recover costs involved?
it is normal practice to appoint a tracing agent on a no trace no pay basis. In your summons you must add a further claim for tracing costs. Substituted service is possible but not cost effective.
Debtor X was in a partnership. After the debt arose, Partner A sold his interest to partner B. Can you act against A for recovery of the debt?
yes, since partner A was a partner and liable at the time the cause of action arose he remains liable
It appears that debtor A Motors originally belonged to A who sold business to B 3 months ago and has since been sequestrated. In what circumstances could the assets of the business still be looked to for the recovery of the claim against A’s insolvent estate and how could B protect himself?
You may claim against A insolvent estate and require the trustee to set aside the sale of business ito s34 of the insolvency act. B should have required the sale to be advertised ito s34.
you obtain default judgment against Debtor O. O earns a good salary , owns a fully paid motor vehicle and has a claim against his brother for money lent and advanced. What possible methods of recovery of the judgement debt can you use iro of O?
s 65 remedies
- emolument attachment order - recover portion of salary directly from employer
- attach vehicle and have same sold in execution
- attach claim against brother (garnishee order)
Your client has a PTY LTD (in liquidation) and owes an amount for goods sold and delivered. He has no security for payment. Liquidator has stated the liabilities of the company exceed the assets. Advise client as to desirability of proving a claim against a liquidated company
the issue is whether there is a danger of a contribution your client may be required to pay at the end of the day. A contribution will be payable when there are not enough funds in the estate to defray cost of liquidation in which event contribution becomes payable by concurrent creditors on pro rata basis.
Your client has a PTY LTD (in liquidation) and owes an amount for goods sold and delivered. He has no security for payment. Liquidator has stated the liabilities of the company exceed the assets. if your client has to prove a claim - what documents will you prepare for this purpose?
resolution by client if applicable
special power of attorney
affidavit
statement of account/ documentary proof of the claim
what is edictal citation
a defendant to legal proceedings lives in a foreign company and P needs to serve documents in the foreign country - approach the court on ex parte basis for permission to serve docs (short form, Rule 5 URC)
what are the two types of interdicts
interim and final
what is an interdict
a court order that grants the applicant the authority to enforce their rights against another party who has infringed thereon. force/ refrain respondent from doing something. failure to comply = civil contempt of court
what must you prove for an interim interdict
- prima facie right (even if subject to doubt)
- irreparable/ harm is imminent if interdict not granted (reas app)
- balance of conv in favour of granting interdict
- applicant has no other remedy
what must you prove for a final interdict?
- clear right on part of applicant
- injury actually committed or reasonably apprehended
- no other satisfactory remedy available to the app
at which tribunal would you seek relief for the following:
- claim for damages of R14 000
small claims court
at which tribunal would you seek relief for the following:
- an order that a provision affecting R290 000 is unconstitutional
high court
at which tribunal would you seek relief for the following:
- claim for reinstatement after dismissal
CCMA
at which tribunal would you seek relief for the following:
- dereg of a dormant company
CIPC
at which tribunal would you seek relief for the following:
- unfair calculation of pension benefits from a pension fund
pension fund adjudicator
at which tribunal would you seek relief for the following:
- interrogation of insolvent who hides assets
Master of high court who may appoint a magistrate
at which tribunal would you seek relief for the following:
- amendment or enforcement of a high court maintenance order
Maintenance/ Family court
at which tribunal would you seek relief for the following:
- an excessive fee charged by an attorney in a criminal trial
Statutory law society - assessment panel
at which tribunal would you seek relief for the following:
- trust money stolen by an attorney
Attorneys Fidelity Fund and Statutory Law Society
at which tribunal would you seek relief for the following:
- loss due to professional negligence of a colleague
- you would sue the attorney in the appropriate court
- the attorney can approach the Legal Practitioners Indemnity Insurance Fund (AIIF) and his private insurers
at which tribunal would you seek relief for the following:
- devolution of family property in terms of customary law
Master of the high court
at which tribunal would you seek relief for the following:
- appeal against an order by a traditional leader
Magistrates court
acting pro amico
acting for a friend or relative without charging fees (attorney need not charge bees but may recover disbursements from carrying out the mandate)
acting pro bono
free of charge for the public good - acting without charge for professional work undertaken for members of the public (who may be unable to afford)
costs de bonis propiis
out of one’s own pocket - punitive cost made against attorneys/ person in fiduciary position where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the court’s displeasure
party and party costs
costs incurred by a party to legal proceedings and the other party is ordered to pay him or her. Do not include all costs that a party to a suit might have incurred - but only the costs that appear to the Taxing Master to have been necessary.
attorney client costs
attorney is entitled to recover from his or her client for disbursements made by him or her on behalf of client for professional services rendered. Costs payable by client no matter the outcome of the matter.
what do you understand by attorney own client fees
Fees which attorney is entitled to recover from his own client. The manner in which these fees must be determined is incorporated in an agreement between the attorney and the client, preferably the agreement should be in writing or confirmed by a letter. The fee must be reasonable.
against whom is costs de bonis propiis awarded and why
can be awarded against attorney, person in fiduciary capacity (trustee, executor etc) as a mark of displeasure at abusing a process of court
your client wishes to obtain an interdict based on what she read in newspapers. Explain requirements (interim interdict)
(1) prima facie right even if subject to doubt
(2) reas app of irrep/imm harm if interdict not granted
(3) balance of conv in favour of granting interdict
(4) applicant has no other remedy
your client is hesitant to institute actions because the intended defendants are difficult to trace
- one address known but lives outside RSA
- two is in RSA but address unknown
what is your solution?
- edictal citation
- substituted service
what are the grounds for substituted service
- all information and whereabouts have been fully investigated
- indicate steps taken to ascertain whereabouts of def
- method of service that will likely come to att of def
you successfully handled an interim application for a client in the course of a civil matter in the MC. May you now tax a bill iro the proceedings?
In terms of Rule 33(3) you may not.
Unless the court for good cause is shown order otherwise, costs of interim orders will not be taxed until conclusion of the matter. A party may only present one bill up to and including the judgment or other conclusion of action.
what is the exception to the without prejudice rule
acknowledgment of indebtedness made by a debtor to a creditor - this may be admitted in evidence
what makes a letter without prejudice
A letter is without prejudice if it is a genuine attempt at settlement. Whether the letter is marked without prejudice is irrelevant.
what is the effect of without prejudice on a letter
the letter is privileged and may not be used in specific litigation and need not be disclosed. It may be used in other litigation. it cannot be disclosed in evidence without the consent of both parties.
is the reply to a letter without prejudice admissible in evidence
no it is not
you issue a summons for R10 000 from Mr X whose attorney enters an appearance to defend and writes to you offering a settlement and to abandon an alleged claim for damages. The settlement letter is not marked ‘without prejudice’.
- can you use this letter to strengthen an application for summary judgment?
it is not permissible to add any evidence to an application for summary judgment
you issue a summons for R10 000 from Mr X whose attorney enters an appearance to defend and writes to you offering a settlement and to abandon an alleged claim for damages. The settlement letter is not marked ‘without prejudice’.
- can you use the letter to strengthen your case in trial
No it may not be used in the trial
you issue a summons for R10 000 from Mr X whose attorney enters an appearance to defend and writes to you offering a settlement and to abandon an alleged claim for damages. The settlement letter is not marked ‘without prejudice’.
- can you use the letter to strengthen your case in trial - would your answer change if it was marked ‘without pred’?
No, adding or admitting the words ‘ without prejudice’ does not determine its nature . The sole question is whether it is a genuine offer of settlement in which event it may not be used.