Pleadings
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PLEADINGS PACK : 2009 INDEX : PLEADINGS : 2009 ANNEXURE: PLEADINGS A. INTRODUCTION TO THE DRAFTING OF PLEADINGS 5 CASE STUDY: FACTS 11 PART 1: THE PLEADING PHASE IN THE MAGISTRATE'S COURT a) Framework 17 b) Interim steps that the parties can consider during the pleading stage in the magistrates court 18 c) Theory - Motor Vehicle Accident 19 i) Cause of action 19 ii) Defense 20 d) Exchange of pleadings in defended motor vehicle collision until litis contestatio 21 Example 1 Summons commencing action (Ordinary) 21 2 Particulars of Claim 25 3 Notice of Intention to Defend 27 4 Request for Further Particulars ito Rule 16 of Act 32 of 1944 28 5 Application in terms of Rule 60(2) 30 6 Notice of Application in terms of Rule 60(3) 31 7 Notice of Bar 32 8 Plea 33 9 Plea to Counterclaim 36 10 Notice of Set Down for Trial 37 11 Notice in terms of Rule 23(1), (3) & (4) 38 12 Discovery Affidavit 40 13 Notice in terms of Rule 24(9)(a) and (b) 44 14 Request for Inspection of Object in terms of Rule 24(6) and (7) 46 15 Notice in terms of Rule 24(10) 47 16 Agreement Not to Appeal 49 Magistrates Court Pleading: Deviations 50 Scenario One: Defective Summons Example 17 Summons Commencing Action 51
Example 23 Application for Default Judgment 64 24 Affidavit in support of Application for Default Judgment ito Rule 12(4) 66 Scenario Three: Application for Summary Judgment and Opposing Affidavit Example 25 Application for Summary Judgment 68 26 Supporting Affidavit 69 27 Opposing Affidavit 70 Scenario Four: Where Defendant requests copies of Accounts and Documents Example 28 Notice ito Rule 15(1) 72 29 Plaintiff's reply to Defendant's request ito Rule 15(1) 73 Scenario Five: Where Plaintiff is a company, Defendant would be able to request security for costs Example 30 Request for Security for Costs ito Rule 62(1) of Act 32 of 1944 74
to appeal Example 32 Request for Reasons for judgment ito Rule 51 76 Scenario Seven: Notice of Appeal 77 Example 33 Notice of Appeal PART II: THE ACTION PROCEDURE IN THE HIGH COURT
b) Interim steps that the parties can consider during the pleading phase in the High Court 81 (1) DAMAGES ACTION IN THE HIGH COURT Example 34 Notice of Motion (Appointment of curator ad litem) 83 35 Draft Order 85 36 Founding Affidavit 88 37 Letter of Consent 91 38 Notice of Set Down 92 39 Combined Summons 93 40 Return of Service 98 41 Appearance to Defend 99 42 Notice ito Rule 36(4) 100 43 Notice of Offer of Settlement ito Rule 34(1) & (5) 101 44 Reply to Notice ito Rule 36(4) 102 45 Defendant’s Plea 104 46 Notice of Application for a Trial Date 107 47 Notice of Set Down 108 48 Notice ito Rule 35(1) 109 49 Notice ito Rule 35(10) 110 50 Notice ito Rule 35(8) 111 51 Notice ito Rule 36(9)(a) 112 52 Notice ito Rule 36(10) 113 53 Notice ito Rule 36(9)(b) 114 54 Subpoena 115 55 Notice ito Rule 36(1) & (2) 116 56 Notice ito Rule 36(9)(a) and 36(9)(b) 118 (2) THE DIVORCE ACTION
62 Affidavit 130 63 Defendant’s Plea 133 PART III : PROVISIONAL SENTENCE Theory: Provisional Sentence: Cheque 135 Example 64 Summons 136 PART IV : AGENT’S COMMISSION
Example 65 Particulars of Claim 141 PART V : INTERDICTS AND SPOLIATION
Example 66 Founding Affidavit 146 PART VI : SEQUESTRATION AND REHABILITATION APPLICATIONS
Example 67 Application Voluntary Surrender 148 Theory: Compulsory Sequestration 152 Example 68 Application Compulsory Sequestration 152 Theory: Rehabilitation 156 Example 69 Application Rehabilitation 156 PART VII : ENTRY AND WITHDRAWAL AS ATTORNEY OF RECORD Example 70 Notice of Entry as Attorney of Record 162 PART VIII : SPECIAL PLEA Example 71 Defendant’s Special Plea 164 PART IX : NATIONAL CREDIT ACT 34 OF 2005
Example 72 Section 129 notice 168 Example 73 Particulars of claim 169 ANNEXURE “A” 177 New High Court Name ANNEXURE “B” 179 Magistrate’s Court Application ANNEXURE “C” 187 High Court Application ANNEXURE “D” 204 Causes of Action ANNEXURE “E” 213 Legal Research Sources A. INTRODUCTION TO THE DRAFTING OF PLEADINGS “The more you practice, the luckier you get.” (Gary Player)
The South African System of Civil Procedural Law is based on the principle of exchange of written documents in compliance with the audi et alteram partem principle. This litigation technique promotes effective litigation as parties are notified of each other’s case. An orderly litigation process saves time and reduces legal costs as a party does not attend the trial without prior knowledge of the case. In King v King 1971 (2) SA 630 (O) it is said that the function of pleadings is:
It is important that the issues are set out in the pleadings precisely and with sufficient particularity so that it will also be clear to somebody other than the litigants what the dispute is about. Preciseness should however not be equated with furnishing of unnecessary detail. In principle the pleadings must be drafted in such a manner that it will be so precise and correct that amendments are unnecessary. In order to attain this goal the golden rule in the drafting of legal documents is: Consult properly, obtain all the facts, ensure that you know precisely what your mandate is and know the substantive law applicable to the specific circumstances. In so doing the necessity to amend in order to prevent embarrassment and damages is greatly eliminated.
