ACTIONS p.

178
“To sue”
ACTIONS
• There are the following phases:
• 1. Pleadings stage
• 2. Pre-trial stage-preparation
• 3. Trial stage
• 4. Judgment stage
• 5. After judgment stage
Pleading phase
• Purpose: Defines issues to determine what is the issues between
them. What they agree and disagree on
• This is set out in the pleadings
• Back and forth in certain order.
• Sequence pleadings: Summons with Particulars of claim, plea,
replication, rejoinder, surrejoinder, rebutter, surrebutter.
Actions
• THE TWO SIDES TO THE ARGUMENT BETWEEN LITIGANTS, set out in
PARTICULARS OF CLAIM and in the PLEA.
• USUAL STEPS INVOLVED IN PLEADINGS (DEFENDED)
• 1. Plaintiff has summons and particulars of claim served.
• 2. The defendant enters notice of appearance to defend the action.
• 3. Defendant “serves and files” a PLEA.
• 4. Plaintiff sometimes “serves and files” a replication followed by
further pleadings-see previous slide.
Actions-possible extra steps
• 1. Defendant: requests particulars certain documents, recordings.
• 2. Plaintiff delivers a “declaration” in case of simple summons.
• 3. Plaintiff: applies for summary judgment
• 4. NB - Responses (remedies) to defective pleadings (SPECIAL PLEAS,
EXCEPTIONS, STRIKE OUT) and
• 5. Responses (REMEDIES) to non-compliance RULES-COMPEL
APPLICATIONS
Summons and particulars of claim
• A summons orders the sheriff to command the defendant to answer
to the plaintiff’s claim within the dies induciae.
• Content summons (a) Citation parties; (b) warning to defendant NO
RESPONSE= default judgment; (c) dies induciae and service address;
(d) particulars of claim including PRAYERS.
• SEE Precedent (P9).
• Particulars of claim attached to summons and contain (a) citation; (b)
locus standi; (c) jurisdiction; (d) cause of action; (e) prayer(s)
• Different kinds of summonses used in different situations: (a)
combined; (b) simple; (c) provisional sentence summons.
Summonses
• Types: (a) COMBINED SUMMONS
• Use for (a) unliquidated claim such as damages and (b) illiquid claim such
as divorce
• It thus consists of two parts; the summons and the particulars of claim.
• (b) SIMPLE SUMMONS: does not have particulars of claim attached to it,
the particulars, in abbreviated form contained in the body of the summons.
(See Annexures, F: short form POC’s) and further and know those causes of
action; i.e. know how to DRAFT them!
• Simple summons used where the claim is for a debt or liquidated demand!
Example “goods sold and delivered”
“ The plaintiff’s claim against the defendant is for payment of R150
000.00 being the amount due owing and payable by defendant to
plaintiff for goods sold and delivered by plaintiff to defendant at the
defendant’s special instance and request on 5 March 2020 which
amount is due and owing, and which defendant, despite demand
thereto refuses and or neglects to pay”
Summonses
• Simple summons…claims for debt or liquidated demand, may include
claims for delivery or performance of a specified or fixed thing; such
as to perform an agreed job for plaintiff, called a claim for SPECIFIC
PERFORMANCE.
• The following will also qualify as debt or liquidated demand:
cancellation of sale; ejectment; an interdict; delivery of property;
claim on overdrawn overdraft.
• NB: Claim for damages =NEVER a claim for debt or liquidated demand
because it is open for dispute.
Summonses
• NB: See and know the differences between a simple and a combined
summons in par. 2.1.3(b)!!
• (c) PROVISIONAL SENTENCE SUMMONS
• Used for those cases when plaintiff’s claim is founded on a liquid document
such as a cheque, mortgage bond, acknowledgement of debt.
• Dies induciae in both courts for entering intention to defend=10 court days.
• Dies induciae in both courts to (1)deliver plea, (2)exception or (3)
application to strike out=20 court days.
