MAGISTRATE’S
COURT PRACTICE
Syllabus
The syllabus is compiled by
Practitioners with experience in
practice.
Training Guide
The guide for 2024 has been
revised by Ian Yuill and reviewed
by Advocate (Dr) James Clark,
and Tamara Botha.
Version 004 Learning Resources No. 015
Publish date: 01/01/2024
Confirmation date: 01/11/2023
____________
This training guide is intended as a supplementary tool for
Notes on Content
purpose of the training at L.E.A.D’s Practical Vocational
Training School and Courses.
The publishing of this training guide (“guide”) was made
The document records the views
of the drafters. There may be
justifiable variations in practice.
possible through financial support of the Legal Practice
____________
Council (via the Legal Practitioners’ Fidelity Fund).
The content may not be a correct
reflection of the law and/or
practice at the moment of reading
due to legislative changes after
printing.
The Law Society of South Africa brings together the Black
Lawyers
Association,
the
National
Association
of
Democratic Lawyers and independent attorneys, in
representing the Attorneys’ profession in South Africa.
MAGISTRATE’S COURT PRACTICE
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Lifelong learning towards a just society
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© 2024 Law Society of South Africa
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Training Guide Topics
The following training guides are updated annually and can be purchased from Legal Education
and Development [L.E.A.D®]
Alternative Dispute Resolution
High Court Practice
Business Writing Skills
Constitutional Law Practice
Criminal Court Practice
Customary Law
Drafting of Contracts
Forms of Business Enterprise
Insolvency Law
Introduction to Practice
Management
Labour Dispute Resolution
Legal Costs
Legal Practitioners Accounts
Management (LPAM)
Magistrate’s Court Practice
Matrimonial Matters and Divorce
Personal Injury Claims
Professional Legal Ethics
Wills and Estates
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TABLE OF CONTENTS
A. PREFACE TO THE COURSE ................................................. 10
1. WELCOME AND PURPOSE ............................................... 10
2. WHY IS THIS SUBJECT IMPORTANT? .............................. 11
3. LEARNING ASSUMED TO BE IN PLACE ............................. 11
4. APPROACH TO THE STUDY OF CIVIL PRACTICE IN THE
MAGISTRATE’S COURT ....................................................... 12
5. LEARNING OUTCOMES ................................................... 12
6. CANDIDATE SUPPORT BEFORE, DURING AND AFTER
SUBJECT SPECIFIC TRAINING ............................................ 14
7. TIME MANAGEMENT ....................................................... 15
8. ASSIGNMENTS ............................................................... 15
9. ASSESSMENTS ............................................................... 16
B. OVERVIEW OF THE MAGISTRATE’S COURT PROCEDURE ... 17
1. OVERVIEW .................................................................... 17
1.1 TAKING OF INSTRUCTIONS ........................................... 17
1.2 ACTION ...................................................................... 17
C. PRACTICE NOTES .............................................................. 24
1. INTRODUCTION ................................................................ 24
1.1 ADMINISTRATION ........................................................ 24
1.2 TAKING OF INSTRUCTIONS .......................................... 24
1.3 THE FILE..................................................................... 25
1.4 DRAFT LEGAL LETTERS ................................................. 26
1.5 RECORD TELEPHONE CALLS, ATTENDANCES AND
CONSULTATIONS................................................................ 27
1.6 COSTS ....................................................................... 28
1.7 PROFESSIONAL CONDUCT ............................................. 29
SELF-ASSESSMENT QUESTIONS: QUESTION 1 ........................ 30
2. DEMAND (PRE-LITIGATION NOTICES) .............................. 31
2.1
2.2
2.3
2.4
THE NECESSITY FOR A DEMAND ..................................... 31
EFFECT OF OMISSION TO MAKE DEMAND ........................ 32
PLEADING OF DEMAND ................................................. 33
FORM AND CONTENT OF DEMANDS ................................ 33
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2.5 CLAIMS AGAINST ORGANS OF STATE .............................. 34
2.6 NATIONAL CREDIT ACT NO. 34 OF 2005 .......................... 38
SELF-ASSESSMENT QUESTIONS: QUESTION 2 ........................ 40
3. JURISDICTION ................................................................. 41
3.1 GENERAL .................................................................... 41
3.2 SECTION 29 – JURISDICTION IN RESPECT OF CAUSES OF
ACTION – THIS WILL DETERMINE WHICH LEVEL OF COURT TO
ISSUE YOUR SUMMONS FROM .............................................. 43
3.3 SECTION 28 – JURISDICTION IN RESPECT OF PERSONS –
THIS WILL DETERMINE THE QUESTION AS TO WHICH SPECIFIC
COURT TO ISSUE YOUR SUMMONS FROM............................... 49
3.4 SECTION 30 – INTERDICTS ........................................... 54
3.5 SECTION 30BIS – ATTACHMENT TO FOUND OR CONFIRM
JURISDICTION (PEREGRINUS) .............................................. 57
3.6 SECTION 45 – JURISDICTION BY CONSENT OF PARTIES .... 58
3.7 SECTION 46 – MATTERS BEYOND THE JURISDICTION ....... 59
3.8 OTHER RELATED PROVISIONS ....................................... 63
3.9 OBJECTION TO JURISDICTION ....................................... 66
3.10 EXCEPTIONS TO NORMAL RULES OF JURISDICTION .......... 66
SELF-ASSESSMENT QUESTIONS: QUESTION 3 ........................ 67
4. PARTIES ........................................................................... 68
4.1 RULE 2(1) ................................................................... 68
4.2 RULE 5(4) ................................................................... 68
4.3 COMPANIES AND CLOSE CORPORATIONS ........................ 69
4.4 EDUCATIONAL INSTITUTIONS ........................................ 70
4.5 BODIES INCORPORATED BY STATUTE ............................. 70
4.6 MARRIED WOMEN ........................................................ 70
4.7 MINORS...................................................................... 71
4.8 MENTAL DISABILITY ..................................................... 72
4.9 NON-NATURAL BODIES (JURISTIC PERSONS) ................... 72
4.10 TRUSTS ...................................................................... 74
4.11 SECTION 41 – JOINDER OF PLAINTIFF ............................ 75
4.12 SECTION 42 – JOINDER OF DEFENDANT .......................... 75
4.13 CHANGE OF PARTIES .................................................... 75
SELF-ASSESSMENT QUESTIONS: QUESTION 4 ........................ 76
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5. FORMS OF PROCEEDINGS ................................................. 77
5.1 ACTION PROCEEDINGS (SUMMONS) ............................... 77
5.2 APPLICATION PROCEEDINGS (MOTIONS)......................... 77
5.3 PROVISIONAL SENTENCE PROCEEDINGS ......................... 78
SELF-ASSESSMENT QUESTIONS: QUESTION 5 ........................ 78
6. ACTION PROCEEDINGS ..................................................... 79
6.1 SUMMONS .................................................................. 79
SELF-ASSESSMENT QUESTIONS: QUESTION 6 ........................ 85
6.2 EXAMPLES OF SOME CAUSES OF ACTION ........................ 90
6.3 CLAIMS FOR INTEREST ................................................. 93
6.4 SERVICE OF PROCESS, NOTICES AND OTHER DOCUMENTS 95
SELF-ASSESSMENT QUESTIONS: QUESTION 7 ........................ 97
7. UNDEFENDED ACTIONS .................................................... 99
7.1 RULE 12 – JUDGMENT BY DEFAULT ................................. 99
SELF-ASSESSMENT QUESTIONS: QUESTION 8 ...................... 108
7.2 RULE 11 – JUDGMENT BY CONSENT .............................. 108
7.3 SECTIONS 57 AND 58 ................................................. 109
SELF-ASSESSMENT QUESTIONS: QUESTION 9 ...................... 112
8. DEFENDED ACTIONS ....................................................... 113
8.1
8.2
8.3
8.4
RULE 13 – NOTICE OF INTENTION TO DEFEND ............... 113
RULE 62 – SECURITY FOR COSTS ................................. 114
RULE 15 – DECLARATION ............................................ 116
RULE 19 – EXCEPTIONS AND APPLICATIONS TO STRIKE OUT
116
SELF-ASSESSMENT QUESTIONS: QUESTION 10 .................... 119
8.5 RULE 17 – THE PLEA ................................................... 122
8.6 RULE 14 – APPLICATION FOR SUMMARY JUDGMENT ........ 126
8.7 RULE 18 – OFFER TO SETTLE ....................................... 130
8.8 RULE 18A – INTERIM PAYMENTS .................................. 131
SELF-ASSESSMENT QUESTIONS: QUESTION 11 .................... 131
8.9 RULE 20 – CLAIMS IN RECONVENTION .......................... 132
8.10 RULE 21 – REPLICATION AND PLEA IN RECONVENTION ... 132
8.11 RULE 21A – CLOSE OF PLEADINGS ............................... 132
8.12 RULE 21A – FAILURE TO DELIVER PLEADINGS – BARRING 133
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8.13 RULE 55A – AMENDMENT OF PLEADINGS ....................... 133
8.14 SECTION 111 – AMENDMENT OF PROCEEDINGS ............. 134
SELF-ASSESSMENT QUESTIONS: QUESTION 12 .................... 135
9. PREPARATION FOR TRIAL .............................................. 136
9.1 RULE 22 SET – DOWN OF TRIAL ................................... 136
9.2 RULE 16 – FURTHER PARTICULARS ............................... 137
9.3 RULE 23 – DISCOVERY OF DOCUMENTS ........................ 137
9.4 RULE 24 ................................................................... 140
9.5 RULE 26 – SUBPOENAS, INTERROGATORIES AND
COMMISSIONS DE BENE ESSE............................................ 143
9.6 RULE 22 – A MEETING BETWEEN PARTIES TO PREPARE FOR
PRE-TRIAL CONFERENCE OR TRIAL ..................................... 144
9.7 RULE 25 – JUDICIAL CASE MANAGEMENT AND PRE-TRIAL
CONFERENCE ................................................................... 144
9.8 RULE 27 – WITHDRAWAL, DISMISSAL AND SETTLEMENTS 145
SELF-ASSESSMENT QUESTIONS: QUESTION 13 .................... 146
9.9 TRIAL – RULE 29 to 32 ................................................ 147
10. APPLICATION PROCEEDINGS ....................................... 149
10.1 WHICH PROCEEDINGS MAY BE BROUGHT BY APPLICATION?
149
10.2 GENERAL REQUIREMENTS FOR APPLICATIONS............... 149
10.3 RULE 55 MAKES PROVISION FOR THE FOLLOWING DISTINCT
PROCEDURES .................................................................. 152
10.4 WITHDRAWAL OF AN ADMISSION ................................. 152
10.5 AFFIDAVITS .............................................................. 153
10.6 INCLUSION OF NEW MATERIAL OR AN OBJECTION THERETO ..
............................................................................... 155
10.7 THE NUMBER OF AFFIDAVITS ALLOWED IN AN APPLICATION ..
............................................................................... 157
10.8 EX PARTE APPLICATIONS ............................................ 157
10.9 INTERLOCUTORY APPLICATIONS .................................. 159
10.10 VARIOUS APPLICATIONS ........................................... 159
10.11 RULE 60 – NON-COMPLIANCE WITH RULES INCLUDING
TIME LIMITS AND ERRORS ................................................. 160
SELF-ASSESSMENT QUESTIONS: QUESTION 14 .................... 162
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10.12 SECTION 32 – ATTACHMENT IN SECURITY OF RENT ..... 162
10.13 EDICTAL CITATION AND SUBSTITUTED SERVICE .......... 163
10.14 APPLICATIONS IN RESPECT OF IRREGULAR PROCEEDINGS –
RULE 60A ........................................................................ 163
11. RULE 14A – PROVISIONAL SENTENCE PROCEEDINGS .. 165
11.1 INTRODUCTION AND BACKGROUND ............................. 165
11.2 REQUIREMENTS FOR THE GRANT OF PROVISIONAL
SENTENCE ....................................................................... 167
11.3 LIQUID DOCUMENT .................................................... 167
11.4 INTEREST ................................................................. 169
11.5 EXTRINSIC EVIDENCE................................................. 169
11.6 WHEN IS A CONDITION NOT A CONDITION? .................. 170
11.7 THE ONUS OF PROOF ON THE PLAINTIFF ....................... 171
11.8 THE ONUS OF PROOF ON THE DEFENDANT .................... 171
11.9 APPEALABILITY OF JUDGMENT AT PROVISIONAL SENTENCE
STAGE ............................................................................ 173
12. EXECUTION .................................................................. 175
12.1 RULE 36 – PROCESS IN EXECUTION.............................. 175
12.2 COLLECTION PROCESS FROM DEBT TO EXECUTION: THREE
PHASES .......................................................................... 175
12.3 IMPORTANT TYPES OF WARRANTS ................................ 175
12.4 RULE 41 – EXECUTION AGAINST MOVABLE PROPERTY ..... 178
12.5 RULE 43 AND 43A – EXECUTION AGAINST IMMOVABLE
PROPERTY ....................................................................... 179
12.6 SECTION 65 – PROCEEDINGS ...................................... 182
SELF-ASSESSMENT QUESTIONS: QUESTION 15 .................... 188
13. APPEALS AND REVIEWS ............................................... 191
13.1 SECTION 83 – APPEAL FROM MAGISTRATE’S COURT ....... 191
13.2 SECTION 48 – JUDGMENT ........................................... 191
13.3 RULE 51 – APPEALS IN CIVIL CASES ............................. 192
13.4 APPEALABLE ORDERS ................................................. 193
13.5 REVIEWS .................................................................. 194
SELF-ASSESSMENT QUESTIONS: QUESTION 16 .................... 194
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14. INTERPLEADER PROCEEDINGS ..................................... 195
14.1 SECTION 69 .............................................................. 195
15. MEDIATION .................................................................. 197
16. CONTINGENCY LITIGATION ......................................... 199
17. HEADS OF ARGUMENT .................................................. 203
18. PRACTICAL OVERVIEW OF CASE CONCEPT: THE CONTENT
..................................................................................... 205
D. REFERENCE SOURCES ..................................................... 209
E. PAST EXAM PAPERS ........................................................ 210
F. ASSESSMENT ANSWERS AND DEFINITIONS ................... 211
ANSWERS TO SELF-ASSESSMENT QUESTIONS ........................ 211
DEFINITIONS AS CONTAINED IN RULE 2 OF THE ACT ................ 240
G. ANNEXURES ................................................................... 242
ANNEXURE “A”: HEADS OF ARGUMENT .................................. 242
ANNEXURE “B”: LIST OF AUTHORITIES .................................. 276
ANNEXURE “C”: EXAMPLE OF A PRACTICE DIRECTIVE .............. 277
ANNEXURE “D”: DE REBUS → ISSUES → ARCHIVE
2019 → CLEARING UP THE CONFUSION ON EVICTIONS............ 290
ANNEXURE “E”: EXAMPLE OF FOUNDING AFFIDAVIT IN THE
MAGISTRATE’S COURT FOR AN EVICTION ............................... 294
FOUNDING AFFIDAVIT ......................................................... 294
ANNEXURE “F”: EXAMPLE OF A FULL EVICTION IN THE HIGH COURT
(THE PRINCIPLE REMAINS THE SAME) .................................... 299
EXAMPLE: EX PARTE NOTICE ............................................. 299
EXAMPLE: EX PARTE AFFIDAVIT......................................... 301
EXAMPLE: SECTION 4(2) NOTICE ....................................... 309
EXAMPLE: DRAFT ORDER .................................................. 312
EXAMPLE: NOTICE OF MOTION .......................................... 314
EXAMPLE: EVICTION FOUNDING AFFIDAVIT ........................ 318
EXAMPLE: ATTORNEY CONFIRMATORY AFFIDAVIT ................ 326
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EVICTION CASE: GROBLER V PHILLIPS AND OTHERS [2022]
ZACC 32: REGARDING EVICTION OF AN ELDERLY AND DISABLED
PERSON IN TERMS OF THE PIE ACT ..................................... 328
ANNEXURE “G”: GOVERNMENT GAZETTE NO. 46839 DATED 2
SEPTEMBER 2022 ............................................................... 352
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A.
PREFACE TO THE COURSE
1.
WELCOME AND PURPOSE
Welcome to the subject Magistrate’s Court Practice. We hope that you are going to
enjoy studying this subject given its very practical nature. The course is aimed at
enabling Candidates to acquire a thorough, practical understanding of civil
procedure in the Magistrates’ Courts from the stage of taking instructions through
to appeal and review, so as to be able to litigate effectively and successfully. In
addition to be able to facilitate this process in such a manner that it is at all times
above reproach and reflecting high ethical standards.
Within this training guide reference is made to various Court cases, textbooks,
articles (for example De Rebus) as well as other sources and the obligation remains
on the Candidate to stay abreast of changes within the law through their own
research in order to ascertain real time standing authorities. South Africa is most
definitely one of the countries since its incorporation as a full democracy, for years
to come to go through various legislative changes occurring at a tremendous rate
as the country embraces its newly found democracy.
In this training guide Candidates will also find various developmental questions on
the subject matter within this guide. Answers to these questions will not necessarily
be available to Candidates as the questions are also intended to be used by lecturers
in developing the theoretical and especially the practical skills of Candidates whilst
lecturing to them.
In particular, the Candidate should:

Develop the ability to litigate effectively;

Be able to advise clients and execute their instructions;

Develop the necessary skills to draft notices, pleadings, etc.;

Understand the relationship between the profession and the Court;

Act in accordance with all ethical standards applicable to this profession;

Understand the relationship between the Attorney and the client, to be able
to appraise at an early stage the factual and legal implication of the client’s
case and be able to advise the client on:
o
the prospects of success
o
cost implications.
Candidates should note the following regarding the course material:
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2.

Reference to a particular gender should, unless the context indicates
otherwise, be construed as to include all other genders.

Although reference has only been made to certain Sections and Rules in the
materials, Candidates are required to familiarise themselves with the
Magistrates’ Courts Act and Rules in their entirety.
WHY IS THIS SUBJECT IMPORTANT?
This subject forms part of the qualification referred to as the National Certificate in
Attorneys’ Practice, but more specifically, is part of Specific Outcomes 1 and 2 of
SAQA Unit Standard ID 116088: Applying the Practical Aspects of Trial Advocacy.
It also forms part of Module 2.1 of the School for Legal Practice curriculum and is
intended to take you one step closer to qualifying as a Legal Practitioner in terms
of the Legal Practice Act No. 28 of 2014.
Apart from attending Practical Legal Training (PLT), you will need to serve the
prescribed period of practical vocational training (PVT) and to write the
competency-based admission examinations for Attorneys as a final step towards
applying for admission as an Attorney. As indicated above, this subject is designed
to equip you with an overall understanding of the civil process in the Magistrate’s
Court of South Africa irrespective of your cause of action. This subject is
fundamental if you want to practice law irrespective of your area of specialisation.
It is also important to study this subject in an integrative way by consulting the
other training guides that you will receive during the course of the programme.
3.
LEARNING ASSUMED TO BE IN PLACE
We assume that you have acquired subject-specific substantive or theoretical
knowledge during your B Proc and/or LLB studies. At the very least, we assume
that you are able to:

Critically analyse fundamental legal concepts, principles, theories and their
relationship to values;

Understand and apply relevant methods, techniques and strategies involved
in legal research and problem solving in theoretical and applied situations;

Collect, organise, analyse, and critically evaluate information and evidence
from a legal perspective; and

Solve complex and diverse legal problems creatively, critically, ethically, and
innovatively.
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4.
APPROACH TO THE STUDY OF CIVIL PRACTICE IN THE MAGISTRATE’S
COURT
The previous approach involved mainly an emphasis on theoretical aspects which
encouraged superficial approaches to learning on the part of the Candidate.
Candidates were inclined to memorised large chunks of the textbook and/or training
guide which produced Candidates who could write pages of memorised content
without being able to implement or apply this knowledge in everyday life. Their
knowledge was often fragmented, and they could not see the bigger picture. They
were, therefore, not active participants in the learning process.
The new outcomes-based approach is designed to make Candidates active
learners, to develop certain basic skills designed to facilitate their integration into
the legal profession, and to equip them with essential tools necessary to help them
become competent members of society.
The prescribed tutorial material consists of the following components:
This training guide contains the theoretical aspects of civil practice in the
Magistrates' Courts. It is designed to provide you with a basic understanding of the
content of the various provisions of the Magistrates’ Courts Act No. 32 of 1944 and
the Rules of the Court. Internally, each major unit consists of section outcomes,
subject-matter content and self-assessment questions. Reference is made to
important Case Law and textbooks. You are not required to consult these for the
main examination. They act as a source of reference should you wish to further
enhance your study of certain principles for self-development purposes.
The self-assessment questions are included at the end of almost every unit. This
component is designed to test whether you have understood the study material as
well as to test your understanding of those aspects of civil process that you will
need to revise in order to pass this subject. Although we provide the support and
guidance that you need to master this subject, you are required to actively work
through the prescribed material to integrate all the material into a coherent whole.
You should not approach each study unit with no sense of continuity and context.
5.
LEARNING OUTCOMES
The outcomes, as end-products of learning, tell you what you are supposed to know
and be able to do after you have worked your way through the prescribed material
of a study unit.
The outcomes are designed to guide you through the work in a much more focused
and methodical way. They also tell you the areas that you need to concentrate on.
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You can assess how much you have absorbed by testing how well you are able to
do the listed outcomes.
The outcomes may require you to explain, discuss, list, argue, comment, or analyse
a point involving key principles or concepts of civil practice in the Magistrates’
Courts. However, the acquisition of knowledge is of no real use unless you know
what to do with it. By this we mean that you must understand and learn to use the
knowledge that you acquire in this subject in your everyday life as a Legal
Practitioner. It is only by doing this that the study of civil practice in the Magistrates’
Courts can become meaningful.
The following table sets out the critical outcomes of this subject and the assessment
criterion on which you will be assessed. It further aligns the intended outcomes
with the index so that it is easy for you to navigate your way through the material
and to know what is expected of you from the beginning of the course.
NO.
ASSESSMENT CRITERION
TYPE
1
Explain, draft, and perform all actions re
jurisdiction of the Magistrate’s Court.
Practical exercise using a factual /
simulated scenario.
2
Cite parties in Magistrate’s Court
matters.
Formative class discussions and case
study-based assessment.
3
Differentiate between action and
application proceedings.
Formative class discussions and case
study-based assessment.
4
Institute action proceedings.
Formative class discussion.
5
Draft particulars of claims.
Formative class discussion and case
study approach.
6
Apply for default judgment.
Formative class discussion.
7
Explain, draft, and perform all actions
related to the procedure if an action is
defended.
Practical exercise using a
factual/simulated scenario.
8
Prepare for trial.
Formative class discussion.
9
Explain, draft and perform all actions
related to trial procedure.
Formative practical class exercise
and summative written test (BroadBased Skills Test (BBST)).
10
Apply application proceedings.
Formative case study discussion and
comparison and summative class
assignment.
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6.
11
Explain, draft, and perform all actions
related to provisional sentence
proceedings.
Formative case study approach and
class discussions.
12
Explain, draft, and perform all actions
related to the execution of judgment.
Formative case study approach.
13
Explain, draft, and perform all actions
related to interpleader summons
proceedings.
Formative class discussions.
14
Explain, draft, and perform all actions
related to appeal and review
procedure.
Formative class discussions and
simulated exercises.
CANDIDATE SUPPORT BEFORE, DURING AND AFTER SUBJECT SPECIFIC
TRAINING
Upon acceptance to the School for Legal Practice, you will attend an induction or
orientation session where you will be given a brief overview of what is expected of
you per module/subject as well as during the entire programme. You will also
receive the course material so that you can prepare in advance for each contact or
subject-specific session. Advance preparation is fundamental so that the class
discussions are interactive thereby ensuring that you derive maximum benefit from
the knowhow and expertise of the relevant instructor.
During the programme you will receive training in both the substantive and
procedural components of the subject matter from the subject-matter expert. The
School Principal will also supplement your learning by using a number of formative
and summative tools to ensure that you are adequately prepared for the final
summative assessment.
You can also count on the administrative personnel at the School to attend to all
your queries relating to when and where you need to be, signing of the register,
outstanding course material and so forth. Every effort will be made to ensure that
your journey at the School is enjoyable and enlightening to the extent of developing
the knowledge and the skills that are needed for you to enter the legal profession.
Given that you spend four months to a year in a particular practical legal training
programme, you are encouraged to develop long-standing relationships with your
peers through networking. It is also possible to develop an informal
mentoring/advisory relationship with the School Principal whilst you are serving
PVT and beyond. It is highly unlikely that they will turn you away should you need
guidance in understanding certain legal principles. Due to a contractual nexus which
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governs the Principal-Candidate relationship in terms of the Legal Practice Act No.
28 of 2014, the School Principal cannot usurp the authority of your Principal.
Your Principal remains responsible for overseeing your development during your
period of PVT.
7.
TIME MANAGEMENT
The training at the School for Legal Practice is quite intensive and therefore, you
must manage your time properly. To help you to achieve the outcomes, we have
provided the following information for you to create a study programme to suit your
individual needs.
ITEM
SCHEDULE
Number of formal lectures set for this
subject including trial advocacy sessions.
Approximately 24 hours plus 16
hours for trial advocacy sessions.
Number of written assignments that you
may need to do as part of the practical
exercises allocated to firms and/or
individually. In most instances it is usually
group-based case studies that are
attempted.
Between 10 and 16 per assessment
criteria set out in 4 above.
1 x final
Assessment
4 hours plus 15 minutes reading and
15 minutes drafting.
Broad-Based
Skills
Test
Individual learning that must take place
daily.
Depends on individual needs.
Note that your study programme must consider these guidelines together with your
commitment to the entire practical legal training programme otherwise you run the
risk of concentrating on one subject to the detriment of the other important
subjects.
8.
ASSIGNMENTS
You will find that we have incorporated a number of self-assessment questions in
each of the study units. The activities are based on the subject matter that has
been covered. The activities are designed to test your understanding of the
principles and concepts relating to civil procedure in the Magistrates’ Courts. As we
mentioned before, the self-assessment questions are also intended to test whether
you know how to apply the principles to concrete situations in simulated scenarios
and later in real life situations.
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The feedback to the activities will appear in Section F of this guide.
The self-assessment assignments are also important as they test your drafting
capacity which is a vital component of this subject. They are also designed in such
a way to help you to revise for the summative assessment that will take place at
the end of the course. Apart from that, you will be given a number of subject-based
assignments to attempt during the casework sessions which are very practical in
nature. You will receive two case studies which will cover the action and motion
process and you will be required to simulate the events from the point of
consultation with your client to attending to the trial of the matter at Court to
present your case. In the process you will attempt to create client files, draft letters,
draft pleadings and prepare for trial.
9.
ASSESSMENTS
As already indicated, this subject, together with High Court Practice and Legal
Costs, forms part of Module 2.1 of the School curriculum. Formative assessments
through class discussions, mini-tests and self-assessment assignments may take
place throughout the training on this subject and others (where possible) as it is
intricately linked to a number of other subjects such as Matrimonial Matters and
Divorce, and so forth. You will be required to write a final summative examination
on a date to be confirmed. This subject will form part of your final Broad-Based
Skills Test (BBST) assessment to be written towards the end of your time at the
School for Legal Practice. You must obtain a sub-minimum of 50 percent to pass
this assessment.
Note: Candidates who are attending the Five-week Practical Legal Training Courses
and who simply purchase the material for the purpose of studying for the
competency-based admission examinations do not have to comply with paragraphs
5, 6, 7 and 8 mentioned above.
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B.
OVERVIEW OF THE MAGISTRATE’S COURT PROCEDURE
1.
OVERVIEW
For easy reference an overview of the Magistrate’s Court procedure is set out below:
Candidates should note that there have been significant amendments implemented
to the Magistrates’ Courts Rules and certain portions of the Act. The Magistrates’
Courts Rules apply to the District and Regional Courts. Amended Rules came into
operation on 15 October 2010 (which have in turn been amended subsequently)
and have been titled “Rules regulating the conduct of the proceedings of the
Magistrates’ Courts of South Africa”. Where legal proceedings have been instituted
under the former Rules (which at this stage cannot be many matters, if any at all),
those Rules remain applicable until finalisation of such proceedings, by virtue of,
the provisions of Section 12(2)(c) and (e) of the Interpretation Act, 33 of 1957.
1.1
1.2
TAKING OF INSTRUCTIONS
•
Consultation with client;

Consultation with witnesses;

Perusal of documents.
ACTION
Rule 5 of the Magistrates’ Courts Rules read with Section 59 of the
Magistrates’ Courts Act No. 32 of 1944.
1.2.1
Summons
Ordinary summons (simple or combined), provisional sentence summons (Rule
14A), summons including automatic rent interdict, interpleader (stakeholder or
Sheriff), Divorce summons (Regional Court only).
1.2.2
Defended Matters: Combined Summons

Defendant: Rule 13 – Notice of Intention to Defend;

Rule 62 – Security for costs;

Defendant: Rule 17 – Plea;

Defendant: Rule 18 – Offer to Settle;

Defendant: Rule 18A – Interim payments;

Defendant: Rule 17, 20 – Plea, Special Plea and Claim in
Reconvention. Rule 20 must be read with Section 38 and Section 47
of the Magistrates’ Courts Act No. 32 of 1944;
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1.2.3
1.2.4

Rule 14 – Summary Judgment;

Defendant: Opposing Affidavit in answer to Application for Summary
Judgment;

Plaintiff: Replication and plea in reconvention – Rule 21;

Plaintiff and Defendant: Interlocutory applications to compel
compliance with the Rules, e.g., Rule 60(2), Rule 60(3), Rule 60 –
Non-compliance with Rules, including Time Limits and Errors, Rule
60A – Irregular proceedings and Reply to Request for Further
Particulars for trial;

Plaintiff and Defendant: Rule 16 – Request for Further Particulars for
trial;

Plaintiff: Rule 19 – Exceptions and applications to strike out.
Close of Pleadings Governed by Rule 21(A)

Plaintiff: Rule 22 – Set-Down of Trial;

Plaintiff and Defendant: Rule 23 and Rule 24 – Discovery Notices,
Discovery Affidavits, Medical examinations, Notices to use plans,
photographs and diagrams and Examinations of objects;

Pre-Trial including Rule 22A;

Trial – Rule 29;

Trial: Opening address, onus of proof / duty to begin to adduce
evidence, leading evidence in chief, cross-examination, argument,
absolution from the instance;

Judgment;

Appeal in Civil Cases – Rules 51 (must be read with section 84 and
48 of the Magistrates’ Courts Act No. 32 of 1944), Rescission and
variation of Judgment – Rule 49 (must be read with Section 36 of the
Magistrates’ Courts Act No. 32 of 1944) and Review of Taxation –
Rule 35 (must be read with Section 81 of the Magistrates’ Courts
Act).
Undefended Matters

Request for Default Judgment – Rule 12;

Rule 12(4) Affidavit, if necessary;

Original liquid document, if claim is based on a liquid document;

Default Judgment.
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1.2.5
Summons Including Automatic Rent Interdict
Procedure as above for defended and undefended matters (pleadings must
comply with Rules 5 and 6 of the Magistrates’ Courts Rules). Be careful –
no removal – Rule 56 read with Section 31 of the Magistrates’ Courts Act.
1.2.6
Summons (Provisional Sentence) – Rule 14A

1.2.7
Defendant has three options:
o
Final and unconditional payment.
o
An admission of liability in which event final judgment may be
given.
o
A denial of liability.

Defendant: Affidavit setting forth the grounds upon which he/she
disputes liability.

Plaintiff: File Replying Affidavit.

The Court may hear oral evidence in terms of the Defendant’s
authenticity of his/her signature or that of his/her agent.

Court may hear oral evidence also on issues other than those
provided for in the sub-rule where the parties have consented
thereto.

Defendant may raise counterclaim as a defence.

Court may order the Defendant to file a plea. Where provisional
sentence is refused and no order is made in terms of which the
Defendant is permitted to file a plea, the provisional sentence is
dismissed, and the proceedings are at an end.

If the Court orders a plea to be filed and Defendant files a plea, the
proceedings are similar to that of an ordinary defended matter (see
above).
Applications
Please distinguish between interlocutory applications on the one hand and
application proceedings where substantive relief is sought. Furthermore,
and from a practical point of view, you should distinguish between
applications on notice of motion and those which may be brought ex parte
or on an urgent basis. These distinctions are important in interpreting the
new Rules 55 and 56.
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
Please have regard to the following forms insofar as applications are
concerned:
o
The long form (generally compulsory);
o
Adapted short form (ex parte for urgent matters or those
where notice would defeat the purpose of the relief sought);
o
Short form (for interlocutory applications and the like);

Specific applications provided for in the Rules;

Rule 55;

Every application shall be brought on Notice of Motion supported by
an affidavit as to facts upon which the Applicant relies for relief (there
are, however, instances provided for in Rule 55 where affidavits are
not necessary or may be dispensed with by the Court);

Notice of Motion must be addressed to the party or parties against
whom relief is claimed and to the Registrar or Clerk of the Court;

Note: Where it is necessary or proper to give any person notice of
application, the notice of motion must also be addressed to such
person and served on such person;

The notice of motion in every application, other than one brought ex
parte, shall be similar to Form 1A of Annexure 1 and copies of the
notice, and all annexures thereto shall be served upon every party to
whom notice thereof is to be given;

In notice of motion the Applicant shall:
o
Appoint a physical address within 15km of the office of the Registrar
or Clerk of the Court, at which notice and service of all documents in
such proceedings will be accepted;
o
State the Applicant’s postal, facsimile or electronic mail
addresses where available;
o
Set forth a day not less than 10 days after service of
application on the Respondent, on or before which such
Respondent is required to notify the Applicant, in writing,
whether he/she intends to oppose such application and state
that if no such notification is given, the application will be set
down for hearing on the stated date, not being less than 10
days after service on the Respondent of the notice.
If the Respondent does not, on or before the day mentioned, provide
notification that he/she intends to oppose the application, the Applicant may
place the matter on the roll for hearing by giving the Registrar or Clerk of
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the Court notice of set down 5 days before the day upon which the
application is to be heard.
Any party opposing the grant of an order sought in a notice of
motion shall:
Within the time stated in the notice, give the Applicant notice, in writing
that he/she intends to oppose the application and, in such notice, appoint
an address within 15 km of the office of the Registrar or Clerk of the Court,
at which he/she will accept notice and service of all documents, as well as
such parties’ postal, facsimile, or electronic mail addresses where available.
The opposing party is further to deliver his/her answering affidavit, if any,
together with any relevant documents within 10 days of notifying the
Applicant of his/her intention to oppose (Rule 55(1)(g)(ii)).
Within 10 days of the service upon the Applicant of the affidavit and
documents referred to in Rule 55(1)(g)(ii) the Applicant may deliver a
replying affidavit. Where it intends to raise questions of law only, deliver
notice of intention to do so within the time stated in sub-paragraph
55(1)(g)(ii), setting forth such questions.
The Court may in its discretion permit the filing of further affidavits. Please
take note of the procedure for the setting down of applications as set out in
Rule 55(1)(j).
Where an application cannot be properly decided on affidavit, the Court may
dismiss the application or make such order as it deems fit with a view to
ensuring a just and expeditious decision. The Court may also direct that
oral evidence be heard on specified issues with a view to resolving any
dispute.
Interlocutory and other applications incidental to pending proceedings must
be brought on notice, supported by affidavits if facts need to be placed
before the Court and set down with appropriate notice.
A Court, if satisfied that a matter is urgent, may make an order dispensing
with the forms and service provided for in Rule 55 and may dispose of the
matter at such a time and place and in accordance with the procedure that
such Court deems appropriate.
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Any application against any Minister, Deputy Minister, Provincial Premier,
Officer or servant of the State in his/her capacity as such, the State or the
administration of the province, the respective periods referred to in Rule
55(1)(e) or for the return of a Rule Nisi shall not be less than 15 days after
the service of the notice of motion or the Rule Nisi as the case may be
unless the Court has specifically authorised a short period.
Procedure by way of application upon notice is authorised by the
following Sections of the Act and Rules:
Sec. 29(1)(fA)
Liquidation of a Close Corporation
Sec. 31(4)
To set aside an automatic rent interdict
Sec. 32(1)
To attach property in security of rent
Sec. 32(2)
To set aside an order attaching property in security of rent
Sec. 34
To appoint an assessor
Sec. 35
For transfer of action or proceeding to another Magistrate’s
Court
Sec. 36
For rescission of judgment
Sec. 41(1)
Application by Defendant for separate trials where a
Plaintiff has joined
Sec. 42(1)
Applications by Defendants for separate trials where
Plaintiff has sued
Sec. 47(3)
For dismissal of counterclaim exceeding the jurisdiction
where Defendant has failed to institute action in High Court
under Section 47
Sec. 50
For removal of case to Provincial or Local Division
Sec. 52
For the approval of interrogatories
Sec. 63
For revival of superannuated judgment
Sec. 73
Suspend execution to pay debts by instalments
Sec. 74(1)
For administration order
Sec. 111(3)
Amendment of proceedings
Rule 14(1)
For summary judgment
Rule 20(5)
For stay of action under Section 47
Rule 27(5)
For dismissal of action
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Rule 27(6)(7)
To record terms of settlement / Make a settlement an order
of Court
Rule 27(9)
For entry of judgment in terms of settlement recorded in
terms of Rule 27(6)
Rule 30(11)
To amend record
Rule 31
For adjournment of action
Rule 32(3)
For stay of action – previous costs unpaid
Rule 47
For garnishee order on emoluments
Rule 49
For review (rescission or variation) of judgment or order
Rule 53
For leave to sue or leave to amend pleadings
Rule 56
Arrests, attachments, interdicts, and spoliation orders
Rule 57
Attachments to found or confirm jurisdiction
Rule 58
Maintenance pendente lite, contribution towards costs,
interim custody, and access to children
Rule 60
To secure compliance with the Rules
Rule 60A
Irregular proceedings
Rule 55A
Amendment of pleadings
Procedure by way of ex parte application is authorised by the
following Sections of the Act and Rules:
Sec. 32(1)
To attach property in security of rent
Sec. 72(1)
For the attachment of debts (garnishee order) Rule 56
Attachments, interdicts, and spoliation orders
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C.
PRACTICE NOTES
RANGE STATEMENT:
Demonstrate an understanding of the ethical rules and professional conduct in
litigation proceedings.
SECTION OUTCOMES:
After completing this section, you should be able to:

Properly consult with a client with a view to taking and recording instructions
with the prospect of intended litigation.

Open, organise and administer a file.

Draft legal letters.

Record telephone calls, attendances, and consultations correctly.

Apply the rules of ethical and professional conduct in litigation proceedings in
a given set of facts.

Explain the significance of letters marked ‘without prejudice’.
1.
INTRODUCTION
1.1
ADMINISTRATION
Practice administration and management have become increasingly
important for Legal Practitioners. This is a separate topic, but a few useful
reminders are included to assist Candidates when dealing with litigation. A
negative approach to this topic can have detrimental consequences on the
financial growth of a practice.
1.2
TAKING OF INSTRUCTIONS
The taking of proper instructions is a necessary skill for each and every Legal
Practitioner.
The following could be useful during your first consultation:

Aim to obtain all the relevant information and documentation from
your client;

Knowledge of the substantive law is essential to ensure that you ask
your client all the relevant questions and understand the importance
of each piece of information;

To simplify taking of instructions make use of a checklist when
appropriate e.g., when cause of action is a collision;
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
Give the client the opportunity to tell his/her story without
interruption;

If it is at all possible you should avoid taking telephone calls during
consultations;

Study and check the facts and documentation before you give any
advice;

It is advisable to confirm the instructions in writing;

Explain the following in detail:
o
Possible legal consequences;
o
Estimate legal expenses and how payments will take place;
o
The procedures that you are going to follow;
o
How will progress in the matter be reported (written or orally).
First consultations may be lengthy, but it is always time well spent. It is fatal
to attempt to draft correspondence, pleadings, affidavits etc. without full
instructions from your client. It is always wise to try as far as possible to
consult in person as many misunderstandings can be avoided under such
circumstances.
1.3
THE FILE
An effective filing system is indispensable in the Legal Practitioner’s office.
Files should be arranged logically for the effective locating of a file in the
least spend time. A file contains the history of the client which includes
correspondence, documentation, notes on telephone calls, client visits, and
work done by the Legal Practitioner.
Bear the following in mind after each new instruction:

Open a file and provide each file with proper record regarding your
client’s personal particulars, i.e., name, title, address, and telephone
numbers, fax numbers, e-mail address, etc. Also include numbers of
friends and family;

Indicate what the topic is for easy reference;

Keep record of work done i.e., correspondence, telephone calls, client
visits, etc.;

This recordal should be done as soon as possible after you have
consulted etc.;
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1.4

Organise your file into sub-files, e.g., correspondence, pleadings,
witness statements, etc. Arrange documentation in each sub-file in
date order for easy reference;

Obtain an account number and provide the bookkeeper at your firm
with the necessary particulars to open an account immediately – this
will prevent instructions getting lost or confused.
DRAFT LEGAL LETTERS
Correspondence in a Legal Practitioner’s practice is very important and the
following is worthy of note:
1.4.1

Create a neat letterhead with the necessary information (address,
telephone numbers, e-mail address and fax number);

Have a purpose with each letter you write. Avoid writing meaningless
letters;

Plan contents of each letter carefully. The letter should be logical,
concise and inform the recipient unequivocally of your client’s
expectations;

Provide the letter with the relevant reference and remember to use
the reference of the addressee;

Keep the contents of the letter short and to the point;

At times it will be necessary to use the words “without prejudice to our
client’s rights”. Use these words sparingly and only when applicable.
“Without Prejudice”
The words “without prejudice to our client’s rights” often appear on
correspondence. The writer then often assumes that the contents may not
be disclosed during the trial and that some form of privilege has been
established. Such a letter will only be inadmissible if it contains a settlement
offer or a compromise.
The Appeal Court decided the status of “without prejudice”
correspondence in Naidoo v Marine & Trade Insurance 1978 (3) SA
666 (A).
The head note is partially quoted below:
Correspondence conducted “without prejudice” in the bona fide efforts of
both parties to an action to settle Plaintiff’s claim, is in accordance with the
general “without prejudice” rule once a party objects to it being used as
evidence, wholly inadmissible. The rationale of the rule is public policy.
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Parties to a dispute are to be encouraged to avoid litigation and all the
expenses (nowadays very high), delays, hostility, and inconvenience it
usually entails, by resolving their differences amicably in full and frank
discussions without fear that, if the negotiations fail, any admissions made
by them during such discussions will be used against them in the ensuing
litigation. Often such admissions are classified or described as “privileged
communications.”
The position is as follows:

Both the person making the statement ‘without prejudice’ and the
person to whom the statement is addressed are entitled to privilege;

The words ‘without prejudice’ are usually used to indicate that a
writer of a letter wishes the communication to be protected by the
privilege;

The absence of these or similar words are not conclusive. If the
statement forms part of negotiations for the settlement of a dispute,
it will be privileged even if the words have not been used;

Even if the words are used, the communication is not privileged if
there was no dispute between the parties or if there were no genuine
negotiations to affect a settlement; and

The communication is privileged only if it forms an integral part of
the negotiations for a settlement.
Van Niekerk Van der Merwe en Van Wyk Privilegies in die Bewysreg at 205
Schmidt & Rademeyer Bewysreg, 4th edition at 567-570
Zeffert, Paizes & Skeen, The South African Law of Evidence 2003 at 615 – 619
Schwikkard & Van der Merwe Principles of Evidence 2nd edition at 298-299
Schmidt & Rademeyer Law of Evidence at 20-19 and 20-21
1.5
RECORD TELEPHONE CALLS, ATTENDANCES AND CONSULTATIONS
Inform your client regularly of the progress made. Send your client copies of
all correspondence and pleadings as and when you draft them and confirm
that the contents of the document are in accordance with your instructions.
Carefully consider the consequences of every statement you make in any
document or letter and decide whether it is necessary to disclose that specific
fact at the time when you are drafting the document. Record every telephone
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call, attendance and consultation and make certain that you will be able to
read them afterwards.
A fee must be debited for each and every attendance, telephone call and
consultation. It is extremely important to keep contemporaneous file notes
of every conversation, telephonic or otherwise. Remember this is your
practice that has to sustain you financially.
The note should contain:

The date and time;

With whom the conversation was held;

The contents of the conversation;

Also note the time taken; and

The duration of any such action.
These notes have a high evidential value in the event of any dispute arising
between you and your client. It is good practice to confirm all oral
conversations with your client, opposing parties and/or their Legal
Practitioners in writing as soon as possible after the conversation.
Should your client fail to contact you when requested to do so, fail to attend
consultations or fail to sign necessary documents timeously (e.g., affidavits)
or decide to take a certain course of action against your advice, you must
immediately put the request or advice in writing and confirm your
instructions to proceed with the matter despite your advice. It has happened
many times in the past that clients argued that they had never given certain
instruction when they in fact had done.
1.6
COSTS
A Legal Practitioner should debit fees as and when the work is done. Many
Legal Practitioners do not follow this practice and often lose fees and income.
This rule should be applied strictly in civil litigation. Even if a Legal
Practitioner has an agreement with the client that fees will only be payable
at the end of a matter or that only a nominal fee will be charged in
unsuccessful debt collecting matters, fees should regularly be noted in the
file or on the computer.
Fees should be debited at least once a month for the work done during that
month in defended matters. Monthly statements should be sent to the client.
It is essential to enter into an agreement with each client regarding: the tariff
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of fees, how and when the fees will be payable and what the consequences
of non-payment will be. A client should be told that he/she will receive an
account after the work has been done and that payment is expected within
a certain period.
The immediate debiting of fees has certain VAT implications. If the account
is not paid within 60 days, the firm is liable for VAT on unpaid fees. It is
advisable to use an age analysis system to identify defaulters. If an account
is not paid within 60 days, no further work should be done, and the client
should be informed that work would only proceed once the account is paid.
1.7
PROFESSIONAL CONDUCT
Although this material does not cover the entire field of professional conduct
a Legal Practitioner does have the following duties:

To be a competent Legal Practitioner.

To have a thorough knowledge of the substantive and procedural law.

Constant willingness to research the law in relation to the client’s
problems in order to find solutions, if any.

Honesty towards your client, your opponent, and the Court.

Never to be part of any form of fraud or dishonesty, despite your
client’s wishes.

To act in accordance with your client’s instructions, although your
client does not have the right to dictate the manner in which the
services may be rendered.

To fulfil the duty to report to your client when it may be necessary or
when it may reasonably be expected.

To conduct a relationship of the utmost trust with your client.

To serve your client’s interests to the best of your ability.

Always to honour your client’s right to confidentiality.
In terms of Rule 52A, when a Legal Practitioner withdraws from a matter,
s/he must deliver a notice to the client to his/her last known address, to the
Clerk or Registrar of Court and all other parties in the matter. In the notice
the client must be informed that s/he must supply an address and inform the
other parties in the matter of this address.
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SELF-ASSESSMENT QUESTIONS: QUESTION 1
1.
2.
3.
4.
Betty comes to your office and tells you that she is having marital problems. Her
husband is physically and verbally abusive. You advise her on the possibility of
applying for an interdict / domestic violence order. Attend to the following:
(a)
Create a file for Betty and ensure that you capture all the necessary
information.
(b)
Using what you have learnt about file notes, capture the details in a proper
format in your file.
(c)
Advise Betty on how you are going to bill her for work done. (15 marks)
Write a brief statement of no more than 100 words to show that you understand
the level of professionalism that is required of you once you enter the legal
fraternity. (10 marks)
True or false - every letter that is marked ‘without prejudice’ is inadmissible during the
trial of a matter. Discuss fully with reference to case law. (10 marks)
Your client’s car was involved in a motor collision and damaged as a result thereof.
She wants to claim the damages from the other driver who she alleges to be the
guilty party.
(a)
What information do you need from your client and what questions would
you put to her?
(b)
What instructions would you give to your client and what requests would you
put to her?
(c)
What advice and information would you give to your client? (10 marks)
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2.
DEMAND (PRE-LITIGATION NOTICES)
RANGE STATEMENT:
Demonstrate an understanding of the rules pertaining to letters of demand or other prelitigation documentation, prior to conducting litigation proceedings.
SECTION OUTCOMES:
After completing this section, you should be able to:

List the instances where a letter of demand or pre-litigation document is
necessary and explain the reasons for such necessity.

Determine when a letter of demand or pre-litigation document is necessary or
unnecessary.

With regard to a given set of facts, apply the prescription periods that are
applicable to litigation against organs of states.

Indicate to whom the letter of demand or pre-litigation document must be
addressed in a given set of facts.