Although it is convenient to merely make use of precedents of legal documents, slavish application of precedents may sometimes be detrimental. It is better to develop and improve the skill of drafting of legal documents by regular exercise and meticulous analysis of the facts and required relief in each unique situation. The law consists of various fields of speciality which are often very technical in nature and include sui generis legal terminology. Elaborate poetical attempts to formulate issues will not suffice. You must give prior consideration to each statement that you make in a legal document: you must thus take care that you are fully aware of why you are making the statement in other words – what do you wish to attain thereby? The purpose and consequences of the statement must thus be taken into consideration. When you eventually formulate the statement, the language employed must be unambiguous, clear and concise.
The importance of the heading of a pleading must never be underestimated. The drafting of the heading represents the initial phase in the drafting of pleadings and notices. You must take care that the heading indicates the following:
As already indicated, the golden rule for the proper drafting of pleadings is that you must consult properly and acquaint yourself with the facts. You must also take care to acquaint yourself with the applicable law in order to make an informed decision regarding the existence of a cause of action or defence as the case may be. You can then set out the main points of the claim or defence and ensure that you set out all the facta probanda necessary to support the claim or defence. What you must thus do, put simply, is to set out in legal language the “story” of your client’s claim or defence. As with any story it is important to have an orderly chronological course. You must thus elaborate the main points that you have identified to such an extent that it will amount to a clear and concise explanation of the material fact and that it will justify the legal conclusion and desired relief. You must guard against mentioning unnecessary and immaterial facts in your pleadings. You are for instance, not supposed to quote a section of an Act fully in your pleading. You may however refer to a relevant section, eg. section 11 of the Credit Agreement Act 75 of 1980.
The general rule is that the plaintiff ought to include in the particulars of claim only those particulars in respect whereof he or she bears the onus (eg. if the plaintiff sues as a result of assault, he need not also allege the lack of grounds of justification).
In the plea you must indicate which of the allegations contained in the plaintiff’s particulars of claim or declaration you:
You must indicate which facts are not admitted and to which extent and you must clearly and concisely mention all material facts whereupon the defence is based. The following important rules must be borne in mind when you draft a plea:
or
It is not necessary to deliver a replication/reply as in case of failure to deliver same it is deemed that the plaintiff in any event denies the allegations in the defendant’s plea. Depending on the facts of the specific matter, it may be necessary for the plaintiff in specific situations to reply to allegations contained in the defendant's plea eg. where the defendant pleads lack of authority and the plaintiff wishes to raise a special plea. You must bear in mind that the replication/reply may not introduce a new cause of action and may not deviate from the original particulars of claim or declaration. In drafting the reply it is important to use paragraphs when dealing with the allegations in the defendant’s plea which the plaintiff wishes to reply to.
The counterclaim is in principle a claim and the drafting of the counterclaim ought to comply with the same requirements as those that are important when drafting particulars of claim. The concepts “plaintiff in reconvention” and “defendant in reconvention” often creates confusion. It is therefore purposive to avoid such confusion by indicating at the commencement of the counterclaim: “Brevitas causa/For purposes of convenience, the parties are referred to as in convention.” Such allegation then has the effect that you refer to the plaintiff throughout the pleadings as plaintiff and to the defendant as defendant for purposes of convenience although it is clear to the parties and the court that the plaintiff and defendant has claims against each other. Where the plea and counterclaim arise from the same set of facts, it is also possible, for purposes of convenience, to make use of cross-reference.
The extent of the detail that you must mention in the notice of exception will depend on the document that you are excepting against. You must bear the following in mind:
You must take care to use the correct form of the notice of motion. When an application is of such a nature that the respondent must get prior notice of the application you must not incorrectly use the ex parte form of the notice of motion. You must thus correctly indicate the type of notice of motion that you are using and take care to indicate the relevant information, as mentioned in (b) herein. You must also bear the following in mind:
b) i) Ex parte application: Notice of motion You must indicate the following:
c) Affidavits in support of applications The following general allegations must be contained in such affidavit:
Note: Only admissible evidence may be contained in the affidavit.
