Pleadings
Mareva injunction (anti-dissipation order)
Yüklə 1,13 Mb.
|
Mareva injunction (anti-dissipation order) Prest (Interlocutory Interdicts) on 172 states that the Mareva principle as applied in our law entail that “where an applicant can establish that the respondent has no bona fide defence to an action and that, objectively considered, there are good grounds for fearing that he intends to make away with his assets in order to defeat the applicant’s claims, the court may grant an interdict restraining the respondent from parting with his property pending the result of an action.” This order can thus be given against a debtor or against a third party in possession assets(property) of the debtor. The general effect of the interdict is thus to provide some guarantee that there will be money assets available to satisfy an eventual claim against the defendant in the main case. The interdict is however directed against the possessor (debtor or third person) personally in that it restrains such persons from dealing with the goods in question. The effect is however not as far reaching as writ of attachment in that assets are attached as such. (The term Mareva is not generally accepted in South African Law.) 4 CAUSES OF ACTION A cause of action in civil litigation is first and foremost based on an obligation that exists between the litigating parties since the remedy will follow the obligation and will seek to address non compliance thereof. The relief sought will usually be in the form of the payment of money; delivery of a thing; or an order that a person does or refrain from doing certain acts. A pleading/ application must thus first and foremost establish a cause of action/ basis for the application by dealing with all the essential requirements for the relief sought, i.e. containing the facta probanda. Where a pleading lack the required allegations to establish a cause of action, such a pleading may become susceptible to an exception.
The plaintiff’s claim is against the defendant for the amount of R50 000 being the amount due owing and payable by the defendant to the plaintiff in respect of goods sold and delivered by the plaintiff to the defendant at the defendant’s special instance and request during the period March to August 2004 (both months inclusive). 2 Balance due for goods sold and delivered The plaintiff’s claim is against the defendant for the sum of R50 000 being the balance due owing and payable by the defendant to the plaintiff in respect of goods sold and delivered by the plaintiff to the defendant at the defendant’s special instance and request during the period March to August 2004 (both months inclusive). 3 Work done and material supplied The plaintiff’s claim is against the defendant for payment of the sum of R50 000 being the amount due owing and payable by the defendant to the plaintiff in respect of work done and material supplied in connection therewith by the plaintiff for and on behalf of defendant at the defendant’s special instance and request during the period May to August 2004 (both months inclusive). 4 Professional services rendered The plaintiff’s claim is against the defendant for payment of the sum of R50 000 being the amount due and payable by the defendant to the plaintiff as the agreed, alternatively fair and reasonable remuneration for professional services rendered by the plaintiff to the defendant during the period May to August 2004 (both months inclusive) at the defendant’s special instance or request. 5 Promissory notes The Plaintiff’s claim is for the sum of R50 000 being the amount due and owing by the Defendant to the Plaintiff under a certain promissory note dated ________ drawn by the defendant in favour of the plaintiff which was due and payable on the _____________ but which was dishonoured upon presentation for payment on due date in accordance with its tenor. The plaintiff is the legal holder of the said promissory note. Notice of dishonour is dispensed with in terms of the provisions of Act 34 of 1964. [Note that promissory notes have largely been replaced by post-dated cheques in modern commercial transactions.] 6 Cheques The plaintiff’s claim is for the sum of R50 000 being the amount of a cheque dated ______________ drawn by the defendant in favour of the plaintiff or order which was due and payable at the ______________ but which was dishonoured upon presentation for payment in accordance with its tenor. The plaintiff is the legal holder of the said cheque. Notice of dishonour is dispensed with in terms of the provisions of Act 34 of 1964. 7 Bills of exchange Plaintiff’s claim is for the sum of R50 000 being the amount of a certain Bill of Exchange dated the ____________ drawn by the plaintiff in favour of the ___________ or order and payable on the ________________ and which said Bill of Exchange was duly accepted by the defendant but dishonoured upon presentation for payment in accordance with its tenor. Notice of dishonour is dispensed with in terms of the provisions of Act 34 of 1964. 8 Acknowledgements of debts The plaintiff’s claim is against the defendant for the sum of R50 000 being the balance due owing and payable in respect of a written acknowledgement of debt made by the defendant in favour of the plaintiff on the _______ day of ________ 9 Monies lent and advanced The plaintiff’s claim is against the defendant for payment of the sum of R50 000 being the amount due owing and payable by the defendant to the plaintiff in respect of monies lent and advanced by the plaintiff to the defendant at the defendant’s special instance and request during the period May to August 2004 (both months inclusive).” ANNEXURE/ AANHANGSEL “E” LibraryResearchmanual.doc LEGAL RESEARCH NOTES OLIVER R TAMBO LAW LIBRARY 2008 CONTENTS
4. Case Law 8. Journals 8. Foreign legal material
the following: 1. The Jones and Buckle: Civil Practice of the Magistrate’s Court 2. Erasmus Superior Court Practice From LexisNexis Butterworths: 1. Harms - Civil Procedure in Magistrates Courts 2. Harms – Civil Procedure in the Superior Court LEGISLATION ACTS: The acts and their amendments are published in the Government Gazettes. The Government Printer does not yet publish online. During your studies you could use our hardcopy and online versions of the legislation from Jutas and LexisNexis Butterworths. These are updated regularly. Basically you cannot get away from the need to use these commercial sources for legislation. The acts on the Government websites at this stage do not include the amendments to the acts. Thus you can use it if it is a brand new act – but if not, it may be outdated. In addition to these, there is also Netlaw from Sabinet, which is the most up-to-date source of the acts. In the hardcopy Butterworths sets of Statutes you will find very useful additional information. For each act you will find “References to Decided Cases” for that act. The material is arranged by the sections within the act. Besides this there are also “References to Regulations,etc. Published in Government Gazettes” for each act. In the online Jutas SA Statutes there is added to many acts a list of CASES where sections of acts have been considered. These cross-references are very useful in practice. RULES OF COURT: The online Jutas SA Statutes contains the Magistrate’s Rules of Court and the High Court Rules of Court. They are found under ‘Regulations and Rules’. FORMS: Still in the online Jutas SA Statutes find these under High Court Rules of Court and then Uniform Rules of Court, and then First Schedule and Second Schedule. Below is a screen shot of part of this information. 
