I saw a draft of the assignment topic this morning which should be finalised in time to be handed out next Friday. This assignment is going to require you to independently research a topic not covered in the lectures so I recommend that you start early even though you will have a few months to complete the assignment.
Technorati Tags: assignment, roman law
My apologies for the class this morning. I had a bit of a cold coming on and it knocked me for a loop. I should be a little more interesting on Monday!
I said I would publish solutions to the tutorial questions shortly before the brief vacation. I must emphasise the importance of working through the questions yourselves and working them out first before you look at the solutions. The exams are going to test your understanding of the principles and you will be doing yourselves a disservice if you don’t make an effort to familiarise yourselves with them. Rather than giving you reasons why the various answers and wrong and right, I have only presented the correct answer/s and the reason why the answer/s is/are correct. Unfortunately I don’t really have the time to work through the questions comprehensively.
Question 1 A is correct because a claim for payment is permissable according to Van Reenen J in Tuckers Land & Development Corporation (Edms) Bpk v Van Zyl 1977 (3) SA 1041 (T) who dissented from the decision by Viljoen J in Carpet Contracts (Pty) Ltd v Grobler 1975 (2) SA 436 (T) who said that a claim for a payment can be a claim for specific performance (ad factum praestandum) as well as a claim for payment of an amount of money (ad pecuniam solvendam). Jones & Buckle, at Act 913, indicates that Van Reenen’s view is probably the correct view as the history of the development of section 46(2)(c) suggests that it is the correct interpretation. B is correct but see the proviso in section 29(1)(b). C is correct because even though it is a claim for specific performance, there is an exclusion for this sort of action in terms of section 46(2)(c)(ii). D also seems to be correct notwithstanding section 46(2)(c) and I refer you to the commentary to section 30(1).
Question 2 D is correct as it does not concern possible invalidity or interpretation of a will. E may also be correct if it, too, is not a question of invalidity or interpretation (this will depend on the nature of the dispute).
Question 3 B appears to be the correct answer as the ultimate claim works out to about R96 000 which is within the jurisdiction of the Court.
Question 4 The answer is ‘Yes’ as each month is a separate cause of action.
Question 5 You can claim in terms of A on the basis of the three cheques for R50 000 as each cheque is a separate cause of action. If your intention is to claim the full purchase price then you may not claim because the total purchase price exceeds the jurisdiction of the Court. In B, the outstanding claim is R45 000 so you can claim this amount in the Magistrates Court. You can bring claim C in the Magistrates Court notwithstanding the purchase price. Take a look at section 29(1)(c).
Question 6 B is appropriate because the amount claimed is R88 000. The further scenario is also possible because the consent appears to be a proper consent in terms of section 45.
Well, I hope you are all rested after the break? This week we will finish off the Codification of Justinian (pages 62 to 71) and then launching into a period known as the Second Life of Roman Law. You will note from your outline that this topic is not covered in your notes. It seems you may need to actually attend the lectures to find out more about this exciting new phase in the development of Roman law and I hope to see you then!
Technorati Tags: second life, roman law
This post is a repost from one of my other sites. It seems that one or two people find this stuff amusing so here is more wood for the fire (that Chuck Norris broke into little pieces with two roundhouse kicks):
I thought we hit the bottom of the barrel with all the Hoff jokes and photos but now my beautiful wife has introduced me to all the Chuck Norris facts (ok, loosely called "facts") you could possible want to know. For hours of cheesy entertainment, visit Chuck Norris Facts and go wild. Here is a sample:
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I am going to start on about page 46 with the two ‘schools’, the Proculians and the Sabinians and carry on from there. We will probably be able to finish the jurists and perhaps even Resolutions of the Senate (from page 55 to 57) with a view to starting Imperial law on Monday. As an interesting thought experiment, consider the parallels between the early priests as gatekeepers of legal knowledge before the rise of the Republican jurists and modern lawyers who make themselves necessary by keeping a rein on knowledge of the law.
Technorati Tags: foundations of south african law, jurists, priests, gatekeepers
Section 30 of the Magistrates’ Court Act makes provision for interdicts. Subsection 30(1) provides as follows:
"Subject to the limits of jurisdiction prescribed by this Act, the court may grant against persons and things orders for arrest tanquam suspectus de fuga, attachments, interdicts and mandamenten van spolie."
