Answer to Question #207451 in Law for James

Question

X has a claim against Z in the amount of R600 000 based on breach of contract which occurred in Cape Town. X is an incola of Cape Town and Z is an incola of Pretoria. With these facts in mind, answer the following questions. Give full reasons for your answers.  

 

(a) Explain why it will be inappropriate for X to use an ordinary application to institute proceedings against Z.           (2) 

 

(b) Explain why X can institute proceedings against Z in the Cape Town High Court.       (2) 

 

(c) Would your answer to (b) above differ if Z was a foreign peregrinus of the Republic?      (4) 

 

(d) Would your answer to (b) above differ if the claim related to the registration of fixed property, and 

the property was situated in Johannesburg?       (2) 

Answer 1

a)     Explain why it will be inappropriate for X to use an ordinary application to institute proceedings against Z.          (2)

When legislation or the rules of court neither prescribe nor prohibit the use of application proceedings, the final test to apply is whether there is a material dispute of fact. If there is a material dispute of fact, the use of application proceedings is inappropriate and will normally be penalized by way of an adverse costs order. In the present matter, use of the application procedure is clearly inappropriate, as it stands that a breach of contract case will involve a material dispute of fact. Since such a dispute can only be resolved by hearing oral evidence, summons proceedings will be appropriate.

b)     Explain why X can institute proceedings against Z in the Cape Town High Court.      (2)

As the cause of action arose here

(c) Would your answer to (b) above differ if Z was a foreign peregrinus of the Republic?     (4)

No, the Cape Town Court will still have jurisdiction, but on different grounds. Arrest or attachment must now take place. There are two types of arrest or attachment which include confirmandam iurisdictionem and fundandam iurisdictionem.