Transcript ACTION PROCEEDINGS

ACTION PROCEEDINGS
Letter of Demand
Summons
Notice of Intention to
Defend
Reply to Plea (Plea to
Counter Claim)
Reply to Counter Claim
Closure of Pleadings
Discovery + Request to
Discover
Application for Trial
Consult Witnesses
Pre-Trial
Plea
Exception
Special Plea
Counter Claim
Preparation for Trial
Practice Notes
Opening Statement
Direct Examination
Cross Examination
Redress
Closing Statement
Trial
PLEADINGS
1 Pleadings (General Rules) - p60
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Signed by attorney/ party representing himself.
Heading
Parties description (p-60)
Amendment of Summons
Before service/issue – must be initialed by clerk of court - Otherwise no
effect
After service Rule 55A apply done by Notice.
2 Cause of action
• 2.1 Contractual claims
Specific performance
Damages due to breach of contract
2.1.1. Specific Performance
• Prove existence of contract
CAUSE OF ACTION CONTINUE…
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Material terms (allege+ prove)
Complied with antecedent or reciprocal obligations
Allege non- performance by the defendant of obligations
What relief you want.
Costs
2.1.2. Damage / Breach of Contract
• Contract ’s existence
• Allege + prove material terms of contract
• Allege breach – other party in Mora/ has repudiated + Contract
• Allege damages suffered
• Damages naturally & generally flow from the breach
• That in the special circumstances of the case existing at the conclusion of the
contract the damages were within contemplation of the parties when contract was
concluded
• Caused link between breach & damages
CAUSE OF ACTION CONTINUE…
• Cost
2.1.3.
Delictual Claims
• Where wrongfulness + negligent act is claimed resulting in bodily injuries or Death of
breadwinner
• Can recover patrimonial loss suffered.
• Must allege & prove
• Act / Omission
• Negligence – Detailed
• Causal connection between negligent act / omission + damages suffered
• Damages
• Costs
2.1.4.
Other:
• 2.1.4.1.
dishonoured cheque
• 2.1.4.2.
Surety
• 2.1.4.3
Estate Agent commission
• 2.1.3.4.
Repayment of loan – (NCA or Not)
CAUSE OF ACTION CONTINUE…
2.1.5
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Claims for interest
Rate of interest must be set out in Particulars of Claim
May only be claimed based on existence of agreement between parties or;
Where defendant is in Mora
Existence of contract must be alleged + rate agreed upon.
Summons should allege an agreement to pay interest.
If not alleged (although claimed) defect in summons can be cured by
evidence from plaintiff to that effect.
• Evidence not objected to by defendant.
• If interest agreed upon but not specified -determined by section 1 (2) of
Prescribed Rate of Interest Act 1975.
• Important to be able to determine when the date of Mora interest starts
running (read further p 64).
Service of Pleadings
Service
- Sheriff
- Other – see p-65
Domicillum citandi
SUMMONS
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Summons
What?
Document officiating action | Litigation.
When?
When making a claim against another
Who?
The Plaintiff
Direct sheriff to inform the defendant amongst other things that, if the
defendant disputes the claim and wishes to defend he/she must:
Give notice to defend – (10 days)
After delivering notice to defend, within 20 days deliver a plea
with/without a claim in reconvention
or an exception or
Application to strike out.
3.1.
Types of Summons
3.1.1. Simple Summons (p144 – 147)
SUMMONS CONTINUE…
When?
• Claim for a debt or Liquidated demand (See p55 types of liquid debts)
3.1.2. Combined Summons
When?
• Claim not for a debt / Liquidated demand,
• Collection costs
• Payment of monies due after debatement of account.
• Monies due by deceased estate,
What?
• Combined summons must include statement attached to it, stating the material
facts relied upon by the Plaintiff in support of its/his/her claim.
• Must comply with rule 6:
• Be 15 km within court region
• Contain attorneys postal address
SUMMONS CONTINUE…
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Fax / email + electronic mail address
If no attorney – plaintiff must comply with above.
Summons shall be issued and signed by clerk of the court
Date of issue + case number – issued (further provisions see p56 –
57)
4 Undefended Action
4.1. Default Judgment
When?
• Defendant fails to enter intention to defend within specified time.
[Before the plaintiff lodges request for default judgment and
defendant has not consented to judgment].
• Where defendant fails to deliver its plea in time.
DEFAULT JUDGMENT CONTINUE
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Defendant filed NOID
Fails to file plea, despite time given. (Notice of bar)
Defendant still fails to file plea
4.2 Other
• - R 32(2) – matter set down for oral / postponed for specific date and Def fails to
appear on the date set for trial.
