Paper 3: Litigation

Question 1

list 6 examples of contempt of court in facie curiae

Answer 1

(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

Question 2

what does in faciae curiae mean

Answer 2

direct contempt of court - intended to embarass or engender disrespect for the court

Question 3

explain civil contempt of court

Answer 3

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

Question 4

explain criminal contempt of court

Answer 4

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

Question 5

explain indirect contempt of court

Answer 5

occurs outside the presence of the court but intention to belittle, mock, obstruct , interrupt or degarde the court and its proceedings

Question 6

what arrangements can you make with a creditor regarding fees?is there an applicable tariff? can you work on a contingency basis?

Answer 6

• 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

Question 7

what fees and disbursements can you recover from debtors if you get default judgment

Answer 7

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)

Question 8

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?

Answer 8

• 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

Question 9

In several cases the debtor’s present address is unknown, how is this normally dealt with and how would you recover costs involved?

Answer 9

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.

Question 10

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?

Answer 10

yes, since partner A was a partner and liable at the time the cause of action arose he remains liable

Question 11

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?

Answer 11

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.

Question 12

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?

Answer 12

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)

Question 13

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

Answer 13

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.

Question 14

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?

Answer 14

resolution by client if applicable
special power of attorney
affidavit
statement of account/ documentary proof of the claim

Question 15

what is edictal citation

Answer 15

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)

Question 16

what are the two types of interdicts

Answer 16

interim and final

Question 17

what is an interdict

Answer 17

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

Question 18

what must you prove for an interim interdict

Answer 18

• 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

Question 19

what must you prove for a final interdict?

Answer 19

• clear right on part of applicant
• injury actually committed or reasonably apprehended
• no other satisfactory remedy available to the app

Question 20

at which tribunal would you seek relief for the following:

- claim for damages of R14 000

Answer 20

small claims court

Question 21

at which tribunal would you seek relief for the following:

- an order that a provision affecting R290 000 is unconstitutional

Answer 21

high court

Question 22

at which tribunal would you seek relief for the following:

- claim for reinstatement after dismissal

Answer 22

CCMA

Question 23

at which tribunal would you seek relief for the following:

- dereg of a dormant company

Answer 23

CIPC

Question 24

at which tribunal would you seek relief for the following:

- unfair calculation of pension benefits from a pension fund

Answer 24

pension fund adjudicator

Question 25

at which tribunal would you seek relief for the following:

- interrogation of insolvent who hides assets

Answer 25

Master of high court who may appoint a magistrate

Question 26

at which tribunal would you seek relief for the following:

- amendment or enforcement of a high court maintenance order

Answer 26

Maintenance/ Family court

Question 27

at which tribunal would you seek relief for the following:

- an excessive fee charged by an attorney in a criminal trial

Answer 27

Statutory law society - assessment panel

Question 28

at which tribunal would you seek relief for the following:

- trust money stolen by an attorney

Answer 28

Attorneys Fidelity Fund and Statutory Law Society

Question 29

at which tribunal would you seek relief for the following:

- loss due to professional negligence of a colleague

Answer 29

• you would sue the attorney in the appropriate court

- the attorney can approach the Legal Practitioners Indemnity Insurance Fund (AIIF) and his private insurers

Question 30

at which tribunal would you seek relief for the following:

- devolution of family property in terms of customary law

Answer 30

Master of the high court

Question 31

at which tribunal would you seek relief for the following:

- appeal against an order by a traditional leader

Answer 31

Magistrates court

Question 32

acting pro amico

Answer 32

acting for a friend or relative without charging fees (attorney need not charge bees but may recover disbursements from carrying out the mandate)

Question 33

acting pro bono

Answer 33

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)

Question 34

costs de bonis propiis

Answer 34

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

Question 35

party and party costs

Answer 35

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.

Question 36

attorney client costs

Answer 36

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.

Question 37

what do you understand by attorney own client fees

Answer 37

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.

Question 38

against whom is costs de bonis propiis awarded and why

Answer 38

can be awarded against attorney, person in fiduciary capacity (trustee, executor etc) as a mark of displeasure at abusing a process of court

Question 39

your client wishes to obtain an interdict based on what she read in newspapers. Explain requirements (interim interdict)

Answer 39

(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

Question 40

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?

Answer 40

• edictal citation

- substituted service

Question 41

what are the grounds for substituted service

Answer 41

• 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

Question 42

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?

Answer 42

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.

Question 43

what is the exception to the without prejudice rule

Answer 43

acknowledgment of indebtedness made by a debtor to a creditor - this may be admitted in evidence

Question 44

what makes a letter without prejudice

Answer 44

A letter is without prejudice if it is a genuine attempt at settlement. Whether the letter is marked without prejudice is irrelevant.

Question 45

what is the effect of without prejudice on a letter

Answer 45

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.

Question 46

is the reply to a letter without prejudice admissible in evidence

Answer 46

no it is not

Question 47

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?

Answer 47

it is not permissible to add any evidence to an application for summary judgment

Question 48

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

Answer 48

No it may not be used in the trial

Question 49

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’?

Answer 49

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.