Pleadings


EXAMPLE 65 b) Particulars of claim: Agents commission



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EXAMPLE 65




b) Particulars of claim: Agents commission


1.

Plaintiff is Housestory CC, a closed corporation duly registered and incorporated in terms of the Close Corporation Act, with registered office at 10 Lynnwood Avenue, Lynnwood, Pretoria.


2.

Defendant is Stingy Sam, an adult male auditor resident at 5 Sysielaan, Garsfontein, Pretoria.


3.

At all material times Plaintiff was the holder of a valid fidelity fund certificate issued to plaintiff by the Board of estate agents in terms of section 26 of Act 112 of 1976.


4.

At all relevant times plaintiff possessed fidelity fund insurance in terms of the provisions of Act 112 of 1976.


5.

At all relevant time Tough Eberhard (hereafter referred to as the agent) was an estate agent in the employ of Plaintiff and he acted in the course and scope of his employment with plaintiff.


6.

During May 2001 and at Pretoria Luscious Lola (hereinafter referred to as the seller) gave a written mandate to Plaintiff to find a buyer for his property situated at 5 Dollar Street, Silver Lakes, Pretoria. Copy attached marked annexure “A”.


7.

In the execution of the above mandate Plaintiff through its agent sold the aforementioned property to the Defendant as a "willing and able buyer" in terms of a written agreement of sale, attached hereto, marked annexure "B".


8.

Plaintiff was the effective cause of the said sale and duly complied with its obligations in terms of the mandate.


9.

In terms of the agreement of sale, the sale of the property was subject to the following conditions:


9.1 Payment of a deposit of R50 000 at the signing the agreement of sale;

9.2 Obtaining of a loan of R450 000 by defendant from Absa Bank within 30 days after signing of the agreement of sale.


10.

The parties have agreed that an estate agents commission of R17 000 would be payable in terms of the agreement of sale.

11.

In spite of compliance with the aforementioned conditions, Defendant however failed to proceed with the sale.


12.

Defendant was notified in writing of such failure in accordance with paragraph 10 of the agreement of sale.


13.

The said agreement of sale was consequently cancelled due to defendant's failure to proceed with the sale.


14.

In the aforesaid premises Plaintiff is consequently entitled to claim the aforementioned agreed commission from the Defendant.


15.

Despite demand Defendant fails/refuses to pay the aforementioned commission or any part thereof to Plaintiff.

Wherefore Plaintiff claims against Defendant:

1. Payment of the amount of R17 000;

2. Interest @ 15,5% a tempore morae;

3. Cost of suit;

4. Further and/or alternative relief.

PART V

INTERDICTS AND SPOLIATION


1. THEORY: INTERDICTS AND SPOLIATION
1.1 Interdicts

An interdict is a type of court order in terms whereof a person is ordered to do a specific act or to refrain from doing a specific act. It is prerequisite for the granting of an interdict that there must be a real or threatening infringement upon the applicant’s rights.


The magistrates court has no jurisdiction to grant an interdict that amounts to an order for specific performance of a contractual obligation
There are three types of interdicts:

- prohibitory interdicts;

- mandatory interdicts;

- restitutory interdicts.


Insofar as the procedure for obtaining an interdict is concerned, it is important to note that an interdict can be obtained by means of the action procedure or the application procedure. The procedure used will depend on whether a trial with oral evidence and cross-examination is anticipated to.
In order to obtain an interdict, the applicant must convince the court of the following:
i) That he has a clear right
(Where the applicant applies for a final interdict he must prove this right on a preponderance of probabilities. Where he applies for an interim interdict it is not necessary to prove the clear right on a preponderance of probabilities.)
ii) That there was an injury
For both an interim and a final interdict the plaintiff must establish that the respondent conducted himself in a manner that infringed upon the applicant's right or that the applicant viewed objectively has a well grounded apprehension that the respondent will conduct himself in such a manner. The applicant must also set out the grounds for his "apprehension".
iii) That no other remedy is available
If the prejudice is irreparable unless the conduct complained about is terminated, an interdict will be the only available remedy. In general an interdict will not be granted where an award of damages will sufficiently compensate the applicant or where other legal relief is available.
1.2 Spoliation
The mandament van spolie is a restitutory interdict that is to the avail of a possessor who is deprived of his possession of an item by another person on the pretext that the latter was entitled to do so or where the possessor has otherwise been deprived of possession unlawfully.
The mandament van spolie is usually applied for by means of an ex parte application supported by an affidavit. In the affidavit, the applicant briefly sets out the facts upon which the application is based as well as the nature of the desired legal relief.
Before the court will grant the application, the applicant must indicate on a preponderance of probabilities that:
i. He was in peaceful and undisturbed possession of the item:

and


ii. That the respondent deprived him of possession in a violent or unlawful manner or against his will.
It is not necessary for the plaintiff to make out a prima facie case that he was lawfully in possession. The purpose of the mandament is merely to confirm the principle that the law may not be taken into a party's own hands. The respondent must thus prove that the deprivation of possession was lawful in the sense that the applicant was not in possession of the item when it was deprived or that, for example, he surrendered the item voluntarily to the plaintiff.
1.3 Anton Piller Orders and Mareva Injunctions
Within the ambit of interdicts, two remedies, i.e. the Anton Piller Order and Mareva injunction developed within the English law.
In the case of the Anton Piller order the applicant usually asks for the authority to search for and attach property and/or documents in the possession of the respondent. This remedy finds application where there is a fear that material may disappear and might thus not be available as evidence during the trial. The remedy is thus for the attachment of documents or things to be preserved as evidence. Sometimes the application is for the disclosure of information. Care must be taken to execute such orders strictly in accordance with the court order since it may be extremely detrimental to the respondent. It is to be noted that this type of order first developed in English law and the name has been derived from the English case Anton Piller KG v Manufacturing Processes Ltd & Others [1976] 1 All ER 779 (CA). It was recognised as a remedy in South African law in Universal City Studios Inc & Others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) and Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam, & Another; Maphanga v Officer Commanding, SA Police Murder & Robbery Unit, Pietermaritzburg, & Others 1995 (4) SA 1 (A).
As far as the Mareva injunction is concerned Prest (Interlocutory Interdicts) on 172 states that the Mareva principle as applied in our law entails 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 of asset (property) of the debtor. The general effect of the interdict is thus to provide some guarantee that there will be assets available to satisfy an eventual judgment 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 term Mareva is not approved of by the appellate division but a similar remedy was acknowledged in Knox D’Arcy Ltd v Jamieson 1996 (40 SA 348 (AD)).

EXAMPLE 66

FOUNDING AFFIDAVIT: SPOLIATION
I, the undersigned
Sad Sammy
Hereby make oath and declare as follows:

1.

I am the applicant in this matter, an adult female teacher resident at 5 Tears Avenue, Capital Park, Pretoria and the facts deposed herein are within my personal knowledge and I can and do swear positively to the truth thereof.


2.

The respondent is Horrible Harry on adult businessman resident at 10 Grab Avenue, Mayville, Pretoria.

3.

On 1 January 2001 respondent and I entered into an oral instalment sale agreement in terms whereof respondent sold to me a Mazda 626-vehicle, registration number XYZ 123 GP, for an amount of R12 000.


4.

It was provided in terms of the agreement that I would pay respondent R1 000 per month towards the purchase price from 31 January 2001.


5.

The vehicle was delivered to me by respondent.


6.

At all relevant times I was in peaceful and undisturbed possession of the vehicle.


7.

On 10 October 2001 respondent unlawfully retook possession of the vehicle from myself.


8.

The said repossession occurred without my consent and without respondent having recourse to the law.


Wherefore applicant prays for:

a) Return of the Mazda-vehicle as described above.

b) Cost of suit.

c) Further and/or alternative legal relief.


Signed and sworn to on this ____________ day of _____________ the deponent having acknowledged that she knows and understands the contents of this affidavit and that she has no objection against taking the prescribed oath, which oath she regards us binding on her conscience.
___________________________

COMMISSIONER OF OATHS



PART VI

SEQUESTRATION AND REHABILITATION APPLICATIONS

THEORY: VOLUNTARY SURRENDER
Rule 6 of the Uniform Rules of Court and form 2 of the prescribed High Court Forms. The definitions of in section 2 of the Insolvency Act 24 of 1936; sections 3-7 and 13 of the Insolvency Act 24 of 1936.
In brief the ex parte application (motion) and founding affidavit must contain the following:


  • Citation

  • Compliance with formalities:

    • Notice of surrender;

    • Notice to creditors;

    • Notice to employees; trade unions (if applicable);

    • Notice to SARS

    • Statement of affairs

  • Insolvent (balance sheet) and facts to establish this

  • Free residue sufficient to meet costs of sequestration

  • Reasons for insolvency

  • Property that my be utilised

  • Advantage of creditors

  • Income and expenditure of debtor


EXAMPLE 67
Notice of motion

IN THE HIGH COURT OF SOUTH AFRICA

( DIVISION)

In the matter of: CASE NUMBER

Applicant


NOTICE OF MOTION

TAKE NOTICE that application will be made to the abovementioned Honourable Court on ......... the ...... day of ........... 20... at 10 a.m. or as soon thereafter as counsel may be heard for an order in the following terms:–

(a) For the acceptance of the surrender of the Applicant’s estate;

(b) alternative relief as the Court may deem fit.

and that the affidavit of .................................... and annexures hereto will be used in support of the application.

Kindly place the matter on the roll for hearing accordingly.

