STUDY UNIT 1 - THE FORMS OF PROCEEDINGS

Abel sells his farm to Jafta for R500 000. Jafta takes occupation of the farm and begins to farm.
Despite a reminder, he refuses to make any payments for the purchase price of the farm in terms
of the contract of sale. Jafta alleges that the farmhouse is derelict and the borehole is not as
strong as he thought, which means that he will not be able to irrigate as much land as he planned
to. Abel wants to cancel the sale and take possession of his farm again. The question now is which
form of proceedings Abel ought to use to achieve the desired relief.

(1) What is the nature of the dispute which arose between Jafta and Abel?
There was a dispute in law between the parties. (``Nature'' refers to the type of dispute, ie a
dispute in law or a factual dispute.)

(2) What is the reason for your answer?

Abel wants to cancel the contract owing to Jafta's behaviour. The question whether Abel has
grounds for cancellation is clearly a question of law.

(3) Would your answer to questions (1) and (2) above have differed if the dispute between the
two parties had been about whether there was a legal contract between them? Substantiate
your answer.
Yes, the answers would have differed. In this case, the dispute is factual in nature: the one
party would make a number of factual allegations which would indicate that there had
indeed been an agreement (eg that it had been agreed that Rx would be the price for the
specific farm and that the parties had wanted to purchase and sell the farm) while the other
party would deny some or all of these allegations. The facts of the case are therefore in
dispute. Since the dispute is about the essentialia (see your course on the law of contract)
of a contract of purchase, the dispute is not simply superficial, but concerns the actual facts.
The true state of affairs can be established only on hearing the oral evidence and testing it.
(In practice, depending on the facts of a case, there may also be a legal dispute if there is
evidence of cancellation. However, when deciding on the appropriate proceedings, the
question remains whether oral evidence is necessary or not.)

(4) With reference to the set of facts, which type of proceedings would be appropriate in the
light of the above questions? Substantiate your answer.
Application proceedings. We are dealing with a legal dispute and not with a genuine dispute
of facts. Consequently, the dispute may be decided simply on the basis of the documents
before the court.

See pg 4
Question 4

STUDY UNIT 2 - THE CONDUCT OF APPLICATION PROCEEDINGS

Sandra has passed her attorney's admission examination and her contract as a candidate attorney
expires soon. She would like to be admitted as an attorney and must approach the court with an
application to be admitted. Sandra's principal advises her to draw up the application herself, and
she must decide which type of application is the correct one.

On his divorce from his wife, Theresa, Paul was awarded custody of their minor child. As agreed,
Theresa takes the child on holiday but at the end of the holiday she refuses to return the child to
Paul. Paul is very worried about the child's welfare and school attendance, and approaches the
court for an order to have the child removed from Theresa's possession and care and be returned
to him. You are the candidate attorney with whom Paul is consulting. Paul wants to know what
legal procedure can be used in these circumstances and also how soon he can expect the relief he
seeks.

(1) Indicate what factors must be considered in determining the correct type of application to be
used.
they are determined by the ff questions:
1. are proceedings being instituted or is the application related to existing proceedings (ie
proceedings which have already been instituted)?
2. whose rights or interests are affected by this application?

(2) In the light of these factors, what type of application must Sandra lodge?
An Ex parte application: the above questions should have indicated that (independent)
proceedings will be instituted and that the interests and rights of no-one other than Sandra
will be affected by the application. Therefore, she is not obliged to give notice of the
application to anyone else.

(3) What documents comprise this application?

Rule 6(1) determines that an application consists of a notice of motion, supported by an
affidavit containing the facts on which the application rests.
(4) Name the official to whom the documents identified in (3) above must be addressed?(1)

The registrar of the court.

(5) Set out the information that must be contained in the documents identified in (3) above.(3)

(1) Advise Paul on the type of application which must be used in his case.
The ``ordinary'' application will be used since Theresa must be given notice of the
application in order to have the opportunity to put her side of the story.

(2) Advise Paul on the steps which must be followed to ensure that the case is served more
quickly than usual before the court.
This application can be brought before the court as a matter of urgency in terms of Rule
6(12). The application will be the same as any other application, except that it will be
accompanied by a certificate of urgency, and the notice of motion will show that the court is
asked for leave to deviate from the prescribed forms of service and that the application be
dealt with as an urgent application.

C and D are neighbours. D runs a shabeen from this home. Because of the noise and loud
music, C and his family have little privacy and are unable to sleep at night. C confronts D
about the problem. However, D refuses to reduce the noise levels. In order to pursue his
rights, C brings an application against D. With these facts in mind, answer the following
questions.
(a) Discuss whether C would bring an ordinary or an interlocutory application. (4)
C would bring an ordinary application since D must be given notice of the application in order to
have a chance to respond or to give his or her version of the story. An interlocutory
application is used in respect of matters related to proceedings which have already been instituted.
This is the case in respect of summons proceedings and the interlocutory application is
therefore not relevant in this instance

(b) Name the document that must be used to commence the proceedings. (1)
A notice of motion supported by an affidavit containing the facts on which the application rests
must be used to commence the proceedings

Explain the circumstances in which an ordinary application may be used.

There is no real dispute over any fundamental question of fact or (2) if there is such a dispute, it can
nevertheless be satisfactorily decided without the necessity of oral evidence. Consequently, the
dispute may be decided simply on the basis of the documents before the court.
Urgent application. This application can be brought before the court as a matter of urgency in terms
of Rule 6(12). The application will be the same as any other application, except that it will be
accompanied by a certificate of urgency, and the notice of motion will show that the court is asked
for leave to deviate from the prescribed forms of service and that the application be dealt with as an
urgent application.

Notice of Motion….

Supporting Affidavit containing the facts on which the application rests.

(1) The supporting affidavit of the applicant, which is attached to the notice of motion.
(2) The answering affidavit by the respondent in terms of Rule 6(5)(d)(ii). In this affidavit, the
respondent, supported in so far as may be necessary by other affidavits, deals paragraph by
paragraph with the allegations and evidence contained in the supporting affidavit
(3) The replying affidavit by the applicant in terms of Rule 6(5)(e), in which the applicant deals
paragraph by paragraph, in so far as may be necessary, with the allegations and evidence contained
in the respondent's answering affidavit.

