Although a successful special plea has the effect of dismissing the action, it is not frequently set down before the trial. This form is often referred to as the “long-form notice of motion.”. A summons doesn’t have to be served in person. [76] This is brought in line with the HC rules, which provide for exception on the first two grounds. See Rule 19(3) of the Southern Divorce Court Rules. An applicant may contend, for example, that the respondent is in wrongful possession of the applicant's motor vehicle, and has threatened to destroy it in the event of the applicant's proceeding to court for its recovery. In terms of rule 4B, the letter must contain particulars of the nature and amount of the claim. Application proceedings commence with a notice of motion, together with a founding affidavit. Similar provisions are contained in Rule 17 of the Uniform Rules of Court. If the plaintiff is legally represented, the summons must be signed by an attorney. A summons is a formal notice given to the defendant that a lawsuit has been filed against them. the date, place and duration of the conference; any aspect to be referred to mediation, etc. A court will grant a divorce by default if a divorce summons is served and the plaintiff does not respond. The defendant's onus must be discharged on the facts set out in his or her affidavit. It will set out in detail the nature of the claim, the conclusions of law that the plaintiff is entitled to make from the facts, and a prayer setting out the relief to be claimed. The advertisement must be published at least ten days prior to the sale. Parties to these proceedings are called the applicant and the respondent. HCR 67 indicates which fees are payable to the court, while HCR 68 indicates which tariffs are applicable to the sheriff. It will give due weight to the constitutional obligation to promote the fundamental right of access to the courts in such a way that legitimate litigants will not be deterred, for fear of an adverse costs order, from approaching the court to have disputes settled. This is an extraordinary, hybrid and speedy procedure, whereby a plaintiff in possession of a liquid document may obtain quick judgment against a defendant for the amount payable on the face of a liquid document. When the matter is too urgent for the respondent to be allowed the usual ten court days prescribed by HCR 6(5)(b), from date of service of notice of the application to date of hearing, the ten-day period may be ignored. 9 Service of process, notices and other documents (1) A party requiring service of any process, notice or other document to For example, an applicant whose life is threatened may approach a court for an interim interdict restraining the respondent from assaulting him, despite the fact that the applicant foresees that the respondent in an answering affidavit will deny having made the threat. It is only from the particulars that one can see the basis of the action as well as the relief sought. The latter type of divorce is the best and most cost-effective for all parties concerned. As far as the costs of the appearance at the hearing in chambers are concerned, the rule applies that the judgment debtor will be ordered to pay the costs unless it appears at the hearing that the debtor has made an offer to settle the judgment debt in instalments that the court considers reasonable, or unless it appears that he has notified the judgment creditor that he was not able to make an offer, and the court finds this to be true. A review relates to procedural fairness. [38], In contrast to summons proceedings, there is no distinction between the pleading stage and the trial stage in application proceedings. send, by registered post, a copy of the notice of sale to each judgment creditor who has caused the immovable property to be attached, and to each mortgagee whose address is known; and. Should the debtor leave the service of the garnishee before the debt has been paid in full, he must forthwith advise the creditor of the name and address of his new employer. Service may not be effected on a Sunday or a public holiday (with some exceptions). The pre-trial conference is normally attended by the parties' legal representatives. South Africa. The judgment creditor must place an affidavit before the court setting out the outstanding amount of the judgment, and how the specific instalment and cash have accumulated from the date of the judgment, and the balance owing. Legal costs awarded by a High Court typically include advocates’ fees. Obtaining judgment in one's favour is not necessarily the final step in the litigation process. in terms of rule 42 of the High Courts Rules. Sexual Offences Court: Children or victims get the necessary respect, care and support in respect of sexual offences. the execution creditor and every claimant to the subject matter reside, carry out business or are employed within the area; the subject matter have been attached by the court; and. Attorney-and-client orders are often made because the losing party agreed to pay such costs in an agreement prior to litigation. REPUBLIC OF SOUTH AFRICA No. In terms of rule 49(1), a party seeking to rescind or vary a default judgment has twenty court days, from the date on which the judgment came to his knowledge, to serve and file the application for rescission. The plaintiff agrees in writing that the default judgment be rescinded or varied. Section 69(1) makes specific provision for interpleader proceedings in the context of property attached or about to be attached in execution under the process of any court. A provisional-sentence summons contains the following particulars: The defendant may admit liability for the amount claimed, in which case the court may grant final judgment in favour of the plaintiff. Therefore, unlike the position in the High Court, no reserve price may be stipulated, as preferent creditors are protected by the provisions of section 66(2). In terms of HCR 6(5)(g), the court may order that oral evidence be heard to decide a specific factual dispute. Examples include breach of contract and damages in delict. It is anticipated that both the Seventeenth Constitutional Amendment Bill and the Superior Courts Bill will be promulgated in 2012. delivery or transfer of property, moveable or immoveable, where the value of the property does not exceed the prescribed amount. South African law does not allow a plaintiff to claim punitive damages from a defendant in a private claim, as this is seen as being contrary to public policy. The consultancy industry is one of the most diverse markets within the professional services industry, and, therefore, a number of different types of consultants are found in the industry. The application is then heard in the same way as the exception. Action proceedings are trials as we know them. The Act prescribes the factors which the court must take into consideration in determining the ability of the debtor to pay the debt due. It must be set down at the normal time of 10:00, or for the same day if the court has