• R 60(3) – Compliance requested and party fails to comply. Other party may apply
for default judgment.
• Must make sure you deliver application at correct address.
• Where address withdrawn – tracing agent to locate
• R 12(3) – Where summons served by post, may not apply for default unless you
have filled acknowledgement of receipt by sheriff with his return of service.
• Bear proper case number
• Signed by attorney / plaintiff.
4.3 R 12(4) – UNLIQUIDATED CLAIMS
DEFAULT JUDGMENT CONTINUE…
• Where no express agreement regarding price of article sold – implied term
• Become liquid when parties agree to quantum
• Court may require Plaintiff to give evidence – viva voce – affidavit to
nature + extend of claim.
• Rule does not require magistrate to decide whether or not the cause of
action has been proved.
• His duty is solely to assess amount recoverable by Plaintiff and give
appropriate judgment.
4.4
JUDGMENT BY CONSENT (Rule 11)
• Very rare
• Where Defendant admits to Plaintiff claim
• Pay the claim
• Pay via arrangement, without signing consent to judgment in terms of
Rule 11.
DEFAULT JUDGMENT CONTINUE…
4.4.
Documents to Lodge for Default judgment:
4.2.1.Application for request for default judgment.
4.2.2. Original summons
4.2.3. Return of Service – where intention to defend.
4.2.4. NOID
4.2.5. Notice of Bar
DEFAULT JUDGMENT CONTINUE…
4.5
RELIEF ASKED
• Sum of money not exceeding the amount claimed in summons.
• Any other relief claimed in summons.
• Costs
• Interest – (according to the act)
4.6
COSTS
• Undefended Scale
• Defendant Scale
• Attorney and Client – where there is an agreement to that effect
between the parties.
4.7
CHECKLIST
P 102 – 103
DEFENDED MATTERS
6 DEFENDED ACTION
• 6.1.
NOTICE OF INTENTION TO DEFEND
(NOID)
• Defend
• Appoint Attorneys
• Provide address for service of pleadings
SUMMARY JUDGMENT
6.2.
APPLICATION FOR SUMMARY JUDGMENT
6.2.1.
Drastic and extraordinary procedure
Purpose? - Prevent delay of Plaintiff claim
When?
• Liquidated amount in money
• Ejectment
• Any claim for interest + cost
• 15 days after (NOID)
How?
• Application (NOM)
• Supporting Affidavit
• Verify cause of action
• State that in his/her opinion defendant has no bona fide defence
• NOID delivered solely for purpose of delay
• Copy of liquid document attached
• State date of hearing (not less than 10 days from date of delivery thereof to Def.)
SUMMARY JUDGMENT CONTINUE..
6.2.2. DEFENDANT’S RESPONSE TO SJ
• Upon hearing the Def may.
• Give security to Plaintiff to satisfaction of the clerk of court,
for any judgment including costs which may be given or;
• By affidavit (delivered before noon two days before
hearing)
• Lead oral evidence himself to the fact that there is a bona
fide defence + nature of grounds.
• Court shall give leave to defend and action proceed as if no
summary judgment had been made.
• Contents of Def Affidavit. (see P70 – please read !!!)
SUMMARY JUDGMENT CONTINUE…
6.2.3 ONUS OF PROOF
6.2.3.1.
PLAINTIFF
• No oral evidence
• Must proof with no doubt in Affidavit.
• Plaintiff may not reply to evidence presented by Def.
• No defence + delay
6.2.3.2.
DEFENDANT
• May with leave of court supplement affidavit with oral
evidence.
• Must show he has a valid defence in terms of Law.
• See NCA provision – P 72 (top of page)
SUMMARY JUDGMENT CONTINUE…
6.2.3.4.
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SECURITY FOR COSTS BY PLAINTIFF
(R62)
Desiring to demand security shall asap after
commencement of proceedings deliver a notice
setting forth grounds upon such security is
claimed and the amount demanded.
If only amount contested – clerk will decide.
If party fails to pay / contests liability / within 10
days, other party can apply to court on notice for
an order that such security be given and;
That the proceedings be stayed.
SUMMARY JUDGMENT CONTINUE…
HOW?
- rules does not set out the grounds upon which a party is entitled to demand security
for costs from another.
-Court has discretion to decide whether it should or not.
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Actions parengrini
Plaintiff who does not own unmortgaged immovable property in republic may be
ordered to give security.
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Actions by companies / CC
Right not absolute
Relevant where there is a reason to believe that the corporation is being wound
up.
Rule 15
7.