Where a genuine dispute of fact arises which cannot be settled without the hearing of viva voce
evidence, the court hearing the motion proceedings may
(1) dismiss the application (although this happens very seldom, if ever, in practice) (see Rule 6(5)(g))
(2) order oral evidence to be heard on specified issues (see Rule 6(5)(g))
(3) order the parties to trial with appropriate directions as to pleadings, the definition of issues, et
cetera (see Rule 6(5)(g))

Urgent Application should be used. This application can be brought before the court as a matter of
urgency in terms of Rule 6(12). The application will be the same as any other application, except that
it will be accompanied by a certificate of urgency, and the notice of motion will show that the court
is asked for leave to deviate from the prescribed forms of service and that the application be
dealt with as an urgent application.
Notice of Motion and Supporting Affidavit

The general rule is that in all application proceedings which are opposed, the papers will be
restricted to the following three sets of affidavits:
(1) The supporting affidavit of the applicant, which is attached to the notice of motion.
(2) The answering affidavit by the respondent in terms of Rule 6(5)(d)(ii). In this affidavit, the
respondent, supported in so far as may be necessary by other affidavits, deals paragraph by
paragraph with the allegations and evidence contained in the supporting affidavit.
(3) The replying affidavit by the applicant in terms of Rule 6(5)(e), in which the applicant deals
paragraph by paragraph, in so far as may be necessary, with the allegations and evidence
contained in the respondent's answering affidavit.

(1) Does legislation or the Uniform Rules of Court prescribe whether the application procedure
must be used? Examples include:
applications for liquidation of companies (s 346 of the Companies Act of 1973) and
for sequestration of estates as well as the revision thereof (Rule 53 of the Uniform Rules of Court),
applications in respect of marital matters (Rule 43 of the Uniform Rules of Court) and
applications for the appointment of curators ad litem (Rule 57 of the Uniform Rules of Court).

(2) Is it compulsory to use summons proceedings? Examples of instances where it is include

divorce proceedings and unliquidated claims for damages, compensation or enrichment.

(3) Does the matter fall neither within the ambit of (1) or (2) above?
In cases where application proceedings are neither prescribed or forbidden the following principle is
applied: An application by means of notification of motion may be made if :
(1) there is no real dispute over any fundamental question of fact or
(2) if there is such a dispute, it can nevertheless be satisfactorily decided without the necessity of
oral evidence.

interlocutory application must be clearly distinguished from a notice of motion procedure. A notice
of motion is used to institute an action, and notice to other person or persons, is necessary. An
interlocutary application on the other hand, is used where proceedings have already been instituted
and such application is related to these proceedings. An example of an interlocutary application is
where a party is compelled to discover in terms of rule 35(7).

this form of application is an exception to the general rule. It is used only in the following
exceptional circumstances:
(1) When the applicant is the only person who is interested or affected by the relief sought, for
example an application for admission as a sworn translator.
(2) Where the relief sought is a preliminary step in the proceedings, for example an application to
sue by edictal citation or to attach property ad fundandam jurisdictionem.
(3) Where this procedure (ie an ex parte application) has been laid down by Act of Parliament or the
Uniform Rules of Court.
(4) Where, though other persons may be affected by the order sought, immediate relief is essential
because a delay could be dangerous, or because, if notice were given to the person affected, such
notice would in fact precipitate the very harm which the application is endeavouring to prevent, for
example an application for an urgent interdict.
(5) In certain circumstances, although other parties may be affected by the order, a court will grant
an order without notice to the respondents where the latter are so numerous that it would be highly
inconvenient, very expensive and time-consuming to serve the application on them all.

Are all ex parte applications in the magistrates court necessarily urgent applications, discuss
briefly (5)

(iv) Interlocutory Applications

(1) The supporting affidavit of the applicant, which is attached to the notice of motion.
(2) The answering affidavit by the respondent in terms of Rule 6(5)(d)(ii). In this affidavit, the
respondent, supported in so far as may be necessary by other affidavits, deals paragraph by
paragraph with the allegations and evidence contained in the supporting affidavit
(3) The replying affidavit by the applicant in terms of Rule 6(5)(e), in which the applicant deals
paragraph by paragraph, in so far as may be necessary, with the allegations and evidence contained
in the respondent's answering affidavit.
Motion to strike out.

Ex Parte application. Pg 10

See above

Notice of the proceedings must be given to C. Ex Parte applications are used only if it is unnecessary
to notify another party of the proceedings.

C must give ZY written notice of his intention to oppose, within the dies induciae stated in the notice
of motion.

C may apply to have the offending matter struck out. Such application is brought by means of notice
of motion, upon proper notice to the other side (see Rule 6(15)).

STUDY UNIT 3 - THE CONDUCT OF SUMMONS PROCEEDINGS

Pg 19

STUDY UNIT 4 - THE PARTIES TO LITIGATION

A Pegasus Airlines plane takes off from Durban airport with 450 passengers on board. A hundred
sea miles east of Durban, the plane crashes into the Indian Ocean. After analysing the flight
recorder, it is clear that the cause of the accident was due to Pegasus's failure to maintain the
plane adequately. Approximately 200 of the deceased have dependants who are now in financial
difficulty. These dependants hold Pegasus liable for their situation. Pegasus faces the possibility of
receiving hundreds of individual claims, and each of these hundreds of potential plaintiffs will have
to prove basically the same claim. What practical solution is there to save costs and time?

(1) Imagine that 234 plaintiffs, each of whom has a legally valid claim, get together because they
do not want to institute individual claims against Pegasus for financial reasons. They seek a
solution for their dilemma. Advise these potential plaintiffs on possible actions which save time
and money.
(1) In terms of Rule 10, the 243 plaintiffs may voluntarily join as plaintiffs, since each of them
has a claim against Pegasus (the same defendant) and each of them (ie one or more) would
be entitled to institute a separate action against Pegasus. In addition, the action would
depend on the same legal or factual question (each person is a dependant of one of the
deceased and each one's damage is the result of negligence on the part of Pegasus.)

(2) Would other plaintiffs who are not part of this group of 243 people, be able to join in the action
which has already been instituted? Explain
(2) Yes: Rule 12 provides that a person may join as plaintiff to an action. Where, in terms of
Rule 12, a person is entitled to joinder, he or she may apply for leave to join as plaintiff.
However, such an applicant will have to show the court that he or she has a bona fide case
and that his or her application is made seriously.

