PLEADINGS - Megaw
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
18 Particulars of Claim 55
Scenario One: Exception
Example 19 Notice in terms of Rule 17(5)(c) 57
20 Notice of Exception 59
Scenario One: Amendment
Example 21 Notice of Intended Amendment ito Rule 55A 61
22 Application for Amendment ito Rule 55A(4) 63
Scenario Two: Failure to enter an Appearance to Defend, Default Judgment
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
31 Notice in terms of Rule 62(2) 75
Scenario Six: Where a party requests reason for the judgment and decides
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
a) Framework 80
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
Theory: The Divorce Action 120
Example 57 Combined Summons 121
58 Deed of Settlement 124
59 Notice ito Rule 35(1), (8) and (10) 126
60 Notice ito Rule 37(1)(a) 127
61 Notice ito Rule 43 129
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
Theory: Agent’s Commission 140
Example 65 Particulars of Claim 141
PART V : INTERDICTS AND SPOLIATION
Theory: Interdicts and Spoliation 144
Example 66 Founding Affidavit 146
PART VI : SEQUESTRATION AND REHABILITATION APPLICATIONS
Theory : Voluntary Surrender 148
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
Theory: Debt recovery 166
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)
1. The use of pleadings, notices and other related documents
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:
a) To inform the parties what the issues are in order to prepare for the trial.
b) To inform the court of the issues in order to know the extent (scope) of the dispute.
c) To place the issues on record in case one of the parties wishes to reopen the same issues after it had already been decided.
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.
2. General Principles Applicable to the Drafting of Legal Documents
a) Use of language and words
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.
b) The Heading
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:
i) In which specific court the case is adjudicated.
ii) The case number (a wrong case number can have the chaotic consequence that the document which you file at court is not placed on the correct court file).
iii) The party or parties (it must be indicated who is plaintiff and defendant or applicant and respondent respectively).
iv) The type of document must be identified (eg. Application for Summary Judgement or Plea).
c) A practical approach to the drafting of the contents of legal documents
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.
3. The Action Procedure: Principles with regard to the drafting of specific pleadings
a) The Summons
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).
b) The Plea
In the plea you must indicate which of the allegations contained in the plaintiff’s particulars of claim or declaration you:
- admit;
- deny;
- confess and avoid.
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:
i) Deal in paragraphs with each allegation that the plaintiff makes in his particulars of claim. Decide whether you must admit or deny such allegation or confess and avoid. If you fail to deal with an allegation, that allegation is deemed to be admitted. You must for example state: ad paragraph one of plaintiff’s particulars of claim: defendant admits the contents of this paragraph.
ii) Never admit an allegation unless you are sure that it is in accordance with your instructions.
iii) It is possible to include a so-called “non-admission” in a plea. Examples of a non-admission are:
aa) “Defendant has no knowledge of the allegations contained in this paragraph cannot admit orderly same and puts plaintiff to the proof thereof”.
or
ab) “Defendant has no knowledge of the allegations contained herein and thus denies same”.
iv) You must take care that you are acquainted with the substantive law applicable to the specific case when you draft a plea as certain defences must be pleaded specifically eg. a lack of authority. In such a case a mere denial will be insufficient.
v) You must set out the material facts of your defence clearly and concisely.
vi) You must include a prayer in the plea wherein you request that the plaintiff’s claim be dismissed with costs (or alternatively reduced eg in accordance with the Appropriation of Damages Act).
c) The Replication/Reply
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.
d) Counterclaim
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.
e) Exceptions
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:
i) You are bound to the grounds of exception mentioned in your notice of exception. It is therefore advisable to make the basis of your exception as wide as possible to ensure that you cover all possible grounds of exception. Guard against making the grounds so wide that they become vague.
ii) You must take care to clearly mention the legal relief you desire.
4. The Application Procedure: Rules applicable to Applications
a) General
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:
i) Are you requesting interim or final relief? You must thus ascertain which role the eventual prospects of success will play in order to decide to which extent you must address that aspect.
ii) Do you refer to documents? If so, it must be attached to the affidavit.
iii) Do you refer to facts that do not fall within your personal knowledge? If so, you must take care to obtain supporting affidavits by those persons in whose knowledge such matters do fall.
b) i) Ex parte application: Notice of motion
You must indicate the following:
- Heading
- Notice to the Registrar/Clerk of Court that a specific application will be made in a specific day and time to a specific court.
- Indication of the legal relief that will be requested.
- Reference to the attached supporting affidavit.
- Request for enrolment.
ii) Application with prior notice
- Heading
- Notice to Registrar/Clerk of Court and respondent that a specific application will be made on a specific day and time to a specific court
- Reference to attached supporting affidavit
- Request for enrolment
- Time within which respondent must oppose
- Applicant and respondent’s addresses for purpose of service
- Consequences of failure to oppose
iii) Interim applications
- Heading
- Notice to Registrar/Clerk of Court and respondent that specific application will be made to court on specific day and time
- Indication of the desired legal relief
- Reference to attached supporting affidavit (if applicable)
- Request for enrolment
c) Affidavits in support of applications
The following general allegations must be contained in such affidavit:
i) Names and addresses of applicant and respondent (if applicable)
ii) That the applicant has locus standi
iii) That the court has jurisdiction
iv) Material fact whereupon the application (or opposition thereof) is based
v) If reference is made to documentary evidence, the document must be attached
vi) Prayer for legal relief.
Note: Only admissible evidence may be contained in the affidavit.
d) Important aspects regarding the drafting of the affidavit
You must bear the following aspects in mind when drafting the affidavit:
i) To what is the applicant (or respondent) entitled?
ii) Does the order that you request cover everything that is necessary to render the legal relief effective?
iii) An answering affidavit should not only consist of denial of the allegations contained in a founding affidavit.
iv) When replying to a founding affidavit, it is not necessary for the respondent to deal seriatim with each of the allegations in the funding affidavit. The answering affidavit must however deal with all the material allegations contained in the founding affidavit in a logical orderly manner so that the respondent’s defence is clear.
v) With replying affidavits it must be remembered that the general rule is that the applicant must make out his case in his founding affidavit. Consequently the introduction of new causes of action or new matters in the replying affidavit is not permitted.
vi) A replying affidavit ought to contain a general allegation that it is not meant to deal with each and every allegation in the answering (opposing) affidavit but that it should be read in the light of the allegation contained in the founding affidavit.
e) Drafting of heads of argument
Suggested approach:
- Begin by identifying the issues
- Give a summary of the material facts
- Set out the proposition of law with reference to authority
- Apply the propositions to the facts
- Conclude with a conclusion regarding the relief to which the litigant is entitled.
-
f) NB:
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:
a) he received medical treatment in the hospital;
b) he will be dependent on medical treatment for an indefinite period;
c) he suffered loss of amenities of life;
d) he will probably suffer from pain and discomfort for the rest of his life;
e) he suffered emotional trauma and shock that will persist for an indefinite period.
The amount of the damages is as follows:
a) Hospital expenses. R155 246-85
b) Medical expenses. R 37 020-20
c) Future Medical expenses. R200 000-00
d) Future loss of income/earning capability. R400 000-00
e) General damages eg pain and suffering,
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:
• Whether he or she may act on behalf of the client.
• What cause of action or procedure should be followed?
• Whether an advocate needs to be appointed in the matter.
• The cost implications.
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:
• Full names; residential address; postal address; telephone numbers; particulars of contact person; occupation; marital status;
• Employer’s address. This is especially useful if the client fails to pay for services rendered and the attorney is later forced to apply for an emoluments attachment order;
• Nature of claim (briefly);
• Date on which the cause of action arose. This is necessary for purposes of prescription;
• A list of relevant documents. The client must provide the attorney with these documents. Preferably the originals rather than copies. This will assist the attorney in the discovery process. The client’s original documents should be handed back to the client on the conclusion of the matter;
• A list of witnesses and contact numbers and addresses.
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
I.r.o. 5:
Plaintiff can consider: - Rule 15(1) (later Rule 15(3))
Rule 16 (later Rule 60(2) + (3))
- Exception
I.r.o. 6:
Defendant can consider: - Exception
I.r.o. 7:
Defendant can consider: - 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:
1. Locus standi – This requirement is usually met by an allegation that the plaintiff is the owner of the vehicle that was damaged in the accident.
2. Jurisdiction – The court's jurisdiction will usually appear from the citation of the defendant where his address is given. Otherwise you must explicitly mention the ground of jurisdiction, eg that the cause of action arose wholly within the court's jurisdiction area.
3. Where, when and between which vehicles the collision occurred and who drove the respective vehicles at the time of the accident.
4. The reason why the plaintiff alleges that the defendant is liable for the plaintiff's damages - that is, an allegation that the defendant was negligent. (Certain drafters expressly mention the grounds of negligence in the summons, while others merely make an allegation of negligence. The latter are of opinion that a defendant in the magistrates court who wishes to obtain more information regarding the aspect of negligence can request further particulars).
5. The fact that the plaintiff suffered damages as a result of defendant's negligence.
6. The amount of damages and that it represents the reasonable repair costs of the vehicle to its pre-collision condition.
7. Prayers for payment of the damages, interest and costs.
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:
1. Are you going to admit or deny the plaintiff's locus standi?
2. Are you going to admit or deny the courts jurisdiction?
3. Are you going to admit or deny the citation of the parties?
4. Are you going to admit or deny the allegations of negligence by the defendant or are you going to confess and avoid/admit or deny liability for collision in question?
5. Are you going to admit or deny the allegation of damages suffered by the plaintiff?
6. Are you going to admit or deny the amount of damages?
7. Are you going to admit or deny the demand?
8. Your plea must contain a specific prayer for dismissal of the plaintiff's claim with costs or, where applicable, an appropriation i.t.o. the Appropriation of Damages Act.
d) EXCHANGE OF PLEADINGS IN DEFENDED MOTOR VEHICLE COLLISION UNTIL LITIS CONTESTATIO
EXAMPLE 1
|Issued by: Case nr | |
| | |
|Clerk of the Court Date | |
| |R20,00 Revenue stamp |
No. RM2 SUMMONS COMMENCING ACTION (ORDINARY)
Sued out by:
Johannes Voet Attorneys
Kirkness Street 431
Sunnyside
Pretoria
_______________________________________________
Signature of Plaintiff or his Attorney
Postal Address: PO Box 9460, PRETORIA, 0001
Ref. J Voet
Telephone Number: 3445901 Fax: 3445907
____________________________________________________________________________
In the Magistrate's Court for the district of PRETORIA held at PRETORIA
Between JILL HILL Plaintiff
and JIM SWIFT Defendant
TO: JIM SWIFT, an adult male auditor resident at 7 Kingbolt Crescent, Wapadrand, Pretoria.
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 –
a) may, for such failure, be committed for a period not exceeding 90 days or be sentenced to periodical imprisonment for a period not exceeding 2 160 hours (section 65F of the Act);
b) is liable to notify the Clerk of the Court and the judgment creditor or his attorney fully and correctly, in writing, within 14 days after he has, at any time, changed his place of residence, business or employment, of his new place of residence, business or employment, and by his failure to do so he may be committed for a period not exceeding 30 days or be sentenced to periodical imprisonment for a period not exceeding 720 hours (section 109 of the Act)
c) may, for such failure, be called upon by notice to appear before the court in chambers to show cause why he in his personal capacity and/or in his capacity as a representative of a juristic person should not be committed for contempt of court and why he should not be ordered to pay the judgment debt in instalments or otherwise (section 65A of the Act). He shall then be called upon to give evidence on his financial position or that of the juristic person, his or its liability to pay the judgment debt and his or its failure to do so (section 65D of the Act).
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)
(iii) Any person who-
(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.
Dated at this day of 20 .
____________________________
Defendant/Defendant's attorney
Address:
Postal address:
(Give full address for acceptance of service of process or documents within eight kilometres from the Court-house and also the postal address.)
* Note: The original notice must be filed of record with the Clerk of the Court and a copy thereof served on the plaintiff or his attorney.
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.
Signed at Pretoria on this _______________day of March 2006
_______________________________
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
AND TO: Johannes Voet Attorneys
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?
2.
AD PARAGRAPH 6 THEREOF
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
AND TO: Johannes Voet
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
AND TO: Johannes Voet
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
In the matter between:
JILL HILL Plaintiff - Respondent
and
JIM SWIFT Defendant - Applicant
______________________________________________________________________________
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
AND TO: Johannes Voet
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
AND TO: Gaius van Wyk
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
TO: The Clerk of the Court
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:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
___________________________________________________________________________
PLEA TO COUNTERCLAIM
___________________________________________________________________________
Kindly take notice that Plaintiff pleads as follows to Defendant's counterclaim:
1.
AD PARAGRAPHS 1 TO 4:
The contents of these paragraphs are admitted.
2.
AD PARAGRAPHS 5 AND 6:
The contents of these paragraphs are denied as if specifically traversed and the defendant is put to the proof thereof.
3.
AD PARAGRAPH 7
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
EXAMPLE 10
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case Nr. 1/2006
In the case between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
| |
|NOTICE OF SET DOWN FOR TRIAL |
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
AND TO: Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
Ref. G van Wyk
Received on this the _________ day of
July 2006
_______________________________
Attorneys for Defendant
EXAMPLE 11
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 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
AND TO: Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
Received a copy hereof on this
__________day of August 2006
______________________________
Attorneys for Defendant
EXAMPLE 12
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case Nr. 1/2006
In the case between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
| |
|DISCOVERY AFFIDAVIT |
I, the undersigned,
JILL HILL
do hereby state under oath as follows:
1.
I am the Plaintiff in this matter and the facts deposed to herein are within my personal knowledge and I can and do swear positively to the truth thereof.
2.
I have in my possession or under my control the books and documents which relate to the action and which I intend to use in the action or which tend to prove or disprove either party's case, as set out in the attached schedules A and B.
3.
I object to the production of the books and documents set forth in schedule B on the grounds that they are privileged, being communications between attorney and client, statements of witnesses, or other documents that are by the nature and origin thereof privileged.
4.
According to the best of my knowledge and belief I have not now and never had in my possession, custody, or power or in the possession, custody or power of my attorney or agent, or any other person on my behalf, any document or copy thereof or extract from any document relating to any matters in question in this action, other than the books and documents set forth in schedules A and B attached hereto.
Signed and sworn to at Pretoria on ________________________ by the deponent who has stated that:
a He/She knows and understands the contents hereof and that it is true and correct;
b He/She has no objection to taking the prescribed oath; and
c That he/she regards the prescribed oath as binding on his/her conscience.
Signed before me,
COMMISSIONER OF OATHS:
SIGNATURE
FULL NAMES:
CAPACITY:
AREA:
BUSINESS ADDRESS:
SCHEDULE A
___________________________________________________________________________
DATE NUMBER DOCUMENT ___________ COPY/ORIGINAL_
All pleadings and notices under
the above case number
1/3/2006 5094 Invoice by "SPANNER IN THE
WORKS" original
1/3/2006 1234 Invoice by RICK'S TOWING
dated 1 March 2006 original
1/3/2006 - Police report MAS 120/06 copy
______________________________________________________________________________
SCHEDULE B
1.
Books, documents and letters of a privileged nature, being communications between attorney and client relating to this case.
2.
Statements of witnesses with whom the attorneys and advocates have consulted about this matter.
3.
Communications, opinions, memoranda and advice on evidence given by the attorney and/or advocate of the party.
4.
Notes made by the party's attorneys and advocates during consultations with witnesses who might be called to give evidence in this matter.
EXAMPLE 13
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 IN TERMS OF RULE 24(9)(a) and (b)
____________________________________________________________________________
Kindly take notice that Plaintiff intends to call Mr Spanner Koekemoer as expert at the trial of the above matter;
Kindly further take notice that Mr Koekemoer will testify at the aforementioned trial that:
1.
He obtained his N3 Certificate in Panelbeating in 1980 and has worked as panelbeater for his own account at Spanner in the Works, 10 Rose Avenue, Mayville, Pretoria since 1981.
2.
He has 25 (Twenty Five) years experience in the repair of petrol driven vehicles of various models and is also acquainted with the costs of spares and related items and the standard tariffs for panelbeating labour.
3.
On 1 March 2006 he inspected the Plaintiff's vehicle, a Toyota Corolla with registration number XYZ 456 GP and found the following damage thereto, which damage, in his expert opinion, is consistent with damage sustained in a motor vehicle accident:
3.1 Front passenger door damaged beyond repair;
2. Damage to rear passenger door;
3. Damage to midpanel between two passenger doors.
4.
In accordance with his expert knowledge regarding repairs, cost of labour, prices of spares and related items, it is his opinion that the fair and reasonable costs of repairing the aforesaid damage will amount to R20 000,00, which amount is calculated as follows:
4.1 Removal and replacement of front passenger door:
R8 000,00: door
R1 000,00: labour
R1 000,00: spray painting
4.2 Removal and replacement of midpanel:
R3 000,00: panel
R1 000,00: labour
R1 000,00: spray painting
4.3 Repairs to rear passenger door:
R4 000,00: labour
R1 000,00: spray painting
Signed at Pretoria on this the ________day of September 2006.
____________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)
TO: The Clerk of the Court
Pretoria
AND TO: Gaius van Wyk
Attorneys for Defendant
10. Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)
Received copy hereof on this the
_____ day of September 2006.
_________________________________
Defendant’s Attorneys
EXAMPLE 14
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 INSPECTION OF OBJECT IN TERMS OF RULE 24(6) AND (7)
_____________________________________________________________________________
Kindly take notice that Defendant requires Plaintiff to make the following object available for a mechanical inspection for a period of at least 10 (ten) days:
1 Toyota Corolla, registration number XYZ456GP
as the condition thereof is relevant in determining the damages in the above matter.
Signed at Pretoria on this the ___ day of September 2006. _______________________________
Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
TO: The Clerk of the Court
Pretoria
AND TO: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof on this the
_____ day of September 2006
________________________________
Attorneys for Plaintiff
EXAMPLE 15
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 IN TERMS OF RULE 24(10)
____________________________________________________________________________
Kindly take notice that Plaintiff intends to present the photographs copies of which are attached hereto as Annexures "A" to "F", as evidence at the trial of the above matter;
Kindly further take notice that you are entitled to inspect the originals of the said photographs at the offices of the Plaintiff's Attorneys on weekdays from 09:00 to 16:00;
Kindly further take notice that you are requested to indicate within 5 (five) days after receipt of this notice whether you have any objection against the authenticity of the photographs, failing which the photographs will be introduced into evidence upon mere presentation and without proof thereof.
Signed at Pretoria on this the _________day of October 2006.