Dated at ............... this ..... day of ............. 20 ....

APPLICANT’S ATTORNEY

TO:  THE REGISTRAR OF THE HIGH COURT,

AND TO:  THE MASTER OF THE HIGH COURT,

Copy hereof received on this ........ day of ................... 20.....


Affidavit

IN THE HIGH COURT OF SOUTH AFRICA

( DIVISION)
In the ex parte application of: CASE NUMBER

Applicant



AFFIDAVIT

I, the undersigned, (applicant)

do hereby make oath and say:

1.

I am the applicant in this matter and the facts mentioned herein are within my personal knowledge.



2.

I am an adult male/female presently residing at

and employed as

by


My identity number is ....................................... I am unmarried/married to ................... , identity no ................... [Join both spouses as co-applicants where they are married in community of property] out of community of property.

3.

I am domiciled within the jurisdiction of the above Honourable Court.



4.

By misfortune and without fraud or dishonesty on my part, I have become insolvent. The reasons for my insolvency are evident from the detailed statement contained in annexure VII of my statement of affairs which is attached hereto as annexure “A”.

5.

A copy of my statement of affairs was lodged at the office of the Master of the High Court (................... Division) and the office of the Magistrate of ............. as prescribed by sections 4(3) and (5) of the Insolvency Act 24 of 1936 which was open for inspection by my creditors during office hours for a period of 14 days, calculated from the .......... day of ............ 19 ... I further attach hereto annexures “B” and “C” respectively, being the certificates of the aforementioned Master of the High Court and Magistrate which confirm this.



6.

I further refer the above Honourable Court respectfully to the contents of my statement of affairs and documents attached hereto (annexure “A”) from which it appears that my total debts amount to R ........... while my total assets amount to R .......... which is a clear indication of my insolvency. I do not have any cash except for my salary, most of which I need to support myself and my dependants.

7.

The notice of surrender was published in the Government Gazette of the .......... 19..... and in ‘.....................’ newspaper of the ............. 19..... as prescribed by section 4(1) of the Insolvency Act 24 of 1936 and I attach hereto the relevant page of the Government Gazette as annexure “D” and of the .......................... as annexure “E” to which I respectfully refer the above Honourable Court.



8.

There is realisable property in my estate of a sufficient value to defray all costs of the sequestration which in terms of the said Act are payable out of the free residue of the estate. I respectfully refer the above Honourable Court to annexure II of my statement of affairs (annexure “A”) from which it appears that the value of the movable property amounts to R.......... It is my respectful submission that this amount will be more than sufficient to cover all costs of the sequestration.


9.

I furthermore respectfully submit that it will be to the advantage of my creditors if my estate was to be sequestrated and the surrender of my estate accepted because –

(a) I am not able to pay my debts and various creditors have already instituted action against me. Some of them have already obtained judgment against me.

(b) I expect that other creditors will also institute actions against me.

(c) My creditors will receive a substantial dividend if the assets in my estate are realised by a trustee.

(d) My current salary amounts to R....... per month, which amount is barely sufficient to cover the costs of supporting myself and my dependants.


10.

Notice has been given by registered post within 7 days of publication of the notice of surrender to all my creditors whose addresses were known or ascertainable as required by section 4(2)(a) of the Insolvency Act 24 of 1936. I attach hereto a document as proof that my notice of surrender was sent to these creditors on the .......... day of ...................... 19..... by registered post, as annexure “F”.


11.

Notice has been given by registered post within 7 days of publication of the notice of surrender to every registered trade union that, to my knowledge, represents any of my employees as required by section 4(2)(b)(i) of the Insolvency Act 24 of 1936,. I attach hereto a document as proof that my notice of surrender was sent to such trade union(s) .......... day of ...................... 19..... by registered post, as annexure “G”. [Note: Indicate that the provision is not applicable if there is no such a trade union(s)]


12.

Notice has been given within 7 days of publication of the notice of surrender to the employees themselves by ….(Indicate the prescribed mode of notification that was followed. This notification may be effected by affixing the notice to any notice board to which the employees have access inside the debtor’s premises; or, if there is no access to the premises by the employees, by affixing a copy of the notice to the front gate of the premises, where applicable, failing which to the front door of the premises from which the debtor conducted any business immediately prior to the surrender.) as required by section 4(2)(b)(ii) of the Insolvency Act 24 of 1936. I further attach hereto a document as annexure “I” that notice to employees was effected as prescribed by section 4(2)(b)(ii),,, of the Insolvency Act 24 of 1936. [Note: If the provision is not applicable, indicate as such.]


13.

Notice has been given by registered post within 7 days of publication of the notice of surrender to the South African Revenue Services as required by section 4(2)(b)(iii) of the Insolvency Act 24 of 1936. I attach hereto a document as proof that my notice of surrender was sent to such trade union(s) .......... day of ...................... 19..... by registered post, as annexure “I”.