You must bear the following aspects in mind when drafting the affidavit:
Suggested approach:
Remember to sign your pleadings. CASE STUDY FACTS: Jim Swift, an auditor, is testing his new Nissan Hardbody 4 x 4 (registration number ABC 123 GP) in his suburb, Stoneridge. He did not keep a proper lookout and skipped a stop street at the corner of King and Queen avenues. Jack and Jill Hill, two chemists who got married recently, were already driving through the crossing in Jill’s Toyota Corolla (registration number XYZ 456 GP) at the time. Jim hit the Toyota - that was driven by Jack at the time- on the door of the driver. The damages to the Toyota amounted to R20 000 whilst there were only damages to the front bulbar of the Nissan of which the costs to repair amounted to R10 000. Only Jack suffered injuries. He suffered injuries to his head, back and both legs. The police visited the scene of the accident and drafted a sketch plan. They also obtained statements from both Jill and Jim. The public prosecutor had decided to prosecute Jim for reckless and/or negligent driving, alternatively that he failed to stop at the stop street. (The Road Hawk towing service company removed the Toyota from the scene of the accident and took it to the premises of a panel beater.) It appears that Jack will be in hospital for 3 months and that he sustained severe injuries. He will probably never be able to work or take care of his own affairs again. As a result of the injuries:
The amount of the damages is as follows:
disfiguration, loss of amenities, (etc.) claimed by way of a global amount. R150 000-00 R942 267-05 Jill is advised to appoint a curator ad litem for Jack in order to institute a claim against the RAF. (The full claim of R 949 267-05 has been submitted to the RAF but the Fund indicates that it will probably only pay R 343 726-50). Meanwhile Jill sues Jim with regard to the damages to her Toyota. [Although this set of facts clearly demonstrates that both criminal and civil consequences may flow from the same set of facts, this case study will be limited to the civil consequences.] Damages to the Toyota: Since Jill is the registered and/or common law owner of the Toyota she should be advised to institute a civil claim against Jim in a magistrate’s court. The magistrate’s court will be the suitable court since it may adjudicate this type of claim and the monetary value of the claim falls within the monetary jurisdiction of the magistrate’s courts, being R100 000. In order to decide at what specific court the action must be instituted, the place where the action arose wholly or where the defendant resides can be used. Since a dispute of facts may be foreseen in this matter, the procedure to be used is the action procedure in which case Jill must begin the proceedings by issuing a summons against Jim. [The action procedure begins with the issuing of a summons from the relevant court and by serving it on the defendant. In this instance the action will commence with an ordinary magistrates’ court summons. The rest of the procedure is mutatis mutandis the same as the action procedure in the high court as described below with regard to the claim of Jack.] Jack’s claim for bodily injuries: Jack has a claim against the RAF and should institute such claim in the high court since the amount involved is more than R100 000. The civil procedure to use in such a case is also the action procedure. Although there are a number of summonses available in the high court, the combined summons will be the type of summons to use since it is a claim for unliquidated damages. A curator ad litem will have to be appointed since Jack is not mentally fit to bring such an action himself. The application for the appointment of a curator ad litem must be brought by way of an ex parte application since it does not involve another person. [Action procedure is to be used where a (serious) dispute of facts is foreseen at the beginning of the case or where it is prescribed by statute like in this instance.] [Note: With regard to Jack’s claim against the RAF, the general procedure will be discussed. Since every case is unique in some way, a few special procedures that might arise will also be referred to.] PROCEDURE: Preliminary step: application to appoint a curator ad litem As indicated above, a curator ad litem must first be appointed since Jack is not mentally fit to institute the action himself. [The application procedure is used in this instance and Jill will probably bring the application.] Claim for damages etc: General: After the appointment of a curator ad litem, the curator will institute the action on behalf of Jack against the RAF. [Jack would have had a claim against Jim based on delict but the RAF takes the position of a statutory insurer in this instance.] The high court action will be instituted by way of combined summons that will be issued by the Registrar of the High Court and served on the RAF by the Sheriff. The action procedure is marked by various phases, i.e. the pleading phase during which the parties exchange pleadings in order to crystallise the issues between them; the preparation for trial phase during which the parties prepare for trial and during which procedures like discovery and the pre-trial conference take place; thereafter the trial and after judgment, execution of the judgment. [After judgment other procedures like review or appeal may follow.] Pleadings phase: If the RAF fails to give notice of intention to defend after the summons has been served on it, judgment by default may be applied for by the plaintiff. If the RAF indicates that it will defend the matter, it must follow the notice of intention to defend with a formal plea on the merits stating its defence. Jack (the plaintiff) may reply to the plea by way of a reply and the pleadings will usually be closed. [Instead of answering the summons with a plea the RAF may in certain