_________________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)
TO: The Clerk of the Court
Pretoria
AND TO: Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)
Received copy hereof on this the
_____ day of October 2006.
_________________________________
Defendant’s Attorneys
EXAMPLE 16
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
______________________________________________________________________________
AGREEMENT NOT TO APPEAL
______________________________________________________________________________
We, Jill Hill of 20 Queens Crescent, Lynnwood, Pretoria and Jim Swift of 7 Kingbolt Crescent, Wapadrand, Pretoria, the above-mentioned Plaintiff and Defendant respectively, do hereby agree in terms of Section 82 of the Magistrate's Court Act, 32 of 1944, that the decision of the Court in the abovementioned action shall be final.
Signed at Pretoria on this the ____ day of October 2006
AS WITNESS:
1. __________________________ ______________________________
PLAINTIFF
2. __________________________
Signed at Pretoria on this the ____ day of October 2006.
AS WITNESS:
1. __________________________ ______________________________
DEFENDANT
2. __________________________
MAGISTRATE’S COURT PLEADING: DEVIATIONS
SCENARIO ONE:
Defective summons
EXAMPLE 17
|Issued by: Case nr | |
| | |
|Clerk of the Court Date | |
| |R20,00 Revenue stamp |
No. RM2 SUMMONS COMMENCING ACTION (ORDINARY)
Sued out by:
Johannes Voet Attorneys
Kirkness Street 431
Sunnyside
Pretoria
_______________________________________________
Signature of Plaintiff or his Attorney
Postal Address: PO Box 9460, PRETORIA, 0001
Ref. J Voet
Telephone Number: 3445901 Fax: 3445907
____________________________________________________________________________
In the Magistrate's Court for the district of PRETORIA held at PRETORIA
Between JILL HILL Plaintiff
and JIM SWIFT Defendant
TO: JIM SWIFT, an adult male auditor resident at 7 Kingbolt Crescent, Wapadrand, Pretoria.
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 –
d) may, for such failure, be committed for a period not exceeding 90 days or be sentenced to periodical imprisonment for a period not exceeding 2 160 hours (section 65F of the Act);
e) is liable to notify the Clerk of the Court and the judgment creditor or his attorney fully and correctly, in writing, within 14 days after he has, at any time, changed his place of residence, business or employment, of his new place of residence, business or employment, and by his failure to do so he may be committed for a period not exceeding 30 days or be sentenced to periodical imprisonment for a period not exceeding 720 hours (section 109 of the Act)
f) may, for such failure, be called upon by notice to appear before the court in chambers to show cause why he in his personal capacity and/or in his capacity as a representative of a juristic person should not be committed for contempt of court and why he should not be ordered to pay the judgment debt in instalments or otherwise (section 65A of the Act). He shall then be called upon to give evidence on his financial position or that of the juristic person, his or its liability to pay the judgment debt and his or its failure to do so (section 65D of the Act).
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)
(iii) Any person who-
(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________________________
Let wel: As die toestemming nie op die oorspronklike Dagvaarding wat geteken is of op die afskrif gegee word nie, moet dit onderteken word deur twee getuies wie se adresse aangedui moet word.
*(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.
Dated at this day of 20 .
____________________________
Defendant/Defendant's attorney
Address:
Postal address:
(Give full address for acceptance of service of process or documents within eight kilometres from the Court-house and also the postal address.)
* Note: The original notice must be filed of record with the Clerk of the Court and a copy thereof served on the plaintiff or his attorney.
EXAMPLE 18
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 7 Kingbolt Crescent, Wapadrand, Pretoria.
3.
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.
4.
The collision as aforesaid was caused by the negligence of the defendant in that he has:
4.1 failed to keep a proper look-out;
4.2 drove at a speed in excess of the speed limit.
5.
As a result of the collision as aforementioned, plaintiff suffered damages in the amount of
R20 000, being the fair and reasonable costs of repairing plaintiff's vehicle to its precollision condition.
6.
Despite demand defendant fails or refuses to pay the aforementioned amount 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.
Signed at Pretoria on this _______________day of _________________2006
_______________________________
Johannes Voet Attorneys
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
SCENARIO ONE: EXCEPTION
EXAMPLE 19
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 IN TERMS OF RULE 17(5)(c)
___________________________________________________________________________
Kindly take notice that defendant objects against plaintiff’s particulars of claim as it is vague and embarrassing due to the following reasons:
a) It is unclear whether the plaintiff is the owner of the Toyota Corolla vehicle with registration number XYZ 456 GP;
b) It is unclear whether the defendant drove the Nissan Hardbody vehicle with registration number ABC 123 GP at the time of the accident;
c) It is unclear whether the plaintiff is of opinion that the accident was caused solely by the exclusive negligence of the defendant.
Kindly further take notice that unless the cause of complaint is removed within 10 days from receipt of this notice, defendant will approach the abovementioned Honourable court and raise an exception against plaintiff’s particulars of claim.
Signed at Pretoria on this _______________day of _________________2006
_______________________________
Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
TO: The Clerk of the Court
Pretoria
AND TO: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof on this the
_____ day of September 2006
________________________________
Attorneys for Plaintiff
EXAMPLE 20
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 EXCEPTION
___________________________________________________________________________
Kindly take notice that defendant hereby notes an exception against plaintiff’s particulars of claim as it is vague and embarrassing for the follow reasons:
a) It is unclear whether the plaintiff is the owner of the Toyota Corolla vehicle with registration number XYZ 456 GP;
b) It is unclear whether the defendant drove the Nissan Hardbody vehicle with registration number ABC 123 GP at the time of the accident;
c) It is unclear whether the plaintiff is of opinion that the accident was caused solely by the exclusive negligence of the defendant.
Kindly further take notice that defendant afforded plaintiff an opportunity to remove the cause of complaint in accordance with a notice in terms of rule 17(5)(c) that was served on the plaintiff on ______________________.
Kindly further take notice that the exception is enrolled for hearing on __________________ at 09:00 or as soon thereafter as the legal representative for the plaintiff may be heard.
Kindly also further take notice that the defendant will request at the hearing of the exception that the exception be upheld with costs and that plaintiff’s particulars of claim be struck out.
Signed at Pretoria on this _______________day of _________________2006
_______________________________
Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
TO: The Clerk of the Court
Pretoria
AND TO: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof on this the
_____ day of September 2006
________________________________
Attorneys for Plaintiff
SCENARIO ONE: AMENDMENT
EXAMPLE 21
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 INTENDED AMENDMENT IN TERMS OF RULE 55A
___________________________________________________________________________
Kindly take notice that plaintiff intends to amend the particulars of claim to his summons dated ___________________ as follows:
1.
By adding another paragraph, paragraph 3, after paragraph 2, reading as follows:
“The plaintiff is the owner of a Toyota Corolla vehicle with registration number XYZ 456 GP”.
2.
By adding the following words at the end of the current paragraph 3 (now paragraph 4):
“which vehicle was at all relevant times driven by defendant”.
3.
By adding the following word before the word “caused” in the current paragraph 4 (now paragraph 5):
“solely”.
Kindly further take notice that unless you deliver a notice of objection against such amendments, stating the nature and grounds of your objection, within 10 (ten) days after receipt of this notice, such amendments will be effected.
Kindly note that plaintiff herewith tenders the wasted costs occasioned by the proposed amendment, save the costs occasioned should the matter be opposed.
Signed at Pretoria on this the _________day of _________________ 2006.
_________________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)
TO: The Clerk of the Court
Pretoria
AND TO: Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)
Received copy hereof on this the
_____ day of _______________2006.
_________________________________
Defendant’s Attorneys
EXAMPLE 22
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
______________________________________________________________________________
APPLICATION FOR AMENDMENT IN TERMS OF RULE 55A(4)
___________________________________________________________________________
Kindly take notice that applicant intends to make application on ____________________ at 09:00 or as soon thereafter as applicant’s legal representative may be heard, for an order in the following terms:
a) That the particulars of claim to Applicant’s Summons dated ___________________ be amended in accordance with the Notice of Intended Amendment dated ____________________
b) That the respondent bears the costs of this application.
Signed at Pretoria on this the _________day of _________________ 2006.
_________________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)
TO: The Clerk of the Court
Pretoria
AND TO: Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)
Received copy hereof on this the
_____ day of _______________2006.
_________________________________
Defendant’s Attorneys
SCENARIO TWO:
Failure to enter an appearance to defend; default judgment
EXAMPLE 23
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
______________________________________________________________________________
APPLICATION FOR DEFAULT JUDGMENT
___________________________________________________________________________
Whereas the plaintiff instituted action against the defendant in terms of a summons that was served on the defendant on _______________________.
And whereas the defendant failed to enter an appearance to defend on or before ________________________ and is still in default with the delivery of such notice.
Now therefore the plaintiff prays for judgment against the defendant for:
a) Payment of R20 000;
b) Interest on the aforementioned amount at the rate of 15,5% a tempore morae;
c) Cost of suit.
Signed at Pretoria on this the _________day of _________________ 2006.
_________________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)
TO: The Clerk of the Court
Pretoria
AND TO: Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)
Received copy hereof on this the
_____ day of _______________2006.
_________________________________
Defendant’s Attorneys
EXAMPLE 24
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
______________________________________________________________________________
AFFIDAVIT IN SUPPORT OF APPLICATION FOR DEFAULT JUDGMENT IN TERMS OF RULE 12(4)
___________________________________________________________________________
I, the undersigned SPANNER KOEKEMOER hereby state under oath as follows:
1.
I am an adult male panelbeater that obtained my N3 Certificate in Panelbeating in 1980 and has worked as panel beater for my own account at "Spanner in the Works”, 10 Rose Ave, Mayville, Pretoria since 1981.
2.
I have 25 (Twenty Five) years experience in the repairs of petrol driven vehicles of various nature and is also acquainted with the costs of spares and related items and the standard tariffs for panelbeating labour and I am therefore competent to depose to this affidavit, the contents which fall in my personal knowledge and expertise.
3.
On 1 March 2006 I inspected the Plaintiff's vehicle, a Toyota Corolla, Registration Number XYZ456GP and found the following damage thereto, which damage, in my expert opinion, is consistent with damage sustained in a motor vehicle accident:
3.1 Front passenger door damaged beyond repair;
3.2 Damage to rear passenger door;
3.3 Damage to midpanel between two passenger doors.
4.
In accordance with my expert knowledge regarding repairs, cost of labour, prices of spares and related items, it is my opinion that the fair and reasonable costs of repairing the aforesaid damage will amount to R20 000,00, which amount is calculated as follows:
4.1 Removal and replacement of front passenger door:
R8 000,00: door
R1 000,00: labour
R1 000, 00: spray painting
4.2 Removal and replacement of midpanel:
R3 000,00: panel
R1 000,00: labour
R1 000, 00: spray painting
4.3 Repairs to rear passenger door:
R4 000,00: labour
R1 000,00: spray painting
Signed at Pretoria on this the ________day of ___________________ 2006.
________________________
Deponent
Signed and sworn to at Pretoria on ________________________ by the deponent who has stated that:
a He/She knows and understands the contents hereof and that it is true and correct;
b He/She has no objection to taking the prescribed oath; and
c That he/she regards the prescribed oath as binding on his/her conscience.
Signed before me,
COMMISSIONER OF OATHS:
SIGNATURE
FULL NAMES:
CAPACITY:
AREA:
BUSINESS ADDRESS:
SCENARIO THREE:
EXAMPLE 25
Application for summary judgment and opposing affidavit
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case No. 1/2006
In the matter between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
______________________________________________________________________________
APPLICATION FOR SUMMARY JUDGMENT
______________________________________________________________________________
Kindly take notice that Plaintiff intends to apply to court on _________________at 09:00 or as soon thereafter as counsel for the Plaintiff may be heard, for an order against Defendant in the following terms:
1. Summary judgment in the amount of R20 000,00;
2. Interest on the above amount at 15,5% a tempore morae;
3 . Cost of suit.
Kindly further take notice that the Affidavit of JILL HILL, attached hereto, will serve to support this application.
Kindly place the matter on the roll accordingly.
Signed at Pretoria on this the ___ day of ______________ 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 copy hereof on this the
_____ day of ________________ 2006
________________________________
Attorneys for Plaintiff
EXAMPLE 26
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case No. 1/2006
In the matter between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
______________________________________________________________________________
SUPPORTING AFFIDAVIT
______________________________________________________________________________
I, the undersigned,
JILL HILL
hereby make oath and declare as follows:
1.
I am the Plaintiff in this matter and can swear positively to the facts contained herein which facts fall within my personal knowledge and are true and correct.
2.
I confirm that the cause of action and the amount as set out in the Summons are correct.
3.
I verily believe that the Defendant does not have a bona fide defence and has merely entered an appearance to defend for purposes of delay.
____________________________
DEPONENT
THUS SWORN AND SIGNED TO BEFORE ME, AT ___________________ ON THIS THE _______ DAY OF _____________________________ the Deponent having acknowledge that he knows and understands the contents of this affidavit and that he considers the oath to e binding on his conscience.
______________________________
COMMISSIONER OF OATHS
EXAMPLE 27
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case No. 1/2006
In the matter between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
_____________________________________________________________________________
OPPOSING AFFIDAVIT
_____________________________________________________________________________
I, the undersigned,
JIM SWIFT
herewith make oath and declare as follows:
1.
I am the Defendant in the above matter and the facts contained herein fall within my personal knowledge and are true and correct.
2.
I have read the affidavit by the Defendant and wish to reply thereto as follows:
2.1 POINT IN LIMING
I am advised by my legal representative that the Plaintiff's claim is for an unliquidated amount for damages allegedly suffered and does not fall within the scope of application of the Summary Judgment remedy. Argument on this issue will be advanced at the hearing of the application for Summary Judgment.
2.2 AD DEFENCE
I confirm that I indeed have a bona fide defence to Plaintiff's claim and that I have not entered an appearance to defend merely for purposes of delay.
2.2.1 The nature and grounds of my defence are that I deny that I was negligent and thus I also deny that I caused the plaintiff’s damages. My defence is that the negligent conduct of the plaintiff was the sole cause of the accident because she failed to keep a proper look-out in the wet and unpleasant weather circumstances on the appropriate day and also drove at an unreasonably high speed.
2.3 AD COUNTERCLAIM
As a result of plaintiff's negligence as aforesaid I have a bona fide counterclaim for
R10 000,00, being the fair, reasonable and necessary costs of repairing my vehicle to its pre-collision condition.
______________________________
DEPONENT
THUS SWORN AND SIGNED TO BEFORE ME AT ___________________ ON THIS THE _______ DAY OF _____________________________ the Deponent having acknowledge that he knows and understands the contents of this affidavit and that he considers the oath to be binding on his conscience.
______________________________
COMMISSIONER OF OATHS
CAPACITY:
ADDRESS
SCENARIO FOUR:
Where defendant request copies of accounts and documents in terms of rule 15(1)
EXAMPLE 28
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case No. 1/2006
In the matter between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
_____________________________________________________________________________
NOTICE IN TERMS OF RULE 15(1)
_____________________________________________________________________________
Kindly take notice that Defendant requests Plaintiff to furnish copies of all or any accounts or documents upon which the action is based to Defendant within 10 (ten) days after receipt hereof.
Signed at Pretoria on this the ___ day of ________________ 2006
_________________________
Gaius Van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
(REF: G VAN WYK)
TO: The Clerk of the Court
Pretoria
AND TO: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof on this the
_____day of ____________ 2006.
__________________________
Attorneys for Plaintiff
EXAMPLE 29
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case No. 1/2006
In the matter between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
_____________________________________________________________________________
PLAINTIFF’S REPLY TO DEFENDANT’S REQUEST IN TERMS OF RULE 15(1)
_____________________________________________________________________________
Kindly take notice that due to the fact that plaintiff’s action is based on a motor vehicle collision, there are no accounts or documents upon which the action is based.
Signed at Pretoria on this the ___ day of ________________ 2006
_________________________
Gaius Van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
(REF: G VAN WYK)
TO: The Clerk of the Court
Pretoria
AND TO: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof on this the
_____day of ____________ 2006.
__________________________
Attorneys for Plaintiff
SCENARIO FIVE:
Where plaintiff is a company, defendant would be able to request security for costs
EXAMPLE 30
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case No. 1/2006
In the matter between:
JILL HILL (PTY) LTD Plaintiff
and
JIM SWIFT Defendant
_____________________________________________________________________________
REQUEST FOR SECURITY FOR COSTS
IN TERMS OF RULE 62(1) OF ACT 32 OF 1944
_____________________________________________________________________________
Kindly take notice that Defendant herewith requests that Plaintiff furnish to Defendant security for the costs of this action in the amount of R5 000,00 as the Plaintiff is an uncorporated company.
Signed at Pretoria on this the ___ day of _____________ 2006
_______________________________
Gaius Van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
TO: The Clerk of the Court
Pretoria
AND TO: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof on this the
_____ day of ________________ 2006
________________________________
Attorneys for Plaintiff
EXAMPLE 31
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case No. 1/2006
In the matter between:
JILL HILL PLAINTIFF - RESPONDENT
and
JIM SWIFT DEFENDANT - APPLICANT
______________________________________________________________________________
NOTICE IN TERMS OF RULE 62(2)
______________________________________________________________________________
Kindly take notice that Applicant intends to apply to the abovementioned Court on _________________at 09:00 for an order in the following terms:
a. That Respondent's action against Applicant be dismissed with costs due to Respondent's failure to furnish security for Applicant's costs in accordance with the requested dated ________________.
b. That Respondent be ordered to pay the costs of this application.
Signed at Pretoria on this the ___ day of __________________ 2006
_______________________________
Gaius Van Wyk
Attorneys for Applicant
10 Kirkness Street
Sunnyside
Pretoria
TO: The Clerk of the Court
Pretoria
AND TO: Johannes Voet
Attorneys for Respondent
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof on this the
_____ day of _______________ 2006
________________________________
Attorneys for Respondent
SCENARIO SIX:
Where a party requests reason for the judgment and decides to appeal
EXAMPLE 32
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case No. 1/2006
In the matter between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
______________________________________________________________________________
REQUEST FOR REASONS FOR JUDGMENT I.T.O. RULE 51
______________________________________________________________________________
Be pleased to take notice that the Plaintiff in the above case hereby requests that the Honourable Magistrate Z, within 15 (Fifteen) days from receipt hereof, hand to the Clerk of the Court a written judgment in respect of the trial of the above case that took place on _______________ 2006, which judgment will form part of the record and must show:
a) the facts he found to be proved
and
b) his reasons for judgment.
Dated at Pretoria on this the ____ day of __________________ 2006
________________________________
Attorneys for Plaintiff
Johannes Voet
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 copy hereof on this the
day of __________________ 2006
_________________________________
Attorneys for Defendant
SCENARIO SEVEN: NOTICE OF APPEAL
EXAMPLE 33
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
Case No. 1/2006
In the matter between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
______________________________________________________________________________
NOTICE OF APPEAL
______________________________________________________________________________
Kindly take notice that Plaintiff herewith notes an appeal to the Transvaal Provincial Division of the High Court against the whole of the judgment delivered by the Honourable Magistrate Z on _____________________in the above matter.
