action proceedings letter of demandsummons notice of intention to defend plea exception special...

ACTION PROCEEDINGSLetter of Demand Summons

Notice of Intention to Defend Plea

ExceptionSpecial Plea Counter Claim

Reply to Plea (Plea to Counter Claim)

Reply to Counter Claim

Closure of Pleadings Application for TrialDiscovery + Request to

Discover

Preparation for TrialConsult Witnesses

Pre-Trial Practice Notes

Trial

Opening Statement

Direct Examination Cross Examination

Redress

Closing Statement

PLEADINGS1 Pleadings (General Rules) - p60

• Signed by attorney/ party representing himself.• Heading• Parties description (p-60)• Amendment of Summons

Before service/issue – must be initialed by clerk of court - Otherwise no effectAfter service Rule 55A apply done by Notice.

2 Cause of action• 2.1 Contractual claims

Specific performance Damages due to breach of contract

2.1.1. Specific Performance• Prove existence of contract

CAUSE OF ACTION CONTINUE…

• Material terms (allege+ prove)• Complied with antecedent or reciprocal obligations• Allege non- performance by the defendant of obligations• What relief you want.• Costs

2.1.2. Damage / Breach of Contract• Contract ’s existence• Allege + prove material terms of contract• Allege breach – other party in Mora/ has repudiated + Contract• Allege damages suffered • Damages naturally & generally flow from the breach• That in the special circumstances of the case existing at the conclusion of the

contract the damages were within contemplation of the parties when contract was concluded

• Caused link between breach & damages


• Cost 2.1.3. Delictual Claims• Where wrongfulness + negligent act is claimed resulting in bodily injuries or Death of

breadwinner• Can recover patrimonial loss suffered.• Must allege & prove• Act / Omission• Negligence – Detailed• Causal connection between negligent act / omission + damages suffered• Damages • Costs 2.1.4. Other:• 2.1.4.1. dishonoured cheque• 2.1.4.2. Surety• 2.1.4.3 Estate Agent commission• 2.1.3.4. Repayment of loan – (NCA or Not)


2.1.5 Claims for interest • Rate of interest must be set out in Particulars of Claim• May only be claimed based on existence of agreement between parties

or;• Where defendant is in Mora• Existence of contract must be alleged + rate agreed upon.• Summons should allege an agreement to pay interest.• If not alleged (although claimed) defect in summons can be cured by

evidence from plaintiff to that effect.• Evidence not objected to by defendant.• If interest agreed upon but not specified -determined by section 1 (2) of

Prescribed Rate of Interest Act 1975.• Important to be able to determine when the date of Mora interest starts

running (read further p 64).

Service of Pleadings

Service- Sheriff- Other – see p-65

Domicillum citandi

SUMMONS3 Summons • What? Document officiating action | Litigation.• When? When making a claim against another• Who? The Plaintiff• Direct sheriff to inform the defendant amongst other things that, if the

defendant disputes the claim and wishes to defend he/she must:• Give notice to defend – (10 days)• After delivering notice to defend, within 20 days deliver a plea• with/without a claim in reconvention• or an exception or• Application to strike out. 3.1. Types of Summons3.1.1. Simple Summons (p144 – 147)

SUMMONS CONTINUE…

When?• Claim for a debt or Liquidated demand (See p55 types of liquid debts) 3.1.2. Combined SummonsWhen?• Claim not for a debt / Liquidated demand,• Collection costs• Payment of monies due after debatement of account.• Monies due by deceased estate,What?• Combined summons must include statement attached to it, stating the material

facts relied upon by the Plaintiff in support of its/his/her claim.• Must comply with rule 6:• Be 15 km within court region• Contain attorneys postal address

SUMMONS CONTINUE…

• Fax / email + electronic mail address• If no attorney – plaintiff must comply with above.• Summons shall be issued and signed by clerk of the court• Date of issue + case number – issued (further provisions see p56 –

57) 4 Undefended Action 4.1. Default JudgmentWhen? • Defendant fails to enter intention to defend within specified time.

[Before the plaintiff lodges request for default judgment and defendant has not consented to judgment].

• Where defendant fails to deliver its plea in time.