(3) You are the attorney for the plaintiffs mentioned in (2) above. During the court proceedings,
the attorney for Pegasus argues that you do not have a mandate to act for the plaintiffs.
What should you do now?
(3) Answer the question yourself with the help of Rule 7(1).

Ace Bank is liquidated due to fraud perpetrated by its directors. A total of 234 plaintiffs, each with
a valid claim, come together because they cannot afford to institute individual claims against Ace
Bank. Bearing these facts in mind, advise these potential plaintiffs on how they can institute action
against Ace Bank (in liquidation). (6)

This large number of plaintiffs can be voluntarily joined as plaintiffs. The requirements laid down by
the rules of court are that each person should have a claim, against the same defendant and one or
more plaintiffs must be entitled to institute a separate action. The claim must depend on
substantially the same question of law or fact and this question must arise in each potential separate
action. (Joinder can also occur conditionally, in other words, if an action of any other plaintiff fails.)

Write short notes on the following:

 1. Locus standi in iudicio.(4)

In order to institute an action, the plaintiff must have a vested interest in the subject-matter of the
action and must also have locus standi in iudicio (in other words, he or she must have full legal
capacity to litigate without assistance). Persons without the legal capacity to act as litigants, can
indeed act as litigants with the necessary support. Typically, those who do not have locus standi are
minors, insolvents and those who are under curatorships (ie majors who are incapable of managing
their own affairs). The legal capacity of these people is augmented by the necessary support of a
parent and natural guardian or a curator (curator bonis or curator ad litem, depending on the
circumstances) respectively.
2. What is understood by in forma pauperis proceedings.(2)
a procedure in terms of which indigent persons may obtain free legal aid by
approaching the Registrar, after which legal representatives are appointed.
3. Explain what a power of attorney is and discuss the scope of its application.(6)

4. Discuss representation by power of attorney, including when a power of

attorney is necessary and why a power of attorney is drawn up. (10)
Page 23

5. Explain the purpose of the third party procedure contained in Rule 13 of

the Uniform Rules of Court. (3)
pg 26

STUDY UNIT 5 - SERVICE OF SUMMONS

D is about to serve a summons on E. A tracing agent has established E's address. Since E
merely has short-term lease on the property, he does not have a telephone. However, D
has been lucky enough to come across E's cell phone number. She phones the number
and introduces herself as an agent for the cell phone network provider. In this way she
discovers that E does not live at his given address and that he intends moving to the Free
State where he plans to drive from flea market to flea market, doing business in this way.
He has no idea where he will be taking up residence. D's claim is in danger of becoming
prescribed and hence the summons must be served as soon as possible. The question is:
in what way should D go about serving the summons?

(1) Simply identify the appropriate form of service.

Substituted service.

(2) Give reasons for your answer in (1) above.

E is within the Republic, but personal service will not succeed since his exact whereabouts
are uncertain.

(3) What is the essential difference between substituted service and edictal citation?(4)
In the case of substituted service, the defendant is within the borders of the Republic, but
his or her exact whereabouts are unknown. In contrast to this, the edictal citation is used
where the defendant is outside the borders of the Republic, even if his or her whereabouts
overseas are known.
(4) In what way does service ensure that the audi alteram partem maxim is acknowledged? (2)
The maxim means that the other party to the litigation must be heard before an order can be
granted against such person. The purpose of service is that this party is given notice that an
action is being instituted against him or her. In this way, he or she will be able to defend
himself or herself against the action (ie he or she will be heard).

Abe and Mary were married for four years. They lived in Johannesburg,
Gauteng. Abe abandons Mary and goes to work in Botswana. Mary has no
contact with Abe, and she decides to divorce him after a year. She only has
his last known work address. On the basis of these facts, answer the following
questions.
(i) What form of service is necessary to serve the summons on Abe? (1)
The form of service is edictal citation which is used where the defendant is outside the borders of
the Republic, even if his/her whereabouts overseas are known.

(ii) What form of service is necessary to serve the summons on Abe if he is at an unknown address
in South Africa? (1)
The form of service is substituted service. In the case of substituted service, the defendant is within
the borders of the Republic, but his/her exact whereabouts are unknown.

(iii) In what way does service ensure that the audi alteram partem maxim is acknowledged?(2)
…..

Three methods by which normal service can be effected:

1. Service must, if possible, be personal (see Rule 4(1)(a)(i)).
2. If personal service cannot be effected, the summons may be served at the defendant's place
of residence or business by leaving a copy thereof with the person apparently in charge of
the premises. The latter must be a person apparently not less than 16 years of age (see Rule
4(1)(a)(ii)).
3. Service may be effected at the defendant's place of employment (see Rule 4(1)(a)(iii)).
4. Service on a company may be effected by service on a responsible employee at the
company's registered office or at its principal place of business within the court's
jurisdiction, or, if the foregoing is not possible, by affixing a copy to the main door of such
office or place of business (see Rule 4(1)(a)(v)).

(b) Explain substituted service. (6)

Where a person is believed to be within the Republic, but service cannot be effected on him or
her in terms of the Rules of Court because it is not known precisely where such person is to be
found, an application may be made to the High Court for leave to sue by substituted service, and
the court will then give directions as to how such service is to be effected.
Since this type of service deviates from the normal method of service provided for in the Rules, an
application to court must be made on notice of motion seeking the court's permission to serve
the summons by means of substituted service, and requesting the court to give directions as to
how the summons must be served. An abbreviated summons must accompany the application
for consideration thereof by the court. On hearing the application, and on being satisfied that it is
a proper case for substituted service, the court will give directions as to how service is to be
effected, for example by registered post, by service on a relative, by publication in the
Government Gazette, or by any combination of these methods.
(ii) Describe the procedure that you would use to serve the summons (substituted service) (5)

STUDY UNIT 6 - THE ILLIQUID SUMMONS

X and Z take early retirement and decide to build a smaller house. Z, however, still appears
regularly in advertising slots on television and at the cinema, to supplement his pension. Z
concludes a contract with Y, in terms of which Y agrees to build a house for R3 000 per
square metre. According to the architect's plan which is in an annexure to the contract and
which was initialed by both parties, the total surface of the planned house is 280 square
metres. Unfortunately, the building does not go well and there is a dispute over the
contract price which must be paid. Z alleges that Y delivered poor workmanship and that
he is entitled to far less money than was agreed to in the contract. While Z and his attorney
are inspecting the site, Z falls down a shaft which Y's workers have negligently failed to
secure. Z lands up in hospital. Apart from suffering expensive hospital costs, he will no
longer be able to appear in advertising slots because of the injuries to his face. Now Z and
Y plan to sue each other. The question is: what kind of a summons will each have to
issue?

