types of summons in south africa

If the application is not opposed, the facts, as set out in the documents, are accepted. The court may in any event postpone the proceedings at any time in the presence of the judgment debtor or, in the case of a juristic person, in the presence of the director or officer of the debtor, to such date as the court may determine. The Constitution, in section 169, permits High Courts to hear any matter save. The key difference is that application proceedings are used only where there is no material dispute as to the facts.[136]. A demand can be made orally or in writing. the sale by the sheriff, through public auction, of the property attached. The general rule is that natural and juristic persons have the capacity to sue. When considering the relevant rules of the High Court, and the appropriate section and rules of the Magistrate's Court, one should not lose sight of the fact that interpleader proceedings may occur in a context other than execution. A liquid document has been defined as a written instrument in which the debtor or an authorised agent, by means of a signature appearing on the face of the document, acknowledges an unconditional liability for the payment of a fixed and certain amount of money. The document sets out the defendant's intention to defend the action, as well as the address at which he will receive all further documents in the proceedings. The same rules apply as those in the claim in convention. [44] Prior to the new Magistrates' Court Rules, a defendant who wished to find out more did so by delivering to the plaintiff a request for further particulars in terms of Rule 16 of the Magistrates' Courts Act. The most common type of application for rescission, however, is an application for rescission of a default judgment. the name, occupation and address of the respective persons suggested as curators to the patient's person and/or property, and a statement that these persons have been approached and have intimated that, if appointed, they would be willing to act in those capacities. "Liquidated" means that it is a claim for a fixed, certain or ascertained amount or thing (. In certain circumstances, a party may need to obtain relief on an urgent basis; proper compliance with the rules and time limits may not be possible. (6) The Interdict: A summary remedy of an extraordinary nature, the object of which is to protect a person against the unlawful deprivation of his rights Different kinds of Interdicts 1. compliance with court rules and procedures; and, finally, action (or summons) proceedings, which are brought by means of a summons; and. performance claims, in which there is a tender, unconditional or without prejudice, of specific performance by the defendant (34(2)). Commission for Administration. The plaintiff may amend a provisional summons in the same way and in terms of the same criteria as any other summons. Even when the defendant raises a defence which is unconnected with the liquid document, the onus remains the same. The High Courts of South Africa used to be called "The Supreme Courts". There are two kinds: the district Magistrate's Court and the Regional Magistrate's Court. Having thus put his version of events on paper, the client need not appear in person. As a rule, in fact, when only one person is before the court as a litigant, the application procedure is always appropriate, as the possibility of a dispute of fact does not exist. REPUBLIC OF SOUTH AFRICA No. Where no indemnity is given, the sheriff may follow the interpleader proceedings set out in HCR 58. The requirements were as follows: In actions based on the Bill of Rights, the grounds on which a litigant may have locus standi are listed in section 38, in terms of which the following may litigate: Someone may be the right person to litigate, but he may still lack capacity to sue. Where a third-party claimant lays claim to property attached or about to be attached by the sheriff, or to any proceeds of property so attached and sold in execution, the sheriff must give notice of such claim to the execution creditor. During this conversion process, the court has discretion to award such an order as to costs as it may deem just. This means that the court will exclude a certain amount of money from the weekly or monthly payments made to the administrator for the purpose of allowing the debtor to make periodical payments in terms of a credit instalment sale agreement or existing maintenance or mortgage-bond obligations. Of course, it is well within your legal rights to … In the High Court, the form of the writ of execution differs, depending on whether it pertains to movable property or to immovable property: MCR 36(1) provides that the process for the execution of any judgment for ejectment, the delivery of property (movable or immovable), or the payment of money, shall be by warrant issued and signed by the clerk of the court and addressed to the sheriff. If a guarantee is given conditional upon the breach of contract, or default of the principal debtor, such a guarantee is accessory in nature