DEFAULT JUDGMENT CONTINUE

• Defendant filed NOID• Fails to file plea, despite time given. (Notice of bar)• Defendant still fails to file plea 4.2 Other • - R 32(2) – matter set down for oral / postponed for specific date and Def fails to

appear on the date set for trial. • R 60(3) – Compliance requested and party fails to comply. Other party may apply

for default judgment.• Must make sure you deliver application at correct address.• Where address withdrawn – tracing agent to locate • R 12(3) – Where summons served by post, may not apply for default unless you

have filled acknowledgement of receipt by sheriff with his return of service. • Bear proper case number• Signed by attorney / plaintiff.4.3 R 12(4) – UNLIQUIDATED CLAIMS

DEFAULT JUDGMENT CONTINUE…

• Where no express agreement regarding price of article sold – implied term

• Become liquid when parties agree to quantum • Court may require Plaintiff to give evidence – viva voce – affidavit to

nature + extend of claim. • Rule does not require magistrate to decide whether or not the cause of

action has been proved. • His duty is solely to assess amount recoverable by Plaintiff and give

appropriate judgment. 4.4 JUDGMENT BY CONSENT (Rule 11)• Very rare • Where Defendant admits to Plaintiff claim • Pay the claim • Pay via arrangement, without signing consent to judgment in terms of

Rule 11.


4.4. Documents to Lodge for Default judgment:

4.2.1.Application for request for default judgment.4.2.2. Original summons4.2.3. Return of Service – where intention to defend.4.2.4. NOID4.2.5. Notice of Bar


4.5 RELIEF ASKED • Sum of money not exceeding the amount claimed in summons. • Any other relief claimed in summons. • Costs • Interest – (according to the act)

4.6 COSTS • Undefended Scale • Defendant Scale • Attorney and Client – where there is an agreement to that effect

between the parties. 4.7 CHECKLIST P 102 – 103

DEFENDED MATTERS

6 DEFENDED ACTION • 6.1. NOTICE OF INTENTION TO DEFEND

(NOID)• Defend • Appoint Attorneys • Provide address for service of pleadings

SUMMARY JUDGMENT6.2. APPLICATION FOR SUMMARY JUDGMENT6.2.1. Drastic and extraordinary procedurePurpose? - Prevent delay of Plaintiff claim When?• Liquidated amount in money • Ejectment • Any claim for interest + cost • 15 days after (NOID)How?• Application (NOM)• Supporting Affidavit • Verify cause of action • State that in his/her opinion defendant has no bona fide defence • NOID delivered solely for purpose of delay • Copy of liquid document attached • State date of hearing (not less than 10 days from date of delivery thereof to Def.)

SUMMARY JUDGMENT CONTINUE..

6.2.2. DEFENDANT’S RESPONSE TO SJ

• Upon hearing the Def may.• Give security to Plaintiff to satisfaction of the clerk of court,

for any judgment including costs which may be given or; • By affidavit (delivered before noon two days before

hearing) • Lead oral evidence himself to the fact that there is a bona

fide defence + nature of grounds. • Court shall give leave to defend and action proceed as if no

summary judgment had been made. • Contents of Def Affidavit. (see P70 – please read !!!)

SUMMARY JUDGMENT CONTINUE…

6.2.3 ONUS OF PROOF6.2.3.1. PLAINTIFF • No oral evidence • Must proof with no doubt in Affidavit. • Plaintiff may not reply to evidence presented by Def. • No defence + delay 6.2.3.2. DEFENDANT• May with leave of court supplement affidavit with oral

evidence. • Must show he has a valid defence in terms of Law. • See NCA provision – P 72 (top of page)


6.2.3.4.SECURITY FOR COSTS BY PLAINTIFF (R62)

• Desiring to demand security shall asap after commencement of proceedings deliver a notice setting forth grounds upon such security is claimed and the amount demanded.

• If only amount contested – clerk will decide. • If party fails to pay / contests liability / within 10

days, other party can apply to court on notice for an order that such security be given and;

• That the proceedings be stayed.


HOW?- rules does not set out the grounds upon which a party is entitled to demand security

for costs from another.-Court has discretion to decide whether it should or not. • Actions parengrini

Plaintiff who does not own unmortgaged immovable property in republic may be ordered to give security.