Draft letters of demand or pre-litigation document in a given set of facts based
on the following cause of action: motor vehicle collision, instalment sale
agreement, sale of land, breach of contract and cancellation of agreement.
2.1
THE NECESSITY FOR A DEMAND
Proceedings are usually preceded by a demand to the party alleged to be in
default, requesting satisfaction of the claim within a reasonable legal period,
unless prescribed by statute.
2.1.1
If the date of default is a fixed date, a demand is not necessary (though
may be advisable) as the party to the contract is in mora ex lege
(automatically).
The contract has no stipulated time for performance, but the creditor has
made a demand on the debtor which –

Is clear and unequivocal;

Provides a fixed date, which is reasonable, for performance;
•
Contains an offer by the creditor to perform his reciprocal obligations on the
same day; (this would be the case of mora ex persona);
•
Nel v Cloete 1972 (2) SA 150 A.
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•
•
2.1.2
Johannesburg City Council v Norven Investments (Pty) Ltd
1993 (3) PH F34 (AD), [1993] 1 All SA 338 (A), 1993(1) SA
627 (a) at 633E.
Kragga Kamma Estates CC and Another v Flanagan 1995 (2)
SA 367 (A)
To Safeguard the Plaintiff’s Costs of Summons
Ordinarily a demand is not necessary to complete the Plaintiff’s cause of
action and is therefore not a condition precedent to the issue of summons.
In such cases the absence of a demand merely exposes the Plaintiff to the
risk of losing costs of summons if the Defendant tenders payment within a
reasonable time.
According to Butler v Nigel Cartage Co 1933 TPD 218 at 220, the Plaintiff
in these circumstances runs the risk of having to pay the costs because the
debtor is entitled to say: “A demand is necessary: I do not know what case
it is I have to meet: if you give me an opportunity, I am prepared to meet
that case”. If the debtor does meet the case, the creditor has to pay the
costs of the summons. In the above limited sense, it may be said that a
demand before summons is necessary.
In Venter v Venter 1949 (1) SA 768A at 778 it was held that no demand
is necessary where the date of payment, although not the place of payment,
has been fixed. It was there held that if a debtor undertakes in a contract to
pay money on or before a particular date, he must either tender or pay the
money to the creditor at any convenient place where the debtor may lawfully
perform the contract.
2.2
EFFECT OF OMISSION TO MAKE DEMAND
The fact that no demand was made before summons was issued does not,
except where a demand is a condition precedent to the issue of summons,
afford a defence to the action. Apart from the abovementioned exception,
the only effect of omission to send a demand before summons is that if
payment is made upon summons within a reasonable time the Plaintiff may
not be entitled to the costs of the summons.
In cases where a demand is necessary, if no demand is made before
summons is issued, the debtor can avoid having to pay the costs of the
summons by paying the amount within a reasonable time after service of the
summons, which is then treated as a letter of demand.
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2.3
PLEADING OF DEMAND
Where a demand is unnecessary to complete the Plaintiff’s cause of action,
it is unnecessary to plead that a demand has been made. It is unnecessary
to allege a demand for payment in a provisional sentence summons in which
reliance is placed upon a written acknowledgement of debt. It is, however,
not wrong to plead the demand.
Where a demand is a necessary part of the Plaintiff’s cause of action, it is
essential to plead that a demand has been made. A demand may be
necessary in some cases to complete the Plaintiff’s cause of action.
Examples

A promissory note or acknowledgement of debt payable on demand;

A notice in terms of Section 129(1)(a) or 86(10) of the National Credit
Act No. 34 of 2005;

A notice to pay arrears before cancellation of an agreement or
acceleration of payments arising from a transaction entered into in
terms of the Alienation of Land Act No. 68 of 1981;

A notice to an organ of state in terms of Section 3 of the Institution of
Legal Proceedings against Certain Organs of State Act No. 40 of 2002;

Agreements, leases, and similar transactions where notice is required
in terms of the agreement before cancellation can take place.
Even though a demand may not be necessary in some circumstances,
it is usually advisable to send a demand in even these circumstances.
2.4
FORM AND CONTENT OF DEMANDS

Demand may be informal or oral

Personal demand by the Plaintiff is sufficient

What is sufficient demand?
In order to constitute a sufficient demand enough detail must be given to
enable the debtor to know upon what basis the creditor claims the relief. In
a claim for a sum of money, the mere rendering of an account is not
sufficient.
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Dougan v Estment 1910 TPD 998
Any words will do that notify the Defendant that the debt is due and that the
Plaintiff requires payment, and it is not necessary to threaten legal
proceedings if satisfaction is not made, even when the demand is oral.
Livingstone v Cochrane 1908 TS at 89
2.5
CLAIMS AGAINST ORGANS OF STATE
Claims against the state and Provincial and Local Authorities arising from
delictual acts have long been subject to legislation that provides for a
mandatory notice and a prescription and/or expiry period. These limitation
or expiry periods were created by numerous statutory measures and were
correctly described as being in a state of flux and uncertainty, for various
reasons, including the fact that the Constitutional Court has declared certain
limitation or expiry periods to be inconsistent with the Constitution and
therefore invalid.
JONES & BUCKLE vol II Appendix E
Mohlomi v Minister of Defence 1997 (1) SA 124 (CC)
Moise v Greater Germiston Transitional Local Council 2001 (4) SA 491 (CC)
2.5.1
Legal Proceedings Against Certain Organs of State
(Act No. 40 of 2002, which came into operation on 28 November 2002).
Uncertainty has now been removed by the enactment of the Act. This Act
repeals the limitation or expiry periods contained in 14 Acts, including
Section 113 of the Defence Act No. 44 of 1957, Section 57 of the South
African Police Service Act No. 68 of 1995, Section 39 of the Public Service
Act (proc 103) of 1994, and the whole of the Limitation of Legal Proceedings
(Provincial and Local Authorities) Act No. 94 of 1970.
The Act applies in respect of any debt which became due either before or
after the commencement of the Act, except if the debt had been
extinguished by prescription before the commencement of the Act, or if
legal proceedings had already been instituted prior to its commencement.
In respect of proceedings already instituted, such proceedings are to
continue as if the Act had not been passed.
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Debt
There are two legs to the enquiry whether a claim is a debt in terms of
Section 1(1) of this Act:

It must arise from a contract, a delict or “any other liability”

It must render the organ of state liable for damages

An organ of state includes:
o
any National or Provincial department,
o
a municipality,
o
any functionary or institution exercising a power or performing
a function under the Constitution or a Provincial Constitution,
o
the South African Maritime Safety Authority,
o
the South African National Roads Agency Limited,
o
and any person for whose debt an organ of state is liable (See
Section 1(1)(vii)).
In terms of Section 2(2), a debt which became due either before the date
of commencement of the Act and which has not been extinguished by
prescription and in respect of which no legal proceedings had been
instituted before the commencement date or a debt arising after the
commencement of the Act, becomes extinguished as provided for in Chapter
III in the Prescription Act No. 68 of 1969. In other words, debts against an
organ of state are subject to the same Rules regarding prescription as other
debts.
As regards debts that arose prior to the commencement of the Act, the
expired portion of any period of prescription must be deducted from the 3year period, to calculate the remainder of the prescription period that
remains after the commencement of the Act. However, if the unexpired
portion is less than 12 months, the period of prescription is extended so
that a creditor has 12 months from 28 November 2002 within which to
institute proceedings.
2.5.2
Notice of Intended Legal Proceedings Against Organs of State
Section 3(1) provides that no legal proceedings for the recovery of a debt
may be instituted against an organ of state unless the creditor has given
the organ of state in question notice in writing of his or her or its intention
to institute the legal proceedings in question; or the organ of state in
question has consented in writing to the institution of the legal proceedings
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without such notice; or upon receipt of a notice which does not comply with
all the requirements set out in Section 3(2).
In terms of Section 3(2), the notice must be served on the organ of state
within six months from the date on which the debt became due; and it must
briefly set out the facts giving rise to the debt; and such particulars of such
debt as are within the knowledge of the creditor. A debt is not to be
regarded as being due until the creditor has knowledge of the identity of
the organ of state and of the facts giving rise to the debt, but the creditor
is to be regarded as having acquired such knowledge as soon as he or she
or it could have acquired it by exercising reasonable care, unless the organ
of state wilfully prevented him or her or it from acquiring such knowledge
(Section 3(3)(a)).
2.5.3
Condonation
If an organ of state relies on a creditor’s failure to serve a notice, the
creditor may apply to a Court having jurisdiction for condonation of such
failure.
Regarding which Court has jurisdiction for this application see the following
case law:
Minister of Safety and Security v Bosman 2010 (2) SA 148 (C) at 152 C-D
Tshisa v Premier of the Free State 2010 (2) SA 153 (FB) at 159 B-G
Ntshingila v Minister of Police 2012 (1) SA 392 (WCC) at 398-399
Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA) at 10F-11B and 15A-D
MEC for Education, KwaZulu–Natal v Shange 2012 (5) SA 313 (SCA) at 322C-G
The Court may grant condonation if it is satisfied that:
2.5.4

the debt has not been extinguished by prescription;
•
good cause exists for the failure by the creditor; and

the organ of state was not unreasonably prejudiced by the failure
(Section 3(4)).
Service of Notice
Section 4 sets out how a notice must be served on an organ of State:

by delivering it by hand; or

by sending it by certified mail; or
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
by sending it by electronic mail or

by transmitting it by facsimile.
Consult Section 4 for provisions regarding which functionaries the notice
must be served upon. Also note the provisions regarding notices served by
e-mail or facsimile.
2.5.5
Service of Process
Any process by which any legal proceedings are instituted against the
following organs of State must be served as follows: (Section 5)

Minister for State Security: Director-General: State Security Agency,
at the head office of the department;

Minister of Police: National Commissioner of the South African Police
Service, at the head office of the department AND on the Provincial
Commissioner of the province in which the cause of action arose;

Minister of Correctional Services: National Commissioner of
Correctional Services, at the head office of the department AND on
the Provincial Commissioner of the province in which the cause of
action arose;
Save for a possible need to state the obvious i.e. letters of demand do not
interrupt prescription, but as a matter of interest leaners are referred to the
recent case of Shoprite Checkers (Pty) Ltd v Mafate [2023] 2 All SA
332 (SCA) which demonstrates how sections 12 and 13 of the Prescription
Act 68 of 1969 are being interpreted and applied by the Courts.
An important aspect that Candidates must have regard to is the frustration
frequently experienced by Legal Practitioners in enforcing Court Orders
against an organ of State. Section 3 of the State Liability Act No. 20 of 1957
determines that execution steps may not be taken against an organ of state
by attachment of assets and further no government employee may be
arrested for contempt of Court for the non-compliance of a Court Order.
The North Gauteng High Court, Pretoria (formerly the Transvaal Provincial
Division (TPD)) declared this Section unconstitutional and the TPD’s
decision was confirmed by the Constitutional Court in the matter of
Dingaan Hendrik Nyathi v Member of Executive Council for the
Department of Health, Minister of Justice and Constitutional
Development 2008(5) SA 94 (CC) at 123F-G. The Court found that
Section 3 violated the principles of judicial authority and the principles that
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the public administration be accountable. The operation of the order was
however suspended to enable Parliament to pass legislation to regulate the
enforcement of Court Orders against the State.
Parliament has now passed legislation to regulate the enforcement of Court
orders against the State namely the State Liability Amendment Act No. 14
of 2011. This amendment has inter alia amended Section 3 of the Principle
Act such being the State Liability Act No. 20 of 1957.
In terms of the amendment no execution, attachment or like process shall
be issued for the satisfaction of a final order of Court, sounding in money
against the State, or the property of the State. The amount which is
required to satisfy any final Court order must be paid out of the National
Revenue Fund or a Provincial Revenue Fund.
Please also take note that a final order of Court against a Department for
the payment of money must be satisfied within thirty days of the date of
the order becoming final or within the time period agreed upon by the
judgment creditor and accounting officer of the Department concerned.
Section 3(3)(a)(i) and (ii) the judgment creditor may serve the Court order
in terms of the applicable Rules of Court on the executive authority, the
accounting officer of the Department concerned, the State Attorney or Legal
Practitioner of record appearing on behalf of the Department concerned and
the relevant treasury.
Mateis v Ngwathe Plaaslike Munisipaliteit 2003 (4) (SCA) at 367 C
– 368 B.
2.6
NATIONAL CREDIT ACT NO. 34 OF 2005
In terms of Section 129(1)(b) of the National Credit Act, the credit provider
may not commence any legal proceedings to enforce the credit agreement
before first providing notice to the consumer as contemplated in Section
129(1)(a) or 86(10), as the case may be, and meeting the further
requirements set out in Section 130. A Section 129(1)(a) demand constitutes
a legal notice in terms of Section 96(1) and must be delivered to the
consumer at his address as set out in the agreement or the most recent
address provided by the consumer to the credit provider in terms of Section
96(2). The credit provider must prove delivery of the notice and the
consumer carries the onus to rebut.
The following is of importance in terms of the Section 129 notice and must
be reflected therein. It may draw the default to the attention of the consumer
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in writing and advise the consumer to refer the agreement to a debt
counsellor, should the consumer regard him/herself to be unable to settle
his/her monthly debt payments timeously, or an ombudsman with
jurisdiction, an alternative dispute resolution agent or a Consumer Court to
lodge a dispute and have the matter resolved.
Legal action can also be taken if the consumer has responded to a notice of
default by rejecting the proposals made in it. Legal action cannot be taken if
the matter is still pending at the Tribunal or before a debt counsellor, an
ombudsman with jurisdiction, alternative dispute resolution agent or
Consumer Court.
Furthermore, legal proceedings may not commence before a written notice
in terms of Section 129(1)(a) has been properly served on the consumer,
and 10 days have lapsed since the notice was sent and the consumer has
been in default for a period of 20 days.
The Section 129 notice and the letter of demand may be a combined
document, and this procedure is advised. Section 130(1) provides that a credit
provider may approach the Court for an order to enforce a credit agreement
only if, at the time of such approach, the consumer is in default and has been
in default under the credit agreement for at least 20 business days and at least
10 business days have elapsed since the credit provider delivered a notice to
the consumer as contemplated in Section 86(10) or 129(1), as the case may
be; in the case of a notice contemplated in Section 129(1)(b), the consumer
has:

not responded to that notice; or

responded to the notice rejecting the credit provider’s proposals; and

in the case of an instalment sale agreement, secured loan or lease,
the consumer has not surrendered the relevant property to the credit
provider as contemplated is Section 127.
In addition to the aforesaid circumstances, and by virtue of the provisions of
Section 130(2) the credit provider may, in the case of an instalment sale
agreement, secured loan or lease, approach the Court for an order enforcing
the remaining obligations of a consumer under that agreement at any time
if: all relevant property has been sold pursuant to:
(i)
an attachment order; or
(ii)
surrender of property in terms of Section 127 the net proceeds of sale
were insufficient to discharge all the consumer’s financial obligations
under the agreement.
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In any proceedings in respect of a credit agreement to which the National
Credit Act No. 34 of 2005 applies, a Court will only determine the matter if it
is satisfied that:

in the case of proceedings to which Sections 127, 129 or 130 apply,
the procedures required by those Sections have been complied with;

there is no matter arising under that credit agreement and pending
before the Tribunal, that could result in an order affecting the issues
to be determined by the Court; and that the credit provider has not
approached the Court during the time that the matter was before a
debt counsellor, alternative dispute resolution agent, Consumer Court
or ombudsman with jurisdiction or despite the consumer having:
aa)
surrendered the property to the credit provider, and before that
property has been sold;
bb)
agreed to a proposal made in terms of Section 129(1)(a) and
acted in good faith in fulfilment of that agreement;
cc)
complied with an agreed plan made in terms of Section 129(1)
(a); or
dd)
brought the payments under the credit agreement up to date,
as contemplated in Section 129(1).
SELF-ASSESSMENT QUESTIONS: QUESTION 2
1.
Draft a letter of demand in respect of a claim for damages which complies with the
provisions of Section 56 and Rule 4, and which will place the debtor in mora, and
which will sustain a claim for interest. (10 marks)
2.
Prepare a Letter of Demand that complies with Section 129(1) of the National Credit
Act No. 34 of 2005, where the consumer is in arrears with his instalments on a
motor vehicle. (10 marks)
3.
Draft a letter of demand in terms of Section 19 of the Alienation of Land Act No. 68
of 1981 where the purchase price is payable in instalments. Thereafter answer the
following question: (15 marks)
(a)
Is a demand in terms of Section 19 necessary where the full purchase price
is already due, and the seller wishes to sue for specific performance?
(5 marks)
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3.
JURISDICTION
SECTION OUTCOMES:
After completing this section, you should be able to:
•
Define the concept of jurisdiction.
•
Explain how one would determine the jurisdiction of a specific Magistrate’s Court.
•
Distinguish between an attachment to found and an attachment to confirm
jurisdiction.
•
Explain what consent to jurisdiction entails and its consequences in terms of
Section 45 of Act No. 32 of 1944 (Magistrates’ Courts Act).
•
Explain concept of jurisdiction as it applies to companies.
•
Explain the term ‘splitting of claims’ in terms of Section 40 of Act No. 32 of 1944
(Magistrates’ Courts Act).
•
Apply the procedures provided by Section 38 and 39 of Act No. 32 of 1944
(Magistrates’ Courts Act).
•
Draft the wording that must appear in a summons wherein Section 38 or 39 of
Act No. 32 of 1944 (Magistrates’ Courts Act) is applied.
•
Lodge an objection to jurisdiction.
•
Explain what you understand by the phrase ‘the cause of action occurred wholly
within the district’.
RANGE STATEMENT:
Explain, draft, and perform all actions to determine whether the Magistrate’s Court has
jurisdiction to adjudicate a matter.
3.1
GENERAL
3.1.1
Jurisdiction means the power and competence of a Court to hear and
determine an issue between parties. The Department of Justice and
Constitutional Development has firmly resolved to make justice more
accessible to the public. As part of this initiative, the Divorce jurisdiction of
the High Court was extended to the Regional Magistrates’ Courts with civil
jurisdiction. The result was that, amongst other things, a Civil Regional
Court has a monetary jurisdictional limit which is set at R400 000 for civil
matters, and unlimited jurisdiction in divorce matters, subject to the
Magistrates’ Courts Act and Rules.
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Graaff-Reinet Municipality v Van Ryneveld’s Pass Irrigation Board 1950 (2) SA
420 (A) at 424.
Ewing McDonald & Co Ltd v M&M Products Co 1991 (1) SA252 (A) at 256G.
The Magistrate’s Court is a creature of statute and has no jurisdiction
beyond that granted by the statute creating it. It has no inherent jurisdiction
such as is possessed by the Superior Courts and can claim no authority
which cannot be found within the four corners of its constituent Act.
The jurisdiction of the Magistrate’s Court has been notably increased by the
introduction of the Regional Civil Courts. The Jurisdiction of Regional Courts
Amendment Act No. 31 of 2008 came into operation on 9 August 2010 and
amended Sections 1, 2, 9, 12, 28, 29 and 46 of the Magistrates’ Courts Act
No. 32 of 1944 so as to confer on Courts for Regional divisions jurisdiction
in respect of certain civil disputes. In terms of Government Notice 37477 of
27 March 2014, the jurisdiction of Courts for Regional divisions for purposes
of Section 29(1) of the Magistrates’ Courts Act was fixed as above R200 000
up to R400 000 and for the District Court up to R200 000.
Whilst the monetary jurisdiction, which was promulgated by the Minister
indicates that the monetary jurisdiction of the District Court is in the amount
of “up to and including R200 000 (two hundred thousand rand) and that of
the Regional Court is above R200 000 (two hundred thousand rand) and up
to and including R400 000 (four hundred thousand rand), recent case law
has determined that in fact the Regional Court’s monetary jurisdiction is
any amount up to and including R400 000 (four hundred thousand rand),
giving it concurrent jurisdiction with the District Court up to R200 000 (two
hundred thousand rand). (See Minister of Police v Regional Magistrate
Oudtshoorn and Others [2014] ZAWCHC 165).
Please ensure that you are in possession of the correct and applicable Rules
which now govern the Magistrates’ Court Practice. These are contained in
Regulation Gazette Number 9356 Vol 542 (No. 33487) of 23 August 2010.
The new Rules therein apply to the District and Regional Court. Insofar as
practice in the Regional Court is concerned one should have regard to the
Civil Practice Directives for the Regional Courts which took effect on 15
November 2010. These Directives were adopted to deal essentially with “the
daily functioning of the Courts”. They do not override the Rules of the Court
which have the force of law and may be adjusted from time to time by the
Regional Court President as and when circumstances so dictate.
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See an example of a Practice Directive at the back of this training guide.
These Rules have been amended on numerous occasions and continue to
be amended regularly. Candidates are required to keep themselves
updated.
Erasmus & Van Loggerenberg, Jones & Buckle, The Civil Practice of the Magistrates’
Courts in South Africa, 10th edition, Volume 1 – Chapter vi.
Erasmus & Van Loggerenberg, Jones & Buckle, The Civil Practice of the Magistrates’
Courts in South Africa, 10th edition, Volume 2 – Civil Practice Directives for the
Regional Courts in South Africa.
Failure to comply with jurisdiction can be fatal to the success of a litigation
matter. It can be grounds for appeal and review. Once the decision has
been taken to institute action in the Magistrate’s Court a proper
interpretation of the provisions of the Act is important.
3.1.2
The Court system in South Africa is somewhat like a triangle. At the base
of the triangle are the District Courts (of which there are very many).
Followed by the Regional Courts with civil jurisdiction (of which there are
fewer in number as District Courts fall under a Regional Court) followed by
the apex Court being the High Court. Before instituting your action, the
Legal Representative must determine which level of Court (i.e., the District
or Regional Court) and thereafter which specific Court within that level is
the appropriate Court. The following Sections help with this decision.
3.2
SECTION 29 – JURISDICTION IN RESPECT OF CAUSES OF ACTION –
THIS WILL DETERMINE WHICH LEVEL OF COURT TO ISSUE YOUR
SUMMONS FROM
1.
Subject to the provisions of this Act and the National Credit Act No. 34
of 2005, a Court, in respect of causes of action, shall have jurisdiction
in:
(a)
actions in which is claimed the delivery or transfer of any
property, movable or immovable, not exceeding in value the
amount determined by the Minister from time to time by notice
in the Gazette;
(b)
actions of ejectment against the occupier of any premises
or land within the district or regional division: Provided that,
where the right of occupation of any such premises or land is in
dispute between the parties, such right does not exceed the
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amount determined by the Minister from time to time in the
Gazette in clear value to the occupier;
(c)
actions for the determination of a right
notwithstanding the provisions of Section 46;
(d)
actions on or arising out of a liquid document (no restriction)
or a mortgage bond, where the claim does not exceed the
amount determined by the Minister from time to time by notice
in the Gazette;
(e)
actions on or arising out of any credit agreement as
defined in Section 1 of the National Credit Act No. 34 of 2005;
(f)
actions in terms of Section 16(1) of the Matrimonial Property
Act No. 88 of 1984, where the claim or value of the property in
dispute does not exceed the amount determined by the Minister
from time to time by notice in the Gazette;
(fA)
(g)
of
way,
actions, including an application for liquidation, in
terms of the Close Corporations Act No. 69 of 1984;
actions other than those already mentioned in this Section
where the claim or the value of the matter in dispute does not
exceed the amount determined by the Minister from time to
time by notice in the Gazette.
(1A) The Minister may determine different amounts contemplated in
Sections (1)(a), (b), (d), (f) and (g) in respect of Courts for Districts
and Courts for Regional Divisions.
(1B)
(a)
A Court for a Regional Division, in respect of causes of action,
shall, subject to Section 28(1A), have jurisdiction to hear and
determine suits relating to the nullity of a marriage or a civil
union and relating to divorce between persons and to decide
upon any question arising therefrom, and to hear any matter
and grant any order provided for in terms of the Recognition of
Customary Marriages Act No. 120 of 1998.
(b)
A Court for a Regional Division, hearing a matter referred to in
paragraph (a) shall have the same jurisdiction as any High Court
to such a matter.
(c)
The Presiding Officer of a Court for a Regional Division hearing
a matter referred to in paragraph (a) may, in his or her
discretion, summon to his or her assistance two persons to sit
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and act as assessors in an advisory capacity on questions of
fact.
(d)
Any person who has been appointed as a family Advocate or family
Counsellor under the Mediation in Certain Divorces Act No. 24 of
1987 shall be deemed to have been appointed in respect of any
Court for a Regional Division having jurisdiction in the area for
which he or she has been so appointed.
(1C) Jurisdiction conferred on a Court for a Regional Division in terms of
this Section shall be subject to a notice having been issued under
Section 2(1)(iA) in respect of the place for the holding, and the extent
of the civil adjudication, of such Court.
2.
3.2.1
In sub-section (1) “action” includes a claim in reconvention.
Section 29 (1) and The National Credit Act
It is important to note that the National Credit Act No. 34 of 2005 came into
full operation on 1 June 2007. The Act, inter alia, established a National
Credit Tribunal whose decisions, judgments and orders are binding on a
Magistrate’s Court. The Act provides for debt enforcement by means of
repossession or judgment and for compensation for a credit provider in
respect of costs of repossession of property in excess of those permitted by
the Act.
The Act also provides that a Magistrate’s Court may suspend a reckless credit
agreement, declare and relieve over-indebtedness and rearrange a
consumer’s obligations. In respect of matters falling under the National Credit
Act No. 34 of 2005, Magistrates’ Courts (being District Courts) have unlimited
monetary jurisdiction by virtue of the provisions of sub-section and Section
172(2) of the National Credit Act No. 34 of 2005.
3.2.2
Costs
In the case of Nedbank Ltd v Mateman and Another, Nedbank Ltd v
Stringer and Another (36472/2007, 37792/2007) [2007] ZAGPHC
295; 2008 (4) SA 276 (T); [2008] 1 All SA 593 (T) (7 December 2007)
the full bench ruled that a High Court has concurrent jurisdiction with a
Magistrate’s Court but that a Plaintiff ran the risk of only being awarded costs
on a Magistrate’s Court scale if he instituted action in a High Court for a claim
which traditionally falls within the jurisdiction of a Magistrate’s Court.
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3.2.3
Section 29 (1)(b) – Where the Right of Occupation is in dispute
In order to oust the Magistrate’s jurisdiction under this sub-section the
Defendant must show:
•
that there is a bona fide dispute as to the right of occupation; and
•
that the right of occupation is worth less than R200 000 and in the
case of a Regional Court R400 000 to the occupier.
Van der Westhuizen v Petersen 1922 TPD 412
Note: the following principles from decided cases to determine the value of
the right of occupation:
•
“Clear value to the occupier” means value over and above the rent
payable.
Jordaan v De Beer Scheepers en ‘n Ander 1975 (3) SA 845 (T) at 848 C-D
•
The clear value of the right to the occupier, not necessarily the same
thing as the value to the Defendant, for they need not be the same
person.
Langham Court (Pty) Ltd v Mavromaty 1954 (3) SA 742 (T) at 746 C-E
•
The value to the occupier of a right of occupation of immovable
property is the economic advantage which he enjoys from the
exercise of that right;
•
Matters personal to the occupier must be taken into account,
although the approach in assessing the value is an objective one;
•
The rent is the measure of value to the landlord, not necessarily to
the occupier;
•
Where premises are occupied for business purposes the value to the
occupier is either:
o
the amount by which the cost of hiring other premises exceeds
the rent presently payable in respect of the premises in
dispute; or
o
the amount of profit which he has a reasonable expectation of
making on the disputed premises.
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3.2.4
Evictions in Terms of The Prevention of Illegal Eviction From And
Unlawful Occupation of Land Act No. 19 of 1998 (“PIE”)
This Act which came into operation on 5 June 1998, provides for procedures
for eviction of unlawful occupiers of land.
Section 4(1) of this Act provides that, notwithstanding anything to the
contrary contained in any law or the common law, the provisions of that
Section apply to proceedings by an owner or person in charge of land for
eviction of an unlawful occupier. It is submitted that ‘proceedings’ in the
context of this Act includes action as well as application proceedings. To this
extent it therefore has a wider meaning than the word ‘action’ in Section
29(1)(b).
See McNeil v Aspeling Western Cape Division Case number
A85/2018 Judgment delivered on 28 June 2018 for procedure for PIE
Application. De Rebus summary on case as per Annexure “D”.
The procedure set out for PIE applications in this case is only
applicable to the Western Cape and to no other jurisdictions due to
the principle of stare decisis. It may however be argued and left to
the discretion of the Court whether to accept it or not, regardless of
stare decisis in other jurisdictions as mentioned afore.
Other leading cases on procedure set out for PIE applications being:
Cape Killarney Property Investments (Pty) Ltd v Mahamba and
Others 2001 (4) SA 1222 (SCA) – order not be obtained on an ex parte
basis.
Occupiers of OMPAD Farm v Green Horizon Farm (Pty) Ltd and Other
[2014] ZAKZPHC 29.
Also see the case of Grobler v Phillips and Others [2022] ZACC 32
dealing with an eviction in terms of elderly and disabled persons. This court
case is included at the end of Annexure “F” of this guide.
See also Annexure “E” and “F” for examples and documents pertaining
to evictions.
3.2.5
The Following Examples Illustrate What Material Facts Form Part of
The Cause of Action and Must Be Proved:
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3.2.5.1 Contract of Sale
The conclusion of the contract, the delivery of the goods and the
payment and breach must have taken place within the same
district. Plaintiff has to prove the conclusion of the agreement, and
therefore both the offer and the acceptance of the offer must be
done in the same district otherwise the whole cause of the action
did not arise within the district. The Plaintiff will then have to make
use of Section 28(1)(a).
Buys v Roodt (Nou Otto) 2000 (1) SA 535 (O)
Malherbe v Britstown Municipality 1949 (1) SA 281 (C)
The ordinary rule is that a contract is concluded at the moment
when and the place where the offeror hears of the offeree’s
acceptance unless and until a sufficient factual basis for reaching
the conclusion that a contrary intention should prevail is
established.
Driftwood Properties v McLean 1971 (3) SA 591 (A)
If a contract is concluded by letter or telegram, the whole cause of
action arises, in the absence of the expression of a different
intention by the offeror, at the place where the offer is received,
and the acceptance is dispatched.
Cape Explosives Works Ltd v SA Oil and Fat Industries Ltd 1921 CPD 244
Kergeulen Sealing and Whaling Co Ltd v Commissioner of Inland Revenue
1939 AD 487 at 505
3.2.5.2 Cheques
A cheque is drawn on a specified branch of a bank, presented for
payment at that branch and dishonoured there. Therefore, the
Court of the place where the bank on which the cheque is drawn
is situated and where the cheque is presented for payment will
always have jurisdiction. Although cheques cannot be issued as
from December 2020, civil and criminal litigation may still be
around for a while on cheques, specifically pertaining to the
prescription period in terms of Negotiable Instruments (6 years).
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3.2.5.3 Motor vehicle collision
All the elements in a motor vehicle collision case always occur
within the jurisdiction of the Court within which district the collision
took place.
If you rely upon the jurisdiction of a particular Court on the basis
that the cause of action arose wholly within the jurisdiction of that
particular Court, there must be an allegation in the summons that
the cause of action arose wholly within that district as required by
Rule 5(6)(a) AND you must set out (plead) the particulars in
support of such averment.
3.3
SECTION 28 – JURISDICTION IN RESPECT OF PERSONS – THIS WILL
DETERMINE THE QUESTION AS TO WHICH SPECIFIC COURT TO ISSUE
YOUR SUMMONS FROM
1.
Saving any other jurisdiction assigned to a Court by this Act or by any
other law, the persons in respect of whom the Court shall, subject to
sub-section (1A), have jurisdiction shall be the following and no other:
(a)
any person, who resides, carries on business or is employed
within the district or regional division;
(b)
any partnership which has business premises situated or any
member whereof resides within the district or regional division;
(c)
any person whatever, in respect of any proceedings incidental
to any action or proceeding instituted in the Court by such a
person himself or herself;
(d)
any person, whether or not he or she resides, carries on
business or is employed within the district, or regional division,
if the cause of action arose wholly within that district or regional
division;
(e)
any party to interpleader proceedings, if:
(i)
the execution creditor and every claimant to the
subject-matter of the proceedings reside, carry on
business, or are employed within the district or regional
division; or
(ii)
the subject-matter of the proceedings has been
attached by process of the Court; or
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1A)
2.
(iii)
such proceedings are taken under Section 69(2) and
the person therein referred to as the “third party” resides,
carries on business, or is employed within its district or
regional division; or
(iv)
all the parties consent to the jurisdiction of the Court;
(f)
any Defendant (whether in convention or reconvention) who
appears and takes no objection to the jurisdiction of the Court;
(g)
any person who owns immovable property within the district or
regional division in actions in respect of such property or in respect
of mortgage bonds thereon.
For purposes of Section 29(1B) a Court for a Regional Division shall
have jurisdiction if the parties are, or if either of the parties is:
(i)
domiciled in the area of jurisdiction of the Court on the
date on which proceedings are instituted; or
(ii)
ordinarily resident in the area of jurisdiction of the Court
on the said date and has or have been ordinarily resident
in the Republic for a period of not less than one year
immediately prior to that date.
“Person” and “Defendant” in this Section include the State.
Note: The Regional Court has jurisdiction over either party who has lived in
the jurisdiction of the Court for 12 months prior to the institution of the
divorce or is domiciled within the Court’s jurisdiction (Section 28(1A)).
3.3.1
Section 28(1)(a) – Meaning of “Resides”
In determining whether a person resides in the Court’s area of jurisdiction,
the following principles apply:

The question to be considered is not one of domicile but of
residence.

A Defendant may have his domicile at one place and his residence
for the time being at another place.

A person can have more than one residence and should in that case
be sued before the Magistrate of the place where he is residing at the
time when the summons is served.

A person cannot be said to reside at a place which he is temporarily
visiting.
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
The question whether a person resides at a particular place at any
given time depends upon all the circumstances of the case read in
the light of the general principles referred to above.
Ex parte Minister of Native Affairs 1941 AD 53 at 58
Tick v Broude 1973 (1) SA 462 (T);
Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A);
Barens v Lottering 2000 (3) SA 305 (C) at 309F–H.
For a detailed discussion of the concept of residence, see JONES & BUCKLE 10th
edition, Volume I at 92–95.
Cowie v Pretoria Municipality 1911 TPD 628
With regard to the question as to where the State should be sued, it has
been held that:
‘It will be observed that Section 28(1) contains a description of persons in
respect of whom a Magistrate’s Court has jurisdiction, and that Section
28(2) then proceeds to say that the words “person” and “Defendant”, where
they occur in Section 28(1), “include the State”. From this it would seem to
appear that the Legislature intended that the State should, whenever it is
necessary to determine in which Magistrates’ Court it may be sued in any
particular case, be dealt with in the same way as a natural person. A
Magistrate’s Court would therefore be competent to hear an action against
the State if two grounds of jurisdiction exist, viz (a) it would have to have
jurisdiction by virtue of one or more of the provisions of Section 28(1), and
(b) it would have to have jurisdiction in respect of the cause of action as
provided for in Section 29. Jurisdiction in respect of subject-matter alone
(as regulated in Section 29) is therefore not sufficient to confer jurisdiction
on a Magistrate’s Court.’
Minister of Law and Order v Patterson 1984 (2) SA 739 (A) at 752A–C.
The ‘residence’ or ‘place of business’ of the State is Pretoria, the seat of the
government. In terms of Section 23 of the 1961 Constitution, it was
provided that ‘the seat of Government of the Republic’ was Pretoria. The
present Constitution does not have a similar provision. However, Pretoria
remains the de facto seat of government of the Republic. On the reasoning
in Minister of Law and Order v Patterson, every government or statutory
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body or quasi-statutory body may be said to ‘reside’ at the place where its
headquarters or principal place of administration is located.
When an action is brought against a State Department, the pleading should
be served on the Minister of that Department.
Jasat v Interim National Medical and Dental Council 1999 (1) SA 156 (N)
at 160H–I.
Please be acutely aware of Section 5(4) of the Institution of Legal Proceedings
Against Certain Organs of State Act No. 40 of 2002 that provides that any process
by which legal proceedings contemplated in Section 3(1) of the Act No. 4 of 2002
are instituted must be issued by the Court in whose area of jurisdiction the cause
of action arose, unless the organ of state, in writing, consents to the institution of
legal proceedings in a different jurisdiction (this is in terms of an amendment
brought about in terms of the Judicial Matters Amendments Act, No. 8 of 2017).
3.3.2
Section 28 (1)(A) – Meaning of “Carries on Business”
‘There is a mass of authority … which indicates that the phrase “carries on
business” is of an elastic one nature … Indeed, the word “business” itself
has been rather aptly described as an “etymological chameleon: it suits its
meaning to the context in which it is found.”
In addition, it would also appear to be reasonably clear that considerations
of convenience have resulted in the Courts giving to that phrase a
somewhat restricted meaning when used in a jurisdictional context as
opposed to a more liberal interpretation when used, for example, in a
contract for the restraint of trade …
‘… for jurisdictional purposes, the “place of business” of a company must be
restricted to the place where its central management is to be found as well
as where its registered office is located.’
The phrase must be construed by reference to the objects and intention of
the Act. These objects are to provide not only for the assistance of the
Plaintiff in finding the Defendant for the purpose of serving summons, but
also for the convenience of the Defendant. The phrase implies the idea of
doing business in a particular place from day to day, connotes regularity. It
connotes carrying on one’s own business and not that of an employer.
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Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482
(A) at 496 -9;
Leibowitz t/a Lee Finance v Mhlama 2006 (6) SA 180 (SCA) at 183H and 184B
During v Kerr 1946 TPD 412 at 418
For jurisdictional purposes, a company and close corporation (taking into
regard the new Companies Act No. 71 of 2008) has two possible places
where it “carries on business”: its registered office or its principal place of
business. The latter, as indicated above, is restricted to the place where its
central management and control is to be found. Where a company or close
corporation has its registered office and principal place of business at a
place outside the Court’s area of jurisdiction, it is not “resident” within the
Court’s area of jurisdiction merely because it carries on some of its business
within the area. A company or close corporation does not, therefore,
“reside” at every place where it has a branch office.
Kruger NO v Boland Bank Bpk 1991 (4) SA 107 (T)
Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country Estate
Pty Ltd 2013 (1) SA 191 (WCC)
3.3.3
Section 28(1)(d) – Meaning of “The Cause of Action Arose Wholly
Within That District or Regional Division”
The Court for the district within which the whole cause of action arose does
have jurisdiction, irrespective of where the Defendant resides, carries on
business, or is employed.
The following definition of the phrase “the cause of action arose wholly
within the district” was accepted by the Appellate Division in Mckenzie v
Farmer’s Co-operative Meat Industries Ltd 1922 AD 16 at 23.
“Every fact which it would be necessary for the Plaintiff to prove, if
traversed, in order to support his right to the judgment of the court. It does
not comprise every piece of evidence which is necessary to prove each fact,
but every fact which is necessary to be proved.”
In Evins v Shield Insurance CO Ltd 1980(2) SA 814 (A) at 838 F-G
the following was quoted:
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“The proper legal meaning of the expression “cause of action” is the entire
set of facts which gives rise to an enforceable claim and includes every fact
which is material to be proved to entitle a Plaintiff to succeed in his claim.
It includes all that a Plaintiff must set out in his declaration in order to
disclose a cause of action. Such cause of action does not “arise” or “accrue”
until the occurrence of the last of such facts and consequently the last of
such facts is sometimes loosely spoken of as the cause of action.”
The test for the jurisdiction of a particular Court in respect of “cause of action”
is the same as the test whether such allegations should be included in the
particulars of claim. Only the material facts should be stated in the particulars
of claim. If all those material facts occurred within the same district the Court
for that district has jurisdiction to hear the matter.
When drafting pleadings, the recent amendments to the Rules require certain
averments. If the Plaintiff relies on jurisdiction in terms of Section 28(1)(d) of
the Magistrates’ Courts Act No. 32 of 1944 that the whole cause of action arose
within the district or region, this should be stated, and the particulars in
support of such averment must be set out (see Rule 5(6)(a)).
If the Plaintiff relies on jurisdiction in terms of Section 28(1)(g) of the Act, the
summons must contain an averment that the property is situated within the
district or region of the Court.
3.4
SECTION 30 – INTERDICTS
(1)
Subject to the limits of jurisdiction prescribed by this Act, the Court
may grant against persons and things orders for attachments,
interdicts and mandament van spolie.
(2)
Confirmation by the Court of any such attachment or interdict in the
judgment in the action shall operate as an extension of the attachment
or interdict until execution in the country. However, a Creditor will, in
appropriate circumstances, still be able to attach property in order to
found or confirm jurisdiction, if the debtor has fled the country. The
Superior Courts Act 10 of 2013 has provision for the same type of relief
– this judgment was a pronouncement on the Magistrates’ Courts Act,
but it is expected that the High Court provisions will be regarded as
unconstitutional too.
The power to grant any of the orders contained in Section 30 is subject to
the limits of jurisdiction prescribed in the Magistrates’ Courts Act No. 32 of
1944. The limits of jurisdiction are contained in Sections 28 and 29 of the
Act. No order can be made in terms of Section 30 unless the Court has
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jurisdiction in terms of Sections 28 and 29 or has acquired it by means of an
attachment under Section 30bis.
The powers given to a Magistrate’s Court to grant orders for specific
performance of contractual obligations by way of interdicts under this Section
are not qualified by Section 46(2)(c) which provides that a Magistrate’s Court
shall have no jurisdiction in matters in which is sought performance without
an alternative of payment of damages. Section 46 is a prohibition Section,
expressly prohibiting a Magistrate’s Court from hearing claims and granting
orders in those matters set out in this Section. Therefore, even if the parties
agree that a Magistrate can hear a matter which is prohibited in this Section,
the Magistrate is statutorily prevented from exercising jurisdiction in those
matters and no amount of agreement by the parties can confer such
jurisdiction.
Section 30 does not confer jurisdiction upon a Magistrate’s Court to grant
orders for specific performance of contractual obligations by way of
interdicts. The Magistrate’s Court has the power to grant prohibitory
interdicts and mandatory interdicts, as long as the latter does not amount to
specific performance of a contract. A Magistrate’s power to grant a
mandament van spolie is subject to the limits of jurisdiction as discussed
above.
3.4.1
Attachment of things
The Court does not lightly interfere with a person’s right to the use of his
own property. Good cause must, therefore, be shown for the grant of an
attachment order before judgment. Application for the attachment of a
person’s property must be made in terms of Rule 55 and be accompanied
by an affidavit stating the facts upon which the application is made, and the
nature of the order applied for.
The Court will make such an order once it is satisfied that –
3.4.2
•
The Defendant is about to leave the jurisdiction; or
•
Is endeavouring to dispose of the property in order to defeat
creditors; and
•
Confirmation by the Court of an interim attachment of an action
operates, in terms of Section 30(2).
Interdicts
An interdict is a judicial process whereby a person is ordered to refrain from
doing a particular act or is ordered to perform a particular act. It is a remedy
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of extraordinary nature and is allowed in cases where a person requires
protection against an unlawful interference or threatened interference with
his right. An interdict is not a remedy for past invasion of rights but is
concerned with present or future infringements.
There are three requisites for the grant of a final interdict, all of which must
be present:
•
A clear right on the part of the Applicant;
•
An injury actually committed or reasonably apprehended;
•
The absence of any other satisfactory remedy available to the
Applicant.
Chevron South Africa (Pty) Ltd v Awaiz at 110 Drakensburg CC [2008] 1 All
SA 557 (T) at 573h – 574a
3.4.3
Mandament Van Spolie
In order to obtain a spoliation order two allegations must be made and
proved:
•
That the Applicant was in peaceful and undisturbed possession of the
property; and
•
That the Respondent wrongfully deprived him of that possession
without consent or due process.
The Applicant makes an ex parte application to the Court and obtains a
Rule Nisi returnable on some future date calling upon the Respondent to
show cause why possession should not be restored ante omnia.
The application for a mandament van spolie may be defeated by the
Respondent by denying spoliation, alleging counter spoliation or that
restoration of the spoliated property is not possible. The underlying
rationale is that no one is entitled to take the law into his own hands.
Examples:
•
The right of a landowner to water supplied by a municipality,
•
If a body corporate deactivates a disc granting a homeowner access
via a boom to his home in a complex because of a levy dispute.
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Rule 56(2) provides that every application referred to in terms of Rule 56(1)
shall be accompanied by an affidavit stating the facts upon which the
application is made, and the nature of the order sought.
City of Cape Town v Strumpher 2012 (4) SA 207 (SCA)
Fisher v Body Corporate Misty Bay 2012 (4) SA 215 (GNP)
Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA)
3.5
SECTION 30BIS – ATTACHMENT
JURISDICTION (PEREGRINUS)
TO
FOUND
OR
CONFIRM
The Court may order attachment of property to be found or confirm
jurisdiction against any person who does not reside in the Republic, in respect
of an action within its jurisdiction, where the claim or the value of the matter
in dispute amounts to at least R2 500.00, exclusive of any costs in respect
of the recovery thereof and may grant an order allowing service of any
process in such action to be effected in such manner as may be stated in
such order.
An Applicant for an attachment must show that:

He has a prima facie cause of action against the Defendant,

The Defendant is a peregrinus,

The property in which the Defendant has a beneficial interest is within
the jurisdiction of the Court.
The purpose of an attachment of property:

to found jurisdiction:
o
i.e., create jurisdiction where no other ground of jurisdiction
exists at all, and
o
to provide an asset in respect of which execution can be levied
in the event of a judgment being granted in favour of the
Plaintiff,
o
to confirm jurisdiction,
o
to strengthen a jurisdiction which already exists,
o
the object is also to furnish an asset on which execution can be
levied in total or partial satisfaction of the Plaintiff’s judgment.
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ACL Group (Pty) Ltd v Qick Televentures FZE 2013 (1) SA 508 (FB) at 512D
3.6
SECTION 45 – JURISDICTION BY CONSENT OF PARTIES
1.
Subject to the provisions of Section 46, the parties may consent in
writing to the jurisdiction of either the Court for the district or the Court
for the regional division to determine any action or proceedings
otherwise beyond its jurisdiction in terms of Section 29(1).
2.
Any provision in a contract existing at the commencement of the Act
or thereafter entered into, whereby a person undertakes that, when
proceedings have been or are about to be instituted, he will give such
consent to jurisdiction as is contemplated in the proviso to Section
(1), shall be null and void.
3.
Any consent given in proceedings instituted in terms of Sections 57,
58, 65 or 65J by a Defendant or a judgment debtor to the jurisdiction
of a Court which does not have jurisdiction over that Defendant or
judgment debtor in terms of Section 28, is of no force and effect.
This Section is linked to Section 46 and 29.

If the parties consent in writing to the jurisdiction, the Court has
jurisdiction to determine an action or proceedings otherwise beyond
the jurisdiction, due to the monetary limit;

Only a Court having jurisdiction under Section 28 will have jurisdiction,
The following consent in proceedings in a Magistrate’s Court
will be valid:
“The parties agree that a Magistrate’s Court which has jurisdiction over
the person of the Defendant shall have jurisdiction to entertain any
action that may arise out of this contract regardless of the quantum of
the claim.” (Keep in mind Section 29(1)(a) and Section 46(2)(c)(iii)).
The following consent in proceedings in a Magistrate’s Court will
be null and void:
“The parties agree that in the event of there being a dispute the parties
consent to the jurisdiction of the Johannesburg Magistrate’s Court.”;

Any provision in a contract whereby a person undertakes that, when
proceedings have been instituted, she/he will give consent to
jurisdiction of a Court which would otherwise not have jurisdiction over
his person, is null and void;
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
The provisions of Section 45 are subject to those of Section 46; that
is, consent cannot be given to the jurisdiction in respect of matters
expressly excluded by Section 46;

The consent must be in writing and must specifically be pleaded.
3.6.1
3.7
Section 35 – Transfer from one Court to another

Any action or proceeding may be transferred from one Court to
another with the consent of all the parties involved or upon
application to Court in cases where it will be more convenient to hear
the matter elsewhere for the trial of such action or proceeding.

‘With the consent of all the parties’ – ‘Parties’ here must be given the
ordinary meaning of the word, not to include the Attorney or
Advocate of a Plaintiff or Defendant.
SECTION 46 – MATTERS BEYOND THE JURISDICTION
The Magistrate’s Court shall have no jurisdiction in the following matters:
3.7.1

an interpretation of a will;

in which the status of a person in respect of mental capacity is sought
to be affected;

in which specific performance without an alternative of payment of
damages is sought;

in which is sought a decree of perpetual silence.
Section 46 (2) (C) – “… Specific Performance without an alternative
of payment of damages”.
The words “specific performance” must be given their well-known legal
meaning of a specific performance of a contract.
Maisel v Camberleigh Court (Pty) Ltd 1953 (4) SA 371 (C)
C Olivier v Stoop 1978 (1) SA 196 (T)
Tuckers Land and Development Corporation (Edms) Bpk v Van Zyl 1977 (3) SA
1041 (T)
Although claims for money due ex contractu are claims for specific
performance, such claims are not regarded as claims for specific
performance for the purposes of this Section.
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In Tuckers Land and Development Corporation (Edms) Bpk v Van Zyl
1977 (3) SA 1041 (T) at 1050A Van Reenen J came to the conclusion
that orders sounding in money, regardless of the cause of action, were not,
for the purposes of this section, orders for specific performance. He pointed
out that “alhoewel daar heelwat regterlike verskil was oor die landdroshof
se bevoegdheid om daadwerklike vervulling te gelas, daar nooit enige twyfel
bestaan het oor die bevoegdheid om eise wat in munt geklink het, hetsy as
skuld, skadevergoeding of andersins, af te dwing nie.”
3.7.2
Section 46(2) (C) (I) – ‘The rendering of an account’
A person may now sue in the Magistrate’s Court for:

The rendering of an account;

Debatement thereof;

Payment of such an account, not exceeding R200 000 in a District
Court and R400 000 in a Regional Division.
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MAGISTRATES’ COURTS
EXCEPTIONS TO THE R400 000 GENERAL RULE
Even if over R400 000, certain
claims may be brought in the
Magistrates’ Courts if there is:
Even if equal to or under
R400 000 certain claims must
be brought in the High Court
in terms of:
Consent Section 45
i.e., the parties consent in
writing to the claim being
brought in the Magistrate’s Court
Section 46
OR
Abandonment Section 38
i.e., the Plaintiff abandons that
portion of his claim in excess of
the R400 000 limit
Status Claims
i.e., validity or interpretation
of a will; mental capacity;
decree of perpetual silence
OR
AND
Deduction of an Admitted Debt
Section 39 i.e., the Plaintiff
deducts from his claim the
amount of a debt which he owes
to the Defendant, thereby
reducing his claim to under the
R400 000 limit
Specific Performance Claims i.e.,
claims for specific performance
without the alternative of
damages, although there are
certain exceptions to this general
rule – see detailed diagram
dealing with Section 46
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MAGISTRATES’ COURTS
SECTION 46
Certain matters are, by their nature, beyond
the jurisdiction of the Magistrates’ Courts
Status Claims
Divorce Section 46(1)
i.e., claims for dissolution of
a marriage or separation of
goods of married persons but
note that the Regional Court
may hear such matters
AND
Wills Section 46(2)(a)
i.e., claims involving the validity or
interpretation of a will
AND
Mental Capacity Section 46(2)(b)
i.e., matters in which the status
of a person in respect of mental
capacity will be affected
AND
Perpetual Silence Section
46(2)(d)
i.e., matters in which a decree of
perpetual silence is sought
All must be heard in the High
Court
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AND
“Specific Performance” Claims
Specific performance without
the alternative of payment of
damages
But exceptions …
Claim for rendering of
account if account is equal to
or under R200 000
OR
Claim is for delivery or
transfer of property valued at
or under R200 000
OR
Claim is for delivery or transfer
of property valued over
R200 000 and parties consent
to jurisdiction of Magistrate’s
Court
THEN
Such a claim may be brought
in the Magistrate’s Court,
despite the fact that it is a
claim for specific performance
without the alternative of
payment of damages
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3.8
OTHER RELATED PROVISIONS
The Act contains a number of other provisions which may be applied to
overcome jurisdictional problems.
3.8.1
Section 37 – Incidental Jurisdiction
In actions wherein the sum claimed, being within the jurisdiction, is the
balance of an account, the Court may enquire into and take evidence, if
necessary, upon the whole account, even though such account contains
items and transactions exceeding the amount of jurisdiction.
3.8.2
•
The test is the amount claimed;
•
If that is within the jurisdiction, the fact that the Court may have to
investigate complicated accounts between the parties will not oust
the jurisdiction;
•
It does not matter whether the balance is arrived at by setting off
amounts admitted, cash payments, credits, or striking a balance after
debate.
Section 38 – Abandonment of part of claim
•
In order to bring a claim within the jurisdiction, a Plaintiff may
abandon part of such claim in his summons (it should be noted that
with the increased jurisdiction of the Regional Court, abandonment
occurs very seldom in the District Court).
•
A claim that is abandoned, shall be finally extinguished: Provided
that, if the claim be upheld in part only, the abandonment shall be
deemed first to take effect upon that part of the claim which is not
upheld.
•
Rule 5(6)(c) requires the summons to show details of any
abandonment.
•
Where abandonment is made after the issue of summons, an
appropriate amendment must be filed.
If a Plaintiff abandons part of his claim, that part becomes finally
extinguished and cannot be claimed at a later stage (Refer to the
commentary in Erasmus & Van Loggerenberg at p261-262, Jones & Buckle,
The Civil Practice of the Magistrates’ Courts in South Africa Vol 1 10th ed
for Illustrations).
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Illustration:
The Plaintiff claims
R465 000
in his summons
He abandons
R65 000
in terms of Section 38
Defendant’s counterclaim is
R365 000
The Plaintiff succeeds in his claim and the Defendant succeeds in his
counterclaim. The Plaintiff recovers R35 000 on balance.
If the Plaintiff in his summons admits the Defendant’s counterclaim for
R365 000 and deducts it from his claim for R465 000 in terms of Section
39, instead of abandoning R65 000, he recovers R100 000.
The same result can be achieved in the case where the Plaintiff anticipates
a counterclaim when he issues summons for the full amount of R465 000
and the Defendant pleads to the jurisdiction and files a counterclaim for
R365 000, the Plaintiff can deduct the amount of the counterclaim in terms
of Section 39.
The Plaintiff may abandon a portion of his claim in terms of Section 38 and
deduct in terms of Section 39 a further portion.
3.8.3
Section 39 – Deduction of admitted debt
The Plaintiff may deduct from his claim any amount which he/she admits is
owing to the Defendant, provided that the deduction causes the claim to fall
within the jurisdictional limits. This Section applies whether the Plaintiff’s
claim is liquidated or unliquidated.
•
Section 39 has to be distinguished from set-off.
•
Set-off comes into operation when two parties are mutually indebted
to each other and both debts are liquidated and fully due.
•
The one debt extinguishes the other as if payment has been made.
•
Only a debt that is liquidated can be set-off.
•
If a Defendant wishes to rely on an unliquidated debt, the Defendant
will have to file a claim in reconvention and pray for postponement
of judgment on the Plaintiff’s claim pending the judgment on the
claim in reconvention.
Illustration:
Thus, if the Plaintiff’s claim is for R230 000 and the Defendant has
demanded R150 000 for goods sold, the Plaintiff can deduct R150 000 in
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respect thereof. If the Plaintiff proves his claim for R230 000, the admitted
claim of R150 000,00 will be deducted and the Plaintiff will be awarded
R80 000,00.
3.8.4
Section 40 – (“Artificial”) Splitting of claims disallowed
A substantive claim exceeding the jurisdiction may not be split with the
object of recovering the same in more than one action if the parties to all
such actions would be the same and the point at issue in all such actions
would also be the same.
3.8.5
‘Substantive Claim’
This means a claim arising out of a single cause of action.
There is no splitting of claims where claims are based on different causes
of action.
This claim is for capital only and does not include interest and cost.
3.8.6
3.8.7
Section 43 – Jurisdiction Cumulative
•
If two or more claims, each based upon a different cause of action,
are combined in one summons, the Court shall have the same
jurisdiction to decide each such claim as it would have had if each
claim had formed the sole subject of a separate action.
•
If a claim for the confirmation of an interdict or arrest granted
pendente lite be joined in the same summons with a claim for relief
of any other character, the Court shall have the same jurisdiction to
decide each such claim as it would have had if each claim had formed
the sole subject of a separate action, even though all the claims arise
from the same cause of action.
Concurrent Jurisdiction
Except if otherwise provided by statute, the High Court retains concurrent
jurisdiction with the Magistrates’ Courts. A Plaintiff is dominus litis and
may choose his remedy and, consequently, Court. A High Court should hear
a matter properly before it and within its jurisdiction. If a Magistrate’s Court
also has jurisdiction in the matter and it could be dealt with in that Court at
less expense to the litigants, a High Court can discourage the approach to
it by an appropriate order regarding costs.
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3.8.8
Continuation of Jurisdiction
The jurisdiction established at the service of an action continues to exist to
the end of the action even though the ground upon which the jurisdiction
was established ceases to exist. Thus, if an incola Defendant becomes a
peregrinus or if the Defendant moves after the action had been instituted,
that does not affect the Court’s jurisdiction to entertain the pending action
and no attachment becomes necessary.
3.9
OBJECTION TO JURISDICTION
Should a Defendant wish to object to the jurisdiction of the Court, he/she
may do so by raising a special plea that the Court has no jurisdiction. The
facts on which the Defendant relies should be stated briefly in the special
plea.
The onus is upon the Plaintiff to prove the facts that he avers in the
summons. However, if the Defendant raises lack of jurisdiction as a
substantive plea the onus is upon the Defendant to prove the facts upon
which the plea is based.
3.10 EXCEPTIONS TO NORMAL RULES OF JURISDICTION
3.10.1 Section 65A – Proceedings
In terms of Section 65A the only Court which has jurisdiction over the debtor
is the Court within the area in which the Defendant resides, is employed, or
carries on business. If the debtor is a juristic person the Court where the
main place of business or the registered office is situated, has jurisdiction.
3.10.2 National Credit Act No. 34 of 2005
There are aspects relating to jurisdiction and with reference to the National
Credit Act which are important to note: In terms of Section 29(1)(e) of the
Magistrates’ Courts Act, District Courts have unlimited jurisdiction as there
is no provision for the Minister to determine a limit. However, in terms of
Section 29(1A) the Minister may determine different amounts “contemplated
in sub-section (1A) .... (g) for District Courts and for regional divisions”.
The Minister has determined that the Regional Courts’ maximum limit is
R400 000. This seems to result in the anomaly that the District Courts have
higher jurisdiction in respect of credit agreements than the Regional
Divisions.
Pertaining to the National Credit Act Debt Counselling matters, it has been
held that the debtor as Consumer or First Respondent cannot consent to
jurisdiction alone. The consent of all the creditors is needed.
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SELF-ASSESSMENT QUESTIONS: QUESTION 3
1.
Draft a consent to jurisdiction in terms of Section 45 of Act No. 32 of 1944 as
amended, which is a clause in a written agreement of sale in respect of immovable
property. (4 marks)
2.
Draft a valid consent to jurisdiction which will confer jurisdiction on a specific
Magistrate’s Court. The consent is not embodied in the agreement of sale.
(4 marks)
3.
The Plaintiff and the Defendant entered into an agreement which contained the
following clause:
“The parties consent to the jurisdiction of the Port Elizabeth Magistrate’s Court for
the determination of any dispute arising from the contract. The Defendant is in
breach of the contract and the Plaintiff has a claim for R500 000”.
The Defendant resides in Port Elizabeth. Can the Plaintiff institute the action in the
Port Elizabeth Magistrate’s Court? (2 marks)
4.
The Plaintiff and the Defendant entered into an agreement which contained the
following clause:
“The parties consent to the jurisdiction of the Magistrate’s Court for the
determination of any dispute arising from the contract.”
The Defendant is in breach of the agreement and the Plaintiff has a claim for
R500 000. The Defendant resides in Port Elizabeth. Can the Plaintiff institute the
action in the Port Elizabeth Magistrate’s Court? (1 mark)
5.
Indicate the meaning of the phrase ‘the cause of action arose wholly within the
district’ with regard to contract of sale, cheque (where and if still applicable) and
motor vehicle collision matters generally. (8 marks)
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4.
PARTIES
RANGE STATEMENT:
Explain, draft, and perform all actions to cite parties in the Magistrate’s Court so that
locus standi may be established.
SECTION OUTCOMES:
After completing this section, you should be able to:
•
Cite both the Plaintiff and Defendant on the face of a summons in a given set of facts.
•
Draft a Rule 54(6) application.
•
Draft a variety of particulars of claims based on different causes of actions in a
given set of facts.
•
Draft an application to substitute a deceased party to proceedings.
•
Describe the provisions of Rule 5(6) for the purpose of citation of parties.
4.1
RULE 2(1)
“Plaintiff”, “Defendant”, “Applicant”, “Respondent” and “party” includes the
Attorney or Counsel appearing for any such party and the officer of any Local
Authority nominated by it for the purpose.
4.2
RULE 5(4)
4.2.1
Every Summons shall set forth:
•
the surname and first names or initials of the Defendant by which the
Defendant is known to the Plaintiff,
•
the Defendant’s residence or place of business and, where known,
•
the Defendant’s occupation and employment address and,
•
if the Defendant is sued in any representative capacity such capacity,
and
•
the full names, gender (if the Plaintiff is a natural person) and
occupation and the residence or place of business of the Plaintiff, and
if the Plaintiff sues in a representative capacity, such capacity.
RULE 6(12)
Where the Plaintiff sues as a cessionary, the Plaintiff shall indicate the name,
address, and description of the cedent at the date of cession as well as the
date of the cession.
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4.2.2
4.3
Every Summons shall set forth:
•
The full names of the Plaintiff;
•
The gender (if the Plaintiff is a natural person);
•
Occupation;
•
Residence or place of business; and
•
If the Plaintiff sues in a representative capacity, such capacity.
COMPANIES AND CLOSE CORPORATIONS
Parties to legal proceedings must have the capacity to institute or defend
such proceedings. This capacity is referred to by the term locus standi in
iudicio and attaches to both natural persons and to non-natural bodies
(juristic persons).
The term locus standi also refers to the legal entitlement a Plaintiff (or
Applicant) has to the relief s/he seeks.
In the matter Four Wheel Drive CC v Leshni Rattan NO (1048/17)
[2018] ZASCA 124 (26 September 2018) the Court found that the
Plaintiff must have an adequate interest in the subject matter of the
litigation, usually described as a direct interest in the relief sought; the
interest must not be too remote; the interest must be actual, not abstract or
academic; and it must be a current interest and not a hypothetical one. The
duty to allege and prove locus standi rests on the party instituting the
proceedings.
All natural persons have the capacity to sue or be sued unless they suffer
from some legal disability. Companies and Close Corporations are legal
personalities and therefore have locus standi.
EXAMPLES OF CITATION OF A COMPANY AND CLOSE CORPORATION
•
The Plaintiff is ABC (Pty) Ltd, a company with limited liability, duly
registered and incorporated in terms of the Statutes of the Republic of
South Africa, with registered address and principal place of business, at
111 Naidoo Street, Pretoria.
•
The Plaintiff is AB CC a close corporation duly registered and
incorporated in terms of the Close Corporations Act No. 69 of 1944
with registered address and principal place of business, at 111 Naidoo
Street, Pretoria.
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4.4
EDUCATIONAL INSTITUTIONS
The various public higher education institutions (i.e., universities and
colleges) established in terms of the Higher Education Act No. 101 of 1997
are juristic persons and has locus standi. Therefore, they are capable of
suing and being sued in their own names.
4.5
BODIES INCORPORATED BY STATUTE
Public schools are, in terms of Section 15 of the South African Schools Act
No. 84 of 1996, juristic persons.
EXAMPLE
The Plaintiff is the governing body of the Monument Park Primary School,
a public school with juristic personality in terms of the South African Schools
Act No. 84 of 1996, of Lois Avenue, Monument Park, Pretoria; or
The Plaintiff is the Monument Park Primary School, a public school with
juristic personality in terms of the South African Schools Act No. 84 of 1996,
of Lois Avenue, Monument Park, Pretoria.
One may begin to remove from the discussion all bodies which are
incorporated by or in terms of statute. Examples of bodies incorporated by a
statute are Universities and Technikons which are, in terms of Section 20 (4)
of the Higher Education Act No. 101 of 1997, juristic persons.
The real difficulty pertains to entities which are not statutorily incorporated.
In terms of the Roman law and Roman-Dutch law it is required that an entity
be a universitas personarum in order to have the capacity to sue or be
sued. There are however Rules of Court which permit certain instances of
such associations to be cited in their own names.
4.6
MARRIED WOMEN
An important legal disability under which married women that were subject
to their husbands’ marital power laboured, was abolished for all marriages,
irrespective of when such marriage was entered into, by a 1993 amendment
to the Matrimonial Property Act No. 88 of 1984. The one remaining limitation
on the capacity of married persons (men and women) to sue, is that a person
married in community of property may in certain respects not institute
proceedings pertaining to the joint estate without the written consent of the
spouse to do so.
Sections 15, 16 and 17(1) of the Matrimonial Property Act No. 88 of 1984
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4.7
MINORS
A minor lacks locus standi. A minor is any unmarried person under the age
of 18 years who has not been emancipated.
Section 17 of the Children’s Act No. 38 of 2005
The following possibilities are available to a minor who wishes to institute
proceedings:

