CIV3701/201/3/2021

Tutorial Letter 201/3/2021

CIVIL PROCEDURE
CIV3701

Semester 1 and 2

Department of Criminal and Procedural Law

IMPORTANT INFORMATION
This tutorial letter contains the commentary on the assignment 01 and 2 for
CIV3701-21-S1 and S2-All.

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 CONTENTS

1 INTRODUCTORY REMARKS

2 COMMENTARY ON ASSIGNMENT 01

3 COMMENTARY ON ASSIGNMENT 02

4 EXAMINATION INSTRUCTIONS

5 CONCLUDING REMARKS

1. INTRODUCTORY REMARKS

This tutorial letter contains commentary on assignments 01. Please study the feedback
carefully and follow up on the study unit references.

A number of students obtained satisfactory marks for this assignment. However, a good
mark for this assignment does not mean that you have mastered the work, as you completed
the assignment with an open study guide next to you.

Please note the extent of the answers, as well as the presentation of the answers. Time and
again, students phone us after an examination and express amazement at the fact that they
failed the module. When perusing their scripts, we find that they wrote very little in their
answers or that they did not follow the instructions contained in the questions. If you write
very little when answering the questions, there is very little for us to mark, and if you answer
the question only halfway, only that half can be assessed! In the examination there is a direct
correlation between a question’s mark allocation and the expected content of the answer.

2. COMMENTARY ON ASSIGNMENT 01

QUESTION 1

(a) 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 (or can be reasonably anticipated), the use
of application proceedings is inappropriate and will normally be penalised by way of
an adverse costs order. In the present matter, use of the application procedure is
clearly inappropriate.

On the given facts, a defamation case involves a material dispute of fact. Since such
a dispute can only be resolved by hearing oral evidence, combined summons will be
appropriate. See study guide unit 12.6.2 and 12.6.3. and Pete et al 145–149. (2)

(b) In regard to a claim relating to a contract, the court in whose area of jurisdiction the
contract was concluded or where the contract was to be performed, either in whole
or in part will have jurisdiction. This is known as the exercise of jurisdiction ratione
contractus. (Under common law, this falls within the ambit of ratione rei gestae).

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On the given facts, the breach of contract occurred in Cape Town, therefore, the
Western Cape High Court, Cape Town will have jurisdiction to institutes the
proceedings ratione contractus. See study guide unit 6.1 and 8.2. (2)

(c) Where the defendant is a peregrinus of the whole Republic (foreign peregrinus), a
South African court will exercise jurisdiction over such a person only after attachment
of his or her property has taken place, attachment ad confirmandam jurisdictionem
(requiring the cause of action to have occurred within the particular court’s area of
jurisdiction apart from attachment).

On the given facts, the defendant is a peregrinus of the whole Republic, the cause of
action (breach) occurred in Cape Town and there is no attachable property within the
Republic, especially within the Cape Town area of jurisdiction. In this instance it is
irrelevant whether the plaintiff is an incola or peregrinus of the court. The attachment
confirms or strengthens the partial or imperfect jurisdiction that the court has by
reasons of the fact that the cause of action arose within its area. Therefore, the
Western Cape High Court Local Division, Cape Town will not have jurisdiction on the
basis of attachment ad confirmandum, since there is no attachable property within
the Republic, especially in the Cape Town area of jurisdiction. See study guide unit
8.4 and Pete et al 109–112 (4)

(d) In regard to a claim relating to immovable property, the court where the immovable
property is situated has exclusive jurisdiction in actions to determine the title to
immovable property or the transfer of property. This is known as the exercise of
jurisdiction ratione rei sitae.

