JUNE 2012 EXAMINATION DATE: 6 JUNE 2012 DURATION: 2 HOURS PASS MARK: 40% (PP-50)

Transcription

1 DEBBUS JUNE 2012 EXAMINATION DATE: 6 JUNE 2012 TIME: 14H00 16H00 TOTAL: 100 MARKS DURATION: 2 HOURS PASS MARK: 40% (PP-50) DEBT COLLECTING THIS EXAMINATION PAPER CONSISTS OF 3 SECTIONS: SECTION A: CONSISTS OF: (i) 10 MULTIPLE-CHOICE QUESTIONS (20 MARKS) (ii) 5 TRUE OR FALSE QUESTIONS (10 MARKS) (iii) 5 MATCHING WORD AND PHRASE QUESTIONS (5 MARKS) ANSWER ALL THE QUESTIONS SECTION B: SECTION C: CONSISTS OF 9 SHORT QUESTIONS ANSWER ALL THE QUESTIONS CONSISTS OF 1 PRACTICAL APPLICATION QUESTION ANSWER THE QUESTION (45 MARKS) (20 MARKS) INSTRUCTIONS: 1. Read the following instructions carefully before answering the paper, as failure to act upon them will result in a loss of marks. 2. Write your answers in your answer book, which is provided in the exam. 3. Ensure that your name and student number are clearly indicated on your answer book. 4. Write your answers in either blue or black ink in your answer book. 5. Read each question very carefully before you answer it and number your answers exactly as the questions are numbered. 6. Begin with the question for which you think you will get the best marks. 7. Note the mark allocations for each question give enough facts to earn the marks allocated. Don't waste time by giving more information than required. 8. You are welcome to use diagrams to illustrate your answers. 9. Please write neatly we cannot mark illegible handwriting. 10. Any student caught cheating will have his or her examination paper and notes confiscated. The College will take disciplinary measures to protect the integrity of these examinations. 11. If there is something wrong with or missing from your exam paper or your answer book, please inform your invigilator immediately. If you do not inform your invigilator about a problem, the College will not be able to rectify it afterwards, and your marks cannot be adjusted to allow for the problem. 12. This paper may be removed from the examination hall after the examination has taken place. NOTE: FOR SPECIAL INSTRUCTIONS PLEASE TURN TO PAGE 2. DAMELIN CORRESPONDENCE COLLEGE JUNE 2012 PAGE 1 OF 8

2 ADDITIONAL INSTRUCTIONS 1. All references to sections and Rules or the Act are, unless indicated, references to the Magistrates Court Act 32 of 1944, as amended. (MCA) 2. In this exam, the National Credit Act 34 of 2005 will be abbreviated as the NCA. DAMELIN CORRESPONDENCE COLLEGE JUNE 2012 PAGE 2 OF 8

3 SECTION A (35 MARKS) ANSWER ALL THE QUESTIONS (i) MULTIPLE-CHOICE QUESTIONS Choose the correct option for each of the following. Write only the question number and your chosen answer. For instance, if you think that the correct answer for number 1 is, then write it as Which of the following is not a valid way in which to serve a summons? at the defendant's place of business or residence to the defendant personally at the defendant's place of business or residence to a person over the age of 16 who works there or resides there by ordinary post to the defendant's domicilium citandi 2. If a defendant fails to enter an appearance to defend within the prescribed time limit, the plaintiff can: apply to the court for default judgment. execute against the defendant's movable property. apply for a garnishee order. apply for judgment by consent. 3. Which of the following property is exempt from execution? the necessary beds, bedding and clothing of the execution debtor and his family stock, tools and agricultural implements of a farmer not exceeding R2 000 arms and ammunition that the debtor is required to have by law in his possession All of the above. 4. Which of the following claims are preferent to that of the judgment debtor's claim on a dishonoured cheque? the claim of the holder of a mortgage bond over the immovable property the claim of a local authority for arrear rates, sanitation services and water the claim of a holder of a lien All of the above. DAMELIN CORRESPONDENCE COLLEGE JUNE 2012 PAGE 3 OF 8

4 5. A debt secured by a mortgage bond prescribes after years A debt arising from a bill of exchange or other negotiable instrument prescribes after years An example of a tacit hypothec is: a landlord's right over all the things brought onto the leased premises. a mortgage bond. the attachment of somebody's salary. personal security. 8. Which of the following constitutes a 'credit agreement' for the purposes of the NCA? an instalment agreement a policy of insurance a lease of immovable property a transaction between a stokvel and a member of that stokvel 9. A 'large' credit agreement in terms of the NCA is a credit transaction where the principal debt under that transaction or guarantee is higher than: R R R R A defendant who wilfully fails to attend a section 65 proceeding shall be guilty of an offense and liable to imprisonment not exceeding: 3 hours. 3 days. 3 months. 3 years. [10 2 = 20] DAMELIN CORRESPONDENCE COLLEGE JUNE 2012 PAGE 4 OF 8