The minor’s guardian can institute proceedings on the minor’s behalf,
making it clear that he/she is acting in a representative capacity only.
Example
The Plaintiff is AB, a major male bank official residing at 111 Church Street,
Pretoria, herein acting in his capacity as father and natural guardian of DE,
a minor male infant born on 1 January 2011, who resides at the said address.
President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A) at 772C-D

The minor can institute proceedings in his/her own name, duly assisted
by his/her guardian.
Example
The Plaintiff is DE a minor male infant born on 1 January 2011, residing at
111 Church Street, Pretoria, herein assisted by his father and natural
guardian, AB, a major male bank official, who resides at the said address.
Tiruvengadam v Naidoo and Another 1948 (2) SA 746 (N) at 751
•
The Court can, on application, appoint a curator ad litem to represent
the minor. This might happen where there is no guardian, or the
guardian is for some reason unwilling to institute proceedings, or the
proceedings are to be instituted against the guardian, or the interests
of the minor might for any other reason conflict with those of the
guardian.
Wolman and Others v Wolman 1963 (2) SA 452 (A) at 459A-D
Van der Merwe v Die Meester, Hooggeregshof en Andere 1966 (1) SA 301
(SWA) at 303E-H
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The application for the appointment of a curator ad litem can be
brought either by the minor her/himself (provided only that she/he is
old enough to understand the proceedings) or by an interested party
on the minor’s behalf.
The Court may grant a minor, usually one who is approaching the age
of majority, the right to institute proceedings without assistance.
Ex parte Goldman 1960 (1) SA 89 (D)
4.8
MENTAL DISABILITY
Persons who suffer from some mental incapacity lack locus standi. The test
for mental incapacity for the purposes of capacity to sue or be sued was set
out in a judgment as follows:
“(T)he requirement is that the person concerned must have the mental
capacity to understand and appreciate at a level which is sufficient to enable
him to manage the particular affair in question. The question that arises,
therefore, is: What level of understanding of the legal proceedings is required
before it can be said that the person concerned can manage his affairs in
question – namely his litigation? I believe that the answer to this question
must be that in order to “manage” his own litigation, the person concerned
must be able to understand the proceedings at a level which is sufficient to
enable him to play a useful and constructive role during the proceedings by
giving proper instructions to his legal representatives.”
Jonathan v General Accident Insurance Co of South Africa 1992 (4) SA
618 (C) at 626 C-E
Where a person lacks locus standi for this reason, it is imperative that a
curator ad litem be appointed to represent such person in legal
proceedings. The application for the appointment of a curator ad litem can
be brought by any interested party, in terms of Section 33. The application
for the appointment of a Curator should be made in the Magistrate’s Court in
which the intended proceedings are to be brought and such application
should not be made on an ex parte basis.
However, only the High Court may find a person incapable of handling his/her
own affairs – a curator bonis is appointed for this purpose.
4.9
NON-NATURAL BODIES (JURISTIC PERSONS)
Rule 54 was amended on 1 June 2022 and applies to proceedings against
non-juristic bodies as a matter of procedural convenience.
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Rule 54(1) sets out the various non-juristic bodies to which this rule applies
and refers to them as an “entity”.
The rule states that an entity may sue or be sued in its own name (Rule
54(2)).
Rule 54(3) provides that where an entity is sued, the Plaintiff must serve a
notice calling on the Defendant to deliver, within 10 days, a statement
containing the names and details of the entity’s members. If the Defendant
fails to do so, the Plaintiff may apply to Court to compel the Defendant to do
so within 5 days failing which, the Plaintiff may ask the Court to strike out
the Defendant’s defence, if filed, and grant judgment which shall be
executable against the entity’s assets:

Declare any person who the Plaintiff reasonably believes to be a
member of the entity, such member at the relevant date provided the
application and a notice corresponding to Form 59 together with a copy
of the summons has been served on this member:
o

Make any order as the Court deems just;
Where a statement is delivered by the Defendant, the Plaintiff must
serve a notice corresponding with Form 59 as well as a copy of the
summons to each person indicated by the Defendant calling upon them
to deliver a Notice of Intention to Defend within 10 days.
If this person fails to deliver a Notice of Intention to Defend, the action will
proceed in the name of the entity (Rule 54(3)(f)).
If the person disputes being a member of the entity and takes steps as
indicated in Form 59, including the delivery of a plea, the Court may decide
this as a point in limine at the trial.
A Plaintiff may also serve a notice requesting the constitution of the entity.
If it is not provided by the entity, the Plaintiff may apply to Court for the
compliance with the Plaintiff's request (Rule 54(4)).
Execution of a judgment shall firstly be against the assets of the entity and
only thereafter against the assets of a member (Rule 54(5)).
The Form 59 provides briefly as follows:
As it is a pleading it has the relevant heading, and the parties are cited as
the Plaintiff and Defendant as the entity.
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The member is then informed of the details of the claim against the entity.
The member is then informed that he/she has been named as a member of
the entity being sued and has the following rights:

If the member disputes being a member of the entity, he/she may
within 10 days enter an appearance to defend;

To provide the Plaintiff with all their relevant details (address and so
on);

Thereafter to enter a plea disputing your membership of the entity.
4.10 TRUSTS
A trust is an oddity. It is not regarded as having legal personality. This,
despite the fact that it can be the beneficiary under a will; that creditor of a
trust cannot execute against the assets of the trustees, only against the
assets of the trust; and that a trust estate can be sequestrated. A trust
cannot sue or be sued in its own name. Rather, it is necessary to join every
trustee in their official capacities (denoted by NO after their name) as
Plaintiffs or Defendants.
Mariola and Others v Kaye-Eddie N.O. and Others 1995 (2) SA 728 W
A trust is also not an association, partnership, or firm, and accordingly does
not fall under Rule 54. A survey of the Law Reports nevertheless reveals that
trusts are from time to time cited in their own names, apparently with no
objection being raised either by the opposing party or by the Court.
In Van der Westhuizen v Van Sandwyk 1996 (2) SA 490 (W) at 495
D-E the Court held as follows: “’n Trust soos die onderhawige is geen
regspersoon nie en die bates van die trust vestig in die trustees in hulle
hoedanigheid as trustees (sien Commissioner of Inland Revenue v
Friedman and Others NNO 1993 (1) SA 353 (A) at 370E-G). Hieruit
volg die vereiste gestel deur Honore … dat al die trustees gevoeg moet word
in ‘n aksie om ‘n reg af te dwing wat die trust toekom.”
Example
The Plaintiffs are AB and CD, both male accountants and auditors, duly
registered in terms of the Public Accountants’ and Auditors’ Act No. 80 of
1991, carrying on business at 111 Church Street, Pretoria, herein acting in
their capacities as only trustees of the Daisy Trust.
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Rosner v Lydia Swanepoel Trust 1998 (2) SA 123 (W) at 126H – 127C
Desai-Chilwan N.O. v Ross 2003 (2) SA 644 (C); Desai-Chilwan (in her
capacity as Trustee of the Clivia Property Trust) v Ross and Another [2002]
JOL 9286 (C)
“Parties” in JONES & BUCKLE 10th ed Vol II at pp 5-17. This excursus also
contains several examples of the citation of, inter alia, natural persons,
companies, close corporations, minors, and various categories of professional
persons.
4.11 SECTION 41 – JOINDER OF PLAINTIFF
This Section allows more than one Plaintiff who have separate claims against
the same Defendant to join in one summons their claims against the same
Defendant if the determination of the separate claims relies on the same
question of law or fact. Should such claims be instituted in separate actions,
judgment will be given at the same time in respect of each Plaintiff’s separate
claim(s).
A Defendant may apply to Court to order a separation of the claims into
separate trials.
This Section also makes provision for the determination of costs.
4.12 SECTION 42 – JOINDER OF DEFENDANT
This Section provides that more than one Defendant may be sued in a single
summons either in the alternative or jointly and severally. The Court upon
giving judgment will make an appropriate costs order as provided for in this
Section.
The usual wording of the preamble would be:
Judgment against both Defendants, jointly and severally, the one
paying the other to be absolved.
4.13 CHANGE OF PARTIES
If one of the parties dies or becomes incompetent, after the commencement
of the action, Rule 52(3) and (4) provide for an application to be brought to
substitute the executor, trustee, guardian, or other competent person for the
deceased or incompetent party.
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SELF-ASSESSMENT QUESTIONS: QUESTION 4
1.
Your client wishes to institute action against the following Defendants. How would
you describe (cite) the Defendant in each instance?:
a)
John Butch a minor who is 15 years old. (1 mark)
b)
The executor of the deceased estate of the late Grey Louw. (1 mark)
c)
Balmy Heritage Trust with two trustees Jack Joy and James Rose. (1 mark)
d)
CFP (Pty) Ltd in liquidation. (1 mark)
2.
A partnership owes Blacky Swart money. Blacky Swart does not know the details of
all the partners. Draft the notice that you would use to establish the details of persons
who were partners at the time that the cause of action arose. (5 marks)
3.
You are consulted by Ms Ann Rose the owner of Rose Distributors (Pty) Ltd, a
company who imports and exports goods with business address at 24 Clifton
Avenue, Pretoria. She informs you that on the 12th of January 20… at the premises
of the company she, on behalf of the company, entered into a written agreement
with Sprat CC, represented by John Jack. The address of the CC is 33 Solomon
Mhlanga Road, Pretoria. John Jack, a member of Sprat CC signed as surety and coprincipal debtor.
The terms of the agreement were as follows:
a)
Rose Distributors (Pty) Ltd would sell 100 guess handbags to Sprat CC at
R2 000 per handbag.
b)
Payment would be made within 30 days after delivery.
c)
If payment is not made on time, Attorney and client costs will be payable.
d)
Interest at the rate of 22% will be applicable.
Delivery of the handbags were affected on the 1st of February 20… at 33 Solomon
Mhlanga Road, Pretoria. John Jack failed to effect payment to date hereof, despite
a letter of demand having been sent to him on the 14th of April 20…. You caused a
simple summons to be served on John Jack, who enters appearance to defend. With
reference to the given set of facts, adding additional facts as you deem necessary.
Draft the declaration. (13 marks)
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5.
FORMS OF PROCEEDINGS
RANGE STATEMENT:
Differentiate between action and application proceedings.
SECTION OUTCOMES:
After completing this section, you should be able to:
There are three different forms of proceedings in the Magistrate’s Court, namely:
•
action proceedings
•
application proceedings
•
provisional sentence proceedings
Distinguish between the action and motion proceedings. Select the correct form of
proceeding in a given set of facts.
Explain when you would use provisional sentence summons process.
THE FOLLOWING RULES ARE, IN GENERAL TERMS, APPLICABLE TO THE
DIFFERENT FORMS OF PROCEEDINGS:
5.1
ACTION PROCEEDINGS (SUMMONS)
The summons, endorsed with the particulars of claim, constitutes the first
pleading in the action. Action proceedings are instituted where there is
material dispute of facts, that is, the dispute is of such a nature that the
Court cannot decide the matter only on the basis of papers represented to
Court.
The definition for Court Day is now the same in the Act and the Rules. Court
day means any day other than a Saturday, Sunday, or public holiday, and
only Court days shall be included in the computation of any time expressed
in days prescribed by this Act or fixed by any order of Court.
5.2
APPLICATION PROCEEDINGS (MOTIONS)
5.2.1
Rule 55 – Applications
Procedure by way of application in the Magistrates’ Courts is limited to those
cases specifically laid down. In terms of Rule 55(1)(a) every application
shall be brought on notice of motion supported by an affidavit as to the
facts and evidence upon which the Applicant relies for relief.
Application proceedings are instituted where there is no material dispute of
facts. The matter is brought before Court and decided on the papers
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presented to the Court. There is generally no oral evidence in application
proceedings.
5.2.2
Rule 56 – Interdicts, Attachments to Secure Claims and Mandament
Van Spolie
Application to the Court for an order, an interdict or attachment or for a
mandament van spolie shall be made in terms of Rule 55.
Every application referred to in sub-rule (1) shall be accompanied by an
affidavit stating the facts upon which the application is made, and the
nature of the order applied for.
5.3
PROVISIONAL SENTENCE PROCEEDINGS
5.3.1
Rule 14A – Provisional Sentence
This is an extraordinary, summary, and interlocutory remedy designed to
enable a creditor who has a liquid document to obtain a speedy judgment
without resorting to the more expensive machinery of an illiquid action.
Provisional sentence precludes a Defendant with no valid defence from
‘playing for time’.
This serves merely to emphasise the fact that there are three distinct
options available to litigants wishing to institute formal legal proceedings in
the Magistrate’s Court. Each of these options has its own application and
limitations which will be dealt with fully in the various Chapters dealing with
the available forms.
SELF-ASSESSMENT QUESTIONS: QUESTION 5
1.
List the different types of proceedings that you may use and motivate why you
would use that form. (6 marks)
2.
Mandy wants to divorce her husband. Which form of proceeding would she use? (2 marks)
3.
Cindy sold goods to Bob in October 2020. Bob issued a cheque for the purchase
price but when Cindy presented it for payment two months later, she was told that
there was no money in the account. Cindy decides to act now. Can Cindy still start
proceedings and if so, which form of proceeding can Cindy use to recover the
amount owing? (4 marks)
4.
Bearing in mind the facts in point 2 above, how would Oliver gain custody of his
two minor children pending the finalisation of the divorce? (2 marks)
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6.
ACTION PROCEEDINGS
RANGE STATEMENT: SECTION OUTCOMES:
After completing this section, you should be able to:
•
Draft a summons bearing in mind the requirements of Rule 5 of the Court Rules.
•
Apply the requirements of Rule 9(3) to a given set of facts to establish whether
proper service took place.
•
Distinguish between the different causes of action for drafting purposes.
6.1
SUMMONS
As stated above, an action may only be instituted by way of summons. Rules
5, 6 and 7 respectively contain provisions relating to the content of a
summons and amendment of a summons prior to service thereof.
6.1.1
Rule 5 – Summons
Rule 5 was amended in the Government Gazette number 46839 dated 2
September 2022 by the substitution for sub-rule (1) of the following:
Every person making a claim against any other person may, through the
office of the Registrar or Clerk of the Court, sue out a simple summons or
a combined summons addressed to the Sheriff directing the Sheriff to
inform the Defendant among other things that, if the Defendant disputes
the claim and wishes to defend, the Defendant shall:
•
within the time stated in the summons, give notice of intention to
defend; and
•
after complying with paragraph (a), if the summons is a combined
summons, within 20 days after giving such notice, deliver a plea (with
or without a claim in reconvention), or an exception, or an application
to strike out: Provided that an exception or application to strike out
shall be in the manner and within the timeframes provided for in Rule
19.
See Annexure “G” at the back of this guide for a copy of the Government
Gazette.
In terms of Rule 5(2)(b), where the claim is for a debt or a liquidated
demand, the summons may be a simple summons, similar to Form 2 of
Annexure 1.
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Examples of a claim for a debt or liquidated demand are as follows:
•
An account and debatement of it;
•
Arrear rentals;
•
Cancellation of a lease agreement;
•
Eviction in terms of a cancelled lease agreement;
•
Cancellation of a contract of sale;
•
Eviction based on cancellation of sale or conclusion of a new
agreement;
•
Cancellation of an agreement and forfeiture of instalments paid in
terms of it;
•
An interdict preventing trespassing;
•
Failure to pay due maintenance;
•
Delivery of property;
•
Work done and material supplied.
Examples of claims which have been held not to be a debt or
liquidated demand are as follows:
•
Collection costs;
•
Payment of monies held to be due after a debatement of account;
•
Monies due by a deceased estate, where the executor had excluded
it in the liquidation and distribution account;
•
Payment of a penalty.
In every case where the claim is not for a debt or liquidated demand the
summons shall be a combined summons similar to Form 2B of Annexure 1,
to which summons shall be annexed a statement of the material facts relied
upon by the Plaintiff in support of Plaintiff’s claim, and which statement shall,
amongst others, comply with Rule 6.
Every summons shall be signed by the Legal Practitioner acting for the
Plaintiff and shall bear:
•
the Legal Practitioner’s physical address, within 15 kilometres of the
courthouse;
•
the Legal Practitioner’s postal address and, where available;
•
the Legal Practitioner’s facsimile address and electronic mail address.
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If no Legal Practitioner is acting for the Plaintiff, the summons shall be signed
by the Plaintiff, who shall in addition append a physical address within 15
kilometres of the courthouse at which the Plaintiff will accept service of all
subsequent documents and notices in the suit, the Plaintiff’s postal address
and, where available, the Plaintiff’s facsimile address and electronic mail
address.
The summons shall then be signed and issued by the Registrar or Clerk of
the Court and shall bear the date of issue by the Registrar or Clerk as well as
the case number allocated thereto.
The Plaintiff may indicate in a summons whether he is prepared to accept
service of all subsequent documents and notices in the suit through any
manner other than the physical address or postal address and, if so, shall
state such preferred manner of service.
If an action is defended the Defendant may, at the written request of the
Plaintiff, deliver consent in writing to the exchange or service by both parties
of subsequent documents and notices in the suit by way of facsimile or
electronic mail. If the Defendant refuses or fails to deliver the consent in
writing as provided for the Court may, on application by the Plaintiff, grant
such consent, on such terms as to costs and otherwise as may be just and
appropriate in the circumstances.
Every summons shall set forth:
•
The surname and first names or initials of the Defendant by which
the Defendant is known to the Plaintiff, the Defendant’s residence, or
place of business and, where known, the Defendant’s occupation and
employment address and, if the Defendant is sued in any
representative capacity, such capacity; and
•
Full names of the Plaintiff, gender, and if the Plaintiff sues in a
representative capacity, such capacity.
Every summons shall include:
•
A form of consent to judgment;
•
A form of appearance to defend;
•
A notice drawing the Defendant’s attention to the provisions of
Section 109 of the Act; and
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•
A notice in which the Defendant’s attention is directed to the
provisions of Sections 57, 58, 65A and 65D of the Act in where the
action is based on a debt referred to in Section 55 of the Act.
A summons shall also:
Where the Defendant is cited under the jurisdiction conferred upon the
Court by Section 28(1)(d) of the Act:
•
Contain an averment that the whole cause of action arose within the
district or region and set out.
•
The particulars in support of such averment.
•
Where the Defendant is cited under the jurisdiction conferred upon
the Court by Section 28(1)(g) of the Act contain an averment that
the property concerned is situated within the district or region; and
•
Show any abandonment of part of the claim under Section 38 of the
Act and any set-off under Section 39 of the Act.
•
Where the Plaintiff issues a simple summons in respect of a claim
regulated by legislation the summons may contain a bare allegation
of compliance with the legislation, but the declaration, if any, must
allege full particulars of such compliance.
•
Provided that where the original cause of action is a credit agreement
under the National Credit Act No. 34 of 2005, the Plaintiff seeking to
obtain judgment in terms of Section 58 of the Act shall in the
summons deal with each one of the relevant provisions of Sections
129 and 130 of the National Credit Act No. 34 of 2005 and allege that
each one has been complied with.
•
A summons for rent under Section 31 of the Act shall be in the form
prescribed in Annexure 1, Form 3.
•
A summons in which an order is sought to declare executable
immovable property which is the home of the Defendant shall contain
a notice in the following form:
“The Defendant’s attention is drawn to Section 26(1) of the
Constitution of the Republic of South Africa Act No. 108 of 1996 which
accords to everyone the right to have access to adequate housing.
Should the Defendant claim that the order for eviction will infringe that
right, it is incumbent on the Defendant to place information supporting
that claim before the Court”.
Where the Plaintiff sues as cessionary the name, address, and description
of the cedent at the date of the cession will be noted.
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If a party fails to comply with any of the provisions of this Rule, such
summons shall be deemed to be an irregular step and the opposite party
shall be entitled to act in accordance with Rule 60A.
Matters to bear in mind when preparing particulars of claim with a view to
enforcing a debt in terms of the National Credit Act No. 34 of 2005 (NCA):
As from 1 December 2020 a debt enforcement in respect of a credit
agreement can no longer be done by means of a “simple” summons but
rather using a “combined” summons. The summons must contain sufficient
particulars to determine whether the requirements set out in the NCA have
been met. The particulars of the claim should, inter alia, contain the
following averments:
•
Particulars of the parties (to determine whether the NCA applies to
the person).
•
That the NCA applies to the agreement (or if the NCA is not
applicable, the Plaintiff should plead facts to indicate this).
•
Type and category of the credit agreement (to determine whether
the agreement is excluded from the NCA).
•
Date when agreement was concluded.
•
Principal debt and how the amount is made up, number of
instalments and instalment amount, initiation fee, service fee,
interest and interest rate, credit insurance, default administration
charges, collection costs, costs pertaining to extended warranty,
delivery fee, installation and initial fuelling charges, taxes, residual
amount, licences, and registration fees.
•
Positively allege that there was compliance with the Act in concluding
the agreement i.e., quotation, 5 days cool-off period.
•
Other material terms of the agreement.
•
That the Plaintiff (the credit provider) is duly registered with the
National Credit Regulator (where registration is required by the NCA)
and the renewal fees have been paid OR that the Plaintiff has applied
for registration and that it has not been refused.
•
The consumer is in default and has been in default under the relevant
credit agreement for a period of 20 business days or longer.
•
That a written notice in terms of Section 129(1)(a) has been properly
served on the consumer (Defendant).
•
In Blue Chip 2 (Pty) Ltd t/a Blue Chip 49 v Ryneveldt (National
Credit Regulator as Amicus Curiae) 2016 (6) SA 102 (SCA) the
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Supreme Court of Appeal held that delivery of a notice in term of
Section 129(1)(a) of the NCA was an essential element of a cause of
action under the NCA and that, for purposes of Section 28(1)(d), such
delivery therefore had to take place within the area of jurisdiction of
the Magistrate’s Court in which the action was eventually instituted.
•
In Rossouw v First Rand Bank Ltd 2010 (6) SA 439 (SCA) at
455C-G it was held that a summons must contain allegations of the
manner in which the Section 129(1)(a) notice was delivered, to place
the Court in a position to determine whether there was a delivery in
in terms of the National Credit Act No. 34 of 2005.
•
In Kubanya v Standard Bank of South Africa Ltd (SocioEconomic Rights Institute of South Africa as animus curiae)
2014 (4) BCLR 400 (CC), the Constitutional Court expands on what
will suffice as proof that a creditor has complied with section 129 in
instances where a consumer has elected to receive the required
notice via the mail or post.
•
In Sebola and Another v Standard Bank of South Africa Limited
and Another (Socio-Economic Rights Institute of South Africa
as animus curiae) 2012 (8) BCLR 785 (CC) endorses the
rebuttable legal presumption that it can be assumed that section 129
notice was brought to the consumer’s attention if the creditor can
demonstrate that it reached the branch of the post office that services
the consumer’s’ postal address. So affirmed in Nkata v FirstRand
Bank Limited and Others (Socio-Economic Rights Institute of
South Africa as animus curiae) 2016 (4) SA 257 (CC).That 10
or more business days have elapsed since delivery of the notice.
•
The consumer either did not respond to the Section 129(1)(a) notice
or the consumer rejected it.
•
The consumer did not refer the credit agreement to a debt counsellor,
alternative dispute resolution agent, Consumer Court or ombudsman.
•
There is no matter pending before the Consumer Tribunal that relates
to the credit agreement in question.
•
That the consumer under an instalment agreement or lease has failed
to surrender the goods voluntarily (if applicable).
•
If the consumer returned the goods that are subject to an instalment
agreement or lease that the provisions of Section 127 have been
complied with and aver facts to prove compliance (if applicable).
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The following documents to be filed with request for judgment:
•
Original underlying credit agreement (or a copy together with an
affidavit in terms of Rule 12(6));
•
A copy of the Section 129 notice and proof that it has been properly
served on the consumer;
•
Copy of the certificate of registration with the NCR.
SELF-ASSESSMENT QUESTIONS: QUESTION 6
Mr L. Nkosi, ID No. 651215 0502 083 residing at 45 Naude Street, Rayton, 1001 bought
a vehicle on the 2nd of January of the previous year through the Motor Finance
Corporation (Pty) Ltd t/a MFC with registration number 2001/012691/07 with head office
address 6E Herman Road, Meadowdale, 1610. MFC is registered at the NCR with
registration number NCRCP 63. The vehicle is a Tucson 2.0 CRDi A/T Hyundai 20… model
with registration number RWK 605 GP, white in colour.
The amounts financed were as follows:
Amount Advanced
Vehicle Selling price
Instalment Payable
R140 263.16 Monthly service fee (VAT inclusive)
R57.00
Initiation Fee (VAT inclusive)
R1 140.00 Total amount financed (Part B)
R2 821.88
Total of additional charges (Part G)
R3 070.18 Total monthly premiums (Part E)
R0.00
Total of value-added products (Part
F)
R3 300.00 Total monthly instalment
Deduct deposit
R42 000.00 Number of instalments
VAT (In respect of vehicle & extras
financed at the dealership)
R20 528.67 Frequency
Total amount to be financed
(Principal Debt)
R126 302.01
R2 878.88
60
Monthly
Total cost and interest rate
Total value of amount financed
R126 302.01 Variable annual interest rate
Total interest payable
R43 010.58 Margin
Total fees and monthly premiums
R3 420.00
Total collectable amount
12.01%
1.51000%
R172 732.59
Value added products (charges financed)
Warranty
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Items as per Dealer invoice (additional charges forming part of the amount financed)
Total of additional charges which will be included in the calculation of the instalment
Other Extras
3 070.18
Repayment arrangements
At MONTHLY intervals and commencing always
on 15/2/of the previous year
Instalments of
R2 878.88
Instalment of
R2 878.67 last payment
This agreement will commence on 2/1/of previous year. Payment will be made by way of monthly
debit order.
In terms of the contract the following information:
Reference number: NKOSI L 10020058
Contract number: 001
The Credit Provider is the owner of the Goods and, notwithstanding delivery of the Goods
to Mr Nkosi, will remain owner of the Goods until such time as he has complied with all
his obligations under the agreement. Ownership will pass to him on the date that he pays
the outstanding balance to the Credit Provider, from which date he will hold the goods as
owner.
The Principal debt is financed at a variable interest rate and the total interest payable is
calculated monthly. At the end of March, the following year Mr L. Nkosi stopped paying
his instalments, and on 16 May of the same year your client, MFC, handed the file over to
you for legal action.
Now attempt the following:
(i)
Draft a letter of demand accordingly,
(ii)
Draft particulars of claim accordingly.
You can accept the following:
•
Mr Nkosi rejected the Section 129 Letter of Demand letter; and
•
Mr Nkosi did not voluntarily hand over the goods.
That MFC did comply with all the requirements under the National Credit Act No. 34 of
2005.
(30 marks)
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6.1.2
Rule 6
6.1.2.1 Rules Relating to Pleadings Generally
•
Every pleading must be signed by a Legal Practitioner, if
unrepresented by the party himself;
•
The title of the action describing the parties thereto and the
case number shall appear at the head of each pleading;
•
The correct citation of headings must be used on all
pleadings and notices:
MAGISTRATES’ COURT:
In the Magistrate’s Court for the district of..........held
at...........
REGIONAL COURT:
In the Regional Court for the regional division of........ held
at.........;
•
Abbreviations may be used if the title is lengthy;
•
It must be divided in paragraphs which shall be numbered,
and each contain a distinct averment;
•
It must contain a clear and concise statement of the material
facts which pleader relies on;
•
The answer to any pleading must be with sufficient
particularity to enable the opposite party to reply thereto;
•
When denying an allegation in any pleading it should not be
done evasively;
•
When relying on a contract state whether the contract is in
writing or oral and if it is in writing a copy thereof shall be
annexed.
6.1.2.2 Divorce
In marriage out of community of property:
•
Claiming division, transfer, or forfeiture of assets,
•
details of the grounds of such claims must be given.
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6.1.2.3 Damages
The Defendant has to be able to assess the quantum thereof.
6.1.2.4 Damages for Personal Injury
•
Plaintiff’s date of birth,
•
Nature and extent of the injuries,
•
Effects and duration of the disability alleged to give rise to
such damages,
•
And shall state separately what amount, if any, is claimed
for:
o
Medical costs and hospital and how these costs are
made up,
o
Pain and suffering – temporary or permanent and
which injuries caused it,
o
Disability in respect of–

The earning of income – earnings lost to date
and future loss;

Enjoyment of amenities of life;

Disfigurement - description thereof and
stating whether it is temporary or permanent.
6.1.2.5 Damages Resulting from Death of Another
•
date of birth of deceased and;
•
that of person claiming damages as result of death.
6.1.2.6 Relying on an Agreement Governed by Legislation

State nature and extent of compliance with provisions.
6.1.2.7 Plaintiff Sues Cessionary

Name, address, and description of cedent at the date of
cession as well as the date of cession.
6.1.2.8 Suing on a Contract
If suing on a contract, whether the contract is in writing or oral,
when, where and by whom it was concluded, and if the contract
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is in writing, a copy thereof or the part relied on in the pleading
shall be annexed to the pleading.
6.1.2.9 Fail to Comply

6.1.3
The pleading shall be deemed an irregular step and opposite
party shall be entitled to act in accordance with Rule 60A.
Rule 7 – Amendment of Summons
•
A summons before being issued by the Registrar or Clerk, may be
changed at any time.
•
Any alteration or amendment of a summons has been issued by the
Registrar or Clerk of the Court, but before service, shall be initialled
by the Legal Representative or Plaintiff and shall then be initialled
and date stamped by the Registrar or Clerk of the Court before
service. Failure to follow this process will mean that the amendment
has “no effect”.
•
The provisions of Rule 55A shall apply to the amendment of a
summons after service.
IMPORTANCE TO ANY LEGAL PRACTITIONER OR CANDIDATE
LEGAL PRACTITIONER
•
Before one begins drafting the particulars of claim or material
statement of facts, it is essential to have a thorough understanding
of the facts of the matter, including all the evidence and evidential
material.
•
The next step is to research the law applicable to the facts of the
matter.
•
The Plaintiff’s summons or particulars of claim / material statement
of facts must essentially disclose a cause of action.
•
The meaning of the expression “cause of action” has often been
considered by the Courts.
•
Two definitions which have found general acceptance are the
following:
In McKenzie v Farmers’ Co-operative Meat Industries Ltd
1922 AD 16 at 22 it was held that the phrase meant:
“… every fact which it would be necessary for the Plaintiff to prove, if
traversed, in order to support his right to judgment of the court. It
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does not comprise every piece of evidence which is necessary to prove
each fact, but every fact which is necessary to be proved”.
In Abrahamse & Sons (Pty) Ltdv SA Railways and Harbours
1933 CPD 626 at 637 it was said that the proper legal meaning of
the phrase “cause of action” is – “… the entire set of facts which give
rise to an enforceable claim and includes every fact which is
material to be proved to entitle a Plaintiff to succeed in his claim.
It includes all that a Plaintiff must set out in his declaration in
order to disclose a cause of action.” (1933 (2) PH L17 (CPD))
It is important to bear in mind that these definitions relate only to “material
facts”, and at the same time to have due regard to the distinction between
the facta probanda and the facta probantia.
facta probanda: the facts which must be proved in order to disclose a
cause of action.
facta probantia: the facts which prove them.
What the facta probanda are in each particular case is essentially a matter
of substantive law, and not of procedure.
6.2
EXAMPLES OF SOME CAUSES OF ACTION
6.2.1
Contractual Claims
A party wishing to claim specific performance in terms of a contract
must:
•
Prove the existence of the contract;
•
Allege and prove the material terms of the contract;
•
Allege and prove that he has complied with his antecedent or
reciprocal obligations;
•
Allege non-performance by the Defendant of his obligations;
•
The nature of the relief sought;
•
Costs.
A party wishing to claim damages due to a breach of contract must
allege and prove:
•
The contract’s existence;
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6.2.2
•
Allege and prove the material terms of the contract;
•
Its breach, e.g., that the other party was in mora or has repudiated
the contract;
•
That he has suffered damages;
•
That the damages flow naturally and generally from the kind of
breach of contract in question;
•
That in the special circumstances of the case existing at the
conclusion of the contract the damages were within the
contemplation of the parties when the contract was concluded;
•
A causal link between breach and damages;
•
Costs.
Delictual Claims
The actio legis Aquiliae enables a Plaintiff to recover patrimonial loss
suffered through a wrongful and negligent act of the Defendant. The scope
has been widened to enable the Plaintiff to recover a purely economic loss.
Its principles also apply to a claim for damages suffered as a result of bodily
injuries or the death of another (e.g., a breadwinner).
The Plaintiff must allege and prove:
•
The act or omission which is the basis of his cause of action.
•
Negligence and the particular grounds of negligence must be
detailed.
•
The causal connection between the negligent act relied upon and the
damages suffered.
•
Damages.
•
Costs.
Harms, Amler’s Precedents of Pleadings 7th edition;
Daniels, Beck’s Theory & Principles of Pleading in Civil Actions, 6th edition
6.2.3
Claim on a Dishonoured Cheque Against the Drawer
A Plaintiff claiming on a dishonoured cheque must allege and prove:
•
That he is the legal holder thereof.
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•
The document is a cheque.
•
The cheque was drawn by the Defendant.
•
That the cheque was duly presented for payment in terms of Section
54 of the Bills of Exchange Act No. 34 of 1964.
•
That the cheque was dishonoured in terms of Section 45.
•
That notice of dishonour was given in terms of Section 46 or that notice
of dishonour was dispensed with for a reason set out in Section 48.
•
Costs.
(Only applicable with cheques issued before the cut-off date in
December 2020 and is still in play in civil litigation)
6.2.4
Claim Against a Surety
A Plaintiff, who wishes to claim on a deed of suretyship, must comply with
the ordinary Rules relating to the pleading of contracts.
The onus rests on the Plaintiff to allege and prove the following:
6.2.5
•
A valid contract of suretyship.
•
A Principal Debtor.
•
The existence of a claimable and payable main debt.
•
That the causa debiti is one in respect of which the Defendant
undertook liability.
•
The indebtedness of the Principal Debtor.
Claim for Commission by an Estate Agent
An estate agent who wishes to claim commission must allege and prove:
•
Compliance with the provisions of Section 26 of the Estate Agents Act
No. 112 of 1976 (now repealed) relating to the required fidelity fund
certificates, which was taken up in the Property Practitioners Act No.
22 of 2019.
•
Compliance with the requirements for fidelity insurance.
•
A mandate to find a purchaser or seller.
•
Due performance of his mandate.
•
The commission payable.
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6.2.6
Claim for The Repayment of a Loan (Taking into Regard Whether
Such Loan Falls Within the Ambit of The National Credit Act No. 34
of 2005, or not)
In a claim based upon a loan the Plaintiff must allege and prove:
6.3
•
The contract of loan.
•
That the money was advanced in terms of the loan.
•
That the loan is repayable and claimable.
•
Costs.
•
Interest.
CLAIMS FOR INTEREST
The rate at which interest, if claimed, is calculated must be set out in the
particulars of claim. Interest may only be claimed where there is an
agreement to that effect between the parties or where the Defendant is in
mora (Trust Bank van Afrika Bpk v Van der Walt N.O 1972 (3) SA 166
(K) at 169G). The existence of such an agreement must be alleged in the
particulars of claim, as well as the rate agreed upon.
In Xoyeya v Watruss and Winter 1923 EDL 310 at 313 it was held that
the summons should allege an agreement to pay interest, but where it was
not alleged (although claimed), the defect in summons was cured by evidence
from the Plaintiff to that effect; evidence that was not objected to by the
Defendant and the Defendant in fact led rebutting evidence.
If interest was agreed upon, but a rate not specified, and if it is not fixed by
trade usage or another law (which would have to be alleged in the particulars
of claim), the rate which applies is the one which is determined in terms of
Section 1(2) of the Prescribed Rate of Interest Act No. 55 of 1975 [“PRIA”].
In terms of Section 2 of PRIA, every judgment debt bears interest from the day
on which it is payable, unless the judgment or order provides otherwise and
may be recovered as if it formed part of the judgment debt on which it is due.
Section 1(2)(a) provides that such rate of interest is ‘the repurchase rate as
determined from time to time by the South African Reserve Bank, plus 3,5
percent per annum’. In terms of Section 1(2)(b) the cabinet member
responsible for the administration of justice must, whenever the repurchase,
rate is adjusted by the South African Reserve Bank, publish the amended
rate of interest by notice in the Government Gazette. The interest rate so
published becomes effective from the first day of the second month following
the month in which the purchase rate is determined by the South African
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Reserve Bank. The repurchase rate, as determined by the South African
Reserve Bank changes continuously, and Candidates are encouraged to take
careful note of the changes.
In terms of the common law, a claim for unliquidated damages does not, as a
rule, attract interest (Probert v Baker 1983 (3) SA 229 (D & CLD) at 236).
Interest only becomes payable on such a claim once it has become liquidated.
However, the common law position has been amended by Section 2A of PRIA.
Now, unliquidated amounts may also bear mora interest. In the absence of an
agreement to the contrary between the parties, mora interest on unliquidated
amounts runs from the date on which payment of the debt is claimed by the
service on the debtor of a demand or summons, whichever date is the earlier.
Where the value of a future loss is claimed, interest only starts to run on the
date upon which the quantum of that loss is determined by judgment,
arbitration, or agreement.
Where a debtor offers to settle a debt by making a payment or a tender and
the creditor accepts the payment or tender, or the Court of law awards an
amount not exceeding that payment or tender, the running of interest is
interrupted from the date of the payment or the tender until the date of the
acceptance or award. The Court has discretion to award interest at the rate
it deems to be just, from a date it considers appropriate, in respect of the
payment of interest on an unliquidated debt. This discretion is subject to any
other law or any agreement between the parties.
It is important to be able to determine the date when mora interest starts
running. In this regard, one must consider the form of mora debitoris which
applies to the Defendant.
For a discussion of the law relating to mora, Nel v Cloete 1972 (2) SA 150 (A)
De Wet and Yeats, Kontraktereg en Handelsreg, Vol 1 5th ed, p157-168 and p163-175
Kahn, Contract and Mercantile Law, A Source Book, 2nd ed p690-711
Kerr, The Principles of the Law of Contract 5th ed p530-562
Christie, The Law of Contract in South Africa 4th ed p578-596
The summons also constitutes a demand. With reference to Nel v Cloete
1972 (2) SA 150 (A), Jones and Buckle Vol II 10th ed p5-12 – 5-13 submit
that if immediate performance (as demanded by the summons) is not
reasonable, interest will not run from the date of service of summons. The
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Court will then, if judgment is given by default, have to determine what
constituted a reasonable time in the circumstances.
However, in West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926
AD 173 it was expressly held that a Defendant was in mora from the date of
receipt of a letter of demand (in the case of mora ex persona) or, where there
had been no letter of demand, from the date of service of the summons. This
principle was applied by the Supreme Court of Appeal as recently as 2003 in Kudu
Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA).
6.4
SERVICE OF PROCESS, NOTICES AND OTHER DOCUMENTS
A summons is served in terms of Rule 9 by the Sheriff.
A cornerstone of our legal system is that a person is entitled to notice of the
institution of proceedings against him. Legal proceedings cannot, in general,
commence unless the party against whom relief is claimed (and any other
party with an interest in the matter) is notified of the initiating process by
means of service. When proceedings have begun without any notice, the
subsequent proceedings are null and void and may be disregarded or set
aside at the option of the other party. However, if the initiating document
such as the summons was served incorrectly, the subsequent proceedings
are not void, but may be voided: the summons may be set aside as an
irregular step although the Court may condone the irregularity.
Harms, L.T.C: Civil Procedure in Magistrates’ Courts
Rule 9(3) provides as follows:
All process shall, subject to the provisions of this Rule, be served upon the
person affected thereby by delivery of a copy thereof in one or other of the
following manners:
•
To the said person personally or to his or her duly authorised agent:
Provided that where such person is a minor person under legal
disability, service shall be affected upon the guardian, tutor, curator
or the like of such minor or a person under disability;
•
At the residence or place of business of the said person, guardian,
tutor, curator or the like to some person apparently not less than 16
years of age and apparently residing or employed there: Provided that
for the purpose of this paragraph, when a building, other than an hotel,
boarding house, hostel or similar residential building, is occupied by
more than one person or family, “residence” or “place of business”
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means that portion of the building occupied by the person upon whom
service is to be effected;
•
At the place of employment of the said person, guardian, tutor,
curator or the like to some person apparently not less than 16 years
of age and apparently in authority over him or her or, in the absence
of such person in authority, to a person apparently not less than 16
years of age and apparently in charge at his or her place of
employment;
•
If the person so to be served has chosen a domicilium citandi, by
delivering or leaving a copy thereof at the domicilium so chosen;
•
In the case of a corporation or company, by delivering a copy to a
responsible employee thereof at its registered office or its principal
place of business within the Court’s jurisdiction, or if there is no such
employee willing to accept service, by affixing a copy to the main door
of such office or place of business, or in any manner provided by law;
•
If the Plaintiff or his or her authorised agent has given instructions in
writing to the Sheriff to serve by registered post, the process shall be
so served;
•
Provided that a debt counsellor who makes a referral to Court in terms
of Section 86(7)(c) or 86(8)(b) of the National Credit Act 34 of 2005
may cause the referral to be served by registered post or by hand;
•
In the case of a Minister, Deputy Minister or Provincial Premier, in his
or her official capacity, the State or Provincial administration, at the
Office of the State Attorney in Pretoria, or a branch of that Office which
serves the area of jurisdiction of the Court from which the process has
been issued;
•
To any agent or Legal Practitioner who is duly authorised in writing to
accept service on behalf of the person upon whom service is to be
affected in any applicable manner prescribed in this Rule;
•
Where a Local Authority or statutory body is to be served, on the town
Clerk or assistant Town Clerk or Mayor of such Local Authority or the
secretary or similar officer or member of the board or committee of
such body, or in any manner provided by law; or
•
Where the person to be served with any document initiating application
proceedings is already represented by a Legal Practitioner of record
such document may be served upon such Legal Practitioner by the
party initiating the proceedings.
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SELF-ASSESSMENT QUESTIONS: QUESTION 7
1.
2.
Draft the particulars of claim and prayers for each of the following:
a)
A cheque;
(15 marks)
b)
A bond;
(15 marks)
c)
An acknowledgement of debt.
(15 marks)
The Plaintiff is an estate agent and had a verbal mandate to sell the Defendant’s house
for the sum of R200 000. The usual commission of the agent was 5% of the gross
selling price. The Plaintiff introduced a buyer, Mr B Baaier, to the property and after
negotiations with the Defendant, Mr Baaier informed the Plaintiff that the price was
too high and that he was not interested in buying the property. Six months later the
Plaintiff discovers that Mr B Baaier had indeed bought the property but for a lesser
price, namely R160 000.
Does the Plaintiff have a claim and if so, what are the reasons? Draft the particulars of
claim.
(15 marks)
3.
The seller sold a house to the Defendant in terms of a written agreement subject
to the provisions of the Alienation of Land Act No. 68 of 1981 in that the purchase
price was payable over a period of two years in monthly instalments. The
agreement was signed at Pretoria on the 1st of March last year and the house was
described as the Remaining extent of erf 702 Hatfield.
Further provisions of the agreement were that the purchase price was R140 000, a
deposit of R14 000 was payable on signing thereof and the balance in monthly
instalments of R2 100 which included the interest as well as rates and taxes of R175
per month. Transfer was to take place within two years after signature of the
agreement after payment of the full purchase price or after the necessary
guarantees were provided.
Interest on the purchase price was to be calculated at 19% per annum which was
the prescribed rate at the time. It was further provided that if the purchaser failed
to perform any of his obligations, the seller had to give 30 days’ notice of the breach
before he may elect to cancel the agreement. In the event of cancellation as a result
of a breach by the purchaser, the purchaser will forfeit all payments already made,
remain liable for arrear instalments and will also be liable for damages which the
seller may have suffered.
The purchaser undertook to keep the house and grounds in the same good condition
that it was in when he received it and the parties consented to the jurisdiction of a
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Magistrate’s Court for any action arising from the agreement. The purchaser duly paid
the deposit, took occupation, and paid five consecutive monthly instalments.
Thereafter he failed to pay anything further for two months whereafter the seller gave
30 days’ notice of his intention to cancel. There was no reaction to the notice and 60
days after giving notice, the seller cancelled the agreement by a further notice. After
cancellation the seller finds that the purchaser had already vacated the house, but he
finds him at his business address.
On cancellation the balance owing on the agreement was the sum of R134 000. The
seller finds the house to be extensively damaged in that the carpets, the light
fittings, cupboards, walls and stove were damaged. The walls were so dirty that the
inside of the house had to be repainted. The seller, your client, wants to claim:
Arrear instalments, the difference between the balance of the purchase price on
cancellation, R134 000 owing by the purchaser Defendant and the present market
value of the house, R135 000 less the commission of an agent R5 000. The repair
costs to the house being the sum of R14 500.
Draft the particulars of claim and prayers for all claims which the seller may have.
Does the seller have valid claims for all of the above?
(15 marks)
4.
On the 7th of June last year in terms of a written agreement the Plaintiff sold to the
Defendant a stand described as erf 1409 situated in the township Hennopspark for
the sum of R155 000. The written agreement obliged the Defendant to deliver
guarantees for the payment of the purchase price within 60 days after the signing
thereof. The sale was subject to a bank loan of R125 000 being granted within 45
days after the signing of the agreement. Further terms of the agreement were that
occupation would take place on transfer and from that date the Defendant would
become liable for payment of rates and taxes, and that a Magistrate’s Court would
have jurisdiction for any action or Court process arising from the agreement. The
bank granted the loan within 45 days, but the Defendant refused or neglected to
take transfer and pay the purchase price.
Your client, the Plaintiff wants to claim specific performance.
Attempt the following:
a.
Draft the particulars of claim.
b.
Is he allowed to claim specific performance having regard to the provisions of
Section 46 of the Magistrates’ Courts Act and why?
(5 marks)
c.
Suppose the loan is only granted 50 days after the signing of the agreement.
(2 marks)
d.
Will the Plaintiff still have a claim and under what circumstances?
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7.
UNDEFENDED ACTIONS
RANGE STATEMENT:
Explain, draft, and perform all actions related to undefended actions.
SECTION OUTCOMES:
After completing this section, you should be able to:
•
Explain what you understand by default judgment.
•
Determine in a given set of facts whether default judgment is possible.
•
In a given set of facts be able to draft a request for default judgment.
7.1
RULE 12 – JUDGMENT BY DEFAULT
Rule 12 of the Rules deals with default judgments. In the Regional Court,
Civil Practice Directive 7 applies with regard to default judgment on damages
claims. When dealing with default judgments in the Regional Court please
have reference to this Directive.
It should be noted that the different Courts have different requirements to
be adhered to before granting a default judgment. Please acquaint yourself
with your Local Court’s requirements.
7.1.1
Basis of Default Judgment
The basis of a judgment by default is a deemed admission of the claim, by
the Defendant. This is obvious from both the warning contained in the
summons and the following dictum of Boshoff, J, in Fatti’s Engineering
Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T) at
739B-C:
“The Defendant is in default and it is reasonable to suppose in the majority
of cases that he is not disputing the claim nor the amount thereof.”
7.1.2
When may a Judgment by Default be granted?
The Rules of Court for Magistrates’ Courts provide for the grant of default
judgments in four circumstances. Rule 12(1) provides for a default
judgment to be granted in one of two instances.
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7.1.2.1 Rule 12(1)(a)
There are two requirements for the grant of a default judgment in
terms of this sub-rule:
•
The Defendant fails to enter an appearance to defend within
the time limit specified in the summons, or before the
Plaintiff lodges his/her request for judgment by default; and
•
The Defendant has not consented to judgment.
7.1.2.2 Rule 12(1)(b)
The procedure in Rule 12(1)(b) applies where the Defendant has failed
to deliver his/her plea timeously. The requirements for a default
judgment in such a case are the following:
•
The Defendant has entered an appearance to defend;
•
(S)he fails to deliver his/her plea within the time specified
in Rule 17 or within any extended time allowed;
•
The Plaintiff has delivered a written notice calling upon the
Defendant to deliver his/her plea within 5 days of receipt of
the notice (a “notice of bar”) in terms of Rule 21B(2); and
•
The Defendant has failed to deliver a plea as notified.
•
Rule 12(1)(b)(i) provides that if the Defendant fails to
deliver a plea within the time limit, “he shall be in default
with such plea, and ipso facto barred.”
It was held in Speelman v Duncan and Another 1997 (1) SA
868 (C) at 870H-J that there was no merit in the argument that
the five days allowed for the filing of a plea run from the date of
delivery of the notice to the Clerk of the Court. The Court held that
all that Rule 12(1) requires is that a copy of the notice must be
delivered to the Clerk of the Court, but the notice must give the
Defendant who receives it five days from the date of receipt of the
notice within which to comply with it.
In Santam Ltd & Others v Bamber 2005 (5) SA 209 (W), the
Defendant had failed timeously to deliver its plea after having
entered an appearance to defend. The Plaintiff delivered a notice
of bar in terms of Rule 12(1)(b). On the last day of the five-day
period, the Defendant served its plea on the Plaintiff’s Legal
Practitioner, but only filed the plea with the Clerk of the Court on
the following day. The plea was thus delivered one day late,
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entitling the Plaintiff to approach the Court for default judgment
without notice to the Defendant. Plaintiff’s Legal Practitioner filed
a request for default judgment without notifying the Court of the
existence of the plea (the Court’s copy of the plea had, meanwhile,
gone astray). Default judgment was granted.
An application for rescission of the judgment failed. On appeal, the
Court held that the Plaintiff’s Legal Practitioner could not have
been in any doubt that it was the Defendant’s intention to defend
the matter.
A request for default judgment is in the nature of an ex parte
application, where an Applicant is generally required to make full
disclosure of all relevant facts. There was no reason why the Plaintiff’s
Legal Practitioner should not have disclosed the fact of service of the
plea to the Court. The Court held that the approach always had been
and would continue to be that a Defendant should not easily be
deprived of the opportunity to defend the case against him or her. The
Court also expressed its displeasure at the conduct of the Plaintiff’s
Legal Practitioner.
Modesi v Mosiga 1927 TPD 150
Santam Ltd and Others v Bamber [2006] 1 All SA 311 (W); 2005 (5) SA 209
(W)
Mthanthi v Pepler 1993 (4) SA 368 (D) at 374B
7.1.2.3 Judgment by Default in terms of Rule 60(3)
Rule 60(3) provides a further method whereby judgment by default
may be obtained. In terms of Rule 60(1), a failure to comply with
the Rules, or any request made in terms thereof, is not per se a
ground for giving judgment against the defaulting party. The other
party (here, the Plaintiff) may, however, apply to the Court for an
order compelling compliance within a stated time (Rule 60(2)). If
the Defendant fails to comply with the order, the Plaintiff may
then, by means of an application, obtain judgment against the
defaulting Defendant (Rule 60(3)).
It often happens that a Defendant’s Legal Practitioner withdraws
from the matter and in the notice of withdrawal states, “… Be
pleased to take notice that ABC hereby withdraws as Legal
Practitioners of record for the Defendant in the above matter,
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whose last known address is, and to whom notice hereof is being
given by registered post.”
The address given is usually different from the service and postal
addresses given in the notice of intention to defend. It was held in
Thornhill v Gerhardt 1979 (2) SA 1092 (T) that service upon
the Defendant using the address in the notice of withdrawal was
not proper and that a judgment could not be granted on the basis
of the Defendant’s default in such a case.
This position is endorsed by the introduction of Magistrates Court
Rule 52A.
7.1.2.4 Judgment by Default in terms of Rule 32(2)
•
The matter has been set down for trial or postponed to a
specific date for trial; and
•
A party (Plaintiff, Defendant Applicant or Respondent) fails
to appear on the date for set down for trial/argument.
Before relief may be claimed under Rule 32(2), the matter must
have been properly enrolled for trial/hearing.
Van Der Post v Magistrate of Rehoboth & Another 1924 SWA 86 at 90
Du Toit Bornman 1992 (4) SA 257 (C)
A Defendant is not absent within the meaning of Rule 32(2) if
he/she is personally absent, but his/her Legal Representative is
present.
Serfontein v Bosch 1930 OPD 75 at 78;
Labuschagne v Van Schalkwyk 1949 (1) PH F34 (O).
7.1.3
Request for Default Judgment
In the case of applications of default judgment in terms of both Rule
12(1)(a) and Rule 12(1)(b):
•
the Plaintiff must lodge a written request for judgment, in duplicate,
•
together with the following documents (Rule 12(1)(a) and (b)(ii)):
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o
The original summons; and
o
The original return of service.
Please note that if an application for default judgment is lodged in respect
of an action based on a liquid document or any agreement in writing, the
Plaintiff shall together with a request for default judgment file the original
of such document or any other agreement in writing or an affidavit setting
out reasons to the satisfaction of the Court or Registrar or Clerk of the Court
why such original cannot or should not be filed in terms of Rule 12(3A) and
Rule 12(6).
7.1.3.1 Judgment may be Requested For (Rule 12(1)(a)):
7.1.4
•
Any sum not exceeding the amount claimed in the
summons; or
•
Any other relief claimed in the summons;
•
The costs of the action;
•
Interest at the rate specified in the summons to the date of
payment; or, in the absence of such a rate having been
specified in the summons, at the rate determined in terms
of Section 1(2) of the Prescribed Rate of Interest Act No. 55
of 1975.
Postal Service of Summons (Rule 12(3))
If the summons was served by registered post, as provided for in Rule
9(13), the Clerk of the Court may not enter judgment by default unless the
acknowledgment of receipt referred to in Rule 9(13)(a) has been filed by
the Sheriff with his/her return of service.
In connection with a corresponding provision in the old Rules, it was held
in:
Newman v Ayten 1931 CPD 454 at 455-456 that, “… the
acknowledgment of the addressee must be an acknowledgment signed by
the addressee himself …. In this case the clerk of the court had no means
of knowing that the acknowledgment was not of the addressee but once it
was brought to the notice of the Magistrate that the person who signed was
not the addressee, the Magistrate should have set aside the judgment.”
(In this case, the Defendant had appealed against a refusal by a Magistrate
to rescind a judgment by default, where it had transpired that not the
Defendant, but his wife who had the same initials, had signed the
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acknowledgment of receipt. It was held that the rescission should have been
granted.)
Further formalities
In terms of Rule 3(2), the request for default judgment must bear the
correct case number, in the absence of which it may not be received by the
Clerk of the Court.
The request for judgment should be signed by the Plaintiff or his/her Legal
Practitioner (although this is not stated in Rule 12 the Form 5 itself provides
for the signature of the Plaintiff or his/her Legal Practitioner).
7.1.5
Unliquidated Claims (Rule 12(4))
When is a claim liquidated or unliquidated?
Fattis Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA
736 (T) at 739 A-F:
“When the amount is due upon a contract and the exact amount due is
simply a matter for calculation from figures in books, the claim is a
liquidated one …
“When a contract of sale is concluded and there is no express agreement
as to the price of the article sold, it is an implied term of the contract that
a reasonable price will be paid for the article, that is to say a price ordinarily
charged by persons who deal in such articles at the time and place of the
sale. Similarly, where a contract for the rendering of services is concluded
and the parties do not agree as to the remuneration to be paid therefore, it
is an implied term of the contract that a reasonable remuneration will be
paid for such services; such remuneration depends on what is regarded as
reasonable in that particular trade or profession. In our organised society
with business, trades and professions organised, as they are it is normally
a matter of no difficulty to determine the usual and amount market price of
articles sold and the reasonable remuneration for services rendered. These
are matters which as a rule can be ascertained speedily and promptly.”
Erasmus & Van Loggerenberg Vol II at 12-9—12-10.
Unliquidated claims include claims for damages where the quantum has not
been ascertained by agreement or otherwise; claims for reasonable
remuneration for services rendered, where the remuneration is not fixed by
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trade usage or custom; claims for enrichment, etc. A claim for unliquidated
damages becomes liquidated if the parties agree to the quantum.
Siman & Co v Barclays National Bank 1984 (2) 888 (A) at 926 E.
7.1.6
Procedure in terms of Rule 12(4)
The Court may, in terms of Rule 12(4), require the Plaintiff to furnish
evidence, either viva voce, or by affidavit, of the nature and extent of the
claim (at default Judgment an affidavit will usually suffice).
Nature of the claim means no more than that the Plaintiff shall, for
example, where the unliquidated claim is one for damages, furnish evidence
of whether the damages arise from damage to property or from personal
injuries …
The Rule does not require the Magistrate to decide whether or not the cause
of action has been proved or, indeed, to apply his mind to any evidence
relating to the cause of action. His sole duty was, and is, to assess the
amount recoverable by the Plaintiff and to give appropriate judgment. No
purpose would, accordingly, be served in furnishing evidence, either oral or
by affidavit, in regard to the cause of action.
Durban City Council v Petersen 1970 (1) SA 720 (N) at 72;
Barclays Western Bank v Creser 1982 (2) SA 104 (T) at 106A-D.
7.1.7
Costs
If the Defendant has not entered an appearance to defend, costs are
awarded on the undefended scale (Part II of Annexure 2 to the Rules).
Otherwise, costs are awarded on the defended scale (Rule 12(1)(d)).
May costs be awarded as between Attorney and client when default
judgment is granted?
It has been held, in a long line of decisions that such costs may be granted
if there was an agreement to that effect between the parties.
The Magistrate may not, even if agreed to by the parties, grant an order for
costs on an Attorney / own client scale.
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SA Perm Building Society v Powell and Others 1986 (1) SA 714 (A);
SA Savings Credit Bank Ltd v Bradbury and Others 1975 (1) SA 936 (T);
Sapirstein and Others v Anglo African Shipping Co (SA) Ltd 1978 (4) SA 1 (A);
Credex Finance (Pty) Ltd v Kuhn 1977 (3) SA 482 (N).
War Systems Technologies CC t/a System Technologies v United Computer
Systems (JHB) CC [2004] 1 All SA 457 (W)
Neuhoff v New York Timbers Ltd 1981 (4) SA 666 (T)
7.1.8
Default Judgment Checklist
When applying for default judgment, it is necessary to ensure that one’s
papers are in order, in the following respects:
•
Was the summons properly issued?
•
Was the summons date-stamped by the Clerk of the Court on the
date of issue?
•
Was the summons signed by both the Clerk of the Court and the
Plaintiff or his/her Legal Practitioner?
•
Does the summons have a case number?
•
Were all amendments to the summons initialled by the Clerk of the
Court prior to service?
•
Are the parties properly cited in accordance with the requirements of
Rule 6?
•
Do the particulars of claim disclose a cause of action?
•
Does the Court have jurisdiction?
•
Does the summons contain a prayer for interest? If so, is the interest
claimed, within the maximum limit set by the Minister in terms of the
Usury Act No. 73 of 1968? This Act has been repealed by the National
Credit Act No. 34 of 2005 and therefore retrospective guidelines must
be considered. Section 103(5) of the National Credit Act No. 34 of
2005 states that despite any provision of the common law or a credit
agreement to the contrary, the amounts contemplated in Section
101(b)(f) and (g) of that Act that accrue during a time that the
consumer is in default under the credit agreement may not in
aggregate, exceed the unpaid balance of the Principal Debt under
that credit agreement.
•
Is a particular rate of interest claimed, or is interest merely claimed at
“the legal rate”? (The “legal rate” referred to is the rate determined by
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the Minister in terms of the Prescribed Rate of Interest Act No. 55 of
1975; presently, the prescribed rate is 9.75 % p.a.).
•
Is a date given from which the Defendant is alleged to be in mora?
If so, the factual basis therefore must be alleged e.g., agreement or
letter of demand stating date for performance. If no date is given,
the date from which interest is awarded, will be the date of service
of summons (that being the date of demand).
•
Were the correct dies induciae (10 days, unless the Defendant is
the State or a servant of the State in his/her official capacity, in which
case 20 days must be allowed) specified in the summons?
•
Are the costs, if the action is undefended, reflected on the face of the
summons?
•
Has the return of service been attached to the summons, and was
the summons properly served?
•
If a written agreement is relied upon it should be filed. If the cause
of action is based upon a liquid document, is the original thereof
attached to the summons? If the original is not available, have you
obtained an affidavit setting out reasons why it cannot or should not
be made available? In this regard, it should be noted that certain
financial institutions (and other clients) are hesitant to make the
original liquid document available to Court, due to the propensity of
documents (and even case files) to get lost at Magistrates’ Courts.
Request for default judgment:
•
Does the request have the correct case no. and are the same parties
referred to?
•
Does the amount for which judgment is requested, coincide with the
amount claimed in the summons, or a lesser amount?
•
Does the interest claimed coincide with that claimed in the summons?
•
Is the date from which interest is claimed, correct?
NB: If no interest was claimed in the summons, then a request for interest in the request
for default judgment may not be granted. If the amount for which judgment is requested,
or the percentage of interest requested, is lower than that prayed for in the summons,
judgment may only be granted for the lower amount or percentage, as the case may be.
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SELF-ASSESSMENT QUESTIONS: QUESTION 8
1.
Read the following facts and answer the questions below: Your client who is the
Plaintiff, instructs you to issue summons against the Defendant for an amount of
R18 000.00 in respect of damages to his motor vehicle arising from a motor
accident. The Defendant gives notice of intention to defend the action:
(i)
May the Plaintiff apply for summary judgment? Motivate your answer
referring fully to all instances where an application for summary judgment
may be made.
(ii)
Assuming that the Defendant’s notice of intention to defend was defective,
briefly indicate the contents and the requirements of the notice you will have
to serve before default judgment can be obtained. Do not draft the notice.
(iii)
The Defendant does not respond to the aforementioned notice, and you are
instructed to apply for default judgment. The reasonable market value of the
vehicle prior to the collision amounted to R20 000.00. The Plaintiff obtained
R5 000.00 for the wreck. The costs of repair of the vehicle amount to
R18 000.00. For what amount is the Plaintiff entitled to obtain judgment?
(iv)
Draft the affidavit in terms of Rule 12(4) in terms whereof an expert will
prove the nature and extent of the damages.
The expert’s name is Piet Xpert. He has been the foreman of a panel beating firm
for the past ten years and also has experience in respect of the value of secondhand motor vehicles and the value of wrecks of vehicles damaged in collisions.
(20 marks)
7.2
RULE 11 – JUDGMENT BY CONSENT
Rule 11 provides for consents to judgment. A consent to judgment is rarely
required. If a Defendant admits the whole of the Plaintiff’s claim, he may merely
pay the claim or make some arrangement for settlement without signing a
consent to judgment in terms of Rule 11.
According to Section 55A, for purposes of Chapters VIII (Recovery of Debts)
and IX (Execution) of this Act, the factors a Court must take into account
when considering whether an order is just and equitable, include, but are not
limited to the size of the debt; the circumstances in which the debt arose;
the availability of alternatives to recover the debt; the interests of the Plaintiff
or judgment creditor; the rights and needs of the elderly, children, persons
with disabilities and households headed by women; social values and
implications; the amount and nature of the Defendant’s or judgment debtor’s
income; the amounts needed by the Defendant or judgment debtor for
necessary expenses and those of the persons dependent on him or her and
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for the making of periodical payments which he or she is obliged to make in
terms of an order of Court, agreement or otherwise in respect of his or her
other commitments; and whether the order would, in the circumstances of
the case, be grossly disproportionate.
7.3
SECTIONS 57 AND 58
7.3.1
Section 57 – Admission of Liability and to pay debt in instalments
If any person (in this Section called the Defendant) has received a letter of
demand or has been served with a summons demanding payment of any
debt, the Defendant may in writing •
Admit liability to the Plaintiff for the amount of the debt and costs
claimed in the letter of demand or summons or for any other amount;
•
Offer to pay the amount of the debt and costs for which he admits
liability, in instalments or otherwise;
•
Undertake on payment of an instalment in terms of his offer to pay
the collection fees for which the Plaintiff is liable in respect of the
recovery of such instalment; and
•
Agree that in the event of his failure to carry out the terms of his
offer the Plaintiff shall, without notice to the Defendant, be entitled
to apply for judgment for the amount of the outstanding balance of
the debt for which he admits liability, with costs, and for an order of
Court for payment of the judgment debt and costs in instalments or
otherwise in accordance with his offer, and if the Plaintiff or his Legal
Practitioner accepts the said offer, he shall advise the Defendant of
such acceptance in writing by registered letter.
Insofar as the letter of demand referred to in Section 57 is concerned, a
letter of demand (Rule 4(1)(a)) requires that particulars of the nature and
amount of the claim be set out in the demand for purposes of Section 57
and 58.
The offer must set out full particulars of the Defendant’s monthly or weekly
income and expenditure, supported where reasonably possible by the most
recent proof in the possession of the Defendant; other Court orders or
agreements, if any, with other creditors for payment of a debt and costs in
instalments; and indicate the amount of the offered instalment.
The provisions of this Section apply subject to the relevant provisions of the
National Credit Act 34 of 2005 where the request for judgment is based on
a credit agreement under the National Credit Act 34 of 2005.
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7.3.2
Section 58 – Consent to Judgment and an Order for Payment of Debt
in Instalments
If any person (in this Section called the Defendant), upon the receipt of a
letter of demand or service upon him of a summons demanding payment of
any debt, consents in writing to judgment in favour of the creditor (in this
Section called the Plaintiff) for the amount of the debt and the costs claimed
in the letter of demand or summons, or for any other amount, the Clerk of
the Court shall, on the written request of the Plaintiff or his Legal
Practitioner accompanied by:
•
If no summons has been issued, a copy of the letter of demand; and
•
The Defendant’s written consent to judgment;
•
Enter judgment in favour of the Plaintiff for the amount of the debt
and the costs for which the Defendant has consented to judgment;
and
•
If it appears from the Defendant’s written consent to judgment that
he has also consented to an order of Court for payment in specified
instalments or otherwise of the amount of the debt and costs in
respect of which he has consented to judgment, order the Defendant
to pay the judgment debt and costs in specified instalments or
otherwise in accordance with his consent, and such order shall be
deemed to be an order of the Court mentioned in Section 65A (1).
If the Defendant consents to an order of Court for payment in specified
instalments, the consent must set out full particulars of his or her monthly
or weekly income and expenditure, supported where reasonably possible by
the most recent proof in the possession of the Defendant other Court orders
or agreements, if any, with other creditors for payment of a debt and costs
in instalments; and indicate the amount of the offered instalment.
The provisions of this Section apply subject to the relevant provisions of the
National Credit Act where the request for judgment is based on a credit
agreement under the National Credit Act 34 of 2005.
7.3.3
Difference between the Procedure created by Section 57 and that
created by Section 58
Section 57 provides for a written admission of liability by the Defendant
and an undertaking to pay the debt by instalments or otherwise, coupled
with an agreement that in the event of his failure to carry out the terms of
his offer, the Plaintiff may refer the matter to Court for judgment.
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Under Section 58 the debtor unconditionally consents to judgment and
the matter is immediately referred to the Clerk of the Court for judgment
and, where applicable, an order for payment in instalments.
7.3.4
7.3.5
Procedure
•
The request for default judgment under Section 57 and 58 is done in
terms of Section 59 as read with Rule 4(2).
•
Form 5A or 5B is used.
•
The request for judgment must be supported by an affidavit
containing evidence to prove that all legal requirements have been
met.
•
To be valid, consent to judgment in terms of Section 58 must be
signed by the debtor and two witnesses whose full names, addresses
and telephone numbers are recorded.
Rules which apply to Section 57 and Section 58
•
Sub-rule 12(6) requiring the original document; and
•
Rule 12(6A) requiring evidence of statutory compliance; and
•
Rule 12(7) authorising the Clerk of the Court or the Registrar to refer
an application for default judgment to the Court.
It has recently been held that fair and effective collection procedures (such
as those contained in Sections 57 and 58) promote the purpose of the
National Credit Act No. 34 of 2005 provided that the provisions of
Section 58 and those of the National Credit Act No. 34 of 2005 were applied
properly and with due regard to the parties’ rights. The Court has found
that it was in the interest of credit providers, consumers and of justice that
the effective debt collection procedure afforded by Section 58 is utilised. In
doing so the Court overturned a previous Magistrate’s Court finding that
Section 58 was contrary to the purposes of the National Credit Act No. 34
of 2005.
African Bank Limited vs Myambo N.O. & Others 2010 (6) SA 298
(GNP)
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SELF-ASSESSMENT QUESTIONS: QUESTION 9
A debtor asks you to allow him to pay the debt which he owes to your client in monthly
instalments. You are prepared to accept monthly instalments.
Draft the agreement that you would require the debtor to sign.
Assume that summons has already been issued.
(20 marks)
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8.
DEFENDED ACTIONS
RANGE STATEMENT:
Explain, draft, and perform all actions related to the procedure if an action is defended
which could include inter alia applying for default judgment, applying for summary
judgment, and so forth.
SECTION OUTCOMES:
After completing this section, you should be able to:

Draft a notice of intention to defend and explain how it must be served.

Identify the instances when an application for summary judgment may be invoked.
•
Distinguish the exception from a special plea.
•
Draft an exception and a special plea in a given set of facts.
•
Understand when to file a notice of bar and draft same in a given set of facts.
•
Distinguish between plea, plea to counterclaim and reply.
•
Draft a plea with regard to a given set of facts.
•
Draft application for summary judgment.
•
Indicate when pleadings are deemed to be closed in the Magistrate’s Court.
8.1
RULE 13 – NOTICE OF INTENTION TO DEFEND
•
A Defendant who wishes to defend an action must deliver a notice of
intention to defend.
•
The period within which the Defendant must enter an appearance to
defend is 10 days after service of summons on Defendant or if the
Defendant is the State, then within 20 days after service of the
summons.
•
Provided that the days between 16 December and 15 January, both
inclusive, shall not be counted in the time allowed within which to deliver
a notice of intention to defend.
•
The word “deliver” means to first serve a copy on the opposite party
either by hand-delivery, registered post, or, where agreed between
the parties or so ordered by Court, by facsimile or electronic mail (in
which instance Chapter III, Part 2 of the Electronic Communications
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and Transactions Act No. 25 of 2002 will apply) and then file the
original at the Clerk or Registrar of the Court.
8.2
•
The Defendant must provide the full details, including physical
address, facsimile number and e-mail and indicate the choice of
service of pleadings by the Plaintiff.
•
An appearance to defend, even if delivered after the 10/20 days still a
valid appearance to defend, provided default judgment has not been
granted. There is no need for the Defendant to ask for condonation.
RULE 62 – SECURITY FOR COSTS
•
A party entitled and desiring to demand security for costs from another
shall, as soon as practicable after the commencement of proceedings,
deliver a notice setting forth the grounds upon which such security is
claimed, and the amount demanded.
•
If only the amount of security demanded under sub-rule (1) is
contested the Registrar or Clerk of the Court shall determine the
amount to be given and his or her decision shall be final.
•
If a party from whom security is demanded under sub-rule (1) contests
his or her liability to give security or fails or refuses to furnish security
in the amount demanded or the amount fixed by the Registrar or Clerk
within 10 days of the demand or the Registrar’s or Clerk’s decision,
the other party may apply to Court on notice for an order that such
security be given and that the proceedings be stayed until such order
is complied with.
•
The Court may, if security demanded is not given within a reasonable
time, dismiss any proceedings instituted or strike out any pleadings filed
by the party in default, or make such other order as it deems fit.
•
Any security for costs shall, unless the Court otherwise directs, or the
parties otherwise agree, be given in the form, amount and manner
directed by the Registrar or Clerk of the Court.
•
The Registrar or Clerk of the Court may, upon written request of the
party in whose favour security is to be provided and on notice to
interested parties, increase the amount thereof if he or she is satisfied
that the amount originally furnished is no longer sufficient; and his or
her decision shall be final.
•
The Court never involves itself in determining how much security
should be furnished.
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8.2.1 Remedies
Section 62 provides its own remedy for failure to furnish security and
therefore Rule 60 is not applicable in this case. Rule 62(4) stipulates that if
security is not given within a reasonable time the Court may dismiss any
proceedings instituted or strike out any pleadings filed by the party in
default.
The procedure to be followed is by means of an application or notice to the
Respondent in terms of Rule 55(1), supported by an affidavit, if necessary.
8.2.2 Grounds Upon Which a Party is Entitled to Security for Costs
This Rule does not set out the grounds upon which a party is entitled to
demand security for costs from the other. It deals only with the procedure
to be followed in such an instance. Recourse must therefore be had to the
common law and other statutory provisions which deal with security for
costs.
Siemens Telecommunications (Pty) Ltd v Datagenics (Pty) Ltd 2013 (1) SA
65 (GNP) at 71I – 72A
Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd [2015] 3
All SA 255 (SCA)
Actions by peregrini
A peregrinus who is the Plaintiff and who does not own unmortgaged
immovable property in the Republic may be ordered to give security for
costs of his action. The Court has a discretion whether or not to order
security to be lodged in any given case. All the relevant facts as well as
equity and fairness to both parties will be considered.
In Exploitatie- en Beleggingsmaatschappij Argonauten 11 BV v
Honig 2012 (1) SA 247 (SCA) at 255B-C it was held that the fact that
the Applicant for security for costs would have to proceed abroad against a
peregrinus Respondent if he obtained a costs order in his favour, with the
associated uncertainty and inconvenience that would entail, and that it
would be substantially more expensive to do so than litigating in the
Republic, was one of the fundamental reasons why a peregrinus should
provide security.
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Belizca Investments CC t/a Mica Hardware & Building Supplies v UCKG
Properties 2004 (4) SA 197 (TkH) par 13–21 at 202C–204D
Firstrand Bank Ltd v Pather 2005 (4) SA 429 (N) at 432F
Computer Brilliance CC v Swanepoel 2005 (4) SA 433 (T) par 48–49 at 443H–
444A
8.3
RULE 15 – DECLARATION
If a Defendant, who has been served a simple summons, defends the action,
then the Plaintiff is required to deliver a declaration. Failure to deliver a
declaration within the time stated does not entail an automatic bar; a notice
in terms of Rule 21B(2) (notice of bar) must first be given. Only if the Plaintiff
is in default of the notice of bar, is he automatically barred from delivering a
declaration as envisaged in Rule 21B(3) and the Defendant may apply to
have the Plaintiff’s claim dismissed with costs.
8.4
RULE 19 – EXCEPTIONS AND APPLICATIONS TO STRIKE OUT
An exception is a legal objection to the opponent’s pleading. It complains of
a defect inherent in the pleading. When an exception is taken the Court must
look at the pleading excepted to as it stands - no facts outside those stated
can be brought into issue. The Court accepts (as does the excipient) that
what has been alleged in the material statement of facts is in fact proven.
The purpose of an objection is to dispose of the case or a portion thereof in
an expeditious manner if there is no cause of action alleged or to protect a
party against an embarrassment which is so serious as to merit the costs of
an exception.
An exception provides a useful mechanism for weeding out cases without
legal merit. Thus, an exception founded upon the contention that the
particulars of claim or declaration discloses no cause of action, or that a plea
lacks averments necessary to sustain a defence is designed to obtain a
decision on a point of law which will dispose of the case in whole or in part
and avoid the leading of unnecessary evidence at the trial.
Where the ground of exception is that the summons or plea does not disclose
a cause of action or a defence, as the case may be, the exception provides a
cheap and speedy method of determination of the case.
However, when an exception is upheld because no cause of action/defence
is disclosed, the invariable practice of our Courts is to order that the pleading
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be set aside and that the Plaintiff or Defendant be given leave, if so
requested, to file an amended pleading within a certain period of time.
Group Five Building Ltd v Government of the RSA 1993 (2) SA 593
(A) at 602D.
Elgin Brown & Hamer (Pty) Ltd v Industrial Machinery Suppliers
(Pty) Ltd 1993 (3) SA 424 (A) at 431C–H.
Jones & Buckle, 10th Edition, Volume II, Rule 19-1 to 19-16
Ocean Echo Properties 327 CC V Old Mutual Life Assurance Company
(South Africa) Limited 2018 (3) SA 405 (SCA) the Court found that
upholding an exception dispose of the pleading, not the action. Ordinarily the
Court should grant leave to amend and not dispose of the matter.
This practice also applies where an exception has been granted on the ground
that the pleading is vague and embarrassing.
Trope & Others v South African Reserve Bank 1993 (3) SA 264 (A) at 269I.
All I wish to add to the remarks in Group Five Building Ltd v Government
of the Republic of South Africa Public Works and Land and Land
Affairs) 1993(2) SA 593 (A) at 602C-604I is that it is doubtful whether
this established practice brooks of any departure and that, in the rare cases
in which a departure may perhaps be permissible, one expects to find the
reasons in the Court's judgment.
Rowe v Rowe 1997 (4) SA 160 (SCA) at 167G–I.
Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing 2001
(2) SA 790 (T) at 796I–J.
H T Group (Pty) Ltd v Hazelhurst and Another [2003] 2 All SA 262 (C)
The grounds of exception to a summons are two-fold:
•
That the summons does not disclose a cause of action;
•
That the summons is vague and embarrassing.
There are two possible grounds of exception to a plea:
•
That the plea does not disclose a defence to Plaintiff’s claim;
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•
That the plea is vague and embarrassing.
In exception proceedings, the excipient is confined to the four corners of the
particulars of claim or plea. The defence raised by exception must appear
from the particulars of claim or plea themselves; the excipient (and the
Court) must, for the purposes of the exception, accept as true the allegations
therein and no new matter may be introduced.
In terms of Rule 19(1)(b) a party (excipient) who intends to take an
exception shall do so, by notice within 10 days of receipt of the pleading.
The party is given 15 days to remove the cause of complaint, failing which
the excipient may set the matter down for hearing on 10 days’ notice (in
terms of Rule 55). Failure to set it down within the 10 days, will result in the
exception lapsing.
An exception cannot, without the consent or acquiescence of a party’s
opponent, be raised informally during the trial.
Moodley v Bondcrete (Pty) Ltd 1969 (2) SA 370 (N) at 374C–H.
However, it may be possible to have an exception decided as a separate issue
in terms of Rule 29(4).
Edward L Bateman Ltd v C A Brand Projects (Pty) Ltd 1995 (4) SA 128 (T).
In the event of such a course of action being followed, it may be necessary
to consider the question of whether the “excipient” should not be liable for
the wasted costs incurred by not having accepted formally at the proper time.
A stricter view is taken of the plea than of the summons (Jones & Buckle, Vol
II, 19-4; 19-16 and the authorities there cited).
Where a summons contains more than one claim, a Defendant may take
exception to any one or more of such claims.
A pleading is vague and embarrassing if:
•
it is capable of more than one meaning or if;
•
the meaning cannot reasonably be ascertained if;
•
it has a determinable meaning but is so vague that the excipient does
not know what the other party’s case is;
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•
averments in a pleading that are contradictory and are not pleaded in
the alternative are patently vague and embarrassing.
‘(A) n exception that the pleading is vague, and embarrassing may only be
taken when the vagueness and embarrassment strikes at the root of the
cause of action as pleaded … It is therefore incumbent upon a Plaintiff only
to plead a complete cause of action which identifies the issues upon which
the Plaintiff seeks to rely, and on which evidence will be led, in intelligible
and lucid form and which allows the Defendant to plead to it. The attacks
mounted by the Defendants that their particulars of claim are vague, and
embarrassing cannot be found on the mere averment that they are lacking
in particularity.’
Jowell v Bramwell-Jones 1998 (1) SA 836 (W) At 902G–I)
For the principles in deciding whether to except to a pleading, see:
Jowell v Bramwell-Jones 1998 (1) SA 836 (W) At 902I—903E.
It was said in McKelvey v Cowan NO 1980 (4) SA 525 (Z) at 526D–E,
quoted with approval in South African National Parks v Ras 2002 (2) SA
537 (C) at 543A:
“It is a first principle in dealing with matters of exception that, if evidence
can be led which can disclose a cause of action alleged in the pleadings, that
particular pleading is not excipiable. A pleading is only excipiable on the
basis that no possible evidence led on the pleading can disclose a cause of
action.”
SELF-ASSESSMENT QUESTIONS: QUESTION 10
A:
You receive the following Plea to the Particulars of Claim which read as follows:
PARTICULARS OF CLAIM
1.
Plaintiff is the holder in due course of a cheque dated 1 March 2020 for the sum
of R10 000 drawn by the Defendant in favour of “cash” upon the Sea Point branch
of Nedbank Ltd.
2.
The Plaintiff duly presented the cheque for payment on 2 March 2020 and the cheque
was dishonoured by non-payment, Defendant having countermanded payment thereof.
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3.
Notice of dishonour is dispensed with in terms of Section 48(2)(c) of the Bills of
Exchange Act No. 34 of 1964 in that the Defendant has countermanded payment
of the cheque.
4.
Notwithstanding due demand the Defendant has failed to pay to the Plaintiff the
aforesaid sum of R10 000.
WHEREFORE Plaintiff claims:
1.
Payment of the sum of R10 000;
2.
Interest thereon @ a tempore morae to date of payment;
3.
Costs of suit.
PLEA
1.
Ad para 1
Defendant admits the contents of this paragraph.
2.
Ad para 2
2.1
Defendant admits the contents of this paragraph but avers that he entered into an
agreement with ABC (Pty) Ltd in terms whereof the said ABC (Pty) Ltd sold and
delivered goods to the value of R10 000 to him.
2.2
On delivery of the goods Defendant paid for the goods with the said cheque.
2.3
On inspection of the goods Defendant found all the goods to be damaged, returned
same to BC (Pty) Ltd and countermanded payment of the cheque as it was entitled to
do.
Draft the necessary exception to the Plea. (15 marks)
B:
Your client receives the following summons:
PARTICULARS OF CLAIM
1.
Plaintiff and Defendant are as set out on the face of the summons.
2.
On 20 May last year at Cape Town the parties entered into a written agreement of
lease in terms whereof Plaintiff let to Defendant a property situate at 50 Roeland
Street, Cape Town at a monthly rental of R5 000. A copy of the lease agreement is
attached hereto.
3.
On 1 June the Defendant took occupation of the premises and has been in
occupation since then.
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4.
Despite demand Defendant has failed to pay rental for the months of November
and December.
WHEREFORE Plaintiff claims:
1.
Payment of the sum of R10 000;
2.
Ejectment;
3.
Interest @ a tempore morae to date of payment;
4.
Costs of suit.
You may assume that the lease agreement has been attached and that the parties have
been properly described. Draft the necessary exception.
(15 marks)
8.4.1 Procedure
•
If a party wishes to except to a pleading, he/she must do so within the
period allowed for the filing of any subsequent pleading.
•
If the exception is that the pleading does not plead a cause of action
or is vague and embarrassing, the party must, before notice of the
exception, deliver a notice to his/her opponent giving an opportunity
to remove the cause of complaint.
•
After delivery of the notice to remove the cause of complaint, the party
on whom the notice is provided has 15 days to remove the cause of
complaint.
•
The party excepting shall within 10 days from the date on which a
reply to remove the cause of complaint is received or from the date on
which such reply is due to deliver such exception.
•
A notice of exception must contain particulars of the exception and
must clearly and concisely state the grounds on which the exception
is founded.
•
If the notice of exception is not delivered within the period allowed for
filing of any subsequent pleading the party wishing to except is out of
time and may only raise the exception with the leave of Court (on
notice of motion).
•
If there is more than one claim in a summons, the Defendant may
except to any or all of the claims.
•
If there is both a notice of exception to a summons and application for
summary judgment, the exception must be determined at the hearing
of the summary judgment application.
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•
In other cases, the exception may be set down for hearing in terms of
Rule 55(1) by either party on 10 days’ notice for hearing before the
trial.
Newton vs Malcomess & Co Ltd, 1931 GWLD 132
•
The Court may only uphold the exception if it is satisfied that the
excipient would be prejudiced in conduct of his/her defence if the
pleading were allowed to stand.
•
Where the ground of exception is that the summons discloses no cause
of action or that the plea discloses no defence that ground is
established, the excipient need not establish prejudice as prejudice is
beyond doubt.
•
When an exception is upheld the invariable practice of our Courts is to
order that the pleading be set aside and that the Plaintiff (or
Defendant) be given leave, if so requested, to file an amended
pleading within a certain period of time, usually as prescribed by
Rule 55A.
On the issue of whether decisions on exceptions are appealable, see
TWK
Agriculture
Holdings
(Pty)
Ltd
v
Hoogveld
Boerderybeleggings (Pty) Ltd and Others 2023 (5) SA 163
(SCA).
•
8.5
RULE 17 – THE PLEA
The plea is essentially the Defendant’s reply to the Plaintiff’s particulars of
claim and contains the Defendant’s defence to the Plaintiff’s claim. There are
two main kinds of plea:
•
Plea on the merits, and
•
Special plea.
Where a Defendant has delivered a notice of intention to defend, the
Defendant shall within 20 days after service upon him/her of a declaration or
within 20 days after delivery of such notice of intention to defend in respect
of a combined summons, deliver a plea with or without a claim in
reconvention or an exception with or without application to strike out.
If the Defendant does not deliver a plea within this time, the Plaintiff may
deliver a ‘notice of bar’, calling upon the Defendant to deliver a plea within 5
days. If the Defendant fails to react to the notice of bar, he/she is ipso facto
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barred from delivering a plea. The Defendant may then only deliver a plea if
the bar has been lifted, by means of the procedure provided for in Rule 60(5).
The plea must be dated, signed by the Defendant or his/her Legal Practitioner
and the Defendant’s address must appear on the plea.
All material allegations made in the Plaintiff’s particulars of claim must be
addressed in the plea. All material facts must be either admitted or denied
or confessed and avoided. The usual form which a plea would take would be
to refer specifically to each and every paragraph of the particulars of claim
and to state whether the allegation is admitted, denied or confessed and
avoided.
ABSA Bank Ltd v I W Blumberg and Wilkinson 1997 (3) SA 669 (SCA)
at 673I–J.
8.5.1
Admission of Facts
An admission puts no point in issue at all but operates to eliminate the
admitted fact from the issues to be tried. Its effect is to bind the party
making it and he or she is bound to the extent of its inevitable consequences
or necessary implications unless these are specially stated to be denied.
If a Defendant omits to deal specifically with any of the Plaintiff’s allegations
of fact these facts will be taken to be admitted.
The plea cannot be amended by an ordinary notice of intention to amend
but a substantive application to Court is required. It must be shown on oath
that the admission was made in error and that the Plaintiff will not suffer
material prejudice if the amendment is granted.
The Court of Appeal has recently confirmed that it is permissible to withdraw
an admission.
In Kevin and Lasia Property Investments CC and Another v Roos NO
and Others (2004) All SA 380 (SCA) the Court held that the admission
made by one of the parties did not require a formal withdrawal. Each case
had to be decided on its own circumstances.
If an amendment encompassing an admission is opposed, the admission
may only be withdrawn with the leave of the Court. As to the Court’s
approach when faced with an application an amendment to a pleading which
has the effect of withdrawing an admission, the Court will require a
satisfactory explanation both of the circumstances where under the
admission was made and of the reasons why it is now sought to withdraw
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it; and, as in the case of all amendments to pleadings, the question of
possible prejudice to the opposing party will also be considered.
Frenkel, Wise & Co, Ltd v Cuthbert: Cuthbert v Frenkel, Wise & Co, Ltd 1946
CPD 735 at 749.
Fleet Motors (Pty) Ltd v Epsom Motors (Pty) Ltd 1960 (3) SA 401 (D) at 404A;
Bellairs v Hodnett 1978 (1) SA 1109 (A) at 1150G–H;
Levy v Levy 1991 (3) SA 614 (A) at 622C–D
J R Janisch (Pty) Ltd v W M Spilhaus & Co (WP) (Pty) Ltd 1992 (1) SA 167 (C);
Fourie v Sentrasure Bpk 1997 (4) SA 950 (NC) at973I/J—974B/C.
8.5.2
8.5.3
Denial
•
A denial places the allegation of fact in the opponent’s pleading in
issue and must be proved at trial.
•
A “bare” denial is not admissible. Should the Defendant’s plea be such
a denial, this plea is regarded as an irregular step and the provisions
of Rule 60A can be invoked by the Plaintiff.
•
As the main function of the plea is to inform the Plaintiff of the case
he or she has to meet, any denial in the plea must be unambiguous
and give reasons for the denial.
•
As with the Plaintiff’s particulars of claim, a Defendant may not plead
a legal conclusion couched in the form of a denial, without setting out
the factual basis for such conclusion.
•
The object of the Rule is to have the defence stated with sufficient
precision and in sufficient detail to enable a Plaintiff to know what
case he/she had to meet.
Confess and Avoidance
•
In this form of pleading, the Defendant admits the facts alleged by
the Plaintiff, but alleges certain other facts which would have the
effect of putting a different complexion on the facts given by Plaintiff
or the legal conclusion the Plaintiff seeks to draw from the facts
pleaded.
•
In De Villiers v Pyott 1947 (1) SA 381 (C), an application for
ejectment after the expiry of contract of lease: Respondent admitted
expiry of the original contract (confess) but alleged that it had been
renewed (avoids or denies liability).
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•
The effect of a confession and avoidance is: usually the onus rests on
the Plaintiff to prove his/her case but here the onus is on the
Defendant to prove the facts he/she alleges.
8.5.4. No knowledge
This is a plea recognised in the Magistrate’s Court and has the effect
of requiring the Plaintiff to prove this allegation while the
Defendant may not lead evidence to dispute the allegation. A
Defendant usually pleads in this way to a more formal allegation
(e.g., Whether the Plaintiff is the owner of the motor vehicle) and
this plea very often changes before trial to an admission.
8.5.5
Special Plea
•
A special plea is a plea which raises a special defence and is directed
at an underlying legal problem in the Plaintiff’s case, rather than at
the merits of the case.
•
A special plea is procedural in character which either destroys or
postpones the operation of the cause of action.
•
Special pleas may be categorised:
o
into pleas in bar (or dilatory pleas) – has the effect of delaying
or suspending the action;
o
and pleas in abatement – has the effect that the action is
extinguished.
8.5.4.1 Dilatory Special Pleas
•
Jurisdiction – the onus is on the Plaintiff to show that the
Court in which is sued has jurisdiction;
•
Lis pendens;
•
Arbitration as a condition precedent to the right to sue.
8.5.4.2 Special Pleas in Abatement
•
Prescription and the limitation of actions;
•
Res judicata.
Note:
The special plea and plea on the merits are to be delivered at the same time,
except by agreement between the parties or with the leave of the Court. If this
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does not occur, then the first plea delivered is the only plea of the Court to
decide upon. Defendants often deliver both these pleas in a single pleading.
8.6
RULE 14 – APPLICATION FOR SUMMARY JUDGMENT
8.6.1
Introduction
After a Defendant has served the plea on the Plaintiff, the Plaintiff may
under certain circumstances apply for summary judgment. This amendment
to the time when a Plaintiff may apply for summary judgment, is a complete
change from the previous Rule 14.
The causes of action for which an application may be brought are for the
following claims (in terms of Rule 14(1)):
•
On a liquid document;
•
For a liquidated amount of money;
•
For delivery of specified movable property; or
•
For ejectment.
The application for summary judgment must be delivered within 15 days of
the service on the Plaintiff of the plea (see Rule 14(2)). Such notice shall
comprise of a notice of motion together with a founding affidavit made by
the Plaintiff or anyone who can swear positively to the facts (Rule 14(2)(a)).
8.6.2
Contents of The Plaintiff’s Affidavit
In terms of Rule 14(2)(b) the Plaintiff’s affidavit must now contain the
following:
•
A verification of the cause of action and the amount claimed (if any);
•
An identification of any point of law upon which the Plaintiff relies;
•
A statement of facts upon which the Plaintiff’s claim is based; and
•
A brief explanation why the defence as pleaded does not raise an
issue for trial.
In terms of Rule 14(2)(c) the Plaintiff must also attach a copy of the liquid
document if the claim is based on such document. It must be noted that,
other than the liquid documents, no other evidence or annexures may be
included in or attached to the founding affidavit and the Plaintiff is also not
permitted to file a replying affidavit.
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Section 169(1) of the National Credit Act 34 of 2005 contains
procedure available to a consumer sued for the recovery of a debt in terms
of a credit agreement. It provides that in any proceedings in any Court for
the recovery of debt in terms of a credit agreement, if the consumer claims:
a)
That the cost of credit claimed by, or made to, the credit provider
exceeds the maximum permitted in terms of this Act; and
b)
Request that a credit provider be called as a witness to prove the
amount of debt claimed to be owing; then the Court must not give
judgment until it has afforded an opportunity for the consumer to
examine the credit provider in relation to the debt claimed to be
owing, unless it appears to the Court that the consumer’s allegation
is prima facie without foundation, or that examination of the credit
provider is impracticable.
The consumer must both allege that the cost of credit exceeds the
maximum permitted by the Act and request that the credit provider be
called to testify as witness. If only the allegation is made regarding cost of
credit, a Court may grant judgment.
8.6.3
Costs
Rule 14(10) deals with the question of costs in a summary judgment
application. The general principle is that the Court may make any costs
order it deems just except in terms of the provisos of Rule 14(10)(a) which
in essence states that if the Plaintiff applies for summary judgment for a
claim not mentioned in Rule 14(1) or knew when applying that the Court
would uphold the Defendant’s defence, the Court can stay the action
pending the payment by the Plaintiff of the Defendant’s costs and also may
order that such costs be on a scale as between Attorney and client.
Rule 14(10(b) deals with the question of costs if summary judgment is
refused but at the trial Plaintiff’s claim is upheld. In this scenario the Court
may order the payment to the Plaintiff of costs of the action on the scale as
between Legal Practitioner and client.
8.6.4
Plaintiff’s Affidavit
The Plaintiff’s affidavit is required to:
8.6.4.1 Verify the Cause of Action and the amount claimed
The Plaintiff can, as before, simply use these words when doing
this in the affidavit.
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8.6.4.2 Identify any point of law relied upon in the case
8.6.4.3 Provide a statement of facts upon which the Plaintiff’s case
is based
The Plaintiff should not laboriously repeat the facts (See Tumileng
Trading CC v National Security and Fire (Pty) Ltd; E and D
Security Systems CC v National Security and Fire (Pty) Ltd
(3670/2019) [2020] ZAWCHC 28; 2020 (6) SA 624 (WCC)
(30 April 2020)).
8.6.4.4 Provide a brief explanation why the defence as pleaded
does not raise any issue for trial
The Plaintiff is required to explain why the defence pleaded is not
good in law or is a sham. This requirement does not expect the
Plaintiff to attack the plea because it is excipiable.
The Plaintiff is required to consider the content of the plea to
support the averments in the founding affidavit that the Defendant
has not raised a bona fide plea or that it is bad in law and has
been raised for the purposes of delay.
8.6.4.5 What can the Defendant do when a summary judgment
application is delivered
Rule 14(3) is applicable. The Defendant may:
•
Give security to the Plaintiff for the satisfaction of the Court
for any judgment including costs, which may be given; or
•
Satisfy the Court on affidavit that the Defendant has a bona
fide defence and, in such affidavit, disclose fully the nature
and grounds of such defence.
Rule 14(3)(b) requires that this answering affidavit by the
Defendant be filed 5 days before the hearing of the application. It
may be supplemented by oral evidence with the leave of the Court.
Should such leave be given, and oral evidence be led by the
Defendant (there is no such possibility on the part of the Plaintiff
to give oral evidence), this evidence is not subject to crossexamination.
8.6.5
Onus and Standard of Proof
It is submitted that what is said here below, despite the amendment is still
applicable to the adjudication of an application for summary judgment.
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The Plaintiff bears the onus of proof.
In Wonder Flooring v Northwest Development Corporation Ltd 1997
(1) SA 476 (B), the Court refused to grant summary judgment where,
although the Defendant had disclosed defences to the claims in the
summons, it had failed to make full disclosure of the material facts relied
upon for such defences. The Court held that it had a discretion in such a
case to refuse the application, as it was not satisfied that the Plaintiff had
an unanswerable case and it seemed that an injustice could be done if the
Court closed the door on the Defendant (see p 482A-B).
In Edwards v Menenzes 1973 (1) SA 299 (NC) at 304D, the Court held
that only where the Court had no reasonable doubt that the Plaintiff was
entitled to summary judgment and that the Plaintiff had an unanswerable
case, could summary judgment be granted. From these dicta, it is clear
that where a Defendant opposes a summary judgment application and
delivers an affidavit complying with the principles set out above, the
Applicant will have an extremely onerous (if not impossible) task in
persuading the Court to grant summary judgment.
In Absa Bank Limited v Sable Hills Waterfront Estates CC and Others
and a related matter [2022] 2 All SA 767 (GJ) the court dealt with
what is required from the Plaintiff in considering a plea and when making
out a case for summary judgment.
8.6.6
Findings of The Court
At the end of the application for summary judgment the Court may make
the following findings in terms of Rule 14(6):
•
That the Defendant is entitled to defend (the entire claim);
•
That the Defendant is entitled to defend part of the claim.
If such findings are made, the Court will grant the Defendant leave to
defend as it has found. It must be noted that in terms of Rule 14(8) such
leave to defend may be given unconditionally or “such terms as to security,
the time for delivery of pleadings or otherwise as the Court deems fit”.
If the Court does not find that the Defendant is entitled to defend the claim
in full or in part, the Court will grant summary judgment as well as judgment
on the claim or part of the claim of the Plaintiff.
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Rule 14(7) states that if security as mentioned above, is given, the Court
SHALL give leave to the Defendant to defend the matter “and will proceed
as if no application for summary judgment has been made”.
8.7
RULE 18 – OFFER TO SETTLE
•
In any action in which a sum of money is claimed, either alone or with
any other relief;
•
The offer must be made any time before judgment;
•
Unconditionally or without prejudice;
•
It should be in writing;
•
This offer to settle the Plaintiff’s claim shall be signed either by the
Defendant himself or herself or by his or her Legal Practitioner if the
latter has been authorised thereto in writing;
•
Notice of any offer or tender in terms of this Rule shall be given to all
parties to the action and shall state:
(a)
if it is unconditional or without prejudice as an offer of
settlement;
(b)
if there is an offer to pay all or only part of the costs;
(c)
if the offer or tender is made by way of settlement of both claim
and costs or of the claim only; and
(d)
if the Defendant disclaims liability for the payment of costs or
for part thereof the action may be set down on the question of
costs alone;
•
A Plaintiff may within 15 days after the receipt of the notice referred
to in sub-rule (5), or thereafter with the consent in writing of the
Defendant or third party or by an order of Court, accept any offer or
tender;
•
The Registrar or Clerk of the Court, having satisfied himself or herself
that the requirements of this sub-rule have been complied with, shall
hand over the power of Legal Practitioner referred to in sub-rule (2) to
the Plaintiff or his or her Legal Practitioner;
•
Rule 18 has the following disadvantages:
o
The Plaintiff may not know how the amount is calculated and he
is at a disadvantage in preparing for trial;
o
If the Plaintiff proves more than the offer in terms of Rule 18,
he is entitled to be awarded his full costs of the action from the
Defendant;
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o
If the Plaintiff proves an amount equal to or less than the offer
in terms of Rule 18, the Defendant pays the Plaintiff’s costs to
date of offer and the Plaintiff pays the Defendant’s costs from
date of offer to date of judgment;
o
The Defendant may include costs in the amount paid in as offer
of settlement.
Example
If, in a building dispute, the owner acknowledges that he owes the builder
some money but has a defence based on incomplete and defective work, he
should make a payment in terms of Rule 18. If, however, the Defendant in
a claim for goods sold and delivered, acknowledges receipt of a certain
number of items, but not all that is claimed, he should make a payment in
terms of Rule 18 in respect of the items admitted.
8.8
RULE 18A – INTERIM PAYMENTS
•
An interim payment can only be made in actions for damages for
personal injuries or the death of a person.
•
The Plaintiff may apply to Court for an order requiring the Defendant
to make an interim payment in respect of a claim for past medical
costs and past loss of income arising from physical disability or the
death of a person.
•
At the hearing of the application for an interim payment the Court has
to be satisfied that the Defendant has admitted liability in writing for
the Plaintiff’s damages, or the Plaintiff has obtained judgment against
the Respondent for damages to be determined.
•
Once a Court has granted such interim payment, the Plaintiff can only
withdraw his/her action with the leave of the Court.
SELF-ASSESSMENT QUESTIONS: QUESTION 11
In an action for damages arising from injuries sustained when a dog attacked the Plaintiff,
the pleadings are closed. The Plaintiff has claimed an amount of R4 550. You, as the
Defendant’s Legal Practitioner, are of the opinion that should the Defendant be liable, the
Court will not award the Plaintiff more than R1 000. The Defendant does not admit liability
but is anxious to settle the matter. He consequently instructs you to tender the sum of
R1 000. He is prepared to accept liability for Plaintiff’s costs to date of tender. Bearing in
mind that the Defendant does not admit liability and wishes to settle the matter, draft the
necessary notice to give effect to the instruction to tender the sum of R1 000. Amplify
with your own facts where necessary.
(10 marks)
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8.9
RULE 20 – CLAIMS IN RECONVENTION
It often happens that a Defendant not only defends the action brought
against him by the Plaintiff but also has an action of his own to bring against
the Plaintiff. It is desirable that the Defendant should be allowed to link his
action with the Plaintiff’s so that in a proper case the two actions may be
heard together, and so that judgment in the two may be pronounced at the
same time.
The counterclaim can be set out either in a separate document or in a portion
of the document containing the plea but headed “Claim in Reconvention”.
A counterclaim must be filed at the same time as the plea. The rules and
principles applicable to the summons and particulars of the claim, also apply
to the counterclaim.
There are, however, procedural differences between the summons and the
counterclaim. The Plaintiff need not file an entry of appearance to defend,
the Defendant cannot apply for summary judgment in terms of Rule 14 and
see also Rule 33 for costs disadvantages to a successful Defendant.
8.10 RULE 21 – REPLICATION AND PLEA IN RECONVENTION
The replication is the Plaintiff’s answer to the Defendant’s plea. It is
unnecessary to deliver a replication if the Plaintiff wishes only to deny the
allegations contained in the plea since if no reply is filed within the prescribed
time limit, the Plaintiff is deemed to have denied all the allegations in the
plea. A replication need be filed only if the Plaintiff wishes to plead fresh facts
in answer to the Defendant’s plea.
The replication is the proper place for meeting the plea by confession and
avoidance. The Plaintiff is, however, restricted to answering the allegations
made by the Defendant in his plea. He may not in his replication introduce a
fresh claim or cause of action.
8.11 RULE 21A – CLOSE OF PLEADINGS
The close of pleadings (litis contestatio) is a concept that is used to indicate
that from a given moment the parties are no longer entitled to exchange
pleadings. This means that both parties had enough time to define their case
by way of pleadings.
Pleadings are considered closed if:
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•
Any of the parties joined issue without alleging any new matter, and
without adding any further pleading;
•
The last day allowed for filing a replication or subsequent pleading has
elapsed and it has not been filed;
•
The parties agree in writing that the pleadings are closed, and such
agreement is filed with the Registrar/Clerk of the Court; or
•
The parties are unable to agree as to the close of pleadings, and the
Court upon the application of a party declares them closed.
8.12 RULE 21A – FAILURE TO DELIVER PLEADINGS – BARRING
The effect of this Rule is as follows:
•
Failure to deliver a declaration or plea within the time stated does not
entail an automatic bar;
•
Notice of bar must be given;
•
Failure to deliver a replication or subsequent pleading within the time
stated entails an automatic bar, and no notice of bar is necessary;
•
For the purposes of this Rule the days between 16 December and 15
January, both inclusive, shall not be counted in the time allowed for
the delivery of any pleading.
8.13 RULE 55A – AMENDMENT OF PLEADINGS
Any party desiring to amend a pleading or document other than an affidavit,
filed in connection with any proceedings:
•
Shall notify all other parties of his intention to amend and shall furnish
the particulars of the amendment.
•
Such notice referred states that unless written objection to the
proposed amendment is delivered within 10 days of delivery of the
notice of amendment, the amendment will be affected.
•
An objection to a proposed amendment shall clearly and concisely
state the grounds upon which the objection is founded.
•
If an objection delivered within the period the party wishing to amend
may, within 10 days, lodge an application for leave to amend.
•
If no objection is delivered the proposed amendment shall be deemed
to have been consented to.
•
Party who gave notice of the proposed amendment may, within 10
days after the expiration of the period effect the amendment.
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•
Unless the Court otherwise directs, an amendment authorised by an
order of the Court may not be affected later than 10 days after such
authorisation.
•
Unless the Court otherwise directs, a party who is entitled to amend
shall affect the amendment by delivering each relevant page in its
amended form in terms of Rule 55A(7).
This Rule is clearly designed to facilitate unopposed amendments of process
by obviating the necessity of an application to Court.
An application for an amendment in terms of sub-rule (4) is an application
on notice in terms of Rule 55. A Court hearing an application for an
amendment has discretion whether or not to grant it. The primary object of
allowing an amendment is to obtain a proper ventilation of the disputes
between the parties and to determine the real issues between them.
Amendments will normally be allowed unless the application is mala fide or
would cause an injustice to the other side which cannot be cured by an order
as to costs and, where appropriate, a postponement.
8.14 SECTION 111 – AMENDMENT OF PROCEEDINGS
In any civil proceedings, the Court may, at any time before judgment, amend
any summons or other document forming part of the record: Provided that
no amendment shall be made by which any party other than the party
applying for such amendment may (notwithstanding adjournment) be
prejudiced in the conduct of his action or defence.
The general approach to be adopted in applications for amendment has been
set out in numerous cases. The vital consideration is that an amendment will
not be allowed in circumstances which will cause the other party such
prejudice as cannot be cured by an order for costs and where appropriate, a
postponement.
The following statement by Watermeyer J in Moolman v Estate Moolman
1927 CPD 27 at 29 has frequently been relied upon:
“… The practical Rule adopted seems to be that amendments will always be
allowed unless the application to amend is mala fide or unless such
amendment would cause an injustice to the other side which cannot be
compensated by costs, in other words, unless the parties cannot be put back
for the purposes of justice in the same position as they were when the
pleadings which it is sought to amend were filed.”
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SELF-ASSESSMENT QUESTIONS: QUESTION 12
1.
Your client who is the Plaintiff, instructs you to issue summons against the
Defendant for an amount of R18 000.00 in respect of damages to his motor vehicle
arising from a motor accident. The Defendant gives notice of intention to defend
the action. Now answer the following questions:
(i)
May the Plaintiff apply for summary judgment? Motivate your answer
referring fully to all instances where an application for summary judgment
may be made.
(5 marks)
(ii)
Assuming that the Defendant’s notice of intention to defend was defective,
briefly indicate the contents and the requirements of the notice you will have
to serve before default judgment can be obtained. Do not draft the notice.
(5 marks)
(iii)
The Defendant does not respond to the aforementioned notice, and you are
instructed to apply for default judgment. The reasonable market value of the
vehicle prior to the collision amounted to R20 000. The Plaintiff obtained
R5 000 for the wreck. The costs to repair the vehicle amounted to R18 000.
For what amount is the Plaintiff entitled to obtain judgment?
(2 marks)
(iv)
Draft the affidavit in terms of Rule 12(4) in terms whereof an expert will prove
the nature and extend of the damages. The expert’s name is Piet Xpert. He has
been the foreman of a panel beating firm for the past ten years and also has
experience in respect of the value of second-hand motor vehicles and the value
of wrecks of vehicles damaged in collisions.
(13 marks)
2.
True or false: a special plea and an exception is one and same thing. Discuss briefly.
(4 marks)
3.
The Plaintiff sued the Defendant for R20 000 for goods sold and delivered.
Defendant filed his notice of intention to defend but has not filed his plea within the
prescribed time. What can the Plaintiff do? Draft the relevant document to give
effect to the next step.
(10 marks)
4.
List the instances when pleadings are deemed to be closed.
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9.
PREPARATION FOR TRIAL
RANGE STATEMENT:
Explain, draft, and perform all actions required to prepare for trial.
SECTION OUTCOMES:
After completing this section, you should be able to:
•
Draft the necessary notice of set down.
•
Draft the necessary pre-trial notices that must be served by either party.
•
Distinguish between Rule 15 and Rule 23.
•
Indicate consequence of non-compliance with a pre-trial notice.
•
Indicate consequences that flow if a party fails to comply with request to submit
to medical examination, inspection of things, expert evidence and tendering of
plans, diagrams, and photographs.
•
Explain importance of pre-trial conference.
•
Explain the provisions of Rule 27(6), (9) and (10).
•
Draft a checklist to ensure that you are fully prepared for trial in a given set of
facts.
9.1
RULE 22 SET – DOWN OF TRIAL
After the pleadings have been closed, the Plaintiff is required to request a
date for the trail from the Clerk or Registrar and, will deliver a notice of trial
for a day or days approved by the Registrar or Clerk of the Court:
•
if the Plaintiff does not deliver a notice of trial, within 15 days after the
pleadings have been closed, the Defendant may do so.
•
delivery of such notice shall be at least 20 days before the trial day.
•
a date for the hearing of an action will only be allocated by the Court
once the matter is “trial ready”.
•
Rule 22 has been amended with effect from 1 June 2022 and now sets
out the duties of the Court once the request of a trial date is received
by the Clerk or Registrar of the Court.
•
It should be noted that there have been amendments to the
pre-trial procedures with effect from 1 June 2022. No longer
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are dates which these procedures are to be complied with
calculated from the date of trial. This pre-trial preparation
dates are now calculated from close of pleadings.
9.2
RULE 16 – FURTHER PARTICULARS
The former request for further particulars in terms of Rule 15 to enable the
Defendant to plead has fallen away. The Plaintiff must plead full particulars
of claim in the combined summons or declaration. If that is not done the
Defendant may apply to set aside the summons as an irregular proceeding
or except to it.
9.3
•
Further particulars may be requested after 20 days after the discovery
of documents in terms of Rule 23;
•
Such further particulars are strictly necessary to enable him or her to
prepare for trial;
•
The particulars must be delivered within 10 days after receipt of the
request thereof;
•
If a party who has been requested in terms of this Rule to furnish any
particulars fails to deliver them timeously or sufficiently, the party
requesting the particulars may apply to Court for an order for their
delivery or for the dismissal of the action or the striking out of the
defence, whereupon the Court may make such order as it deems fit;
•
a Court shall at the conclusion of a trial mero motu consider whether
the further particulars were strictly necessary and shall disallow all
costs of and flowing from any unnecessary request or reply, or both,
and may order either party to pay the costs thereby wasted, on a Legal
Practitioner and client basis or otherwise.
RULE 23 – DISCOVERY OF DOCUMENTS
The object of discovery was stated in Durbach v Fairway Hotel Ltd 1949
(3) SA 1081 (SR) at 1083 to be “to ensure that before trial both parties
are made aware of all the documentary evidence that is available. By this
means the issues are narrowed and the debate of points which are
incontrovertible is eliminated.”
9.3.1
What is the Purpose of Discovery?
Discovery is a procedure whereby a party to an action can:
•
Require his opponent to specify on oath the documents and tapes,
electronic, digital or other forms of recordings relating to any matter
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in question in the action in his possession or under his control Rule
23(1)(a); and
•
Inspect and copy such documents, sub-rule 6;
•
Discovery is a procedure relating to preparation for trial and the
procuring of evidence;
•
Any party to the case may require the other party to make discovery
within 20 days. When a party is requested to discover, he must file
an affidavit and indicating such documents etc., in his or his agent’s
control; such documents etc, which he has a valid objection to
disclose and such document etc, which were in his/her control but
are no longer in his/her control. Communications between Legal
Practitioner and Client and Advocate, witness statements and advice
to client are privileged documents.
BST Kombuise v Abrams 1978 (4) SA 182 (T)
Venter v Du Plessis 1980 (3) SA 151 (T)
Smit v Shongwe 1982 (4) SA 699 (T)
Jones & Buckle, The Civil Practice of the Magistrates’ Courts in South Africa, 10th ed
Sufficient details of a document must be specified so that it may be
identified and so that the other party can call for it and the Court may know
whether the document in question has been produced.
Please note that in terms of Rule 23(2)(b) a document shall be deemed to
be sufficiently specified if it is described as being one of a bundle of
documents of a specified nature which have been initialled and
consecutively numbered by the Defendant.
Discovery must be made of all documents relating to any matter in question
in such action. Notwithstanding this broad ambit, our Courts have applied
the English practice of requiring disclosure only of those documents which
tend to impeach a party’s own case or to advance that of his adversaries,
but with the added requirement that a party must also discover all
documents which he intends using on trial. Effectively, this means that you
must make discovery of all documents to which you might need to make
reference at trial, as also all other documents which might harm your case
or advance that of your adversary irrespective that you have (perfectly
understandably) no intention of making use of them yourself.
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It is accordingly well worth your while to submit all your client’s documents
to careful scrutiny in order to determine which of them must be disclosed
under Rule 23.
Some practitioners seem to adopt the attitude that they will not discover if
they have not been asked to do so by way of Rule 23(1).
Eric Morris Technique in Litigation, 6 ed, Revised and updated by John Mullins SC and
Carlos Da Silva SC
These requirements are difficult to meet in practice. It is usual not to specify
the documents in the second list by date or description, but to describe
them in general terms. It is also not practice to set out the grounds of
privilege in respect of each document.
9.3.2
Non-Compliance with Request for Discovery
In terms of Rule 23(4) if a document has not been disclosed as requested
in terms of this Rule it may not, save with the leave of the Court granted
on such terms as to it may seem meet, be used for any purpose at the trial
by the party who was obliged but failed to disclose it.
Timeous discovery is essential for proper preparation for trial. The legal
representative of the party to whom discovery is made must have the
opportunity to read and consider the documents, to compare the documents
discovered with those in his possession, to consult with his client and
witnesses in connection with the discovered documents and to decide
whether the Court should be approached to order further and better
discovery.
In ordering compliance with the Rule, the Court may make an appropriate
order as to costs, including an order that the Respondent pays the costs of
the application on the scale as between Legal Practitioner and client.
If a party fails to give discovery after he has been requested to do so, the
party desiring discovery may apply to Court in terms of Rule 23(8). The
Court may order compliance, may dismiss the claim, or strike out the
defence.
Rule 23 has detailed provisions regarding a party’s ability to access the
discovered documents, etc., and the requirement that the party bring them
to Court at the hearing of the action. Provision is also made for party’s
failure to do this.
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9.4
RULE 24
9.4.1
Medical Examinations
•
Any party to proceedings in which damages or compensation in
respect of alleged bodily injury is claimed, shall have the right to
require any party claiming such damages or compensation whose
state of health is relevant to the determination thereof to submit to
medical examination.
•
Any party requiring another party to submit to such examination shall
deliver a notice specifying:
o
The nature of the examination required;
o
Person(s) conducting the examination;
o
Date, time and place of examination;
o
The above notice shall also state:

The party being examined may have his/her medical
practitioner present at the examination;

Be accompanied by payment of all reasonable expenses
to be incurred by person being examined (which may
include travelling, accommodation, loss of earning and
so on.
•
Any party receiving such a notice shall, within 5 days of the service
thereof, notify the party delivering it in writing of the nature and
grounds of any objection which he may have to the nature of the
examination or the person(s) conducting the examination or the date,
time and place of the examination or the amount of expenses
tendered. Rule 24(3)(a).
•
In the case of an objection, the person being examined shall furnish
alternative date, time and place if relevant or furnish particulars of
amount required to be paid.
•
If a party receiving the objection is of the view that the objection is
not well founded, such party may apply to Court to determine the
conditions of the examination (Rule 24(3)(c)). Any party to such
examination may, at any time, by notice require any claimant to
make available, as far as able to within 10 days medical report,
hospital record, x-ray photographs, other medical imaging or other
documentary information of a like nature relevant to the assessment
of such damages or compensation and to furnish copies or records
on request (Rule 24(4)). The Rule goes on further indicating when
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these reports are to be made available and that the party requesting
this examination shall bear the costs.
9.4.2
9.4.3
Inspection of Things
•
If it appears that the state or condition of any property, whether
movable or immovable, may be relevant with regard to the decision
of any matter at issue in any action;
•
Any party thereto may at any stage thereof, not later than 15 days
before the hearing, give notice requiring the party relying upon the
existence or condition of such thing;
•
And may in such notice require such party to have such thing or a
fair sample thereof available for inspection or examination for a
period not exceeding 10 days from the receipt of the notice. [Rule
24(7)].
Expert Witnesses
•
No party may call an expert witness unless he has delivered two
notices. The two notices may be combined in one document.
•
The amended Rule makes provision for both the Plaintiff and
Defendant’s expert witness.
•
If Plaintiff is to call an expert, notice of who the expert is, shall be
delivered no more than 15 days after the close of pleadings and the
summary delivered no mor than 30 days after close of pleadings.
•
If a Defendant wishes to call a witness, notice shall be delivered no
more than 45 days after close of pleadings and the summary
delivered no more than 60 days after close of pleadings.
•
A new Rule 24(9A) has been included stating that the parties must
endeavour to appoint a joint expert, as far as possible or file a joint
minute by the experts.
The case of Coopers (SA) v Deutsche Gesellschaft 1976 (3) SA 352
(A) sets out the meaning of the words “opinions … and his reasons
therefore” at page 371 as follows:
“In the context in which the phrase “reasons therefore” is used in rule 24(9)
(b) it means, or at least includes, the facts and data on which the opinion
is based.
The facts or data would include those facts personally or directly known to or
ascertained by the expert witness, e.g., from general scientific knowledge,
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experiments, or investigations by others, or information from text-books,
which are to be duly proved at the trial. However, “summary” also governs
“his reasons therefore”, hence the testimony that the expert witness intends
to give need not be fully set out in the summary.
In deciding whether there has been due compliance with subrule (9)(b), it is,
in my opinion, relevant to have regard to the main purpose thereof, which is
to require the party intending to call a witness to give expert evidence to give
the other party such information about his evidence as will remove the element
of surprise, … Consequently, when summarising the facts or data on which the
expert witness premises his opinions, the draughtsman should ensure that no
information is omitted, where the omission thereof might lead to the other side
being taken by surprise when in due course such information is adduced in
cross-examination or evidence … an expert’s bald statement of his opinion is
not of any real assistance. Proper evaluation of the opinion can only be
undertaken if the process of reasoning which led to the conclusion, including
the premises from which the reasoning proceeds, is disclosed by the expert ….
Having regard to the above meaning of the word “reason” in the context of
the sub-rule as a whole and the purpose thereof, I am of the opinion that the
summary must at least state the sum and substance of the facts and data
which lead to the reasoned conclusion (i.e., the opinion).”
It is extremely important to formulate the opinions and reasons for those
opinions held by the expert accurately. It is essential that you ask the expert
to read the summary before you deliver it to your opponent to ensure that
there were no misunderstandings between you and the expert and that the
summary is correct in every respect.
Bondcrete (Pty) Ltd v City View Investments (Pty) Ltd 1969 (1) SA 134 (N)
Pitout v North Cape Livestock Co-operative Ltd 1977 (4) SA 852 (A)
Lansdown v Wajar 1973 (4) SA 329 (T)
Lornadawn Investments (Pty) Ltd v Minister van Landbou 1977 (3) SA 618
(T)
Hall v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 195 (C) at 199 - 200
Ex-parte Matthysen et Uxor (First Rand Bank Ltd Intervening) 2003 (2) SA 308 (T)
9.4.4
Tendering in evidence any Plan, Diagram, Model, or Photograph
•
Rule 24(10) provides that a party who wants to use plans, diagrams,
sketches, models, or photographs at the trial.
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•
Such notice must be delivered not more than 30 days of close of
pleadings.
•
The notice shall state that the party receiving the notice is entitled to
inspect plan etc., and to within 10 days of receipt thereof to state
whether he/she has any objection to the plan etc.
•
If no objection is made to the notice, the particular photographs etc.
may be used at the trial without further proof thereof.
•
If a party receiving a notice, objects to the admission in evidence and
it must be proved at the hearing of the action.
•
the party receiving the notice may be ordered to pay the costs of
such proof.
It should be noted that if the above preparation for trial has not been
completed a trial date may not be allocated by the Court in terms of the
notion that a matter is to be Trial Ready before being allocated a date for
hearing.
9.5
RULE 26 – SUBPOENAS, INTERROGATORIES AND COMMISSIONS DE
BENE ESSE
•
Any party desiring the attendance of any person to give evidence at a
trial may as of right:
o
Issue a subpoena for that purpose;
o
Each of which subpoena shall contain the names of not more
than four persons;
o
And the service thereof upon any person therein named shall be
affected by the Sheriff in the manner prescribed by Rule 9, and
the process of subpoenaing such witness shall correspond
substantially to Form 24.
To ensure that all necessary witnesses attend the trial of an action,
subpoenas must be issued and served timeously on all the witnesses.
Subpoenas are served on witnesses even if they promise faithfully to be
there without service of a subpoena. Avoid explaining to the Court why you
have not issued a subpoena.
The substantive law relating to subpoena is regulated by Section 51 of the
Act. The substantive law relating to interrogatories and commissions de
bene esse is regulated by Section 52 and 53 of the Act respectively. Rule
26 deals only with the practical aspects relating to subpoena and
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commissions de bene esse. Interrogatories are not dealt with in this Rule
but in Section 52 of the Act, Rule 29(15).
9.5.1
Subpoenas Duces Tecum
If a witness has in his possession or under his control any deed, instrument,
document, or object which the party requiring his attendance desires to
produce in evidence, the subpoena must specify such document or object
and require him to produce it at the trial. Such a subpoena is called a
subpoena duces tecum. Such a witness shall hand over the deed, etc. to
the Clerk of the Court/Registrar within 10 days of receipt thereof and
thereafter the parties may inspect it and make copies of it.
9.6
RULE 22 – A MEETING BETWEEN PARTIES TO PREPARE FOR PRETRIAL CONFERENCE OR TRIAL
This is a new Rule which came in effect on 1 June 2022.
This Rule provides for the parties, when notification from the Court of the
holding of a pre-trial conference in terms of Rule 25 is to be held, they may
hold a pre-trial between themselves and present the Court then with the Rule
25 pre-trial conference. The Rule details what should be discussed at this
pre-trial and what the minutes should contain (in essence it is the same
issues as are to be raised in the Rule 25 pre-trial).
These minutes are to be filed with the Clerk or Registrar 5 days before the
Rule 25 pre-trial.
9.7
RULE 25 –
CONFERENCE
JUDICIAL
CASE
MANAGEMENT
AND
PRE-TRIAL
This Rule deals with Judicial case management and the pre-trial
conference.
The request in writing referred to in Section 54(1) of the Act shall be
made in duplicate to the Registrar or Clerk of the Court:
•
Requesting the Court to call a pre-trial conference;
•
And shall indicate generally the matters which it is desired should be
considered at such conference.
Section 54 and Rule 25 create the authority and procedure in the Magistrate’s
Court to arrange pre-trial conferences. In order to promote access to the
Courts or when it is in the interest of justice to do so, a Court may, at the
pre-trial conference, dispense with any provision of the Magistrates’ Courts
Rules and give directions as to the procedure to be followed by the parties
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so as to dispose of the action in the most expeditious and least costly
manner. See also paragraph 4.4 of the Civil Practice Directives for the
Regional Courts in South Africa which deals with pre-trial conferences in the
Regional Court.
A Pre-Trial is an important method of ensuring case flow management and
to see that the matter is Trial Ready. This prevents many unnecessary
postponements of trials and can save parties a great deal on wasted costs.
9.7.1
Section 54 – Pre-Trial Procedure for formulating issues
The procedure set out in this Section is intended to provide a cheap and
expeditious method of settling before the Magistrate in chambers
preliminary and ancillary points of procedure and evidence as set out in the
Section 54(1). This will have the effect of lessening the costs and shortening
the duration of cases in the Court.
The following can be considered during the pre-trial:
9.8
•
The simplification of the issues;
•
The necessity or desirability of amendments to the pleadings;
•
The possibility of obtaining admissions of fact and of documents with
a view to avoiding unnecessary proof;
•
The limitation of the number of expert witnesses;
•
Such other matters as may aid in the disposal of the action in the
most expeditious and least costly manner.
RULE 27 – WITHDRAWAL, DISMISSAL AND SETTLEMENTS
•
Sub-rules (6) to (10) were introduced to avoid disputes as to whether
or not there had been a settlement, and as to how it had come to be
accepted by the Court.
•
It is therefore desirable, in order to avoid such disputes, that the subrules should be adhered to.
•
Settlement agreements should settle all disputes and outstanding
matters between the parties. The agreement should be worded clearly
and in understandable language. Ask your client to read the agreement
and sign it himself.
•
If a settlement is simply recorded and the party who must comply with
the settlement defaults, before the other party can enforce the
settlement, an application in terms of Rule 27(9) must be brought.
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•
If a settlement has been made an order of Court and the party who
has to comply defaults, the other party can simply proceed to request
a warrant of execution from the Registrar/Clerk upon the production
of usually an affidavit.
Once the matter has been settled and the deed of settlement drafted and
signed you may approach the Court to:
•
Record the settlement, and
•
Make the settlement an order of Court in terms of Rule 27(6).
Note: If the Court makes the settlement an order of Court, that order is a judgment,
and you may execute upon it immediately. If the settlement was only recorded in terms
of Rule 27(6) you will have to apply for judgment at a later stage and sub-rules 27(9)
and (10) are applicable.
Rule 27 deals with four distinct procedures:
•
The withdrawal by a Plaintiff of his action, or by an Applicant of his
application;
•
The abandonment by either party of any particular claim, exception or
defence pleaded by him;
•
An application by the Defendant for dismissal of an action if the Plaintiff
delays in giving notice of trial;
•
The recording by the Court of any settlement arrived at by the parties
to an action.
SELF-ASSESSMENT QUESTIONS: QUESTION 13
1.
Lilly Botha was involved in a motor collision. John Rat had driven into Lilly Botha’s
vehicle from behind. This happened while Lilly Botha‘s motor vehicle was stationary
waiting for the traffic light to turn green for her to go. Lilly Botha instituted damages
claim against John Rat on the basis that John Rat was driving negligently and
recklessly. The matter has now been set down for trial. In preparation for the trial,
you have advised your client Lilly Botha that you will be filing a notice of discovery.
Draft a discovery notice in terms of the relevant Rule of the Magistrates’ Courts Act
No. 32 of 1944.
(10 marks)
2.
Your client’s matter has reached the stage of litis contestatio.
(i)
How many days after reaching litis contestatio must the Plaintiff deliver a
set down for trial to the Defendant in terms of the Rules?
(2 marks)
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3.
(ii)
What can a Defendant do if the Plaintiff fails to set the matter down within
the above time limit or at all?
(3 marks)
(iii)
Your client hands you four colour photographs depicting the damage to his
motor vehicle as well as three colour photographs depicting the scene of
the accident. You want to use these photographs at the trial. Draft the
necessary notice to your opponent to ensure that you can use these
photographs at the trial. Omit the headings and endings.
(8 marks)
You, on behalf of your client Janice Johnson, sue Peter Jones for the sum of R65 000
(sixty-five thousand rand) for services rendered. The Defendant defends the action.
Your client instructs you to attempt to settle this matter. After long negotiations with
the Defendant’s Legal Practitioner, the matter is settled on the basis that the
Defendant will pay your client the sum of R45 000 (forty-five thousand rand) plus
interest and costs in full and final settlement of the claim. It is also agreed that the
amount owing can be paid off in instalments of R1 500 (one thousand five hundred
rand) per month by the Defendant. Your client asks you how she can protect her
rights. You advise that the deed of settlement should be drafted up and signed by
the Defendant. Your client agrees to this and instructs you to draft a deed of
settlement, which fully protects her rights. Draft a complete deed of settlement to
give effect to your client’s instructions. Omit the heading.
(20 marks)
9.9
TRIAL – RULE 29 to 32
These Rules regulate how a trial is run, who can be present during the
hearing of evidence and who not. It also gives the Court the authority in
terms of Rule 29(4) to order that any issue which the Court feels can
conveniently be dealt with separately (apart from those agreed to between
the parties) to deal with them separately and in a manner that the court
deems fit. Rule 29(6) allows the Court to determine questions of law
separately from questions of fact and give a final judgment on a question of
law without dealing with the facts at all.
In term of what judgments a Court may order in action proceedings, the
Court may grant judgment in favour or the Plaintiff (“Plaintiff’s claim is upheld
with costs”) or judgment in favour of the Defendant (“Plaintiff’s claim is
dismissed with costs”) or absolution from the instance (in which case the
Plaintiff has the right, without being met with a special plea of res judicata,
to commence the action afresh). It needs to be noted that absolution from
the instance is not a judgment that a Court can grant in application
proceeding.
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Rule 30 deals with the requirement that a recording is to be made of all
judgments, oral evidence lead, an objection to evidence and the proceedings
in general, including an inspection in loco.
This Rule has various provisions as to how to conduct a trial and also makes
provision for a party to request free of charge, a typed copy of the
proceedings.
Rule 31 deals with adjournments and postponements.
If parties have reached an agreement to postpone proceedings the Plaintiff
or Applicant is required to file a notice of such agreement with the Clerk or
Registrar at least 15 days prior to the date of hearing who shall immediately
inform the judicial officer.
If the matter is postponed sine die, specific requirements are laid down to
re-enrol the matter.
An adjournment or postponement shall be on such terms as to costs and
otherwise as the parties agree or the Court determine.
Rule 32 deals with the non-appearance of a party.
If the Plaintiff or Applicant fails to appear at the hearing, the action or
application may be dismissed.
If the Defendant or Respondent fails to appear a judgment may be granted
against such Defendant or Applicant (not exceeding that claimed).
If both parties do not appear, the matter will be struck off the roll.
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10.
APPLICATION PROCEEDINGS
Application is utilised where it is mandatory to do so and prescribed by statute or
where there is no real dispute of fact. This is a dispute capable of decision on the
papers before and no viva voce evidence is adduced. This is the difference between
deciding an action and an application.
10.1 WHICH PROCEEDINGS MAY BE BROUGHT BY APPLICATION?
The Act and Rules provide for applications to be brought in a number of
instances. The two main categories of applications are interlocutory
applications or applications for substantive relief. Certain applications, also
referred to below, have their own procedure and must, therefore, not be
brought in terms of Rule 55.
For a discussion on procedures by way of applications that may be brought
in the Magistrate’s Court, together with the relevant Section or Rule, refer to
Jones & Buckle 10th Edition Vol II at 55-4.
10.2 GENERAL REQUIREMENTS FOR APPLICATIONS
The relief sought by means of the application must be permitted by the Act
or the Rules.
The person wishing to make the application (Applicant) must compile a
written notice of the application. Rule 55(1) read with Rule 55(2).
•
Except where otherwise provided for in either the Act or the Rules,
notice of the application must be given to any other party affected
thereby.
•
In re Pennington Health Committee 1980(4) SA 243 (N), it was
held at 248H-249A.
“Even if Act No. 32 of 1944 had vested Magistrates’ Courts with
jurisdiction in applications for orders authorising the sale of rateable
property, it would not have been competent for the Magistrate to grant
this application, for the simple reason that it was made ex parte.”
•
In addition to the four categories of applications referred to in
Pennington’s case, applications in terms of Rule 10 are, by necessary
implication, brought ex parte. In such an application, the
Plaintiff/Applicant seeks directions from the Court as to an alternative
means of service, because he/she is unable to effect service as
prescribed in Rule 9. In the very nature of things, notice of such an
application cannot normally be served upon the Defendant/
Respondent.
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•
The fact that proceedings may be brought ex parte does not prevent
a party from resorting to other available procedures. Rule 55 provides
that “any application which may be made ex parte may at the
Applicant’s election be made on notice.”
•
Jones & Buckle: The Civil Practice of the Magistrates’ Courts in
South Africa, Vol II, 10th Ed, at 56-2 state that applications for
final interdicts are usually tried by way of action and that applications,
whether ex parte or otherwise, are the exception.
In Claassens v Zeneca Suid-Afrika (Edms) Bpk 1996 (1) SA 627 (O)
it was held that an Applicant was not obliged to bring an application for an
interdict in terms of Rule 56 on an ex parte basis.
•
In Office Automation Specialists CC v Lotter 1997 (3) SA 443 (E),
Jones and Buckle’s point of view was approved, and it was held that ex
parte applications ought not to be granted in the absence of some good
reason for that procedure in preference to motion proceedings (that is,
applications on notice) — reasons such as urgency, or that the giving of
notice would defeat the very object for which the order is sought. To hold
otherwise would have the effect of sanctioning a procedure which could
cause considerable prejudice to the persons who have not received notice
of an application which results in an order affecting them being granted.
The subject matter of the applications which may be brought ex parte
in terms of Rule 56(1) are wide-ranging.
•
For example, any application for an interdict may be brought ex parte.
An interdict can be very prejudicial to the person against whom it is
granted. It could never have intended that any ex parte application
for an interdict should be granted merely on the basis that a case for
the relief has been made out, but without any case having been made
out for the granting for such relief without notice. 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/her 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.
•
The notice must cite, as Respondents, all persons who have a material
interest in the relief sought (Rule 55(1)(c)). This includes any party
who may be affected by any order as to costs which the Court may
make Driefontein Consolidated Gold Mines Ltd v Schlochauer
1902 TS 33 at 36.
•
The terms of the order sought must be stated shortly in the notice of motion
(Rule 55(1)(a)).
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•
Give the Respondent not less than 10 days to deliver a Notice of
Opposition and state if no such notice is given, the date, time and
place that the application will be set down for hearing, being not less
than 10 days after service of the notice on the Respondent.
•
State the Applicant’s postal, facsimile or e-mail address.
•
The notice should be signed by the Applicant or his/her party’s Legal
Practitioner. This requirement is not found in Rule 55 itself, but it is
established practice, and, in addition, Form 1 provides for the signature of
the Applicant or his/her Legal Practitioner.
•
If the Respondent opposes the application, Notice of Opposition must be
given in writing, in which the address is stated as well as the facsimile or
e-mail details.
•
Within 10 days of notifying the application of intention to oppose, the
Respondent must deliver an answering affidavit.
•
The Applicant may deliver within 10 days of receipt of answering affidavit,
a replying affidavit.
•
Duty of good faith. In an ex parte application, the Applicant must
observe the utmost good faith (uberrima fides) when approaching
the Court for relief. This implies that he or she should make a full
disclosure of all the relevant facts in his or her papers. All facts which
may influence the Court whether in favour of the Applicant, or to refuse
the application, should be set out.
•
In Trakman NO v Livschitz and Others 1995 (1) SA 282 (A) at
288E-H, it was held by Smalberger JA that it was trite law that in an
ex parte application the utmost good faith must be observed by an
Applicant. A failure to disclose fully and fairly all material facts known
to him (or her) could lead, in the exercise of the Court’s discretion, to
the dismissal of the application on that ground alone. However, this
principle did not extend to motion proceedings. Material nondisclosure, mala fides, dishonesty, and the like in relation to motion
proceedings could, and in most instances should, be dealt with by
making an adverse or punitive order as to costs but could not serve to
deny a litigant substantive relief to which he would otherwise have
been entitled.
The effect of mistakes in the notice:
Rule 60(7) provides that obvious errors in spelling, figures or dates do not
invalidate any process or notice. If, however, a party was in fact misled by such
an error, the Court may, on application, grant him such relief as may be just and
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may for that purpose even set aside the process or notice and rescind any default
judgment given thereon (Rule 60(8)).
Does a supporting affidavit form an essential part of an application?
Rule 55(1)(a) provides that every application shall be brought on notice of
motion and must be supported by an affidavit as to the facts upon which the
Applicant relies for relief. There are, however, instances provided for in Rule
55 where affidavits are not necessary or may be dispensed with by the Court,
especially in interlocutory applications.
10.3 RULE 55 MAKES PROVISION FOR THE FOLLOWING DISTINCT
PROCEDURES
Applications on notice and, in this regard:
•
Unopposed applications;
•
Opposed applications;
•
which may further be divided into those that can properly be decided
on affidavit and those that cannot;
•
Ex parte applications;
•
Interlocutory and other applications incidental to pending proceedings;
•
Applications to Court for authority to institute proceedings or directions
as to procedure or service of documents;
•
Applications for the striking out from any affidavit matter which is
scandalous, vexatious or irrelevant;
•
The joinder of parties to applications; or
•
Counter-applications.
10.4 WITHDRAWAL OF AN ADMISSION
•
A further example of a case where an affidavit would need to be
provided in support of an application is, an application for the
withdrawal of an admission.
•
In general, an amendment of a pleading to withdraw an admission will
not be allowed unless evidence is put before the Court to show a
reasonable basis for withdrawal.
•
it is established practice that evidence must be adduced in support of
such an application.
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•
It must, however, be remembered that a party may amend his/her
pleadings (even if such an amendment amounts to a withdrawal of an
admission) without the intervention of the Court, if the other party
does not object to the amendment (Rule 55A(5)).
•
Please note however that an affidavit is a document by means of which
sworn evidence is put before a Court in written form.
•
An amendment of an affidavit would amount to a change of evidence
which has been given under oath.
•
An amendment thereof cannot be allowed by way of a mere notice
under sub-rule 55A(1).
•
A party in such circumstances must prepare an affidavit explaining his
or her reasons for requiring amendment of his or her affidavit.
Gordon v Tarnow 1947 (3) SA 525 (A)
10.5 AFFIDAVITS
When an affidavit is used in support of the application, what should it
contain?
•
The Applicant’s affidavit should set out the facts upon which he or she
relies (this also applies, with the necessary changes, to the
Respondent’s answering affidavit). The following must be apparent
from the affidavit:
o
Appropriate allegations to establish the locus standi of an
Applicant should be made in the launching affidavits.
Scott & Others v Hanekom & Others 1980 (3) SA 1182 (C)
at 1188H.
•
It was also held that, depending on the facts of the case, implied
allegations regarding the Applicant’s locus standi may be sufficient.
Davids v Lubbe and Others 1958 (2) SA 405 (C) at 410D.
•
Facts indicating that the Court has jurisdiction to entertain the
application ex parte Kaiser 1902 TH 165 at 169.
•
A cause of action Cilliers v Du Toit and Another 1957 (2) SA 139
(GW) at 141A; Kruger v Symington NO en Andere 1958 (2) SA
128 (O) at 133G-H.
•
The evidence in support of the application.
•
All the facts upon which the Applicant relies must be contained in the
affidavit.
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•
Unsubstantiated hearsay evidence is not permitted in an affidavit,
except a founding affidavit of an ex parte application (which hearsay
must be confirmed by the return date).
According to Mauerberger v Mauerberger 1948 (3) SA 731 (C)
at 732, “(i)t is not for the Applicant to simply make general
allegations, and when those allegations are dealt with in reply come
forward with replying affidavits giving details supporting the general
allegations originally set out in the affidavit supporting the notice of
motion … It is … settled law that in replying affidavits an Applicant is
not allowed to set forth details of allegations which should have
appeared in the original affidavit supporting the notice of motion.”
•
New matters in replying affidavits may be struck out.
It was stated in Pountas’ Trustee v Lahanas 1924 WLD 67 at 68
that:
“an Applicant must stand or fall by his petition and the facts alleged
therein and … though sometimes it is permissible to supplement the
allegations contained in the petition, still the main foundation of the
application is the allegation of the facts stated therein, because these are
the facts which the Respondent is called upon either to affirm or deny.”
As was pointed out in John Roderick’s Motors Ltd v Viljoen 1958 (3) SA
575 (O) at 579D, a Respondent is prejudiced by the raising of new material
in replying affidavits, because generally he or she will not have had the
chance of addressing that new material and setting out his or her side of the
story.
The dictum quoted above from the Pountas’ Trustee case was referred to
with approval in Director of Hospital Services v Mistry 1979 (1) SA 626
(A) at 636A. It was recognised in this case that an issue not initially raised
in the founding affidavit, may be considered by the Court if it is properly
canvassed and ventilated before the Court.
A further exception to the general rule appears from Driefontein
Consolidated Gold Mines Ltd v Schlochauer, supra, at 38:
“(t)he general rule no doubt is that an Applicant for an interdict should make
his case in his petition; but if facts appeared in any of the affidavits which
supplied what was wanting in the petition the Court would doubtless have
power to grant some form of relief.”
In this case, the Court had regard to facts raised by the Respondent in his
affidavit, which favoured the Applicant’s case.
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The affidavit must state the source of the Applicant’s (or deponent’s)
information; this is so even if the allegation concerned is confined to an
assertion of information and belief.
Mears v African Platinum Mines Ltd and Others (1) 1922 WLD 48 at
55; Grant-Dalton v Win and Others 1923 WLD 180 at 187.
In the Grant-Dalton case it was held that, “(g)enerally speaking, affidavits
are to be confined to such facts as the witness is able to of his own knowledge
to prove, except … in interlocutory motions in which statements as to belief,
together with the grounds thereof, may show that he has some reasonable
and proper cause for making the statement, and has not sworn merely to
raise an issue … an affidavit of information and belief, not stating (the) source
of the information and belief, is irregular, and therefore inadmissible as
evidence.”
Geanotes v Geanotes 1947 (2) SA 512 (C) at 514.
•
The evidence contained in the affidavit must comply with all the rules
of evidence as to admissibility.
•
The Respondent is of course, entitled to oppose the application. He or
she will generally do so by the filing of a notice of opposition, together
with an answering affidavit. The requirements for this affidavit are
mutatis mutandis the same as for the Applicant’s affidavit.
•
In certain circumstances, a replying affidavit from the Applicant may
be allowed, if the particular Rule or Section allows it.
10.6 INCLUSION OF NEW MATERIAL OR AN OBJECTION THERETO
Which amounts to the following:
•
Although the Rule is not absolute, it applies save in exceptional
circumstances.
Bayat and Others v Hansa and Another 1955 (3) SA 547 (N) at
553.
•
It must always be borne in mind that Rules of procedure are made to
facilitate litigation and that therefore they are always subject to the
overriding discretion of the Court.
Registrar of Insurance v Johannesburg Insurance Co Ltd (1)
1962 (4) SA 546 (W) at 574A-B; Lagoon Beach Hotel (Pty) Ltd
v Lehane N.O. and Others [2016] 1 All SA 660 (SCA).
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•
The Applicant should satisfactorily explain the omission of the matter
from the founding affidavit.
Kleynhans v Van der Westhuizen NO 1970 (1) SA 565 (O).
•
In the Kleynhans case the new facts in the replying affidavit had not
been at the disposal of the Applicant when he or she had launched his
application.
The question of prejudice to the Respondent is of importance
(Kleynhans, supra).
Business Partners Ltd v World Focus 754 CC 2015 (5) SA 525
(KZD)
In Simmons, NO v Gilbert Hamer & Co Ltd 1963 (1) SA 897 (N) at
904A – it was held that there must be a proper and satisfactory
explanation which negatives mala fides or culpable remissness for the
facts or information not being put earlier before the Court and that the
Court must be satisfied that there will be no prejudice to the opposite
party which cannot be remedied by an appropriate order as to costs.
•
If the new matter amounts to an abandonment of the relief and a
substitution of the cause of action, the Court may not allow new
material to stand.
Johannesburg City Council v Bruma Thirty Two (Pty) Ltd 1984
(4) SA 87 at 91D.
•
A court is not entitled to grant relief that is inconsistent with the factual
statements and the terms of the express claim.
National Stadium South Africa (Pty) Ltd and Others v FirstRand
Bank Ltd 2011 (2) SA 157 (SCA)
•
If an Applicant is allowed to include a new matter, the Respondent
should be allowed to deal with it by filing a second set of answering
affidavits.
Shepard v Tuckers Land and Development Corporation 1978 (1) SA
173 (W) at 178A.
•
If the founding affidavit is defective in that it does not disclose a basis
for the relief sought, the application is defective, and the Applicant
cannot for the first time make his or her case in the replying affidavit.
Jay’s Properties Ltd v Turgin 1950 (2) SA 694 (W) at 696.
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10.7 THE NUMBER OF AFFIDAVITS ALLOWED IN AN APPLICATION
There are three sets of affidavits usually allowed:
•
the Applicant’s founding affidavit,
•
the Respondent’s answering affidavit, and
•
the Applicant’s replying affidavit.
The Court has a discretion to permit the filing of further affidavits, on good cause
shown and if the Rules applicable to the particular application so allow.
10.8 EX PARTE APPLICATIONS
In Simross Vinters (Pty) Ltd vs Vermeulen 1978 Vol 1 SA 779 T it was
stated that an ex parte application “is simply an application of which notice
was as a fact not given to the person against whom relief is claimed in his
absence and that the unilateral nature of such proceedings is their most
prominent feature”. Sub-rule 55(3) limits ex parte applications to those in
respect of which the Court is satisfied that (1) the giving of notice to a party
against whom the order is claimed would defeat the purpose of the application
or (2) the degree of urgency is so great that it justifies dispensing with notice.
In terms of Rule 57(1) any application to Court for an order of attachment of
property under Section 30bis of the Act may be made ex parte.
10.8.1 Various Rules applicable to Ex Parte Applications: Rule 9(11)
Where service of an ex parte order calling upon the Respondent to show
cause at a time stated in the order or of an interpleader summons is to be
effected upon any party, service of such ex parte order or interpleader
summons shall be effected - in the case where the party to be so served is
the State, at least 20 days; or in the case where any other party is to be
served, at least 10 days, before the time specified in such ex parte order
or interpleader summons for the appearance of such party.
Rule 55(1)(d)
“The notice of motion in every application other than one brought ex parte
shall be similar to Form 1A of Annexure 1 and copies of the notice, and all
annexures thereto, shall be served upon every party to whom notice thereof
is to be given”.
Rule 55(3) states as follows:
No application in which relief is claimed against another party shall be
considered ex parte unless the Court is satisfied that:
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•
The giving of notice to the party against whom the order is claimed
would defeat the purpose of the application; or
•
The degree of urgency is so great that it justifies dispensing with
notice;
•
The notice of motion in every application brought ex parte shall be
similar to Form 1 of Annexure 1;
•
Any order made against a party on an ex parte basis shall be of an
interim nature and shall call upon the party against whom it is made
to appear before the Court on a specified return date to show cause
why the order should not be confirmed;
•
Such interim order is upon service thereof on the Respondent of
immediate force and effect;
•
Any person against whom an order is granted ex parte may
anticipate the return day upon delivery of not less than 24 hours’
notice;
•
A copy of any order made ex parte, the notice of motion and of the
affidavit, if any, on which it was made shall be served on the
Respondent thereto;
•
Where cause is shown against any order made ex parte against a
party the Court may order the Applicant or Respondent or the
deponent to any affidavit on which it was made to attend for
examination or cross-examination;
•
Any order made ex parte may be confirmed, discharged or varied by
the Court on cause shown by any person affected thereby and, on
such terms, as to costs as the Court may deem fit;
•
If on the return date, the matter fail to appear before a Court for
either the extension or confirmation of the interim order, it is
automatically set aside;
•
Ex parte applications may be heard in chambers and at any time
during Court hours.
Rule 55(4)(b):
Applications to the Court for authority to institute proceedings or directions
as to procedure or service of documents may be made ex parte where the
giving of notice of such application is not appropriate or not necessary.
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Rule 55(7):
The Court, after hearing an application, whether brought ex parte or
otherwise, may make no order thereon (save as to costs if any) but grant
leave to the Applicant to renew the application on the same papers
supplemented by such further affidavits as the case may require.
Please note Rule 56 has been amended. Rules 56(4) and (5) have been
amended subsequent to the decision of the Constitutional Court in Malachi
v Cape Dance Academy International (Pty) Ltd 2010 (6) SA 1 (CC).
Rule 57(1):
(1)
Any application to the Court for an order of attachment of property
under Section 30bis of the Act may be made ex parte.
10.9 INTERLOCUTORY APPLICATIONS
Interlocutory and other applications incidental to pending proceedings must
be brought on notice corresponding substantially with Form 1C of Annexure
1.
10.10VARIOUS APPLICATIONS
10.10.1 Section 36 – What Judgments may be rescinded
The Court may, upon application by any person affected thereby, rescind,
or vary any judgment granted by it in the absence of the person against
whom that judgment was granted.
10.10.2 Rule 49 – Rescission and Variation of Judgments
•
A party to proceedings in which a default judgment has been given,
may within 20 days after obtaining knowledge of the judgment
serve and file an application to Court;
•
On notice to all parties to the proceedings;
•
For a rescission or variation of the judgment and the Court may
upon good cause show, or if it is satisfied that there is good reason
to do so;

Rescind or vary the default judgment on such terms as it deems fit:
o
Provided that the 20 days’ period shall not be applicable to a
request for rescission or variation of judgment brought in
terms of sub-rule (5);
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o
It will be presumed that the Applicant had knowledge of the
default judgment 10 days after the date on which it was
granted, unless the Applicant proves otherwise;
•
Where an application for rescission of a default judgment is made
by a Defendant against whom the judgment was granted, who
wishes to defend the proceedings, the application must be
supported by an affidavit setting out the reasons for the Defendant’s
absence or default and the grounds of the Defendant’s defence to
the claim;
•
A new Rule 49(5A) came into effect on 1 August 2018 in terms of
which a debtor or any other person affected by the judgment may
apply to rescind the judgment if the judgment debt, the interest
thereon at the rate granted in the judgment and the costs have been
paid in full. The Application must be made on a form corresponding
substantially with Form 5C of Annexure 1 and proof of payment
must be attached. The Application must be served on the Judgment
Creditor 10 days before the hearing;
•
Where an application for rescission of a default judgment is made
by a Defendant against whom the judgment was granted, who
does not wish to defend the proceedings, the Applicant must
satisfy the Court that he or she was not in wilful default and that
the judgment was satisfied, or arrangements were made to satisfy
the judgment, within a reasonable time after it came to his or her
knowledge.
In Venter v Standard Bank of SA 1999 (3) A11 SA 278(W), the Court however decided
that the provisions of Rule 49(5) are ultra vires and can therefore not be applied.
Saphula v Nedcor Beperk 1999(2) SA 76 (W).
RFS Catering Supplies v Bernard Bigara Enterprises CC 2002(1) SA 896(C), the
Cape High Court expressed a contrary view.
Section 36 (2) of the Magistrates’ Courts Act No. 32 of 1944, in terms of which the Court
must rescind or vary a judgment by default if the Plaintiff has consented thereto in writing.
10.11RULE 60 – NON-COMPLIANCE WITH RULES INCLUDING TIME LIMITS
AND ERRORS
•
Where any order so made is not fully complied with within the time so
stated;
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•
The Court may on application forthwith give judgment in the action
against the party so in default; or
•
May adjourn the application and grant an extension of time for
compliance with the order on such terms as to costs and otherwise as
may be just;
•
The Court may on application under sub-rule 60(2) and (3) order such
stay of proceedings as may be necessary;
•
Any time limit prescribed by these Rules, except the period prescribed
in Rule 51(3) and (6), may at any time, whether before or after the
expiry of the period limited, be extended:

o
by the written consent of the opposite party; and
o
if such consent is refused, then by the Court on application and
on such terms as to costs and otherwise as it may deem fit.
Before applying to Court for an extension of time limit in terms of Rule
60(5), a request in writing must first be made to the opposition. Only
if permission for extension is refused, shall an application be able to
be brought.
The whole object of sub-rules (1) – (4) is that mere errors of procedure
shall not defeat a party’s claim unless the Act or Rules specifically and
expressly provide that the error shall be fatal.
Sub-rule (2) is applicable only in cases where a provision of the Rules or a
request made in pursuance thereof has not been fully complied with,
provided that it cannot be resorted to in order to obtain relief which should
properly be applied for under a different Rule.
Rule 62(3) and Rule 23(8) lays down its own procedure and prescribes a
particular penalty for non-compliance with it, and the general provisions
under Rule 60 cannot be used so as to circumvent the specific provisions in
Rule 62(3).
The applications in terms of sub-rules (2), (3) and (5) must be drawn and
presented as provided for in Rule 55. It must be on notice in which must be
stated the order applied for and the time when the application will be made.
Sub-rule (6) applies only in cases where there has been short service without
leave.
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SELF-ASSESSMENT QUESTIONS: QUESTION 14
Draft an application for rescission of judgment based on the following facts:
The summons, which is for the price of goods sold and delivered, was not served
personally on the Defendant. The first time which the Defendant knew about the action
against him, was when a warrant for execution was served on him two months after the
date of judgment. However, no attachment in terms of the warrant was made and the
messenger of the Court told the Defendant that he has nothing to fear. As a result of the
foregoing the Defendant did nothing further until he received a notice in terms of Section
65 three months later. Then he went to consult a lawyer who informed him that judgment
had been taken against him and he had to apply for rescission thereof. The Defendant’s
defence to the claim is that he had only received a portion of the goods ordered by him
and that he had already paid the full purchase price of those goods which he had received.
Bear the provisions of Rule 60 (5) in mind and use your own additional facts without
contradicting the above.
(15 marks)
10.12 SECTION 32 – ATTACHMENT IN SECURITY OF RENT
It must be noted that this application can only be brought in the District Court
of the Magistrate’s Court.
(1)
Upon an affidavit by or on behalf of the landlord of any premises
situate within the district, that an amount of rent not exceeding the
jurisdiction of the Court is due and in arrears in regard to the said
premises, and that the said rent has been demanded in writing for the
space of seven days and upwards, or, if not so demanded, that the
deponent believes that the tenant is about to remove the movable
property upon the said premises, in order to avoid the payment of such
rent, and upon security being given to the satisfaction of the Clerk of
the Court to pay all damages, costs and charges which the tenant of
such premises, or any other person, may sustain or incur by reason of
the attachment hereinafter mentioned, if the said attachment be
thereafter set aside, the Court may, upon application, issue an order
to the messenger requiring him to attach so much of the movable
property upon the premises in question and subject to the landlord’s
hypothec for rent as may be sufficient to satisfy the amount of such
rent, together with the costs of such application and of any action for
the said rent.
The application in terms of Section 32 (1) may be brought ex parte under
Rule 56. In this case there is sufficient reason to use the ex parte procedure
because notice to the Respondent will defeat the object of the application
namely, to attach movable property before the tenant is able to remove the
goods from the leased premises.
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The purpose of an attachment on the ground of an apprehension that the
tenant is planning to remove the movables in order to avoid having to pay
the overdue rent is not only to confirm the hypothec and render the removal
of the goods unlawful, it is also an attachment in securitatem debiti. Rule
42(3) renders the provisions of Rule 41(7) applicable to the attachment of
property in security or rent in terms of this Section. The Clerk or the Registrar
of the Court must accordingly follow the instructions of the landlord, if
properly given, as to the immediate removal of the property attached and
convey such instructions to the Sheriff.
Lesotho Developers (Pty) Ltd v Messenger of the Magistrate’s Court, Alberton
1993(2) SA 634 (W);
Timmerman v Le Roux 2000 (4) SA 59 (W)
10.13EDICTAL CITATION AND SUBSTITUTED SERVICE
In terms of the previous Magistrates’ Courts Rules applications for
substituted service could be brought in the Magistrate’s Court but not those
for an edictal citation.
This situation has now been clarified and edictal citation is now provided for
in Rule 10 of the Rules. In line with granting the Regional Courts matrimonial
jurisdiction the new Rules provide for applications for maintenance
pendente lite, cost contributions, interim custody, and access to children
(See Rule 56).
Edictal citation is ordered when the Defendant is or is believed to be out of
the Republic.
Substituted service is where a summons or order of Court which cannot be
served in terms of Rule 9 or as in the case of a divorce, personally is served
by way of publication in a newspaper or other publication and it must be
published in the language of the newspaper or any other method of service
the Court may, depending on the specific circumstances authorise.
10.14APPLICATIONS IN RESPECT OF IRREGULAR PROCEEDINGS – RULE
60A
Where an opponent has taken an irregular step, the other party may now
apply to Court to have it set aside. The irregular step must be in respect of
the Rules of Court and the Rule does not serve as a basis to object to
procedural irregularities in respect of other legislation.
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Rule 5(11) which provides that if a party fails to comply with any of the provisions
of Rule 5, such summons shall be deemed to be an irregular step and the opposite
party shall be entitled to act in accordance with Rule 60A.
Where the Defendant fails to comply with Magistrates’ Courts Rule 17(2)
(admit, deny, confess or state all the material facts) Rule 17(3) (set out
necessary explanation of qualification of denial), or Rule 17(5) (properly
tender) the Plaintiff may use Rule 60A to address the issue.
If the Defendant counterclaims, the claim in reconvention must comply with
Rule 20 failing which it will be deemed an irregular step and the other party
may act in accordance with Rule 60A.
The above examples are not exhaustive of the cases in terms of which a
party may approach the Court in terms of Rule 60A. (Before applying to
Court, a party must give the opponent an opportunity of 10 days to remove
the cause of complaint).
FLOW CHART – IRREGULAR STEP
Receipt of
pleading
Serve notice of
motion and
affidavit (within
15 days of final
date to rectify)
Index and
Paginate Heads
of Argument
Determine
whether Step
Irregular (asap
as one has 10
days to give
formal notice)
Draft notice of
motion and
founding
affidavit
Draft Minutes
of proposed
order Rule
55(8)(a)
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other step Rule
60A (2)(a)
Collegial request
to rectify
Wait 10
days
Collegial
request to
rectify
Notice to
remove cause of
complaint
(within 10 days)
Appear and
request
(Interlocutory)
order
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11.
RULE 14A – PROVISIONAL SENTENCE PROCEEDINGS
11.1 INTRODUCTION AND BACKGROUND
Provisional sentence is an unusual and extraordinary remedy. Procedurally,
it may be described as a hybrid, containing elements of both the action and
motion procedures. A provisional sentence action is commenced by means
of a provisional sentence summons, but the “pleadings” at the provisional
stage are in the form of affidavits.
The provisional sentence procedure may be utilised for one cause of action
only: actions based on liquid documents.
In a provisional sentence summons, the Defendant is called upon
immediately to pay a sum of money to the Plaintiff, based on the liquid
document, a copy of which must be annexed to the summons. The provisional
sentence summons further informs the Defendant that if he or she fails to
make the required payment, he or she is required to appear in Court on a
specified date, either personally or by Legal Practitioner, to admit or deny
liability for the claim and where mortgaged property is involved, to state why
the mortgaged property should not be declared executable.
If the Defendant chooses to deny liability, he/she is required to deliver an
affidavit setting forth the grounds of his/her defence to the claim. The
Defendant is also required to admit or deny his/her signature on the liquid
document and where the liquid document was allegedly signed by an agent
of the Defendant, to state whether he/she admits or denies the signature or
authority of the agent. If the Defendant does deny liability and delivers an
affidavit, the Plaintiff is entitled to deliver a replying affidavit. The Court will
then decide the liability of the Defendant on the affidavits only. No oral
evidence may be tendered or heard during the provisional stage unless the
Defendant denies the authenticity of his/her (or the agent’s) signature. If the
authenticity of the signature is in dispute, oral evidence may be heard on
that aspect — and that aspect alone.
If the Court refuses to grant provisional sentence, it may, depending on the
reason for the refusal, mean the end of the action. This will be the case where
the Court is not satisfied that the document upon which the action is based
is a liquid document. In all other cases, the Court will order the Defendant to
deliver a plea. The normal action procedure will apply from that stage
onwards.
If the Court grants provisional sentence, the Defendant is required to satisfy
the judgment before being permitted further to defend the matter. In the
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terminology of provisional sentence procedure this is referred to as entering
upon the principal case.
A procedural safeguard is built into the remedy in that the Defendant is
entitled to require the payment of security de restituendo from the Plaintiff
against payment of the judgment debt. If the Defendant does not satisfy the
judgment debt within two months after the grant of provisional sentence,
he/she will not be permitted to enter upon the principal case and the
provisional judgment becomes final. Put differently, the Defendant has two
months within which to satisfy the judgment debt and give notice of his/her
intention to enter upon the principal case.
Short of all its complexity, provisional sentence may be said to be a remedy by
which a Plaintiff can obtain judgment and payment or execution of the judgment
debt before the Defendant is permitted to defend the matter and a trial will be
held. It is for this reason that this remedy has been described as unusual and
extraordinary and even drastic.
In Twee Jonge Gezellen (Pty) Ltd & Another v Land and Agricultural
Development Bank of SA t/a the Land Bank & Another 2011 (3) SA 1
(cc) at 22 H-J it was held that the provisional sentence procedure
constituted a limitation of the Defendant’s right to a fair trial in terms of
Section 34 of the Constitution of the Republic of South Africa.
In cases where the nature of the defence raised did not allow the Defendant
to show a balance of success in his favour without the benefit of oral
evidence:
•
the Defendant was unable to satisfy the judgment debt;
•
the Court had no discretion, in the absence of narrowly defined “special
circumstances” to refuse provisional sentence.
The Court held further that the common law had to be developed so that Courts
would in future have a discretion to refuse provisional sentence in the following
circumstances:

an inability to satisfy the judgment debt;

an even balance of success in the main case on the papers;

a reasonable prospect that oral evidence might tip the balance of
success in the Defendant’s favour.
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Rule 14A in Chapter 5 – Forms of Proceedings
Jones & Buckle, The Civil Practice of the Magistrates’ Courts in South Africa, 10th edition
11.2 REQUIREMENTS FOR THE GRANT OF PROVISIONAL SENTENCE
The requirements for provisional sentence are the following:
•
The Plaintiff’s claim must be based on a liquid document;
•
The Plaintiff must satisfy the Court as to the onus upon him/her;
•
The Defendant is unable to satisfy the Court in respect of the onus
upon him/her.
11.3 LIQUID DOCUMENT
In Rich v Lagerwey 1974 (2) SA 748 (A) it was held that a liquid document
is one which, upon a proper construction thereof, evidence by its terms, and
without resort to evidence extrinsic thereto, an unconditional acknowledgment
of indebtedness in an ascertained amount of money, the payment of which is
due to the creditor. If a document evidences all these characteristics, it is one
upon which provisional sentence may properly be granted.
From this definition, it is evident that the elements of a liquid document are
as follows:
A document which manifests certain characteristics:
•
The characteristics must be established without resort to extrinsic,
evidence and by reference to only the document,
•
An acknowledgment of indebtedness,
•
In an ascertained amount of money,
•
The payment of which is due to the creditor,
•
The acknowledgment of indebtedness should be unconditional,
•
The signature or deemed signature of the debtor or the latter’s agent.
In Western Bank Ltd v Pretorius 1976 (2) SA 481 (T) it was held that
the requirement that the acknowledgment of indebtedness should be
unconditional could conveniently be grouped under the requirement of the
payment being due to the creditor. It was pointed out that if the
acknowledgment of indebtedness is conditional then payment would not be
due to a creditor. That is true, but it is probably safer to specify
unconditionally as a separate requirement, lest it be overlooked.
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An acknowledgment of indebtedness may be evident also in the form of an
undertaking to pay. Many decisions use these expressions interchangeably.
However, a simple acknowledgment of indebtedness without a specific
undertaking to pay is sufficient to sustain a claim for provisional sentence
even where the causa debiti is not recited in the document. Where a
document is otherwise liquid, it is also unnecessary that the causa debiti be
recited in it or in the summons.
However, in Integritas Ouditeure Ingelyf v Crous (2002) 1 All SA 583
(T) where the Court sketched the requirements for provisional sentence and
held that the document called in this case “Erkenning van Skuld” was not a
Liquid document.
If no sum is mentioned in the document, provisional sentence will not be
granted. The same applies where the acknowledgment of indebtedness
relates to a maximum amount rather than a specific sum Wollach v
Barclays National Bank Ltd 1983 (2) SA 543 (A).
In the seventies and early eighties it was accepted in a number of decisions
that provisional sentence could be granted if a debtor, in a written instrument
such as a covering bond or deed of suretyship, admitted indebtedness for an
indeterminate amount subject to a fixed maximum, provided that the
instrument stipulated that the extent of the debtor’s liability at any given
moment could be proved by a document such as a certificate and provided
that the Plaintiff obtained and relied on such a certificate. In the Wollach
decision the majority held that this approach was wrong and in conflict with
the requirement of liquidity. Liquidity cannot, so to speak, be retrospectively
conferred by the agreed issue of a certificate. The fact that the debtor had,
in the document, renounced the exceptio non numeratae pecuniae will
also not serve to satisfy the requirement of liquidity in cases such as these.
The parties cannot, in other words, make an otherwise illiquid document
liquid merely by agreement.
Where a document is designed to cover, either wholly or in part, to cover
future advances to be made at the discretion of the creditor, it is not liquid
for the purposes of provisional sentence. The reason is that it is not possible
to determine the extent of indebtedness from the document itself.
The obligation in the document must be one sounding in money. If an
obligation is ad factum praestandum, the document is illiquid and cannot
find a claim for provisional sentence. Examples which may occur in the
context of provisional sentence would be a promise to lend money, or to
deliver movable property or an undertaking to execute a mortgage bond. An
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undertaking to pay whatever may be found to be due is not liquid, since
extrinsic evidence is necessary to establish the amount payable.
11.4 INTEREST
Interest payable at “the bank rate” or at the prime lending rate of a specified
bank would not be liable for provisional sentence. The reason is that extrinsic
evidence would be necessary to prove the applicable interest rate. However,
where interest is stipulated for at the legal rate or at any other rate which is
fixed by law, provisional sentence may be granted for the interest.
A creditor holding a bill of exchange, cheque or promissory note can choose
either to sue the debtor on the original obligation or on the instrument but
where a creditor accepts an instrument in payment of the debt the remedy
based on the underlying obligation is suspended. This means that in order to
find a claim on the original cause of action the creditor must in the particulars
of claim account for the instrument. The instrument may then be used as
evidence. But where he/she sues on the instrument, the instrument itself
forms the cause of action. Where a Plaintiff founds his/her action on the
instrument, the cause of action is not based in contract but by virtue of the
fact that he/she sues as a holder enforcing a holder’s rights in terms of the
Bills of Exchange Act No. 34 of 1964. The Plaintiff must allege and if this
is disputed, prove, that he/she is the holder of the instrument. Taking into
account that since December 2020 cheques cannot be issued
anymore.
In these notes it is not practicable to explore all the specific instances of
documents which have been held by the Courts over the years to be liquid or
illiquid. Suffice it to say that it has repeatedly been held that the question
whether a particular document is liquid depends, in each case, upon a
construction of its terms. It is also wise in each case to attempt a construction
and analysis of the document in question before trying to find whether a similar
document was ever accepted in a decided case. As was pointed out by Holmes
AJA in the Wollach decision, “A case-on-all-fours is oft a willow-o-the-wisp”.
11.5 EXTRINSIC EVIDENCE
The need for extrinsic evidence generally destroys liquidity. The Plaintiff’s
title must be apparent from the document but in certain cases the principle
that the document must speak for itself has been tempered over the years.
For example, the holder of a cheque made payable to bearer may merely
make an appropriate averment in the summons identifying him/herself. If
the Defendant does not deny the Plaintiff’s title, provisional sentence will be
granted. On the other hand, a cheque made payable to “cash or order” is
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neither a bill in terms of the Bills of Exchange Act No. 34 of 1964 nor a liquid
document.
11.6 WHEN IS A CONDITION NOT A CONDITION?
If an acknowledgment of indebtedness or undertaking to pay in a document
is not unconditional, the document is illiquid. If I should promise to pay
someone R10 000 if Bloemfontein Celtic win the PSL Final in 2024 and put
that promise to paper over my signature, the document would not be liquid.
On the other hand, where the document contains a stipulation that payment
depends on some simple condition or event, the Plaintiff may in the summons
allege the fulfilment of that condition or event.
In the latter case, the document will evidence an unconditional
acknowledgment of indebtedness or undertaking to pay. The existence of the
debt will, from the face of the document, not be in issue. All that will be at
issue, and which may be proved by an allegation in the summons is the event
or circumstance triggering payment.
Typical examples are mortgage bonds and acknowledgment of debt for a
fixed sum which is required to be repaid in instalments. If any instalment is
paid late or if the debtor fails to pay, an acceleration clause provides that the
balance is immediately payable in full. Mortgage bonds typically also contain
other conditions relating to insuring and maintaining the mortgaged property
and requiring the debtor to keep current on all municipal rates and service
accounts. The failure to comply with any of these conditions will trigger the
acceleration clause. However, it is important to note that whether or not the
acceleration clause is triggered, the amount stated in the document is due
to the creditor.
The distinction between a condition that destroys the liquidity of a document,
and a simple condition may therefore be established, somewhat simplistically,
with the following question: absent the condition, is there a debt? If not, the
condition is a true condition that can only be established by means of extrinsic
evidence and the document is not liquid. If the debt exists irrespective of the
condition, the latter is a simple condition.
Due weight must however be given to the adjective or qualification “simple”.
It connotes a condition or event of a kind unlikely, in the nature of things, to
give rise to a dispute or, where it is disputed, is inherently capable of speedy
proof by means of affidavit. If the condition or event is not a “simple” one,
then provisional sentence is not competent.
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11.7 THE ONUS OF PROOF ON THE PLAINTIFF
The Plaintiff must establish that:
(a)
The document being sued upon is a liquid document;
(b)
He/she is the creditor; and
(c)
Ex facie the document the Defendant is liable.
In the absence of any defence by the Defendant, the Court must grant
provisional sentence in the Plaintiff’s favour.
The reason for this is the fact that a valid liquid document raises a
presumption of indebtedness by the debtor in favour of the creditor. This
presumption may be rebutted on a balance of probabilities by the debtor.
The Court gave the following exposition of the onus of proof in Allied
Holdings Ltd v Myerson 1948 (2) SA 961 (W) at 967-968:
“Initially the Plaintiff has to prove nothing. He merely alleges in the summons
that he is the holder of a liquid document which the Defendant has signed
and he hands in the document. He is then entitled to judgment. But if the
Defendant disputes any of the allegations in the Plaintiff’s summons, for
instance, if he denies his signature, then the onus is on the Plaintiff to prove
that the Defendant did sign that document. Similarly if ex facie the document
some condition has to be fulfilled before the Plaintiff is entitled to payment, the
Plaintiff must, in his summons, allege fulfilment of that condition, and if the
Defendant denies that the condition has been fulfilled, the Plaintiff must prove
that he has performed the condition before he is entitled to judgment. But it is
only in this sense that there is an onus on a Plaintiff in a provisional sentence
case. He only has to prove those things which it is necessary for him to allege
in his summons if they are disputed. Where his document is, on the face of it,
an unconditional promise to pay, all he need do is to produce the document with
the Defendant’s signature upon it”.
11.8 THE ONUS OF PROOF ON THE DEFENDANT
The Defendant may oppose the provisional sentence in three ways.
•
He/she may contest the liquidity of the document. e.g.;
•
he/she may contest authenticity of signature on document;
•
he/she may contend that the event, on the happening of which
payment is made contingent, has not been complied with or has
not taken place.
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If the Defendant puts liquidity of the document in issue, the onus is on the
Plaintiff to show on a balance of probabilities that the signature is that of the
Defendant, or his/her agent, or that the conditions have been complied with
or have taken place, as the case may be.
Union Share Agency v Spain 1928 AD at 79;
Pepler v Hirschberg 1920 CPD 438; and
Inglestone v Pereira 1939 WLD 55
(b)
He/she may raise a defence outside the liquid document; that is,
admit the liquidity of the document, but contends that by reason of
other facts, not liable.
In such a case, the onus is on the Defendant to show on a balance of
probabilities that the Plaintiff will not succeed in the main case. All such
defences outside the liquid document amount to pleas of confession and
avoidance, the onus of establishing which is on the Defendant. As was stated
in Allied Holdings Ltd v Myerson 1948 (2) SA 961 (W) at 968:
“(O)nce we go behind the liquid document the onus is on the Defendant to
show that if evidence were heard the probabilities are that he would
succeed.”
The Defendant must discharge this onus on a balance of probabilities. The
preponderance of probability must be substantial and must not depend
merely on conjecture or on a slight probability. The probabilities must be
based on facts raised on affidavit and not on inferences. The liquid document
sued upon has considerable evidential value when the probabilities are
weighed. If the Defendant fails to discharge the duty of showing that the
Plaintiff is unlikely to succeed in the principal case, provisional sentence will
be given against him/her.
To illustrate how the onus operates:
In Lesotho Diamond Works (1973) Pty Ltd v Lurie 1975 (2) SA 142
(O) the Plaintiff summoned the Defendant for provisional sentence in the
sum of R2 600 on the ground of cheques which the Defendant had made out
for this amount to the Plaintiff. The cheques were not paid because the
Defendant stopped the payment thereof. The Defendant’s defence was that
he had bought diamonds from the Plaintiff with the money, that it was a
material term of the agreement that the diamonds were flawless, and that
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he, after receipt of the diamonds, had discovered that they were in fact
flawed and that they were accordingly worth less than the agreed amount.
The Plaintiff did not reply to these allegations of the Defendant.
The Court held that.
•
the Defendant’s allegations could in fact be raised as a defence in an
application for provisional sentence,
•
that the onus rested on the Defendant to prove these allegations
(because the liquid nature of the document was not contested by him,
but he raised a defence independently of the document), and
•
that the Defendant had in fact succeeded in proving these allegations
on a balance of probabilities. Provisional sentence was accordingly not
granted.
11.9 APPEALABILITY OF JUDGMENT AT PROVISIONAL SENTENCE STAGE
When provisional sentence is granted:
It was held in Avtjoglou v First National Bank of Southern Africa Ltd
2004 (2) SA 453 (SCA) that when provisional sentence has been granted
in the High Court, the common law does not provide the Defendant with any
right of appeal but classifies a provisional sentence as a pure or simple
interlocutory order against which no appeal can lie.
For a judgment or order to be appealable it must have three attributes.
•
the decision must be final in effect and not susceptible to alteration by
the Court of first instance;
•
it must be definitive of the rights of the parties; and
•
it must have the effect of disposing of at least a substantial portion of
the relief claimed in the main proceedings.
The decision to grant provisional sentence is not final in effect and is
susceptible of alteration by the Court hearing the principal case, even as to
the question of whether the document relied upon is liquid or not. Provisional
sentence is further not definitive of the parties’ rights and does not finally
determine the issues between the parties. In determining the nature and
effect of a judicial pronouncement, not merely the form of the order had to
be considered but also its effect.
It may appear, at first blush, to be unduly harsh upon an impecunious
Defendant, who is required to pay the amount of the provisional sentence
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before being entitled to enter the principal case, to deprive him of the right
of appeal at the provisional sentence stage. On the other hand, one should
not lose sight of the fact that a Plaintiff armed with what is prima facie a
liquid document is entitled to the long-established expeditious remedy of
provisional sentence.
The grant of provisional sentence is therefore not appealable.
This decision was followed in Smit v Scania South Africa (Pty) Ltd 2004
(3) SA 628 (SCA). In this matter, it was also held that it was possible that
in exceptional cases, the application of the requirements for appealability to
a provisional sentence judgment could show that a provisional sentence
judgment was appealable.
In Ndamase v Functions 4 All 2004 (5) SA 602 (SCA), it was held that
Rule 14A of the Magistrates’ Courts Rules was not ultra vires and the
Avtjoglou decision was once again applied, this time with reference to the
appealability of a provisional sentence in the Magistrate’s Court. A refusal of
provisional sentence, where it is not coupled with an order to the Defendant
to deliver a plea, is appealable.
Erasmus & van Loggerenberg: The Civil Practice of the Magistrates’ Courts in South
Africa 10th ed Vol II at 14A-1— 14A-16A.
Malan et al Provisional Sentence on Bills of Exchange, Cheques and Promissory Notes at 1—15.
Kritzinger “Provisional Sentence: Compound Acknowledgements, Liquidity and Extrinsic
Evidence” (1984) 101 SALJ 25.
De Vos “The Course of Provisional Sentence Proceedings upon the Refusal of Provisional
Sentence” (1986) 2 TSAR 233—235
Beck “Onus of Proof in Provisional Sentence Proceedings” 1989 THRHR 54—65. Case Law:
Inglestone v Perreira 1923 WLD 55
Union Share Agency & Investment Ltd v Spain 1928 AD 74
Allied Holdings Ltd v Meyerson 1948 (2) SA 961 (W)
Sonfred (Pty) Ltd v Papert 1962 (2) SA 140 (W)
Rich & Others v Lagerwey 1974 (4) SA 748 (A)
Lesotho Diamond Works (1973) (Pty) Ltd v Lurie 1975 (2) SA 142 (O)
Standard Bank of South Africa v Spedding 1975 (3) SA 510 (W) Western Bank
Ltd v Pretorius 1976 (2) SA 481 (T)
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CGE Rhoode Construction Co (Pty) Ltd v Provincial Administration, Cape 1976
(4) SA 925 (C)
Harrowsmith v Ceres Flats (Pty) Ltd 1979 (2) SA 722 (T)
Lambrechts v Lambrechts 1981 (2) SA 97 (C)
Volkskas Bpk v Scott 1981 (2) SA 471 (E)
Wollach v Barclays National Bank Ltd 1983 (2) SA 543 (A)
Van Der Merwe v Bonaero Park (Edms) Bpk 2000 (4) SA 329 (SCA)
Avtjoglou v First National Bank of Southern Africa Ltd 2004 (2) SA 453 (SCA)
Ndamase v Functions 4 All 2004 (5) SA 602 (SCA)
12.
EXECUTION
12.1 RULE 36 – PROCESS IN EXECUTION
•
The process for the execution of any judgment for the payment of
money, for the delivery of property whether movable or immovable,
or for ejectment shall be by warrant issued and signed by the Registrar
or Clerk of the Court and addressed to the Sheriff.
•
This process may be sued out by any person in whose favour any such
judgment shall have been given, if such judgment is not then satisfied,
stayed, or suspended.
•
This process may at any time, on payment of the fees incurred, be
withdrawn, or suspended by notice to the Sheriff by the party who has
sued out such process.
12.2 COLLECTION PROCESS FROM DEBT TO EXECUTION: THREE PHASES
•
Obtaining judgment
•
Attaching the property
•
Arranging the sale in execution
Rule 36 above deals with the process to be followed in executing a judgment.
12.3 IMPORTANT TYPES OF WARRANTS
•
Warrant of Execution (Form 32)
•
Warrant for Ejectment (Form 30)
•
Warrant for Delivery of goods (Form 31)
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The Warrant of Execution is used most often, and it is in terms of this warrant
that either movable or immovable property may be attached to be sold in
execution. Normally the Plaintiff must first attach the movables.
Refer to Section 66, 65E (1) (a), 68, 73 and 78 and to Rules 36 – 44.
The general rule is that a warrant of execution against movable property may
be issued after judgment and if no sufficient movable property is found, a
warrant against immovable property may then be issued.
The execution creditor may issue a warrant against immovable property
immediately after judgment where the Court on good cause authorised such
a warrant (in terms of Section 66(1)) or, if the execution creditor has sued
for the outstanding balance on a mortgage bond and the Court has ordered
the mortgaged property to be especially executable as part of the judgment.
In practice a warrant of execution is issued at the time when judgment by
default is granted. If no attachment is made in terms of the warrant the
execution creditor is not entitled to recover the costs of the warrant nor the
Sheriff’s fee from the debtor in terms of Section 65E(4).
Prior to considering the execution process, regard should be had to Section
67 of the Act in regard to items that are exempted from execution:
•
The necessary beds, bedding and wearing apparel of the execution
debtor and of his family;
•
Stock, tools and agricultural implements of a farmer insofar as they do
not exceed in value the amount determined by the Minister from time
to time by notice in the Gazette;
•
The supply of food and drink in the house sufficient for the needs of
such debtor and of his family for one month;
•
Tools and implements of trade, insofar as they do not exceed in value
the amount determined by the Minister from time to time by notice in
the Gazette;
•
Professional books, documents or instruments necessarily used by
such debtor in his profession, in so far as they do not exceed in value
the amount determined by the Minister from time to time by notice in
the Gazette;
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•
Such arms and ammunition as such debtor are required by law,
Regulation, or disciplinary code to have in his possession as part of his
equipment.
In terms of the State Liability Amendment Act No. 14 of 2011 provision has
been made for the satisfaction of final Court orders sounding in money
against the State. Reference must be had to Section 3 of that Act. The
General Pensions Act No. 29 of 1979 provides in Section 2(1) that no annuity
or benefit or right in respect of an annuity or benefit payable under a pension
law shall be liable to be attached or subjected to any form of execution under
a judgment or order of a Court of law.
A right to a benefit or gratuity to which any person is entitled under the
Occupational Diseases in Mines and Works Act No. 78 of 1973 is not subject
to execution of a judgment or order of a Court of law, except at the instance
of the Compensation Commissioner for Occupational Diseases in proceedings
to recover an amount to which the payee was not entitled.
The levying of execution upon pledged property is considered and dealt with
in Section 68(3) of the Magistrates’ Courts Act No. 32 of 1944, which in terms
of the said Section under those circumstances, which is in general, may be
attached in execution.
Movable property of the debtor which has acceded to other property not
belonging to the debtor cannot be attached in execution. Cooper v Jordan
(1884) 4 EDC 181.
Property of the debtor which has by agreement become the property of
another for the time being, cannot be attached in execution. Verwey NO v
Malcomess & Co (1892) 4 SAR 178.
12.3.1 The Amounts that must be reflected on The Warrant
•
Capital amount or outstanding balance of the claim;
•
Judgment costs (if a bill of costs has not been taxed yet the words
“to be taxed” should be inserted);
•
Interest, the rate and the date from which it has to be calculated and
if it is compound interest the words “calculated daily and compounded
monthly” should be added;
•
The costs of the warrant plus VAT;
•
Payments made by the debtor.
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It is absolutely essential that the amounts reflected on the warrant be
correct as once the amount is paid, the warrant ceases to exist.
In Sonia v Linton 1927 TPD 76 it was decided that only one warrant may
be issued in each case and only the amounts appearing on the warrant need
be paid. Once that amount has been paid the warrant has been satisfied
and that is the end of the matter.
In Van der Merwe v Karstel 1995 (4) SA 248 (W) it was decided that
a second warrant for costs may be issued.
The warrant of execution is usually lodged with the Registrar or Clerk of the
Court together with the request for default judgment. In certain cases,
especially claims for arrear rental, the execution creditor may request the
Registrar or Clerk of the Court to authorise immediate removal of the
attached goods. In such cases the warrant should be endorsed with the
words “attach and remove immediately”.
The warrant of execution, and where applicable, a warrant for ejectment
and a warrant for delivery of goods, is handed to the Sheriff for service.
12.4 RULE 41 – EXECUTION AGAINST MOVABLE PROPERTY
In terms of Rule 41(3) the Sheriff must demand payment of the amount due
from the debtor or else that so much movable property be pointed out, as
the Sheriff may deem sufficient to satisfy the warrant. If the debtor does not
point out movable property to the Sheriff, the Sheriff may go ahead and
attach any property that he can find and which in his opinion will be sufficient
to satisfy the warrant.
Rule 41(7) authorises the Sheriff to open any door on any premises, or of
any piece of furniture, if opening is refused or if there is no person present
who represents the execution debtor. The Sheriff is also authorised to use
force to that end, if necessary.
After service of the warrant the Sheriff provides the execution creditor or his
Legal Practitioner with a return of service together with an inventory of the
attached goods. All kinds of movable property may be attached including
money, securities, bonds, right and title in agreements (such as credit
agreements for instance). See Section 68(1)-(3).
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12.4.1 Steps to be taken to ensure a Valid Sale
•
The Sheriff must upon the written request of the creditor, or his Legal
Practitioner remove the attached goods to a place of safety.
•
Upon removal of the goods the Sheriff will usually require the creditor
to provide security in terms of Rule 38. The costs of removal and
storage are high but leaving the attached goods in possession of the
debtor carries with it the risk that the debtor may move the goods.
The removal of the goods has the added advantage of prompting the
debtor to make arrangements for the payment of the debt.
•
Regard must be had to Rule 41 which provides that in the absence of
any instruction leave the movable property on the premises and in
the possession of the person in whose possession the said movable
property is attached.
•
The Sheriff’s reply to the request for the removal of the goods will
indicate the date, time, and place of the sale, whether he requires
security, the amount of such security and whether he requires the
sale to be advertised in the local newspapers.
•
The creditor or his Legal Practitioner must thereupon draft the notice
of sale, provide the Sheriff with 3 copies thereof not later than 10
days before the date of the sale and arrange for the necessary
advertisements to be published timeously.
•
The Sheriff must be provided with a detailed statement of account
before the sale takes place. The Sheriff will recover the costs together
with the capital and interest provided that the proceeds of the sale is
sufficient to cover the full outstanding amount. The Legal Practitioner
or the creditor should attend the sale if possible.
Please refer to the recently amended Rule 41 and 42 with regards to the
steps to be followed in respect of movable property to be sold in execution.
12.5 RULE 43 AND 43A – EXECUTION AGAINST IMMOVABLE PROPERTY
The amendment of Rule 43 of the Rules, as amended in Government Gazette
No. 46839 dated 2 September 2022, is as follows:
(a)
The substitution for paragraph (b) of sub-rule (1) of the following
paragraph:
“(b)
A warrant of execution against immovable property shall
contain–
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(b)
(i)
A full description of the nature, magisterial district and
physical address of the immovable property to enable it
to be traced and identified by the Sheriff; and
(ii)
Sufficient information to enable the Sheriff to give effect
to sub-rule (3) hereof, including the title deed number,
the erf number or sectional title unit number and
exclusive use area to enable the Registrar of Deeds to
identify the immovable property.”; and
The substitution in sub-rule (11) for paragraph (b) of the following
paragraph:
“(b)
Any loss sustained by reason of the purchaser’s default may, on
the application of any aggrieved creditor [whose name
appears on the Sheriff’s distribution account] referred to
in paragraph (14)(c), be recovered from the purchaser under
judgment of a Magistrate given on a written report by the
Sheriff, after notice in writing has been given to the purchaser
that the report will be laid before a Magistrate for the aforesaid
purpose.”
See Annexure “G” at the back of this guide for a copy of the Government
Gazette.
This procedure is regulated by Rule 43 and 43A. These Rules came into effect
on 22 December 2017. Subject to the provisions of Rule 43A, no writ of
execution against the immovable property of any judgment debtor shall be
issued unless there is a nulla bona return or the property has been declared
especially executable by Court. Rule 43A applies whenever an execution
creditor seeks to execute against the residential immovable property of a
judgment debtor.
The format of the application is set out in Form 1B. This application must be
served on the judgment debtor, any other affected party, preferent creditors,
the Local Authority, if the property is rated; and the body corporate, if the
property is a sectional title unit. It must be served on the debtor personally
by the Sheriff. The Court must establish whether the immovable property
which the execution creditor intends to execute against is the primary
residence of the judgment debtor and consider alternative means by the
judgment debtor of satisfying the judgment debt, other than execution
against the judgment debtor’s primary residence.
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Every application shall be supported by the following documents, where
applicable, evidencing the market value of the immovable property, the Local
Authority valuation of the immovable property, the amounts owing on
mortgage bonds registered over the immovable property, the amount owing
to the Local Authority as rates and other dues, the amounts owing to a body
corporate as levies and any other factor which may be necessary to enable
the Court to give effect to sub-rule (8).
A Court considering an application under this Rule may of its own accord or
on the application of any affected party, order the inclusion in the conditions
of sale, of any condition which it may consider appropriate, order the
furnishing by a municipality of rates due to it by the judgment debtor or a
body corporate of levies due to it by the judgment debtor; order execution
against the primary residence of a judgment debtor if there is no other
satisfactory means of satisfying the judgment debt, set a reserve price, make
any other appropriate order.
In deciding to set a reserve price and the amount at which the reserve is to
be set, the Court shall take into account the market value of the immovable
property, the amounts owing as rates or levies, the amounts owing on
registered mortgage bonds, any equity which may be realised between the
reserve price and the market value of the property, reduction of the
judgment debtor’s indebtedness on the judgment debt, whether or not equity
may be found in the immovable property, whether the immovable property
is occupied, the persons occupying the property and the circumstances of
such occupation, the likelihood of the reserve price not being realised and
the likelihood of the immovable property not being sold, any prejudice which
any party may suffer if the reserve price is not achieved and any other factor
which in the opinion of the Court is necessary for the protection of the
interests of the execution creditor and the judgment debtor.
If the reserve price is not achieved at a sale in execution, the Court must, on
a reconsideration of the factors order how execution is to proceed. Where
the reserve price is not achieved at a sale in execution, the Sheriff must
submit a report to the Court, within 5 days of the date of the auction, which
report shall contain the date, time and place at which the auction sale was
conducted, the names, identity numbers and contact details of the persons
who participated in the auction, the highest bid or offer made and any other
relevant factor which may assist the Court in performing its functions. The
Court may order that the property be sold to the person who made the
highest offer or bid.
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Once the Court has granted an application for the sale of the immovable
property a writ of execution can be issued. The writ, corresponding
substantially with Form 32 shall contain the full description of the nature,
magisterial district, and physical address. It must be served on the Owner,
Registrar of Deeds, Occupier. The service must be done in terms Rule 9. If
the sale is done by a third party that is not the bondholder, then the writ
must be sent to the preferent creditor and Local Authority or Body Corporate
as well. The preferent creditor must consent to the sale or provide a reserve
price. The writ can be served on the preferent creditor by registered post.
The date of the sale may not be less than 45 days after warrant was served.
35 Days before sale the conditions of sale (from 21) must be delivered to the
Sheriff. Interested parties may amend conditions 25 days before sale, 20
days before sale the Sheriff settle conditions. The conditions lay 15 days for
inspection at the Sheriff. The Sheriff must serve conditions on debtor 15 days
before sale. An interested party can apply with 24 hours’ notice to change
the conditions of sale at the Magistrate’s Court, this must be done 10 days
before the sale. The execution creditor must draft a notice of sale which
contain a short description of property, situation, street address, time, and
place of sale and that the conditions of sale may be inspected at the Sheriff.
The Sheriff must serve the notice of sale 10 days before sale on other
judgment creditors who attached property, every Mortgagee, all other
Sheriffs appointed in district. The Sheriff shall affix the notice to the notice
board of the Magistrate’s Court and place of sale.
The execution creditor must publish the notice of sale in the Government
Gazette and a newspaper in a district not less than 5 days but not more than
15 days before the sale. Please note that the provisions of the Consumer
Protection Act No. 68 of 2008 are also applicable to sales in execution.
12.6 SECTION 65 – PROCEEDINGS
Section 65 creates the procedure to bring a debtor before the Court for a
financial inquiry to enable the Court to make an order for the payment of a
debt in instalments.
This Section has been amended with effect from 10 December 1997.
The following are important features of Section 65 proceedings:
•
The debtor personally or a director or official of the debtor must appear
in Court on a specific date for an inquiry into the financial affairs of the
debtor;
•
The Court where the debtor resides or is employed has jurisdiction to
hear the matter. In the case of a juristic person the Court in which the
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registered office or principal place of business is situated has
jurisdiction to hear the matter;
•
The debtor may be ordered to pay the debt in specified instalments
and if it appears that the debtor owns assets, the Court may authorise
that a warrant of execution be issued;
•
The debtor or representative may be ordered to bring specified documents
to Court;
•
The debtor may be ordered to pay the debt in specified instalments
and if it appears that the debtor owns assets, the Court may authorise
that a warrant of execution be issued;
•
The Court may also authorise an emoluments attachment order;
•
The only other remedies available to the creditor are garnishee orders
and the sequestration of the debtor.
12.6.1 Procedure
After judgment the creditor must send a letter in terms of Section 65A(2)
to the debtor by registered mail. The letter must set out all the terms of the
judgment and require the debtor to pay the debt within 10 calendar days
from the date of posting the letter. The debtor must also be informed of the
consequences of his failure to pay the debt.
12.6.2 After the Expiration of the 10-Day Period the Creditor May Issue A
Notice To Appear in Terms of Section 65A(1)
The following amounts must be reflected on the notice:
•
Capital
•
Judgment costs
•
Interest (date and rate)
•
Costs of Rule 45 certificate
•
Costs of Section 65(A)(1) notice
•
Costs of Section 65(A)(2) letter
•
Payments made by the debtor
The fees and disbursements must either include VAT or the VAT must be
reflected separately.
The Section 65A(1) notice must be served on the debtor by the Sheriff, the
Legal Practitioner for the judgment creditor or a Candidate Legal Practitioner
in the employ of the Legal Practitioner at least 10 days before the hearing.
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If the Court is satisfied that:
•
the judgment debtor had knowledge of the Section 65A(1) notice and
that he/she failed to appear in Court on the date and time stipulated,
or
•
if the case was postponed in the judgment debtor’s presence and
he/she failed to appear in Court on the subsequent date,
•
or if the judgment debtor failed to remain present at the Court, the
Court may,
•
at the request of the judgment creditor’s Legal Practitioner, authorise
the issue of a warrant of arrest.
The warrant must be issued by the judgment creditor’s Legal Practitioner
and signed by both the Legal Practitioner and the Clerk of the Court and will
be executed by the Sheriff.
A person arrested under the warrant must be brought before a Court as
soon as is reasonably possible and such a person may be detained at a
police station pending his/her appearance in Court.
12.6.3 In terms of Section 65A(8)(B) in Lieu of Arresting a Person, The
Sheriff may:
•
If the judgment creditor or his/her Legal Practitioner consents
thereto, hands to that person a notice in writing which specifies the
name, the residential address and the occupation and status of that
person;
•
Calls upon that person to appear before the Court on the date and at
the time specified in the notice; and
•
Contains a certificate signed by the Sheriff to the effect that he or
she has handed the original of the notice;
•
To that person and that he/she has explained to that person the
importance thereof.
A person who has wilfully failed to appear in Court as set out above 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) therefore creates
a criminal offence and the inquiry into the judgment debtor’s failure to
appear in Court in the circumstances as set out above takes the nature of
a criminal inquiry and the Court must have due regard to the right of an
accused person to be presumed innocent, to remain silent and not to testify,
to adduce and to challenge evidence and the right of an accused person not
to be compelled to give self-incriminating evidence.
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12.6.4 Section 106 – Penalty for Disobedience of Judgment or Order of
Court
Any person wilfully disobeying or refusing or failing to comply with any
judgment or order of a Court or with a notice lawfully endorsed on a
summons for rent prohibiting the removal of any furniture or effects shall
be guilty of contempt of Court and shall, upon conviction, be liable to a fine,
or to imprisonment for a period not exceeding six months or to such
imprisonment without the option of a fine.
Wilful disobedience of an order in civil proceedings is a criminal offence.
Section 106 creates a statutory offence which should be charged and tried
as a criminal offence.
Knowledge of the judgment or order is obviously necessary before it can be
said that a party has wilfully disobeyed it.
SECTION 65 J (2) (a) has also been amended as follows:
“65 J (2) – an emoluments attachment order shall not be issued •
unless the judgment debtor has consented thereto in writing or the
Court has so authorised, whether an application to the Court or
otherwise and such authorisation has not been suspended”.
A further important amendment is contained in Section 65 J (4) •
“The judgment creditor or his/her Legal Practitioner shall, at the
reasonable request of the garnishee or the judgment debtor, furnish
him or her free of charge with a statement containing particulars of
the payment received up to date concerned and the balance owing”.
The amount of the instalment payable or the total amount of instalments
payable where there is more than one emolument attachment order payable
by the judgment debtor, may not exceed 25 percent of the judgment
debtor’s basic salary.
For purposes of this Section, “basic salary” means the annual gross salary
a judgment debtor is employed on divided by 12 and excludes additional
remuneration for overtime or other allowances.
When a Court considers the authorisation of an emolument’s attachment
order or any other order contemplated in this Section, and after having
considered all submissions before the Court and after having called for and
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considered all further available documents, the Court is satisfied that other
emoluments attachment orders exist against the judgment debtor, the
Court must postpone the further consideration of the authorisation or other
order and set the matter down for hearing.
The party applying for the authorisation of an emoluments attachment order
or other order contemplated in this Section, must serve notice of the date
of the hearing referred to in subparagraph (i) on the other creditors or their
Legal Practitioners, and on the judgment debtor, if he or she was not
present or represented when the consideration of the authorisation of an
emoluments attachment order or other order was postponed.
The Court may after hearing all parties at the ensuing hearing, make an order
regarding the division of the amount available to be committed to each of the
emolument’s attachment orders, after satisfying itself that each order is just
and equitable and the sum of the total amount of the emolument attachment
orders is appropriate and does not exceed 25 percent of the judgment debtor’s
basic salary.
An emolument attachment order may only be issued if the Court has so
authorised, after satisfying itself that it is just and equitable that an
emolument attachment order be issued and that the amount is appropriate,
whether on application to the Court or otherwise, and such authorisation
has not been suspended.
A judgment creditor or his or her Legal Practitioner must serve on the
judgment debtor and on his or her employer, a notice, which corresponds
substantially with the form 38A, of the intention to have an emoluments
attachment order issued against the judgment debtor in accordance with the
authorisation of the Court referred to in sub-section (2).
The notice referred to in sub-section (2A) must inform the judgment debtor
and his or her employer of the judgment creditor’s intention to have an
emoluments attachment order issued against the judgment debtor in
accordance with the authorisation of the Court referred to in sub-section
(2); of the full amount of the capital debt, interest and costs outstanding,
substantiated by a statement of account; and that, unless the judgment
debtor or his or her employer files a notice of intention to oppose the issuing
of the emoluments attachment order within 10 days after service of the
notice on them, an emoluments attachment order will be sought.
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SECTION 106A – OFFENCE BY GARNISHEE
A statutory offence is created by this Section which precludes any person
from discharging an employee as a result of an emoluments attachment
order having been served on him, unless the employee is in a position of
trust.
SECTION 106B – OFFENCE BY EMPLOYER
If an employer furnishes incorrect particulars regarding an employee’s
emoluments wilfulness or negligence is an essential part of the offence. If
the employer fails to furnish such particulars within a reasonable time it
would seem that neither wilfulness nor negligence is an essential feature of
the offence.
SECTION 72 – ATTACHMENT OF DEBTS
This section authorises a creditor who has a judgment against a debtor must
ex parte apply to the Court for the attachment of any future debt owing by
a third party to the debtor and request that the creditor’s claim be paid by
this third party to the creditor before paying any monies owed by the third
party to the debtor. This section clearly sets out which Court shall have
jurisdiction to hear this application. The Respondents to be cited and served
are both the third party and the debtor. A rule nisi is issued (see ex parte
applications) and the procedure for such applications is followed.
12.6.5 Section 65M – Transfer
In terms of Section 65M any High Court judgment sounding in money may
be transferred to a Magistrate’s Court having jurisdiction in respect of the
person of the debtor.
The following documents are necessary:
•
Certified copy of the High Court judgment;
•
Certificate by the creditor or his Legal Practitioner reflecting the
outstanding amount in terms of the judgment;
•
Certified or duplicate copy of the allocatur of the taxed High Court bill
of costs;
•
A new case number is issued in the Magistrate’s Court and the
procedure for Section 65 proceedings may then be followed.
It must be noted that debt collecting, as described above, is only dealt with
in the District Court. Neither the High Court nor the Regional Court deals
with debt collecting. The District Court has the monetary jurisdiction to
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proceed with Section 65 proceedings regardless of the monetary value of
the judgment.
There is no specific rule dealing with the transfer of matters from the
Regional Court for debt collecting. What is required is the same documents
as when transferring a matter from the High Court.
SELF-ASSESSMENT QUESTIONS: QUESTION 15
(a)
Where monies are collected from a debtor in a debt collection case, there are two
statements of account to be drafted. The first is an itemised statement to the debtor
showing the amount owing by him. The second is a statement of account to your
client. The first statement may or may not include Legal Practitioner and client
costs. The second account always contains Legal Practitioner and client charges.
Legal Practitioner and client charges can only be levied against a debtor if he has
agreed (orally or in writing) to pay such costs. There are computer programs
available which calculate statements of balance within seconds, but the Legal
Practitioner should always check such statements and he or she carries the
responsibility of the correctness of the items thereon.
Cambridge Plan AG v Cambridge Diet 1990(2) 574 T.
Facts:
On behalf of your client, Mr Land Surveyor, a land surveyor, you issued a summons in
October of last year against a debtor, a certain Scaly Developer, for the sum of R7 000.00
being for survey or services rendered during July. (Before instructing you, your client had
already addressed a letter of demand to Scaly Developer on 16th September of last year,
demanding payment within 14 days).
You apply for judgment by default and judgment was granted on the 30th of November last
year. A warrant of execution was issued by the Clerk of the Court during this year. You deliver
the warrant to the Sheriff for service. The debtor, Scaly Developer, reacts upon receipt of the
warrant and visits your office. This is the first contact which you have with the debtor. He
asks you for the amount of the balance and informs you that he intends paying the full
outstanding amount immediately. You draft a statement of account, and the debtor
immediately pays the outstanding amount as reflected on the statement.
A.
Draft the itemised statement of balance which you handed to Mr Scaly Developer.
B.
Also draft the statement of account to your client in which your account for the
money received and show the cheque due to your client.
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The following additional information is available. You had 5 telephone calls and wrote 3
letters during the period since summons was issued. The Sheriff’s charges (inclusive of
VAT) for serving the summons were R15,00 and R25,00 and R30,00 respectively for
serving the warrant, attachment, and suspension of the warrant. The fees for the
summons, judgment, and warrant of execution amount to R231,00, R194,00 and R37,50
respectively plus VAT. Deal with VAT in your answer.
(20 marks)
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Emoluments Attachment Orders and
Garnishee Orders
Emoluments Attachment Orders
and Garnishee Orders
Garnishee Orders: Section 72
Judgment Creditor attaches
salary or wages of Judgment
Debtor to satisfy a Judgment
debt.
Judgment Creditor attaches
debt owing to a Judgment
Debtor in order to satisfy the
Judgment debt.
To obtain
With the authorisation of the
Court.
Application supported by
affidavit / affirmation made
ex parte
Effect of the Order?
To oblige the Garnishee (the
Judgment Debtor’s employer) to
pay the Judgment debt out of the
emoluments (salary, wages) of
the Judgment Debtor until the
debt is paid.
Effect of the Order
To oblige the Garnishee to pay
to the Judgment Creditor the
debt owed by him to the
Judgment Debtor.
OR
If he does not pay to appear
before Court to explain why he
should not pay.
Garnishee’s Defences
1.
2.
3.
4.
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Dispute he is liable to pay the debt
Allege that set off has occurred
Allege that he has a valid
counterclaim
Allege that debt is another’s or
subject to a claim by another
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13.
APPEALS AND REVIEWS
It must be noted that a party in a civil matter has a right to appeal a judgment of a
Magistrate in the civil courts. There is no need for a party to apply for leave to
appeal.
13.1 SECTION 83 – APPEAL FROM MAGISTRATE’S COURT
Subject to the provisions of Section 83, a party to any civil suit or proceeding
in a Court may appeal to the Provincial or Local Division of the Supreme Court
having jurisdiction to hear the appeal against:
(a)
any judgment of the nature described in Section 48;
(b)
any Rule or order made in such suit or proceeding and having the
effect of a final judgment, including any order under Chapter IX and
any order as to costs;
(c)
any decision overruling an exception, when the parties concerned
consent to such an appeal before proceeding further in an action or
when it is appealed from in conjunction with the principal case, or
when it includes an order as to costs.
13.2 SECTION 48 – JUDGMENT
The Court may, as a result of the trial of an action, grant:
•
judgment for the Plaintiff in respect of his claim in so far as he has
proved the same;
•
judgment for the Defendant in respect of his defence in so far as he
has proved the same;
•
absolution from the instance, if it appears to the Court that the
evidence does not justify the Court in giving judgment for either party;
•
such judgment as to costs (including costs as between Legal
Practitioner and client) as may be just;
•
an order, subject to such conditions as the Court thinks fit, against the
party in whose favour judgment has been given suspending wholly or
in part the taking of further proceedings upon the judgment for a
specified period pending arrangements by the other party for the
satisfaction of the judgment;
•
an order against a party for payment of an amount of money for which
judgment has been granted in specified instalments or otherwise,
including an order contemplated by Section 65J or 73.
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13.3 RULE 51 – APPEALS IN CIVIL CASES
1.
Upon a request in writing by any party within 10 days after judgment
and before noting an appeal, the judicial officer shall, within 15 days,
hand to the Registrar and/or Clerk of the Court a written judgment
which shall become part of the record showing:
(a)
the facts he found to be proved; and
(b)
his reasons for judgment.
2.
…..
3.
An appeal may be noted within 20 days after the date of the judgment
appealed against or within 20 days after the Registrar or Clerk of the
Court has so supplied a copy of the written judgment to the party
applying therefore, whichever period shall be longer.
4.
An appeal shall be noted by delivery of notice, and, unless the Court
of appeal shall otherwise order, by giving security for the Respondent’s
costs of appeal to the amount of R1 000: Provided that no security
shall be required from the State or, unless the Court of appeal
otherwise orders, from a person to whom legal aid is rendered by a
statutorily established legal aid board.
The procedure for noting an appeal is set out above (Rule 51). It is further
the duty of the Appellant to prepare the case record. The record must comply
with the provisions of Rule 50(7) of the High Court Rules.
13.3.1 The Requirements for The Record are:
•
The typewritten part of the record must be double spaced on A4
paper.
•
If an exhibit is not double-spaced or not in printed form, it must be
typed and both the original and the typed version must be included
in the record.
•
Every tenth line of the record must be numbered.
•
The record must be paginated, and an index prepared. The Legal
Practitioner must certify the correctness of the record.
In terms of Rule 51(9) a party noting an appeal or cross-appeal shall
prosecute the same within such time as may be prescribed by Rule of the
Court of Appeal and in default of such prosecution the appeal or crossappeal shall be deemed to have lapsed unless the Court of Appeal shall see
fit to make an order to the contrary. By prosecution of an appeal is meant
applying in writing to the Registrar, on notice to all other parties, for a date
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for hearing. The prosecution of appeals for Magistrates’ Courts is dealt with
in Uniform Rule of Court 50 except in the North Gauteng High Court,
Pretoria, South Gauteng High Court, Johannesburg where special Rules
prescribing different periods have been promulgated in terms of Section
43(2)(b) of the Supreme Court Act No. 59 of 1959 which was repealed and
taken up in the Superior Courts Act 10 of 2013. In terms of Uniform Rule of
Court 50 the time limits applicable in the North Gauteng High Court, Pretoria
and the South Gauteng High Court, Johannesburg are:
•
The appeal must be prosecuted within 60 days (14 weeks) after the
noting of the appeal;
•
If the Appellant has not within 40 days (12 weeks) after the noting
of the appeal applied to the Registrar for a date of hearing, the
Respondent may do so within the remaining two weeks;
•
If no application for a date for the hearing is made by either the
Appellant or the Respondent within 60 days, the appeal lapses.
As soon as the Registrar gives notice of the date of the hearing, the
appellant must file and serve a notice of set down. The notice of set down
must also be served upon the Clerk of the Court which handed down the
judgment.
‘A notice of appeal . . . shall state’ – There are four objects to be served by
a notice of appeal:
•
To enable the Magistrate to frame his reasons for judgment;
•
To give the Respondent an opportunity of abandoning the judgment;
•
To inform the Respondent of the case he has to meet;
•
To notify the appeal Court of the points to be raised.
13.4 APPEALABLE ORDERS
While it is desirable that all final judgments be appealable, it has long been
recognised that the right to appeal against “rules or orders” must be limited
if there is to be a just and expeditious decision of the major substantive
disputes between the parties. The criterion usually adopted is that the rule
or order must have the effect of a final judgment.
The policy underlying statutory provisions prohibiting or limiting appeals
against interlocutory orders is the discouragement of piecemeal appeals.
Although such orders are not subject to an immediate appeal, they may be
attacked in an appeal against the judgment in the whole case.
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The following are examples of orders that are interlocutory, having no final
or irreparable effect; and which have been held to be not appealable:
•
The grant of default judgment while the judgment is still rescindable.
•
A ruling reserving costs for determination at the trial.
•
Orders for discovery and production of documents.
•
The grant of an interdict pendente lite.
•
An order granting an extension of time under Rule 60(5)(b).
•
The rescission of a judgment.
•
A refusal to grant summary judgment.
•
The following are examples of orders that have been held to be final
and definitive, and thus appealable:
o
The refusal of an amendment if such refusal has the effect of a
final and definitive judgment.
o
A decision allowing an exception to a summons where its effect
is to put an end to the action.
o
The grant of summary judgment.
o
The grant or refusal of a final interdict, and the refusal (but not
the grant) of an interdict or attachment pendente lite.
o
The grant of absolution from the instance.
13.5 REVIEWS
Review of the proceedings of inferior Courts is a matter which falls entirely
within the jurisdiction of the High Court. The Supreme Court Act No. 59 of
1959 (now repealed) deals with review in Section 19 and 24 which was taken
up in the Superior Courts Act 13 of 2010. The procedure for bringing a matter
on review is regulated by Uniform Rule of Court 53.
SELF-ASSESSMENT QUESTIONS: QUESTION 16
(a)
Draft a notice of appeal against the judgment of a Magistrate’s Court to the North
Gauteng High Court. Supply your own facts and reasons.
(10 marks)
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14.
INTERPLEADER PROCEEDINGS
14.1 SECTION 69
Section 69 of the Act makes provision for two cases wherein relief by way of
interpleader is appropriate. These are:
(a)
(b)
Where any person, not being the judgment creditor, makes any claim
(i)
To or in respect of property attached or about to be attached in
execution; or
(ii)
To the proceeds of such property sold in execution; and
Where two or more persons make adverse claims to any property in
the custody or possession of a third party.
14.1.1 Procedures
Rule 44 makes provision for the procedure to be followed in both the
aforementioned situations.
Rule 44(1) covers the case contemplated by Section 69(2) where a person
has in his custody or possession property to which two or more persons
make adverse claims.
Rule 44(2) covers the case contemplated in Section 69(1) where the Applicant
for relief is the Sheriff, and claim is made to any property attached by him in
execution of any process of the Court (or proceeds thereof) by any person
other than the execution debtor, and the execution creditor has not, after
notice of the claim, admitted the claim.
The second case is more important for our purposes and occurs often in
practice. In this case the Sheriff must issue the interpleader summons and
serve it on the execution creditor and the claimant. The claimant has to file
an affidavit setting out the grounds on which he is claiming ownership of
the goods. The Court may also hear oral evidence at the trial of the matter.
Either the execution creditor or the claimant may be ordered to pay the
costs.
It is often better to admit the claim than to run the risk of incurring a costs
order. In practice it is often very difficult to refute the claim of a claimant.
The only case where the claim should not be admitted is in claims for arrear
rental where the execution creditor is protected by the landlord’s tacit
hypothec. In the case of Bloemfontein Municipality v Jacksons 1929
AD 271 it was stated as follows:
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“When goods belonging to a third person are brought onto leased premises
with the knowledge and consent, express or implied, of the owner of the
goods, and with the intention that they shall remain there indefinitely for
the use of the tenant, and owner, being in a position to give notice of his
ownership to the landlord, fails to do so, and the landlord is unaware that
the goods do not belong to the tenant, the owner will thereby be taken to
have consented to the goods being subject to the landlord’s hypothec, and
liable to attachment.”
Note: There are several requirements that must be met before the claim will be
dismissed. Section 2(1) of the Security by means of Movable Property Act No. 57 of
1993 excludes movable property bought in terms of an instalment sale transaction as
defined in Section 1 of the National Credit Act No. 34 of 2005. The Act is not applicable
to leasing transactions.
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15.
MEDIATION
Mediation will be conducted by a qualified mediator who has received formal
training and is an accredited mediator. The Magistrate’s Court has a Panel of
Mediators that you can choose from. If you cannot agree on a mediator with the
other party, the Registrar will appoint one for you.
The Magistrates’ Courts Rules allow for an alternative to formal litigation, in the
form of mediation. Not all Courts provide for mediation, so you would need to first
confirm this with your Attorney.
Rule 72(3) of the Magistrate’s Court Act make it obligatory for both parties, in
instituting proceedings by way of action or application, to deliver a notice indicating
whether they are of the view that the matter is capable / incapable of mediation.
The basic steps of the process of mediation are set out below.
Step 1: Decide to mediate
Litigation is a lengthy, costly, and stressful process for both parties. If you want to
open up the discussion around mediation then chat to your Attorney, who will in
turn contact the opposition Attorney, who will liaise with the opposing party. You
both need to agree to pursue the mediation route. You can’t force the other party
to enter into the mediation process.
Step 2: Consent from the Court
If the trial has already commenced, you must obtain consent from the Court before
you can proceed with mediation.
Step 3: Written notice to the Clerk of the Court
Your Attorney will submit a written request to the Clerk of the Court for the
mediation process to be initiated. The Clerk will notify the relevant parties to the
action and call on them to attend a meeting within 10 days of the request, where
the Clerk will confirm that both parties consent to the mediation process. Where
summons has already been issued, the Clerk will file a notice in the Court file,
requesting that the action be suspended until the end of the mediation process.
Step 4: Appointment of a Mediator
The parties must agree on the identity of the Mediator. If the parties aren’t in
agreement the Clerk will appoint one.
Step 5: Mediation Agreement
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The parties will be required to sign a Mediation Agreement which will confirm that
they consent to the mediation process.
Step 6: Filing statements and other documents
The Plaintiff (the person who instituted the action) is required to file a statement of
claim with the Clerk, and the Defendant (the person opposing the action) is required
to file a statement of defence. If the parties have chosen to pursue mediation after
the summons was served, then the Plaintiff’s summons and the Defendant’s plea
will be used instead of these statements. The parties will also be required to file
any other documents or supporting evidence on which they intend to rely during
the mediation.
Step 7: Mediation Process
The mediator will consider all the evidence, suggest options, and generally guide
the parties towards a suitable solution. Note that the Mediator is not an Arbitrator
or Judge, and so s/he cannot impose or enforce any solution. The parties are
entitled to use legal representation, but this isn’t mandatory. It is worth noting that
this process, including all discussions and documents, is conducted on a confidential
basis, and nothing that is raised during mediation is admissible in Court. The
purpose of this process is to try and get the parties to reach a settlement without
taking the dispute to trial.
Step 8: Outcome
If the parties are able to reach a suitable settlement, the Mediator will assist the
parties to draw up a Settlement Agreement. The Settlement Agreement must be
given to the Clerk of the Court, and it will go to a Magistrate who will make a note
in the Court file, confirming that the matter has been resolved. If it’s included in
the Settlement Agreement the Magistrate may also make the Settlement
Agreement an order of Court. If the parties are unable to reach a settlement the
Mediator will submit a report to the Clerk of the Court, confirming that the matter
was not resolved. The parties will then continue with the Court process, and the
matter will ultimately be decided by the Magistrate following the trial.
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16.
CONTINGENCY LITIGATION
A Contingency Fee Agreement can be defined as an agreement between a Legal
Practitioner and a Client, based on a future event probably occurring, whereby the
parties agree that:
(a)
the Legal Practitioner agrees to charge no fee if the Client’s matter is
unsuccessful; and/or
(b)
in the event of success, the Practitioner may charge a fee in excess of that
usually charged, as compensation for the risk taken.
The Act is an enabling statute in that it enables Legal Practitioners to enter into
certain Contingency Agreements with their Clients, which agreements were
previously unlawful in terms of the common law on account of them facilitating
gambling in lawsuits. These agreements are known as ‘pactum de quota litis’ and
are called maintenance and champerty.
The Act (Contingency Fees Act No. 66 of 1997 (“the Act”)) is not a constraining
statute in that it does not prohibit any Contingency Agreement. The purview of the
Act is limited to those contingency agreements, which are unlawful in terms of the
common law. The Act does not affect lawful ‘common law’ Contingency Agreements.
This is confirmed in the case of Fluxmans Inc v Levenson 2017 (2) SA 520
(SCA). At para 32, Zondi JA (Theron JA and Van der Merwe JA concurring) held
‘that it is incorrect that the Act prohibits the conclusion of a “common law”
Contingency Fees Agreement. The Act permits the parties to conclude such
agreement. It in fact allows them to do something that would otherwise be unlawful
under the common law. In other words, the Act was enacted to overcome the
prohibition, which existed under the common law’ [Price Waterhouse Coopers
Inc and Others v National Potato Co-operative Ltd 2004 (6) SA 66 (SCA)
para 41].
Further the judgment of Zondi JA clarifies the often-misconstrued statement of
Southwood AJA in the matter of Price Waterhouse Coopers Inc and Others v
National Potato Co-Operative Ltd 2004 (6) 66 (SCA) at para 41G that ‘[a]ny
contingency fee agreement between such parties [the Legal Practitioners and their
clients] which is not covered by the Act is therefore illegal.’ The statement of
Southwood AJA is restricted to the unlawful ‘common law’ Contingency Fee
Agreements, as it is only these agreements, which come within the purview of the
Act. The Act does not cover lawful common law Contingency Fee Agreements, which
therefore remain legal.
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In other words, the Act neither prescribes Contingency Fee Agreements, which are
legal under the common law, nor creates a new category of illegal Contingency Fee
Agreements.
This view is confirmed by Willis JA in the minority judgment in the case of Mostert
and Others v Nash and Another 2018 (5) SA 409 (SCA) at para 145 where
he held that ‘[t]here was no blanket prohibition on remuneration being dependent
on the outcome of an uncertain future event. To the extent that certain other cases
decided in the High Court may have suggested that any agreement between an
Attorney and Client that made fees payable on the happening of an uncertain future
event were “unlawful contingency fees,” these cases were wrongly decided’.
The Act deals only with unlawful ‘common law’ Contingency Fee Agreements and
legitimises these agreements by regulating the terms and conditions, which must be
introduced into the agreements. If the Act were not followed strictly, the unlawful
Contingency Agreements would remain unlawful. (The form and content of Contingency
Agreements legitimised by the Act are set out in Sections 2 and 3 of the Act.)
The investigation of a Contingency Fee Agreement is a two-step procedure, namely –

