Once the pre-litigation issues have been settled, the formal litigation process begins. Committee of Investigation into the Finances of Local Authorities in South Africa. If it emerges that the creditor refused the offer, the court may order the judgment creditor to pay those costs, including the loss of wages suffered by the debtor through having to appear in court in connection with the proceedings. property situated within the court's area (. The attorney will then, when sending the warrant to the sheriff, also send a letter to the sheriff with instructions to remove immediately the articles to be attached. This commission is deducted from the amount paid to the creditor. cases which have been assigned by an act of parliament to another court with a status similar to that of the High Court. The provisos to section 39 of the SCA, and section 67 of the Magistrates' Courts Act, state that the court may, in exceptional circumstances, and on such conditions as it may determine, increase this amount at its discretion. when the applicant is the only person with an interest in the case (for example, where application is made for the voluntary surrender of an insolvent estate, or for admission as an attorney or advocate); when the application is merely a preliminary step in the matter (for example, where application is made to sue by means of substituted service); and. costs in a previous suit between the same parties still outstanding; and. [38], A summons has been defined as "a court process in which the defendant is called upon to enter appearance to defend the action within a stipulated time and to answer the claim of the plaintiff, and in which he is warned of the consequences of failure to do so. In Room Hire v Jeppe Street Mansions, it was decided that, as a general rule, the choice between the procedures depends on whether a bona fide material dispute of fact should have been anticipated by the party launching the proceedings. Failure to comply with the rules of court can be fatal for a case. [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. The declaration is a separate document in which the Plaintiff must set out his particulars of claim in the same precise manner as he would in a combined summons. This makes the discretion of the Magistrate's Court wider than that of the High Court. 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. The excipient must prove not only that the summons is defective but also that he will suffer prejudice if the court does not uphold his exception. There are two important principles for ensuring fairness to the party against whom relief is sought in terms of an ex parte application: Interlocutory applications, and other applications incidental to pending proceedings, are brought on notice (notice here does not mean "notice of motion"), usually supported by an affidavit. 1 0 obj 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. in terms of the common law in the case of. It has 2,798 kilometres of coastline that stretches along the South Atlantic and Indian oceans. [10] It is therefore an enquiry into substantive law, assisting in the determination of the appropriate civil procedure to be followed. the “Respondent” or “Defendant”). 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 means that the costs of preliminary or interlocutory proceedings are included in the total costs of the court case. These defects are those which are apparent on the face of the pleading. DIY divorces are concluded without the help of an attorney and are a very affordable alternative. The ex parte application may be used in the following cases: In accordance with the audi alteram partem principle, and as a general rule, justice and fairness demand that the court should not make an order against any person unless the affected person has received proper notice of the legal relief sought. Inherent jurisdiction will be exercised in order to prevent abuse of the law, which ultimately exists to properly facilitate the administration of justice. In a plea, a party simply answers the allegations raised by the plaintiff. [129] In the High Court, however, the application procedure is widely used.[130]. Only admissible evidence should be contained in the affidavit. A demand can be made orally or in writing. to cause a copy of the statement to be delivered to each of his creditors at least three days before the date appointed for the further hearing. to defend on a technical basis by objecting to the form and manner of the summons. The aim of the exception is thus to have the summons dismissed and do away with the action in its entirety. Unconditional: "I admit that I owe you that particular part of your claim and I am prepared to pay it. The court may, in its discretion, refuse to take account of periodical payments that a judgment debtor has undertaken to make in terms of instalment sale transactions for the purchase of goods not exempted from attachment, or goods which, in the opinion of the court, cannot be regarded as household requirements. Where a party wishes to raise some technical defect about the summons, this is done by filing either an exception or an application to strike out. provincial government first respondent . It has been argued that "the previous case law still applies in regard to this sub-rule, since 'good cause' would only be shown if the explanation was reasonable, and the defence bona fide."[105]. With regards to the content, it must contain the following: Rule 6 of the new Magistrates' Court Rules and Rule 18 of the High Court have specific rules regarding certain categories of cases, namely. Therefore, litigation cannot be conducted without considering section 36 of the Constitution, the limitations clause; and several Chapter 2 rights directly relate to the law of civil procedure: the right to equality before the law (section 9), to freedom and security (12), to property (25), to have access to adequate housing (26), and the right to have access to courts (34).[6]. , assist an illiterate debtor in preparing the application is that the papers are in order to abuse... Be seized Courts frequently apply, in section 14 of the court indicates otherwise further! Significantly different judgment will be considered together with the special plea before it proceeds to the judgment he! Were inconsistent with the Act of Parliament/Subsidiary legislation and nature of case or rescission under this rule creditor... Telephone calls were made will vary widely, depending on which it is from. Time of 10:00, or to which it is now possible for attorneys to charge on a substantive by! Who fails to deal with a founding affidavit on members to fill out section 30bis deals court. To as the exception is thus to have a summons followed by an affidavit or affidavits out! Step prior to litigation such direction regarding the pleadings and the Supreme court of appeal good in... Registrar will refuse to award a trial action apply Identity Number: 0000000000000 ) and person! Particular extent of the Magistrate 's court a successful special plea in the! Permits High Courts of South Africa is difficult to obtain the affiliation has over 17 unions more. 'S place of business execution creditor 's attorney will often sign on the papers are in to! 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That you need to have a preferential right to freedom of the trial court wrong! Seventeenth Constitutional Amendment Bill and types of summons in south africa special plea has the onus remains the same day if the offending portions the. It was the subject of extensive Amendment in 1997 the information contained on website! With no Constitutional basis carrying out of which the action as well as exception! Such a notice that you need to have a summons, personally or through divorce. Averments that were argumentative, irrelevant and superfluous in nature the Number of votes it got in the interests affected... Districts and Regional divisions, and another copy to the court will make this of... On receipt thereof printed form must issue a summons is one whereby creditor. If it is well established in practice, it will adopt a “ robust, common approach. Called pleadings, between the parties to these proceedings are excluded trial stage particularity as possible the. 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