Further take notice that the appeal is based upon the following legal and factual grounds:
1. The honourable magistrate has erred by finding that the plaintiff did not prove his case, for the following reasons:
a) The honourable court failed to give sufficient weight to the evidence of Mr Frik Vos who testified that shortly before the accident with plaintiff, the defendant overtook his vehicle at an excessive speed and sped on.
b) The honourable court failed to make a finding that Mr James Carey, who was allegedly an eyewitness of the accident between the cars of plaintiff and defendant, was not a credible witness due to the following material contradictions in his testimony:
i) He initially testified that the accident occurred at 13:00 on 1 March 2006 when he was on his way to buy lunch. During cross-examination he however testified that it occurred at 09:00 on 1 March 2006 when he was on his way to work.
ii) He initially testified that defendant drove a blue Nissan Hardbody. During cross-examination he testified that defendant drove a red Nissan Hardbody.
iii) He initially testified that plaintiff drove at a high speed and could not stop to prevent the accident. During cross-examination he however testified that she did not concentrate on the road as she was talking over a cell phone and thus could not stop timeously to prevent an accident.
Signed at Pretoria on this the ____ day of _________________ 2006
_____________________________
Attorneys for Plaintiff
Johannes Voet
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 copy hereof on this the
day of _________________ 2006
_________________________________
Attorneys for Plaintiff
PART II
THE ACTION PROCEDURE IN THE HIGH COURT
a) FRAMEWORK
Plaintiff issues Combined Summons (1)
(
Sheriff serves (2) Combined Summons on Defendant
(
Defendant serves Notice of Appearance to Defend (3)
(
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 PHASE IN THE HIGH COURT:
I.r.o. 3:
Plaintiff can consider: - Summary Judgment
- Provisional Sentence
- Rule 30
Defendant can consider: - Rule 30
- Exception
- Security for Costs
- Special Plea
I.r.o. 4:
Plaintiff can consider: - Notice of Bar
(if Plea is late)
- Rule 30
- Exception
I.r.o. 5:
Plaintiff can consider: - Exception
- Rule 30
- Security for Costs
I.r.o. 6:
Defendant can consider: - Rule 30
- Exception
I.r.o. 7:
Defendant can consider: - Notice of Bar
(if Plea is late)
(1) DAMAGES ACTION IN THE HIGH COURT
EXAMPLE 34
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the ex parte application of:
JILL HILL Applicant
in re:
JACK HILL Patient
(hereinafter referred to as “the patient”)
for the appointment of a curator ad litem
_____________________________________________________________________________
NOTICE OF MOTION (APPOINTMENT OF CURATOR AD LITEM)
_____________________________________________________________________________
Be pleased to take notice that the applicant intends to make application on ______________ at 10:00 or as soon thereafter as counsel for the applicant may be heard for an order in the following terms:
1. That Cicero Nel be appointed as curator ad litem for the patient, Jack Hill.
2. That the curator ad litem be authorised to act as set out in annexure “A” hereto.
3. Further and/or alternative relief.
Kindly be pleased to take further notice that the affidavit of Cicero Nel together with the annexures will be used in support of this application.
Kindly enrol the matter accordingly.
Dated at Pretoria on this ___________ day of April 2006
___________________________
Johannes Voet Attorneys
Attorneys for Applicant
Kirkness Street 431
Sunnyside
Pretoria
TO: The Registrar of the High Court
Pretoria
AND TO: The Master of the High Court
Pretoria
AND TO: The RAF
38 Ida Street
Menlo Park
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
RAF
EXAMPLE 35
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the ex parte application of:
JILL HILL Applicant
in re:
JACK HILL Patient
(hereinafter referred to as “the patient”)
for the appointment of a curator ad litem
_____________________________________________________________________________
DRAFT ORDER
_____________________________________________________________________________
After hearing the advocate on behalf of applicant and after reading the papers, the following terms are made an order of court:
1. That Cicero Nel, an advocate of the Pretoria Bar, be appointed as curator ad litem for and on behalf of Jack Hill.
2. That the curator ad litem is authorised to:
2.1 Take all necessary steps and take all steps that is necessary for institution of an action arising from a collision on 1 March 2006;
2.2 Ratify all steps taken and all actions done on behalf of the patient in respect of the action;
2.3 Sign all documents necessary for the institution, procurement and completion of the third party action as aforementioned.
2.4 To initiate such negotiations in settlement of the action with a view to finalising the action to the advantage of the patient. Provided that the curator ad litem will not have the authority to settle the claim on behalf of the plaintiff without the prior consent of a judge obtained in open court or in chambers.
2.5 To report to the court regarding the appointment of a curator bonis for the
patient.
3. Costs reserved.
By order of Court
________________________
REGISTRAR
ANNEXURE A
1. That the curator ad litem is authorised to:
1.1 Take all necessary steps and take all steps that is necessary for institution of an action arising from a collision on 1 March 2006;
1.2 Ratify all steps taken and all actions done on behalf of the patient in respect of the action;
1.3 Sign all documents necessary for the institution, procurement and completion of the third party action as aforementioned.
1.4 To initiate such negotiations in settlement of the action with a view to finalising the action to the advantage of the patient. Provided that the curator ad litem will not have the authority to settle the claim on behalf of the plaintiff without the prior consent of a judge obtained in open court or in chambers.
1.5 To report to the court regarding the appointment of a curator bonis for the
patient.
EXAMPLE 36
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the ex parte application of:
JILL HILL Applicant
in re:
JACK HILL Patient
(hereinafter referred to as “the patient”)
for the appointment of a curator ad litem
_____________________________________________________________________________
FOUNDING AFFIDAVIT
_____________________________________________________________________________
I, the undersigned
JILL HILL
hereby make oath and declare as follows:
1.
1.1 I am the applicant in this matter, an adult female pharmacist resident at 20 Queens Crescent, Lynnwood, Pretoria.
2. The facts mentioned herein fall within my personal knowledge and are true and correct.
2.
I am married to the patient, Jack Hill, identity number ……………………. as confirmation thereof I attach copy of marriage certificate marked annexure AA.
3.
AD BACKGROUND:
3.1 The patient was involved in a motor vehicle accident on 1 March 2006 while he was a passenger in a motor vehicle with registration number XYZ 456 GP, driven by myself. The accident occurred at the corner of King and Queen Streets Pretoria when the aforementioned vehicle collided with another vehicle with registration number ABC 123 GP.
3.2 The driver of the vehicle with registration number ABC 123 GP was negligent in the following aspects:
a) he failed to keep a proper look-out;
b) he drove at a speed in excess of the speed limit.
I refer the court to the assessor’s report attached hereto marked annexure A.
4.
AD MEDICAL BACKGROUND
4.1 I humbly refer the Honourable Court to annexure B hereto, being a medical report of Dr F Erasmus of the Eugene Marais Hospital c/o 5th Avenue and Fred Nicholson Street, Les Marais, Pretoria wherein the said Dr Erasmus comments on the patient’s brain injuries.
4.2 I further wish to refer the court to annexure C hereto being the medical legal report of Drs Lamprecht, Greeff and partners, radiologists at the Eugene Marais Hospital wherein the patient’s head injuries are also mentioned.
4.3 I further wish to refer the Honourable Court to annexure D hereto being a report by Wilma Van der Watt, an occupational therapist, practising at 31 Sycamore Street, Zwartklip, Centurion.
5.
A claim has been filed at the Road Accident Fund on behalf of the patient and I wish to refer the court to annexure E hereto, being the aforementioned claim form.
6.
In view of the content of the annexures referred to above, it is my humble submission that it is desirable and necessary that a curator ad litem be appointed.
7.
It is then also the purpose of this application and I humbly refer the Honourable Court to annexure F hereto, being a letter of consent by advocate Cicero Nel of the Pretoria Bar.
8.
I humbly submit that the patient’s condition is such that he is unable to handle his own affairs and I consequently request that the Honourable Court grant an order as set out in the notice of motion.
Signed and sworn to at Pretoria on ________________________ by the deponent who has stated that:
a He/She knows and understands the contents hereof and that it is true and correct;
b He/She has no objection to taking the prescribed oath; and
c That he/she regards the prescribed oath as binding on his/her conscience.
Signed before me,
COMMISSIONER OF OATHS:
SIGNATURE
FULL NAMES:
CAPACITY:
AREA:
BUSINESS ADDRESS:
EXAMPLE 37
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the ex parte application of:
JILL HILL Applicant
in re:
JACK HILL Patient
(hereinafter referred to as “the patient”)
for the appointment of a curator ad litem
___________________________________________________________________________
LETTER OF CONSENT
___________________________________________________________________________
I, the undersigned
ADVOCATE CICERO NEL
Confirm herewith that I am prepared and available to serve as curator ad litem for the injured Jack Hill. I am a member of the Pretoria Bar and practise as advocate at 1408 New Court Chambers, 115 Paul Kruger Street, Pretoria, Gauteng.
Signed at Pretoria on this __________________ day of ___________________ 2006
___________________________
C Nel
EXAMPLE 38
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the ex parte application of:
JILL HILL Applicant
in re:
JACK HILL Patient
(hereinafter referred to as “the patient”)
for the appointment of a curator ad litem
_____________________________________________________________________________
NOTICE OF SET DOWN
___________________________________________________________________________
Kindly take notice that the above matter is set down for hearing on __________________ at _________________ or as soon thereafter as counsel for the applicant may be heard.
Dated at Pretoria on this ___________ day of ________________ 2006
___________________________
Johannes Voet Attorneys
Attorneys for Applicant
Kirkness Street 431
Sunnyside
Pretoria
TO: The Registrar of the Court
Pretoria
AND TO: The RAF
38 Ida Street
Menlo Park
Pretoria
Received copy hereof this ______
day of _______________ 2006
______________________
RAF
AND TO: Master of High Court
Pretoria
EXAMPLE 39
COMBINED
SUMMONS
Case number:
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
In the matter between:
CICERO NEL N.O. Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
To the sheriff: PRETORIA EAST
Inform
The Road Accident Fund, a legal persona instituted as such and endowed with legal personality in terms of the provisions of section 2 of the Road Accident Fund Act, Act 56 of 1996 as amended (hereafter the 1996 Act) with main place of business within the area of jurisdiction of the above honourable court at RAF Building, 38 Ida Street, Menlopark, Pretoria, Gauteng,
(hereafter the defendant) that
Cicero Nel, an adult male practising advocate of New Court Chambers, Pretoria, who is acting herein in his capacity as duly appointed curator ad litem for Jack Hill, an unemployed adult male born on 26 June 1968 (hereafter “the patient”)
Hereby institutes an action against defendant in terms whereof plaintiff claims the legal relief indicated in the attached particulars of claim, on the grounds set out therein.
Further notify the defendant that if the defendant disputes the action and wishes to defend same, defendant must
(i) Within 10 (ten) days after service upon defendant of this summons, file with the Sheriff of the High Court, corner Paul Kruger and Vermeulen Streets, Pretoria, a notice of defendant’s intention to defend and serve a copy thereof on plaintiff’s attorney, wherein an address as intended in Rule 19(3) is given for the purpose of service on defendant of all notices and documents in the action.
(ii) Thereafter, and within 20 (twenty) days after entering and serving the notice of intention to defend as aforesaid with the sheriff, enter a plea, exception, notice of motion for striking out, with or without a counterclaim and serve same on the plaintiff.
Further inform the defendant that if the defendant fails to enter or serve a notice as aforesaid, judgment can be requested and granted against the defendant without further notice to the defendant or if he/she fails to plea, except, apply for striking out or institute a counterclaim after entering a notice of intention to defend, judgment can also be granted against the defendant. And immediately thereafter serve a copy of this summons on the defendant and deliver the original to the Registrar together with a return of what you did with same.
Signed at Pretoria on __________________ day of March 2006
____________________________
Registrar of the High Court
Pretoria
_______________________________
Signed: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
____________________________________________________________________________
PARTICULARS OF CLAIM
____________________________________________________________________________
1.
The plaintiff is Cicero Nel, a practising advocate at New Court Chambers, Pretoria, acting in his capacity as duly appointed curator ad litem for Jack Hill, an unemployed adult male born on 26 June 1968 (the patient).
2.
The defendant is the Road Accident Fund, a legal persona instituted as such and endowed with legal personality in terms of the provisions of section 2 of the Road Accident Fund Act, Act 56 of 1996 as amended (the 1996 Act) with main place of business within the area of jurisdiction of the above honourable court at RAF Building, Ida Street 38, Menlopark, Pretoria, Gauteng.
3.
On 1 March 2006 on the corners of King and Queen Streets, Pretoria, a collision occurred between a motor vehicle with registration number XYZ 456 GP driven by Jill Hill and a motor vehicle with registration number ABC 123 GP (hereafter referred to as the insured vehicle) there and then driven by Jim Swift (hereafter referred to as the insured driver). At the time of the incident the patient was a passenger in the vehicle with registration number XYZ 456 GP.
4.
The aforementioned collision has been caused by the exclusive negligence of the insured driver, who was negligent in one, more or all of the following aspects:
4.1 he failed to keep a proper look-out;
4.2 he drove his vehicle at a speed that exceeded the speed limit.
5.
As a result of the aforementioned collision, the patient sustained the following physical injuries:
5.1 Lacerations to right knee and both legs;
5.2 Skull fracture;
5.3 Fracture of base of skull;
5.4 Facial fractures;
5.5 Bruising of his neck.
6.
As a result of the injuries that the patient sustained in the aforementioned accident:
6.1 He received medical treatment in a hospital;
6.2 He will have to receive medical treatment, aids and other specialised services in the future;
6.3 He suffered loss of amenities;
6.4 He suffered pain and discomfort that will probably continue in future;
6.5 He suffered emotional trauma and shock that will probably continue in future.
7.
In the circumstances the patient sustained personal damages in an amount of R942 267-05, which amount is calculated as follows:
7.1 Past hospital expenses R155 246-85
7.2 Past medical expenses R 37 020-20
7.3 Future medical expenses R200 000-00
7.4 Future loss of earnings earning capacity R400 000-00
7.5 General damages for pain and suffering, discomfort, incapacity,
loss of amenities and bodily mutilation (which amount cannot be
practically subdivided and is claimed as a global amount) R150 000-00
TOTAL R942 267-05
8.
Prior to the institution of this action the patient complied with the provisions of section 62 of the Act, alternatively the patient is deemed to have so complied in terms of the provisions of section 62(e), and the period prescribed by section 63(a) has since prescribed.
9.
The incident in which the patient’s damage was caused, occurred in the area of jurisdiction of the above honourable court. The defendant’s main place of business is also situated within the area of jurisdiction of the above honourable court.
10.
In the aforementioned premises, the defendant is liable to pay the abovementioned amount to plaintiff, but despite demand defendant has to date failed to pay such amount or any part thereof to plaintiff.
Wherefore plaintiff claims:
a) Payment of the amount of R942 267-05.
b) Should the defendant fail to pay the aforementioned amount or any part thereof within 14 (fourteen) days from date of judgment, then such amount will bear interest at a rate of 15,5% per year calculated from the date of judgment to the date of payment thereof.
c) Cost of suit.
d) Should the defendant fail to pay the plaintiff’s taxed costs within 7 (seven) days from receipt of the signed allocatur of the bill of costs, such legal costs will bear interest at a rate of 15,5% per year calculated from and including the date of the signing of the allocatur of the bill of costs to date of payment.
e) Further and/or alternative relief.
____________________________
Johannes Voet
Attorneys for Plaintiff
Admitted in terms of section 4(2) of Act 62 of 1995
431 Kirkness Street
Sunnyside
Pretoria
EXAMPLE 40
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
RETURN OF SERVICE
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Nature of process: COMBINED SUMMONS
RETURN OF SERVICE : ROAD ACCIDENT FUND
On 29 May 2006 at 12:00 at 38 Ida Street, Menlo Park, Pretoria a copy of the combined summons was served on Christina Gonane (administrative clerk) a person apparently older than 16 years, being the address of the Road Accident Fund after the original was shown to aforesaid person and the nature and content thereof was explained to her. (Rule 4(1)(a)(v))
________________________________
DEPUTY SHERIFF
FROM:
CF NEL
P O Box 714, Pretoria, 0001
Telephone Nr. (012) 326-2305
Fax Nr. (012) 326-2397
Email address: shefeast@m-web.co.za
VAT Reg Nr. 4790168993
Compiler: Mrs/10
TO: The Sheriff of the High Court
Pretoria
AND TO: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside, Pretoria
EXAMPLE 41
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE OF INTENTION TO DEFEND
____________________________________________________________________________
Kindly take notice that the Defendant, the Road Accident Fund, with principal place of business at 38 Ida Street, Menlopark, Pretoria hereby gives notice of its intention to defend the above action.
And further take notice that the Defendant hereby appoints the undermentioned address of his attorneys for the service on it of all documents in the said action.
Dated at Pretoria on this the ____________ day of June 2006
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 42
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(4)
____________________________________________________________________________
Kindly take notice that the Defendant requires of Plaintiff, insofar as Plaintiff is in position to do so, to make available within 10 (ten) days from the date hereof, medical records, hospital records, x-rays photographs, or other documentary information of a like nature relevant to the assessment of such damages and to provide copies thereof upon request.
Dated at Pretoria on this the ____________ day of June 2006
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 43
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE OF OFFER OF SETTLEMENT IN TERMS OF RULE 34(1) & (5)
____________________________________________________________________________
Be pleased to take notice that Defendant tenders in full and final settlement and solely without prejudice and admission of liability to settle the Plaintiff’s claim in his capacity as curator ad litem for Jack Hill (the patient) to pay to Plaintiff the amount of R25 000 (Twenty Five Thousand Rand) within 15 (fifteen) days after acceptance of this tender by Plaintiff.
Be pleased to take further notice that Defendant also tenders to pay Plaintiff’s taxed party and party costs on a Magistrate’s Court scale to date hereof including the allowable preparation fees of experts, as agreed between the parties or as may be ordered by the above Honourable Court.
Dated at Pretoria on this the ____________ day of June 2006
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 44
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
REPLY TO NOTICE IN TERMS OF RULE 36(4)
____________________________________________________________________________
Kindly take notice that Plaintiff herewith, in accordance with Rule 36(4), provide a list of medical reports, hospital records and other documentary information that may be relevant to the determination of the quantum of plaintiff’s claim against defendant.
Kindly further take notice that the following documents can be inspected at the offices of plaintiff’s attorney of record:
1. Form 1 dated 1 March 2006;
2. Drs Lamprecht, Greeff and Partners dated 1 March 2006;
3. Drs Lamprecht, Greeff and Partners dated 2 March 2006;
4. Drs Lamprecht, Greeff and Partners dated 3 March 2006;
5. Wilma Van der Walt dated 22 June 2006;
6. Daphne Beukes dated 7 July 2006.
Dated at Pretoria on this the ____________ day of July 2006
___________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Defendant
EXAMPLE 45
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
JIM SWIFT Defendant
____________________________________________________________________________
DEFENDANT’S PLEA
____________________________________________________________________________
The Defendant pleads as follows to the Plaintiff’s particulars of claim:
1.