to establish that the agreement is void in terms of the common law on
account of it being champertous (gambling in lawsuits); and

to ascertain whether the champertous agreement has been permitted by the
Act.
Resort to the Act is only required if the first step establishes the existence of
champerty.
The fact that payment of an Attorney’s fee is made subject to the happening of a
future uncertain event, does not in itself constitute a champertous arrangement.
Financial assistance given in good faith to help a litigant prosecute an action in
return for a reasonable recompense or interest in the suit has, for a very long time,
not been regarded as unlawful. This was held to be the case by Kotze CJ in Thomas
Hugo and Fred J Möller NO v The Transvaal Loan, Finance and Mortgage
Company [1894] 1 OR 336 at 339 – 341 (which is quoted by Southwood AJA
in Price Waterhouse Coopers Inc at para 27). This judgment justifies the exclusion
of the aforesaid financial arrangement from the purview of the Act; it is not an
unlawful common law contingency agreement requiring legitimisation under the
Act.
In terms of the Contingency Fees Act (“the Act”) No. 66 of 1997, “normal fees”
are those fees normally charged by and Attorney/Advocate to do legal work for a Client.
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Contingency Fees are fixed fees by an Attorney for legal work done for a
Client. The Contingency Fee will usually be 25% of the amount awarded to a Client
in a Court case if the client is successful in his/her case. The basis of the agreement
between the Attorney and his/her Client is on a “no-win-no-fee” basis.
Attorneys may not simply agree with Clients to charge Contingency Fees. There
are strict requirements set down by the Act that must be followed before an
Attorney can charge Contingency Fees. If the requirements are not complied with,
the agreement is not valid, and a Contingency Fee arrangement cannot exist
between the Attorney and his/her Client.
1.
There must be an explicit agreement between the Attorney and his/her Client
that the fees levied will be in terms of a Contingency Fee Agreement and not
the fees prescribed by the Legal Practice Council.
2.
The agreement must be in writing and signed by both parties.
3.
The Attorney will only be entitled to any fees for services rendered if the
matter that he/she is handling for a client is successful. We usually see these
types of agreements in Third Party claims (when you were in an accident and
claim from the Road Accident Fund.) If the matter is not successful, the
Attorney will not be paid and will then not be able to give the Client a bill –
the Attorney will have worked for free (the Client usually pays for expenses).
4.
In the case of a Contingency Fee Agreement: if the Client wins his case, the
Attorney will be entitled to a portion of the amount that the Client has won.
Therefore, instead of fees, (sending a statement with itemised items), the
Attorney will receive a fixed amount and the fixed amount will be determined
by the amount awarded to the Client. This can have the result that an
Attorney can get higher fees than he/she is entitled to charge as prescribed
by the Legal Practice Council.
5.
The Act, therefore, prescribes that if the Attorney is going to receive a higher
fee (than what he/she is usually entitled to) as a result of the high amount
awarded, then that higher fee may not exceed the normal fees that the
Attorney is entitled to charge by more than 100%.
6.
The Act further prescribes that the Attorney’s fee may not be higher than
25% of the total amount awarded to the Client.
Clients must understand that a Contingency Fee Agreement is a carefully regulated
agreement and must not allow an Attorney or any other person that they enter into
such an agreement to charge more than they would have been entitled. Nearly all
Contingency Fee Agreements are entered into between Attorneys and their Clients
in claims against the Road Accident Fund, or medical negligence claims.
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The Attorney will carry all the expenses and costs up to date of trial, or settlement
before and then the Attorney will take his/her fee from the client’s amount awarded.
It has been all over the newspapers over the years of how some Attorneys take
more from their clients than they should. It doesn’t mean that the Attorney must
always get 25% of the client’s awarded fees. The Court said in Masango v Road
Accident Fund 2016(6) SA 508(G), that the Contingency Fees Act did not mean
that an Attorney can charge 25% at all times, as the 25% was merely set as the
maximum the Attorney can charge in a Contingency Fee Agreement. The Attorney
must have delivered the services to make him/her entitled to the full 25% of the
client’s awarded claim.
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17.
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.
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.
What is meant by “main heads of Argument”?
The following extraction from a practice directive explains the terminology.
Counsel is reminded of the dicta in Caterham Car Sales & Coachworks Ltd
v Birkin Cars (Pty) Ltd and Another 1998 (3) SA 938 (SCA) at 955 B-F.
Harms JA said: ‘[37] There also appears to be a misconception about the
function and form of heads of argument. The Rules of this Court require the
filing of main heads of argument. The operative words are 'main', 'heads' and
'argument'. 'Main' refers to the most important part of the argument. 'Heads'
means 'points', not a dissertation. Lastly, 'argument' involves a process of
reasoning which must be set out in the heads. A recital of the facts and quotations
from authorities do not amount to argument. By way of a reminder, I wish to quote
from Van der Westhuizen NO v United Democratic Front 1989 (2) SA 242
(A) at 252B--G: “There is a growing tendency in this Court for counsel to
incorporate quotations from the evidence, from the Court a quo's judgment and
from the authorities on which they rely, in their heads of argument. I have no doubt
that these quotations are intended for the convenience of the Court, but they
seldom serve that purpose and usually only add to the Court's burden. What is
more important is the effect which this practice has on the costs in civil cases.
Superfluous matters should therefore be omitted and, although all quotations can
obviously not be eliminated, they should be kept within reasonable bounds.
Counsel will be well advised to bear in mind that Rule 8 of the Rules of this Court
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requires no more that the main heads of Page 5 of 5 argument. ... The heads
abound with unnecessary quotations from the record and from the authorities. They
reveal, moreover, another disturbing feature which is that the typing on many
pages does not cover the full page. . .. Had the heads been properly drawn and
typed I do not think more than 20 pages would have been required. The costs
cannot be permitted to be increased in this manner and an order will therefore be
made to ensure that the Respondent does not become liable for more than what
was reasonably necessary.”
Furthermore, take notice of Short and Comprehensive Heads of Arguments as
stated on in the same Practice Directive as follows:
“The Applicant, excipient or Plaintiff in opposed motions, exceptions and provisional
sentence proceedings shall not less than ten clear Court days before the day of the
hearing deliver concise heads of argument (which shall be no longer than five pages
(“the short heads”)) and not less than seven clear Court days before the hearing
the Respondent or Defendant shall do likewise. The heads should indicate the
issues, the essence of the party’s contention on each point and the authorities
sought to be relied upon. The parties may deliver fuller, more comprehensive heads
of argument provided these are delivered simultaneously with the short heads.
Except in exceptional circumstances, and on good cause shown, the parties will not
be permitted to deliver additional heads of argument.”
See attached example of a comprehensive Heads of Argument.
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18.
PRACTICAL OVERVIEW OF CASE CONCEPT: THE CONTENT
WITNESS BRIEFING
In fact, one of the keys to successful witness preparation is Attorney preparation.
Before you meet with a witness, you should know your case inside and out and be
familiar with all of the documents you believe the witness may be shown during his
testimony.
Always draft an outline of both the evidentiary issues that you want your witness
to be able to testify to, as well as the difficult questions your witness is likely to
confront on cross-examination. A skilled trial lawyer should be able to anticipate
the major issues that will come up in the cross-examination of her witness. There
should be no surprises if you have prepared your witness effectively. Aside from
the substantive preparation for your meeting with the witness, you also need to
make sure you are familiar with the local customs and practices of the courtroom
where the trial will be held. Does the Judge have certain practices that may bear
on the presentation of testimony? How is the courtroom configured? Where is the
witness box situated in relation to the Jury? Ideally, you will want your witness to
see the courtroom before he testifies. If this is not possible, you will want to provide
your witness with a physical description of the courtroom, how it is laid out, where
Counsel will stand when questioning, and other details. To Attorneys, this
information may seem insignificant. However, to lay witnesses with little to no
experience with adversarial proceedings, this information will help to de-mystify
the process and build a level of comfort and confidence essential to presenting
effective testimony.
OPENING STATEMENT
The purpose of an opening statement is to provide an overview of the Plaintiff's
(the Defendant's opening address is to be dealt with below) case to the Court. The
opening address should be mainly objective, providing the Court or trier of fact with
information as to certain aspects such as the onus and the number and names
of witnesses that will be called for the Plaintiff.
The opening statement may contain some aspects of persuasiveness, but should
not amount to argument (especially legal argument) or emotive persuasion. The
opening address is the Plaintiff's first opportunity to impress his version of
the facts on the Court, and this opportunity should not be taken lightly. Using
persuasion subtly, the Legal Practitioner should provide the Judge (or jury, if your
legal system is a jury system) with an overview of the Plaintiff's version.
It is important for the Legal Practitioner making the opening address to remember
not to tie himself down to specifics. If this is done, the Client, or witnesses for the
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Plaintiff may be cross-examined later on the discrepancies between the witnesses
version and the version of the Legal Practitioner! It is thus generally advisable to
stick to simple and unadorned facts.
The structure of the Defendant's opening address will be quite different from the
Plaintiff's in that:

The Plaintiff will have already put the issues in dispute to the Court;

The Plaintiff will have already put the common cause facts to the Court;

The Defendant will rely on rebutting the Plaintiff's claim, rather than making
out a claim of his own (unless a counterclaim is present).
For example:

Cause of Action.

Your Honour, I appear for the Plaintiff.

This is an action for patrimonial damages caused by negligence.

The action is concerned with a Bus accident that took place on 12 October
2019 at the intersection of James Street and Lone Street.

The action contains a counterclaim by the First and Second Defendant.
LEADING A WITNESS IN CHIEF
This is where you obtain evidence from your own witnesses. You need to ensure
that your witnesses give clear evidence and that they do not talk too fast in order
that notes can be taken. Ensure the witness faces the Presiding Chair when
answering questions and is not looking at you. This will enhance the quality of their
evidence. When asking your witnesses questions, you need to try to elicit from
them only the evidence that is relevant. Always therefore bear in mind why you are
asking your witness a particular question and what it is you want to hear from
them.
During examination-in-chief the Legal Practitioner is forbidden from asking their
witnesses leading questions. A leading question is one which requires a ‘yes’ or ‘no’
response. In its phrasing it suggests its own answer. By way of an example, was
the man wearing a red and white jumper? By suggesting the answer to the witness,
you reduce the witness’ impact. Leading questions are forbidden in examinationin-chief because the Legal Practitioner is not allowed to lead their witness and in
effect put words into their mouth. When you call your own witness, you hope and
expect that they will provide evidence that is favourable to your case and will ‘come
up to proof’.
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As a general rule when you ask your witness questions you should phrase your
questions using simple words and phrases to ensure the witness fully understands
what you are asking them. When questioning your witnesses consider using points
of reference to add variety to your questioning and to move the witness along from
one episode to the next. For example, ‘can you tell us what happened after you saw
the motor vehicle swerve?’
CROSS-EXAMINATION
In law, cross-examination is the interrogation of a witness called by one's opponent.
There are two types of cross-examination, constructive and destructive.
With constructive cross-examination, the lawyer seeks to get helpful testimony
from the witness. Such testimony can corroborate the testimony of one of your
witnesses or impeach another witness, either or both of which may be helpful to
your case. The format, “Mr Jones, can we agree that…?” is often useful in framing
constructive questions. Frequently, constructive cross-examination is initially used
with the other party’s expert witnesses. For example, getting the witness to agree
with you that your expert is, in fact, an expert or that his methodology is accepted
and reliable in the field can be valuable.
With destructive cross-examination, your goal is to destroy, or at least seriously
hurt, the witness’ credibility or limit the effect of her testimony. This is the type of
cross-examination we typically think of and, more importantly, that jurors have
come to expect from watching television and movies. Destructive crossexamination is “gotcha” time.
Generally speaking, if you need constructive testimony from a witness, it is better
to get it first before moving into destructive cross-examination. After having her
credibility challenged, the witness will be more likely to fight you on the points
about which you seek her agreement.
Cross-examination is not a time for the lawyer to grandstand or win a battle of wits
with the witness. Cross-examination is, like all other parts of the trial (opening,
direct examinations and closing), a means by which you argue your case.
If nothing else, remember that and you’ll have conducted a successful crossexamination.
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RE-EXAMINATION
After cross-examination, Counsel calling a witness may wish to re-examine him,
being limited to clearing up points left in doubt; if re-examination discloses some
new matter, the Court may permit further cross-examination.
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D.
REFERENCE SOURCES
TITLE OF REFERENCE MATERIAL
AUTHOR(S)
1. Morris, Technique in Litigation, 2nd ed
Daniels H
2. Amler’s Precedents of Pleading, 5th and 7th
ed
Harms L T C
3. S.A. Law of Evidence, 3rd Ed
Zeffert D, Paizes AP, & Skeen,
A st Q
4. Herbstein & Van Winsen, Civil Practice of the
Superior Courts in SA, 4th ed
Van Winsen et/al
5. Law of Attorney’s Costs and the Taxation
Thereof
Jacobs M en Ehlers N E J
6. Bewysreg, 4th ed
Schmidt C W H & Rademeyer H
7. Jones & Buckle, The Civil Practice of the
Magistrates’ Courts in South Africa, 9th and
10th ed
Erasmus & Van Loggerenberg
8. Civil Procedure in the Superior Courts
Harms L T C
9. Burgerlike prosesreg in die Landdroshowe
Pretorius
10. The Law of Costs, 3rd ed
AC Cilliers
11. Beck’s Theory & Principles of Pleading in Civil
Actions, 6th ed
Daniels H
12. Law of Evidence
Schmidt & Rademeyer
13. Summary Judgment: A Practical Guide
S J van Niekerk et al
14. Provisional Sentence on Bills of Exchange,
Cheques and Promissory Notes
Malan et al
15. The National Credit Act Explained, 2006
Otto J M
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E.
PAST EXAM PAPERS
Competency-based Admission Examinations
Previous papers are available on the LEAD website. (www.LSSALEAD.org.za) at no
cost.
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F.
ASSESSMENT ANSWERS AND DEFINITIONS
ANSWERS TO SELF-ASSESSMENT QUESTIONS
ANSWER 1 – INTRODUCTION: TAKING INSTRUCTIONS
1.
2.
3.
a)
Full names, occupation, home and business address, postal address,
telephone numbers at home and work.
b)
Date of marriage, children, and ages if any, relevant facts regarding abuse.
c)
Costs: monthly statements will be sent, amount will be payable within 30
days, Billing will be an hourly rate.
The level of professionalism that is required:
•
To have a thorough knowledge of the substantive and procedural law.

Constant willingness to research the law in relation to client’s problems
and to find solutions, if any.
•
Honesty towards your client, your opponent, and the Court.
•
Never to be part of any form of fraud or dishonesty, despite your client’s
wishes.

To act in accordance with your client’s instructions, although your client
does not have the right to dictate the manner in which the services may
be rendered.

To fulfil the duty to report to your client when it may be necessary or
when it may reasonably be expected.
•
To conduct a relationship of the utmost trust with your client.
•
To serve your client’s interests to the best of your ability.
•
Always to honour your client’s right to confidentiality.
•
Always to serve truth and justice.
False
The words “without prejudice to our client’s rights” often appear on
correspondence. The writer then often assumes that the contents may not be
disclosed during the trial and that some form of privilege has been established.
Such a letter will only be inadmissible if it contains a settlement offer or a
compromise.
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The Appeal Court decided the status of “without prejudice” correspondence in
Naidoo v Marine & Trade Insurance 1978 (3) SA 666 (A).
The head note is partially quoted below:
“Correspondence conducted “without prejudice” in the bona fide efforts of both
parties to an action to settle Plaintiff’s claim, is in accordance with the general
“without prejudice” rule, once a party objects to it being used as evidence,
wholly inadmissible. The rationale of the rule is public policy: parties to a dispute
are to be encouraged to avoid litigation and all the expenses (nowadays very
high), delays, hostility and inconvenience it usually entails, by resolving their
differences amicably (in full and frank discussions without fear that, if the
negotiations fail, any admissions made by them during such discussions will be
used against them in the ensuing litigation. Often such admissions are classified
or described as “privileged” communications.”
THE POSITION IS AS FOLLOWS:

Both the person making the statement ‘without prejudice’ and the person
to whom the statement is addressed are entitled to privilege;

The words ‘without prejudice’ are usually used to indicate that a writer of
a letter wishes the communication to be protected by the privilege;

The absence of these or similar words are not conclusive. If the statement
forms part of negotiations for the settlement of dispute, it will be
privileged even if the words have not been used;

Even if the words are used, the communication is not privileged if there
was no dispute between the parties or if there were no genuine
negotiations to affect a settlement;

The communication is privileged only if it forms an integral part of the
negotiations for a settlement.
MOTOR VEHICLE COLLISION
4.
a)
Your Client

Full names, occupation, home and business address, postal address,
telephone numbers at home and work.

Is the client a firm, a company or close corporation?

Obtain business address of the firm, names and addresses of partners. It
is no longer necessary to obtain information with regard to the status of
woman.
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
Try to obtain as many similar particulars as possible in respect of the
Defendant. Establish who the owner of the vehicle was.

Establish the name of and whether the driver in the employ of the owner
and whether there are facts which prove that the driver was acting in the
course of his employment. (Vicarious liability).

Give special attention to Firms and juristic persons.
With regard to the cause of action, establish the place, time and date
of the collision.
Obtain a precise description of how the collision took place and ask the client to
draw a rough sketch plan to explain the way in which the accident took place.
It is also sensible to visit the scene of the accident with your client and take
measurements etc.
4.
4.
b)
Instructions and request to client
•
Ask the client to describe the vehicles, colour, registration numbers,
make, model and kilometre reading and general condition.
•
Establish who the drivers were of both vehicles and which allegations with
regard to negligence should be made.
•
Ask the client to obtain quotations and establish whether it is economical
to repair the motor vehicle.
•
The difference between the pre-accident and post-accident values.
•
Obtain names and addresses of witnesses, name of police station and
reference number.
c)
Advice and information to client as following:
•
Advise the client with regard to the costs of the action and how you will
expect him or her to pay.
•
Advise the client with regard to the procedure for defended and
undefended matters and approximately how long the action will take to
be finalised.
•
Advise the client regarding his/her prospects for success.
•
Advise the client regarding repairs of sale of the vehicle, if necessary.
•
Take photographs of the scene of the accident and of the vehicles.
•
Take measurements of the scene of the accident and draft an accurate
sketch plan indicating all relevant distances.
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•
Obtain quotations (two or more because you don’t know whether the
witnesses will still be available at the time of the trial). Obtain names and
addresses of the experts.
•
If the vehicle is a wreck, get a valuation of the wreck and get a person
who is prepared to give a pre-accident valuation of the vehicle in writing.
Ask your client to prepare a complete written statement as to the event and to
obtain statements from witnesses.
_______________
ANSWER 2 - LETTERS OF DEMAND
1.
LETTER OF DEMAND IN RESPECT OF DAMAGES BY REGISTERED POST
Mr Piet Smit
No. 5 Els Street
0002 PRETORIA
Dear Sir
RE: MOTOR VEHICLE ACCIDENT ON 1 SEPTEMBER 20…
We refer to the above matter and wish to advise that we act on behalf of our client,
Mr Koos Els.
Our instructions are that you were involved in a motor collision with vehicle with reg.
no. BF5 500 FS on 1 September ….
Our client is the owner of the abovementioned vehicle, and our instructions are that
the collision was caused by your sole negligence and that our client’s vehicle was
damaged as a result thereof.
Our instructions are further to demand from you as we hereby do, payment of the sum
of R43 123.00 being the fair and reasonable costs of repair to our client’s vehicle
together, interest at the rate of a tempore morae per annum from date of this letter
of demand until date of payment and R36.00 being the cost of this letter of demand
to our offices, within seven days of the date hereof, failing which we will issue
summons against you without further notice.
Yours faithfully
JAN SALlE
ATTORNEY
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2.
LETTER OF DEMAND THAT COMPLIES WITH SEC 129 OF THE NATIONAL
CREDIT ACT NO. 34 OF 2005
Mr Piet Poggenpoel
1234 Pretorius Street
0001 Pretoria
Dear Sir
XYZ BANK I YOURSELF
NOTICE IN TERMS OF SECTION 129 OF THE NATIONAL CREDIT ACT NO. 34 OF
2005
We confirm that we act on behalf of XYZ BANK.
It is our instructions that you concluded a credit agreement with our client on 30
September 20… in respect of a 20… Toyota motor vehicle with registration number
ABC 543 GP. It is our further instructions that your monthly premiums in terms of the
credit agreement have been in arrears for more than 20 (TWENTY) business days in
the amount of R27,415.00.
This letter is addressed to yourself in terms of Section 129(1)(a) of the National Credit
Act No. 34 of 2005 and you are hereby afforded 10 (TEN) days to refer the credit
agreement to a debt counsellor, alternative dispute resolution agent or ombud with
jurisdiction to resolve a possible dispute, alternatively to make arrangements to bring
your arrear instalments up to date.
We await your responding advice.
Yours faithfully
DEFENDANTS’ Attorney
_______________
3.
LETTER OF DEMAND IN TERMS OF SECTION 19 OF THE ALIENATION OF
LAND ACT NO. 68 OF 1981
BY REGISTERED POST
JAN ELS
700 CHURCH STREET
0001 PRETORIA
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Dear Sir
RE: AGREEMENT OF SALE DATED 15 JUNE 20…: ERF 777 LANGENHOVEN PARK
Our client, Koos Grondbaron, sold Erf 777 in the township of ZWARTKOP to you on the
above date in terms of a written agreement of sale.
In terms of the agreement, you were obliged to pay instalments of R950 per month
with effect from 1 July 20….
You have failed to pay the above instalments regularly and are at present in arrears
with an amount of R5 350.
We hereby demand payment from you in the sum of R5 350 within 30 days after the
posting of this notice should you fail to pay the arrears. The full balance of the purchase
price plus interest and rates and taxes will immediately become due and payable and
will be claimed from you.
Against payment of the purchase price, interest, rates and taxes, our client offers
transfer of the property to you.
Yours faithfully
JAN SALlE
ATTORNEY
3(a)
Where the full purchase price is already due and payable in terms of the
agreement, no notice is necessary in terms of Section 19. See also Section 19
(4). See Phone-A-Copy Worldwide (Pty) Limited v Orkin 1986(1)
SA729A.
_______________
ANSWER 3 - JURISDICTION
1)
The parties hereby consent to the jurisdiction of a Magistrate’s Court in terms
of Section 45 of Act No. 32 of 1944 in respect of any action that may arise out
of this contract for transfer of property even though such property exceeds
R200 000 in value.
2)
The parties hereby consent that the Magistrate’s Court for the district of
Johannesburg shall have jurisdiction in the action which (Plaintiff) is about to
institute against (Defendant) in respect of (cause of action) OR the parties in
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Case Number 1234/99 (after issue of summons) instituted in the Magistrate’s
Court for Johannesburg hereby consent the jurisdiction of that Court.
3)
No, the Plaintiff may not institute the action in Port Elizabeth because the clause
is null and void. The Plaintiff must institute action in the High Court.
4)
Yes, the clause is valid. Even though the claim is more than R400 000. The
Defendant resides in the Court’s jurisdiction.
5)
Contract:
•
both offer and acceptance must have been made in same district.
Cheques (only where still relevant):
•
must have been drawn in the district,
•
accepted and dishonoured by non-payment, or
•
dishonoured by non-acceptance in the district,
•
notice of dishonour must have been given in the district.
Motor vehicle collision:
•
The damage is suffered where the delict is committed.
_____________________
ANSWER 4 - PARTIES
1.
HOW TO CITE CERTAIN PARTIES
a)
Minor
b)
I.
The Defendant is Jack Butch, a major male residing at 111 Church
Street, Pretoria, herein acting in his capacity as father and natural
guardian of John Butch, a minor male infant, who resides at the said
address.
II.
The Defendant is John Butch a minor male infant, residing at 111 Church
Street, Pretoria, herein assisted by his father and natural guardian, Jack
Butch, a major male, who resides at the said address.
Executor of a Deceased Estate
The Defendant is James Louw in his capacity as the executor of the deceased
estate of the late Grey Louw.
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c)
Trust
The Defendants are Jack Joy and James Rose, both male accountants and
auditors, duly registered in terms of the Public Accountants’ and Auditors’ Act
No. 80 of 1991, carrying on business at 111 Church Street, Pretoria, herein
acting in their capacities as only trustees of the Balmy Heritage Trust.
d)
A Company in Liquidation
The Defendant is Jack Jones N.O, an adult male in his capacity as the liquidator
of CFP (Pty) Ltd (in liquidation) at 111 Naidoo Street, Pretoria
Or: In the name of the company.
2.
NOTICE IN TERMS OF RULE 54
“Take notice that the Plaintiff requires the Defendant to supply a list of the
names and the residential addresses of the persons who were, at the time the
cause of action arose, partners or owners of the Defendant within 10 days after
receipt hereof”.
3.
1.
DECLARATION
The Plaintiff is Rose Distributors (Pty) Ltd a company with limited liability duly
registered in terms of the Companies Act with its principal place of business at
24 Clifton Avenue, Pretoria.
(1 Mark)
2.
The first Defendant is Sprat CC a close corporation duly registered and
incorporated in terms of the Close Corporations Act No. 69 of 1984 is 33
Solomon Mhlanga Road, Pretoria
(1 Mark)
3.
The second Defendant John Jack a major male residing at 234 Rust Road,
Pretoria.
(1 Mark)
4.
On the 12th of January 20… at 24 Clifton Avenue, Pretoria the Plaintiff and the
Defendant concluded a written agreement in terms of which the Plaintiff sold to
the Defendant, 100 Guess handbags. A copy of the agreement is attached hereto
marked annexure “A”.
(2 Marks)
5.
The terms of the agreement were as follows:
5.1.
The Plaintiff will sell and deliver the handbags to the Defendant.
5.2.
The Defendant would pay the Plaintiff the agreed price within 30 days
after delivery.
5.3.
If payment is not made on time, Attorney and client costs will be payable.
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5.4.
Interest at the rate of 22% will be applicable.
(2 Marks)
6.
Pursuant to the agreement, the Plaintiff duly delivered the handbags to the
Defendant at Rust Road, Pretoria the premises of the Defendant on 1st February
20….
(1 Mark)
7.
The agreed purchase price of the handbags was R200 000,00, being R2 000,00
per bag.
(1 Mark)
8.
Despite a letter of demand having been sent to him the Defendant has failed or
refused to pay the Plaintiff the said sum of R200 000,00 or any portion thereof.
(1 Mark)
Wherefore the Plaintiff prays for judgment against both Defendants, jointly and
severally, the one paying the other to be absolved for:
(2 Marks)
a)
Payment of the sum of R200 000,00.
(½ Mark)
b)
Interest at the rate of 22% per annum.
(½ Mark)
c)
Costs on Attorney and client scale.
_____________________
(½ Mark)
ANSWER 5 - FORMS OF PROCEEDINGS
1.
Action proceedings:
Matters where there is substantial factual dispute.
Application proceedings:
Procedure by way of application in the Magistrates’ Courts is limited to those
cases specifically laid down.
Matters where there is no substantial factual dispute.
Provisional Sentence proceedings:
It is only used where the cause of action is based on a liquid document.
2.
Action proceedings
3.
Provisional Sentence proceedings
Action proceedings
4.
Application proceedings
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ANSWER 6 - ACTION PROCEEDINGS
LETTER OF DEMAND UNDER THE NATIONAL CREDIT ACT NO. 34 OF 2005
(i)
You should have consulted Section 129 of the National Credit Act No. 34 of 2005
in order to draft such a letter correctly.
(ii)
Therefore, your letter should have had to comply with the following legalistic
requirements in order to be correct:
•
Draw the default to the attention of the consumer in writing and advise the
consumer to refer the agreement to a debt counsellor, should the
consumer regard him/herself to be unable to settle their monthly debt
payments timeously, or an ombudsman with jurisdiction, an alternative
dispute resolution agent or a Consumer Court to lodge a dispute and have
the matter resolved.
•
State that the consumer can, at any time before the termination of the
agreement, reinstate the agreement by paying the amount outstanding,
default charges and reasonable enforcement charges.
•
State that legal proceedings cannot be instituted unless, a notice of default
has been sent to the consumer and 10 days have lapsed since the notice
was sent and the consumer has been in default for a period of 20 days.
•
State that legal action can also be taken if the consumer has responded to
a notice of default by rejecting the proposals made in it or has not
responded at all.
PARTICULARS OF CLAIM UNDER THE NATIONAL CREDIT ACT NO. 34 OF 2005
The Particulars of Claim would suffice the scrutiny of the Courts if the following were
apparent therein:

Particulars of the parties (to determine whether the NCA applies to the person).

That the NCA applies to the agreement (or if the NCA is not applicable, the
Plaintiff should plead facts to indicate this).

Type and category of the credit agreement (to determine whether the agreement
is excluded from the NCA).

Date when agreement was concluded.

Principal debt and how the amount is made up, number of instalments and
instalment amount, initiation fee, service fee, interest and interest rate, credit
insurance, default administration charges, collection costs, costs pertaining to
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extended warranty, delivery fee, installation and initial fuelling charges, taxes,
residual amount, licenses, and registration fees.

Positively allege that there was compliance with the Act in concluding the
agreement i.e., quotation, 5 days cool-off period.

Other material terms of the agreement.

That the Plaintiff (the credit provider) is duly registered with the National Credit
Regulator (where registration is required by the NCA) and the renewal fees have
been paid OR that the Plaintiff has applied for registration and that it has not
been refused.

The consumer is in default and has been in default under the relevant credit
agreement for a period of 20 business days or longer.

That a written notice in terms of Section 129(1)(a) has been properly served on
the consumer (Defendant).

That 10 or more business days have elapsed since delivery of the notice.

The consumer either did not respond to the Section 129(1)(a) notice or the
consumer rejected it.

The consumer did not refer the credit agreement to a debt counsellor, alternative
dispute resolution agent, Consumer Court or ombud.

There is no matter pending before the Consumer Tribunal that relates to the
credit agreement in question.

That the consumer under an instalment agreement or lease has failed to
surrender the goods voluntarily (if applicable).

If the consumer returned the goods that are subject to an instalment
agreement or lease that the provisions of Section 127 have been complied with
and aver facts to prove compliance (if applicable).
_____________________
ANSWER 7 - PARTICULARS OF CLAIM
1(a)
CHEQUE (Only where litigation can still be embarked upon)
1.
The Plaintiff is the holder of a cheque dated ......... for the sum of
R25,000,00 drawn by the Defendant in favour of Plaintiff on the Eloff
Street Branch of Standard Bank.
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2.
Plaintiff duly presented the said cheque for payment on the (date), but
the cheque was dishonoured by non-payment because the Defendant had
insufficient funds in the account of which the cheque was drawn.
3.
Notice of dishonour is dispensed with in terms of Section 48 of the Bills
of Exchange Act, No. 34 of 1964, in that the said bank is under no
obligation to pay the said cheque.
4.
Notwithstanding due demand the Defendant has failed to pay to the
Plaintiff the aforesaid sum of R25 000,00.
5.
A copy of the face and the reverse side of the said cheque is annexed
hereto marked “A”.
WHEREFORE Plaintiff prays for judgment against Defendant for:
1(b)
1.
Payment of R25 000,00;
2.
Interest at the rate prescribed by the Prescribed Rate of Interest Act, No.
55 of 1975, calculated from the (date of presentation of the cheque) to
date of payment;
3.
Costs of suit.
BOND
1.
The Plaintiff is the holder of a second bond, no. B34559/86, passed by
the Defendant in the favour of Plaintiff for the sum of R30 000 over Erf
112 in the township of Rooihuiskraal. A copy of the bond is annexed
hereto marked “A”.
2.
The said bond has the following relevant provisions:
2.1
The capital sum of the bond is the sum of R30 000;
2.2
The said capital sum would bear interest at the rate of 21% per
annum and the accumulated interest for each month would be
payable monthly in arrears on the last date of every month;
2.3
If the Defendant failed to pay the interest or any portion thereof,
the full amount of the capital sum of the bond plus any accrued
interest would immediately become due and payable.
3.
The Defendant failed to pay interest amounts for the months of July and
August 20… and despite demand the Defendants have failed to pay the
capital sum, or interest or any portion thereof.
4.
In terms of a certificate of the credit manager of the Plaintiff attached
hereto-marked ‘B’ the balance due by Defendant to Plaintiff on (date) is
the sum of R34 353,04.
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5.
The Defendant’s attention is drawn to Section 26(1) of the Constitution
of the Republic of South Africa which accords to everyone the right to
have access to adequate housing. Should the Defendant claim that the
order for eviction will infringe that right it is incumbent on the Defendant
to place information supporting that claim before the Court.
WHEREFORE Plaintiff prays for judgment against Defendant for:
1(c)
1.
Payment of the sum of R34 353,04;
2.
Interest on the sum of R34 535,04 calculated from 1 November 20… to
date of payment;
3.
An order declaring the property, Erf 112 Rooishuiskraal to be specially
executable;
4.
Costs of suit.
ACKNOWLEDGEMENT OF DEBT
1.
On 1 September 20… the Defendant acknowledged in writing that he was
indebted to the Plaintiff in the sum of R25 000,00 arising from a loan
made by Plaintiff to Defendant. A copy of the said acknowledgement of
debt is annexed hereto marked “A”.
2.
In terms of the said acknowledgement of debt the Defendant undertook:
3.
2.1
To pay interest at the rate of 20% per year on the said sum of R25
000,00 from 1 September 20… until date of payment;
2.2
To pay the capital sum of R25 000,00 plus accrued interest on 30
November 20….
Despite demand the Defendant failed to pay the capital or the interest or
any part thereof.
(2)
ESTATE AGENT COMMISSION
1.
Plaintiff is an estate agent who, at all relevant times:
2.
1.1
Was the holder of a valid fidelity certificate issued to him in terms of
Section 26 of Act No. 112 of 1976 and,
1.2
Who had adequate fidelity insurance cover in, terms of Section 26(b) of
the said Act.
On 1 March 20… at Pretoria Defendant gave a verbal mandate to Plaintiff to find
a buyer for Defendant’s house situated at 5 Brook Street, Brooklyn at a price of
R200 000,00.
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3.
It was a term of the said mandate that if Plaintiff should find a buyer who bought
the property, Defendant would be liable to pay to Plaintiff commission amounting
to 5% of the purchase price, alternatively Plaintiff’s usual commission which
amounted to 5% of the purchase price.
4.
Plaintiff accepted the aforesaid mandate.
5.
The Plaintiff introduced a buyer, namely Mr B Baaier, to the property as a result
of which the said buyer bought the property from the Defendant for the sum of
R160 000,00.
6.
As a result of the said sale, the property was registered in the name of the said
buyer on (registration date).
7.
In the premises the Defendant is liable to the Plaintiff for the payment of
commission in the sum of R8 000,00 being 5% of the purchase price, which
commission the Defendant fails or refuses to pay despite demand.
WHEREFORE Plaintiff prays for judgment against Defendant for:
1.
Payment of R8 000.00;
2.
Interest at the rate of 15.5% calculated from (registration date) until date of
payment;
3.
Costs of action.
DOES THE PLAINTIFF HAVE A CLAIM?
Plaintiff is still entitled to commission even if the price is lower than the price stipulated
in the mandate. The mandate is actually “find a purchaser with whom I conclude a sale
on whatever terms”. In Doyle v Gibbon 1919 TPD 220 the head note reads:
“A commission agent gave G, an intending purchaser, a card to view certain property
which he had for sale. After inspection C decided not to buy as the price was too high.
Some months later G saw a “for sale” notice at the property which reminded him that
he had previously inspected the property. He then, without further communication with
the agent, negotiated with the owner direct and purchased for a small amount. Held,
that under the circumstances the causa causans of the sale was the previous
introduction through the agent who was therefore entitled to his commission on the
lower purchase price”.
This case was quoted with approval in Pretorius v Meyer, 1975(3) 282 T. See
Ferndale Investments v D.LC.K. Trust 1986(1) 392.
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3.
SALE OF LAND IN TERMS OF THE ALIENATION ACT NO. 68 OF 1981
1
On 1 March 20… and at Pretoria the Plaintiff sold to Defendant a house situated
at Erf 702 Hatfield for the sum of R140 000,00 by written agreement. A copy of
the agreement of sale is attached hereto marked “A”.
2.
The said agreement had the following material terms:
2.1
The purchase price was payable by way of a deposit of R14 000,00 on the
date of signing of the agreement and the balance in monthly instalments
of R2 100,00 for a period of two years after which the full balance plus
interest was due and payable against transfer of the said house;
2.2
If the agreement were cancelled as a result of the breach thereof by the
Defendant, he would forfeit all the payments already made, and remain
liable for arrear instalments and damages which the Plaintiff may have
suffered.
3.
Defendant has breached the agreement in that he failed to pay the first
instalments as stipulated in the agreement of sale and the Plaintiff gave due
notice to Defendant in terms of the provisions of Section 19 of the Alienation of
Land Act No. 68 of 1981, to pay the arrears which Defendant failed to pay.
4.
Plaintiff has cancelled the agreement as he was entitled to do and at the time of
such cancellation Defendant was the sum of R8 400,00 in arrears.
5.
The Defendant has voluntarily vacated the house and the Plaintiff has possession
thereof.
WHEREFORE Plaintiff prays for judgment against Defendant for:
a.
Payment of the sum of R8 400,00 being the arrear instalments at the time
of cancellation of the agreement;
b.
Interest at the rate of 19% per year calculated on the aforesaid arrear
amounts from the dates upon which the instalments individually became
due and payable until day of payment thereof;
c.
Costs of the action.
DOES THE SELLER HAVE CLAIMS FOR ALL THE ABOVE?
The Plaintiff cannot claim damages and forfeiture of amounts already paid and the claim
for arrear instalments is a penalty. Both a penalty and damages are not recoverable.
See Section 2 of the Conventional Penalties Act No. 15 of 1962. The difference between
the market value and the balance outstanding is subject to the same principle. If the
agreement had provided in the alternative for damages Plaintiff could have claimed
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damages but it would have to be more than all payments (deposit and instalments) and
arrears to be worthwhile. Generally, it is better to sue for the arrears.
There is the possibility that the Defendant may be liable on the basis of delict for the
damage to the house, but proof is required that he or somebody for whose actions he
is liable (in his service or his agent) caused the damage.
4.(a) PARTICULARS OF CLAIM REGARDING SALE OF STAND
1.
On the 7th of June 20… and at Pretoria the Plaintiff sold to the Defendant a stand
described as Erf 1409 situated in the township of Hennopspark in terms of a
written agreement which had the following relevant terms:
1.1
The purchase price was the sum of R155,000,00;
1.2
The purchase price was payable in cash against transfer of the property to
the Defendant;
1.3
The Defendant had to provide guarantees for the payment of the purchase
price within 60 days after the signing of the agreement;
1.4
The agreement was subject to the suspensive condition that the Defendant
obtains a bank loan of R125,000,00 within 45 days after signing of the
agreement;
1.5
A Magistrate’s Court will have jurisdiction to decide any proceeding arising
from the agreement.
A copy of the agreement is attached hereto marked ‘A’.
2.
The Defendant did obtain a loan from a building society for the sum of
R125,000,00 within the said period of 45 days and thus fulfilling the suspensive
condition in the agreement.
3.
If Defendant had complied with his obligation to take transfer of the property,
had signed all the necessary transfer documents when he was requested to do
so, delivered the guarantees within the said period of 60 days, transfer would
have taken place and the purchase price paid to Plaintiff at the date hereof.
4.
Plaintiff hereby tenders transfer of the property to the Defendant against
payment of the purchase price.
5.
Despite demand, the Defendant fails or refuses to take transfers of the property
and comply with his obligations in terms of the agreement.
WHEREFORE Plaintiff prays for judgment against Defendant for:
a)
Payment of the sum of R155,000,00;
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b)
Interest at the rate of 10.5% per year from the date of summons till date
of payment;
c)
Costs of suit.
4.(b) CLAIMING SPECIFIC PERFORMANCE
Yes, because the judgment is for money.
On page 1050 A of the decision in Tuckersland v Van Zyl Judge van Reenen
says:
“Bygevolg word ek genoop tot die gevolgtrekking dat bevele wat in munt klink,
ongeag die skuldoorsaak, nie vir doeleindes van art.46 van die Wet op
Landdroshowe, 32 van 1944, bevele tot daadwerklike vervulling is nie.”
4.(c) SUPPOSE LOAN IS ONLY GRANTED 50 DAYS AFTER SIGNING THE
AGREEMENT
If the suspensive condition is a condition which is exclusively for the benefit of
the purchaser (Defendant), he may, before the passage of 45 days inform the
Plaintiff that he waives the condition and that he will not be making use of a loan.
In such a case the agreement will still be in existence after 45 days even if a loan
is not granted.
If the purchaser does not indicate before the passage of 45 days that he will pay
cash or will issue the guarantee from another source, the agreement lapses.
Judge Coetzee in Mekwa Nominees v Roberts 1985(2) 501 J says:
“It seems to me that, even if the instant condition is exclusively for the benefit
of the purchaser, it necessarily follows from the stipulation if the time limit for
obtaining the bond that is also the time limit for the exercise if the purchaser’s
right if waiver if the condition and communication if his decision.”
_________________
ANSWER 8 – UNDEFENDED ACTIONS
In drafting the required Acknowledgement of Debt the following minimum
requirements must have been met:

Heading being indicative of the type of AOD;

Full description of the parties in all capacities;
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
Fully detailed descriptions of the transaction and debt the AOD is being signed on;

Interest Clause;

Recovery of Additional Charges;

Consent to Judgment;

Suretyship;

Tax;

Ceding of rights;

Security Clauses;

Renouncement Clause;

Exclusion Clause;

Acceleration Clause;

Assessment Affordability Clause;

Legislative Compliance;

Prescription;

A certificate of indebtedness Provision;

Common Clauses to preference;

Date and place of signature;