and therefore, ranks as a suretyship. In contrast, section 58 provides for an unconditional consent to judgment, coupled with a consent to an order of court for the payment of the debt in instalments. The clerk will endorse the warrant with permission for immediate removal. Once the pleadings are closed, a plaintiff or defendant may apply for a trial date. The matter is therefore decided essentially on the respondent's version. At least twenty days prior to the sale, the execution creditor prepares the conditions of sale, which must include a condition for payment by the purchaser of any interest due to a preferent creditor from the sale of the property to the date of transfer. Any step taken in breach of these rules will be irregular and liable to be set aside. The application is then heard in the same way as the exception. The most common is a partnership. In recent years, the Constitutional Court, the Land Claims Court and the Labour Courts have adopted a new principle: that persons should not be deterred from enforcing their rights because they fear that they will have to pay their opponent's costs, on top of their own, if they do not succeed. No specific format is prescribed for the letter of demand; this is unlike the position in regard to summons. Action proceedings commence with a summons followed by an exchange of pleadings based on the facts. Various documents are exchanged before the matter is ready to proceed to trial. in terms of an agreement between the two. In later cases, the effect of the Jaftha decision was considered with regard to execution following default judgment in terms of HCR 31(5), as well as execution of immovable property in the High Court in terms of HCR 45. This commission is deducted from the amount paid to the creditor. Chapter VIII provides a procedure whereby a creditor may obtain judgment without the issue of a summons. 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. Both are sui generis remedies. As noted by Sachs J in Coetzee, the small debtor without means will no longer be faced with imprisonment, from which he can only be rescued by family or friends. South Africa. In such a case, this only amounts to final judgment if the plaintiff does not then apply for leave to amend his papers. [106], With regard to the previous rule, it was held that the onus of demonstrating that the applicant was in wilful default rested on the respondent: "Whether this is still the case appears to be moot. In this instance, the court orders the judgment debtor's employer to make regular monthly deductions from the debtor's salary, and to pay them to the judgment creditor. The plaintiff is only entitled to costs up to that point. If it is apparent from the evidence that, after receipt of the notice to appear in court in terms of section 65A(1), the judgment debtor made a written offer to pay the judgment debt in instalments or otherwise, or that the debtor is able to pay the debt in reasonable instalments, the court may order him to pay the judgment debt and costs in specified instalments, and may also authorise the issuing of an emoluments attachment order. [54][61] When faced with a request, a magistrate or clerk can do one of the following:[62][63]. %PDF-1.5 s5�5$��La9�"{\�*V;��g?����D��+��tY5��Nl��?��.5��Z��;�x2�r��mAeAvN�&"�>k;��_�p����r�tl�V=T��g"���@5�¼a ��� =6$i����&F%H�J��L�},�eYs�ȣZ�$����V�B��h��=Y��sF�c�xț�Z�W��h�]��FT�Sn%��&ɧP3YΥ+�@��n�T�����F/��tM���. "[106], Generally, then, rescission may not be granted if the defendant, This means that, to show good cause, the defendant in his affidavit must explain the reasons for his absence or default and show the existence of a prima facie defence as well as satisfy the court that his default was not wilful.[107]. endobj In essence, application procedure condenses the action process; the pleadings as well as the evidence are contained in the applications papers which go before the court. The summons is issued at the magistrates or high courts and is served to the defendant by the sheriff of the court. The application may be made by any party, or any person affected thereby. The execution creditor has ten days after the receipt of the notice in which to admit the claim, in which event the execution creditor will not be liable for any costs, fees or expenses afterwards incurred, and the sheriff may withdraw from possession of the property concerned. The applicant will accordingly seek an order on an interim basis, directing that, pending the determination of the application, the vehicle be preserved. "[104], "Good cause" has never been properly defined, but it incorporates both an investigation into the existence of a prima facie defence, and whether or not the defendant was in wilful default. affix one copy of the notice of sale on the notice board of the Magistrate's Court of the district in which the property is situated. The application is lodged with the clerk and delivered personally, or by registered post, to the creditors at least three calendar days before the hearing. As regards delivery of a defective notice of intention to defend, Rule 