not yet adjourned. A company registration may vary between R125 and R475 (R125 for a private company, R475 for a non-profit company registered without members). date delivered: 23/05/17 . The key officer in civil matters is the Clerk or Registrar of the Court. If the application is not opposed, the facts, as set out in the documents, are accepted. Sometimes one or more supporting affidavits or relevant documentation are attached to the affidavit. If the debtor or his representative was not present in court at the time the order was made, the judgment creditor or his attorney is obliged to advise him forthwith, by registered post, of the terms of the order and of the consequences of his failure to satisfy it. The allowance to the other attorney may not, directly or indirectly, exceed a third of the fees charged. in the high court of south africa . ___Expressions underlined with a solid line indicate insertions into existing rules. The taxed bill then has the effect of a court order; if the party who is liable for payment of same fails to pay the bill of costs, payment may be enforced by means of a warrant of execution. The general rule is that natural and juristic persons have the capacity to sue. The exception must be raised within 10 days of receipt of the notice of intention to defend. the plaintiff must have had an adequate interest, not merely a technical one; the interest must not have been too far removed; the interest must have been actual, not abstract or academic; and. Debt Collection in South Africa - Litigation Process The debt collection litigation process can become complicated, drawn out and costly if a debtor decides to defend the matter. It is submitted that the absence of wilful default applies to all applications, and that it still remains part of demonstrating "good cause. Where, however, the court is unable to decide the application on the papers, generally there are three avenues open to it: If it appears that the applicant must reasonably have foreseen that a material dispute of fact would arise at the time the application was brought, but the applicant nevertheless proceeded by way of application, the court may dismiss the application with costs. A party may, in exceptional circumstances, be ordered to pay his counterparty's cost. In civil matters, each party usually claims an order for recovery from the other party of the costs paid to his own attorney. There must be an affidavit by at least one person to whom the patient is well-known, containing such facts and information as are within the deponent's own knowledge concerning the patient's mental condition. South Africa transitioned to democracy in April 1994 when the African National Congress (ANC) won a landslide election and took leadership of the national government, as well as seven of nine provincial governments. While this type of summons specifies the court in which the action is filed, and information about answering the lawsuit, it is the complaint that provides comprehensive information about the lawsuit itself. This is an order that the costs be paid by the attorney, instead of by the client. On the other hand, section 26(4) of the Maintenance Act provides (notwithstanding anything to the contrary contained in any law) that any pension, annuity, gratuity or compassionate allowance or other similar benefit shall be liable to be attached or subjected to execution under any warrant of execution. The case usually involves two legal representatives, who appear before a presiding officer and present their respective arguments based on facts which have already been recorded by either party in an affidavit. The key difference is that application proceedings are used only where there is no material dispute as to the facts.[136]. In such case Magistrates' Courts rule 12(1)(b) and High Court rule 31(5)(a) require that the plaintiff afford the defendant a chance to do so by delivering a notice calling on the defendant to file his plea; otherwise he will be barred. any person who resides, is employed in or carries on business within the district, where "person" includes the state, body corporate, municipalities, and corporations, and where the key is permanence, so that a person employed for a short period, or visiting a place for a short period, cannot be said to "reside" there; any partnership with its business premises in the area, or whose members reside in the district. She has the power to deliver and serve court documents and judgments, to execute writs and to conduct arrests. These are so-called "creatures of statute", governed by and created under the Magistrates' Courts Act, and therefore do not have inherent jurisdiction. Paterson writes that, while this requirement overlaps with that of 'good cause,' it should be given an independent meaning. The cause of action is essential in identifying the elements which must be proved to be successful with the claim. For this reason, the test is not as stringent as when final relief is sought; in fact, it favours the applicant. Inherent jurisdiction was subsumed under section 173 of the Constitution of the Republic of South Africa: courts now cannot exercise jurisdiction beyond the ambit of the Constitution.[4]. This usually occurs where the defendant resides outside the Republic and there is another basis for the court's jurisdiction. The first step in the procedure for attachment and execution is the valid issue of a document known in the practice of the High Court as a “writ of execution,” and in the Magistrate's Court as a “warrant of execution.” Although the terminology is different, the purpose of the documents is essentially the same. The New Magistrates’ Court Rules ... No. In the South African legal system, a summons is the first step in the court process. The most common is a partnership. As a result of the Contingency Fees Act, it is now possible for attorneys to charge on a contingency basis. In terms of section 56, the letter of demand must be sent by registered post by an attorney to the debtor. The defendant may select either of the following two procedural options: The onus of proof is an important principle. It places an onus on the defendant at the preliminary sage to establish a defence by satisfying the court, on a balance of probabilities, that the defendant should not be made to pay the amount claimed by the plaintiff, and that the probability of success in the principal case does not favour the plaintiff. If the debtor admits liability, the creditor may proceed to gain an order against the debtor. ... either on a contested or opposed basis, alternatively on an uncontested or unopposed basis. This page was last edited on 9 January 2021, at 06:09. Section 65A(8) provides that a person so arrested should, as soon as reasonably possible, be brought before the court within the district which that person was arrested. This rule has now been removed and replaced with one which deals with proving a declaration and further particulars for the purposes of a trial. 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