circumstances, if the summons does not contain a cause of action or is vague and embarrassing, raise an exception. If the claim has become prescribed or the court lacks jurisdiction the claim may be met with a special plea that will either destroy the claim or have a dilatory effect on the matter.] Closure of pleadings and the procedure thereafter: After the closure of the pleadings, a court date must be applied for. Documents and expert witnesses to be used in the trial must be discovered, medical examinations and inspection of objects may be asked for and in the high court the pre-trial conference must take place. If the parties cannot settle the matter during the preparation for trial phase, the matter must go on trial during which oral evidence may be heard on those matters that are still in issue. The court will give judgment and if the plaintiff is successful he or she will now be entitled to execute the judgment against the defendant. The successful litigant will usually also obtain a cost order in his or her favour. The type of cost order depends on the facts of the case and the costs may become subject to taxation of the bill of cost. Execution of judgment: After judgment sounding in money has been granted, the plaintiff is known as the judgment creditor and the defendant as the judgment debtor. The judgment creditor (plaintiff) may now execute the judgment against the judgment debtor (defendant) in terms of the execution procedure provided for by the rules of court. This entails the individual debt enforcement or execution procedure. [It may happen that when the sheriff confronts the judgment debtor with the judgment, that he may not be able to settle the amount of the order or he may not be able to indicate sufficient disposable property that will meet the amount of the judgment if sold in execution. In such an event the sheriff will issue a nulla bona return and since it amounts to an act of insolvency, the judgment creditor may then consider to apply for the compulsory sequestration of the estate. The debtor may also decide to apply for sequestration by way of voluntary surrender if his estate is factually insolvent. Sequestration introduces a collective execution device that will replace the abovementioned individual execution procedure and it will bring a concursus creditorum about.] Appeal and review: A party who is dissatisfied with the judgment may lodge an appeal if the court erred on the facts or on a point of law. If it was a magistrates’ court, the case may also be taken on review if there was a serious irregularity in the court procedure. LEGAL REPRESENTATION In practice a prospective litigant will usually consult a practising attorney when faced with a potentially litigious matter. The attorney, in deciding whether to represent the prospective litigant, will have to consider a number of circumstances including:
During the initial consultation between the attorney and the client it is important to take great care to ensure that all relevant information is obtained from the client. At this early stage the attorney must be sufficiently informed of the facts surrounding the client’s case. The attorney collects and considers the documentary evidence relevant to the matter as well as identifying persons to be called as witnesses. This is fundamental in preparing the way ahead, especially if it is anticipated that the matter will become litigious. During the initial consultation, apart from taking proper instructions, the attorney will also make a number of administrative arrangements. a) As a first step the attorney will open a file on behalf of the client. The names of the parties should be clearly indicated on the outside of the file and columns should be drawn up on the outside and inside pages of the file so that a chronological record may be kept of all pleadings and notices received as well as those drafted and served and filed by the attorney. It is also advisable to draw up a column wherein telephone calls made and received may be noted as this will assist when it becomes necessary to draft a bill of costs at a later stage. (In this regard the attorney should note the date and time of the call, to whom the call was made or from whom it was received, and the duration and the main points of discussion.) It is advisable to have a standard form available to be completed by the client prior to the consultation and containing the following information:
It is important to indicate all relevant dates (i.e. prescription dates and trial dates) clearly on the outside of the file in order to ensure that the case is properly administered. b) An account number should be allocated to the client so that the account may be debited with fees and disbursements in respect of services rendered. The attorney should discuss the possible cost implications of the case with the client during the first consultation and obtain a written fee agreement. It is also customary to obtain a deposit from the client in order to cover the initial expenses of the case. After the consultation, the attorney should address a letter to the client wherein the attorney’s mandate is clearly confirmed. It is essential to keep the client informed of any and all progress with regard to the matter. In the event that the attorney is unable to contact the client for lengthy periods of time and is unable to receive instructions, the appropriate course is to withdraw as the attorney of record. Once the attorney has considered all the relevant aspects of the matter, he or she must have a clear understanding of the procedure to be followed. The attorney remains responsible for the management of the case until the matter has been finalised by means of settlement, a court order or until his or her mandate is withdrawn. The attorney may, in some matters, appoint an advocate to attend to the drafting of some of the pleadings and finally to conduct the