EXCEPTION AND APPLICATION TO
STRIKE OUT
7.1. EXCEPTION
- legal objection to opponent’s pleading
- complain of an inherent defect in the pleadings.
- Court must look at the pleadings as it stands(no
outside facts)
• Purpose
- see page-75 (top)
7.2. Grounds for exception
7.2.1. Summons
• It does not disclose a cause of action
• That summons is vague and embarrassing
EXCEPTON CONTINUE…
7.2.2. Plea
• Plea does not disclose a defence to plaintiff’s claim.
• Plea is vague and embarrassing.
7.2.3. When is a pleading Vague and embarrassing
• If it is capable of more than one meaning.
• The meaning cannot be ascertained.
• If meaning is determinable but it is vague that the excipient does
not know what the other party’s case is.
• Contradictory averments not pleaded in the alternative are patently
vague and embarrassing.
• Must strike out the root of the cause of action as pleaded.
• Pleadings excipiable on the basis that no possible evidence led on
pleading can disclose the cause of action.
EXCEPTION CONTINUE…
7.2.4. Procedure
• Must deliver notice to opponent to remove cause of complaint.
• Give 15 days to other party to remove cause of complaint
• May except within 10 days of receipt of reply to cause of complaint.
• Must state clearly/ concise ground upon which exception is
founded.
• If there is both exception and Summary judgment it must be heard
at summary judgment application.
• If exception upheld
• pleadings may be amended
• Where no application for amendment, /refused
• If plea has no defence
THE PLEA
8. THE PLEA (R17)
• After defendant filed NOID, must file Plea with 20 days
• Can deliver Plea – without/with
-An exception
-An application to strike-out
-Without counterclaim / claim in reconv
• Failure – result in Notice of Bar
• R 60(5) – to lift NOB.
• Plea must be dated and signed + address
• Plea must:
• Address all material allegations made by the Plaintiff in POC
• All material facts must be admitted or denied.
• Allegation must be admitted/denied/confessed and avoided.
PLEA CONTINUE…
8.1.
ADMITTED
• Operates to eliminate the admitted fact from the issue to be tried.
• Its effect is to bind the party making it.
• If defendant omits to deal with any of the Plaintiff allegations it will
be taken to be admitted.
• Plea cannot be amend in terms of an ordinary Notice of Intention to
Amend. BUT a substantive application to court is required.
• It must be shown on oath that admission was made in error and
that the Plaintiff will; not suffer material prejudice if amendment
granted.
• Kevin Case – (SCA decision)
• Court held that admission made by one of the parties did not
require a formal withdrawal.
• Each case had to be decided on its own merits.
PLEA CONTINUE…
8.2. DENIAL
• Express contradiction of an allegation made by
opponent’s pleading.
• Places fact in the opponent’s pleading in issue.
• A denial must be unambiguous
-To merely to traverse an allegation of fact contained in
the summons (POC), and prefix it with a denial, may
result in an impermissible from of pleading known as a
“negative pregnant” or “Bare denial”.
• As with POC, def may not plead a legal conclusion in
the form of denial without setting out the factual basis
for such conclusion because it will be a bare denial!
PLEA CONTINUE…
• HWV, defendant may either as;
A sole defence or;
In combination with another defence not inconsistent
therewith, deny specifically any of the allegations in the
summons.
• The defendant may therefore deny each averment of fact
individually and may even state “each and every allegation
in this paragraph is denied as if specifically traversed”
• However this method of pleading is only acceptable IF it
will not amount to vagueness and does not prevent factual
basis of def’s defence being disclosed.
• Defendant must plead to set forth the nature and
particulars of the ground of his/her defence.
PLEA CONTINUE…
• Object of denial – the defence must be stated
with sufficient precision and sufficient detail
to enable Plff to know what case he/she needs
to meet.
• REMEMBER: No hard and fast rules BUT the
court must be able to determine whether the
Plaintiff was provided with sufficient details to
enable him/her to appreciate the true nature
of the defence
PLEA CONTINUE…
8.3. CONFESS AND AVOID
• Defendant admits facts alleged by Plaintiff BUT
alleges certain other facts which would have the
effect of putting a different complexion on the
facts given by Plaintiff, which rob Plaintiff’s fact of
their usual legal consequence (see example P. 80)
• Onus on defendant to proof.
8.4. DEF HAS NO KNOWLEDGE OF THE FACT
Not allowed in magistrate court.