• Actions by companies / CC

Right not absoluteRelevant where there is a reason to believe that the corporation is being wound up.Rule 15

7. EXCEPTION AND APPLICATION TO

STRIKE OUT 7.1. EXCEPTION - legal objection to opponent’s pleading- complain of an inherent defect in the pleadings.- Court must look at the pleadings as it stands(no

outside facts) • Purpose - see page-75 (top)7.2. Grounds for exception7.2.1. Summons• It does not disclose a cause of action• That summons is vague and embarrassing

EXCEPTON CONTINUE…

7.2.2. Plea• Plea does not disclose a defence to plaintiff’s claim.• Plea is vague and embarrassing. 7.2.3. When is a pleading Vague and embarrassing• If it is capable of more than one meaning.• The meaning cannot be ascertained. • If meaning is determinable but it is vague that the excipient does

not know what the other party’s case is.• Contradictory averments not pleaded in the alternative are patently

vague and embarrassing.• Must strike out the root of the cause of action as pleaded.• Pleadings excipiable on the basis that no possible evidence led on

pleading can disclose the cause of action.

EXCEPTION CONTINUE…

7.2.4. Procedure• Must deliver notice to opponent to remove cause of complaint.• Give 15 days to other party to remove cause of complaint• May except within 10 days of receipt of reply to cause of complaint.• Must state clearly/ concise ground upon which exception is

founded.• If there is both exception and Summary judgment it must be heard

at summary judgment application.• If exception upheld• pleadings may be amended• Where no application for amendment, /refused • If plea has no defence

THE PLEA 8. THE PLEA (R17)• After defendant filed NOID, must file Plea with 20 days• Can deliver Plea – without/with

-An exception -An application to strike-out-Without counterclaim / claim in reconv

• Failure – result in Notice of Bar • R 60(5) – to lift NOB.• Plea must be dated and signed + address • Plea must: • Address all material allegations made by the Plaintiff in POC• All material facts must be admitted or denied. • Allegation must be admitted/denied/confessed and avoided.

PLEA CONTINUE…

8.1. ADMITTED• Operates to eliminate the admitted fact from the issue to be tried. • Its effect is to bind the party making it. • If defendant omits to deal with any of the Plaintiff allegations it will

be taken to be admitted. • Plea cannot be amend in terms of an ordinary Notice of Intention to

Amend. BUT a substantive application to court is required. • It must be shown on oath that admission was made in error and

that the Plaintiff will; not suffer material prejudice if amendment granted.

• Kevin Case – (SCA decision) • Court held that admission made by one of the parties did not

require a formal withdrawal. • Each case had to be decided on its own merits.

PLEA CONTINUE…

8.2. DENIAL• Express contradiction of an allegation made by

opponent’s pleading. • Places fact in the opponent’s pleading in issue. • A denial must be unambiguous

-To merely to traverse an allegation of fact contained in the summons (POC), and prefix it with a denial, may result in an impermissible from of pleading known as a “negative pregnant” or “Bare denial”.

• As with POC, def may not plead a legal conclusion in the form of denial without setting out the factual basis for such conclusion because it will be a bare denial!

PLEA CONTINUE…

• HWV, defendant may either as; A sole defence or; In combination with another defence not

inconsistent therewith, deny specifically any of the allegations in the summons.

• The defendant may therefore deny each averment of fact individually and may even state “each and every allegation in this paragraph is denied as if specifically traversed”

• However this method of pleading is only acceptable IF it will not amount to vagueness and does not prevent factual basis of def’s defence being disclosed.

• Defendant must plead to set forth the nature and particulars of the ground of his/her defence.

PLEA CONTINUE…

• Object of denial – the defence must be stated with sufficient precision and sufficient detail to enable Plff to know what case he/she needs to meet.

• REMEMBER: No hard and fast rules BUT the court must be able to determine whether the Plaintiff was provided with sufficient details to enable him/her to appreciate the true nature of the defence

PLEA CONTINUE…

8.3. CONFESS AND AVOID• Defendant admits facts alleged by Plaintiff BUT

alleges certain other facts which would have the effect of putting a different complexion on the facts given by Plaintiff, which rob Plaintiff’s fact of their usual legal consequence (see example P. 80)

• Onus on defendant to proof. 8.4. DEF HAS NO KNOWLEDGE OF THE FACT

Not allowed in magistrate court.