case when the matter goes on trial – especially when it is a High Court matter. It may therefore become necessary to properly brief the advocate as well. PART I THE PLEADING PHASE IN THE MAGISTRATE'S COURT a) FRAMEWORK Plaintiff issues Summons (1) Sheriff serves (2) Summons on Defendant Defendant serves (3) Notice of Intention to Defend Defendant delivers Plea (4) and Counterclaim (5) Plaintiff delivers Replication (6) and Plea to Counterclaim (7) CLOSE OF PLEADINGS b) INTERIM STEPS THAT THE PARTIES CAN CONSIDER DURING THE PLEADING STAGE IN THE MAGISTRATES COURT: I.r.o. 3: Plaintiff can consider: - Summary Judgment - Provisional Sentence - Defective Default Judgment (first send remedial notice) Defendant can consider: - Rule 15(1) [later Rule 15(3) - Rule 16 (later Rule 60(2) + (3)) - Exception - Security for costs I.r.o. 4: Plaintiff can consider: - Notice of Bar (if Plea is late) - Exception
Rule 16 (later Rule 60(2) + (3)) - Exception
c) THEORY - MOTOR VEHICLE ACCIDENT i) Cause of action When you are formulating the cause of action the event of a motor vehicle collision it is important to mention the following in your summons:
NOTE: 1. In the cause of a collision where vicarious liability is concerned, there will be two defendants. The following clauses will have to be inserted in such a summons: 2. "The FIRST DEFENDANT is OMEGA MEDICALS (PTY) LTD, a private company with limited liability, duly registered and incorporated in terms of the Companies Act of South Africa with its registered office at KINGBOLT CRESCENT 10, WAPADRAND, PRETORIA, GAUTENG". 3. "The SECOND DEFENDANT is COL SPANDALIE, an adult female medical representative, resident at KINGBOLT CRESCENT 7, WAPADRAND, PRETORIA, GAUTENG". 4. After the clause describing how the accident occurred, the following should be inserted as a new clause. 5. The SECOND DEFENDANT at all relevant times hereto acting within the course and scope of her employment with FIRST DEFENDANT. NOTE FURTHER: When you pray for judgment it will be against FIRST and SECOND DEFENDANT, jointly and severally; the one to pay, the other to be absolved. ii) DEFENSE When you are formulating the defence, you must pay attention to the following:
d) EXCHANGE OF PLEADINGS IN DEFENDED MOTOR VEHICLE COLLISION UNTIL LITIS CONTESTATIO EXAMPLE 1
No. RM2 SUMMONS COMMENCING ACTION (ORDINARY) Sued out by: Johannes Voet Attorneys Kirkness Street 431 Sunnyside Pretoria _______________________________________________ Signature of Plaintiff or his Attorney
You are hereby summoned that you do within 5 (five) days of the service of this summons deliver or cause to be delivered to the Clerk of the aforesaid court and also the Plaintiff or his attorney, at the address specified herein, a notice in writing of your intention to defend this action and answer the claim of: JILL HILL, an adult female pharmacist resident at 20 Queens Crescent, Lynnwood, Pretoria the Plaintiff herein, particulars whereof are endorsed hereunder. (1) Particulars: Plaintiff's claim against the Defendant is for: SEE PARTICULARS OF CLAIM ATTACHED HERETO The whole cause of action arose within the jurisdiction of the above Honourable Court. Wherefore Plaintiff prays for Judgment against the Defendant in the said sum, with costs. Costs if the action is undefended will be as follows: Summons Judgment R c R c Attorney's charges ................................................................. 142 50 108 30 Court fees .............................................................................. 20 00 Messenger's fees (to be added) ............................................. Messenger's fees on re-issue ................................................. ----------- ----------- Totals ..................................................................................... R R ----------- ------------ Total ..................................................................................... R ====== AND TAKE NOTICE THAT - (a) in default of your paying the amount of the claim and costs within the said period or of your delivering a notice of intention to defend you will be held to have admitted the said claim and the plaintiff may proceed therein and judgment may be given against you in your absence; (b) if you pay the said claim and costs within the said period judgment will not be given against you herein and you will save judgment charges. You will also save judgment charges if, within the said period, you lodge with the Clerk of the aforesaid Court a consent to judgment; (c) if you admit the claim and wish to consent to judgment or wish to undertake to pay the claim in instalments or otherwise, you may approach the plaintiff or his attorney. Notice: Any person against whom a court has, in a civil case, given any judgment or made any order, and who has not, within 10 days, satisfied in full such judgment or order –
NOTICE:- (i) Any person against whom a court has, in a civil case, given judgment or made any order who has not, within 10 days, satisfied in full such judgment or order may be called upon by notice in terms of section 65A(1) of the Act to appear on a specified date before the court in chambers to enable the court to inquire into the financial position of the judgment debtor and to make such order as the court may deem just and equitable. (ii) If the court is satisfied that- (aa) the judgment debtor or, if the judgment debtor is a juristic person, a director or officer of the juristic person has knowledge of the above-mentioned notice and that he or she has failed to appear before the court on the date and at the time specified in the notice; or (bb) the judgment debtor, director or officer, where the proceedings were postponed in his or her presence to a date and time determined by the court, has failed to appear before the court on that date and at that time; or (cc) the judgment debtor, director or officer has failed to remain in attendance at the proceedings or at the proceedings so postponed, the court may, at the request of the judgment creditor or his or her attorney, authorise the issue of a warrant directing a sheriff to arrest the said judgment debtor, director or officer and to bring him or her before a competent court to enable that court to conduct a financial inquiry. (Section 65A(6) of the Act)