(1) What single factor will determine which summons Y and Z will issue respectively?
The nature of the claim (ie the type of claim).

(2) Y sues Z for the payment of the contract price. What type of summons should Y use? Give
reasons for your answer?
The simple summons because the nature of the claim is a ``debt'' or it is ``liquidated''. The
reason for this is that the contract price (ie the monetary value of the claim) can be
established by means of an ordinary mathematical calculation. (Remember, the surface of
the house was given and the building cost was calculated at a specific amount per square
metre. In addition, the parties agreed to this.)

(3) Z sues Y for damages which he sustained during his fall. What type of summons should Z
use? Give reasons for your answer.
The combined summons because the nature of the claim is unliquidated. The reason for this
is that damages are determined by the court only after hearing evidence - therefore it can
never be liquidated (unless the parties themselves come to an agreement on the quantum/
monetary value of the claim).

(4) In which one of the abovementioned actions will the need for a declaration arise and in
which circumstances?
When a simple summons has been issued and a notice of intention to defend has been filed by the
defendant the plaintiff's next step is to respond with a declaration.

Determine whether a combined summons is a process or a pleading (2)

It is a combination of the two, as the summons is a process (it simply represents a
step in the action), while the particulars of claim is a pleading (it contains an adequate
statement of the claim to which the defendant must answer) but these two parts cannot be
separated from each other.

C and D conclude a contract. D breaches the contract and C wishes to issue summons against D.
With these facts in mind, answer the following questions, giving reasons for your answer in each
instance.

(i) What type of summons should C, the plaintiff, issue if the claim is for the repayment of the
contract price of R400 000? (2)
The simple summons. The nature of the claim falls within the definition of a “debt or liquidated
demand”, since it is, inter alia, "fixed' and "definite".

Note: The claim is for repayment of the contract price which is “certain”, “fixed”, etcetera, because the price was agreed upon by the
parties.
(ii) What type of summons(es) could C issue if D paid the contract price by cheque, but D’s cheque
was dishonoured by his bank because of insufficient funds? (4)
The simple summons because a cheque falls within the definition of a “debt or liquidated demand”,
or the provisional sentence summons because a cheque is an example of a liquid document; the
provisional sentence procedure was specifically designed to deal with claims based on a liquid
document.
Note: Please note that Uniform Rule 32(1) sets out the types of claim upon which summary judgment can be founded. Each one of these
types of claim is an example of “a debt or liquidated demand”, and a simple summons is normally used to institute an action in such an
instance. This fact illustrates how various procedures are linked, and in the course of your studies you should constantly note similar links
between other procedures. You cannot study any process or procedure in isolation. Please also note the correct use of terminology! We
frequently come across references to “liquidated document” and “liquid summons”.
(iii) What type of summons should C issue if his claim for damages to the amount of R120 000
arises from D’s breach of contract? (2)
The combined summons. Damages constitute an unliquidated claim, the extent of which will only be
determined or quantified after a court has heard evidence proving the claim and has given a ruling
Note: Damages have to be proved in court by presenting evidence, and until such time it is no more than an estimate.

Q is a landlord and Z is his tenant. Z is in arrears with his rental. Q issues a summons against Z for
ejectment. With these facts in mind, answer the following questions:
(a) Name the summons that Q must issue against Z. (1)
Q must issue a simple summons

(b) Explain why Q must issue this type of summons. (4)

The claim for ejectment falls within the definition of a “debt or liquidated demand”, and
therefore Q should use a simple summons to institute the action. The expression “debt or
liquidated claim” has been interpreted to include a claim for ejectment. The expression
“liquidated debt” has been interpreted as a debt which is admitted or where the monetary value
is capable of being ascertained speedily. The expression “liquidated demand” has been
described to reflect an amount which may be determined by mathematical calculation.
Therefore it is clear that the nature of the claim (debt or liquidated claim) determines whether
a simple summons may be employed

(c) Name the procedure that Z may use if he/she does not want to defend the action
but wishes to dispose of the claim by means of a pre-trial judgment. (1)
Z may consent to judgment in terms of rule 31(1)

(d) Name the procedure that Q may use if Z fails to respond to the summons within the
period of time stated therein. (5)
Q may apply for default judgment
Comment: Default judgment is relevant where the defendant does not timeously give notice of intention to defend. Consult Rule 31
and study unit 12.3 regarding instances where default judgment applies

(e) Name the procedure that Q may use if Z enters a notice of intention. (1)
Q may apply for summary judgment
Comment: The claim for ejectment gives rise to an application for summary judgment. Consult Rule
32(1) regarding other grounds for summary judgment.

(b) Explain what is meant by a debt or liquidated demand.

1. In the case of the old Transvaal Rule 42, the expression was interpreted as ``a claim for a
fixed or definite thing, as, for instance, a claim for transfer or ejectment, for the delivery of
goods, for rendering an account by a partner, for the cancellation of a contract or the like''.
2. The courts have also indicated that the debt is liquidated where it is admitted, or where the
monetary value is capable of being ascertained speedily. Examples in this regard are the
current market price of a particular article which is sold, or the reasonable, accepted
remuneration for the rendering of specific services.
3. In order to be a ``liquidated demand'', the demand must be described in such a way that the
amount thereof may be determined merely by mathematical calculation.
4. What ``ascertained speedily'' embraces is a question of fact, and the courts will thus exercise
their discretion in deciding whether or not a particular claim is capable of being ascertained
speedily.