14.

My estate has never been declared insolvent and as far as I am aware there is no pending application for the sequestration of my estate in this court or in any other court in South Africa.


15.

Therefore the above Honourable Court is respectfully requested to issue an order in accordance with the prayers contained in the Notice of Motion.

........................................

I certify that the deponent acknowledged that he knew and understood the contents of the above declaration, did not have any objection to taking the prescribed oath and considered it to be binding on his conscience. I thereafter administered the oath by causing him to utter the following words: “I swear that the contents of this declaration are true, so help me God”, and thereafter the deponent in my presence signed the declaration on this ....... day of .................... 19..... on which date and at which place I also signed this certificate.


FULL NAMES

COMMISSIONER OF OATHS

EX OFFICIO

ADDRESS:
THEORY: COMPULSORY SEQUESTRATION
Rule 6 of the Uniform Rules of Court and form 2(a) of the prescribed High Court Forms. The definitions of in section 2 of the Insolvency Act 24 of 1936; sections 3-7 and 13 of the Insolvency Act 24 of 1936.
The creditor(s) of an estate could also apply for the compulsory sequestra­tion of the estate. The application is also brought by way of notice of motion sup­ported by one or more affidavit(s). Seen from a creditor's point of view, this is a form of final execution.
Scheme of compulsory sequestration
Application (motion) with notice:


  • Citation of parties

  • Jurisdiction

  • Formalities: security; notice to employees; trade unions, debtor and SARS

  • Particulars concerning the claim of applicant (amount , secured or not)

  • Act(s) of insolvency committed or factual insolvency

  • Reason to believe that sequestration will be to the advantage of creditors

  • Statement that copy of application will be lodged with the Master



EXAMPLE 68

Notice of Motion
IN THE HIGH COURT OF SOUTH AFRICA

( DIVISION)

In the matter between: CASE NUMBER

………………………………………………………………………………………….Applicant

and

………………………………………………………………………………………Respondent



NOTICE OF MOTION

TAKE NOTICE THAT ...............(hereinafter called the applicant) intends to make application to this Court for an order that:

1 The estate of the Respondent is provisionally sequestrated and the assets be placed in the hands of the Master of the High Court.

2 The costs of this application be costs of sequestration.

3 Such alternative relief as the Honourable Court deems fit.

TAKE NOTICE FURTHER THAT the applicant has appointed.............. (here set forth an address referred to in rule 6(5)(b)) at which he will accept notice and service of all process in these proceedings.

TAKE NOTICE FURTHER THAT if you intend opposing the application you are required (a) to notify applicant’s attorney in writing on or before the........ (b) and within fourteen days of the service of this notice upon you, to file your answering affidavits, if any; and further that you are required to appoint in such notification an address referred to in rule 6(5)(b) at which you will accept notice and service of all documents in these proceedings.

If no such notice of intention to oppose be given, the application will be made on the ............................. at .... a.m.

Dated at ........................ this ........... day of ...... 20 ....

APPLICANT’S ATTORNEY

TO:  THE REGISTRAR OF THE HIGH COURT

AND TO:  THE MASTER OF THE HIGH COURT

AND TO:  THE RESPONDENT

(PER SHERIFF)
Affidavit
IN THE HIGH COURT OF SOUTH AFRICA

( DIVISION)

CASE NUMBER

In the matter between

………………………………………………………………………………………..Applicant

and


…………………………………………………………………………Respondent

AFFIDAVIT

I, the undersigned,

do hereby make oath and say:

1.

I am the applicant in this matter and the facts contained herein are within my personal knowledge. I am an adult male/female presently residing at



2.

The respondent(s) is/are ............................... a ............. date of birth .......... identity number ...............

of

The respondent(s) is/are unmarried/married out of community of property to/ married in community of property to each other



.............................date of birth.............................identity number

[Note: If the above particulars as contemplated by section 9(3)(a)(i) and (ii) of the Insolvency Act 24 of 1936 cannot be furnished, the applicant –creditor must state reasons why he is unable to do so - – section 9(3)(c) of the Insolvency Act 24 of 1936. It is submitted that it must further be stated that the marital status is unknown to the applicant. The particulars regarding the marital status must otherwise be cited in both the heading and the affidavit. See also section 17(4) of the Matrimonial Property Act 84 of 1984 that requires similar information regarding the marital status of the respondent -debtor.] ].

3.

The respondent is domiciled within the jurisdiction of the above Honourable Court.



4.

The respondent is lawfully indebted to me in the amount of R........... being monies lent and advanced to him, for which amount I obtained a judgment from this Honourable Court on ....................... The judgment remains wholly unsatisfied. I, therefore, have a liquidated claim against the respondent in excess of R100. I annex a copy of the judgment marked ‘............’.