(aa) is called upon to appear before a court under a notice in terms of section 65A(1) or (8)(b) of the Act (where the sheriff, in lieu of arresting a person, hands to that person a notice to appear in court) and who wilfully fails to appear before the court on the date and the time specified in the notice; or (bb) where the proceedings were postponed in his or her presence to a date and time determined by the court, wilfully fails to appear before the court on that date and at that time; or (cc) wilfully fails to remain in attendance at the relevant proceedings or at the proceedings so postponed, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three months. (Section 65(9) of the Act) (iv) On appearing before the court on the date determined in the notice in terms of section 65A(1) or (8)(b) of the Act in pursuance of the arrest of the judgment debtor, director or officer under a warrant referred to in section 65A(6) of the Act or on any date to which the proceedings have been postponed, such judgment debtor, director or officer shall be called upon to give evidence on his or her financial position or that of the juristic person and his or her or its ability to pay the judgement debt. [Section 65D of the Act] (v) Any person against whom a court has, in a civil case, given any judgment or made any order who has not satisfied in full such judgment or order and paid all costs for which he or she is liable in connection therewith shall, if he or she has changed his or her place of residence, business or employment, within 14 days from the date of every such change notify the clerk of the court who gave such judgment or made such order and the judgment creditor or his or her attorney fully and correctly in writing of his or her new place of residence, business or employment, and by his or her failure to do so such judgment debtor shall be guilty of an offence and liable upon conviction, to a fine or to imprisonment for a period not exceeding three months. [Section 109 of the Act] (2) Consent to Judgment I admit that I am liable to the plaintiff as claimed in this summons (or in the amount of R and costs to date) and I consent to judgment accordingly. Dated at this day of 20 . Defendant________________________ *(3) Notice of Intention to Defend To the Clerk of the Court Kindly take notice that the defendant hereby notifies his intention to defend this action.
EXAMPLE 2 e) PARTICULARS OF CLAIM 1. The plaintiff is Jill Hill, an adult female pharmacist resident at 20 Queens Crescent, Lynnwood, Pretoria. 2. The defendant is Jim Swift, an adult male auditor resident at Kingbolt Crescent 7, Wapadrand, Pretoria. 3. The plaintiff is the owner of a Toyota Corolla vehicle with registration number XYZ 456 GP. 4. On 1 March 2006 and at the corner of King and Queen Avenues, Lynnwood, Pretoria a collision occurred between the plaintiff's vehicle and the defendant's vehicle, a Nissan Hardbody registration number ABC 123 GP, which vehicle was at all material times driven by defendant. 5. The collision as aforesaid was caused by the sole negligence of the defendant in that he wasnegligent in one, more or all of the following aspects: 5.1 failed to keep a proper look-out; 5.2 drove at a speed in excess of the speed limit. 6. As a result of the collision as aforementioned, plaintiff suffered damages in the amount of R20 000, being the fair and reasonable and necessary costs of repairing plaintiff's vehicle to its pre-collision condition. 7. Despite proper and lawful demand defendant fails or refuses to pay the aforementioned amount or any part thereof as claimed to plaintiff). WHEREFORE PLAINTIFF PRAYS FOR JUDGMENT AGAINST DEFENDANT FOR: a) Payment of R20 000 b) Interest on the above amount at 15,5% a tempore morae c) Cost of suit.
Johannes Voet Attorneys Attorneys for Plaintiff 431 Kirkness Street Sunnyside Pretoria
EXAMPLE 3 IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA HELD AT PRETORIA Case Nr. 1/2006 In the matter between: JILL HILL Plaintiff and JIM SWIFT Defendant _____________________________________________________________________________ NOTICE OF INTENTION TO DEFEND _____________________________________________________________________________ Take notice that defendant hereby gives notice of his intention to defend the action. Take notice that defendant hereby appoints the below mentioned attorneys as his attorneys of record at which address he will accept service of all processes, notices and documents in the action. Signed at Pretoria on this the ___ day of March 2006 ___________________________ Gaius Van Wyk Defendant’s Attorney 10 Kirkness Street Sunnyside Pretoria
TO: The Clerk of the Court Pretoria
Attorneys for Plaintiff 431 Kirkness Street Sunnyside Pretoria
Received copy hereof on this the ______ day of April 2006 __________________________ Attorneys for Plaintiff EXAMPLE 4 IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA HELD AT PRETORIA Case Nr. 1/2006 In the matter between: JILL HILL Plaintiff and JIM SWIFT Defendant ______________________________________________________________________________ REQUEST FOR FURTHER PARTICULARS IN TERMS OF RULE 16 OF ACT 32 OF 1944 ______________________________________________________________________________ Kindly take notice that Defendant requires the following particulars to Plaintiff's Particulars of Claim to reasonably enable him to plead: 1. AD PARAGRAPH 5.1 THEREOF 1.1 In which manner is it alleged, did Defendant not keep a proper lookout? 1.2 At which speed did the defendant allegedly drive?