On the given facts, the property is situated in Johannesburg. Therefore, the

Johannesburg High Court will have jurisdiction for the claim on registration of the
house ratione rei sitae. (2)

Question 2

(a) The Divorce Act of 1979 establishes domicile and residence as two separate grounds
for divorce jurisdiction. Thus, in terms of section 2(1)(a) of the Divorce Act of 1979
read with section 1(1) of the Domicile Act 1992, a court may exercise divorce
jurisdiction where both or either of the spouses are/is domiciled or resident (not “and”)
in the area of jurisdiction of a High Court on the date on which the action is instituted.
However, according to section 2(1)(b), a court will have jurisdiction over proceedings
if the period of residence is not less than one year within the Republic immediately
prior to the action. On the given facts, J is an ordinary residence in the Republic for
a period of less than one year. Accordingly, the High Court in Pretoria, is not
competent to exercise jurisdiction in terms of section 2(1)(b) over the divorce action.
See study guide unit 10.3 and Pete et al 113. (3)

(b) Summons will be served by means of edictal citation. Edictal citation is a form of
service that is effected on a defendant who is believed to be outside the Republic.
The service is effected by a person in the foreign country who is authorised by the
law of such country to serve processes and documents. See study guide unit 14.2.3
and Pete et al 142–143. (2)

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Question 3

(a) A combined summons. A claim for personal injuries is a claim for damages and as
such an unliquidated claim. An unliquidated claim is a claim where quantum must be
determined with the leading of oral evidence to resolve the matter. See Study guide
unit 17.3 and Pete et al 181. (2)

(b) Section 28(1)(d) of MCA, provides that a court will have jurisdiction in the matter
provided that the whole cause of action arose wholly within the district or regional
division of the magistrate’s court. This means that jurisdiction will be exercised where
the cause of action wholly arose in the courts area of jurisdiction.

On the given facts, the vehicle collision occurred within the magisterial district of
Durban. Therefore, the cause of action did arise wholly within the Durban magistrate’s
court area of jurisdiction in terms of section 28(1)(d) and the Durban magistrate’s
court has jurisdiction. (3)

(c) In terms of rule 23(1)(b), discovery may be requested once pleadings have closed.
The purpose of discovery is to enable a party in litigation to prepare fully and properly
for trial and prevents him or her from being taken by surprise. This enables a party to
know what documents are in existence that may help him or her establish his or her
own case, or to break down the case of his or her adversary, or what documents may
help an opponent, or weaken his or her case. See rule 23(1)(b); and study guide unit
24.4.3 and Pete et al 226. (2)

(d) Party-and-party costs are costs that have been incurred by a party during legal
proceedings which the court orders the other party to pay him or her. A court will not
lightly grant attorney-and-client costs. The most common ground on which a court will
order a party to pay the other party’s attorney-and-client costs is where the other party
has been guilty of dishonesty or fraud in conducting the suit or where his or her
motives have been reckless, vexatious or malicious, or where the party has seriously
misconducted himself or herself in the course of the proceedings.

On the given facts, neither parties have been guilty of dishonesty or fraud, or acted
in a vexatious, reckless or malicious, or seriously misconducted himself or herself in
the course of the proceedings. Therefore, on the given facts, B is liable for party-and-
party costs against C. B is also liable for attorney-and-client costs in terms of the
contract between himself and his attorney. See study guide unit 25.4.1. - 25.4.2; and
Pete et al 332-333. (3)

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3. COMMENTARY ON ASSIGNMENT 01

Question 1

The most accurate statement is (3)

In civil proceedings, the onus of proof is on a balance of probabilities. Therefore, the court
must be satisfied that the version put forward by the plaintiff is more probable than that put
forward by the defendant. However, guilt is what has to be established in criminal
proceedings. See study guide unit 1.2.4 and Pete et al 1-2

Statement (1) is incorrect. In civil proceedings, the burden of proof is on a balance of

probabilities. When a claim for damages is instituted, the plaintiff must prove his/her case
on a balance of probabilities. Therefore, the court must be satisfied that the version put
forward by the plaintiff is more probable than that put forward by the defendant. See Study
guide unit 1.2.4 and Pete et al 1-2.

Statement (2) is incorrect. In civil proceedings, the terminology is dependent on the type of
procedure involved. In matters commenced by a summons, the person who starts the
proceedings by issuing a summons is known as the plaintiff; the person against whom the
summons is issued is called the defendant. Whenever proceedings are brought on
application, the person bringing the application is known as the applicant and the opposing
party is called the respondent. If the matter goes on appeal, the person who lodges the
appeal is known as the appellant and the other party as the respondent. See Study guide
unit 1.2.3 and Pete et al 1-2.