One question which arises is what the "limits of jurisdiction" referred to in the subsection are. The notes, on page 68, state as follows:
"It has been held that s 30(1) of the Magistrates’ Court Act, which authorises civil Magistrates’ Courts to grant inter alia interdicts, has to be read subject to the exclusionary provisions of s 46. Therefore, a magistrate may not grant an order for the performance of a positive contractual obligation (ie a mandatory interdict) or an order enforcing a negative contractual obligation (ie a prohibitory interdict, such as a restraint-of-trade agreement) in the absence of an alternative claim for damages."
This portion of the notes is partially correct. Subsection 46(2)(c) does indeed preclude the Magistrates’ Courts from granting interdicts which amount to orders for the performance of a contractual obligation and while this may appear to be one of the "limits of jurisdiction" referred to in subsection 30(1), the phrase "limits of jurisdiction" is actually a reference to the limitations imposed by sections 28 and 29 and not section 46. According to the commentary to subsection 30(1) in Jones & Buckle, The Civil Practice of the Magistrates’ Courts of South Africa –
"The power to grant any of the above orders [including an interdict] is ‘subject to the limits of jurisdiction prescribed by this Act’. The ‘limits of jurisdiction’ referred to in this subsection are those contained in ss 28 and 29 of the Act; consequently no order can be made in respect of any person or thing unless the court has jurisdiction over him or it in terms of ss 28 and 29, or has acquired it by means of an attachment under s 30bis. "The powers given to a magistrate under this section are not qualified or curtailed by s 46(2)(c), which provides that a magistrate’s court shall have no jurisdiction in matters in which is sought specific performance without an alternative of payment of damages. Section 29 deals with limitations of causes of action while s 46 prohibits the magistrates’ court from having jurisdiction to deal with certain matters: the reference in s 30 to limits of jurisdiction prescribed by the Act is a reference to the limitation section, s 29, and not to the prohibition section, s 46. In Zinman v Miller it was stressed that ‘s 46(2)(c) deals with quite a different type of claim to that dealt with in s 30(1)’."
One of the cases referred to in the above extract was Badenhorst v Theophanous 1988 (1) SA 793 (C). Essentially, where the effect of a prohibitory interdict is to enforce specific performance of a contractual provision, subsection 46(2)(c) operates to preclude the court from granting such an order. On the other hand, where the effect of a prohibitory interdict is otherwise, you have regard to sections 28 and 29 to determine whether the court is limited by some other restriction contained in those sections and not to the provisions of subsection 46(2)(c).
Technorati Tags: magistrates, magistrates court, prohibitory interdicts
I mentioned to my tut classes this last Monday that Erasmus’ Superior Court Practice and Jones & Buckle on Magistrates Court Practice may be available on the computers in the law library. Unfortunately this seems not to be the case so if you want to access these two excellent works you’ll have to get them from behind the counter instead. As I mentioned in the tuts, it is really important that you have a set of the Supreme Court and Magistrates Court Acts and Rules and that you have these available when you attend tuts and work through the tut examples. If you can’t afford to buy the volume containing the Acts and Rules then you can source the source statutes and gazettes. The references are in your notes in the footnotes on pages 3 and 4 and are as follows:
If anyone has made copies of these Gazettes and is happy to lend them to me for a few days, please let me know. I’d like to scan these Gazettes and post them to this site for download. On the other hand, the book containing the various Acts and Rules available from the Campus Bookshop on West Campus costs R194,50 if anyone is inclined to buy this book. The cover of the book is green and grey and it is published by Juta.