5.

I humbly submit that the respondent committed an act of insolvency as envisaged by section 8(_) of the Insolvency Act 24 of 1936 in that: (State the particular act of insolvency by following the wording of the particular subsection of s 8 of the Act or by relying on the respondent’s actual insolvency. Attach any document of proof to the affidavit by way of an annexure.)



6.

I hold no security for my claim/hold security in the form of ................... over ................... of the respondent for an amount of ........................... which security I value in the sum of R..............................

7.

7.1 The respondent is the registered owner of immovable property being ........................ which he holds under Deed of Transfer No. ...................... The property is subject to a mortgage bond in the amount of ............................ in favour of ............................ which bond was registered on ...........................



7.2 The property referred to in 7.1 has been attached by several creditors of the respondent and a sale in execution is to be held on ............................at......................

8.

It is respectfully submitted that there is reason to believe that it will be to the advantage of creditors if the estate of respondent is sequestrated for inter alia the following reasons:



8.1 If the sale of the property as advertised proceeds a substantial benefit will accrue to some creditors and all the other creditors will likewise be prejudiced.

8.2 The sale of

will result in much lower proceeds and this is to the detriment of the creditors.

8.3 The appointment of a trustee will ensure that the property of the respondent can be realised for the true value and to the advantage of the creditors as a group. The trustee will also have the power to take charge of the insolvent’s estate, investigate all the circumstances surrounding the respondent’s financial difficulties and his actions regarding his estate with the view of reporting to the creditors and taking action accordingly.


9.

As required by section 9(4A)(a)(i) of the Insolvency Act 24 of 1936 I have …by registered post/ service/ delivery furnished (a) copy of the application to every registered trade union that, as far as could reasonably be ascertained, represents any of the debtor’s employee(s). I attach hereto a sworn affidavit as annexure “B” as prescribed by section 9(4A)(b) of the Insolvency Act 24 of 1936 as proof that the application has been furnished to the trade union(s)/ alternatively that it will be submitted before or during the hearing. [Indicate as such if the section is not applicable.]

10.

As required by section 9(4A)(a)(ii) of the Insolvency Act 24 of 1936 I have …by registered post/ service/ delivery…. furnished (a) copy of the application to employee(s) of the debtor ….(Indicate the prescribed mode of notification that was followed. This notification may be carried out by affixing the application to any notice board to which the employees have access inside the debtor’s premises; or, if there is no access to the premises by the employees, by affixing it to the front gate of the premises, where applicable, failing which to the front door of the premises from which the debtor conducted any business immediately prior to the surrender.)….. I attach hereto a sworn affidavit as annexure “C” as prescribed by section 9(4A)(b) of the Insolvency Act 24 of 1936 as proof that the application has been furnished to the employee(s)/ alternatively that it will be submitted before or during the hearing. [Note: Indicate as such if the section is not applicable.]



11.

As required by section 9(4A)(a)(iii) of the Insolvency Act 24 of 1936 I have …by service/registered post/ delivery… furnished (a) copy of the application to the South African Revenue Services. I attach hereto a sworn affidavit as annexure “D” as prescribed by section 9(4A)(b) of the Insolvency Act 24 of 1936 as proof that the application has been furnished to the South African Revenue Services/ alternatively that it will be submitted before or during the hearing.

12.

I have furnished a copy of the application to the debtor as required by section 9(4A)(a)(iv) of the Insolvency Act 24 of 1936. The application was served on the debtor/or send by registered post, see annexure “E” as proof/ or not furnished/ alternatively it will be submitted before or during the hearing. (Provide facts in order to enable the court to exercise its discretion regarding the disposal of this notification requirement for not furnishing a copy of the application to the debtor as provided for in section 9(4A)(a)(iv) of the Insolvency Act.)



[Note: Regarding paragraphs 9, 10, 11 and 12, section 9(4A) simply requires from the applicant to “furnish” a copy of the application to the relevant interested parties without prescribing the manner in which such furnishing must be effected. It is submitted that formal serving should be used as far as possible, especially in the case of the respondent-debtor.]

13.


I have furnished security with the Master of the High Court as required by section 9(3)(b) of the Insolvency Act 24 of 1936. A certificate by the Master of the High Court to this effect is annexed hereto marked annexure “F” to which the Honourable Court is respectfully referred.
14.

I shall, furthermore, see to it that a copy of this application is served timeously on the Master of the High Court, with the view to obtaining his report in terms of section 9(4) of the Insolvency Act 24 of 1936.


15.

Therefore the Honourable Court is respectfully requested to issue an order in accordance with the prayers contained in the Notice of Motion.

I certify that the deponent acknowledged that he knew and understood the contents of the above declaration, did not have any objection to taking the prescribed oath and considered it to be binding on his conscience. I thereafter administered the oath by causing him to utter the following words: “I swear that the contents of this declaration are true, so help me God”, and thereafter the deponent in my presence signed the declaration on this ....... day of ................ 20 .... on which date and at which place I also signed this certificate.