Statement (4) is incorrect. Lower courts are restricted to the competence conferred upon
them by its enabling (constituent) Act. Lower courts do not have inherent jurisdiction. The
reason for this is that they derive their powers from the particular statute that created them.
Because of this, lower courts are sometimes called “creatures of statute”. The exercise of
jurisdiction in a lower court is, therefore, dependent on the extent to which its enabling
statute permits it to exercise such jurisdiction.

Question 2

The most accurate statement is: (3)

The rules exist for the sake of a court. This means that the rules of court are intended to
facilitate the work of the courts. Therefore, a court may condone any procedural mistakes
or determine any point of procedure. However, this does not mean that parties may be slack
in observing the rules of court, but generally the court will not be overly formalistic and will
assist parties where there is no prejudice. See study guide unit 2.3.2 and Pete et al 11

Statement (1) is incorrect. The South African High Courts are said to exercise “inherent
jurisdiction”, meaning its jurisdiction is derived from common law and not from statutes
(although statutes, in certain cases, may limit or increase this jurisdiction). Lower courts are
sometimes called “creatures of statutes” simply because their exercise of jurisdiction
depends on the extent to which their enabling statutes permit them to exercise jurisdiction.
See study guide unit 2.3.1 and Pete et al 11-12

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Statement (2) is incorrect. The Uniform Rules of Court are a common set of rules that
regulate the conduct of proceedings in the High Court uniformly (hence, “Uniform Rules”)
and the name is of historic origin. The rules regulating the conduct of proceedings of the
magistrates’ courts are simply referred to as the magistrates’ courts rules. See study guide
unit 2.3.1 and Pete et al 12

Statement (4) is incorrect. Previously, it was provided that the President of the Constitutional
Court in consultation with the Chief Justice were to make rules relating to the manner in
which the Constitutional Court may be engaged. This position has since changed, and in
terms of section 29(1) of the Superior Courts Act, 2013 (SCA) the Chief Justice, after
consultation with the Minister, may now make such rules. See study guide unit 2.3.1 and
Pete et al 12-13

Question 3

The most accurate statement is (3)

A power of attorney is essential for the protection of both the attorney and the client, and to
determine the extent of the attorney’s brief. Therefore, there should always be a power of
attorney kept on the client’s file. See study guide unit 12.3.2 and Pete et al 55

Statement (1) is incorrect. The only factor which determines whether proceedings may be
instituted by way of application proceedings or by way of summons proceedings is the nature
of the claim. See study guide unit 1.2.2

Statement (2) is incorrect. The general rule is that, in all application proceedings that are
opposed, the papers will be restricted to the following three sets of affidavits: (a) the
supporting affidavit of the applicant, which is attached to the notice of motion; (b) the
answering affidavit (Rule 6(5)(ii)); (c) the replying affidavit (Rule 6(5)(e)). Whilst a replication
is a pleading that contains the plaintiff’s reply to the defendant’s plea. Uniform Rule 25(1)
and magistrates’ courts rule 21 are essentially the same. This pleading is, however, not
essential and is necessary only where the defendant raises new averments as to facts in his
or her plea (on the merits). See study guide unit 15.3.2 and Pete et al 158–161. Also see
study guide unit 20.4 and Pete et al 222–224

Statement (4) is incorrect. An urgent application in terms of Rule 6(12) of Uniform Rules is
a prohibitory interdict used as a departure from such normal rules of procedure which must
be justified by the urgency of the matter. The applicant must inform the court fully of the
reasons why the application is urgent, and why normal rules of procedure may be dispensed
with. See study guide unit 15.2.3 and Pete et al 152

Question 4

The most accurate statement is (3)

Summary judgment is relevant where a defendant does in fact enter appearance timeously,
but does so merely as a delaying tactic, knowing fully well that no bona fide defence exists.
See study guide unit 23.4 and Pete et al 252

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Statement (1) is incorrect. Rule 28 provides that any party may amend any of his or her own
pleadings or documents (but excluding an affidavit) which have been filed in regard to any
proceedings. An amendment may be granted at any stage of the proceedings before
judgement is delivered. Such a party must, however, give notice of such intention to amend
to all parties concerned, and must set out the details of the amendments in the relevant
notice (see Rule 28(1) and 28(2)). See study guide unit 21.4 and Pete et al 24

Statement (2) is incorrect. A plea deals with the merits of a plaintiff’s case as set out in the
plaintiffs’ particulars of claim whilst a notice of intention to defendant is a notice informing
the plaintiff that the defendant intends to defend the action. Therefore, Y had to deliver a
notice of intention to defend instead of a plea. See Study guide unit 20.2 and 20.3.

