CHAPTER 16

15 August 2024 20:09

PLEA, COUNTERCLAIM, REPLICATION,

COUNTERPLEA AND CLOSE OF PLEADINGS
PLEA
Answer to the Plaintiff's claim and sets out the defendants defense.

Defendant Plea's to the averments made in the Plaintiff's Particulars of Claim.

The defense must be clear and it must not be a bare denial where you deny without a
basis. If you get a bare denial you can serve an irregular step in order to get them to serve
a better plea

A plea may be accompanied by a counter claim

Time Periods:

High Court Rule 22 and Magistrates Court Rule 17

Simple Summons = must serve Plea 20 days after receiving the Declaration.

Combined Summons = must serve plea 20 days after delivery of their notice of intention
to defend

Failure to do this will result in a Notice of Bar being served

Contents of a Plea:

FPS v Trident Construction

A Defendant must give a fair and clear answer to every point of substance raised by the
plaintiff by admitting or explicitly denying every material matter alleged against them.

Neugebauer v Bodiker
It is the duty of the defendant to set forth a defense with sufficient precision to enable the
plaintiff to ascertain what the defense is.

If the Plea does not meet the requirements then the Plaintiff can:
1. Have the Plea set aside
2. Take an exception or strike out certain averments

Types of Pleas:
1. Plea on merits
2. Special Plea

Special Pleas:
Is a legal attack designed to destroy or postpone the Plaintiff's cause of action before the merits

SIP 412 Page 1

Is a legal attack designed to destroy or postpone the Plaintiff's cause of action before the merits
have been considered.

They are either:

1. Dilatory (postpone)
Postpones the operation of the cause of action until something takes place

2. Declinatory (destroy)
Stops the cause of action and ends the matter such as prescription or lack of locus standi
Dilatory Declinatory
Non-joinder - did not cite a party Lack of Locus standi
Lis alibi pendens - the same is already being Lack of Jurisdiction this is the wrong
heard by a competent court court
Arbitration is needed before bringing the Prescription
matter
Another Condition is need before Res Judicata - claim has final judgement
already
Estoppel

The special plea can either be dealt with:

1. At trial as a point in limine (first step)
2. Set down to be heard prior to trial

Plea on Merits:
Attacks the substance made by the Plaintiff

Rules as in High Court Rule 22(2)-(3) and Magistrates Court Rule 17(2)-(3)
a. Admit, deny or confess and avoid all the material facts in the Combined Summons or
declaration OR state what which facts are not admitted and to what extent and state the
facts on which they rely.

b. If you do not deny or admit it will be deemed admitted

c. Any explanation or qualification shall be stated

Admit:
No evidence is needed it will deem to have been proven
Can be withdrawn through amendment

Deny:
The allegation is placed in issue and the Plaintiff will have to prove

Non-admission: when the Defendant has no knowledge

Confess and Avoid: where the defendant raises a specific defense such as fraud

The Defendant may also respond by:

a. Pleading a tender
b. Pleading in the alternative defense
c. Pleading a Counterclaim

Each defense must be pleaded if there is more than one and you cannot rely on a mutually
destructive defense.

Structure of a Plea on Merits:

SIP 412 Page 2

Structure of a Plea on Merits:
1. Consecutively numbered paragraphs
2. One allegation per paragraph which makes up the cause of action
3. Plea must address each allegation contained in the summons
4. "Ad Paragraph 1 thereto"

REPLICATION:
Plaintiff files a response to the Defendant's Plea this is not always necessary.

This should NOT be a bare denial.

If no Replication is delivered: the Plaintiff is deemed to have denied all the allegations of the
Plea.

When should a replication be delivered:

1. Admit new allegations in the Defendant's Plea
2. Introduce new allegations that will nullify the Defense
3. Qualify the new allegations made in the Plea

Rules and Time periods:

1. 15 days after the service of the Plea

- High Court: if it is not served the Plaintiff is barred from serving it and pleadings are closed

- Magistrates Court: No similar rule

2. The replication can also be delivered by the Plaintiff in reconvention within 10 Court days
after the Plea in Reconvention

Counterclaim:
When the Defendant has a claim against the Plaintiff.

"Claim in Reconvention"

"Breviates Causa, for the purpose of convenience the parties are referred to as in convention"

The counterclaim can be based on a completely different cause of action

If the claim falls without the jurisdiction in the High Court then it can still be heard in the same
court for continence.

If it's beyond the Magistrates Court then Magistrates Court Rule 20 determines how the parties
should proceed and Rule 47 allows the stay of proceedings to institute the counterclaim in the
High Court

Procedure:
High Court Rule 22(4) and 24 and Magistrates Court Rule 20

If it does not comply its an irregular set and the Plaintiff can apply to have it set aside.

1. A counter claim must be delivered with the Plea unless the Plaintiff consents to it being
later the court can also allow it

2. It can be the same or separate document if it is the same it must have the heading "Claim in
Reconvention"

SIP 412 Page 3

 3. No need to cite the parties

4. Other parties can be joined to the counter claim

The Plea to the Counterclaim and Subsequent Pleadings:

The Plaintiff must indicate their defense to the Defendant's counterclaim by setting out their
defense in a counterplea.

No counter plea - Defendant must serve a notice of bar - no answer to the bar - Defendant
applies for default judgement

Counterplea must be served with the replication is there is one

Subsequent Pleadings:
High Court Rule 25(5) and Magistrates Court Rule 21(5)

After the replication further pleadings can be delivered within 10 court days after the previous
pleadings have been delivered.

Further Pleadings in order:

1. Defendant's Rejoinder
2. Plaintiff's surrejoinder
3. Defendants rebutter
4. Plaintiffs surrebutter

Close of Pleadings:
Litis contestio when all the pleadings have been delivered and the issues in dispute are clearly
formulated.

These issues may change as the parties may amend their pleadings before judgement with leave
from the court.

Pleadings are closed in terms of High Court Rule 29 and Magistrates Court Rule 21A when:

1. Joinder of issues: joined issues without alleging new facts or adding further pleadings
2. Written Agreement: Parties agree in writing pleadings are closed and file it with the
registrar
3. Court Application: where the parties cannot agree
4. Time Period Expires: last day for filing a replication or subsequent pleadings

SIP 412 Page 4