FULL NAMES

COMMISSIONER OF OATHS

EX OFFICIO

ADDRESS:

THEORY: REHABILITATION
Rule 6 of the Uniform Rules of Court and form 2 of the prescribed High Court Forms. The definitions of in section 2 of the Insolvency Act 24 of 1936; sections 124 and 125 of the Insolvency Act 24 of 1936.
The insolvent may apply for the rehabilitation of his or her estate. The court that issued the sequestration order will have jurisdiction to hear the rehabilitation order as well.
Scheme of rehabilitation
Ex parte Application


  • Citation of applicant

  • Jurisdiction (approach court that granted sequestration order)

  • Formalities: security to the Registrar ito s 125 of the Insolvency Act; notice(s) as prescribed, report of Master when required.

  • Factual account regarding sequestration, distributions to creditors, estate accounts etc (claims paid, contributions etc), current financial position (income expenditure).

  • Vesting order (if applicable).


EXAMPLE 69

Notice of motion

IN THE HIGH COURT OF SOUTH AFRICA

(............................................................ DIVISION)

CASE NUMBER

In the matter of:

................................................................

Applicant



NOTICE OF MOTION

TAKE NOTICE that application will be made to the abovementioned Honourable Court on the ........ day of ............... 19....., at 10:00 a.m. or so soon thereafter as counsel may be heard, for an order in the following terms:

(a) For the rehabilitation of the Applicant;

(b) other or alternate relief.

and that the affidavit of the applicant (annexed hereto), will be used in support hereof.

KINDLY PLACE the matter on the roll for hearing accordingly.

DATED at ......... this ......... day of ............... 19.....

APPLICANT’S ATTORNEY

TO:  THE REGISTRAR OF THE HIGH COURT,

AND TO:  THE MASTER OF THE HIGH COURT,

RECEIVED COPIES HEREOF THIS ......... DAY OF ................... 19.....

MASTER OF THE HIGH COURT.

AND TO:  (trustee)

RECEIVED COPY HEREOF ON THIS ....... DAY OF ................. 19.....

pp (trustee)



Affidavit

IN THE HIGH COURT OF SOUTH AFRICA

(............................................................ DIVISION)

CASE NO


In the ex parte application of:

................................................................

Applicant

for his/her rehabilitation



AFFIDAVIT

I, the undersigned,

do hereby make oath and say that:

1.

1.1 I am the applicant in the above matter and the facts herein stated are true and correct to the best of my knowledge and belief.



1.2 I am an adult male/female and was born on .................. and my identity number is .............................

1.3 I presently reside at .......................... and am employed as ................ by .................. at ................

1.4 At the time of my sequestration I was employed by ........................... and I was resident at .................................

2.

I am domiciled within the jurisdiction of this Honourable Court.



3.

My estate was finally sequestrated by order of this Honourable Court on .............. 19..... and ............................. was appointed provisional trustee by the Master of the above Honourable Court on ................ and as trustee on ............... under Certificate of Appointment No. ..........


4.

4.1 The following facts caused my insolvency and subsequent sequestration: ......................................................

4.2 I respectfully submit that my insolvency was in no way due to any malicious, fraudulent or unlawful conduct on my part.

5.

5.1 At the time of my sequestration the total amount of my liabilities was .............. My assets were the following:............................................



5.2 Claims totalling .............. /no claims were proved against my estate after sequestration as appears from the First and Final Liquidation and Distribution Account hereto annexed as annexure “E”.

5.3 In terms of the First and Final Liquidation and Distribution Account (annexure “E”) which was confirmed by the Master of this Court on....... there were ............ proved creditors with claims totalling R....... The total amount of R....... was awarded to such creditors as dividends leaving a deficiency of R........ on claims proved against my estate.

6.

6.1 This application is brought under section 124(-) of the Insolvency Act 24 of 1936 in that: (State ground(s) as provided for by section 124 of the Act).



6.2 My estate was never sequestrated before and I was not convicted of any fraudulent act regarding my existing (or previous) insolvency or offence provided for in sections 132, 133 or 134 of the Insolvency Act 24 of 1936. (Provide full particulars if applicable.)

7.

There are no further assets in my estate available for realisation.



8.

8.1 The joint income of my wife and myself, to whom I am married in/out of community of property, presently amounts to the sum of .................... per month. The monthly expenditure of our household is as follows:

PAYE

Bond repayments



Rates and taxes

Lights and water

Medical aid contributions

Clothing for self, wife and children

Household insurance and other insurance premiums

Servants


Food

Telephone

Petrol

Lease payments on car



Newspapers and other magazines

Entertainment

School fees for children

Provision for holiday

8.2 At present I have no assets and no liabilities other than normal monthly household expenses.

8.3 My wife is the owner of the house situated at ................................... in which house my wife, my children and I reside.