(c) Name the type of summons that should be used in respect of the following claims:
(i) payment of the contract price; (1)
simple summons
(ii) payment of a cheque that has been marked “return to drawer”;(1)
provisional sentence summons
(iii) divorce; (1)
combined summons
(iv) damages for defamation.(1)
combined summons

(d) Describe the type and form of the summons that must be issued if the claim is for a "debt or
liquidated demand". (2)
Simple summons; form 9

Unit 7 - THE LIQUID SUMMONS (PROVISIONAL SENTENCE SUMMONS)

SS Security Services CC offers a private security service in Scareville. Those who want to make use
of SS's services, must pay a fixed sum to SS monthly. Although some of SS's clients pay this monthly
sum per debit order, others choose to pay it by cheque. Many of the cheques from the last
mentioned clients are received from the bank, marked ``Refer to drawer/insufficient funds''. These
defaulters have a negative effect on SS's cash flow and SS wants to sue them for the arrears.
Obviously, SS wants to get payment as quickly as possible. Peter and Sandra get divorced. In terms
of the deed of settlement, Peter has to pay R250 000 in cash to Sandra, and agrees to do this out of
the proceeds of the sale of their beach house in Hermanus. However, Sandra insists that Peter
signs an acknowledgement of debt for this sum. Peter accepts that he is obliged to pay this sum
and does so. Interest on this amount is also set out in the acknowledgement of debt. Peter fails to
pay the principal debt. Sandra needs this money to buy herself a place to stay. Naturally, she
would like to receive payment as soon as possible.

(1) SS's attorney decides to sue the defaulters by means of a provisional sentence summons. The
attorney's registered candidate attorney who has recently passed Civil Procedure Law, is of the
opinion that it would be more correct to use the simple summons procedure. Which of the two
procedures is the correct one to use under these circumstances? Substantiate your answer.

Both types of summonses can be used: the provisional sentence summons can be used because it is
specifically designed for the institution of an action where the claim is based on a liquid document.
Since the liquid document is evidence of an established monetary debt, the claim that arises also
falls within the definition of a ``debt or liquidated claim'' (see study unit 6.2 above). This means that
in these circumstances, a plaintiff can choose which type of summons will be used. (The fastest,
most effective and cheapest type of summons is a question of fact. In theory, it is the provisional
sentence procedure.)

(2) Why is an admission of debt a liquid document?

It is a document which evidences a definite and established monetary debt. In addition, the
document contains an unconditional admission of debt.

(3) The provisional summons procedure is an enforcement procedure which may be instituted
after hearing prima facie evidence only. What protective mechanism is built in for the defendant
in the procedure?

Although after the granting of sentence, the plaintiff can immediately go to the enforcement
thereof, this can only happen if the plaintiff provides the defendant with the necessary security de
restituendo.

C and D conclude a contract. D commits breach of contract. C wishes to bring an action for breach
of contract and claim damages.

(a) Identify the form of proceedings C must use to approach the court for relief. (1)

the summons procedure

(b) Name the document that will be used to institute the action. (1)

the combined summons

(c) Name and discuss briefly the material documents that C and D would normally exchange in
order to reveal the issues in dispute. (6)
Combined summons: this document consists of a summons part (which is a formal, prescribed
document) and the particulars of claim (which contains the material facts relied upon by the plaintiff
in support of his or her claim).

Plea on the merits: this document contains all material facts relied upon by the defendant in support
of his or her defence.

Replication: this document contains the plaintiff’s answer/reply to the defendant’s plea on the
merits if the defendant raised new averments as to fact in his or her plea.

X purchases a second-hand vehicle from Y and pays the purchase price of R150 000 by cheque. The
cheque is dishonoured by X’s bank. Bear these facts in mind and indicate if the following
procedures are correct or not, and give reasons for your answers. Where necessary, indicate the
correct procedure.

(i) Y issues a combined summons against X, since the claim is for a debt or a liquidated demand. 6)

Although the claim falls within the definition of a “debt or liquidated demand”, it is incorrect to issue
a combined summons. A combined summons is used when the claim is unliquidated. Y should have
issued either a simple summons or a provisional-sentence summons since, on the one hand, a claim
based on a (dishonoured) cheque is an example of a “debt or liquidated demand” (it is also one of
the types of claim on which summary judgment can be given). On the other hand, the provisional-
sentence-summons procedure is specifically designed to accommodate claims based on liquid
documents (eg a cheque).

(ii) Y issues an appropriate summons. X wishes to defend the matter and serves and files his plea
on the merits. (4)

One does not indicate one’s wish to defend a matter by serving and filing a plea on the merits: a
notice of intention to defend is used for this purpose. The latter is only a notice to that effect, and
nothing more. Only after this notice (and within the stated dies induciae) is a plea on the merits
served and filed, detailing in clear terms the grounds of the defendant’s defence in answer to the
plaintiff’s claim.

X and Y, with their toddler, emigrate from Poland to South Africa. After six months X, the husband,
decides to leave South Africa and settles in Namibia. The wife, Y, remains behind and later decides
to institute divorce proceedings. Answer the following questions, giving full reasons for each
answer where appropriate.

(a) Why is it inappropriate for Y to issue a simple summons in this instance? (2)

A simple summons is used when the claim is for a debt or liquidated demand. In the case of a
divorce matter, the claim is unliquidated because the matter influences the status of the parties and
the use of a combined summons would be more appropriate.

(b) In matrimonial actions it is the practice of most courts to insist on personal service. Does this
mean that Y will not be able to sue X for divorce in South Africa? (3)
No. The Uniform Rules of Court specifically provide for the service of documents by way of edictal
citation on a defendant who finds himself or herself outside of the Republic. Such a person cannot
be served in any other manner. It is important to note that leave to use this form of service must be
obtained from the court prior to service on the defendant, and that the court is approached by way
of notice of motion.

(c) If X wishes to claim financial support from Y, may he do so in his plea on the merits? (3)

No. A defendant must admit, deny, or confess and avoid all the material facts of the claim, and must
also fully set out all material facts on which the defence rests. A claim for financial support clearly
does not form part of X’s defence, as it amounts to a counterclaim. Consequently X must set out his
claim in his counterclaim/ claim in reconvention, which must be served on Y together with his plea
on the merits, unless the plaintiff or the court gives consent for its delivery at a later stage (see Rule
24(1)).