Full detailed signatures in all capacities.
_________________
ANSWER 9 - APPLICATIONS FOR RESCISSION OF JUDGMENT
APPLICATION FOR RESCISSION OF JUDGMENT
BE PLEASED TO TAKE NOTICE that application will be made to the above Honourable
Court on 18 July 20… at 09:00 for an order in the following terms:
a)
That the period of 20 days in Rule 49(1) be extended until the date on which
this application is made;
b)
That the judgment granted against the Applicant on the 4th of February 20… be
rescinded and leave granted to the Applicant to defend the Respondent’s
summons in the main action;
c)
That the costs of this application be ordered to be costs in the main action.
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AND TAKE NOTICE that the affidavit of JACK JONES which is attached hereto will be
used in support of the application.
DATED at JOHANNESBURG ........etc.
AFFIDAVIT
I, the undersigned,
JACK JONES
hereby declare under oath as follows:
1.
I am the Applicant in this application and the Defendant in the main action. I
have personal knowledge of the facts hereinafter stated.
2.
I never received the summons in the main action. The first time that I had
knowledge of the action against me was when the Sheriff of the Court served a
document called a warrant for execution on me at my home. The Sheriff looked
at the dilapidated furniture which I had in my lounge and said that I need not
worry about the matter, and he muttered a few other words which I did not
understand and then he left.
3.
I am completely ignorant about Court procedures and was under the impression
that the matter was finalised. When the Sheriff of the Court told me that I need
not worry about the matter, I took him at his word and forgot about the matter
until the Section 65 notice was received notifying me to appear in Court.
4.
Immediately upon receiving the notice in terms of Section 65 I went to see my
Attorney of record and he drafted this application as soon as he could. He
informed me on the 10th of July 20… that judgment had already been given
against me, and that I will have to apply for rescission of judgment if I wish to
defend the case. I do wish to defend the Plaintiff’s claim because I do not owe
any money to him.
5.
I submit that the above are valid reasons why I did not defend the summons
and that I should be afforded an opportunity to defend the Respondent’s action.
I do not owe the amount claimed to Respondent on the grounds set out below.
6.
I have been informed that this application is outside the 20 days limit allowed
by Rule 49 within which to apply for rescission of judgments. I am an ordinary
labourer on the railway and have no knowledge of the law or the Rules. Although
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I did not receive the warrant of execution three months ago, I did not realise
that I had to defend the claim of the Plaintiff. I therefore request that the period
of 20 days referred to in Rule 49(1) be extended until the hearing of this
application.
7.
I have a bona fide and good defence to the Respondent’s claim. I placed orders
for a great deal of goods with the Respondent. He failed to deliver a substantial
portion of the goods so ordered. I have paid him for the goods which he had in
fact delivered. The amount he is claiming in the main action is the price of the
goods which he had failed to deliver. I deny therefore that I owe any money to
the Respondent.
8.
On the 10th of July 20… my Attorney wrote a letter to the Respondent’s Attorneys
requesting that they consent that the 20-day period referred to in Rule 49(1), be
extended until the hearing of this application. The said letter was delivered to the
Respondent’s Attorneys the same day. The Respondent’s Attorney did not reply to the
request.
9.
I accordingly request that the order set out in notice of motion be granted.
SIGNED and SWORN to at etc.
________________
ANSWER 10 - EXCEPTIONS
(a)
BE PLEASED TO TAKE NOTICE that Plaintiff hereby takes exception to
Defendant’s plea on the basis that the plea discloses no defense in that Defendant
admits that Plaintiff is a holder in due course of a cheque but raises the underlying
causa of the cheque as a defense. The defense is therefore bad in law. Kindly
place the matter on the roll for hearing, etc.
(b)
BE PLEASED TO TAKE NOTICE that the Defendant hereby takes exception to
the Plaintiff’s claim for ejectment on the basis that it does not disclose a cause of
action in that Plaintiff alleges that Defendant is occupying the leased premises in
terms of a lease agreement and makes no allegation that such agreement has
been terminated prior to the institution of action.
Kindly place the matter on the roll for hearing, etc.
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ANSWER 11 - RULE 18 OFFER TO SETTLE
NOTICE IN TERMS OF RULE 18(2)
Be pleased to take notice that the Defendant hereby tenders the amount of R1 000,00
without prejudice and as a settlement offer in terms of Rule 18(2).
TAKE NOTICE further that the Defendant offers to pay Plaintiff’s party and party costs
as agreed or taxed to date hereof.
SIGNED at CAPE TOWN this day of 20__
___________________
ANSWER 12 - CLAIM FOR DAMAGES
1.
NOTICE OF INTENTION TO DEFEND
i)
No, Plaintiff is claiming damages, i.e., an unliquidated claim. Rule 14 provides for
an application for Summary judgment in cases where the Plaintiff’s claims is
based on a liquid document, is for a liquidated amount of money, for ejectment
or for the delivery of specified movables.
ii)
You have to deliver a notice in terms of Rule 12(2)(a) calling upon the Defendant
to deliver a proper entry of appearance to defend within 5 days.
iii)
R15 000,00.
AFFIDAVIT
I, the undersigned,
PIET XPERT,
do hereby make oath and state as follows:
1.
I am a panel beater employed by W Panel Beaters, Pretoria. I have been so
employed for a period of 10 years and by virtue of my training and experience. I
am an expert in the assessment of the market value of motor vehicles and the
cost of repairing damage to motor vehicles.
2.
On (date) I inspected a certain (reg. no.) motor vehicle. I found this vehicle to
have been badly damaged, the damaged being consistent with the vehicle having
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been involved in a collision. It is my opinion that it will not be economically viable
to repair the vehicle in that the costs of repair will exceed the market value of
the vehicle.
3.
It is further my opinion that the pre-accident value of the vehicle amounted to
R20 000,00 and the post-accident value to R5 000,00. The repair costs of the
vehicle will amount to R18 000,00.
4.
It is my opinion that the damage to the vehicle amounted to R15 000,00.
SIGNED and sworn to....................etc.
2.
SPECIAL PLEA
A special plea is a plea “which apart from the merits, raises some special defence,
not apparent ex facie the (particulars of claim) for in that case it would be taken
by way of exception – which either destroys or postpones the operation of the
cause of action”.
EXCEPTION
It is a legal objection to the opponent’s pleading. It complains of a defect inherent
in the pleading.
3.
NOTICE OF BAR
BE PLEASED TO TAKE NOTICE that the Defendant is required to file his plea
within 5 days of the receipt hereof failing which he shall be ipso facto barred.
NOTICE OF INTENTION TO DEFEND
BE PLEASED TO TAKE NOTICE that the Defendant intends to defend this action
and appoints the office of _________________ for service of all documents upon
her at the address mentioned below (ADDRESS).
SIGNED at Pretoria on __________ day of September 20___
4.
PLEADINGS SHALL BE CONSIDERED CLOSED IF(a)
Either party has joined issue without alleging any new matter, and without
adding any further pleading;
(b)
The last day allowed for filing a replication or subsequent pleading has
elapsed and it has not been filed;
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(c)
The parties agree in writing that the pleadings are closed, and such
agreement is filed with the Registrar/Clerk of the Court; or
(d)
The parties are unable to agree as to the close of pleadings, and the Court
upon the application of a party declares them closed.
WHEREFORE Plaintiff prays for judgment against Defendant for:
1.
Payment of the sum of R25 000,00;
2.
Interest at the rate of 20% per year on R25 000,00 calculated from 1
September 20… to date of payment;
3.
Costs of suit.
_______________
ANSWER 13 - PREPARATION FOR TRIAL
1.
DISCOVERY NOTICE
TO THE CLERK OF THE COURT PRETORIA
AND BOTHA & CO
Defendant’s Attorneys
12 Church Street
PRETORIA
NOTICE IN TERMS RULE 23(1), (6), (9) AND (11)
BE PLEASED TO TAKE NOTICE, pleadings having been closed, that in terms of Rule
23(1) the Plaintiff requires the Defendant within 20 (twenty) days after receipt of this
notice, to make discovery on oath of all documents and tape, electronic, digital or other
forms of recording relating to any matter in question in this action (whether such matter
is one arising between the parties making discovery and the parties required to make
discovery or not), which are or have been in the possession or control of such other
party.
BE PLEASED TO TAKE NOTICE FURTHER that in terms of Rule 23(6) the Plaintiff
requires the Defendant to make available for inspection within 5 (five) days after service
of its discovery affidavit, all documents or tape, electronic, digital, or other form of
recordings disclosed therein, for the Defendant’s inspection, and which said documents
or tape, electronic, digital or other form of recording are not privileged.
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BE PLEASED TO TAKE NOTICE FURTHER that in terms of Rule 23(9) the Plaintiff
requires the Defendant to specify in writing not less than 15 (fifteen) days before the
date of the trial of the said action, particulars of dates and parties of or to any documents
or tape, electronic, digital, or other forms of recordings intended to be used at the trial
of the said action on behalf of the Defendant.
BE PLEASED TO TAKE NOTICE FURTHER that in terms of Rule 23(11) the Plaintiff
requires the Defendant to produce at the hearing of this action, the originals of all
documents or tape, electronic, digital, or other forms of recordings disclosed by it not
being privileged documents or tape, electronic, digital or other form of recordings and
in his possession.
DATED AT PRETORIA on 30TH August 20…
ASHTON & PARTNERS
Plaintiffs’ Attorneys
21 Jason Street
PRETORIA
2.
STAGE OF LITIS CONTESTATIO
i)
A notice of set down for trial must be delivered within 15 days after litis
contestatio.
ii)
The Defendant may do so himself.
iii)
KINDLY TAKE NOTICE that the Plaintiff intends to use at the Trial of this
matter FOUR (4) colour photographs depicting the damage to the Plaintiff’s
vehicle, copies of which are annexed hereto. You are entitled to inspect
the original photographs at the offices of the Plaintiff.
AND KINDLY TAKE NOTICE that you are required to state within FIVE
(5) days of receipt hereof whether you have any objection to the
photographs being admitted as evidence upon the mere production of
them, without further proof.
3.
SETTLEMENT AGREEMENT
The parties hereby agree as follows:
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HEADING
1.
The Defendant agrees to pay the Plaintiff an amount of R45 000 plus costs
and interest as set out hereinafter.
2.
The Defendant agrees to pay the Plaintiff ‘s taxed costs of the action and
also the Plaintiffs’ Attorney and client costs, from the date hereof until date
of payment of all the Defendant’s liabilities in terms hereof in full.
3.
The Defendant agrees and undertakes to pay the above amounts in
monthly instalments of R1 500 commencing on the 1st day of October 20…
and thereafter on the first day of each succeeding month until all amounts,
plus interest and costs owing in terms hereof are paid in full.
4.
Should the Defendant fail to pay any instalment in full on the due date
thereof, the full balance owing in terms hereof, shall immediately become
due and payable and the Plaintiff shall be entitled to proceed against the
Defendant in terms of Section 65 or any other execution proceedings
without any application being made.
5.
The Defendant shall make all payments in terms of this agreement to the
Attorneys of the Plaintiff.
6.
Payments by Defendant shall pay the amounts due to the Plaintiff in the
following order: Attorneys and client cost, thereafter the taxed costs,
thereafter the interest and lastly the capital.
7.
The parties request the Court to make this agreement an order of the
Court.
SIGNED etc.
_________________
ANSWER 14 - AGREEMENT TO PAY DEBT
(1)(i)
No, Plaintiff is claiming damages, i.e., an unliquidated claim. Rule 14 provides
for an application for Summary judgment in cases where the Plaintiff’s claims
is based on a liquid document, is for a liquidated amount of money, for
ejectment or for the delivery of specified movables.
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(ii)
You have to deliver a notice in terms of Rule 12(2)(a) calling upon the
Defendant to deliver a proper entry of appearance to defend within 5 days.
(iii)
R15 000,00.
(iv)
(Heading).
I, the undersigned,
PIET XPERT,
do hereby make oath and state as follows.
1.
I am a panel beater employed by W Panel Beaters, Pretoria. I have been so
employed for a period of 10 years and by virtue of my training and experience. I
am an expert in the assessment of the market value of motor vehicles and the
cost of repairing damage to motor vehicles.
2.
On (date) I inspected a certain (reg. no.) motor vehicle. I found this vehicle to
have been badly damaged, the damage being consistent with the vehicle having
been involved in a collision. It is my opinion that it will not be economically viable
to repair the vehicle in that the costs of repair will exceed the market value of the
vehicle.
3.
It is further my opinion that the pre-accident value of the vehicle amounted to
R20 000,00 and the post-accident value to R5 000,00. The repair costs of the
vehicle will amount to R18 000,00.
4.
It is my opinion that the damage to the vehicle amounted to R15 000,00.
SIGNED and sworn to....................etc.
__________________
ANSWER 15 - STATEMENTS
Please note that the fees are amended from time to time and that the fees reflected
in this answer may not be the current rate as set out in the Rules. Candidates are
responsible to stay abreast of fee changes as reflected in the Government Gazette. In
some instances, where VAT has changed, this too must be taken into account when
doing calculations.
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See University of Stellenbosch Law Clinic and Others v National Credit
Regulator and Others (14203/2018) [2019] ZAWCHC 172 (13 December
2019) where the definition of ‘collection costs’ in Section 1, and the application of the
provisions in Section 101(1)(g) and Section 103(5) of the National Credit Act, Act No.
34 of 2005 were discussed.
Statement of Balance Outstanding:
(Every item should be preceded by the date thereof)
Capital
R7 000.00
Interest from 1 October last year to date hereof on capital
R
497.29
Summons fee including VAT
(R231.00 plus 15% VAT)
R
265.65
Sheriff for serving summons
R
15.00
Judgment fee including VAT
(R194.00 plus 15% VAT)
R
223.10
Warrant for execution including VAT (R37.50 plus 15% VAT)
R
43.12
Sheriff for serving and suspending
R
55.00
Interest on judgment costs from judgment date to date hereof
(30 November to the present)
R
51.00
Total Due
All fees and Sheriff charges include VAT
R8 150.16
Statement of Client:
(Every item must be preceded by date thereof)
Payment received
Instructions
(R75.00 plus 15% VAT)
Summons
Sheriff
Judgment
Warrant of execution
Sheriff: Service I suspension of W/E
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R
86.25
R 265.65
R
15.00
R 223.10
R
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R
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Letters and phone calls: 8
Collection commission
Consultation with debtor 20 min. (R20.00 for each 10 min)
Copies of documents 4
Postage and petties
R
R
R
R
R
109.44
285.00
46.00
4.00
3.00
_______________
ANSWER 16 - NOTICE OF APPEAL
IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF PRETORIA HELD AT
PRETORIA
Case no. 1234/20…
In the matter between
JACK SMITH
APPELLANT
and
TOM JONES
RESPONDENT
NOTICE OF APPEAL
TAKE NOTICE THAT the appellant hereby appeals to the Transvaal Provincial Division
of the Supreme Court of South Africa against the whole of the judgment of Magistrate
F Nel given on the 15th of January 20… in terms of which he dismissed the appellant’s
claim with costs.
The appellant appeals against both the findings of fact and the rulings of law set out
in the grounds of appeal below.
The grounds of appear are as follows:
1.
The Magistrate erred in finding that the onus of proof was on the appellant.
2.
The Magistrate should have found that the onus of proof was on the Respondent
because he pleaded a confession and avoidance because he admitted entering
into the agreement but alleged that the appellant had fraudulently
misrepresented the attributes of the goods delivered in terms thereof.
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3.
The Magistrate erred in rejecting the Plaintiff’s evidence as to what was said
before the contract was entered into because he had said too many times that
he could not remember.
4.
The Magistrate erred in dismissing the appellant’s claim with costs.
TAKE FURTHER NOTICE that the appellant hereby pays into Court an amount of
R1,000 in terms of Rule 51(4) as security for Respondent’s costs of appeal.
DATED at PRETORIA on this the ......... day of ____________ 20___
(SIGNED) P SMITH
ATTORNEY FOR THE APPELLANT
ADDRESS
TO:
THE CLERK OF THE COURT
AND TO:
THE Attorney FOR THE RESPONDENT
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DEFINITIONS AS CONTAINED IN RULE 2 OF THE ACT
“apply” means apply on motion and “application” has a corresponding meaning;
“Clerk of the Court” means a Clerk of the Court appointed under Section 13 of the
Act and includes an assistant Clerk of the Court so appointed;
“Criminal Procedure Act, 1977” means the Criminal Procedure Act, 1977 (Act No.
51 of 1977);
“Default Judgment” means a judgment entered or given in the absence of the party
against whom it is made;
“deliver” (except when a summons is served on the opposite party only, and in Rule
9) means to file with the Registrar or Clerk of the Court and serve a copy on the
opposite party either by hand-delivery, registered post, or, where agreed between the
parties or so ordered by Court, by facsimile or electronic mail (in which instance
Chapter Ill, Part 2 of the Electronic Communications and Transactions Act, 2002 will
apply), and “delivery”, “delivered” and “delivering” have corresponding meanings;
“Divorce Act, 1979” means the Divorce Act, 1979 (Act No. 70 of 1979);
“Electronic Communications and Transactions Act, 2002” means the Electronic
Communications and Transactions Act, 2002 (Act No. 25 of 2002);
“give security” includes the giving of a security bond either by the party with
someone as his surety or by two or more other persons;
“National Credit Act, 2005” means the National Credit Act, 2005 (Act No. 34 of
2005);
“notice” means notice in writing;
“pending case” means a case in which summons or notice of motion has been issued
and which has not been withdrawn, discontinued or dismissed and in which judgment
has not been entered or given;
“Plaintiff”, “Defendant”, “Applicant”, “Respondent” and “Party” include the
Attorney or Counsel appearing for any such party and the officer of any Local Authority
nominated by it for the purpose;
“Registrar of the Court” means a Registrar of the Court appointed under Section
13A of the Act and includes an assistant Registrar of the Court so appointed;
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“Sheriff” means a person appointed in terms of Section 2 of the Sheriffs Act, 1986
(Act No. 90 of 1986), and also a person appointed in terms of Section 5 and Section 6
of that Act as an acting Sheriff and a deputy Sheriff, respectively;
“signature” includes an advanced electronic signature as defined and described in
Chapters I, II and III of the Electronic Communications and Transactions Act, 2002
and this also applies to “unsign”, “signing” and “signed”;
“the Act” means the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944).
(2)
A Saturday, Sunday or public holiday shall not, unless the contrary appears, be
reckoned as part of any period calculated in terms of these Rules.
(3)
All distances shall be calculated over the shortest route reasonably available in
the circumstances.
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G. ANNEXURES
ANNEXURE “A”: HEADS OF ARGUMENT
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ANNEXURE “B”: LIST OF AUTHORITIES
1.
S v Rabie 1975 (4) SA 855 (A)
2.
S v Pieters 1987 (3) SA 717 (A)
3.
S v Pillay 1977 (4) SA 531 (A
4.
S v Rasengani 2006(2) SACR 431 (SCA)
5.
S v Vilakazi 2009(1) SACR 552 (SCA)
6.
Rammoko v Director of Public Prosecutions 2003(1) SACR 200 (SCA)
7.
S v Magida 2005 (2) SACR 591 (SCA)
8.
S v Cloete 1995 (1) SACR 367 (W)
9.
S v C 1996 (2) SACR 503 (T)
10. Mazibuko v Minister of Correctional Services and Others 2007 (2) SACR
303 (T)
11. Stanfield v Minister of Correctional Services 2004 (4) SA 43 (C)
12. S v Malgas 2001 (1) SACR 469 (SCA)
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ANNEXURE “C”: EXAMPLE OF A PRACTICE DIRECTIVE
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ANNEXURE “D”: DE REBUS → ISSUES → ARCHIVE 2019 → CLEARING UP THE
CONFUSION ON EVICTIONS
Clearing up the confusion on evictions May 1st, 2019
By Mohammed Moolla
There has recently been turmoil and confusion on how to proceed with eviction applications
in respect of residential properties.
The judgment of McNeil and Another v Aspeling and Others (WCC) (unreported case
no A85/18, 28-6-2018) (Davis AJ) handed down by the Western Cape Division of the
High Court on 28 June 2018, the eviction procedure to be followed by the Magistrate’s
Court in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act No. 19 of 1998 (PIE) was confirmed.
Following the amendment of Rule 55 of the Magistrates’ Courts Rules, the application
procedure in the Magistrate’s Court is in all material respects identical to that in the High
Court. Rule 55(1) now provides that every application shall be brought by notice of motion
supported by an affidavit and addressed to the party or parties against whom relief is
claimed and to the Registrar or Clerk of the Court. The notice of motion must be in a form,
similar to Form 1A, which is equivalent of the long form notice of motion used in the High
Court. The notice of motion must set a day not less than five days after service on the
Respondent by which notice of opposition is required to be given and must stipulate a day
on which the application will be heard in the absence of any notice of opposition.
Except in the case of urgent applications – where a different procedure may be adopted
on proper motivation – service of the (long form) notice of motion and founding affidavit
in terms of Section 4(3) of PIE should ordinarily precede the ex parte application to Court
for authorisation and directions in regard to service of a Section 4(2) notice, which will
then be served subsequently at a stage when the hearing date has been determined. Thus,
service will be effected twice, initially when the notice of motion and affidavit is served in
accordance with the rules, and subsequently when the Section 4(2) notice is served, which
contains the hearing date.
The grounds for the proposed eviction must also be set out in the Section 4(2) notice. The
mere stating that the grounds are set out in the affidavit attached does not constitute
proper compliance with Section 4(5)(c) of PIE. The grounds of the proposed eviction need
to be expressly stated in the Section 4(2) notice for the notice to be effective. ‘The recipient
should not be left to trawl through an affidavit in order to try and ascertain what grounds
are relied on for eviction.’
Section 4(1) to (5) of PIE lays down peremptory requirements for obtaining of an eviction
order. In terms of the Section 4(1) proceedings may only be instituted by the owner of
the property. In terms of Section 4(2) at least 14 days before the date of the hearing,
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effective notice must be given in writing to the unlawful occupier and municipality having
jurisdiction. In terms of Section 4(3) the procedure for serving and filing papers is as
prescribed by the rules of Court. In terms of Section 4(4) the Court has to be satisfied that
service cannot be conveniently or expeditiously effected to grant service in another
manner. In terms of Section 4(5) the notice of proceedings as contemplated in sub-section
(2) must –
‘(a) state that proceedings are being instituted in terms of sub-section 4(1) for an order
for the eviction of the unlawful occupier;
(b) indicate on what date and at what time the Court will hear the proceedings;
(c) set out the grounds for the proposed eviction; and
(d) state that the unlawful occupier is entitled to appear before the Court and defend the
case and where necessary, has the right to apply for legal aid.’
In the case of Cape Killarney Property Investments (Pty) Ltd v Mahamba and
Others 2001 (4) SA 1222 (SCA) the Court interpreted Section 4 of PIE and set out the
correct procedure to be followed in eviction applications.
First, it was held that the notice of eviction proceedings contemplated in Section 4(2) of
PIE must be authorised by an order of Court in addition to the notice of proceedings in
terms of the rules of Court as contemplated in Section 4(3) of PIE, namely the notice of
motion.
Secondly, it was held that since the date of hearing of an application in the High Court is
usually only determined after all the papers have been served, and seeing that the Section
4(2) notice must indicate the date on which the application will be heard, that has the
consequence that an application for authorisation to serve a Section 4(2) notice can only
be made after all the papers have been filed, that is after the notice of motion and affidavits
have been served in accordance with the rules of Court as contemplated in Section 4(3).
The fundamental principle laid down in the Cape Killarney case was that the notice in
terms of Section 4(2) of PIE must inform the recipient of the date on which the eviction
proceedings will be heard.
The step-by-step procedure is as follows:

Every application in terms of PIE is brought in terms of Rule 55 of the Magistrates’
Courts Rules. It is brought on notice of motion supported by an affidavit as to the
facts on which the Applicant relies on relief. In terms of the notice the Respondent
is given five days to oppose the application. The Respondent is also requested – if
they wish to oppose the matter – to appoint an address where there are three or
more Attorneys practising independently of one another within 15 km of the Clerk
of the Court.

Once the application papers are signed, the Clerk of the Court is approached to
issue a case number and supply a date for when the main application will be heard.
When requesting the date, the Applicant must take into account how long it will
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







take the Sheriff to serve this document, as well as the procedural rule of Section
4(2) of PIE, which requires at least 14 days before the date of the hearing.
The application papers are then taken to the Sheriff for service.
On receipt of the return of service, the Applicant drafts the application in terms of
Section 4(2). The grounds for the proposed eviction must be set out briefly in the
Section 4(2) notice. As stated earlier, the mere stating that they are fully set out in
the supporting affidavit does not constitute proper compliance with Section 4(5) of
PIE. The grounds need to be effectively stated in the Section 4(2) notice.
Once the application has been signed, the Applicant approaches the Magistrate at
Court with the ex parte papers, including proof of service by the Sheriff. The Court
will then be requested to consider the contents of the notice and suggested manner
of service and to endorse its approval or disapproval thereof of the application.
Once the ex parte application is granted, the Section 4(2) notice may be served on
the Respondents and the municipality having jurisdiction.
The service must take place in accordance with the directions of the Court and at
least 14 days before the hearing takes place. The 14-day period refers to ordinary
days and not Court days.
On the return date the Court will hear evidence as to the equity provisions as set
out in Section 4(6) with regard to elderly persons, and households headed by
women and/or children.
The Court must then, in the light of all the facts placed before it, make an order as
to what is just and equitable to grant an order for eviction considering the provisions
of sub-sections 4(6), 4(7), 4(8) and 4(9) of PIE.
Frequently, Applicants are faced with the difficulty of effecting service. In that case
the Applicant will have to bring an application in terms of Rule 10(1)(b) read with
Rule 55(4)(b). Rule 10(1)(b) provides that:
‘If service of process or document whereby proceedings are instituted cannot be effected
in any manner prescribed in Rule 9 … the person desiring to obtain leave to effect service
may apply for such leave to a presiding officer, who may consider such application in
chambers.’
The person desiring to obtain leave in the circumstances contemplated in Rule 10(1)(b)
shall make an application to Court setting forth concisely the nature and extent of their
claim, the grounds on which it is based, on which the Court has jurisdiction to entertain
the claim, and also the manner of service which the Court is asked to authorise. If the
Applicant is requesting for service other than personal service, the Applicant should also
set forth the last known whereabouts of the person and the inquiries made to ascertain
their whereabouts. The Court may make an order as to the manner of service it deems fit
and shall further order time within which the notice of intention to defend is given or any
other step is to be taken by the person to be served.
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Rule 55(4)(b) makes provision for ‘[a]pplications to the Court for authority to institute
proceedings or directions as to procedure or service of documents [which] may be
made ex parte where the giving of a notice of such application is not appropriate or not
necessary.’
Mohammed Moolla BProc (UKZN) is a Senior Magistrate at the Wynberg
Magistrate’s Court in Cape Town.
This article was first published in De Rebus in 2019 (May) DR 1
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ANNEXURE “E”: EXAMPLE OF FOUNDING AFFIDAVIT IN THE MAGISTRATE’S
COURT FOR AN EVICTION
IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF EMALAHLENI
HELD AT EMALAHLENI
CASE NO.: ___________
In the matter between
__________ (PTY) LTD
APPLICANT
AND
___________
1st RESPONDENT
ALL OTHER OCCUPIERS OF
________________ WITBANK
2nd RESPONDENT
EMALAHLENI LOCAL MUNICIPALITY
3rd
RESPONDENT
FOUNDING AFFIDAVIT
I, the undersigned
______________________
Do hereby state under Oath as follows:
1.
I am a major male and Sole Director of ___________ (PTY) Ltd with Registration Number
___________ with my Identity Number being ___________ and address of registered
office being, ___________, Bruma, Johannesburg and annexed hereto the Company
Documents as per Annexure NP 1 - 2, and that:
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1.1
1.2
I am duly authorised to dispose of this affidavit on behalf of the Applicant, as per
the Applicant’s resolution to this regard attached hereto as well as a copy of my
Identity Document as per Annexure NP 3 - 4; and that
I have personal knowledge of this case and have been managing and overseeing it
personally.
2.
I am the Applicant in this application and legally own the property known as Erf ________,
Witbank. Attached hereto and marked as Annexure “NP 5” a deeds office property search
confirming same.
3.
The 1 Respondent is an ILLEGAL OCCUPANT an adult male/female person occupying
the property at Erf _________, Witbank, whose full and further particulars are unknown
to me.
st
4.
The 2 Respondent is all other Occupiers of Erf ________, Witbank (hereinafter referred
to as ‘the property’), residing at the same address, whose full and further particulars are
unknown to me.
nd
5.
The 3 Respondent is the Emalahleni Local Municipality, of which the main office is situated
at Mandela Street, Emalahleni.
rd
6.
The above Honourable Court has jurisdiction by virtue of Section 9 of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998.
7.
The Applicant is the registered owners of the property, Erf ________, Witbank. The
Property has been registered in their names on the 03 November 2016, as per the copy
of a Deeds Search attached hereto and marked as Annexure “NP 6”.
8.
Since the registration of the property into the name of the Applicant, the Applicant have
been struggling to take possession of their property. The property was bought on an
auction and since 03 November 2016 when the property was registered into the Applicant’s
name the 1st and 2nd Respondent is blatantly refusing to vacate the said property.
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9.
On 02 February 2017 a notice was served by the Sheriff on the Respondents demanding
that he/she and all other occupiers vacate the premises within 20 days of receiving the
said notice, failing which we will proceed with an application to evict them. A copy of the
notice Annexure “NP 6 – 9” and Sheriff’s return is attached hereto and marked
Annexure “NP 10” respectively”.
10.
Notwithstanding demand and despite numerous attempts to settle the matter with the
Respondents, the Respondents refuse to vacate the said property. A copy of the
Settlement Agreement entered into and breached by the Respondents is attached hereto
marked Annexure “NP11”.
11.
It is my submission that the Respondents do not have any right to keep occupying the
mentioned property and are therefore enjoying a gratuitous benefit at the expense of
myself.
12.
I wish to draw the Court’s attention to the following relevant circumstances:
12.1 The 1st and 2nd Respondent do not have any legal right to stay in occupation of the
said premises;
12.2 The 1st and 2nd Respondent is not elderly;
12.3 The Applicant is not aware that there is any children resident on the property with
the First and/or Second Respondents;
12.4 Suitable, alternative accommodation is available for the Respondents.
13.
Despite the demand the Respondents has occupied the property as illegal occupiers.
14.
Due to the illegal occupation, the Applicant is suffering great financial losses as they have
to pay:
14.1 The property’s bond at monthly;
14.2 The electricity, rates, and taxes on the said property each month.
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15.
I am aware of no fact or reason which would justify the Respondents or anyone claiming
title through them, from remaining on the premises.
16.
I am not aware of any personal circumstances of the Respondents prohibiting them from
acquiring alternative accommodation.
17.
I therefore humbly request the Honourable Court to grant the relief as requested for in
the Application.
SIGNED at Bruma on this 10th day of April 2018.
________________________
APPLICANT
1
I certify that before administering the Oath, I asked the Deponent the
following questions and wrote down her answers in her presence:
a)
Do you know and understand the contents of this Affidavit?
Answer ________
b)
Do you have any objection to taking the prescribed Oath?
Answer _______
c)
Do you consider the prescribed oath to be binding on your conscience?
Answer ________
2
I certify that the Deponent has acknowledged that she knows and
understands the contents of this Affidavit which was signed and sworn to
before me at WITBANK on this the ____ day of
2018 and the
Deponent's signature was placed thereon in my presence.
_________________________
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COMMISSIONER OF OATHS:
NAME:
ADDRESS:
CAPACITY:
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ANNEXURE “F”: EXAMPLE OF A FULL EVICTION IN THE HIGH COURT (THE
PRINCIPLE REMAINS THE SAME)
EXAMPLE: EX PARTE NOTICE
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No ..............................
In the matter between:
__________________________
APPLICANT
And
OCCUPANT ON ERF ________
1ST RESPONDENT
MHLUZI EXT ___
STEVE TSHWETE LOCAL MUNICIPALITY
2ND RESPONDENT
EX PARTE APPLICATION
PLEASE TAKE NOTICE that the APPLICANT intends applying to this honourable Court
on __________ at 10:00 for an Order with the following terms:
1.
That the form and contents of the draft notice in terms of Section 4(2) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of
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1998, which is annexed to the founding affidavit marked “MRE ________”, be
hereby authorised.
2.
That the Applicant is directed to serve the notice together with a copy of this order
on the Respondents in accordance with the provisions of Rule 4(1) of the Uniform
Rules of Court.
3.
That the costs of this application will be costs in the cause.
PLEASE
TAKE
FURTHER
NOTICE
that
the
attached
Founding
Affidavit
of
______________________ with all its annexures as annexed hereto will be used in
support of this Application.
SIGNED at ___________________ on this ______ day of ____________ 2016.
_________________________
________ Attorneys
Applicant’s Attorney
Ground Floor, ________ Building,
___________, Bruma, Johannesburg
P O Box ____, Highlands North, 2037
Tel: _______________
Fax: _____________
Ref: __________
TO:
REGISTRAR OF THE HIGH COURT
PRETORIA
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EXAMPLE: EX PARTE AFFIDAVIT
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No .............................
In the matter between:
___________________________
APPLICANT
And
OCCUPANT ON ERF ___, MHLUZI EXT __
1ST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
2ND RESPONDENT
_____________________________________________________________
EX PARTE AFFIDAVIT
______________________________________________________________
____________________
Do hereby state under Oath as follows:
1.
I am a major female, with Identity Number _________and my current residential
address being, ______ Street, Witbank and contact number being ___________.
2.
The facts herein contained are within my personal knowledge and are to the best of my
belief both true and correct unless stated otherwise.
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THE PARTIES
3.
I am the Applicant in this application. I submit that I have the necessary locus standi in
judicio to bring this application due to the fact that I am the owner of the subject property
after I purchased such as per the Sale Agreement annexed hereto as “MRE 1-7”.
4.
The First Respondent is THE OCCUPANTS ON ERF ______, whose full and further
particulars are unknown to me and who is currently residing at ERF _________ EXT __,
Middelburg being the said property in question.
5.
The Second Respondent is the STEVE TSHWETE LOCAL MUNICIPALITY, a Local
Municipality duly established in terms of Provincial Notice 6766 of 1 October 2000 in terms
of Section 12(1) of the Local Government: Municipal Structures Act No. 117 of 1998,
carrying on business at Legal Services, Corner Walter Sisulu Street & Wonderers
Ave, Middelburg, 1050.
5.1
The Second Respondent is the Municipality
property, described more fully hereunder.
having
jurisdiction
over
the
5.2
The Second Respondent is joined to these proceedings by virtue of the interest
that it might have herein. No relief is sought against the Second Respondent save
and in the event of it opposing this application, in which event, an appropriate costs
order will be sought against it.
INTRODUCTION
6.
The First Respondent has been in occupation of the subject property since before ______
effected that the property be auctioned and subsequently purchased ________ and later
sold to me as per the Windeed of the Deeds Office Property on the said property, attached
hereto as “MRE 8”.
7.
Therefore, the First Respondent is an unlawful occupier of the property as defined in
Section 1 of the PREVENTION OF ILLEGAL EVICTION FROM AN UNLAWFUL
OCCUPATION OF LAND ACT NO. 19 of 1998 (“the PIE Act”).
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8.
Accordingly, this application is brought for the eviction of the First Respondent with any
other occupants that might be residing on the property, from the property in terms of
Section 4(1) and (7) of the PIE Act, specifically pertaining to sub-section (7) of the
said Act regarding ‘except where the land is sold in a sale of execution pursuant
to a mortgage’, Therefore in terms of this Ex Parte Application, this application
is specifically brought for the authorisation to serve a Notice in Terms of Section
4(2) and 4(5) of the ‘PIE’ Act No. 19 of 1998 on the Respondents, such notice
annexed hereto as “MRE ________”, pertaining to the aforementioned eviction
application being brought.
THE APPLICANT’S LOCUS STANDI
9.
I am the registered owner of the immovable property described as Erf _____ MHLUZI
EXT__, measuring 286 square meters, inclusive of all of its residential development
measuring square meters, and is situated at MHLUZI (hereinafter referred to as “the
property”). I purchased the property on the 22 OCTOBER 2015, and the said property
was registered in my name on the 18 DECEMBER 2015, in the Mpumalanga Deeds Office
as per Annexure “MRE 8”.
JURISDICTION
10.
It is respectfully submitted that this Honourable Court has the necessary jurisdiction to
hear this application and to grant the relief sought, in that the property occupied by the
First Respondent falls within the jurisdiction of this Honourable Court.
THE AGREEMENT
11.
11.1
There has never been any kind of agreement between myself, and the First
Respondent whatsoever and as a matter of fact I do not know him/her/them,
specifically regarding the aforementioned property in question and them occupation
thereof, except that he/she/they have been occupying the property prior to the sale
of execution, and since the sale of execution have been illegally occupying the said
property. Neither do I have occupancy agreements with anybody else for that
matter pertaining to the property in question.
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11.2
Therefore on the 8 February 2016 I therefore requested my legal representatives,
Len Attorneys to draft the letter of demand, whereby the First Respondent were
given notice to vacate the premises.
DEFAULT
12.
12.1
On 8 February 2016 my Attorney addressed a letter of demand to the First
Respondent to be served by the Sheriff and annexed hereto as “MRE 9-12”. The
Sheriff delivered the Letter of Demand on the_____________, where the content
of the letter was explained to the Respondent, indicating that failure of the said
demands would result in me proceeding to Court for the relief available in law.
12.2
I also attached hereto the return of service from the Sheriff indicating the process
followed to attempt an amicable resolution with the First Respondent in vacating
the property they are illegally occupying and is annexed hereto as per “MRE
________”.
13.
According to my calculations, the dies in terms of annexure “MRE _______” expired on
the ____________and the First Respondent has failed to adhere to the said letter of
demand to evict the said property.
14.
Furthermore, I will suffer damages as a result of the First Respondent unlawfully holding
over of the property from the date of granting the Orders prayed for in this Notice of
Motion until occupation of the property is restored to me.
15.
At this stage, I am unable to quantify the full extent of the damages I will suffer in respect
of, inter alia, utility charges utilised by the First Respondent subsequent to the 18
December 2015, as well as damages to the property itself and/or any other damages,
which will only be quantifiable upon the property being restored to me.
THE ACT
16.
Accordingly, and insofar as it may be found that I am required to comply with the
provisions of the PIE Act in respect of the First Respondent, and I respectfully submit that
I have so complied, for those reasons referred to hereafter.
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17.
At no stage since I became the new lawful owner of the property have I consented to such
occupation, with the result that the First Respondent is unlawfully in occupation of the
property. Furthermore, and as at the date that these proceedings are initiated, the First
Respondent would have been in unlawful occupation of the property for a period of more
than six months.
18.
I have no knowledge as to the personal circumstances of the First Respondent, other than
as set out herein, namely:
18.1
That the First Respondent lives on the property.
18.2
I am not aware of any handicapped or mentally unstable persons on the property
as far as I can establish.
18.3
I have no knowledge as to whether the First Respondent owns other residential
premises.
18.4
It is my humble submission that there is accommodation of a similar nature
available in the area and surrounds of the leased premises.
18.5
Alternatively, it is my humble submission that the First Respondent can approach
the Second Respondent to request the allocation of land should he/she find the need
to do so.
19.
0n the____________, after I had waited in vain for the First Respondent to comply
positively with the letter of demand as per annexure “MRE 9-12, it was abundantly clear
to me that no agreement would be reached with the First Respondent which would render
their occupation of the property lawful.
20.
Accordingly, on the ___________I furnished instructions to my Attorney of record to
prepare these Court papers.
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21.
Insofar as I am obliged to comply with the provisions of the PIE Act in respect of the First
Respondent, I respectfully submit that it would be just and equitable, should the First
Respondent be evicted from the property.
22.
The prejudice and financial loss to me by virtue of the Respondent’s conduct is self-evident.
This is to my detriment, bearing in mind that I not only own the property, but I also pay
the rates and taxes in respect thereof.
23.
If I am unable to have possession and occupation restored to me, I will increasingly
become liable for these monthly expenses and charges and potentially have no realistic
way of recovering these amounts from the First Respondent.
24.
I purchased the property with the aim of utilising it as a residential abode and since I
became the owner, I had to reside with friends elsewhere due to not being able to occupy
my said property.
25.
To the best of my knowledge, there is adequate alternate accommodation to be found in
the residential areas of Mhluzi Middleburg and surrounding suburbs, which could be utilised
by the First Respondent.
26.
In light of the fact that there is adequate alternate accommodation to be found in the
residential areas of Mhluzi and the surrounding suburbs in which the First Respondent
could reside, it is respectfully submitted that the First Respondent should cease occupying
the property within a period of 20 days from the date of the Order, should same be
granted, being served at the property, bearing in mind the period of time the First
Respondent has had to procure the same from the date of mora until the date of this
matter being heard. Should the First Respondent still not vacate the property within the
said period, an Order for their eviction should be granted affording me the right to evict
the First Respondent and any other persons occupying the said property, through the
Sheriff of this Honourable Court, immediately thereafter.
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27.
The First Respondent’s right to adequate housing
27.1 The First Respondent is advised that he/she/they have a right to adequate housing
and protection of eviction therefrom conferred in terms of Section 26 of the
Constitution of the Republic of South Africa which right is given effect to, inter alia,
in terms of the provisions of the PIE Act.
27.2 The First Respondent is advised that the relief sought in this application may infringe
upon these rights and that I will in due course comply with the provisions of the PIE
Act to obtain relief sought in this application.
27.3 For this Court to consider the relief I seek in this application, and in the proceedings
contemplated in the PIE Act, the First Respondent is invited to place before this
Court any facts that they may consider relevant, or any that they may be advised
is relevant.
28.
Insofar as the PIE Act is found to be applicable to the First Respondent, due notice at least
14 days before the hearing of this application will be served on him/her as well as the
Second Respondent.
29.
I respectfully submit, in the circumstances, that it is just and equitable having regard to
all relevant circumstances that the First Respondent as well as any other person that might
be occupying the said property be evicted from the property.
30.
I attach hereto marked annexure “MRE____________”, a confirmatory affidavit
deposed to by my Attorney of record, ___________ of __________ Attorneys in
support hereof.
31.
THEREFORE, IT IS OUR SUBMISSION THAT:
31.1
Due to the terms of Act No. 19 of 1998 as well as the latest case law, the Applicants
are obliged to bring this application before the matter for the eviction can be placed
and adjudicated.
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31.2
There is no jeopardy for Respondents if they do not receive notice of this application
and it is purely for procedural purposes.
31.3
The manner of service requested is only to limit costs and an attempt to speed up
the matter.
32.
WHEREFORE I pray for an Order in terms of the Notice of Motion, to which this affidavit
is annexed.
________________________
Xxxxxxxxxxx
DEPONENT
I HEREBY CERTIFY THAT THE ABOVE DEPONENT ACKNOWLEDGES THAT HE
KNOWS AND UNDERSTANDS THE CONTENTS OF THE AFFIRMATION AND HE HAS
NO OBJECTION IN TAKING THE PRESCRIBED OATH WHICH HE CONSIDERS TO BE
BINDING ON HIS CONSCIENCE WHICH WAS SIGNED AND AFFIRMED TO BEFORE
ME AT ………………. ON THIS THE …… DAY OF ……….……. 2016 AND THAT THE
PROVISIONS CONTAINED IN GOVERNMENT NOTICE R1258 OF 21ST JULY 1972,
AS AMENDED, HAVING BEEN COMPLIED WITH.
_________________________________
COMMISSIONER OF OATHS
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EXAMPLE: SECTION 4(2) NOTICE
“MRE _______”
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No ..............................
In the matter between:
___________________________
APPLICANT
And
OCCUPANT ON ERF _____
1ST RESPONDENT
MHLUZI EXT _____
STEVE TSHWETE LOCAL MUNICIPALITY
2ND RESPONDENT
_____________________________________________________________
NOTICE IN TERMS OF SECTION 4 (2) and 4(5) OF THE PREVENTION OF
ILLEGAL EVICTION FROM AND UNLAWFUL
OCCUPATION OF LAND ACT NO. 19 OF 1998
KINDLY TAKE NOTE that __________________ (hereinafter referred to as “the
Applicant”), has instituted proceedings against you, the First Respondent for your eviction
and eviction of all persons occupying under or through you, from the immovable property
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described as Erf ____ MHLUZI EXT ___ (“the property”), in terms of Section 4(1) of the
Prevention of illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998
(“the Act”).
FURTHER TAKE NOTE THAT, an Order for your eviction and the eviction of all persons
occupying under or through you from the aforementioned property will be sought on the
____ day of ______ 201__, at __h___, in the North Gauteng High Court, Pretoria, Paul
Kruger & Madiba Str, Pretoria.
TAKE NOTICE FURTHER THAT the Applicants apply for your eviction on the grounds
that he is the registered owner of the said property by virtue of a sale agreement annexed
to the notice of motion as “MRE ________” and Deeds Office Search annexed as “MRE
_________”. Your occupation of the property is regarded as unlawful.
TAKE NOTICE FURTHER THAT you are entitled to be present at the hearing of the matter
in order to defend the case and if so desired, to apply to the Legal Aid Board or to a Law
Clinic or other institution for legal aid.
THIS NOTICE is given to you on the authority of the High Court of South Africa
(PRETORIA) in terms of the Order of Court served herewith.
THIS NOTICE will be served upon the Municipality having jurisdiction over the property,
in terms of Section 4(1) of the Act; and is to be served at least 14 days prior to the hearing
of the application for eviction.
THIS NOTICE is given to you with a description of your constitutional rights as set out
under Section 16 of the Constitution of the Republic of South Africa as per Annexure “MRE
________”.
TAKE NOTICE FURTHER that the case is more fully set out in the Notice of Motion and
Founding Affidavit annexure which have already been served on the First Respondent by
Sheriff. In the event that you require a copy thereof, you can obtain same from the
Registrar of the above Honourable Court, or from the Applicant’s Attorneys.
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SIGNED at __________ on this ______day of …………………. 2016
__________________________
________ Attorneys
Applicant’s Attorneys
Ground Floor, ___________ Building,
__________, Bruma, Johannesburg
P O Box _____, Highlands North, 2037
Tel: ______________
Fax: ______________
Ref: ______________
TO:
REGISTRAR OF THE ABOVE HIGH COURT
AND TO:
OCCUPANT OF Erf , MHLUZI EXT ____
MIDDELBURG
PER SHERIFF
AND TO:
STEVE TSHWETE LOCAL MUNICIPALITY
Corner Walter Sisulu Street & Wonderers Ave,
Middelburg
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EXAMPLE: DRAFT ORDER
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No ..............................
In the matter between:
______________
APPLICANT
And
OCCUPANT ON ERF ____
1ST RESPONDENT
MHLUZI EXT ___
STEVE TSHWETE LOCAL MUNICIPALITY
2ND RESPONDENT
DRAFT ORDER
HAVING read the documents filed of record and having considered the matter:
IT IS ORDERED:
1.
That the form and contents of the draft notice in terms of Section 4(2) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of
1998, which is annexed to the founding affidavit marked “MRE ______”, be hereby
authorised.
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2.
That the Applicants are directed to serve the notice together with a copy of this
order on the Respondent in accordance with the provisions of Rule 4(1) of the
Uniform Rules of Court.
3.
That the costs of this application will be costs in the cause.
BY THE COURT
________________
REGISTRAR
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EXAMPLE: NOTICE OF MOTION
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No ..............................
In the matter between:
________________________
APPLICANT
And
OCCUPANT ON ERF _____
1ST RESPONDENT
MHLUZI EXT _____
STEVE TSHWETE LOCAL MUNICIPALITY
2ND RESPONDENT
_____________________________________________________________
NOTICE OF MOTION
_______________________________________________________________
BE PLEASED TO TAKE NOTICE THAT the above Applicant intends making application to
the above Honourable Court for an order in the following terms:
1.
That the First Respondent, together with any other persons who occupy or holding
possession through the First Respondent of Erf _____ measuring 286 square
meters, which includes residential development on the property, transferred in the
MPUMALANGA deeds division, situated at MHLUZI EXT ___ Middelburg
(hereinafter referred to as “the property”), under or through the First Respondent,
and/or by virtue of the First Respondent’s occupation thereof:
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1.1
Vacate the property within a period of 20 days from the date of service of this order
at the property;
1.2
Deliver up to the Applicant all keys to the property that the First Respondent may
have in his/her possession or under his/her control.
2.
Alternatively, in the event that the First Respondent and/or any persons occupying
through or under him/her, fail to vacate the property within a period of 21 days
from date of service of this order at the property, authorising the Sheriff of this
Honourable Court, including but not limited to, obtaining the help of the South
African Police Services to evict the First Respondent and/or any persons occupying
through or under him/her, from the property on a date not being less than 21 days
from the date of service of this order at the property.
Ordering the First Respondent to pay the costs of this application on the scale as
between Attorney and client.
3.
Ordering the Second Respondent to pay the costs of this application on the scale as
between party and party, only in the event of the Second Respondent opposing this
application.
4.
Further and alternative relief.
TAKE NOTICE FURTHER THAT the accompanying affidavit of ________________
_____ together with annexes will be used in support thereof.
TAKE NOTICE FURTHER THAT the Applicant has appointed the offices of ____
Attorneys whose address appears hereunder as its Attorneys of record at which address
it will accept notices and services of all process in these proceedings.
TAKE NOTICE FURTHER THAT if you intend opposing this Application you are required:
(a)
To notify the Applicant’s Attorneys in writing of your intention to do so within 10
days after service of this application;
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(b)
And within 20 days of the service of your notice of intention to oppose to file your
answering affidavit, if any.
AND FURTHER TAKE NOTICE 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.
AND FURTHER TAKE NOTICE THAT if no such notice of intention to oppose is given,
application will be made on __________, or as soon thereafter as the matter can be heard,
being a date not less than 14 days after notice has been given to the First Respondent in
accordance with the provisions of Section 4(2) of the PREVENTION OF ILLEGAL
EVICTION FROM AN UNLAWFUL OCCUPATION OF LAND ACT NO. 19 of 1998, which
notice will be served upon the First Respondent simultaneously herewith.
DATED at ______________ on this the ___ day of __________________ 2016
__________________________
_____________ Attorneys
Applicant’s Attorney
Ground Floor, ______________ Building,
______________, Bruma, Johannesburg
P O Box __, Highlands North, 2037
Tel: ______________
Fax: ______________
Ref: ______________
TO:
REGISTRAR OF THE ABOVE COURT
AND TO:
OCCUPANT ON ERF ______________
MHLUZI EXT ___
PER SHERIFF
MIDDELBURG
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AND TO:
STEVE TSHWETE LOCAL MUNICIPALITY
Corner Walter Sisulu Street & Wonderers Ave
Middelburg
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EXAMPLE: EVICTION FOUNDING AFFIDAVIT
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No ..............................
In the matter between:
______________________________
APPLICANT
And
OCCUPANT ON ERF ____, MHLUZI EXT ___
1ST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
2ND RESPONDENT
_____________________________________________________________
FOUNDING AFFIDAVIT
______________________________________________________________
______________________________
Do hereby state under Oath as follows:
1.
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I am a major female, with Identity Number _________________and my current
residential address being, ________ Street, Witbank and contact number being ______.
2.
The facts herein contained are within my personal knowledge and are to the best of my
belief both true and correct unless stated otherwise.
THE PARTIES
3.
I am the Applicant in this application. I submit that I have the necessary locus standi in
judicio to bring this application due to the fact that I am the owner of the subject property
after I purchased such as per the Sale Agreement annexed hereto as “MRE 1-7”.
4.
The First Respondent is THE OCCUPANTS ON ERF ____, whose full and further
particulars are unknown to me and who is currently residing at ERF ____, MHLUZI EXT
___, Middelburg being the said property in question.
5.
The Second Respondent is the STEVE TSHWETE LOCAL MUNICIPALITY, a Local
Municipality duly established in terms of Provincial Notice 6766 of 1 October 2000 in terms
of Section 12(1) of the Local Government: Municipal Structures Act No. 117 of 1998,
carrying on business at Legal Services, Corner Walter Sisulu Street & Wonderers
Ave, Middelburg, 1050.
5.1
The Second Respondent is the Municipality
property, described more fully hereunder.
having
jurisdiction
over
the
5.2
The Second Respondent is joined to these proceedings by virtue of the interest
that it might have herein. No relief is sought against the Second Respondent save
and in the event of it opposing this application, in which event, an appropriate costs
order will be sought against it.
INTRODUCTION
6.
The First Respondent has been in occupation of the subject property since before
______________________________ effected that the property be auctioned and
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subsequently purchased by _________ and later sold to me as per the Windeed of the
Deeds Office Property on the said property, attached hereto as “MRE 8”.
7.
Therefore, the First Respondent is an unlawful occupier of the property as defined in
Section 1 of the PREVENTION OF ILLEGAL EVICTION FROM AN UNLAWFUL
OCCUPATION OF LAND ACT NO. 19 of 1998 (“the PIE Act”).
8.
Accordingly, this application is brought for the eviction of the First Respondent with any
other occupants that might be residing on the property, from the property in terms of
Section 4(1) and (7) of the PIE Act, specifically pertaining to sub-section (7) of the
said Act regarding ‘except where the land is sold in a sale of execution pursuant
to a mortgage’.
THE APPLICANT’S LOCUS STANDI
9.
I am the registered owner of the immovable property described as Erf ___ MHLUZI EXT
__, measuring 286 square meters, inclusive of all of its residential development
measuring square meters, and is situated at MHLUZI (hereinafter referred to as “the
property”). I purchased the property on the 22 OCTOBER 2015, and the said property
was registered in my name on the 18 DECEMBER 2015, in the Mpumalanga Deeds Office
as per Annexure “MRE 8”.
JURISDICTION
10.
It is respectfully submitted that this Honourable Court has the necessary jurisdiction to
hear this application and to grant the relief sought, in that the property occupied by the
First Respondent falls within the jurisdiction of this Honourable Court.
THE AGREEMENT
11.
11.1
There has never been any kind of agreement between myself, and the First
Respondent whatsoever and as a matter of fact I do not know him/her/them,
specifically regarding the aforementioned property in question and them occupation
thereof, except that he/she/they have been occupying the property prior to the sale
of execution, and since the sale of execution have been illegally occupying the said
property. Neither do I have occupancy agreements with anybody else for that
matter pertaining to the property in question.
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11.4
Therefore on the 8 February 2016 I therefore requested my legal representatives,
Len Attorneys to draft the letter of demand, whereby the First Respondent were
given notice to vacate the premises.
DEFAULT
12.
12.1
On 8 February 2016 my Attorney addressed a letter of demand to the First
Respondent to be served by the Sheriff and annexed hereto as “MRE 9-12”. The
Sheriff delivered the Letter of Demand on the_____________, where the content
of the letter was explained to the Respondent, indicating that failure of the said
demands would result in me proceeding to Court for the relief available in law.
12.2
I also attached hereto the return of service from the Sheriff indicating the process
followed to attempt an amicable resolution with the First Respondent in vacating
the property they are illegally occupying and is annexed hereto as per “MRE
________”.
13.
According to my calculations, the dies in terms of annexure “MRE _______” expired on
the ____________and the First Respondent has failed to adhere to the said letter of
demand to evict the said property.
14.
Furthermore, I will suffer damages as a result of the First Respondent unlawfully holding
over of the property from the date of granting the Orders prayed for in this Notice of
Motion until occupation of the property is restored to me.
15.
At this stage, I am unable to quantify the full extent of the damages I will suffer in respect
of, inter alia, utility charges utilised by the First Respondent subsequent to the 18
December 2015, as well as damages to the property itself and/or any other damages,
which will only be quantifiable upon the property being restored to me.
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THE ACT
16.
Accordingly, and insofar as it may be found that I am required to comply with the
provisions of the PIE Act in respect of the First Respondent, and I respectfully submit that
I have so complied, for those reasons referred to hereafter.
17.
At no stage since I became the new lawful owner of the property have, I consented to
such occupation, with the result that the First Respondent is unlawfully in occupation of
the property. Furthermore, and as at the date that these proceedings are initiated, the
First Respondent would have been in unlawful occupation of the property for a period of
more than six months.
18.
I have no knowledge as to the personal circumstances of the First Respondent, other than
as set out herein, namely:
18.1
That the First Respondent lives on the property.
18.2
I am not aware of any handicapped or mentally unstable persons on the property
as far as I can establish.
18.3
I have no knowledge as to whether the First Respondent owns other residential
premises.
18.4
It is my humble submission that there is accommodation of a similar nature
available in the area and surrounds of the leased premises.
18.5
Alternatively, it is my humble submission that the First Respondent can approach
the Second Respondent to request the allocation of land should he/she find the need
to do so.
19.
0n the____________, after I had waited in vain for the First Respondent to comply
positively with the letter of demand as per annexure “MRE 9-12, it was abundantly clear
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to me that no agreement would be reached with the First Respondent which would render
their occupation of the property lawful.
20.
Accordingly, on the ___________I furnished instructions to my Attorney of record to
prepare these Court papers.
21.
Insofar as I am obliged to comply with the provisions of the PIE Act in respect of the First
Respondent, I respectfully submit that it would be just and equitable, should the First
Respondent be evicted from the property.
22.
The prejudice and financial loss to me by virtue of the Respondent’s conduct is self-evident.
This is to my detriment, bearing in mind that I not only own the property, but I also pay
the rates and taxes in respect thereof.
23.
If I am unable to have possession and occupation restored to me, I will increasingly
become liable for these monthly expenses and charges and potentially have no realistic
way of recovering these amounts from the First Respondent.
24.
I purchased the property with the aim of utilising it as a residential abode and since I
became the owner, I had to reside with friends elsewhere due to not being able to occupy
my said property.
25.
To the best of my knowledge, there is adequate alternate accommodation to be found in
the residential areas of Mhluzi Middleburg and surrounding suburbs, which could be utilised
by the First Respondent.
26.
In light of the fact that there is adequate alternate accommodation to be found in the
residential areas of Mhluzi and the surrounding suburbs in which the First Respondent
could reside, it is respectfully submitted that the First Respondent should cease occupying
the property within a period of 20 days from the date of the Order, should same be
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granted, being served at the property, bearing in mind the period of time the First
Respondent has had to procure the same from the date of mora until the date of this
matter being heard. Should the First Respondent still not vacate the property within the
said period, an Order for their eviction should be granted affording me the right to evict
the First Respondent and any other persons occupying the said property, through the
Sheriff of this Honourable Court, immediately thereafter.
27.
The First Respondent’s right to adequate housing
27.1
The First Respondent is advised that he/she/they have a right to adequate housing
and protection of eviction therefrom conferred in terms of Section 26 of the
Constitution of the Republic of South Africa which right is given effect to, inter alia,
in terms of the provisions of the PIE Act.
27.2
The First Respondent is advised that the relief sought in this application may infringe
upon these rights and that I will in due course comply with the provisions of the PIE
Act to obtain relief sought in this application.
27.3
For this Court to consider the relief I seek in this application, and in the proceedings
contemplated in the PIE Act, the First Respondent is invited to place before this
Court any facts that they may consider relevant, or any that they may be advised
is relevant.
28.
Insofar as the PIE Act is found to be applicable to the First Respondent, due notice at least
14 days before the hearing of this application will be served on him/her as well as the
Second Respondent.
29.
I respectfully submit, in the circumstances, that it is just and equitable having regard to
all relevant circumstances that the First Respondent as well as any other person that might
be occupying the said property be evicted from the property.
30.
I attach hereto marked annexure “MRE____________”, a confirmatory affidavit
deposed to by my Attorney of record, __________________________ of _____
Attorneys in support hereof.
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31.
WHEREFORE I pray for an Order in terms of the Notice of Motion, to which this affidavit
is annexed.
________________________
Xxxxxxxx
DEPONENT
I HEREBY CERTIFY THAT THE ABOVE DEPONENT ACKNOWLEDGES THAT HE
KNOWS AND UNDERSTANDS THE CONTENTS OF THE AFFIRMATION AND HE HAS
NO OBJECTION IN TAKING THE PRESCRIBED OATH WHICH HE CONSIDERS TO BE
BINDING ON HIS CONSCIENCE WHICH WAS SIGNED AND AFFIRMED TO BEFORE
ME AT ……………….. ON THIS THE …… DAY OF ………..……. 2016 AND THAT THE
PROVISIONS CONTAINED IN GOVERNMENT NOTICE R1258 OF 21ST JULY 1972,
AS AMENDED, HAVING BEEN COMPLIED WITH.
_________________________________
COMMISSIONER OF OATHS
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EXAMPLE: ATTORNEY CONFIRMATORY AFFIDAVIT
“IN THE HIGH COURT OF SOUTH AFRICA”
(GAUTENG DIVISION, PRETORIA)
Case No ..............................
In the matter between:
______________________________
APPLICANT
And
OCCUPANT ON ERF ________
MHLUZI EXT__
1ST RESPONDENT
STEVE TSHWETE LOCAL MUNICIPALITY
2ND RESPONDENT
_____________________________________________________________
CONFIRMATORY AFFIDAVIT
______________________________________________________________
I, the undersigned,
______________________________
Confirm herewith under oath as follows:
1.
I am an Attorney of the firm ______Attorneys, of Ground Floor, ________ Building,
_______, Bruma, Johannesburg, I am the Attorney of Record for the Applicant herein.
The facts herein fall within the ambit of my personal knowledge and are both true and
correct except where otherwise indicated or where it appears otherwise from the contexts.
2.
I have read the founding affidavit of the Applicant and confirm the contents thereof for as
far as it pertains to me.
________________________
Xxxxxx
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SIGNED AND SWORN at ________________ on this _____ day of __________
2016 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 the taking of the prescribed oath; and
c.
He/she regards the prescribed oath as binding on his conscience.
Signed before me:
Commissioner of Oath
__________________________
Signature
Full Names:
Capacity:
Area:
Ref:
__________
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EVICTION CASE:
GROBLER V PHILLIPS AND OTHERS [2022] ZACC 32:
REGARDING EVICTION OF AN ELDERLY AND DISABLED PERSON IN TERMS OF
THE PIE ACT
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ANNEXURE “G”: GOVERNMENT GAZETTE NO. 46839 DATED 2 SEPTEMBER 2022
**Please note that the tariff has been amended. It is the responsibility of the Candidates
to keep abreast of amendments to legislation.
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