9.

I have made a complete surrender of the whole of my estate as it existed


on the date of my sequestration and I have not granted or promised any benefit whatsoever to any person or entered into any secret agreement with intent to induce the trustee of my estate or any creditor not to oppose this application.

10.


Notice of my intention to apply for the rehabilitation has been published in the Government Gazette on ......................... and I annex hereto annexure “A” a copy of the relevant page of the said Government Gazette.

11.


Notice of my intention to apply for the rehabilitation has been given to my trustee, the said .................................. and to the Master of the High Court, and I annex hereto marked “B” and “C” respectively, copies of the letters addressed to the trustee and the Master by my attorneys. (The requirements for the notice in respect of time periods etc may vary depending on the particular ground as prescribed by s 124 of the Act relied upon.)

12.


A copy of this affidavit, all annexures thereto and the Notice of Motion to which this affidavit is annexed, will be served on the Master of the High Court prior to the hearing of this application in compliance with the provisions of the Insolvency Act 24 of 1936.

13.


Security for costs as contemplated by section 125 of the Insolvency Act 24 of 1936 has been furnished to the Registrar of the abovementioned Honourable Court.

14.


Therefore the Honourable Court is respectfully requested to issue an order in accordance with the prayers contained in the Notice of Motion.

..................................

I certify that the deponent acknowledged that he knew and understood the contents of the above declaration, did not have any objection to taking the prescribed oath and considered it to be binding on his conscience. I thereafter administered the oath by causing him to utter the following words: “I swear that the contents of this declaration are true, so help me God”, and thereafter the deponent in my presence signed the declaration on this ....... day of ................ 19 ........ on which date and at which place I also signed this certificate.

FULL NAMES

COMMISSIONER OF OATHS

EX OFFICIO

ADDRESS:

TO:  THE REGISTRAR OF THE ABOVE HONOURABLE COURT

AND TO:  THE MASTER OF THE HIGH COURT

AND TO:  THE TRUSTEE




PART VII

ENTRY AND WITHDRAWAL
AS ATTORNEY OF RECORD
EXAMPLE 70

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO:


In the matter between:
ELVIS PRESLEY PLAINTIFF
and
BUDDY HOLLY DEFENDANT

_____________________________________________________________________________


NOTICE OF ENTRY AS ATTORNEY OF RECORD

_____________________________________________________________________________


KINDLY TAKE NOTICE that the under-mentioned attorneys herewith enter as Attorneys of record on behalf of Defendant and that Defendant will accept service of all notices, pleadings and documents at the undermentioned address.
SIGNED AT PRETORIA ON THIS THE ____ DAY OF JANUARY 2000.
________________________________

GAIUS VAN WYK

ATTORNEYS FOR DEFENDANT

10 KIRKNESS STREET

SUNNYSIDE

PRETORIA


(REF: G VAN WYK)
TO: THE REGISTRAR OF THE

HIGH COURT, PRETORIA


AND

TO: JOHANNES VOET

ATTORNEYS FOR PLAINTIFF

431 KIRKNESS STREET

SUNNYSIDE

PRETORIA


(REF: J VOET)
Received copy hereof on this the

_____ day of JANUARY 2000.


_________________________________

ATTORNEYS FOR PLAINTIFF



PART VIII

SPECIAL PLEA


EXAMPLE 71
IN THE MAGISTRATES COURT FOR THE DISTRICT OF JOHANNESBURG

HELD AT JOHANNESBURG


CASE NO:

In the matter between:


ELVIS PRESLEY PLAINTIFF
and
BUDDY HOLLY DEFENDANT

_____________________________________________________________________________


DEFENDANT'S SPECIAL PLEA

_____________________________________________________________________________


KINDLY TAKE NOTICE that Defendant pleads that the above Honourable Court has no jurisdiction in respect of the person of the Defendant in terms of Section 28 of Act 32 of 1944 as:
a. The Defendant does not work or reside

or

b. Carry on business within the area of jurisdiction of the above Honourable Court



and

c. As the cause of action did not wholly arise within the area of jurisdiction of the above Honourable Court.


SIGNED AT JOHANNESBURG ON THIS THE ____ DAY OF JANUARY 2000.

_________________________________

BOB MARLEY

ATTORNEYS FOR DEFENDANT

ADDRESS
TO: THE CLERK OF THE COURT

JOHANNESBURG


AND

TO: MADONNA

ATTORNEYS FOR PLAINTIFF

ADDRESS


Received copy hereof on this the

_____ day of JANUARY 2006


_________________________________

ATTORNEYS FOR PLAINTIFF

PART IX

NATIONAL CREDIT ACT 34 OF 2005


Theory: Debt recovery

NOTE ON DEBT ENFORCEMENT ITO THE NATIONAL CREDIT ACT 34 OF 2005

READ:


  • Boraine and Renke “Some practical and comparative aspects of the cancellation of instalment agreements in terms of the National Credit Act 34 of 2005” 2007(2) and 2008(1) De Jure.