(d) Briefly indicate the content of the list that each party must supply the other with, not less than
ten days before the date of the pre-trial conference, as required in Uniform Rule 37(4). (3)

Each party furnishes the other party within the required dies induciae with a list of

• the admissions required;

• the enquiries which he or she will direct and which are not included in a request for particulars of
trial; and

• other matters regarding preparation for trial which will be raised for discussion.

(e) Y is successful in obtaining an order for divorce. Explain whether the court is compelled to
award Y party and party costs. (4)

No: the general principle is that the award of litigation costs are within the discretion of the court.
Although party and party costs are the most general costs awarded, and are normally paid to the
successful party to litigation by the other party, as ordered by the court, this does not mean that the
successful party is automatically entitled to it. In our case Y will therefore not automatically be
entitled to such costs. In exercising its discretion, the court takes into account various circumstances
relating to the conduct of the successful party, such as the nature of the claim, how the litigation
was conducted, procedural correctness and any improper conduct.

(a) Explain the nature and effect of provisional sentence. (6) 0r The provisional summons
procedure is an enforcement procedure which may be used after hearing prima facie evidence
only. Name and discuss the three protective mechanisms built into the procedure for the sake of
the defendant. (6)

(1) The plaintiff is of right entitled to payment, or, failing such payment, to take out a writ of
execution against the defendant's property under security de restituendo. Security de restituendo is
the security which the plaintiff must give for the restitution of the money he has received from the
defendant in terms of the judgment in the event of defendent defending and succeeding in the main
case.
(2) The judgment is provisional, however, in the sense that the defendant may still defend the main
action, but only within two months of the granting of provisional sentence, and then only if he or she
has paid the judgment debt and costs.
(3) A defendant who may and who wishes to enter into the principal case must deliver notice of his
or her intention (see study unit 9.2) to do so within two months after provisional sentence has been
granted, in which case the summons will be deemed to be a combined summons (see study unit 6.3)
on which the defendant must deliver a plea within 10 days. In default of such notice or plea, the
provisional sentence automatically becomes a final judgment and the security given by the plaintiff
falls away (Rule 8(11)).

S gives T a cheque for R200 000 as payment for goods sold and delivered. The cheque is
dishonoured by S's bank. T may make use of the simple summons procedure or the provisional
sentence procedure to obtain payment of the amount stated in the cheque. Compare these
procedures in the
following respects:

(a) the grounds in respect of which each procedure may be used (4)
See page 45

(b) the advantages and disadvantages of each procedure for the plaintiff (10)
Page 35 and page 45

X consults with you in regard to a cheque he received from his bank marked "return to drawer"
because there were insufficient funds in V's current account. During the consultation you learn that
X had sold computers to the value of R500 000 to Y and that X needs to recover the money
urgently from Y in order to finance other transactions. With these facts in mind,
(a) determine whether you could commence proceedings by means of either a simple summons or
a provisional sentence summons; (3)
See page 45

(b) explain the implications for your client in regard to the use of the simple summons; . (4)
If judgment is granted in favour of the plaintiff it is final. Describe procedure of using simple
summons – page 19

(c) explain the implications for your client in regard to the use of the provisional sentence
summons. (5)
If judgment is granted in favour of the plaintiff, it is provisional and the defendant may still enter into
the principal case. However, this method is faster, more effective and cheaper

(b) Explain the meaning of the term "liquid document" for the purposes of the provisional
sentence summons. (6)

(c) Explain the reason for a cheque being classified as a liquid document. (5)
Page 42
STUDY UNIT 8 - PRINCIPLES OF PLEADING

Classify the following documents as pleadings or process documents, briefly explain the reasons
for the choices made?

(1) The simple summons

Process. A summons is a printed form which is merely a step in the litigation process and whereby
litigation is instituted. This step can only be taken with the help of a court official (the registrar or
assistant-registrar must first issue the summons before the plaintiff can use it any further).

(2) The combined summons(2)

Both. However, the combined summons is a unique document in that the summons and the
particulars of the claim cannot be separated from each other. Technically, the summons section is a
process (see (1) above) and the particulars of a claim is a pleading (since it contains a formal, concise
but more complete version of the plaintiff's claim to which the defendant must answer).

(3) The declaration(2)

Pleading. It contains the material facts which are relied upon in support of the claim.

(iii) Explain fully whether a subpoena is a pleading or a process. (5)

There is a difference between a pleading and a process. Although ``process'' is not defined in the Act,
the phrase ``process of the court'' was interpreted in Dorfman v Deputy
Sheriff, Witwatersrand 1908 TS at 703 to mean ``something which `proceeds' from the court;
some step in legal proceedings which can only be taken with the aid of the court or of one of
its officers''. Included in this concept are, inter alia, subpoenas, notices and the like.

Explain 3 important rules for the drafting of pleadings.

1. Must contain clear and concise statements of material facts upon which claim is based. Must
not be vague and embarrassing
2. Details must be reflected clearly, logically and comprehensively
3. Facts and not law must be pleaded. No evidence must be pleaded.

STUDY UNIT 9 - PROCEEDINGS UP TO AND INCLUDING CLOSE OF PLEADINGS

One morning, D, a champion cyclist, rides into F, an outstanding marathon athlete on a public
road. Both are injured and for months after the accident suffer pain. F is sponsored by XYZ Sports
Drink Company and owing to her injuries can no longer meet her sponsorship commitments. D is
sued by F for damages to the amount of R300 000. D is very upset by the sueing and feels that F
was responsiblle for the accident and therefore for his (F's) damages (to his cycle).

(1) Simply name the pleadings (in the correct order) which can be exchanged in convention
between D and F (referred to in the set of facts at the start of this study unit) upon service of the
combined summons.
The plea on the merits (at the same time the defendant can institute his counterclaim against F. The
same pleas as are exchanged in convention, may also be exchanged in reconvention). The replication
(since in his counterclaim, D would have indicated that F was negligent - therefore, a new factual
allegation)

The rejoinder (if the plaintiff made new factual allegations in her replication)

(2) Explain briefly why the notice of intention to defend is excluded from the answer to (1) above.

The notice of intention to defend (as is the case with all notices) is a process, not a pleading.

(3) Briefly indicate when pleadings will be regarded to be closed.

The four circumstances in which pleadings are regarded to be closed, are clearly set out in point
form in Rule 29. Fill in these circumstances yourself in the space provided under question 3 above.