PLEA CONTINUE…

8.5. SPECIAL PLEA• Apart from the merits, special plea raises some special

defence; • Which destroys or postpones the operation of the cause of

action; • Defence does not go into the merits but rather the

procedural character. e.g. Jurisdiction, Lis pendens; arbitration as precondition,

From the POC• Prescription • Res Judicial

OFFER TO SETTLE

OFFER TO SETTLE (R18)• See P81 – (please read!)CAUTION• “Without Prejudice” vs “Final Offer”• Liability • Claim vs Costs • Court Order • Failure • Indemnity

OFFER TO SETTLE CONTINUE…

DISADVANTAGES• You may settle for less / court could have granted

more. • If Plaintiff does not accept, only allowed what

he/she could prove at the trial. • HWV, in terms of Rule 18 – entitled to whole

amount paid into court irrespective of whether proved full amount or not.

• BUT def can include costs in the amount paid in.

COUNTER CLAIM10. COUNTER CLAIM (Rule 20)• Delivered to Plaintiff with Plea • Must set out the material facts of claim. • Must bear its own heading, can be within a separate

document / or in portion of the Plea. • Defendant can counterclaim against Plaintiff alone • Jointly + severally (including others)

Separately or in the alternative. • Leave of court must be requested (Joinder Application). • Where claim exceeds jurisdiction, the def may via notice

request stay of proceedings.

COUNTER CLAIM CONTINUE…

• No NOID by Plaintiff

• No security for costs may be requested in terms of Rule 62

• Def cannot apply for Summary Judgment.

WITHDRAWAL, DISMISSAL AND SETTLEMENT

16. WITHDRAWAL, DISMISSAL & SETTLEMENT – SEE P95

• Withdrawal• Where summons has not been served or

period limited to delivery of NOID has expired. • Plaintiff may withdraw.

PREPARATION FOR TRIAL

• NOTICE OF SET DOWN (RULE 22)• When? – after the pleadings are closed.

- if the Plff does not file set down thedefendant can do it , 15 days after closure of pleadings.

- Delivery for notice shall ipso facto operate to set down the counter

claim made by the defendant.

NOTICE OF SET DOWN CONTINUE…

• The defendant can elect to either:

– Set the matter down for trial or;

– Let the matter die a natural death.

FURTHER PARTICULARS• Rule 16• If the Plaintiff fails to plead full particulars in his

particulars of claim, the defendant may apply to set aside the summons as an irregular proceeding or except to it.

• At this stage you may request particulars only necessary for trial – (must request not less than 20 days before trial)

• At the conclusion of trial, court will decide whether the request was necessary and will make necessary cost order regarding the costs.

DISCOVERY- RULE 23

What is the objective?“ to ensure that before the trial both parties are made aware of all the documentary evidence that is available…”

- To narrow down the issues.- Process whereby the opponent can specify on oath the

documents in his possession or under its control relating to the action and;

- Allows the other party to inspect and copy such documents .

- Utilized only after pleadings but may do so before closure of pleading with leave of magistrate/court.

DISCOVERY CONTINUE..

• Parties must disclose every document which bears on the case.

• HOW?- Party must file an affidavit with an annexure containing of two lists;(a) first list – documents which no privilege is claimed;(b) Second list – will contain documents in terms of which privilege is claimed.

NON COMPLIANCE WITH DISCOVERY

• Timeous discovery is essential for proper preparation for trial.

• When applying for compliance, the court may make an appropriate order as to costs.

• Rule 60 (2) – there is no sanction for non compliance provided in the rules.

• Please Read Rule 24 – MEDICAL EXAMINATIONS /INSPECTIONS OF THINGS/ EXPERT EVIDENCE ETC.

PRE – TRIAL (RULE 24)• Sec 51 coupled with Rule 24

• Court may at any stage in the legal proceedings in its discretion direct parties to appear in chambers for a pre –trial.

• WHY?- To simply the issues - To discuss necessary or desirability of amendments of pleadings.

- Possibly obtain some admissions of fact.- To view documents to avoid necessary proof.- Limit the number of experts.

- Discuss other matters as may aid the disposal of the action in the most expeditious and least costly manner.

PRE- TRIAL CONTINUE…

• Pre-trial notice must state the issues to be discussed in Pre-trial.

• The Clerk will give the request to the magistrate to consider and will respond in a letter to the parties providing date and time to meet to have this pre-trial.

• Go through your file and prepare for this pre-trial. It might be in chambers but it is important.

EXECUTION (RULE 36)

• WHEN?- There is judgment for:

1. payment in money;2. delivery of property whether

movable or immovable.3. ejectment.