Technorati Tags: civil procedure, Courts, high court, magistrates court, rules of court, supreme court
While working through question 12 on page 345 of the tutorial pack, I was asked why, given the notes on page 55 of the course notes, was the answer to the question "B" and not "C"? The relevant portion of the notes states as follows:
"Where the defendant is a foreign peregrinus, the arrest of the foreign peregrinus or the attachment of the foreigner’s property is essential. Where the plaintiff is an incola of the court’s area of jurisdiction, the existence or absence of a ratio jurisdictionis is irrelevant and there must be an arrest or attachment to either found jurisdiction (where no ratio jurisdictionis happens to exist) or to confirm jurisdiction (where a ratio jurisdictionis happens to exist). It can be seen that in an action against a foreign peregrinus, an incola is accorded a favourable position in that the incola is entitled to institute action against the foreigner in the incola’s court regardless of the presence or absence of a ratio jurisdictionis. The attachment alone will create jurisdiction. The reason for this is based on the public policy consideration that South African courts should come to the assistance of South African subjects." (emphasis added)
The relevant provision of the Supreme Court Act is section 19 which is a little too long to reproduce here. Of particular interest is section 19(1)(c)(i) which empowers a High Court to –
"issue an order for attachment of property or arrest of a person to confirm jurisdiction or order the arrest suspectus de fuga also where the property or person concerned is outside its area of jurisdiction but within the Republic: Provided the cause of action arose within its area of jurisdiction …" (emphasis added)
Section 19(1)(c)(ii) goes on to provide that a High Court may –
"where a the plaintiff is resident or domiciled within its area of jurisdiction, but the cause of action arose outside its area of jurisdiction and the property or person concerned is outside its area of jurisdiction, issue and order for attachment of property or arrest of a person to found jurisdiction regardless of where in the Republic the property or person is situated." (emphasis added)
The commentary to section 19 in Erasmus’ Superior Court Practice is most instructive and runs from page A1-21 to page A1-38. As a starting point, I see that the case of Joseph v Air Tanzania Corporation 1997 (3) SA 34 
at 38G to 39C is actually authority for the proposition that an external or foreign company, although required by section 322 of the Companies Act 61 of 1973 (as read with section 170(1)(b)) to have a registered office in South Africa, cannot be said to be resident at its registered office in terms of those provisions of the Companies Act. This would seem to fly in the face of the notes dealing with this issue at section 4.3 on page 41. So what now? Well, the first leg of the enquiry is to determine "whether there is a ground upon which the court can entertain the matter in issue" (page A1-27). These jurisdictional connecting factors or rationes jurisdictionis include the conclusion or performance of a contract. In this example the jurisdictional connecting factor would be the conclusion of the contract between the parties in Cape Town. Unfortunately this is not enough given that the defendant is a foreign peregrinus so an attachment becomes necessary in this example (page A1-29). The commentary has the following to say at the bottom of page A1-29:
"Where the plaintiff (or applicant) is an incola and the defendant (or respondent) is a foreign peregrinus (i e a peregrinus of the country as a whole) the arrest of the defendant or attachment of his or her property is essential. The corollary of this rule is that the arrest of a peregrinus or the attachment of his or her property at the suit of an incola establishes jurisdiction even if no other ground to exercise jurisdiction exists."
In order to attach the property of this foreign defendant, it is necessary to make an application to the High Court and a further clue as to the correct answer to the question can be found in the allegations which must be made in such an application. The first allegation that must be made is that there is a prima facie cause of action against the defendant. This links back to the requirement that there be a ratio jurisdictionis. The next allegation is that the defendant is a foreign peregrinus. Finally, the plaintiff must, in the alternative to an allegation that the defendant or his or her property is within the jurisdiction of the court hearing the application, show one of the following:
"where attachment ad confirmandam jurisdictionem is sought, that the defendant or the property concerned is outside the area of jurisdiction of the court but within the Republic and that the cause of action arose within the area of jurisdiction of the court" (refer to section 19(1)(c)(i), emphasis added)
or
"where attachment ad fundandam jurisdictionem is sought, that the defendant or the property concerned is outside the area of jurisdiction of the court but within the Republic and that although the cause of action arose outside the area of jurisdiction of the court, the plaintiff (applicant) is resident or domiciled within its area of jurisdiction" (refer to section 19(1)(c)(ii), emphasis added).
What is also interesting is that although such attachments are exceptional remedies, once the plaintiff or applicant has satisfied all the requirements for an attachment, the court has no discretion to refuse the application. See also the commentary on pages A1-37 and A1-38. Having regard to the aforegoing, it would seem that the correct answers are "A" and "B"! The notes are not entirely correct as it appears clear from the commentary quoted above that a ratio jurisdictionis is a necessary starting point. The difference in approach depends more on where the cause of action is, the plaintiff is domiciled/resident and where the defendant or his or her property is.
Technorati Tags: ad confirmandam jurisdictionem, ad fundandam jurisdictionem, confirm jurisdiction, found jurisdiction, ratio jurisdictionis, rationes jurisdictionis
First I must apologise for this late post. Unless you are still up and reading voraciously, this post may be of little benefit. Nevertheless, I thought it would be a good idea to let you know what we will cover in tomorrow’s double lecture. My plan is to complete my review of the praetor and praetorian edicts from page 28 or so until page 34 of your reading pack where we will complete a review of the various forms of law in force at the relevant times. From there it is my intention to start working on the jurists. This section begins on page 35 and runs until page 54 of the reading pack so we are unlikely to complete this section tomorrow. The relevant sections from Nicholas are pages 19 to 28 (on the subject of the praetors) and pages 28 to 38 (on the subject of the jurists). There is a useful section in Wikipedia on Roman law which can be found here.
Wits Law resting place 