  • Van Loggerenberg et al “Civil Procedure” 2008 De Rebus 40.

  • Otto The National Credit Act Explained (2006)

Particulars of Claim
A debt enforcement procedure in terms of the National Credit Act 34 of 2005 must be preceded by a s 129(1)(b) notice in terms of the Act. Compliance with this requirement must be pleaded and it thus forms part of the cause of action.
It is submitted that the following aspects need to be included in the particulars of claim of the credit provider plaintiff:
(a) Citation of the parties.1 (The parties being the credit provider as plaintiff and the consumer as defendant.)

(b) Jurisdiction of the relevant court.2

(c) When, where and by whom the agreement was entered into3 as well as a description of the financed item and the purchase price and charges.4

(d) The material terms of the agreement should be referred to, especially:


(i) that the agreement is regulated by the Act;

(ii) details of the deposit and further instalments;

(iii) reservation of ownership (or the right to repossess);5

(iv) that the item(s) has been delivered to the consumer defendant;

(v) terms and conditions and fulfilment thereof;

(vi) stipulations with regard to breach of the agreement;

(vii) details of the breach of the agreement by the defendant.

(e) Notification of the consumer by plaintiff in terms of section 129(1)(a) of the Act or compliance with section 86(10).6

(f) Compliance with the time periods as prescribed in section 130(1).

(g) Compliance with the various other provisions as provided for by section 130(3).

(i) Cancellation of the agreement by plaintiff as a result of defendant’s breach and election of plaintiff’s contractual remedies.

(j) The plaintiff is entitled to restitution where goods were sold and delivered to the consumer-defendant.

(j) Prayers:

(i) cancellation or confirmation of cancellation of the agreement;

(ii) return of the goods as mentioned in the particulars of claim(if the claim is for the cancellation and the return of goods sold);


  1. payment of damages to be determined by the court;7

  2. interest a tempore morae;

(v) legal costs;8

(vi) further and/or alternative relief.
Interim interdicts
It is submitted that in the absence of a specific statutory provision a request for interim relief in the form of an interdict to prevent the consumer from carrying out or refraining from performing certain detrimental acts regarding the goods, or to attach the goods to safeguard them, must be based on substantive principles in the sense that the rights of the credit provider are to be infringed since the consumer is in the process of, or about to alienate, damage or destroy the goods. In this sense the credit provider is merely attempting to protect his rights and interests in such goods and such relief must therefore be distinguished from the debt enforcement proceedings.

It must be emphasised that such relief must be based on established substantive principles and procedures. On a procedural point in this regard, it must be noted that section 30(1) of the Magistrates’ Courts Act also provides for applications for attachments and interdicts in that court which would thus entitle such a court to hear such applications as well if the matter would otherwise fall within the jurisdiction of the court.

Example 72 Section 129 notice


419 Kirkness Street/Straat

Clydesdale

Pretoria, 0002

Posbus 9460

PRETORIA

0001


DOCEX 19
Tel: (012) 344 5901

Tel: (012) 344 5475

Fax: (012) 344 5907

E-mail: vhi@vanheerdens.co.za




PROKUREURS, AKTEVERVAARDIGERS & NOTARISSE

ATTORNEYS, CONVEYANCERS & NOTARIES




Ons verw/Your ref.: W H VAN HEERDEN/JT/KN2857 15 NOVEMBER 2007


D SONGO

6 SMITH STREET

MENLOPARK

0145
RE: NEDBANK LIMITED / YOURSELF



NOTICE IN TERMS OF SECTION 129(1)(A) OF THE NATIONAL CREDIT

ACT 34 OF 2005 - ACCOUNT NR. 24008/0001
In terms of section 129(1)(a) of the National Credit Act 34 of 2005, your attention is hereby drawn to the fact that you are in default with your obligations under the credit agreement (account number 3032515/0001) that you entered into with (specify credit provider) in the amount of R18 725-01.
It is proposed that you refer the above credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction with the intent:

  • to resolve any dispute under the agreement

or

  • to develop a plan, to be agreed upon with (specify credit provider), to bring the payments under the agreement up to date.

Should you fail to respond to this notice within 10 (ten) business days from delivery hereof by either rejecting the aforesaid proposal or by failing to respond to this notice at all and should you remain in default with your obligations as aforesaid, for a period of 20 (twenty) days since your default commenced, the credit agreement may be cancelled and (specify credit provider) will proceed with legal steps to enforce the agreement.

Yours faithfully


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