(e) M issues a combined summons against N for damages arising out of breach of contract. N
responds with a notice of intention to defend. Thereafter, within the dies induciae N files a plea on
the merits along with a counterclaim. With these facts in mind, answer the following questions.
(i) Name the pleading that must be filed by M if N in his plea on the merits
Replication

(ii) Name the pleading that M must file in response to the allegations contained in N’s
counterclaim. (1)
Plea in reconvention (or also called the plea on the counterclaim)

(iii) Name the pleading that N may use if M’s pleading referred to in (ii) above does not disclose a
valid defence. (1)
Exception

(iv) Name the procedure that M may use if M believes that N is in possession of a tape recording of
the negotiations between M and N and which gave rise to the conclusion of the contract. (1)
Inspection in terms of Rule 35(14) of the Uniform Rules of Court.

As the principal debtor, L obtains a loan from a bank in the amount of R500 000. Owing to a
variety of circumstances, the bank claims repayment of the said amount by means of a summons.
In his plea on the merits, L admits the terms of the contract of loan but contends that the bank
had released him from his obligations. On the basis of these facts, answer the following questions:

(a) Name the pleading that the bank’s attorney should use to join issue if the bank has a defence
to L’s allegation that he was released from the debt. (1)
The bank’s attorney may deliver a replication

Comment: The replication contains the plaintiff’s reply to the defendant’s plea. It is relevant in the case where a defendant’s defence is
one of confession and avoidance (as in this instance).

(b) Explain the situation should the bank’s attorney fail to act as required in (a) above.(3)
Should the bank’s attorney fail to deliver a replication (on the part of the plaintiff) within the
prescribed dies induciae, the plaintiff (bank) is ipso facto (or automatically barred) from
replicating. According to Rule 25(1), the plaintiff has 15 days after service of a plea to deliver a
replication to the plea (see Rule 26, read with Rule 25(1), and study unit 9.4).
Comment: However, where a replication is not necessary, then joinder of issue will be assumed and the pleadings will be deemed to be
closed when the last day for filing the replication has elapsed (see Rule 25(2) and 29(b))

C claims damages from D in the amount of R500 000 on the grounds of defamation. The action is
instituted by means of a combined summons. In his or her plea, D confesses the defamatory words
but raises truth and the public interest as a defence in avoidance of the claim. D assumes that the
pleadings are closed in terms of rule 29(a) and sets the matter down for trial. Discuss briefly. [4]

A replication which contains the plaintiff’s reply to the defendant’s plea is relevant in this instance
because D’s defence is one of confession and avoidance. Pleadings will be considered closed if the
last day for filing a replication or subsequent pleading has elapsed, and it has not been filed (Rule
29(b) (see Rule 29 regarding further instances when pleadings are deemed to be closed.) Rule 29(a)
does not apply as D has raised new averments as to facts in his plea and C has the right of reply.
Therefore, D cannot assume that the pleadings are closed.

Therefore, in terms of the given facts, D has performed an irregular step by prematurely setting
down the matter or case for trial. C may therefore apply for the irregularity to be set aside in terms
of Rule 30. C must apply as soon as he takes notice of the irregular step or learns about the
irregularity (and not once the irregularity has come to his notice). C must not have taken any further
step in the litigation after becoming aware of the irregularity (see study units 9.4 and 10.7).

Comment: Where a party has taken an irregular step or proceeding during the course of the litigation (eg, a premature set-down of a
case or the use of a wrong summons), then Rule 30 provides the other party with a mechanism by means of which the irregularity may be
set aside.

(a) Explain the meaning of the phrase: "claim in reconvention". (4)

Rule 24(1) provides that a defendant may, together with his or her plea, or at a later stage with
the leave of the plaintiff, or if refused, the court, deliver a claim against the plaintiff. This is
known as a counterclaim.
The counterclaim is called a claim in reconvention. ( The claim which is instituted by means of a summons is called a
claim in convention.) Since a counterclaim is similar to a claim which is instituted by a plaintiff in
convention, the plaintiff has the opportunity to answer to the counterclaim with a plea on the
counterclaim, which corresponds with the defendant's plea as regards form and content. The same
pleadings as are exchanged between the parties in convention, are exchanged in reconvention; the
only difference is that the parties act in the reverse order i.e. the plaintiff in convention acts as the
defendant in reconvention.
The pleadings in reconvention are also exchanged until close of pleadings occurs. When the
counterclaim is served at the same time as the plea, in practice it is contained in the
same document.

You are the attorney for the defendant. Your client receives a combined summons wherein the
plaintiff avers that he incurred damages as a result of a motor collision due solely to the negligence
of your client. During the consultation your client contends that the plaintiff was equally negligent
and as a result your client also suffered damages. With these facts in mind, answer the following
questions:
(i) Name the pleading that you would use to introduce your client's claim; (1)
Counterclaim
(ii) When would you introduce this pleading? (1)
At the same time or after the plea
(iii) Name the pleading that the opposite party may use to respond to the pleading in (i) above. (1)
Replication
As the principal debtor, L obtains a loan from a bank in the amount of
R500 000. Due to a variety of circumstances the bank claims
repayment of the said amount by means of a summons. In his plea on
the merits, L admits the terms of the contract of loan but contends that
the bank had released him from his obligations. On the basis of these
facts:
(i) name the pleading that the bank's attorney should use to join
issue if the bank has a defence to L's allegation that he was
released from the debt; (1)
Replication
(ii) explain the situation should the bank's attorney fail to act as
required in (i) above. (3)
Pleadings will be deemed to be closed – page 53

(d) State whether the following statements are true or false, giving reasons for each answer. :
(i) A notice of intention to defend is a means of raising a defence. (2)
False. A plea is a means of raising a defence
(ii) A notice of intention to defend is a pleading. (1)
False. A notice of intention to defend is a process document
STUDY UNIT 10 - FURTHER PLEADINGS AND PROCESSES UP TO AND INCLUDING CLOSE OF
PLEADINGS

 E and the Grootberg Local Council litigate in the local High Court. E is the registered owner
of a small holding within the area of the Grootberg Local Council (GLC). All registered
landowners are statutarily obliged to pay tax to the GLC. In the summons, the GLC alleges
that E is in arrears with the payment of tax and that E is liable for the payment of such
arrears for specific period of time. Just after E's attorneys entered appearance, GLC's
attorneys notice that their information in the formulation of the claim is faulty. Once the
new formulation is served on E's attorneys, it appears that E's attorneys are unhappy
about the formulation of the claim. The question arises how the different defects must be
dealt with and corrected in practice.