AD PARAGRAPH 1 THEREOF:
1.1 The Defendant admits that the Plaintiff was appointed as the curator ad litem for the patient who was born on 26 June 1968.
1.2 Defendant has no knowledge of the further allegations contained in this paragraph cannot admit or deny same and puts the Plaintiff to the proof thereof.
2.
AD PARAGRAPH 2 THEREOF:
The allegations contained in this paragraph are admitted.
3.
AD PARAGRAPH 3 THEREOF:
3.1 The Defendant admits that on 1 March 2006 an incident occurred which involved motor vehicle bearing registration letters and numbers XYZ 456 GP driven by Jill Hill and motor vehicle ABC 123 GP driven by Jim Swift.
3.2 Each and every further allegation contained in this paragraph is denied and the Defendant puts the Plaintiff to the proof thereof.
4.
AD PARAGRAPH 4 THEREOF:
4.1 The Defendant denies each and every allegation contained in this paragraph as if specifically traversed and puts the Plaintiff to the proof thereof.
4.2 In the event of the above Honourable Court finding that a collision occurred as alleged by Plaintiff and that the driver of motor vehicle ABC 123 GP was negligent as alleged by the Plaintiff, which is still denied, then and in that event the Defendant denies that such negligence caused or contributed to the collision.
4.3 In the alternative to paragraphs 4.1 and 4.2 above and in the event of it being held by the above Honourable Court that a collision occurred as alleged by Plaintiff and that the driver of motor vehicle ABC 123 GP was negligent and that such negligence caused or contributed to the collision, all of which is still denied, then and in that event the Defendant pleads that:
4.3.1 The patient at all material times negligently failed to make use of a seat belt which was at all reasonable times available for use by the patient in motor vehicle XYZ 456 GP and in such circumstances in which he reasonable ought to have made use of such seat belt;
4.3.2 The aforesaid negligent omission by the patient was a cause of or contributed to the extent of the injuries which he sustained in the collision abovementioned.
5.
AD PARAGRAPHS 5, 6 AND 7 THEREOF:
5.1 The Defendant has no knowledge of the extent of the injuries allegedly sustained by the patient or the amount of damages allegedly suffered by the Plaintiff, does not admit or deny them and puts Plaintiff to the proof thereof.
5.2 The Defendant has no knowledge of the further allegations contained in this paragraph, does not admit or deny same and puts the Plaintiff to the proof thereof.
6.
AD PARAGRAPH 8 THEREOF:
Defendant denies each and every allegation contained in this paragraph and puts Plaintiff to the proof thereof.
7.
AD PARAGRAPH 9 THEREOF:
The Defendant admits the allegations contained in this paragraph.
8.
AD PARAGRAPH 10 THEREOF:
8.1 The Defendant denies being liable to pay to Plaintiff the amount claimed or any other amount and puts Plaintiff to the proof thereof.
8.2 The Defendant denies every further allegation contained in this paragraph and puts the Plaintiff to the proof thereof.
Wherefore the Defendant prays that the Plaintiff’s claim be dismissed with costs alternatively that the Plaintiff’s claim be reduced in accordance with the Apportionment of Damages Act together with a cost order to the extent of the patient’s contributory negligence in failing to wear a seat belt.
Dated at Pretoria on this the ____________ day of July 2006.
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 46
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE OF APPLICATION FOR A TRIAL DATE
____________________________________________________________________________
Kindly take notice that the Plaintiff herewith applies for a trial date in the above matter and will simultaneously herewith make an inscription into the register of applications for trial date held by the Registrar of the above court.
Kindly further take notice that the defendant has complied with the requirements of Uniform Rule 37.
Dated at Pretoria on this the ____________ day of __________________2006
___________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Defendant
EXAMPLE 47
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE OF SET DOWN
Be pleased to set the above matter down for trial on ____________ day of ________________
2006 at 10:00 or as soon thereafter as Counsel may be heard.
Dated at Pretoria on this the ____________ day of __________________2006
___________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Defendant
EXAMPLE 48
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE IN TERMS OF RULE 35(1)
____________________________________________________________________________
Take notice that in terms of Rule 35(1) the Defendant hereby requires the Plaintiff to make discovery on oath within 20 (twenty) days of receipt hereof of all documents and tape recordings in his possession or control relating to any matter in question in this action (whether such matter is one arising between the Defendant and Plaintiff or not) or have at any time been in the possession or control of the Plaintiff.
Dated at Pretoria on this the ____________ day of August 2006.
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 49
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE IN TERMS OF RULE 35(10)
____________________________________________________________________________
Take notice that in terms of Rule 35(10) the Defendant requires the Plaintiff to produce at the hearing of this matter the originals of all documents or tape recordings discovered by them, not being privileged documents or tape recordings.
Dated at Pretoria on this the ____________ day of August 2006.
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 50
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE IN TERMS OF RULE 35(8)
____________________________________________________________________________
Take notice that in terms of Rule 35(8) the Plaintiff is hereby required to specify in writing, particulars of dates and parties or to any document or tape recording, intended to be used at the trial of this action on behalf of the Plaintiff.
Dated at Pretoria on this the ____________ day of August 2006.
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 51
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(9)(a)
____________________________________________________________________________
Be pleased to take notice that the Plaintiff intends to call Mr Barry Grobbelaar, mechanical engineer of 285 Marais Street, Brooklyn, Pretoria, to give evidence on the Plaintiff’s behalf as an expert at the trial of the above matter.
Dated at Pretoria on this the ____________ day of October 2006
___________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Defendant
EXAMPLE 52
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(10)
____________________________________________________________________________
Kindly take notice that Defendant intends to present the following documents as evidence in the trial of the above matter:
2 Colour photographs of the accident scene, marked Annexure A1 and A2
which can be inspected at the office of Defendant’s attorneys on weekdays from 08:00 to 16:00.
Kindly further take notice that the Plaintiff is required, within 10 days from receipt of this notice, to admit the authenticity of the aforementioned photographs, failing which the said documents will be tendered as evidence without further proof.
Dated at Pretoria on this the ____________ day of October 2006.
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 53
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(9)(b)
____________________________________________________________________________
Be pleased to take notice that the Defendant delivers herewith a summary of the opinion of the expert witness Mr Barry Grobbelaar (Accident Reconstruction Analyst) dated __________ October 2006 and his reasons therefor.
Dated at Pretoria on this the ____________ day of October 2006.
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 54
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
SUBPOENA
____________________________________________________________________________
To the Sheriff or his Deputy:-
Notify: Jim Swift
Auditor
At address: 7 Kingbolt Crescent
Wapadrand
Pretoria
That he is herewith ordered to personally appear before the High Court, Vermeulen Street, Pretoria on _____________________ at 10:00 and to stay present until he is excused by the court, in order to testify on behalf of the above plaintiff regarding matters of which he has knowledge regarding an action that is now pending in the above court, instituted by the Plaintiff against the Defendant.
And further notify the abovementioned person that he may under no circumstances omit to comply with this subpoena as he can otherwise expose himself to a fine of R300 (three hundred rand) or imprisonment of 3 (three) months.
Dated at Pretoria on this the ____________ day of October 2006.
____________________________
Sheriff of the High Court
____________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
EXAMPLE 55
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(1) & (2)
____________________________________________________________________________
Kindly take notice that defendant hereby requests that patient, Jack Hill, undergoes a medical examination at Dr Piet Noble (MBChB) at 947 General Louis Botha Avenue, Constantiapark, Pretoria at 11:00 on __________________ 2006.
Kindly further take notice that the purpose of the examination is to ascertain the extent and nature of the patient’s injuries sustained in the motor vehicle accident on 1 March 2006.
Kindly further take notice that:
a) The patient is entitled to have his own medical advisor present;
b) The defendant tenders the patient’s cost for attendance of the examination in the amount of R_______________ and that defendant will bear the costs of the examination.
Also take notice that if the patient has any objection against the proposed examination, he must notify the defendant accordingly in writing within 10 (ten) days from delivery of this notice and he must indicate whether he has any objection against:
a) the nature of the proposed examination;
b) the person who will conduct the examination;
c) the place, date and time of the examination;
d) the amount of costs tendered.
In the event of an objection, the patient may propose an alternative time, date or place for the examination or provide particulars of such increased amount as he desires.
Upon failure to deliver an objection as set out above, it will be deemed that the patient agreed to the examination on the terms as set out herein.
Dated at Pretoria on this the ____________ day of October 2006.
____________________________
Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Plaintiff
EXAMPLE 56
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the matter between:
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
ROAD ACCIDENT FUND Defendant
____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(9)(a) & 36(9)(b)
____________________________________________________________________________
Please note that the Plaintiff intends to call Dr AP Rossouw, Neurologist of Suite 516, Muelmed Hospital, Arcadia, Pretoria as an expert witness at the trial of the above matter to give evidence with regard to his reports dated 25 March 2006.
Kindly further take notice that Plaintiff herewith delivers a summary of the opinion of the aforementioned Dr Rossouw, dated ____________ and his reasons therefore.
Dated at Pretoria on this the ____________ day of October 2006
___________________________
Johannes Voet
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Paul Grotius
Attorneys for Defendant
420 Kirkness Street
Sunnyside
Pretoria
Received copy hereof this ______
day of _______________ 2006
____________________________
Attorneys for Defendant
(2) THE DIVORCE ACTION
THEORY: THE DIVORCE ACTION
i) Cause of Action
The particulars of claim to a divorce summons must mention the following:
1) Citation of parties
2) Allegation of where and when and in terms of which marriage dispensation the parties concluded a valid marriage and that such marriage still subsists
3) An allegation that the Court has jurisdiction in terms of section 2 of the Divorce Act 70 of 1979.
4) If applicable particulars must be furnished of any minor children born from the marriage between the parties.
5) An allegation regarding future custody and control of the minor children.
6) An allegation that the marriage relationship between the parties broke down irretrievably.
7) The grounds for breakdowns of the marriage.
8) Compliance with Children’s Act if there are minors involved eg parenting plan.
9) Annexure A with regard to Particulars [Regulation 2 of the Mediation in certain divorce matters regulations, (1990) Arrangements regarding dependent and minor children].
10) Prayers
NOTE: There must compliance with the regulations promulgated in terms of the Act on Mediation in Certain Divorce Matters, no 24 van 1987
EXAMPLE 57
COMBINED SUMMONS
Case No:
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
In the matter between:
BETTY BUTCHER PLAINTIFF
and
BILLY BUTCHER DEFENDANT
____________________________________________________________________________
TO the Sheriff of his Deputy:
INFORM: BILLY BUTCHER, a adult male doctor, resident at 20 WATENT CRESCENT, WAPADRAND, PRETORIA, GAUTENG.
(hereinafter called the Defendant) that
BETTY BUTCHER, a adult female nurse, resident at 20 WATENT CRESCENT, WAPADRAND, PRETORIA, GAUTENG.
(hereinafter called the Plaintiff), hereby institutes action against the Defendant, in which action the Plaintiff claims the relief and on the grounds set out in the particulars annexed hereto.
INFORM the Defendant further that if Defendant disputes the claim and wishes to defend the action, the Defendant shall -
(i) Within 10 (TEN) days of the service upon the Defendant of this Summons, file with the Registrar of this Court at the Court Building, Vermeulen Street, Pretoria, Transvaal, a Notice of Defendant's intention to defend and serve a copy thereof on the Attorneys of the Plaintiff, which notice shall give an address (not being a post office or poste restante) referred to in Rule 19 (3)(b) for the service upon the Defendant of all notices and documents in the action.
(ii) Thereafter and within TWENTY DAYS after filing and service a Notice of Intention to Defend as aforesaid, file with the Registrar and serve upon the Plaintiff a Plea, Exception, Notice to Strike out, with out without a Counter-claim.
INFORM the Defendant further that if the Defendant fails to file and serve notice as aforesaid, Judgement as claimed may be given against the Defendant without further notice to the Defendant, or if having filed and served such notice, the Defendant fails to Plead, Except, make application to strike out or Counter-claim, Judgement may be given against the Defendant.
AND IMMEDIATELY thereafter serve on the Defendant a copy of this Summons and return the same to the Registrar with whatsoever you have done thereupon.
SIGNED at PRETORIA on this _____ day of JANUARY 2000.
_______________________________
REGISTRAR OF THE HIGH COURT
______________________________________
VAN HEERDEN'S INCORPORATED
ATTORNEYS FOR PLAINTIFF
431 KIRKNESS STREET
SUNNYSIDE
PRETORIA
(REF: W VAN HEERDEN)
TEL.: 3445901
_____________________________________________________________________________
PARTICULARS OF CLAIM
_____________________________________________________________________________
1.
The PLAINTIFF is BETTY BUTCHER, an adult female nurse resident at 20 WATENT CRESCENT, WAPADRAND, PRETORIA, GAUTENG.
2.
The DEFENDANT is BILLY BUTCHER, an adult male doctor, resident at 20 WATENT CRESCENT, WAPADRAND, PRETORIA, GAUTENG.
3.
The parties were married to each other in community of property on 1O MAY 1995 at PRETORIA, which marriage still subsists.
4.
Both parties are domiciled within the jurisdiction area of the above Honourable Court.
5.
From the marriage between the parties, two minor children were born:
5.1 CATE, a girl, born on 10 MAY 1996;
5.2 DUPLICATE, a girl, born on 10 MAY 1996.
6.
It is in the best interests of the minor children that care and control be awarded to the Plaintiff.
7.
The marriage relationship between the parties has broken down irretrievably and there are no prospects of restoring a normal marriage relationship for the following reasons:
7.1 The Defendant has an affair with TANTALIZING TINA TURNER since 10 MAY 1997, which affair is unacceptable to Plaintiff.
7.2 The Defendant abuses the Plaintiff emotionally.
7.3 There is no meaningful communication between the parties.
7.4 The parties have lost their love and affection for each other.
WHEREFORE PLAINTIFF PRAYS FOR AN ORDER IN THE FOLLOWING TERMS;
1. A decree of divorce;
2. Division of the joint estate;
3. Care and control of the minor children subject to Defendant's right of reasonable access.
4. Maintenance for the minor children in the amount of R1 000,00 per month per child.
5. Cost of suit.
SIGNED AT PRETORIA ON THIS THE ____ DAY OF JANUARY 2000.
_________________________________ _______________________________
C M VAN HEERDEN VAN HEERDEN'S INCORPORATED
ADMITTED IN TERMS OF SECTION 4(2) ATTORNEYS FOR PLAINTIFF
OF ACT 62 OF 1995 431 KIRKNESS STREET
SUNNYSIDE
PRETORIA
EXAMPLE 58
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NR. 40/2000
In the matter between
BILLY BUTCHER PLAINTIFF
and
BETTY BUTCHER DEFENDANT
___________________________________________________________________________
DEED OF SETTLEMENT
___________________________________________________________________________
WHEREAS the plaintiff issued a divorce summons against the defendant wherein she prayed, inter alia, for the following:
a) A decree of divorce
b) Division of the joint estate
c) Care and control of the minor children born from the marriage subject to defendant’s right of reasonable access
d) Maintenance for the minor children in the amount of R1 000 per child per month
e) Cost of suit
AND WHEREAS the parties are desirous to settle the matter
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1. Divorce Proceedings
The plaintiff will proceed to obtain a divorce order on an undefended basis.
2. Division of the joint estate
The defendant will pay the plaintiff an amount of R500 000 on 20 March 2000 in settlement of her claim for division of the joint estate.
3. Care and Control
a) Care and control of the minor children will be awarded to plaintiff subject to defendant’s right of reasonable access.
(b) Such right of reasonable access will entail that the defendant may take the children with him every alternative weekend and one long and one short holiday per year on condition that such access is exercised in such a manner that it does not interfere with the scholastic and religious activities of the minor children.
4. Maintenance
(a) Defendant will pay maintenance in an amount of R1 000 per month per minor child and will also pay all reasonable medical, dental and related expenditures of the minor children.
(b) The defendant will buy the minor children complete summer and winter school uniform at the beginning of each school year including any sport year that the children may need or scholastic purpose.
(c) The maintenance amount will escalate automatically at a rate of 10% per year.
5. Contribution towards costs
The defendant will contribute an amount of R5 000 towards plaintiff’s legal costs
6. Entire Agreement
This agreement constitutes the whole of the agreement between the parties and after signing hereof the parties will have no further claims against each other save as mentioned herein.
This provision does not interfere with the plaintiff’s right to approach the court at any stage for purpose of increasing the maintenance payable in respect of the minor children.
SIGNED at PRETORIA on this ____________ day of _____________
AS WITNESSES: __________________
__________________
___________________
BETTY BUTCHER
(PLAINTIFF)
SIGNED at PRETORIA on this ____________ day of _____________
AS WITNESSES: __________________
__________________
___________________
BILLY BUTCHER
(DEFENDANT)
EXAMPLE 59
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NR:
In the matter between:
BETTY BUTCHER PLAINTIFF
and
BILLY BUTCHER DEFENDANT
_____________________________________________________________________________
NOTICE IN TERMS OF RULE 35(1), (8) AND (10)
_____________________________________________________________________________
KINDLY TAKE NOTICE THAT:
1. Plaintiff requires of Defendant that he discovers under oath, within 20 (TWENTY) days after delivery of this notice all documents and/or tape recordings that are relevant to an issue in dispute, whether it arose between the parties or not, and which is or was in his possession or under his control.
2. Plaintiff requires particulars from Defendant in terms of Rule 35(8), of dates and parties to documents and/or tape recordings that Defendant is desirous to use, which notice must be delivered to Plaintiff at least 15 (FIFTEEN) days prior to the trial date.
3. Plaintiff informs Defendant in terms of Rule 35(1) to have the documents discovered as such, at least 10 (TEN) days prior to the trial.
SIGNED AT PRETORIA ON THIS THE _____ DAY OF JANUARY 2000.