Statement (4) is incorrect. The two major grounds for taking an exception against a pleading
are if a pleading fails to disclose a cause of action, or if a pleading is vague and
embarrassing. See study guide unit 21.5 and Pete et al 229

Question 5

The most accurate statement is (1)

Uniform Rule 38(2) provides that in certain limited circumstances, evidence of a witness in
the High Court action may be given on affidavit. Unless special circumstances exist, a
witness must give evidence viva voce (orally) and in open court. There is no corresponding
provision in the magistrates’ Courts Rules, but section 22 of the Civil Proceedings Evidence
Act will apply to both courts. See Study guide unit 24.5.2 and Pete et al 290

Statement (2) is incorrect. A notice of intention to defend is a process and not a pleading. A
process is merely a step in legal proceedings which can only be taken with the aid of the
court or of one of its officers. A pleading is a written document containing averments by the
parties to an action in which the material facts on which they rely in support of their claim or
defence are clearly and concisely set out to enable the opponent to plead thereto, and which
is exchanged between such parties. See Study guide unit 19.2

Statement (3) is incorrect. In terms of Uniform Rule 34A interim payment in actions for
damages in terms of the motor vehicle can be instituted as a result of personal injuries and
death, and not damage as a result to personal possessions. See Study guide unit 22.4 and
Pete et al 433-434

Statement (4) is incorrect. When a pleading contains hearsay evidence, any other
inadmissible evidence or matter that is argumentative, irrelevant, vexatious or scandalous
to the opposing party may, within the period allowed for any subsequent pleading, apply for
the striking out of such matter (see Uniform Rule 23(2); rule 19(2)). See Study guide unit
21.3 and Pete et al 235-236

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Question 6

The most accurate statement is (4)

A submission to the jurisdiction of the High Court occurs when the defendant is a foreign
peregrinus and the plaintiff is a local peregrinus, provided the cause of action has taken
place within a court’s jurisdictional area, and a foreign defendant submits to the court’s
jurisdiction before the attachment order of his or her property has been made, submission
to jurisdiction will render attachment unnecessary. Therefore, it appears that this is the only
instance in which submission to jurisdiction can take place. Thus, rather than being an
independent ground for jurisdiction, submission to jurisdiction is merely a substitute for the
confirmation of jurisdiction by attachment. See Study guide unit 8.7 and Pete et al 112-113

Statement (1) is incorrect. See the comments in respect of (4) above.

Statement (2) is incorrect. Submission to jurisdiction by an incola defendant will never occur,
since the court is already vested with jurisdiction ratione domicilii. The position of the plaintiff
is irrelevant for the purpose of jurisdiction See Study guide unit 8.7 and Pete et al 112-113

Statement (3) is incorrect. A local peregrinus cannot submit to the jurisdiction of a court, and
an action must be instituted against him or her in the court within whose area the cause of
action arose, alternatively, in the court where he or she is an incola. This is known as the
exercise of jurisdiction ratione rei gestae. Bear in mind that submission refers to a situation
where a person who would otherwise not be subject to the jurisdiction of the court, consents
to the court’s jurisdiction. This is clearly not the case in this instance. See Study guide unit
8.7 and Pete et al 112-113

Question 7

The most accurate statement is: (4)

A party entitled and desiring to demand security for costs, shall deliver a notice setting forth
the grounds upon which security is claimed to the registrar/clerk of court. See Study guide
unit 22.5 and Magistrates’ court rule 62(1).