- shall be by warrant issued and signed by the clerk of court and address sheriff.

EXECUTION CONTINUE…

• It is a collection process:- Must obtain judgment first;- Attach Property

- Arrange for sale in execution

TYPES OF WARRANTS:- Warrant of Execution;

- Warrant of Ejectment;

- Warrant of Delivery of Goods;

EXECUTION CONTINUE…

• GEN RULE: warrant of execution against movable property may be issued after judgment and if no or not sufficient movable property is found, a warrant against immovable property may be issued.

• Movable Property- The Sheriff must demand payment of amount due

or else the movables will be attached.- Sheriff will attach movables which in his opinion he

deem sufficient to satisfy the warrant.- if no property pointed out the Sheriff may go ahead and attach any property that he can find which he thinks will satisfy the warrant.

IMMOVABLE PROPERTY• Warrant against immovable property:• Manner of Execution:

- full description of property must be obtained via deed search;- from search we will be able to obtain interdicts, names of debtor, id numbers, marital status and details of spouse;- return of service reflecting that was insufficient movable property obtained;- The warrant is being re-issued and the deeds office

description of the property is attached;

IMMOVABLE PROPERTY CONTINUE…

• Six copies should be made for service upon the following parties;- The debtor- occupant of the property- local authority which has jurisdiction over the property- All bondholders- The registrar of deads

IMMOVABLE PROPERTY CONTINUE…

• PLEASE NOTE – SECTION 66(2) = Important!• Immovable property subject to preferent claim of a

judgment creditor cannot be sold in execution unless;• Judgment creditor has caused such notice in writing of

the intended sale in execution to be served personally on the preferent creditor as prescribed in the rules;

• The magistrate / assistant magistrate of district where property is situated has upon application of the judgment creditor and after enquiry into the matter directed what steps shall be taken to bring intended sale to the notice of the preferent creditor and those steps have been carried out, unless:

IMMOVALBE PROPERTY EXECUTION CONTINUE..

• The proceeds of the sale are sufficient to satisfy the claim of such preferent creditor;

• The preferent creditor confirm the sale in writing, in which event he shall be deemed to have agreed to accept such proceeds in full settlement of his claim.

• Implications of sec 66(2) are that if the judgment creditor is NOT the a bondholder, proper notice must be given to the bondholders and the bondholder must confirm in writing that he is prepared to accept the proceeds of the sale in full settlement of his claim.

IMMOVABLE PROPERTY EXECUTION CONTINUE…

• The risk for the concurrent creditor is this that he may arrange the sale, incur all the costs and receive no benefits whatsoever from the sale.

• In Short: process of obtaining judgment against movables will remain the same and;

• If the Sheriff issue a nulla bona return indicating insufficient movables exist to discharge the debts, the creditor will have to apply to court for an order permitting the execution against the immovable property, after having considered all relevant factors.

IMMOVABLE PROPERTY EXECUTION CONTINUE…

• Factors the court will look at:- circumstances in which the debt was made;- attempts made by debtor to pay debt;- financial situation of the parties, the amount of the debt;- whether debtor is employed and has income to pay off the debt;- whether the debtor willingly put up his house up for security for the debt;- any factors relevant for the particular case.

STEPS THAT MUST BE TAKEN TO ARRANGE SALE OF IMMOVABLE

PROPERTY• Notice of sale must be drawn up including the

sale of the property.• Conditions of sale must be drawn up and handed

to sheriff at least 20days before the sale.• Conditions must be served on all interested

parties.• The Sheriff will require unlimited security, proper

description of property, with conveyancer’s certificate containing detailed information about the property.

STEPS FOR SALE CONTINUE..

• Sale must be advertised in local newspapers and government gazette.

• Must adhere to time limits strictly.• Attorney must attend the sale.• Execution creditor may ask conveyancer to

attend to the sale.

SELF STUDY

• PLEASE READ SECTION 65 PROCEEDINGS;• GO THROUGH YOUR NOTES AND APPLY THE

RELEVANT CASE LAW AND SUPPLEMENT THE CLASS NOTES AS ADVISED;

• REVISE THE EXAMPLES GIVEN TO YOU, HELPFUL FOR BOARDS.

• DON’T BE AFRAID, WORK HARD AND PUT WHAT YOU HAVE STUDIED INTO PRACTICE.

THE REAL END!

• THANK You and wishing you a prosperous career!