______________________________
JOHANNES VOET
ATTORNEYS FOR PLAINTIFF
431 KIRKNESS STREET
SUNNYSIDE
PRETORIA
TO: THE REGISTRAR OF THE HIGH COURT
PRETORIA
AND TO: GAIUS VAN WYK
ATTORNEYS FOR DEFENDANT
10 KIRKNESS STREET
SUNNYSIDE
PRETORIA
(REF: G VAN WYK)
Received copy hereof on this the
____ day of JANUARY 2000.
_________________________________
ATTORNEYS FOR DEFENDANT
EXAMPLE 60
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NO:
In the matter between:
BETTY BUTCHER PLAINTIFF
and
BILLY BUTCHER DEFENDANT
____________________________________________________________________________
NOTICE IN TERMS OF RULE 37(1)(a)
____________________________________________________________________________
KINDLY TAKE NOTICE that Plaintiff's Attorney herewith requires that Defendant or his Attorney attend a conference at a mutually suitable time and place, with the purpose of agreeing on manners to shorten the trial and more specifically in regard to as many as possible of the following:
1. Admission of facts and documents;
2. Conduct of inspections and examinations;
3. Discovery;
4. Exchange of expert reports;
5. Furnishing of further particulars for trial;
6. Exchange, inspection and communication of plans, photographs, drawings, models and plans that will be used at the trial;
7. Consolidation of trials;
8. Quantum of damages;
9. Preparation and presentation at trial of copies of correspondence and pleadings in a paginated file;
10. Locus standi;
11. Any other matters that may serve to shorten the trial.
SIGNED AT PRETORIA AT THIS THE ____ DAY OF JANUARY 2000,.
______________________________
JOHANNES VOET
ATTORNEYS FOR PLAINTIFF
431 KIRKNESS STREET
SUNNYSIDE
PRETORIA
TO: TO THE REGISTRAR OF
THE SUPREME COURT
AND
TO: GAIUS VAN WYK
ATTORNEYS FOR DEFENDANT
10 KIRKNESS STREET
SUNNYSIDE
PRETORIA
Received copy hereof on this the
_____ day of JANUARY 2000.
_________________________________
ATTORNEYS FOR DEFENDANT
EXAMPLE 61
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NO. 50/2000
In the matter between
BETTY BUTCHER APPLICANT
and
BILLY BUTCHER RESPONDENT
___________________________________________________________________________
NOTICE IN TERMS OF RULE 43
___________________________________________________________________________
TO: The abovementioned Respondent
TAKE NOTICE THAT if you intend to defend this claim you must file your reply with the Registrar of the Court within 10(days), and therein you must furnish an address for service as indicated by Rule 6(5) and that you must serve a copy thereof on the applicant’s attorneys. If you fail to do so, you will automatically be barred from defending the matter and judgement as requested can be granted against you.
In your reply you must indicate which allegations in the Applicant’s affidavit you admit or deny, and you must set out your defence concisely.
Kindly enrol the matter accordingly.
SIGNED at PRETORIA on this ____________ day of _____________________
__________________________
APPLICANT’S ATTORNEYS
ADDRESS
TO: THE REGISTRAR OF THE HIGH COURT
PRETORIA
AND TO: RESPONDENT’S ATTORNEYS
ADDRESS
EXAMPLE 62
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NR 50/2000
In the matter between
BETTY BUTCHER APPLICANT
and
BILLY BUTCHER RESPONDENT
___________________________________________________________________________
AFFIDAVIT
___________________________________________________________________________
I, the undersigned
BETTY BUTCHER
Hereby make oath and declare as follows:
1.
I am the applicant in this matter, an adult female nurse resident at 30 Lockshoe Street, Wapadrand, Pretoria
2.
The respondent is Billy Butcher, an adult male medical doctor, resident at 20 Watent Crescent, Wapadrand, Pretoria.
3.
The respondent and I are domiciled within the jurisdiction area of this Honourable Court.
4.
The respondent and I were married to each other in community of property in Pretoria on 10 May 1995, which marriage still subsists.
5.
From the above marriage, two minor children were born:
1. Cate, a girl, born on 10 May 1996
2. Duplicate, a boy, born on 10 May 1996
6.
On 5 January 2000 I issued a divorce summons against respondent in the above Honourable Court, under case number 40/2000. Respondent has since given notice of intention to defend and I am currently awaiting his plea. At the hearing of this application the pleadings in the divorce matter will be made available to this Honourable Court.
7.
The deterioration of the marriage relationship between myself and respondent has reached such a degree that there are no prospects of restoration of a normal marriage relationship. The reasons therefore are evident from the particulars of claim to the divorce summons as referred to above. I therefore submit that my marriage relationship with the respondent has broken down irretrievably in terms of section 4(1) of the Divorce Act nr 70 of 1979 and it is my intention to proceed with the divorce action.
8.
The respondent is a man of means and we maintained an above average living standard. In order to enable the court to determine the respondent’s financial position, I refer this Honourable Court to the following:
a) The respondent is a medical doctor who inherited his father, the famous dr Imno Butcher’s Alternative Healing practice in Eridanus Ave, Waterkloof Heights, Pretoria. The said practice has a turnover o f R2 million per year. Respondent draws a salary of R40 000 per month.
(b) The respondent is the owner of a fully paid-up Mercedes Benz E 280 which has a market value of R200 000.
(c) The respondent is the owner of an unbonded property situate at 20 Watent Cresent, Wapadrand, which property is valued at R750 000.
(d) All our domestic expenses, which included frequent dining out and relaxation at luxurious guest houses and spas, were paid for by respondent. The running cost of the aforesaid amounted to approximately R20 000 per month.
9.
a) When I realised that our marriage was unsuccessful I started working again in order to have a source of income in the event of divorce, which seemed to be inevitable. I currently earn a monthly netto salary of R4 500-00.
(b) I left the common house in Watent Crescent, Wapadrand shortly after having issued the divorce summons as aforesaid. I am currently renting a three bedroomed townhouse in Lockshoe Street, Wapadrand which I rent at a monthly rental of R3 000. The townhouse belongs to a friend of mine who is letting it to me at a very reasonable rate due to our friendship relationship. My two children are living with me and are at day care while I work.
(c) I am the owner of a 1997 Toyota Tazz with market value of R40 000.
d) I have a savings account at Absa Bank with a balance of R15 000.
(e) As indicated above my children live with me and I have to make provision for their maintenance and care which include food, clothing and day care.
(f) My monthly expenditure amount to the following:
Rent 3 000
Petrol 500
Day care for children 800
Clothing (myself) 400
Clothing (children) 400
Medical expenses 400
Groceries 3 000
Telephone 400
Insurance 500
Motor and electricity 500
Recreation and sundry expenses 500
10 400
From the aforesaid it is clear that I am not in a financial position to meet the above expenditures.
10.
I have requested the Respondent to make a contribution toward the aforesaid expenses but he indicated to met that I am a leech and that I can wait until the Divorce court determines the amount of maintenance that he should pay for the children. The respondent’s behaviour is very unacceptable but it is my opinion that he is merely angry at the fact that I have decided to proceed with the divorce and move from the common home.
11.
I submit that in view of the aforementioned it is clear that I need the amount of R6 000 as maintenance pendente lite for myself and my two children. I furthermore submit that the respondent is in a financial position to pay the said amount. I also need a contribution to my legal costs in the amount of R10 000.
I therefore humbly request the above Honourable Court to grant an order in the following terms:
(a) That the respondent pay maintenance of R6 000 per month for myself and our children pendente lite beginning on the 1st day of March 2000 and thereafter on or before the 1st day of each consecutive month
b) That the respondent be ordered to pay a contribution of R10 000 towards my legal costs
(c) Further and/or alternative relief
___________________
BETTY BUTCHER
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
EXAMPLE 63
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NR 50/2000
In the matter between
BETTY BUTCHER APPLICANT
and
BILLY BUTCHER RESPONDENT
___________________________________________________________________________
DEFENDANT'S PLEA
___________________________________________________________________________
Kindly take notice that defendant pleads as follows to plaintiff's particulars of claim:
1.
Ad paragraph 1, 2, 3, 4 and 5 thereof
The contents of these paragraphs are admitted
2.
Ad paragraph 6 thereof
Defendant admits the contents of this paragraph.
3.
Ad paragraph 7 thereof
Defendant denies the allegations in this paragraph and that the marriage relationship between the parties broke down irretrievably.
Wherefore defendant prays that plaintiff's claim be dismissed with costs.
Signed at _________________________ on _________________________
__________________________
Defendant's Attorney
ADDRESS
To: THE REGISTRAR OF THE HIGH COURT
And to: PLAINTIFF'S ATTORNEY
ADDRESS
PART III
PROVISIONAL SENTENCE
THEORY: PROVISIONAL SENTENCE : CHEQUE
The following necessary allegations must be made:
1) Plaintiff is the holder of a cheque
2) The cheque was drawn by defendant
3) The cheque was duly presented for payment
4) The cheque was dishonoured by non-payment
5) Notice of dishonour is dispensed with in terms of section 48 (2)(c) of the Bills of Exchange Act 34 of 1964
6) Defendant still fails, despite demand to effect payment
(A copy of the face and reverse sides of the cheque must be attached to the summons)
EXAMPLE 64
|Issued by Case nr. | |
| | |
| | |
|Clerk of the Court Date |R20,00 Revenue Stamp |
|1. No 2A SUMMONS : PROVISIONAL SENTENCE |
|Issued out by: | |
|NAGEL INCORPORATED | |
|431 BOOM STREET | |
|SUNNYSIDE, PRETORIA |(signed) |
|Tel: (012) 586 0000 Docex: 1 |Signature of plaintiff or his attorney |
|Postal address: PO BOX 213 |Ref: File KD 1538 |
|PRETORIA, 0001 | |
IN THE MAGISTRATE`S COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA
In the matter between:
CONCORDIA (PTY) LTD PLAINTIFF
and
MR HORRIBLE HARRY DEFENDANT
To: MR HORRIBLE HARRY, an adult builder t/a Mainman Builders at 11 Block Avenue, Lyttelton, Pretoria, Gauteng, at which address the defendant is also resident
1) You are hereby summoned to immediately after service of this summons pay to the hereinmentioned plaintiff an amount of R50 000 together with interest calculated at 15,5% p.a. from 13 December 2001 and costs.
Plaintiffs claim against defendant for payment of the abovementioned amount is for:
As set out on Annexure attached hereto
2) On default of payment, you are hereby called upon to appear personally or by legal practitioner before Court 32A, Pretoria, on _______________________ at 09h00 (or as soon thereafter as the matter may be heard) in order to admit or deny your liability with regard to the above claim;
3) If you deny liability, you must not later than _____________________ file an affidavit with the clerk of the court of which you must serve a copy on the plaintiff or his attorney at the address as set out in the summons wherein you must mention the grounds of your defence to the claim and you must specifically mention whether you admit or deny that it is your signature or the signature of your agent that appears on the said cheque, and if it is the signature of your agent, whether you admit or deny the agent’s authority.
You are further notified that if you do not immediately pay the aforementioned amount and interest to the plaintiff and if you also fail to file an affidavit as mentioned above and fail to appear before this court in the above specified time, provisional sentence will forthwith be granted against you with costs but that against payment of the said amount, interest and costs, you will be entitled to demand security for the restitution thereof if the said sentence is thereafter reversed.
Costs if the action is undefended will be as follow:
| |Summons |Judgment |
| |R c |R c |
|Attorney’s Charges | | |
|Court fees | | |
|Section 56 letter of demand | | |
|Sheriffs fees | | |
|Sheriffs fees on re-issue | | |
|Totals |R _____________ | |
|Total | |R ____________ |
|VAT is included in fees and disbursements | | |
AND TAKE NOTICE THAT –
a) if you pay the said claim and costs immediately judgment will not be given against you herein and you will save judgment charges;
b) if you admit the claim and wish to consent to judgment, you may file with the clerk of the court an admission of liability signed by yourself and witnessed by your attorney, or otherwise verified by affidavit, and if you wish to undertake to pay the claim in instalments or otherwise, you may approach the plaintiff or his attorney.
NOTICE –
(i) Any person against whom a court has, in a civil case, given any 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 abovementioned 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
ab) 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
ac) 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, authorize 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]
(iii) Any person who -
(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 at 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 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 65A(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 judgment debt. [Section 65D of the Act]
2. Admission of liability
Kindly take notice that the defendant is liable to the plaintiff as claimed in this summons
Dated at ........................ this ....................day of ............................20………..
.................................................
Defendant
(Must be witnessed by defendant’s attorney or otherwise verified by affidavit)
3. Notice of intention to defend*
To: THE CLERK OF THE COURT
Kindly take notice that the defendant denies liability and that his affidavit setting forth the grounds upon which he disputes liability is attached hereto.
Dated at ........................... this.......................day of.............................. 20…………….
.................................................
Defendant/Defendant’s attorney
…………………………………………………….
(Address where service of process
and documents shall be accepted)
……………………………………………………..
(Postal address)
_______________________________________
*The original notice and affidavit must be filed with the clerk of the court and a copy thereof served on the plaintiff or his attorney.
[Form 2A inserted by GN R498 of 1994, as corrected by GN R710 of 1994, and
amended by GN R910 of 1998.]
PARTICULARS OF CLAIMS
1
The Plaintiff is Concordia Concrete (Pty) Ltd, a private company with limited liability duly incorporated in terms of the Companies Act 76 of 1973 of the Republic of South Africa with registered office and main place of business at 5 ANDRIES STREET, PRETORIA, GAUTENG.
2
The Defendant is Horrible Harry an adult male builder t/a Mainman Builders at 11 BLOCK AVENUE, LYTTELTON, PRETORIA, GAUTENG.
3
The Plaintiff is the holder for value of a cheque in the amount of R50 000 dated 1 DECEMBER 2000 drawn by Defendant in favour of Plaintiff on the Cantonment Road Branch of Absa Bank and delivered by Defendant to Plaintiff.
4
The Plaintiff duly presented the cheque for payment at the said branch but the cheque was not paid out by the bank and was dishonoured due to insufficient funds in Defendant's account.
5
In terms of the Provisions of Section 48 of the Negotiable Instruments Act nr 34 of 1964 the Plaintiff is exempted from any obligation to give notice of refusal as the bank was not obliged to pay out the said cheque due to insufficient funds.
6
The cause of action wholly arose within the jurisdiction area of the above honourable court.
WHEREFORE the Plaintiff claims for judgment against Defendant in the following terms:
a Payment of the sum of R50 000.00.
b Interest on the above amount calculated at 15.5% per annum from 3 December 2001 being the date on which Plaintiff presented the cheque for payment.
c Costs of suit.
(sgnd) J DE SWART
_____________________________
PLAINTIFF'S ATTORNEYS
NAGEL INCORPORATED
431 BOOM STREET
SUNNYSIDE
PRETORIA
Tel: (012) 586-0000 Docex: 1
Ref: J DE SWART
File No: KD1523
PART IV
AGENT'S COMMISSION
a) Theory: Agent's Commission
Cause of Action
The material allegations that have to be made are the following:
1. Compliance with the provisions of the Estate Agent's Act, 112 of 1976
In terms hereof a person may only act as an estate agent and is only entitled to collect commission if he:
a) is in receipt of a valid Fidelity Fund certificate;
and
b) is in possession of Fidelity Insurance.
2. A mandate to find a buyer or seller
The general rule is that the seller is liable for payment if commission even if the mandate is silent about same.
3. Specific performance of the mandate
This entails the following:
a) Material compliance with the provisions of the mandate;
b) Introduction of a willing and able buyer;
c) Conclusion of a binding contract;
d) The introduction by the agent of the buyer to the seller must be the effective cause of the conclusion of the contract.
4. That agent's commission is payable
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:
o Notice of surrender;
o Notice to creditors;
o Notice to employees; trade unions (if applicable);
o Notice to SARS
o 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 into[3] 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);
iii) payment of damages to be determined by the court;[7]
iv) 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
[pic]
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
VAN HEERDEN’S INCORPORATED
per:
W VAN HEERDEN
Example 73 : Particulars of claim
_______________________________________________________
PARTICULARS OF CLAIM
___________________________________________________________________
1.
1.1 The Plaintiff is NEDBANK LIMITED, a duly registered commercial bank with limited liability duly incorporated in terms of the Laws of the Republic of South-Africa with its principal place of business situated at 33 HOOFDT STREET, FORUM 1, LEVEL 4, BRAAMPARK, JOHANNESBURG, GAUTENG.
1.2 The plaintiff is a registered credit provider in accordance with Section 40 of the National Credit Act, Act 34 of 2005.
2.
The defendant is D SONGO, an adult male with full legal capacity whose full and further particulars are unknown to the Plaintiff currently residing at 6 SMIT STREET, MENLOPARK, PRETORIA, GAUTENG also being the Defendant’s chosen domicilium citandi et executandi.
3.
On/or about 20 JULY 2005 and at PRETORIA, the plaintiff therein represented by a duly authorized employee and defendant who acted in person, entered into a written Instalment Sale Agreement (hereinafter referred to as “the agreement”), which agreement is attached hereto as ANNEXURE “A” and the terms of which are requested to be read together herewith as if specifically incorporated herein.
4.
In terms of the aforementioned agreement the plaintiff sold to defendant the following goods, namely:
1 X USED OPEL ASTRA 1.6 CDE A/C P/S, 2002 - MODEL, ENGINE NUMBER C16SPA7997 AND CHASSIS NUMBER ADMRT69BA2B
(hereinafter referred to as “the goods”)
5.
The total purchase price at which defendant bought the goods from plaintiff is calculated as set out in the agreement attached hereto as ANNEXURE “A” as follows:
Total cash price R 98 942-95
Vat at 14 % R 13 852-01
Revenue stamps R 0-00
Sub Total R112 794-96
Less initial payment R 12 000-00
Principal debt R100 794-96
Plus finance charges at 9.650 % per annum R 23 994-18
Balance of purchase price R124 789-14
6.
The balance of the purchase price was payable in 54 monthly instalments of R2 310-91 each, the first payment to be made on 26 AUGUST 2005 and thereafter on the 26th day of each consecutive month with the final instalment payable on 26 OCTOBER 2010.
7.
7.1 The said goods were delivered to the defendant and defendant is still in possession thereof.
7.2 The defendant has paid the initial payment and has paid certain further instalments.
8.
It was an express term of the agreement that:
8.1 Plaintiff will at all material times during the subsistence of the agreement remain the owner of the goods and neither the defendant, nor anybody on her behalf, will during the agreed period be entitled to obtain ownership of the goods or to retain possession, use or enjoyment thereof other than as provided for in the agreement.
8.2 Should defendant breach any of the terms or conditions of the agreement, or fail to pay any amount in terms of the agreement when it is due, plaintiff will be entitled, as he deems fit and without prejudice to any of his other rights, to immediately request payment of all amounts that are payable in terms of the agreement, regardless of whether such amounts are due at the stage or not, alternatively, to cancel the agreement, to repossess the goods, to retain all payments that have already been made by defendant and to claim as damages the difference between the outstanding balance and the resale value of the vehicle.
8.3 In the event of cancellation of the agreement defendant is obliged to return the goods to plaintiff.
8.4 Plaintiff is entitled, on request, to recover all costs and disbursements (including costs between attorney and client from defendant) that plaintiff incurred directly or indirectly in order to enforce any rights in terms of the said agreement.
8.5 Any amount due in terms of the agreement, not paid on the due date, would bear additional finance charges, at the rate specified in the agreement.