PLEA CONTINUE…
8.5. SPECIAL PLEA
• Apart from the merits, special plea raises some special
defence;
• Which destroys or postpones the operation of the cause of
action;
• Defence does not go into the merits but rather the
procedural character.
e.g. Jurisdiction, Lis pendens; arbitration as precondition,
From the POC
• Prescription
• Res Judicial
OFFER TO SETTLE
OFFER TO SETTLE (R18)
• See P81 – (please read!)
CAUTION
• “Without Prejudice” vs “Final Offer”
• Liability
• Claim vs Costs
• Court Order
• Failure
• Indemnity
OFFER TO SETTLE CONTINUE…
DISADVANTAGES
• You may settle for less / court could have granted
more.
• If Plaintiff does not accept, only allowed what
he/she could prove at the trial.
• HWV, in terms of Rule 18 – entitled to whole
amount paid into court irrespective of whether
proved full amount or not.
• BUT def can include costs in the amount paid in.
COUNTER CLAIM
10. COUNTER CLAIM (Rule 20)
• Delivered to Plaintiff with Plea
• Must set out the material facts of claim.
• Must bear its own heading, can be within a separate
document / or in portion of the Plea.
• Defendant can counterclaim against Plaintiff alone
• Jointly + severally (including others)
Separately or in the alternative.
• Leave of court must be requested (Joinder Application).
• Where claim exceeds jurisdiction, the def may via
notice request stay of proceedings.
COUNTER CLAIM CONTINUE…
• No NOID by Plaintiff
• No security for costs may be requested in
terms of Rule 62
• Def cannot apply for Summary Judgment.
WITHDRAWAL, DISMISSAL AND
SETTLEMENT
16. WITHDRAWAL, DISMISSAL & SETTLEMENT
– SEE P95
• Withdrawal
• Where summons has not been served or
period limited to delivery of NOID has expired.
• Plaintiff may withdraw.
PREPARATION FOR TRIAL
• NOTICE OF SET DOWN (RULE 22)
• When? – after the pleadings are closed.
- if the Plff does not file set down the
defendant can do it , 15 days after
closure of pleadings.
- Delivery for notice shall ipso facto
operate to set down the counter
claim made by the defendant.
NOTICE OF SET DOWN CONTINUE…
• The defendant can elect to either:
– Set the matter down for trial or;
– Let the matter die a natural death.
FURTHER PARTICULARS
• Rule 16
• If the Plaintiff fails to plead full particulars in his
particulars of claim, the defendant may apply to
set aside the summons as an irregular proceeding
or except to it.
• At this stage you may request particulars only
necessary for trial – (must request not less than
20 days before trial)
• At the conclusion of trial, court will decide
whether the request was necessary and will make
necessary cost order regarding the costs.
DISCOVERY- RULE 23
What is the objective?
“ to ensure that before the trial both parties are made
aware of all the documentary evidence that is
available…”
- To narrow down the issues.
- Process whereby the opponent can specify on oath the
documents in his possession or under its control
relating to the action and;
- Allows the other party to inspect and copy such
documents .
- Utilized only after pleadings but may do so before
closure of pleading with leave of magistrate/court.
DISCOVERY CONTINUE..
• Parties must disclose every document which
bears on the case.
• HOW?
- Party must file an affidavit with an annexure
containing of two lists;
(a) first list – documents which no privilege is
claimed;
(b) Second list – will contain documents in
terms of which privilege is claimed.
NON COMPLIANCE WITH DISCOVERY
• Timeous discovery is essential for proper
preparation for trial.
• When applying for compliance, the court may
make an appropriate order as to costs.
• Rule 60 (2) – there is no sanction for non
compliance provided in the rules.
• Please Read Rule 24 – MEDICAL EXAMINATIONS
/INSPECTIONS OF THINGS/ EXPERT EVIDENCE
ETC.
PRE – TRIAL (RULE 24)
• Sec 51 coupled with Rule 24
• Court may at any stage in the legal proceedings in its discretion direct
parties to appear in chambers for a pre –trial.
• WHY?
- To simply the issues
- To discuss necessary or desirability of amendments of pleadings.
- Possibly obtain some admissions of fact.
- To view documents to avoid necessary proof.
- Limit the number of experts.
- Discuss other matters as may aid the disposal of the action in the most
expeditious and least costly manner.
PRE- TRIAL CONTINUE…
• Pre-trial notice must state the issues to be
discussed in Pre-trial.
• The Clerk will give the request to the
magistrate to consider and will respond in a
letter to the parties providing date and time to
meet to have this pre-trial.
• Go through your file and prepare for this pretrial. It might be in chambers but it is
important.
EXECUTION (RULE 36)
• WHEN?
- There is judgment for:
1. payment in money;
2. delivery of property whether
movable or immovable.