Statement (1) is incorrect: Uniform Rule 34(1)(a) provides that in any action in which a sum
of money is claimed either alone or with any other relief, the defendant may at any time
unconditionally or without prejudice make an offer in writing to settle the plaintiff’s claim.
Thus, the rule makes provision for action proceedings, as such, an offer to settle in terms of
Uniform Rule 34 may be used in summons proceedings. See study guide unit 22.2

Statement (2) is incorrect: In terms of magistrates’ court rule 52(2), the filing of a power of
attorney is not required for the issuing of a summons or the entering of an appearance, but
if the authority to act is challenged, proof of such authority must be presented to court. See
Study guide unit 12.3.1

Statement (3) Is incorrect: The plaintiff responds to the defendant’s counterclaim (claim in
reconvention) by means of a plea in reconvention. The pleadings in reconvention,which
might now follow, are the same as the pleadings in convention discussed below (see study
unit 20). Since a counterclaim is similar to a claim that is instituted by a plaintiff in convention,

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the plaintiff has the opportunity to answer to the counterclaim with a plea on the
counterclaim, which corresponds to the defendant’s plea as regards form and content. The
same pleadings as are exchanged between the parties in convention, are exchanged in
reconvention. A replication contains the plaintiff’s reply to the defendant’s plea (Uniform Rule
25(1) and magistrates’ courts rule 21). In terms of Uniform Rule 25(2) and rule 21(2), a
replication is only necessary if the defendant has raised new averments in his or her plea
on the merits. See Study guide unit 20.3-20.4 and Pete et al 219-222

Question 8

The most accurate statement is: (1)

In order to bring a claim within the jurisdiction of a district magistrates’ courts a plaintiff may,
in his summons or at any time after the issue thereof, create the possibility that the plaintiff
can admit the debt due to the defendant and deduct from his claim, whether liquidated or
unliquidated, any amount admitted by him to be due by himself to the defendant. The effect
of section 39 is to bring the claim within the quantitative jurisdiction of a district magistrates’
court (R220 000 – 320 000 = R190 000). However, the plaintiff will always be awarded the
amount proved in court, less the amount admitted as being due to the defendant.

From the facts, it is apparent that A owes B an amount of R30 000. This would enable A to
deduct this amount an as admitted debt from the amount of R220 000 claimed in terms
section 39. Therefore, the effect is that a plaintiff who uses the provisions of section 39 will
always be awarded the amount proved in court, less the amount admitted as due to the
defendant. See Study guide unit 11.6.2 and Pete et al 78

Statement (2) is incorrect: In terms of Section 38 of the Magistrates’ Courts Act 32 of 1944,
unlike the position when section 38 is used, a plaintiff cannot expect an admitted debt to be
deducted from the full amount claimed before deduction, if this full amount cannot be proved.

Statement (3) is incorrect. Section 45 of the Magistrates’ Courts Act, 1944 (MCA) gives
parties the opportunity to consent to a magistrate’s court hearing a matter between them,
despite the fact that such a court does not have jurisdiction in terms of either section 28 or
29 of the Act. However, it is important to note that this section clearly provides that parties
cannot consent to a court hearing a matter that is excluded from jurisdiction by section
46. See study guide unit 11.6.3.

Statement (4) is incorrect. Section 40 of the Magistrates’ Courts Act, 1994 prohibit splitting
of a substantive claim. In terms of the section, splitting of a claim occurs if a claim exceeds
the jurisdiction of a particular magistrates’ courts and in order to recover the claim, the
parties would be the same and the point of issue in all split action would be the same. See
study guide unit 11.6.5.

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Question 9

The most accurate statement is: (3)

Attorney-and-client costs are awarded when the other party has conducted himself or herself
in a reckless, vexatious or malicious manner, or where the party has been dishonest or
fraudulent in conducting the trial, or where the party has seriously misconducted himself or
herself in the course of the proceedings. Therefore, a party who concealed certain document
knowing of their existence, is dishonest or fraudulent during the course of proceedings. This
is the most common ground on which a court will order a party to pay attorney-and-client
costs. See study guide unit 25.4.1 and Pete et al 333.

Statement (1) is incorrect. Costs de bonis propriis is awarded against a person who acts in
a representative capacity (such as a legal representative or an executor). See study guide
unit 25.4.3 and Pete et al 335.

Statement (2) is incorrect. Party-and-party costs are costs that have been incurred by a party
during legal proceedings which the court orders the other party to pay him or her. The costs
are awarded for legal proceedings that have commenced. Therefore, costs incurred before
the issue of summons are costs incurred for a party’s own account and payable to his or her
attorney in terms of the mandate given to the attorney. See study guide unit 25.4.3 and Pete
et al 332.