8.6 If the word “fixed” does not appear next to the finance charges on the face of the agreement, the following conditions shall apply:
8.6.1 Should the prime lending rate publicly quoted by the plaintiff from time to time (evidenced by means of a certificate under the hand of any manager of the applicant, whose status need not be proved) be increased or decreased, the finance charges yet to accrue on the unpaid instalments payable in terms of the agreement, will be increased or decreased commensurately with the change in the prime lending rage. The period over which the instalments are payable, shall remain unchanged;
8.6.2 In the event of the agreement being subject to the provisions of the Usuary Act, No. 73 of 1968, as amended, the finance charge rate arising from the paragraph above, shall not exceed the maximum permissible rate in terms of the said Act;
8.7 The defendant, in writing and in terms of Section 45 of Magistrate's Court Act Nr 32 of 1944, consented to the jurisdiction of any Magistrate's Court having jurisdiction over the defendant, notwithstanding the fact that the amount of the claim or the value in dispute might exceed such jurisdiction.
8.8 A certificate by a manager of the plaintiff (whose authority need not be proved) shall for all purposes be prima facie evidence of the matters / sums therein stated.
9.
Defendant failed to make payments as agreed in the agreement and was in arrears in the amount of R5 005-13 on 05 SEPTEMBER 2007.
10.
10.1 The foresaid agreement is a pre-existing credit agreement as defined in the National Credit Act 24 of 2005. (Hereinafter called “The Act”).
10.2 The plaintiff duly delivered a notice in accordance with S129(1)(a) of The Act to the defendant on 10 SEPTEMBER 2007. A copy thereof is attached hereto as ANNEXURE “B”.
10.3 The defendant has failed to respond to the aforesaid notice in terms of S129(1)(a) of The Act within 10 (ten) business days after delivery thereof.
10.4 The defendant is in default with his obligations in terms of the credit agreement for a period of 20 (twenty) business days.
10.5 The defendant has not surrendered the goods to the plaintiff as contemplated in S127 of The Act.
10.6 The Honourable Court has not been approached while there is any matter arising from the contract pending before the Tribunal.
10.7 The Honourable Court has not been approached in the circumstances envisaged in S130(3)(c) of The Act, namely, despite the defendant having:
10.7.1 surrendered the asset to the bank in terms of S127 of the Act and before the asset has been sold;
10.7.2 agreed to a proposal made in terms of the S129 notice and acted in good faith in fulfilment of the agreement;
10.7.3 complied with an agreed plan as contemplated in S129(1)(a); or
10.7.4 brought the payments under the agreement up to date as contemplated in S129(1)(a) of the Act.
10.8 A duly signed certificate as proof of compliance with the previsions of the NCA is attached hereto as ANNEXURE “C”.
11.
11.1 In the aforesaid premises plaintiff is entitled to demand full payment of all arrear amounts and any other amount due and payable in terms of the agreement, alternatively to cancel the agreement, to repossess the goods, to retain all payments already made by defendant in terms of the agreement and to claim payment of all due amounts that remain unpaid on date of cancellation.
11.2 Plaintiff elected to cancel the agreement, as plaintiff did in writing on 10 JANUARY 2008 and as is evident from ANNEXURE “D” attached hereto, alternatively plaintiff cancels the agreement herewith.
11.3 The defendant is therefore in unlawful possession of the goods.
12.
In the premises:
12.1 The plaintiff is entitled to repossess the goods;
12.2 The plaintiff is further entitled to an order declaring the amounts paid by the defendant to be forfeited in favour to the plaintiff;
12.3 The plaintiff is entitled to recover from the defendant an amount calculated by deducting from the balance of the purchase price, the deposit and instalments paid, such value as the goods may have upon their return to the plaintiff and such reduction of finance charges to which the defendant may be entitled.
13.
The plaintiff will be unable, until the return of the goods to it and the subsequent determination of the value thereof, to determine the amount due to it in terms of paragraph 12.3 supra.
14.
Notwithstanding due demand, the plaintiff fails and refuses to return the goods to the plaintiff and/or to pay the claimed amounts and/or any portion thereof.
15.
The above court has jurisdiction, as the defendant is resident within the jurisdiction area of the court.
WHEREFORE PLAINTIFF PRAYS FOR JUDGMENT AGAINST THE DEFENDANT IN THE FOLLOWING TERMS:
1. The Defendant is ordered to forthwith return -
One Used: OPEL ASTRA 1.6 CDE A/C P/S
Model: 2002
Engine Nr.: C16SPA7997
Chassis Nr.: ADMRT69BA2B
To the Plaintiff;
2. The Sheriff of the High Court is authorized and request to attach, cease and hand over the to the Plaintiff, wherever it may be found -
One Used: OPEL ASTRA 1.6 CDE A/C P/S
Model: 2002
Engine Nr.: C16SPA7997
Chassis Nr.: ADMRT69BA2B
3. Forfeiture of all moneys paid by the Defendant to the Plaintiff in terms of the agreement annexed to Plaintiff's summons as ANNEXURE "A".
4. Leave is granted to the Plaintiff to apply for -
4.1 Damages, if any, in an amount to be calculated by subtracting the current market value of the aforesaid goods (as well as a rebate on unearned financial charges from the balance outstanding, if applicable);
4.2 Interest on the said damages at the rate of 9.650 % per annum.
5. Cost of suit on the scale as between attorney and client;
6. Further and/or alternative relief.
SIGNED AT PRETORIA ON THIS THE ___________ DAY OF JANUARY 2008
_____________________________ _____________________________
W H VAN HEERDEN VAN HEERDEN’S INCORPORATED
Admitted in terms of Section 4(2) ATTORNEY FOR PLAINTIFF
of Act 62 of 1995 419 KIRKNESS STREET
CLYDESDALE
PRETORIA
REF.: W VAN HEERDEN/KN2880
ANNEXURE/ AANHANGSEL “A”
All pleadings, applications and documents dealing with High Court litigation must in terms of the High Court Act 30 of 2008 read in conjunction with GG nr 31948 dated 2 February 2009 as from 1 March 2009 refer to the new names of the various divisions of the High Courts.
RENAMING OF HIGH COURTS ACT 30 OF 2008
The High Courts seated in the places mentioned in the first column of the table hereunder, shall be known by the names set out in the second column of the said table:
TABLE
|SEAT OF HIGH COURT | NAME OF HIGH COURT |ABBREVIATION |
|Bhisho |Eastern Cape High Court, Bhisho |ECB (Ck) |
|Bloemfontein |Free State High Court, Bloemfontein |FB (O) |
|Cape Town |Western Cape High Court, Cape Town |WCC (C) |
|Durban |KwaZulu-Natal High Court, Durban |KZD (D) |
|Grahamstown |Eastern Cape High Court, Grahamstown |ECG (E) |
|Johannesburg |South Gauteng High Court, Johannesburg |GSJ (W) |
|Kimberley |Northern Cape High Court, Kimberley |NCK (NC) |
|Mafikeng |North West High Court, Mafikeng |NWM (B) |
|Mthatha |Eastern Cape High Court, Mthatha |ECM (Tk) |
|Pietermaritzburg |KwaZulu-Natal High Court, Pietermaritzburg |KZP (N) |
|Port Elizabeth |Eastern Cape High Court, Port Elizabeth |ECP (SE) |
|Pretoria |North Gauteng High Court, Pretoria |GNP (T) |
|Thohoyandou |Limpopo High Court, Thohoyandou |LT (V) |
WET OP DIE HERBENAMING VAN DIE HOË HOWE 30 VAN 2008
Die Hoë Howe, gesetel op die plekke in die eerste kolom van die tabel hieronder vermeld, bekend onder die name in die tweede kolom van vermelde tabel uiteengesit:
TABEL
|SETEL VAN HOF | HOFNAAM VAN HOË HOF |AFKORTING |
|Bhisho | Oos-Kaap Hoë Hof, Bhisho |OKB (Ck) |
|Bloemfontein | Vrystaat Hoë Hof, Bloemfontein |VB (O) |
|Kaapstad | Wes-Kaap Hoë Hof, Kaapstad |WKK (K) |
|Durban | KwaZulu-Natal Hoë Hof, Durban |KZD (D) |
|Grahamstad | Oos-Kaap Hoë Hof, Grahamstad |OKG (OK) |
|Johannesburg | Suid Gauteng Hoë Hof, Johannesburg |GSJ (W) |
|Kimberley | Noord-Kaap Hoë Hof, Kimberley |NKK (NK) |
|Mafikeng | Noordwes Hoë Hof, Mafikeng |NWB (B) |
|Mthatha | Oos-Kaap Hoë Hof, Mthatha |OKM (Tk) |
|Pietermaritzburg | KwaZulu-Natal Hoë Hof, Pietermaritzburg |KZP (N) |
|Port Elizabeth | Oos-Kaap Hoë Hof, Port Elizabeth |OKP (SOK) |
|Pretoria | Noord Gauteng Hoë Hof, Pretoria |GNP (T) |
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ANNEXURE/ AANHANGSEL “B”
[THE MOTIONS IN THE MAGISTRATES’ COURT DVD (DVD NO 1) MAY BE ORDERED VIA THE LECTURER AT A COST OF R18-00. ]
Extract from Magistrates’ Court Bench Book
APPLICATIONS IN THE MAGISTRATES’ COURT
Part 7 Applications
7.1 General
7.1.1 Introduction
Application procedure provides a mechanism, other than trial action, by means of which relief may be obtained from a court of law. Trial actions are commenced by way of summons, while applications are initiated by way of a notice of application (also referred to as a notice of motion) which is usually supported by an affidavit, or affidavits, that set out the facts upon which the applicant relies for relief. An affidavit is a document containing a statement of facts which is signed and sworn to by the witnesses in front of a commissioner of oaths. In an application, the party initiating proceedings is referred to as the applicant. The party called upon to answer the application is known as the respondent.
A significant distinction exists between application procedure in the Magistrates’ Courts and motion proceedings in the High Courts in that application procedure is widely used for claiming substantive relief in the High Court in matters not involving a material dispute of fact. The increased utilization of application procedure was a development which was able to take place in the High Courts because they have inherent jurisdiction to regulate their own procedure, but the Magistrates’ Courts do not have such inherent jurisdiction and are, therefore, limited to the use of application proceedings only where provided for, either expressly or by necessary implication, in the MCA or the Magistrate’s Court rules.
Even in the High Courts, where a much wider range of relief may be sought through application, it is accepted that such procedure is not without its limitations and that it not appropriate for deciding real and substantial disputes of fact. The reason for this is that in trial actions witnesses must appear in person and may be subjected to cross-examination so that their credibility may be tested. Seeing and hearing the witnesses give evidence enables the court to decide which witness is more credible or reliable.
When a court has only affidavits before it, and where the affidavits set out conflicting facts, it may be very difficult for the court to decide which deponent is more credible or reliable.
Applications may be used for two purposes:
• to claim substantive relief;
• to claim procedural relief.
In the Magistrates’ Courts there is very little scope for claiming substantive relief by way of application. Almost all the provisions of the Act and rules which provide for the application procedure deal with applications which are of a procedural nature and which enable parties to claim relief in connection with litigation already instituted by way of trial action. These are generally known as interlocutory applications because they take place during the course of the trial action, but there are some which are preliminary in nature and some which would be brought after judgment has been given, such as applications relating to execution of judgments. Rule 55(9) provides that all interlocutory matters may be dealt with upon application.
7.1.2 Ex parte applications
As a general rule, applications must be brought on notice to the party against whom relief is claimed. This general rule is expressed in rule 55(1), which provides that, except where otherwise provided, an application to the court for an order affecting any other person shall be on notice. In certain circumstances, a party may bring an application to court without first notifying the party against whom relief is claimed. Such an application is called an ‘ex parte application’.
7.1.2
In the High Courts the only circumstance in which an applicant may proceed ex parte, where relief is claimed against another party, is where the purpose of the application would be defeated if notice were to be given to the party against whom relief is claimed. For instance, where the party who wants to claim relief believes that the other party will hide or destroy evidence if he becomes aware of an impending action, then giving notice to that party of an application to attach the evidence would probably have the result that the evidence would be hidden or destroyed before the attachment order can be granted and served. In the High Courts urgency alone is not accepted as a ground for proceeding ex parte, unless the urgency is so great that there is not enough time to serve notice before bringing the application.
In the Magistrates’ Courts these same principles should apply, but, unfortunately they have been distorted because
• rules 56 and 57 provide for certain types of application to be brought ex parte without adding the requirement that they should be brought ex parte only if the giving of notice would defeat the purpose of the application; and
• there is no provision for urgent applications in the MCA or rules, and therefore the only way a party can obtain an order quickly without having to go through the usual process of serving notice and enrolling the matter for hearing is to proceed ex parte (although rule 9(14) does allow the court to reduce the notice period for an application on good cause shown – see J & B Rule 9--4 to 9--15).
As a result of these distortions, a general opinion prevailed before 1997 that the types of application governed by rules 56(1) and 57(1) could always be brought ex parte, despite the fact that rule 55(8) provides that in every application the person substantially interested shall be made respondent. Rule 55(9), which provides that any application which may be brought ex parte may also be brought on notice, may have been partly responsible for this opinion, because its wording creates the impression that proceeding ex parte, where this is authorized, is the rule rather than the exception.
The belief that parties had the right to proceed ex parte in applications governed by rules 56 and 57 was dispelled in Office Automation Specialists CC and Another v Lotter 1997 (3) SA 443 (E), a case in which it was held that parties should be allowed to proceed ex parte only where there is good reason to dispense with the giving of notice to the party against whom relief is claimed. At 447A--C, the court quoted the following passage from the 8th edition of Jones and Buckle:
‘Though Rule 56 empowers magistrates' courts to grant ex parte orders affecting other parties' interests, the Rule does not do away with the common-law principle that the courts are extremely loath to grant any such orders upon ex parte application. Rule 56 is quite consistent with the common-law principle; it is an empowering provision, not an abolishing one, and it is still true to say that applications should be made ex parte only when there is some good reason for that procedure … – reasons such as urgency, or that the giving of notice would defeat the very object for which the order is sought.’
At 448A-C the court concluded: ‘I accordingly conclude that, while applications of the type referred to in Rule 56(1) can be brought ex parte, an applicant bringing such an application does so at his peril if he does not make out a good and proper case as to why an order should be granted without notice to the other party.’
It is important to note that a court will never grant final relief on an ex parte basis. If notice is not given to the respondent, then once the order is granted, the order must be served on the respondent together with a copy of the application. Such an order is called a rule nisi. It informs the respondent that on a certain date, which is called ‘the return day’ the respondent may appear before the court to show cause why the order granted ex parte should not be confirmed. The audi alteram partem principle thus prevails in that, on the return day, the respondent is afforded the opportunity to oppose the application and to request the court to set the order aside. Rule 55(7) provides that any person affected by an order made ex parte may apply to discharge it on not less than 12 hours’ notice. In other words, the party against whom the ex parte order was granted may anticipate the return day by giving the applicant not less than 12 hours’ notice that the matter has been set down for hearing. The purpose of this subrule is to enable a party who is prejudiced by an ex parte order to get the matter before court quickly.
Another principle which has been applied very strictly by courts in respect of ex parte applications is the principle that the applicant has the duty of utmost good faith to disclose to the court all facts which are relevant, including facts which tend to detract from the applicant’s case and favour the party against whom relief is being sought. If an order has been made on an ex parte application and it later appears that material facts that might have influenced the decision of the court to grant the order were not disclosed, the court has a discretion to set aside the order on the ground of nondisclosure and make a punitive order. It is irrelevant whether the omission of facts was made wilfully or negligently. The reason for this requirement is that hearing a matter in the presence of only one party negates the audi alteram partem principle, one of the most important principles underlying the rules of civil procedure.
There are numerous cases in which this principle has been applied: In Cometal-Mometal SARL v Corlana Enterprises (Pty) Ltd 1981 (2) SA 412 (W) at 414 it was held that failure to set out all the facts which might influence the court (whether these facts are favourable to the applicant or otherwise) will justify the court setting aside a rule nisi on the return date.
See also Gainsford and others NNO v HIAB AB 2000 (3) SA 635 (W); MV Rizcun Trader (4) v Manley Appledore Shipping Ltd 2000 (3) SA 776 (C). • In Ex parte Madikiza et uxor 1995 (4) SA 433 (Tk5) at 437A--B it was held that the absence of acceptable reasons for failure to disclose a material fact is one of the reasons the court will take into consideration in exercising its discretion whether to grant or deny the relief sought.
• In J W Jagger & Co (Rhodesia) (Wholesaling) (Pvt) Ltd v Mubika 1972 (4) SA 100 (R) it was held that, even though he may be partially successful in an application, an applicant may be ordered to pay the costs of the application if he has negligently failed to disclose any material facts.
• In Schlesinger v Schlesinger 1979 (4) SA 342 (W) an order obtained ex parte was set aside with costs, on the scale as between attorney and client, because the applicant was found to have displayed a reckless disregard of a litigant’s duty to a court to make a full and frank disclosure of all known facts that might influence the conclusion the court reaches.
Recent case law has made it clear that the requirement of utmost good faith to disclose all material facts applies whenever only one party is before the court at the time when the application is made. Thus, in a default-judgment application the applicant has a duty to disclose all relevant facts to the court because, even though the summons was served on the defendant, at the time when the default-judgment application is made it is only the applicant who is before the court. See Bankorp Ltd v Ridl and Another 1993 (4) SA 276 (D).
It has also been held that the normal duty which counsel and attorneys have to direct the court’s attention to relevant authority should be taken particularly seriously in ex parte applications – Ex Parte Hay Management Consultants (Pty) Ltd 2000 (3) SA 501 (W).
One kind of application which must of necessity be brought ex parte is an application for substituted service because, if documents cannot be served on the defendant/respondent in any of the usual ways prescribed by rule 9, then it stands to reason that notice of the application for directions as to how service should be effected cannot itself be served.
In terms of rules 55(5) and (6), except where otherwise provided, ex parte applications must be made in writing, stating shortly the terms of the order applied for and the grounds on which the application is made, and need not be supported by an affidavit or other evidence. Examples of rules which ‘provide otherwise’ are rules 56 and 57, both of which require the applications which they regulate to be supported by an affidavit and prescribe what must be contained in the affidavit.
7.1.3 Types of application
A list of all the different types of application which may be brought in the Magistrates’ Courts is set out in Jones and Buckle Rule 55--2 to 3. The general rule which governs the application procedure is rule 55, but some kinds of application have special rules which prescribe how they should be brought and opposed.
Section 30 of the MCA provides that subject to the jurisdiction prescribed by the Act, the court may grant against persons and things orders for arrest tanquam suspectus de mandamenten fuga, attachments, interdicts and mandamenten van spolie. Rule 56 prescribes the procedure to be followed in these applications. Section 30bis empowers the court to grant applications for attachment to found or confirm jurisdiction and to give directions as to service of documents. This type of application is governed by rule 57.