12(2)(a) sets out the meaning of the term "defective." The pleadings consist of ‘‘printed or written statements’’. The inventory must be annexed to a notice of attachment. The party suing (the applicant) is dominus litis; he chooses the procedure to be used. 25.323.00 South Africans filed for divorce every year according to the latest statistics from Stats South Africa, Therefore, divorces are notorious for bringing out some of the worst squabbling … Where a court simply makes an order of costs against one party in favour of another, this is deemed to be a party-and-party order of costs. Three different forms of warrant are provided for in Annexure 1. In terms of the order, the debtor has an obligation to make regular payments to the administrator. The amended MC rules only make provision for exception on the first two grounds. What remains is the inquiry into the financial status of the debtor and the possibility of orders being made as a result of that inquiry. The court permits examination or cross-examination of the judgment debtor in relation to all matters affecting his financial position and his ability to pay the judgment debt and costs, and also in relation to his failure to do so. Therefore, even in circumstances where property has been sold by the debtor to a third party, but ownership has not yet been transferred, because delivery has not yet taken place, the property will still be subject to attachment. Any person obstructing the sheriff in the carrying out of his duties is guilty of an offence. This must be done ten days before the sale. It is often useful to approach an affidavit in the same way as one would approach the oral evidence of a witness testifying to the facts. The summons must appoint a day, not less than ten days after the service of the summons, on which the defendant is required to appear in court. It would also appear that there is no prerequisite at common law that the creditor should wait a reasonable time after judgment before issuing a writ so as to give the debtor an opportunity to satisfy the judgment. the premier of the eastern cape . When postponing the proceedings, the court informs the judgment debtor or the director or officer in question of the provisions of section 65E(1)(c), and may order the judgment debtor, etc., to produce such documents as the court may specify at the hearing on the date determined by the court. An attachment over movables is valid for four months, calculated from the date of attachment. If the rescission or variation is sought on the ground that the judgment is void ab origine, or was obtained by fraud or mistake, rule 49(8) provides that the application must be served and filed within one year after the applicant first had knowledge of such voidness, fraud or mistake. Only copies that are true in all material respects are to be attached to the summons; one need not attach the original of the liquid document on which the claim is founded. A court will not permit a respondent to defeat the applicant's application by a mere denial in general terms. The sources of civil procedure in South Africa are to be found in the Magistrates' Courts Act[2] and Rules,[3] the Superior Courts Act (which repealed and replaced the Supreme Court Act), the Uniform Rules of Court,[4] jurisprudence, court practice rules and other legislation. While the issues will have been resolved, to a large extent, prior to the close of pleadings, it may be possible to reach consensus on some further issues that were placed in dispute before the close of pleadings or were not dealt with in the pleadings. [102], Apart from applications for the rescission of default judgments, the procedure by means of which a party will make an application for the rescission or variation of a judgment in the Magistrates' Courts is set out in rule 49(7), which requires that such applications be. The person bringing the lawsuit (the plaintiff) has the responsibility to prepare a summons, which is then issued by the court. In practice, Form 2 is adapted for this purpose by reflecting on it both the applicant and the respondent, and by addressing it to both the Registrar and the respondent. Application procedure is therefore reserved for matters in which the court can reach a decision on the documents before it, without resorting to the oral evidence of witnesses because the parties do not dispute the material facts of the case. It may happen, however, that the debtor is recalcitrant and unwilling to comply with a judgment. For this reason, the test is not as stringent as when final relief is sought; in fact, it favours the applicant. Whenever any debtor to whom an emoluments order relates leaves the service of the garnishee before the debt has been paid in full, and becomes self-employed or is employed by someone else, he is, pending the service of the emoluments order upon his new employer, again obliged to comply with the order made by the court in terms of section 65J(1)(a) or (b), which provides in essence that he must pay the debt and costs in specific instalments as set out in the order. Execution