REGULATIONS: Regulations appear in the Government Gazettes. In the library we have access to the online Juta’s Regulations of South Africa. This is most useful if you can have access to it. If not you will need to use the hardcopy version of Butterworths “References to Regulations,etc. Published in Government Gazettes”(see above) or the gazettes. Online access is obtainable commercially from Jutas, Butterworths and Sabinet. Many of the subject-specific looseleaf books do have the relevant regulations included in them. Please note the information on this screen shot which gives the contents of the online version of Jutas Statutes: 
The Butterworths RSA Statutes is quite similar to the Jutas’ version. Also has a lot of useful additional information. Here is a screen shot of the contents of the Butterworths RSA Statutes: 
BILLS:
Bills and draft bills are mostly published in Government Gazettes. Probably the best source is still the databases from Sabinet - under “All Legal Products” – ‘Bill Tracker’ and ‘Policy Documents’. The latter contains Draft Bills as well as Government Policy documents. If you do not have access to these then you may use the free material from the internet. Bills are obtainable free from the following website: http://gov.za – Under ‘Information’ go to ‘Documents’ – then ‘Bills’ and so on. http://www.polity.org.za. (under ‘Legislation and Policy’) We suggest that you subscribe to “Legalbrief” – it is a newsletter on legal matters and is sent on a daily basis by email. There is a alert section dealing with new legislation and there is also information on some new case law. Legalbrief@legalbrief.co.za CASE LAW It must always be remembered that it is most important to find the latest case law on a particular point. As mentioned before you should use an up-to-date textbook on the subject as a guide, and then search the law reports for the latest judgments. (Authors of textbooks may leave out important case law) Jutas and LexisNexis Butterworths are once again your most important sources. Remember that there is considerable duplication between the 2 publishers. In practice you will need to keep up-to-date with what is published in the “blue book” – your monthly edition of the SA Law Reports. Jutas publish the SA Law Reports (from 1828 up to the today), SA Criminal Law Reports and the Industrial Law Journal, both in hardcopy and online. In addition, they also have the Jutas Daily Law Reports - online only. Butterworths publish the following series:
NB - Noter-up or Annotations: This is information which you may not have used in your studies but which you will find invaluable in practice and is contained in the following (in hardcopy format):
If you are using the online versions of Jutas you will find the same information. For example - in the case information in the SALR you will find a “Link to Case Annotations”. If you follow this link it will give you the information regarding whether or not the case has been considered judicially (compared, considered, applied, referred to, distinguished). Obviously, when using case law you need this information. The Butterworths Noter-up online material is available with their reference works. There are not direct links from the online law reports as it is with the Juta material 
UNREPORTED CASES: These may be obtained from the clerk of the court in which the case was heard. But you may also find them in the JOL (Judgments Online – Butterworths) , the Jutas Daily Law Reports, or SAFLII. The first 2 are commercially available but SAFLII is a free site on the web.
- Constitutional Court http://www.constitutionalcourt.org.za/site/home.htm - South African Legal Information Institute – SAFLII http://www.saflii.org.za./ (Please note it is advisable to go directly to the websites as given above, rather than use the UP Law Library website, unless you are still a registered student). Acts and the case law linked to it:
JOURNALS You have all used journals and you know that journals contain very useful information. They will also assist you to stay abreast of developments in the law. There are about 25 academic law journal titles in this country alone.You may wish to subscribe to some of them. The Annual Survey of South African Law can be useful. It is published by Jutas. De Rebus – will probably be used by all of you and it is worthwhile. I believe it is free on the web. http://www.derebus.org.za/ The sorry state of affairs is that there is only one fully free online academic journal in this country – namely “Potchefstroom Electronic Law Journal” http://www.puk.ac.za/fakulteite/regte/per/index.html 
Other commercially available electronic journals can be obtained from Jutas and from Sabinet (SAePublications). A list of the SA academic law journals is attached to these notes. The Constitutional court website contains a free index to journal articles called iSALPi www.constitutionalcourt.org.za. – go to the library and then iSALPI. FOREIGN LEGAL MATERIAL If you have no access to any international legal databases then the first place to look for material is on WORLDLII http://www.worldlii.org/. On the left you see All Countries. Contains some law reports and legislation. For some countries there is a lot of material – but for others there may be very little. 