Both rule 56 and rule 57 state that these applications may be made ex parte. The discussion under the heading ‘ex parte applications’ above is therefore applicable.
Section 32 enables a lessor to attach property on leased premises to perfect the common-law landlord’s hypothec. Section 36 empowers the court to grant applications for rescission of judgment and the procedure is prescribed by rule 49.
This part of the Bench Book deals with the general rules relating to application procedure, such as rule 55, while parts 7.2 to 7.11 deal with specific types of application.
7.1.4 General rules regulating application procedure
Rule 55(1) requires the notice of application to state the terms of the order applied for and the time when the application will be made to court. The notice should be in accordance with Form 1 of Annexure 1 the rules. It is usual practice to mention the rule or section of the Act in terms of which the application is brought in the heading to the notice, or in the body of the notice, although the rules do not prescribe this. The notice must be delivered to the respondent not less than 10 days before the hearing and not less than 20 days before the hearing where the State is the respondent – rule 9(14).
Rule 55(2) states that, except where otherwise provided, an application need not be supported by an affidavit, but in the event of any dispute arising as to the facts, the court may –
(a) receive evidence either viva voce or by affidavit and try the issues in dispute in a summary manner; or
(b) order that the issue shall be tried by way of action. The court may then order that the applicant shall be the plaintiff and the respondent be the defendant, and that the notice of application shall stand as a summons, or that the applicant shall deliver such particulars of his claim as are prescribed in rule 6.
This subrule is anomalous, first because it is difficult to see how a dispute of fact would arise if there are no affidavits filed in support of the application and, presumably, no affidavits filed by the respondent. Secondly, it is not appropriate that procedural applications should be converted into trial actions and, as previously indicated, there is very little scope for claiming substantive relief by way of application in the Magistrates’ Courts.
7.1.5 Affidavits
High Court rule 6(1) provides that every application must be supported by an affidavit, but it has been held that affidavits are not always necessary for interlocutory applications. The function of affidavits is to place facts before the court, but in procedural interlocutory applications, such as an application to compel the furnishing of further particulars for the purpose of pleading, whatever facts the court needs to know are apparent from the court file and there is no need to place further facts before the court. Thus, the test which should be applied in deciding whether an application should be supported by an affidavit is to ask whether it is necessary to place before the court facts in support of the relief sought. Unfortunately, the rules of the Magistrates’ Courts differ from the general rule which should be applied in stating that supporting affidavits are not necessary ‘[e]xcept where otherwise provided’. Harms, in section 6.7, lists the instances in which affidavits are required. The law relating to attestation of affidavits is set out by Harms in section 6.16.
The Magistrate’s Court rules are also anomalous in that they make no provision for the filing of an answering affidavit by the respondent and a replying affidavit by the applicant. There is no doubt, however, that the audi alteram partem rule requires that a party who needs to respond to facts stated in an affidavit filed by the other party should be given the opportunity to do so. Thus, if the respondent wishes to oppose a matter and needs to place facts before the court, an answering affidavit may be filed. The applicant may then file a replying affidavit, responding to the facts in the answering affidavit, except in summary-judgment proceedings (see below).
7.1.6 Contents of affidavits
When affidavits are filed, they must contain all the facts which are relevant to establish the case of the party filing them. Both the material facts and the facts relevant to prove the material facts (facta probanda and facta probantia) must be stated. In this respect affidavits which support a claim or respond to it are very different from pleadings.
Pleadings should contain only facta probanda, because the facta probantia will be placed before the court by way of oral evidence at the trial. At the hearing of an application, no oral evidence is heard, unless the court invokes the provisions of rule 55(2)(a).
Every affidavit should begin with a statement by the deponent (the person who made the affidavit) that the facts contained in the affidavit are within his personal knowledge, because the hearsay rule applies to affidavits in the same way that it does to oral evidence. This is particularly necessary where the deponent is making the affidavit on behalf of a juristic person. Such a deponent should also state that he has been authorized to make the affidavit on behalf of the juristic person. Sometimes it is convenient for a party to file a main affidavit which ‘tells the whole story’ and then, in so far as the main affidavit contains hearsay evidence, annex verifying affidavits (also known as confirmatory affidavits) made by the people who do have personal knowledge of the facts. The deponent to the main affidavit would normally state: ‘The facts are within my personal knowledge save where otherwise indicated and are, to the best of my knowledge and belief, true and correct.’ It should be kept in mind that section 3 of the Law of Evidence Amendment Act 45 of 1988 gives the court some discretion whether or not to admit hearsay evidence.
Documents which support the case of a party should be annexed to the affidavit of a witness who has first-hand knowledge of that document, and the deponent should ‘prove’ the document by describing it in the affidavit and referring to the annexure.
Where substantive relief is claimed, the founding affidavit (the affidavit which supports the notice of application) must contain:
• facts which indicate that the court has jurisdiction;
• facts which show that the applicant has locus standi;
• the material facts relevant to the cause of action on which the applicant relies, for if an affidavit does not disclose a cause of action, the respondent can apply for the dismissal of the application;
• facts relevant to prove the material facts (facta probantia);
• a conclusion of law;
• a prayer for relief.
It is important not to confuse a conclusion of law with an argument as to the law. A conclusion of law simply states what the party submits it is entitled to on the basis of the facts set out, but it does not argue why it is so submitted. Neither pleadings nor affidavits should ever contain argument, either as to the facts or as to the law.
The requirements of the respondent’s answering affidavit, which deals with the allegations contained in the applicant’s founding affidavit are the same as those of the applicant.
7.1.7 Delivery of applications – rules 2(1)(b) and 9(11)
There is no requirement that applications need be served by the sheriff. The definition of ‘deliver’ is set out in rule 2(1)(b) read with rule 9, indicates that it is only a summons or other process of the court which needs to be served by the sheriff. Again, this is probably an anomaly, or an indication that the drafters of the rules considered all applications to be of an interlocutory or ancillary nature. In the High Court any document which initiates proceedings must be served by the sheriff, whereas applications of an interlocutory or ancillary nature are delivered inter partes by the parties or their attorneys. Thus, a notice of motion which initiates proceedings and claims substantive relief should served by the sheriff.
Delivery, according to rule 2(1)(b) includes both service on the defendant and filing with the Clerk of the Court. The first day of the appearance to defend will be excluded, and so will Saturdays, Sundays and public holidays.
7.1.8 Extension of time limits
Sometimes a specific time period within which a particular application must be brought is prescribed by the Act or rules. When an application is brought outside this prescribed period, the applicant will generally be able to apply to the court for condonation of the late filing of the main application, either before or simultaneously with the bringing of the main application.
Rule 60(5) provides that any time limit prescribed by the rules may at any time, whether before or after expiry of the period limited, be extended by:
• the written consent of the opposite party; and
• if such consent is refused, then by the court on application and on such terms as to costs and otherwise as may be just.
A defaulting party must, therefore, first approach the other party for written consent to file the application late. Only if such consent is refused may the applicant then approach the court for permission to file an application outside the prescribed time limit.
The words ‘at any time’ does not mean that a person may bring a second application for condonation after one application has already been refused on the same facts for the same relief.
The court has a discretion whether to grant condonation or not. The applicant will have to show sufficient cause why the courts should grant an extension of time – see J & B Rule 60--4.
7.1.9 Condonation of short service
Rule 60(6) provides that where there has been no notice or where there has been short service of any application, the court may, instead of dismissing the application, adjourn the proceedings for a period equivalent at least to the period of proper notice upon such terms as to costs as may be just. This does not apply if the court has consented to short service in terms of rule 9(14), or where the parties have agreed to treat such notice as valid. In that instance the court will then proceed as if the notice was valid.
If the proceedings are postponed in the absence of the party who received short service, due notice of the adjournment must be given to that party by the party responsible for the short service.
ANNEXURE/ AANHANGSEL “C”
HIGH COURT MOTION: INTERDICT BY MEANS OF ( A DEFECTIVE) APPLICATION
INSTRUCTIONS TO STUDENTS:
• FIRST STUDY THE SET OF FACTS AND ANALYSE THE PROPOSED APPLICATION AND RESPONSE THERETO.
• THEN WATCH THE DVD AND TRY TO IDENTIFY PRINCIPLES OF PROCEDURE, EVIDENCE AND SUBSTANTIVE LAW. (THE HIGH COURT APPLICATION DVD (DVD NO 2) MAY BE ORDERED VIA THE LECTURER AT A COST OF R18-00. )
• ALSO READ THE HEADS OF ARGUMENT ON BEHALF OF THE APPLICANT AND RESPONDENT RESPECTIVELY.
• ALSO SEE IN PARTICULAR HOW THE ADVOCATE FOR THE APPLICANT ARGUES THAT THE APPLICATION IN ITS CURRENT FORMAT SHOULD BE ACCEPTED BY THE COURT.
• WRITE YOUR OWN JUDGMENT SINCE THE COURT DECIDED TO RESERVE JUDGMENT IN THE MATTER.
• ACCEPT THE ATTACHED APPLICATION EXAMPLE IS NOT THE BEST PRACTICE IN THIS CASE AND INDICATE HOW YOU WOULD APPROACH THE MATTER. (IN OTHER WORDS, HOW WOULD YOU DEAL WITH THE RELIEF SOUGHT AND HOW WOULD YOU PREPARE THE ARGUMENT FOR THE HEARING IN COURT?)
• ALSO CONSIDER THE RESPONSE BY THE RESPONDENT.
• COULD THE COURT CONSIDER THE GRANTING OF A TEMPORARY INTERDICT BASED ON THE SAME APPLICATION?
• HOW COULD THE COURT DEAL WITH THE FACTUAL DISPUTES IN THE MATTER?
Facts:
John East’s next door neighbour, Stanley West, starts with extensive renovations and alteration work on his house. This work entails rather elaborate excavations of foundations that go right up to their communal border. Meanwhile John notices a crack appearing in the outer wall of his house and his friend, Pete Smith, who is a builder, opines that the crack is caused by the excavations next door. (John lives in 123 Smith Street, Queenswood, Pretoria and Stanley in 124 Smith Street in the same suburb.)
John phones Stanley and asks him to either stop the excavations or to obtain the services of a civil engineer in order to ensure that no further damages are caused to his (John’s) house.
Stanley however responds that he is building in accordance with approved building plans, the foundations are in accordance with the National Building Regulations and that his building operation cannot cause any damages to John’s house. He does not deem the further expenses to appoint a civil engineer necessary and thus flatly refuses to co-operate. John informs Stanley that he has no choice but to obtain legal advice to which Stanley responds that he will oppose any legal action that comes his way.
John’s attorney applies for a final interdict and instructs an advocate to argue the matter on behalf of the applicant on this basis.
(Indicate how you would act on behalf of the applicant and the respondent respectively, by explaining the steps to be taken and by drafting the relevant documentation.)
ANNEXURE “AA”
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NUMBER: 1 OF 2008
In the matter between:
John East…………………………………………………………………Applicant
and
Stanley West……………………………………………………………Respondent
|NOTICE OF MOTION |
TAKE NOTICE THAT John East (hereinafter called the applicant) intends to make application to this Court for an order that:
1 The Respondent be prohibited from continuing with excavations on Erf 207, Queenswood, situated in 124 Smith Street, Queenswood.
2 The costs of this application.
3 Such alternative relief as the Honourable Court deems fit.
TAKE NOTICE FURTHER THAT the Applicant has appointed T. Mabula Inc of 24 Church Street Pretoria 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 16 th April 2008 and (b) 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 18 April 2008 at 14:30 p.m.
Dated at Pretoria this 14 th day of April 2008.
………………………………
APPLICANT’S ATTORNEY
TO: THE REGISTRAR OF THE HIGH COURT
AND TO: THE RESPONDENT
(PER SHERIF)
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINICAL DIVISION)
CASE NUMBER: 1 OF 2008
In the matter between:
John East…………………………………………………………………Applicant
and
Stanley West……………………………………………………………Respondent
|FOUNDING AFFIDAVIT |
I, the undersigned,
John East,
Hereby make oath and declare as follows:
1.
I am the Applicant in this matter, an adult teacher resident at 123 Smith Street, Queenswood, Pretoria.
2.
The Respondent is Stanley West an adult businessman resident at 124 Smith Street, Queenswood, Pretoria.
3.
The property of the Respondent, being Erf 207, Queenswood, situated at 124 Smith Street, Queenswood is adjacent to my property, being Erf 208, Queenswood, situated at 123 Smith Street, Queenswood, Pretoria.
4.
The Respondent has embarked on building operations on his property that entail elaborate excavations close to our communal border.
5.
Subsequently to his building operations and excavations a crack appeared in the outer wall of my house which wall is 3 meters from the excavations referred to in paragraph 4 hereof.
6.
A professional Builder, Pete Smith, inspected the crack and concluded that it is definitely caused by the excavations as described in paragraph 4 and that it will deteriorate causing the wall to collapse should the excavations continue. (See Annexure “A”.)
7.
By continuing the excavations the Respondent is unlawfully infringing my rights and if he continues to do so I will suffer serious damages which damages cannot be prevented by any other remedy under the circumstances.
Wherefore Applicant prays for:
a) An order prohibiting the Respondent to continue with the excavations.
b) Cost of suit.
c) Further and/or alternative legal relief.
Signed and sworn to on this 14 th day of April 2008 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 as binding on her conscience.
___________________________
COMMISSIONER OF OATHS
Annexure “A”:
AFFIDAVIT
I, the undersigned,
Pete Smith,
Hereby make oath and declare as follows:
1.
I am a builder for the last ten years and therefore suitably qualified to give an expert opinion on all building matters.
2.
I have inspected the house situated on Erf 208, Queenswood, situated at 123 Smith Street, Queenswood, Pretoria and found a crack in one of its outer walls in close proximity to the next door property where excavations are in progress.
3.
After inspecting both the excavation activities as well as the crack I hold the opinion that the crack is caused by such excavations.
Signed and sworn to on this 14 th day of April 2008 the deponent having acknowledged that he knows and understands the contents of this affidavit and that he has no objection against taking the prescribed oath, which oath he regards as binding on his conscience.
___________________________
COMMISSIONER OF OATHS
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NUMBER: 1 OF 2008
In the matter between:
John East…………………………………………………………………Applicant
and
Stanley West……………………………………………………………Respondent
|OPPOSING AFFIDAVIT |
I, the undersigned,
Stanley West,
Hereby make oath and declare as follows:
1.
Ad paragraphs 1, 2 and 3 of the Founding Affidavit:
I am the Respondent in this matter, and I acknowledge the contents of paragraphs 1, 2 and 3 of the Applicants Founding Affidavit.
2.
Ad paragraph 4 of the Founding Affidavit:
I admit that I have embarked on building operations that entail excavations but deny that the excavations are elaborate since they are normal 30 x 50 cm excavations as prescribed by the National Building Regulations.
3.
Ad paragraph 5 of the Founding Affidavit:
I have no knowledge of a crack on the outer wall of the Applicant’s house but if there is a crack I specifically deny that it has been caused by my excavations.
4.
Ad paragraph 6 of the Founding Affidavit:
I deny that my excavations can cause any damage to the house of the Applicant since the excavations are of a limited nature, they conform with the National Building Regulations and they are in line with building plans that have been approved by the building section of the Tshwane Metro. I thus also differ from the opinion of Mr Smith and I specifically deny that he is suitably qualified to give such an expert opinion on the cause of the alleged crack.
5.
Ad paragraph 7 of the Founding Affidavit:
I deny all the allegations made by the Applicant in paragraph 7.
6.
When I started my building activities the Plaintiff informed me that he will do anything to prevent me from completing same since he does not want to have a building bordering on the common boundaries of our respective properties.
Wherefore Respondent prays that:
a) The order sought by the Applicant be denied.
b) Cost of suit.
c) Further and/or alternative legal relief.
Signed and sworn to on this 16th day of April 2008 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 as being binding on her conscience.
___________________________
COMMISSIONER OF OATHS
NOTE:
Ad Application and subsequent documentation:
Please note that the Respondent refers to paragraphs in the Founding Affidavit as indicated, i.e. Ad paragraph …, but he or she may also add additional information like in paragraph 6 of the Opposing Affidavit. The Applicant may respond to the Opposing Affidavit by means of an Affidavit in Reply. The format will basically be in the style of the Opposing Affidavit. A reply should be used if the Applicant wants to respond to any particular new averment made by the Respondent in the Opposing Affidavit.
Ad description of immovable property:
The best way to identify property is to use both its formal description as indicated in the Deeds Registry and its title deed as well as its physical address, for instance:
“Erf 123 Queenswood, situated at 124 Smith Street Queenswood.” If you have such information - that can be obtained by means of a deeds search in the relevant Deeds Registry - you may add held by ….(registered owner)… In terms of T 12456/ 2007 that refers to the registered owner in terms of the title deed as it appears in the Deeds Registry.
Ad Practice:
Please note that apart from the uniform rules of court, there are particular rules that apply to the Supreme Court of Appeal and the various divisions of the High Courts that give certain directive regarding certain procedures that must be followed as well. In the TPD there is also a Practice Manual that contains certain directives issued by the Judge-President of this division.
For updated rules of court, relevant legislation, precedents and practice directives and civil procedure information in general, visit the Butterworths-Lexis-Nexis page at the library under the headings “Civil Procedure” and “Pleadings” respectively.
Ad litigation techniques:
See and if possible read:
CG Marnewick Litigation Skills for South African Lawyers.
H Daniels Morris Technique in Litigation.
Ad Heads of Argument:
Heads of Argument are used in the case of appeals as well as opposed applications in the High Court. It is nevertheless advisable to prepare your arguments in other matters, like opposed applications in the magistrate’s court, in the same format in order to give structure to your arguments.
HEADS OF ARGUMENT:
Drafting of heads of argument:
- Begin by identifying the issues
- Give a summary of the material facts
- Set out the proposition of law with reference to authority
- Apply the propositions to the facts
- Conclude with a conclusion regarding the relief to which the litigant is entitled.
Examples based on the above application:
IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NUMBER: 1/2008
In the matter between:
JOHN EAST APPLICANT
And
STANLEY WEST RESPONDENT
______________________________________________________________
APPLICANT’S HEADS OF ARGUMENT
______________________________________________________________
URGENCY:
1.
1.1 Applicant applies for an interdict against Respondent in terms whereof Respondent is prohibited to continue with excavations on Erf 207, Queenswood situated at 124 Smith Street, Queenswood.
1.2 The Notice of Motion and Founding Affidavit are not drafted on the basis thereof that the application will be brought as an urgent application.
1.3 However, Counsel for Applicant has been advised by his instructing attorney that the matter has been enrolled for hearing before the Honourable Court in view of the extreme urgency in this matter.