A detailed indication of how the amount of R20 000,00 is calculated, is required. 3. AD PARAGRAPH 7 THEREOF Detailed particulars of the alleged demand to defendant, is required. It must specifically be indicated when, by whom and to whom demand was made and whether it was oral or in writing. If oral, detailed particulars are required. If in writing, a copy is required. Signed at Pretoria on this the ___ day of April 2006 _______________________________ Gaius van Wyk Attorneys for Defendant 10 Kirkness Street Sunnyside Pretoria (Ref. G van Wyk) TO: The Clerk of the Court Pretoria
Attorneys for Plaintiff 431 Kirkness Street Sunnyside Pretoria
(Ref. J Voet) Received copy hereof on this the _____ day of April 2006 ________________________________ Attorneys for Plaintiff EXAMPLE 5 IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA HELD AT PRETORIA Case Nr. 1/2006 In the matter between: JILL HILL Plaintiff - Respondent and JIM SWIFT Defendant -Applicant ______________________________________________________________________________ APPLICATION IN TERMS OF RULE 60(2) ______________________________________________________________________________ Kindly take notice that the Applicant intends to apply to Court on 28 April 2006 for an order in the following terms: 1. That Respondent is ordered to furnish the further particulars requested by Applicant on 2 April 2006 within 10 (ten) days. 2. That Respondent bears the costs of this application. Signed at Pretoria on this the ___ day of April 2006. _______________________________ Gaius van Wyk Attorneys for Applicant 10 Kirkness Street Sunnyside Pretoria
(Ref. G van Wyk) TO: The Clerk of the Court Pretoria
Attorneys for Respondent 431 Kirkness Street Sunnyside Pretoria
(Ref. J Voet) Received copy hereof on this the _____ day of April 2006. ________________________________ Attorneys for Respondent EXAMPLE 6 IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA HELD AT PRETORIA Case Nr. 1/2006
______________________________________________________________________________ NOTICE OF APPLICATION IN TERMS OF RULE 60(3) ______________________________________________________________________________ Kindly take notice that Applicant intends to apply to Court on 28 May 2006 for an order in the following terms: 1. That the Respondent's claim be dismissed with costs due to Respondent's failure to furnish further particulars in terms of the Court Order dated 28 April 2006. 2. That Respondent is ordered to pay the costs of this application. Signed at Pretoria on this the ___ day of May 2006. _______________________________ Gaius van Wyk Attorneys for Applicant 10 Kirkness Street Sunnyside Pretoria (Ref. G van Wyk) TO: The Clerk of the Court Pretoria
Attorneys for Respondent 431 Kirkness Street Sunnyside Pretoria
(Ref. J Voet) Received copy hereof on this the _____ day of May 2006.
Attorneys for Respondent EXAMPLE 7 IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA HELD AT PRETORIA Case Nr. 1/2006 In the matter between: JILL HILL Plaintiff and JIM SWIFT Defendant _____________________________________________________________________________ NOTICE OF BAR _____________________________________________________________________________ Kindly take notice that Plaintiff herewith requests Defendant to file his plea within 5 (five) after receipt hereof failing which she will ipso facto be barred to deliver his plea in which event Plaintiff will apply for default judgment against Defendant. Signed at Pretoria on this the ___ day of June 2006. _______________________________ Johannes Voet Attorneys for Plaintiff 431 Kirkness Street Sunnyside Pretoria
(Ref. J Voet) TO: The Clerk of the Court Pretoria
Attorneys for Defendant 10 Kirkness Street Sunnyside Pretoria
(Ref. G van Wyk) Received copy hereof on this the _____ day of June 2006.