will take place first against the debtor's movables, and only thereafter against any immovable property. Petitions were abolished by the Petition Proceedings Replacement Act. It may be corrected or reversed at a later stage, and is invariably granted pendente lite. [10] It is therefore an enquiry into substantive law, assisting in the determination of the appropriate civil procedure to be followed. If the factual dispute is extensive or complicated, the court may refer the matter to trial. [37], Action proceedings are heard in so-called "trial court". As a general rule, the simple summons is used where the claim is for a debt or a liquidated demand. If the defendant disputes the validity of the liquid document, by denying the authenticity of the signature or the agent's signature or authority, or by averring that a simple condition must be fulfilled before payment can take place, the onus lies with the plaintiff to prove, on a balance of probabilities, the validity of the document or the fulfilment of the simple condition. This effectively means that conclusions of fact are pleaded. Each party is responsible to its own attorney for payment of the attorney's fees, and for payment of monies disbursed by the attorney on behalf of the client, including the fees of any advocate who may have been briefed in the matter—irrespective of whether the client won or lost the case. It serves to inform the court and the respondent that a specific type of application will be made on a specified date, at a specified time at a specified court, and that the legal relief mentioned therein will be requested. The reason why a defendant enters into the principal case is normally that the defendant will enjoy the benefit of being able to lead oral evidence without the limitations imposed by a provisional-sentence proceeding, as well as the benefit of cross-examining the plaintiff's witnesses, which benefit is not available in a provisional-sentence proceeding. This page was last edited on 9 January 2021, at 06:09. In such a case, it will be necessary to distinguish between a judgment in terms of which the court orders the judgment debtor to perform some act, known as a judgment ad factum praestandum, and a judgment which orders the judgment debtor to pay a sum of money, known as a judgment ad pecuniam solvendam (like an order to pay damages arising out of a delict). A photocopy of each of the published notices must be furnished to the sheriff as proof of publication. If it appears to the court that there is a debt due to the judgment debtor which may be attached in terms of section 72, the court may authorise the attachment of that debt in terms of that section. Annual report for the period 1 July. [96] If a plaintiff in whose favour a default judgment has been granted has agreed in writing that the judgment be rescinded or varied, a court must rescind or vary such judgment on application by any person affected by it. In practice, it is usual for an attorney to assist the debtor in preparing the application. A costs-reserved order entails that the issue of which of the parties is to pay the costs of a particular procedure will be decided at a later stage, usually at the end of the matter, when the court can adjudicate the issue in the light of everything that has occurred in course of the proceedings. Only admissible evidence should be contained in the affidavit. the date of the judgment or the date of the expiry of the period of suspension under section 48(e) of the Act, as the case may be; that the judgment or order has remained unsatisfied for a period of ten days from the date on which it was given or became payable, or from the expiry of the period of suspension in terms of section 48(e); in what respect the judgment debtor has failed to comply with the judgment or order referred to in section 65A(1) of the Act, the amount in arrears and outstanding balance on the date on which the notice is issued; that the judgment debtor has been advised by registered letter of the terms of the judgment, or of the expiry of the period of suspension under section 48(e) of the Act, as the case may be, and of the consequences of his failure to satisfy the judgment, and that a period of ten days has elapsed since the date on which the letter was posted; and. Judgments may be varied in two ways in the High Courts: The High Courts have authority at common law to "supplement, clarify or correct" their own judgments. Such property may take the form of a lease, a bill of exchange, a promissory note, a bond or other security for the payment of money. It may. It must indicate the date of judgment or order, as well as the amount of the judgment and the balance of the capital, interest, costs and collection fees which the defendant has undertaken to pay in terms of section 57(1)(c), and which remains due on the date of issue or reissue of the notice. In this article we will discuss what a partnership is, how it works and what the implications are. Such an order is deemed to be an order for the purpose of launching the following procedures: The debtor may be summoned to appear before the court if the judgment or order has not been complied with for a period of ten days from. Defending a claim: The defendant may settle the plaintiff’s claim. Although the general rule requires that notice of an application be given to the respondent, there may be exceptional circumstances where notice will thwart the object of the application. A person may seek to set aside the judgment because he is materially affected by it. The original court may not revisit the matter; it is functus officio. The clerk must, in accordance with the Act, assist an illiterate debtor in preparing the application. 