1.4 It is conceded that the Notice of Motion as well as the founding affidavit do not specifically deal with the question of urgency as is required by Rule 6[12][b].
1.5 However it is respectfully submitted that the Honourable Court always has a discretion to condone non-compliance with the Rules and Practice of the Honourable Court in circumstances where such condonation are warranted.
1.6 In this matter it is respectfully submitted that from the context of the papers it is abundantly clear that this is in fact a matter of extreme urgency:
1.6.1 Respondent refuses to desist from continuing with building operations.
1.6.2 The consequences for Applicant, should Respondent be allowed to continue with his building operations are extremely serious.
1.7 In these circumstances the Honourable Court is respectfully requested to condone the failure of Applicant to specifically deal with the question of urgency in the founding affidavit and Notice of Motion. In all respects this is a matter which comply with the requirements of an urgent application.
See in general: Luna Meubelvervaardigers (Edms) Bpk v Makin t/a Makin’s Furniture Manufacturers 1977[4] SA 135 [W].
THE MERITS:
2.
2.1 Applicant applies for a final interdict with costs.
2.2 The requisites for a final interdict are:
(a) a clear right;
(b) an injury actually committed or reasonably apprehended;
(c) absence of similar protection by any other ordinary remedy.
See: The Law of South Africa, 1st re-issue Vol 11 p288 par 309.
3.
It is respectfully submitted that the excavations of Respondent are the cause of the cracks.
4.
Respondent merely alleged that his building procedures are in compliance with the usual City Council requirements, the National Building Regulations and are allegedly of a limited nature.
5.
It is respectfully submitted that despite the fact that in applications where fact arise, they are usually adjudicated upon the version of the Respondent, this is a case where the Honourable Court ought to follow a robust common sense approach and should dismiss the uncorroborated lay person’s allegations of Respondent and indeed make an order in terms of the Notice of Motion in favour of Applicant.
See: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A).
6.
Wherefore the Honourable Court is respectfully requested to grant an order in terms of the Notice of Motion.
Dated at PRETORIA on this 18th day of APRIL 2008
________________________
AJ LOUW SC
COUNSEL FOR APPLICANT
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NUMBER: 1/2008
In the matter between:
JOHN EAST APPLICANT
And
STANLEY WEST RESPONDENT
______________________________________________________________
RESPONDENT’S HEADS OF ARGUMENT
______________________________________________________________
1.
INTRODUCTION
This is an application for a final interdict, prohibiting the respondent “from continuing with excavations on Erf 207, Queenswood, situated in 124 Smith Street, Queenswood”, plus costs.[9]
2.
IN LIMINE
The attestation of the affidavit of both the applicant and the respondent is irregular. In both cases, the commissioner of oaths refers to the parties as being female, while that is clearly not the case. I submit that the error is, in the circumstances, a minor one and request, on behalf of the respondent, condonation for the error.
3.
URGENCY
1. The application has been brought on the basis of urgency, in that the normal rules regarding times periods and service have not been complied with and the matter set down for hearing in the urgent court.
2. However, there has been no attempt to follow the requirements of rule 6(12),[10] in that the applicant has failed:-
1. to set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course;[11]
2. to comply with the provisions of Part FB of the Practice Manual. As is correctly pointed out by Erasmus,[12] the provisions of the Practice Manual are strictly applied. There has also been no attempt to comply with the Memorandum issued by Justice South wood on 12 February 2007.[13]
3.3 In the premises, the respondent requests that the matter be struck from the roll.
4.
THE MERITS:
BACKGROUND
1. Facts that are common cause
1. The applicant a teacher, and the respondent, a businessman, are neighbours, living in adjacent properties in Smith Street, Queenswood, Pretoria.
2. The full description of the respondent’s property is Erf 207, Queenswood, situated at 124 Smith Street, Queenswood and that of the applicant, Erf 208, Queenswood, situated at 123 Smith Street, Queenswood, Pretoria.
3. The Respondent has embarked on building operations on his property that entail excavations.
2. The factual allegations by the applicant that are in issue
1. That the excavations are “elaborate”. The respondent avers that they are normal 30 x 50 cm excavations, as prescribed by the National Building Regulations.
2. That there is a crack on the outer wall of the applicant’s house and if there is indeed a crack, that it has been caused by the respondent’s excavations.
3. That if excavations continue, the alleged crack will deteriorate causing the wall to collapse. The respondent avers that the excavations are of a limited nature; they conform with the National Building Regulations and they are in line with approved building plans.
4. That by continuing the excavations the respondent is unlawfully infringing the applicant’s rights; and that the applicant will suffer irreparable harm.
5.
LEGAL ARGUMENT
5.1 As set out in subparagraph 4.2 above, there are real, genuine and bona fide disputes of fact in this matter, as contemplated in the Room Hire case.[14] Therefore, the court should take the approach set out by the then Appellate Division in the Plascon Evans matter.[15]
5.2 Taking the undisputed facts from the applicant’s version and, where there is a dispute as to the facts, the respondent’s version, the applicant is clearly not entitled to the relief sought.
5.3 Regarding the evidence of the builder, it is not at all clear that he is an expert in anything other than, possibly, building. He has not properly qualified himself as an expert as to the cause of the alleged crack. It is also not clear what the extent of his examination was; for all we know, it could have been a neighbourly look over the wall. The court should, in the premises, disregard his evidence.
5.4 It is also significant that the applicant has not chosen to put any evidence before the court regarding the extent of the crack. Once again, we are forced to speculate. However, the mere fact that the applicant has brought this application cannot of itself supply any clue as to the seriousness of the crack, on the one hand, and, on the other, of the causal relationship, if any, between the respondent’s excavations and the cracks.
5.5 The respondent’s action are, on the face of it, lawful. He has obtained the necessary planning approval.
5.6 In any event, there is no evidence that the respondent has breached any duty of lateral support.[16]
5.7 A further aspect that deserves mention is the fact that the applicant has chosen, in an urgent application, in a matter in which a dispute of fact was clearly foreseeable, to pray for a final interdict. He has not chosen to ask for interim relief pending the institution of any action.
6.
In the premises, the respondent prays that the applicant be dismissed with costs.
______________________
LP DICKER
COUNSEL FOR THE RESPONDENT
1517 HIGH COURT CHAMBERS, PRETORIA, 18 APRIL 2008
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NUMBER: 1/2008
In the matter between:
JOHN EAST APPLICANT
And
STANLEY WEST RESPONDENT
________________________________________________________________
PRACTICE NOTE: COUNSEL FOR RESPONDENT
______________________________________________________________
1. Number on role: 1
2. Counsel for Applicant: A J LOUW SC Tel 012 303 7569
3. Counsel for Respondent: L P Dicker Tel 012 303 7878
4. Nature of application: Urgent application for interdict.
5. Order sought: Final interdict prohibiting respondent from performing
certain excavations on his property; and costs.
5.1 By applicant: Probably an order in terms of Prayers 1 to 2 of Notice of
Motion.
5.2 By respondent: That the application be dismissed with costs.
6. Estimated duration: 1 hour
7. Urgency: None stated by applicant; applicant of view matter is urgent; respondent disputes urgency.
8. Reading of papers: Required
9. Heads of argument: Attached hereto, on behalf of respondent.
L P DICKER
COUNSEL FOR THE RESPONDENT
1517 HIGH COURT CHAMBERS
PRETORIA
ANNEXURE/ AANHANGSEL “D”
THE LAW OF OBLIGATIONS AND CAUSES OF ACTION
[Acknowledgement: Adapted for teaching purposes only, from excerpts from Hosten et al Introduction to SA Law (1977); Herbstein and van Winsen The Civil Practice of the Supreme Court of SA (1997); Prest Interlocutory Interdicts; Becks: Theory and Principles of Pleading in Civil Actions (1973))]
1 GENERAL
The word obligation is derived from the Latin word obligare meaning to bind. Hence the definition in the Digest of an obligation as a juristic bond between two persons in terms of which the one is legally bound as against the other to perform something. It is therefore a relationship which entails on the one hand a person’s right to a performance by someone else, ie a personal right;’ and on the other hand another party’s duty to perform. The performance which forms the object of the right and the corresponding duty may consist in giving something, in doing something or in not doing something. The holder of the right is called the creditor and the other the debtor. In most cases, the personal right or claim may be directly enforced in law, in which case we speak of a civil obligation. Sometimes however the law, although recognizing the validity of an obligation in certain respects, is not prepared to make it enforceable in which case it is designated as a natural obligation.
Obligations arise mainly from three sources:
• Contract;
• Delict; and
• Various other sources arising ex lege like:
• Unjustified enrichment;
• Unauthorised management of affairs(negotiorum gestum, which is also a kind of enrichment);
• Family and blood related relationships like a parent’s duty to maintain his child, and the right of the child to claim maintenance from his parent;
• Statute.
2 UNJUSTIFIED ENRICHMENT
Under certain circumstances unjustified enrichment gives rise to an obligation in terms of which the enriched party, for convenience called the enrichee, incurs a duty to restore the extent of his enrichment to the impoverished party, for convenience called the impoverishee, and the latter acquires a corresponding right to claim that the extent of the enrichment be restored to him.
However, unjustified enrichment is not a general source of obligations; in other words an obligation will not always arise when the general requirements of unjustified enrichment are present because, as we shall see, our law does not recognize all-embracing enrichment action. These general requirements exist when one person is enriched, and another is impoverished, the enrichment of the former being at the expense of the latter and there has been no legal ground or cause for the transfer of the asset concerned from the impoverishee’s estate to that of the enrichee (in other words, transfer has taken place sine causa). But we repeat: our law does not recognize that enrichment liability ensues whenever these requirements are present, but acknowledges liability only in certain specific circumstances. South African law can therefore be said to have a law of enrichment actions. Most of these actions stem from Roman law and have come down via Roman-Dutch law to South African law where their names, requirements and scope are very often still unaltered.
Before 1966 the weight of contemporary South African legal opinion was in favour of the view that the law with regard to enrichment liability had reached its ultimate development and that it could be said that a general enrichment action existed. In that year, however, the appellate division in Pool en ‘n Ander v Nortje NO held that no such general enrichment action exists in South African law but only such specific actions and ad hoc extensions thereof as have already been recognized or may still be recognized. This decision left the law of enrichment liability in a state of uncertainty because further extensions and even the future development of a general action were not ruled out.
There is thus no general action in South African law based on enrichment. An essential element in such an action is that the enrichment is unjust (Nortje en ‘n Ander v Pool, N.O., 1966 (3) SA 96 (A.D.)). See also Odendaal v van Oudtshoorn, 1968 (3) SA 433 (T); Gouws v Jester Pools (Pty) Ltd., 1968 (3) SA 563 (T).
The condictio indebiti (note there are other types of actions in this regard as well.)
This is the action used to recover money or property which was paid or delivered by the plaintiff to another in the mistaken belief that it was due to such person. Thus if I buy something and pay too much as a result of an error with regard to the price, I am entitled to reclaim the amount in excess with the condictio indebiti. (The action is however not available if the money paid was due under an obligation naturalis since in that case the debt, although not claimable, was not indebitum.)
Example:
(1) Parties. (It must be shown that plaintiff sues in his capacity as executor of the estate John Jones.)
(3) The estate of John Jones was indebted to defendant in the sum of R2 400 and no more.
(4) On or about the …………………. Plaintiff in ignorance of that fact and bona fide and reasonably believing that a certain sum of R800 was also due to defendant paid him the sum of R3 200.
(5) Defendant owes to plaintiff the sum of R800 overpaid by mistake but notwithstanding demand defendant refuses to pay it or any part thereof.
Wherefore plaintiff claims……………………………..
Negotiorum gestio or unauthorized administration
Negotiorum gestio is another source of obligations which was classified by the Romans as a quasi-contract and it is to be clearly distinguished from the cases of unjustified enrichment discussed above.
Negotiorum gestio occurs where a person, called the gestor, with the intention of acting to the advantage or benefit of another called the cominus, takes control of the dominus’ interests in a reasonable manner and to the dominus’ advantage and benefit, without any intention to act free of charge and without having been forbidden to do so by the dominus. Thus the requirements for liability are that the gestor must act without instruction, utiliter coeptum ie reasonably in the interests of the dominus, with the animus negotia aliena gerendi ie with the intention of benefiting the dominus, not animo donandi ie not with the intention to donate his performance, and not against the express prohibition of the dominus.
A claim based on statute:
The notion of voidable dispositions in the insolvency law will serve as a good example in this respect. See for instance sections 26 – 30 of the Insolvency Act of 1936 that provides statutory grounds for the trustee to attack certain dispositions made by an insolvent prior to sequestration.
3 INTERDICTS
REQUIREMENTS FOR AN INTERDICT
In order to succeed in obtaining a final interdict, whether it be prohibitory or mandatory, an applicant must establish:
(a) a clear right;
(b) an injury actually committed or reasonably apprehended; and
(c) the absence of similar protection by any other ordinary remedy.
An applicant for a temporary interdict will obviously succeed if he is able to satisfy the above three requirements, but the court has a discretion to grant a temporary interdict even when a clear right has not been proved. This the court will do if:
(a) the right that forms the subject matter of the main action and that the applicant seeks to protect is prima facie established, even though open to some doubt;
(b) there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;
(c) the balance of convenience favours the granting of interim relief; and
(d) the applicant has no other satisfactory remedy.
As damages are claimed as well as an interdict a combined summons must be used. If an interdict only is claimed an ordinary summons may be used.
In deciding whether the interdict sought is temporary or final, the court will look at substance rather than form.
The main principles on which the court decides whether or not to grant an interdict pendente lite are the probabilities of success in the main action and the loss of inconvenience caused by the granting or the refusal of the interdict. Thus if the loss or inconvenience would be serious to the applicant if refused, but of little consequence to the respondent if granted, the interdict would be granted; but if the loss or inconvenience if granted would be of great consequence to the respondent and of less consequence to the applicant, the interdict should be refused.
A permanent interdict will seldom be granted on application. An action is the proper procedure and plaintiff must allege and prove a clear right, a well-founded fear that an injury, committed against him, will continue to be committed or that an injury is about to be committed against him and there is no other adequate remedy available to him. If plaintiff cannot show that an action for damages is not an adequate remedy, an interdict is likely to be refused (cf. Lubbe v Die Administrateur Oranje-Vrystaat, 1968 (1) SA 110 (O)).
A mandamus may sometimes be a remedy for a continuing wrong. This is an order requiring the performance of an act. Thus if plaintiff alleges that a building is encroaching on his property he may sue for an order that the owner of the building remove the encroachment.
INTERDICT: CLAIM FOR REMOVAL OF ENCROACHMENT ON LAND
Example:
(1) Plaintiff is ………………………………….
(2) Defendant is ………………………………..
(3) Plaintiff is the registered owner of Stand No. …………………… Johannesburg
(4) Defendant is the registered owner of Stand No. …………………. Johannesburg, which stand adjoins plaintiff’s stand aforesaid.
(5) Defendant has built a residence on his stand aforesaid and portion of the said residence, namely a verandah thereof, encroaches upon the plaintiff’s stand aforesaid.
(6) The plaintiff has called upon defendant to remove the encroachment aforesaid but the defendant has wrongfully and in breach of plaintiff’s rights refused to remove the said encroachment.
Wherefore the plaintiff claims (a) an order that defendant remove all portions of the building encroaching on plaintiff’s stand; (b) costs of suit; (c) alternative relief.
SPECIAL INTERDICTS:
Anton Piller Orders
An Anton Piller order is usually brought on an ex parte basis without notice and in camera to the respondent based on interlocutory and urgent relief. The applicant usually asks for the authority to search for and attach property and/or documents in the possession of the respondent. This application finds application where there is a fear that material may disappear and might thus not be available as evidence during the trial. The application is thus for the attachment of documents or things to be preserved as evidence. Sometimes the application is for the disclosure of information. The Anton Piller order is of an interlocutory nature but care must be taken to execute such orders strictly in accordance with the 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). With regard to its development in South African law, it is to be noted that Roamer Watch Co SA & another v African Textile Distributors also t/a MK Patel Wholesale Merchants & Direct Importers 1980 (2) SA 254 (W) was the first reported case on this procedure. Although thereafter rejected as part of the South African law this remedy was finally recognised as part of our 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).
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.
Some examples of causes of action: Extract from Pete et al Civil Procedure: A Practical Guide (2008) Oxford SA pp 587-588
“1 Goods sold and delivered
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
Introduction
Books
Legislation
4. Case Law
8. Journals
8. Foreign legal material
INTRODUCTION
These notes are compiled as a research reference tool for final year law students to use when they are employed in the legal profession.
BOOKS
When looking for the most relevant information on a topic South African law books or textbooks may often be viewed as your first port-of-call. However, do take care to use the latest editions. As you well know the law is always changing.
Follow up the footnotes to legislation, regulations, case law and other material.
Looseleaf books are very useful tools. Once again make sure that they have been kept up-to-date. They are kept up-to-date by means of replacement pages. There are a great many of these books published by Jutas and LexisNexis Butterworths and they cover many different subject areas.
LAWSA For those who have access to this publication, either in hardcopy or online format, it can be rather useful. The Law of South Africa (LAWSA) is an encyclopedia of our laws. It is kept up-to-date by means of new volumes and a monthly publication called “Current Law”. The latter helps you to stay abreast of the new developments. Use the “Key” to find new cases and other material on a specific topic. Material is arranged by Volume and paragraph numbers.
Take note that from Jutas one can purchase, in either hardcopy looseleaf format or online (CD) format,
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.
[pic]
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:
[pic]
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:
[pic]
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:
– Under ‘Information’ go to ‘Documents’ – then ‘Bills’ and so on.
. (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:
• All South African Law Reports 1828-1946
• All South African Law Reports
• Arbitration Law Reports
• Competition Law Reports
• Constitutional Law Reports
• Judgments Online
• Labour Law Reports
• Pension Law Reports
• Tax Cases Reports
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):
Butterworths Index and Noter-up to the All South African Law Reports and the South African Law Reports. Noter-up section – “The table below lists the cases which have been referred to or considered judicially in the judgements………” The index is also very useful.
Juta’s Index and Annotations to the South African Law Reports. The “Case Annotations” contains the same information as in the Noter-up. Useful index.
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
[pic]
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.
SAFLII -
It is also very useful to be aware of the free caselaw obtainable from the internet. Bear in mind the following:
[pic]
These are especially useful:
- Supreme Court of Appeal (UOFS) -
- Constitutional Court
- South African Legal Information Institute – SAFLII
(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:
• In the online Jutas SA Statutes there is added to many acts a list of CASES where sections of acts have been considered.
• The hardcopy Butterworths Statutes have the lists of “References to Decided Cases” (see above).
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.
The sorry state of affairs is that there is only one fully free online academic journal in this country – namely “Potchefstroom Electronic Law Journal”
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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 .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 . 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.
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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.
[pic]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)
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[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).
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