• DRAFTING: CITATION
• (a) Plaintiff: full name, gender, occupation, residential or business address,
capacity if representative.
Summons
• (b): Defendant: surname and first names or initials; (b) residential-or
business address; (c) occupation and employment address-if known;
(d) representative capacity if applicable.
• NB: See and study particulars of claim in (par. 2.1.5)!!
• When drafting a pleading, you are required to plead the FACTA
PROBANDA, but not the f/probantia. Plead facts, not the evidence.
• The rules determine “with sufficient particularity to enable opposite
side to reply thereto.
Summons
• Because further particulars may no longer be requested during
pleading, the following TWO STEPS may be taken against litigant who
fails to supply sufficient particulars-
• (a) An application to have pleading set aside as irregular step or
• (b) An exception when so serious that it amounts to failure to disclose
cause of action, or rendering pleading vague and embarrassing before
exception may be brought.
Particulars of claim-drafting requirements.
• When you sue in terms of contract, you MUST (a) state whether it
was oral or in writing; (b) state when, where and by whom concluded;
(c) attach true copy to summons.
• DIVORCE SUMMONS
• See par. 2.1.5(f) but in particular “a party claiming division, transfer or
forfeiture of assets, shall give details of the grounds upon which it is
claimed…..”
Particulars..divorces-examples
• “ The marriage relationship has broken down irretrievably and there
are no reasonable prospect for the restoration of a normal marriage
relationship”.
• “ During the marriage, the plaintiff has contributed directly or
indirectly to the growth and or preservation of the defendant’s
estate” –in case of asset transfers
Particulars of claim
• If for bodily injuries-
• 1. Date of birth
• 2. Nature and extent of injuries
• 3. Nature effects and duration of disability
• SEE FOUR HEADS OF DAMAGES IN PAR. 2.1.5(g)!
• For death-
• Date of birth of deceased & person claiming damages
• Loss of support by lawful dependents – various dates of births – actuarial
assessments of date, but for death, provider would have ceased support.
• Non-compliance with rules relating to drafting – pleadings deemed
irregular step and pleading may be set aside upon application.
• May also render pleadings expiable.
• Either case may lead to dismissal of claim or defence.
Provisions related to MC only-
• Electronic addresses – must include e-mail and fax number +postal
address in summons.
• Plaintiff may indicate prepared to accept service through means other
than physical/postal address and if so which.
• Defendant may agree. If refusal or failure to deliver consent – court
may on application grant consent.
• Provisions for defendant- summons must contain forms – consent to
judgement, appearance to defend, notice drawing attention to sec. 109 of
MCA, notice drawing attention to sections dealing with debt collection.
• Provisions for jurisdictional averments – relies on claim arising wholly in
district/region – set out particulars in support.
• Immovable property within district – must state “the property concerned is
situated within the district or region”
• Summons must show any abandonment of part of claim (sec. 38) or set-off
of admitted debt (sec. 39).
• Provisions relating to legislation – Claims regulated by legislation – Claims
against state – Simple summons – bare allegation of compliance, but if
defended complete averments in declaration.
• NCA – Claim on credit agreement and seek sec. 58 judgement then deal
with compliance i.r.o NCA ss 129/130 even for simple summons, spefically
service of sec. 129(1)(a) notice.
• Suing as cessionary – full description of cedent and date of session,
otherwise plaintiff will lack standing.
• Declaring immovable property executable – Notice i.t.o. sec. 26(1) of
Constitution – residential immovable property and primary residence.
• Automatic rent interdict summons - in summons a notice which
serves as INTERDICT, is included. It prohibits anyone to remove any
furniture. The latter is subject to his hypothec for rent.
• Self-study-superannuation of summonses and judgments. Par.2.1.7
• Mediation – par. 2.1.8 – HC and MC Rules now aligned. Discussed
earlier. Study para. [Link] -[Link].4. Leave out [Link].5-[Link].5