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. The latter tariff is divided into the following parts: In the Magistrate's Court, costs and fees are provided for by sections 80 and 81 of the Magistrates' Courts Act, MCR 33, 34 and 35, as well as the scale of costs and fees contained in Tables A and B of Annexure 2 of the MCRs. It is speedy because it allows the plaintiff's claim to be adjudicated upon before trial, and because it accelerates the process of granting judgment (although the judgment at this early stage is merely provisional). The true basis for the application is that the debtor is unable to pay his debts as they become due. If the sheriff is of the opinion that the items are worth more than R3,000, the sheriff will require the creditor to publish the notice of sale in a local newspaper. Rule 49(2) provides that an applicant is presumed to have had knowledge of the default judgment ten days after the date on which it was granted, unless the applicant proves otherwise. Matters in the High Court are presided over by judges under the leadership of the Judge President. The grounds on which it is stated that the court has jurisdiction in terms of the Divorce Act 70 of 1979. Where a defence is on the merits, the defendant files a plea; where the defence is on a technicality, the defendant either files an exception or an application to strike out. It sets out the basis of the exception, as exactly which aspect of the summons that the exception is levelled against as well as the grounds for the exception. <> This official undertakes such administrative duties as issuing summonses, receiving pleadings, compiling court rolls and keeping records,[4] and also has the task of noting judgments in certain matters. Further, creditors will no longer be able to extend credit on the basis that the debt can be exacted through fear of imprisonment. 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. Once the summons has been issued by the registrar or clerk of the court, it may be served. The Civil Practice of the Magistrates’ Courts in South Africa 9th ed by Erasmus and Van Loggerenberg (Juta & … The South African court system comprises the lower courts, including indigenous courts, and other judicial and quasi-judicial bodies established by legislation; the superior courts, which the Superior Courts Act defines as the Constitutional Court, the Supreme Court of Appeal, and the High Courts;[4] and special courts such as the Small Claims Court, the Labour Court, the Competition Appeal Court, the Tax Courts, the Land Claims Court, and the Electoral Court. Service of court process is undertaken by the sheriff. all registered holders of bonds (other than the execution creditor) registered against the property attached; the occupier of the property, if the property is in the occupation of some person other than the owner; and. in claims for the delivery of specified movable property; and. See In terms of rule 4B, the letter must contain particulars of the nature and amount of the claim. 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. [88] Rescission of a judgment is in issue not only in cases in which default judgment has been granted, but also in cases in which application is made for the rescission of a summary judgment,[89][90][91] as well as in cases in which judgment has been granted in the absence of a defendant in terms of rule 60(3), where the defendant has not supplied further particulars requested of him. For this reason, it is important that an attorney keep meticulous records on the client’s file of all work done. Although data on assistance provided through the African Renaissance and International Cooperation Fund (ARF), one of South Africa’s foreign aid programs, is available, it does not give an accurate pictur… A notice of Set Down in Word Format. The plea is generally delivered within twenty days after delivery of the notice of intention to defend. No such rule exists in the High Court, and Rule 16 has now also been replaced by Rule 15, which refers to a declaration. application (or motion) proceedings, which are launched by means of notice of motion. If it appears that the judgment debtor's total debts do not exceed R50,000, the court may grant the administration order in respect of his estate, and stay further proceedings, but may grant the judgment creditor the costs already incurred in connection with such proceedings. 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