3. ejectment.
- shall be by warrant issued and signed by
the clerk of court and address sheriff.
EXECUTION CONTINUE…
• It is a collection process:
- Must obtain judgment first;
- Attach Property
- Arrange for sale in execution
TYPES OF WARRANTS:
- Warrant of Execution;
- Warrant of Ejectment;
- Warrant of Delivery of Goods;
EXECUTION CONTINUE…
• GEN RULE: warrant of execution against movable property
may be issued after judgment and if no or not sufficient
movable property is found, a warrant against immovable
property may be issued.
• Movable Property
- The Sheriff must demand payment of amount due
or else the movables will be attached.
- Sheriff will attach movables which in his opinion he
deem sufficient to satisfy the warrant.
- if no property pointed out the Sheriff may go
ahead and attach any property that he can find
which he thinks will satisfy the warrant.
IMMOVABLE PROPERTY
• Warrant against immovable property:
• Manner of Execution:
- full description of property must be obtained via deed
search;
- from search we will be able to obtain interdicts,
names of debtor, id numbers, marital status and
details of spouse;
- return of service reflecting that was insufficient
movable property obtained;
- The warrant is being re-issued and the deeds office
description of the property is attached;
IMMOVABLE PROPERTY CONTINUE…
• Six copies should be made for service upon
the following parties;
- The debtor
- occupant of the property
- local authority which has jurisdiction over
the property
- All bondholders
- The registrar of deads
IMMOVABLE PROPERTY CONTINUE…
• PLEASE NOTE – SECTION 66(2) = Important!
• Immovable property subject to preferent claim of a
judgment creditor cannot be sold in execution unless;
• Judgment creditor has caused such notice in writing of
the intended sale in execution to be served personally
on the preferent creditor as prescribed in the rules;
• The magistrate / assistant magistrate of district where
property is situated has upon application of the
judgment creditor and after enquiry into the matter
directed what steps shall be taken to bring intended
sale to the notice of the preferent creditor and those
steps have been carried out, unless:
IMMOVALBE PROPERTY EXECUTION CONTINUE..
• The proceeds of the sale are sufficient to satisfy the
claim of such preferent creditor;
• The preferent creditor confirm the sale in writing, in
which event he shall be deemed to have agreed to
accept such proceeds in full settlement of his claim.
• Implications of sec 66(2) are that if the judgment
creditor is NOT the a bondholder, proper notice must
be given to the bondholders and the bondholder must
confirm in writing that he is prepared to accept the
proceeds of the sale in full settlement of his claim.
IMMOVABLE PROPERTY EXECUTION CONTINUE…
• The risk for the concurrent creditor is this that he
may arrange the sale, incur all the costs and
receive no benefits whatsoever from the sale.
• In Short: process of obtaining judgment against
movables will remain the same and;
• If the Sheriff issue a nulla bona return indicating
insufficient movables exist to discharge the debts,
the creditor will have to apply to court for an
order permitting the execution against the
immovable property, after having considered all
relevant factors.
IMMOVABLE PROPERTY EXECUTION CONTINUE…
• Factors the court will look at:
- circumstances in which the debt was made;
- attempts made by debtor to pay debt;
- financial situation of the parties, the
amount of the debt;
- whether debtor is employed and has
income to pay off the debt;
- whether the debtor willingly put up his house
up for security for the debt;
- any factors relevant for the particular case.
STEPS THAT MUST BE TAKEN TO
ARRANGE SALE OF IMMOVABLE
PROPERTY
• Notice of sale must be drawn up including the
sale of the property.
• Conditions of sale must be drawn up and handed
to sheriff at least 20days before the sale.
• Conditions must be served on all interested
parties.
• The Sheriff will require unlimited security, proper
description of property, with conveyancer’s
certificate containing detailed information about
the property.
STEPS FOR SALE CONTINUE..
• Sale must be advertised in local newspapers
and government gazette.
• Must adhere to time limits strictly.
• Attorney must attend the sale.
• Execution creditor may ask conveyancer to
attend to the sale.
SELF STUDY
• PLEASE READ SECTION 65 PROCEEDINGS;
• GO THROUGH YOUR NOTES AND APPLY THE
RELEVANT CASE LAW AND SUPPLEMENT THE
CLASS NOTES AS ADVISED;
• REVISE THE EXAMPLES GIVEN TO YOU,
HELPFUL FOR BOARDS.
• DON’T BE AFRAID, WORK HARD AND PUT
WHAT YOU HAVE STUDIED INTO PRACTICE.
THE REAL END!
• THANK You and wishing you a prosperous
career!