If you work for a firm that has access to the Westlaw or LexisNexis (Iinternational) database, you will have a wide range of legal information from the western world (UK, US, Canada, Australia, Hong Kong and so on) at your disposal. These databases include full-text law reports, legislation, journal articles and other material. Westlaw: You will need to select a database when searching in Westlaw. For example: “Combined world journals and law reviews’; ‘US collection-All Federal and State Cases’; ‘United Kingdom Statutes’ and so on. If you use the “Terms and connectors” search option (which we would recommend) you will need to search for a phrase by using “inverted commas”. Other searching tips: & AND /s In same sentence space OR /p In same paragraph “ “ Phrase /n Within n terms of % But not AU( ) author’s name ! Root expander TI( ) words in the article title * Universal character Below is a screen shot of one of the pages in Westlaw. Tip: Use World Journals for articles and WLI Academic for case law and legislation.  HOW TO KEEP YOUR KNOWLEDGE UP-TO-DATE:
In view of the above it should be clear that it remains a huge task to keep oneself updated on new developments in law. It is important though that lawyers develop a system to do so. It is highly recommended that you,at least, read the summaries of new judgments on a regular basis and to page through Government Gazettes etc and make notes of new legislation et. – especially the areas of law that you work in. It is also recommended that you visit a law library form time-to-time and page through law journals – making notes of articles and other matters of interest to you. A minimum requirement is to subscribe to the De Rebus (attorneys receive this journal automatically) and to read it every month –especially those sections that deal with new legislation and judgments. It also contains a list of recent journal publications and newly published books. It is also a good idea to read the Juta Law Quarterly and Annual Survey of SA Law (ASSAL is published annually and it gives you a comprehensive overview of legal developments within a particular year of almost all the legal fields.) In time you will become a specialist in one or more areas of the law and clearly you will do more reading in such area(s). If you are in practice it is a good idea to keep updated in terms of the general tools of the trade, like civil procedure and evidence, even if you are a specialist family law lawyer or whatever. October 2008 Shirley Gilmore (With thanks to Andre Boraine for his assistance and suggestions) 1 Follow ordinary rules of locus standi and citation. 2 Follow ordinary rules of jurisdiction as they apply in the high court or the magistrate’s court since either of these courts will usually be approached. Schedule 2 item 1 of the Act amended s 29(1) of the Magistrates’ Court Act by making it clear that this Court will have jurisdiction over actions arising from the Act. 3 The tenor of the Act is that the agreement must be reduced into writing containing all the prescribed rights and obligations of the parties but non-compliance will not void it. Note that rule 18(6) of the Uniform Rules of the High Court, requires from a plaintiff to indicate if the contract was entered into orally or in writing and if in writing, to attach a true copy thereof or of the part relied on in the pleading. It is submitted that the same prescription be followed in a magistrates court although the rules of this court do not provide a similar rule. 4 Although not discussed in this article, it is important to note that the Act contains a fixed list of fees, charges, interest and items that a credit provider may claim from a consumer – see Part C in chap 5. It is also notable that the in duplum rule regarding interest has been extended in s 103(5) of the Act. The particulars of claim and the prayers in this regard must thus comply with the provisions of the Act and the credit provider may not charge any amount over and above that provided for by the Act – see in particular s 100 of the Act and for a explanation of the financial matters regulated by the Act, see Otto The National Credit Act Explained chap 8. 5 See the definition of instalment agreement in s 1 of the Act. 6 It is submitted that the particulars of claim could be amended to indicate compliance with the notification procedure where notice had been complied with but where such notice had not been given, it would amount to a fatal defect in the pleading. 7 It is to be noted that the amount of damages would not necessarily be ascertainable before repossession of the goods. See also s 127. 8 It is also notable that the in duplum rule regarding interest has been extended in s 103(5) of the Act to also include legal costs. 9 See prayers 1 and 2, notice of motion. 10 Uniform Rules of the High Court. 11 Rule 6(12)(b). 12 Superior Court Practice at B1-56, fn 3. 13 Reproduced in Erasmus D5-14S-14W. 14 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd1949 (3) SA 1155 (T) at 1163. 15 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H-635C. See also the recent unreported judgment in Wightman v Headfour (Pty) Ltd (66/2007) [2008] ZASCA 6 (10 March 2008), in which this approach was once again affirmed. 16 See, in a different context, but equally applicable in casu, Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA). See also Foentjies v Beukes 1977 (4) SA 964 (C) at 966D-E; Gordon v Durban City Council 1955 (1) SA 634 (N). Yüklə 1,13 Mb. Dostları ilə paylaş:
|