Statement (4) is incorrect. The presiding judicial officer who is found to have an interest in
the cause of proceedings, a party should take the judgment on review in terms of section
22(1)(b) of the Superior Courts Act, 2012. Section 22(1)(b) provides for uniform grounds for
review procedure of any lower where the presiding judicial officer in his or her judgement
shows an interest in the cause of proceedings, bias, malice or corruption on the his or her
part. See Study guide unit 27.3.1

Question 10

The most accurate statement is: (1)

A litigant who is not satisfied with a decision of a magistrates’’ court, is allowed one appeal
as of right. As such, Y does not need to apply for leave to appeal. See Study guide unit 28.1
and Pete et al 350

Statement (2) is incorrect. Two (2) Judges. See Study guide unit 28.2.1 and Pete et al 350-
351

Statement (3) is incorrect. An appeal from a magistrates’ court may be noted against the
following in terms of section 83 of the Magistrates’ courts Act:

(1) any judgement described in terms of section 48;

(2) any rule or order having the effect of a final judgment, including an order relating to
execution in terms of chapter IX of the Act and an order as to costs;
(3) in any circumstances, any decision overruling an exception.

See study guide unit 28.2.1.

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Statement (4) is incorrect. The Constitutional Court is the highest court of appeal in respect
of both constitutional and non-constitutional matters (s 167(3)(a)) of the Constitution of the
Republic of South Africa, 1996. The Constitutional Court is also a court of first instance,
depending on the type of matter it is hearing. See Study guide unit 4.1

4. EXAMINATION INSTRUCTIONS

Dear student

Take note that the CIV3701 September-November Examination is a TAKE HOME

Online EXAM UPLOADED ON THE MYEXAMS PLATFORM

EXAM ADMISSION

Please note that the following students were admitted to the September-November 2021
exam:

• ECP students who failed the June/July 2021 exam

• ECP students who did not write the exam in June/July 2021
• Students who are registered for ‘super semester’ 2021 (non-ECP students registered
for 2021 semester 1 or semester 2)
• FI concession students (no special FI concession exam)
• Students awarded aegrotat/special exams

PREPARATION FOR THE EXAMINATIONS

You are now nearing the end of your semester’s studies. In order to prepare yourself
properly for the forthcoming examination, you should read the following information carefully:

4.1 Examinations

If you have any enquiries about the date on which you will be writing the examination,
you should contact the Examinations Department at [email protected].

4.2 Duration of examination paper

The examination paper will be answered in 4 hours. It is a non-venue based/take

home online examination, and it will be worth a total of 100 marks. In order not to run
out of time, you will have to adopt the following approach: You should allocate the
time appropriately; Start working on the examination immediately after you have
downloaded it. Allocate your time proportionately.

The questions in the examination paper will count a HUNDRED (100) marks and will
consists of essay type questions and short questions.

Check your Examination timetable on

https://www.unisa.ac.za/sites/myunisa/default/Announcements/Examination-
timetable-for-the-September-to-November-2021-examination-period

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 INVIGILATION

The examination for CIV3701 will be proctored using the Invigilator App

Student webinars on online examination preparation:

https://www.unisa.ac.za/static/myunisa/Content/Announcements/Documents/Invitati
on%20ADOVH%20Student%20Training%20Webinars%20Series-1.pdf

5. CLOSING REMARKS

We trust that you found this assignment interesting, that it helped you to understand the
work better and to grasp the full extent of the material to be studied. You need to
understand from the outset that you will not master the work for the examination without a
great deal of preparation, and that you will not be successful unless you start your
preparation for the examination early. In the course of this commentary, (”we have pointed
out on various occasions that you had to read the rules of court or certain sections in
relevant legislation in order to find the correct answer.”) This underlines the importance of
studying the rules of court and the applicable sections in legislation as prescribed and
indicated in the study guide.

We wish you success in your preparation for the examination.

Ms M Mothapo [email protected]
Adv. MB Ndlazi [email protected]
Ms M Mkhabela [email protected]

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