Attorneys for Plaintiff EXAMPLE 8 IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA HELD AT PRETORIA Case Nr. 1/2006 In the matter between: JILL HILL Plaintiff and JIM SWIFT Defendant _____________________________________________________________________________ PLEA _____________________________________________________________________________ Kindly take notice that defendant pleads as follows to Plaintiff’s Particulars of Claim: 1. Ad paragraph 1, 2 and 3 thereof: The contents of these paragraphs are admitted. 2. Ad paragraph 4 and 5 thereof: The contents of these paragraphs are denied as if specifically traversed and plaintiff is put to the proof thereof. 3. AD PARAGRAPH 6 THEREOF: The Defendant bears no knowledge of the allegation contained herein cannot admit or deny same and accordingly puts the plaintiff to the proof thereof. 4. The defendant pleads that he was in no respect negligent and can consequently not be held liable for plaintiff's damages, which damages he lawfully refuses to pay. Demand is admitted. Wherefore defendant prays that plaintiff's claim be dismissed with costs. _____________________________________________________________________________ COUNTERCLAIM _____________________________________________________________________________ 1. Brevitas causa the parties are referred to as in convention. 2. Paragraphs 1 and 2 of plaintiff's particulars of claim are referred to as if specifically incorporated herein. 3. At all relevant times hereto the Defendant was the owner of a Nissan Hardbody, registration number ABC 123 GP. 4. On 1 March 2006 and at the corner of King and Queen Avenues, Lynnwood, Pretoria, a collision occurred between the defendant’s vehicle and the plaintiff’s vehicle, a Toyota Corolla with registration number XYZ 456 GP, which vehicle was at all material times driven by plaintiff. 5. The aforementioned accident was solely caused by the negligence of the Plaintiff in that she: a) Failed to keep a proper lookout. b) In the prevailing circumstances, drove at an unreasonably high speed. 6. As a result of the plaintiff's negligence the Defendant suffered damages in the amount of R10 000, being the fair, reasonable and necessary costs to repair his vehicle to its precollision condition. 7. Despite proper and lawful demand Plaintiff fails and/or refuses to pay to Defendant the aforementioned amount or any part thereof. Wherefore Defendant prays for judgment against Plaintiff for: a) Payment of R10 000 b) Interest on the above amount at 15,5% a tempore morae c) Cost of suit. Signed at Pretoria on this _______________day of June 2006 _____________________________ Attorneys for Defendant Gaius van Wyk 10 Kirkness Street Sunnyside Pretoria
Pretoria AND TO: Attorneys for Plaintiff Johannes Voet 431 Kirkness Street Sunnyside Pretoria
Received copy hereof on this the day of June 2006. _____________________________ Attorneys for Plaintiff EXAMPLE 9 IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA HELD AT PRETORIA Case Nr. 1/2006 In the matter between:
and
JIM SWIFT Defendant ___________________________________________________________________________ PLEA TO COUNTERCLAIM ___________________________________________________________________________ Kindly take notice that Plaintiff pleads as follows to Defendant's counterclaim: 1.
The contents of these paragraphs are admitted. 2.
The contents of these paragraphs are denied as if specifically traversed and the defendant is put to the proof thereof. 3.
Demand is admitted. 4. The Plaintiff specifically pleads that the sole cause of the collision and the consequent damages was occasioned by the negligence of the Defendant, as set out in paragraph 5 of the Plaintiff's Particulars of Claim (may also add alternative of contributory negligence). 5. Should the court find that the Plaintiff was negligent, all which is still denied, the plaintiff pleads in the alternative that such negligence did not cause the collision. Wherefore the Plaintiff prays that the Defendant's counterclaim be dismissed with costs alternatively that the amount claimed be reduced in accordance with the Appropriation of Damages Act. Signed at Pretoria on this the ____ day of July 2006. ___________________________ Johannes Voet Attorneys for Plaintiff 431 Kirkness Street Sunnyside Pretoria TO: The Clerk of the Court Pretoria AND TO: Gaius van Wyk Attorneys for Defendant 10 Kirkness Street Sunnyside Pretoria __________________________________ Received on this the ____ day of July 2006. _____________________________ Attorneys for Defendant
HELD AT PRETORIA Case Nr. 1/2006 In the case between: JILL HILL Plaintiff and JIM SWIFT Defendant
Take notice that the above matter has been set down for hearing on _________________________ at 08:30 or thereafter as soon as the parties may be heard. Signed at Pretoria on _________day of July 2006.
Attorneys for Plaintiff Johannes Voet 431 Kirkness Street Sunnyside Pretoria
Ref. J Voet TO: The Clerk of the Court Pretoria
Attorneys for Defendant 10 Kirkness Street Sunnyside Pretoria Ref. G van Wyk Received on this the _________ day of July 2006 _______________________________ Attorneys for Defendant
HELD AT PRETORIA CASE NR. 1/2006
__________________________________________________________________________ NOTICE IN TERMS OF RULE 23(1), (3) & (4) __________________________________________________________________________ Be pleased to take notice that in terms of Rule 23(1) of the Magistrates Court Act plaintiff requires defendant within 10 (ten) days from date of receipt hereof to deliver a list of the documents under defendant’s control or in his possession that relate to this action and that defendant intends to use at the hearing of this matter/in this action, or that can contribute to proving or disproving the case of the one or the other of the parties. Kindly further take notice that in terms of Rule 23(4) of the Magistrates Court Act plaintiff requires defendant to produce at the trial of this action all books and documents disclosed by defendant in terms of Rule 23(1). Kindly furthermore take notice that in terms of Rule 23(3) of the Magistrates Court Act plaintiff requires defendant to allow plaintiff to inspect all books and documents disclosed by defendant in terms of Rule 23(1) or that were indicated in a notice delivered in terms of Rule 23(4) and to make copies thereof. Signed at Pretoria on this _________day of August 2006 ________________________________ Attorneys for Plaintiff Johannes Voet 431 Kirkness Street Sunnyside Pretoria
TO: The Clerk of the Court Pretoria
Attorneys for Defendant 10 Kirkness Street Sunnyside Pretoria
__________day of August 2006
Attorneys for Defendant Yüklə 1,13 Mb. Dostları ilə paylaş:
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