5 (ii) TRUE OR FALSE QUESTIONS Indicate whether the following statements are true or false. Should you decide that a statement is FALSE, you must explain why. 1. The Sheriff must serve a warrant of execution. 2. The case of Jaftha v Schoeman held that the Sheriff may sell any cheques or other form of securities seized to enable the judgment creditor to recover the amount of the judgment debt. 3. The section 65 procedure is only available where the claim is for a liquidated sum of money. 4. A garnishee order may be granted by the court on ex parté application. 5. The defendant, and not his attorney, must sign a consent to judgment. [5 2 = 10] (iii) MATCHING WORD AND PHRASE QUESTIONS Match the words or phrases in Column B to the words or phrases in Column A. Write down the answers only, for example 1.. Column A Column B 1. debt counsellor immovable property 2. lien right to retention 3. interpleader proceeding debt is extinguished 4. prescription National Credit Act 5. mortgage bond (e) when a third party lays claim to property that has been attached by the Sheriff [5] [35] DAMELIN CORRESPONDENCE COLLEGE JUNE 2012 PAGE 5 OF 8

6 SECTION B: SHORT QUESTIONS (45 MARKS) ANSWER ALL THE QUESTIONS QUESTION 1 Provide the definition of 'a liquidated sum of money'. (2) Give four examples of cases where the courts have held the amount to be 'liquidated.' (4) [6] QUESTION 2 What are the requirements for a creditor to claim the costs of the letter of demand? [3] QUESTION 3 What is the fundamental difference between the procedures created by sections 57 and 58? [4] QUESTION 4 What documents must accompany the plaintiff's written request for judgment under the section 57 procedure? [5] QUESTION 5 Provide three reasons for issuing a warrant of execution prior to instituting proceedings under section 65. [3] QUESTION 6 Explain the purpose of a Conveyancer's Certificate, the procedure that should be followed in preparing the certificate, and what information must be reflected in the certificate. [8] QUESTION 7 If a judgment debtor makes a reasonable offer under section 65, and the judgment creditor rejects that offer, are there any remedies available to the judgment debtor to recover his or her costs incurred in court? (2) What information must be set out in a written offer to pay in instalments in accordance with section 65? (8) [10] DAMELIN CORRESPONDENCE COLLEGE JUNE 2012 PAGE 6 OF 8

7 QUESTION 8 Explain the difference between an emoluments attachment order and a garnishee order. [3] QUESTION 9 In each of the following cases, state whether the credit agreement is a small agreement, an intermediate agreement, or a large agreement in terms of the NCA: a mortgage transaction (1) a pawn transaction (1) a credit facility, if the credit limit under that facility falls below R (1) [3] [45] DAMELIN CORRESPONDENCE COLLEGE JUNE 2012 PAGE 7 OF 8

8 SECTION C: PRACTICAL APPLICATION QUESTION (20 MARKS) ANSWER THE QUESTION QUESTION 1 Read the following scenario then answer the questions that follow: Teboho, who lives in Johannesburg, wants to sell his bicycle, and so places an advertisement in the newspaper. The only response he gets to the advertisement is from Janet, who lives in Cape Town, but works in Stellenbosch. Janet writes to Teboho to say that she is very interested in buying the bicycle, but that she does not have all of the money to pay him upfront. Janet offers to pay Teboho in monthly instalments. Teboho wants to get the bike off his hands, but is worried that Janet will not pay him. What can he do secure his loan? Explain the three options available to Teboho, and what they entail. (8) Teboho decides to sell the bicycle to Janet. Unfortunately, Janet does not honour her agreement with Teboho, and Teboho decides to sue her. i. Will the Stellenbosch courts have jurisdiction to hear the matter? Give a reason for your answer. (2) ii. Will the Cape Town courts have jurisdiction to hear the matter? Give a reason for your answer. (2) Teboho obtains judgment against Janet for the outstanding amount, and the Sherriff attaches a car parked in Janet's driveway. Soon after attaching the car, however, the Sheriff receives an angry call from Janet's father, stating that he is the owner of the car, and demanding its return. i. What must the Sheriff do? (3) ii. What is the time period specified for Janet's father to respond? (1) Janet's father is able to prove that the car belongs to him, and the Sheriff is able to find no other property of value at her house. Teboho decides to apply for an emoluments attachment order. i. Out of which court should the order be issued? (2) ii. Who must sign the emoluments attachment order? (2) [20] [20] Section A: 35 marks Section B: 45 marks Section C: 20 marks TOTAL: 100 MARKS DAMELIN CORRESPONDENCE COLLEGE JUNE 2012 PAGE 8 OF 8