TLI4801 Assignment 1 Semester 1 2022 695144
(1a) Discuss the type of summons that will be used to institute Mrs Steven`s divorce action. (4) The combined summons will be used to institute Mrs Steven divorce action. According to Marnewick C.G (2012),1 Combined summons are primarily used where the plaintiff s‟ claim is unliquidated, that is where it is not a claim for a debt or liquidated demand. A combined summons is a summons to which is annexed a statement of the material facts relied upon by the plaintiff in support of plaintiff's claim, and which statement shall, amongst others, comply with rule 6. Rule 6 relates to pleadings generally. Matter for which a combined summons is used involves serious factual disputes that require the leading oral evidence to resolve the issue.
(1.b) Name and discuss the pleading that will be annexed to the summons (4) The type of pleading that will be annexed to the summons is particulars of claim. In every case where the claim is not for a debt or liquidated demand the plaintiff must annex his or her summons particulars of the material facts relied upon by him or her in support of the claim, (particulars of claim). Furthermore, the rule provides that the particulars of claim, unlike declaration do not constitute a separate pleading and are inseparably linked to the summons, hence the designation combined summons.
(1.c) Draft the prayer only. (4) The plaintiff prays for: (1) special damages in the sum of R30,000, (2) Compensation of maintenance order as prescribed by law (3) costs of suit; (4) reasonable attorney's fees; and (5) such other and further relief as the court shall deem proper.
(2) Discuss briefly a legal practitioner may conduct an interview with a client in a litigation matter. (5)
1
Marnewick C.G (2012), Litigation Skills for South African Lawyers: 3rd Edition, LexisNexis, Durban, South
Africa.
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A legal practitioner may conduct an interview with a client in a litigation matter in the following ways: The first stage is meeting the client and exchanging pleasantries. The legal practitioner meet the client in the reception area and do so promptly. The legal practitioner should not keep the client waiting and should address himself or herself in a good manner. The second stage is initial problem and goal identification. If the Legal practitioner had advance notice of the client's appointment, he may have received some information to help him identify the areas of law that may be relevant. Lawyers do this automatically, drawing on their academic legal knowledge and their practical experience. This initial identification of a relevant area of law has to be flexible. The third stage is dealing with preliminary matters. There are a few preliminary matters that thelegal practitioner need to discuss with theclient before entering into a detailed fact investigation. These matters include fees, confidentiality, potential conflicts, taking possession of theclient's documents and even taking notes during theinterview. With this particular client, thelegal practitioner can start with thelegal fees as she is plainly concerned about her current inability to pay her accounts. Other stages which may follow are establishing thefacts in chronological order, initial fact analysis and developing a preliminary theory of thecase, giving preliminary advice and concluding theinterview. The legal practitioner should avoid legal jargon, be respectful and maintain a balanced amount of eye contact.
Question 3:
(3a) theRoad Accident Fund can be approached in this matter because a person can claim from theRAF if he or she was injured in an accident and were not thedriver solely responsible for theaccident. In this matter Mr Alan Mkhize was injured and he was not thedriver responsible for theaccident but a pedestrian. It is very important to note that drivers, passengers, pedestrians, cyclists and motorcyclists can all claim from theRoad Accident Fund, as long as they were not entirely responsible for theaccident. Furthermore, according to theRoad Accident Fund Act 56 of 19962 a person can submit a claim within three years of themotor vehicle accident if he or she know who was responsible for theaccident. In this regard Mr Alan Mkhize know Joe Tanner and his car with registration number TN565GP, so he can submit a claim within three years of themotor vehicle accident. theclaim will not be valid if submitted after three years of theaccident. 2
Road Accident Fund Act 56 of 1996.
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This was noticed in thecase of Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A). This case deal with a motor vehicle accident claim and theissue was whether a claim for personal injuries and a claim for damages for loss of support arising from thedeath of theplaintiff's husband were separate claims or a single debt for thepurposes of prescription.
(3b) the draft of how theparties will be cited or described in thepleadings are given below.
IN XXX COURT
JOHANESBURG Case No: [XXX/2O22]
Between: Alan Mkhize and
APPLICANT
Joe Tanner
RESPONDENT
NOTICE OF MOTION TAKE NOTICE that Alan Mkhize, an adult male, (hereinafter called theapplicant) intends to make application to this Court for orders that: Joe Tanner should pay for theinjuries he caused to theapplicant by thetime he was speeding his vehicle. theapplicant was struck from behind by therespondent by thevehicles caused serious injuries to theapplicant to thefollowing body parts: a broken right leg, a broken pelvis, a deep cut below his right eye resulting in permanent facial scarring, bruises abrasions to theright hand side of thebody. DATED: at this 17th day of February 2022.
Signature
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XXXXXXXXX
To: The Registrar
High Court
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
(4) Critically discuss the use of practical vocational training in practice. (6) According to Legal Practice Act,3 practical vocational training means training required in terms of this Act to qualify as a candidate attorney or pupil in order to be admitted and enrolled as an attorney or advocate. The discussion of the use of practical vocational training in practice are given below. The admission requirements for legal practitioners (attorneys or advocates) in South Africa are currently prescribed by the Legal Practice Act 28 of 2014 and the Rules promulgated in terms of the Act. These are an academic qualification, service under a Practical Vocational Training Contract, compulsory practical legal training and personal fitness. All these have to be complied with before a candidate can be admitted as an attorney or advocate. Further, all persons wishing to enter the profession must pass a competency-based examination determined by the Legal Practice Council. Practical vocational training requirements that candidate attorneys must comply with before they can be admitted by the court as legal practitioners are as follows: Any person intending to be admitted and enrolled as an attorney must, after that person has satisfied all the requirements for a degree referred to in sections 26(1)(a) or (b) of the Act serve under a practical vocational training contract for an uninterrupted period of 24 months, and during the service under a practical vocational training contract; or within a period of no longer than 12 months after the termination of the practical vocational training contract, must complete a programme of structured course work of not less than 150 notional hours: Provided that if a candidate attorney fails to complete the programme of structured course work within a period of 36 months 3
Legal Practice Act 28 of 2014.
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