 M sues N for damages on ground of breach of contract. After M has served his simple
summons, he realises that his attorney's typist has typed in the amount claimed as R3 000
000 instead of R300 000. N is very upset about the summons which has been served on her
and goes to see her attorney. She tells him, amongst other things, that she and M are
already involved in litigation in the Cape High Court in respect of an identical cause of
action. N's attorney reads through the summons and points out to N that M has issued the
wrong type of summons against her. Answer the following questions in respect of this set
of facts.

(1) Simply name the type of procedure that N's attorney must follow owing to the use of the
wrong type of summons.

An application to set aside the summons as an irregular proceeding.

(2) Briefly indicate why N's attorney acts correctly by serving and filing a notice of intention to
defend despite the procedure which is followed in (1) above.
The filing of a notification of intention to defend does not initiate a ``further step'' which could
obstruct the procedure in (1) above. It has already been decided that it is simply an action with the
purpose of allowing the defendant to raise a defence.

(3) Simply name the procedure which M may follow to correct the incorrect amount claimed in the
summons.

Application to amend.

(4) Say that M serves his declaration on N immediately after he has received her notice of
intention to defend. What procedure must N's attorney use to address the fact that M has already
instituted an identical action in the Cape High Court? Explain briefly.

N's attorney must file a special defence since N has raised an objection of lis pendens.

(5) M believes that N is in possession of a tape recording of the negotiations that M and N have
had and which gave rise to the conclusion of the contract. Briefly explain in what circumstances M
may request inspection hereof.

The answer to this question is contained in Rule 35(14). Make a short summary of the content of this
Rule for yourself.

S and T are involved in a motor collision. S issues summons against T for the damages caused to his
vehicle. However, in his particulars of claim S fails to aver that the motor collision was due solely
to the negligence of T. T responded by filling a special pleas. Discuss whether the correct pleading
was filled by T.(5)

T has filed the incorrect pleading. He should have filed the exception instead. A special plea is a
means of raising an objection on the basis of certain facts which do not appear in the plaintiff’s
declaration or particulars of claim, and has the effect of destroying or postponing the action. An
exception attacks the allegations in a pleading, and the pleading is attacked as a whole. No factual
allegation outside the pleading may be introduced. In this instance, the averment necessary to
establish or disclose a cause of action is omitted. Since this is one of the grounds on which an
exception can be raised, T should have filed an exception.

(a) Explain the manner in which pleadings may be amended. (5)

Pg 58

(b) In terms of section 2(1)(b) of the Divorce Act of 1979, either of the spouses is competent to
institute divorce proceedings. N issues a summons for divorce against his wife, P, out of the
Johannesburg High Court. P is so infuriated when she learns that N wants to divorce her,
that she instructs her attorney also to issue summons against N out of the Durban High Court. As
N’s attorney, describe how you would respond to the combined summons issued by P. (2)

I would first file notice of intention to defend and then file a special plea of lis pendens

(c) Discuss the differences between the special plea and the exception. (8)
An exception is limited to an attack on the allegations in the pleading as a whole, on the assumption
that such allegations are true, and with one of the distinguishing features being that no factual
allegation outside the pleading attacked may be introduced.
The pleading is judged exactly as it stands. In common with an exception, a special plea assumes
the truth of all the allegations in the declaration, and does not deal with the merits of the action
at all. It differs from an exception in two respects.
1. It alleges special facts unconnected with the merits of the action as a result of which the
action is either destroyed or postponed.
2. A special plea may only be pleaded to a declaration or particulars of claim, whereas an
exception can be brought against any pleading.

􀀁 Give brief details on when each may be requested.

(d) Compare the plea on the merits and the special plea. (4)
A plea on merits deals with the merits of the plaintiff's case as set out in the plaintiff's particulars of
claim or declaration, as the case may be. In a plea on merits, the plaintiff's allegations are admitted,
are denied, are placed in issue, or are confessed or avoided, and all the material facts upon which
the defendant relies are stated clearly and concisely. In brief, a plea on merits raises a defence
against the plaintiff's claim.
A special plea is a means of raising an objection on the basis of certain facts which do not appear in
the plaintiff's declaration or particulars of claim, and has the effect of destroying the action (pleas in
abatement) or postponing the action (dilatory pleas).

(e) Discuss the nature and purpose of the exception. (8)

An exception is a legal objection to the opponent's pleading in terms of Rule 23(1) of the Uniform
Rules of Court. The exception contends that there are some defects or incompleteness inherent
in the pleading:
1. the pleading does not disclose either a cause of action or a defence, or
2. the pleading is vague and embarrassing.
The exception is taken to the pleading as a whole, and not to a portion of the pleading as is the case
with striking-out. The purpose of an exception is twofold:
1. in the case of a pleading that is vague and embarrassing, an exception is taken in order
to prevent the person excepting from being taken by surprise or being prejudiced in
his/her pleading, or at the trial.
2. Where the pleading discloses no cause of action or defence, an exception provides a
speedy method of determining the issue without having to embark on the lengthy and
expensive procedure of a full trial.

S and T are involved in a motor collision. S issues summons against T for the
damages caused to his vehicle. However, in his particulars of claim S fails to
aver that the motor collision was due solely to the negligence of T. T responds
by filing a special plea instead of an exception. With these facts in mind,
answer the following questions, giving reasons for each answer.

(a) Why would it be incorrect to file a special plea? (2)

A special plea is a means of raising an objection on the basis of certain facts which do not appear in
the plaintiff's declaration or particulars of claim, and has the effect of destroying or postponing the
action.
(b) Why should T have instead filed an exception? (3)
An exception attacks the allegations in a pleading and the pleading is attacked as a whole. No factual
allegation outside the pleading may be introduced. In this instance the averment necessary to
establish or disclose a cause of action is omitted. Since this is one of the grounds on which an
exception can be raised, T should have filed an exception.

S issues a simple summons against T in which a decree of divorce is requested. With these facts in
mind, answer the following questions, giving reasons for each answer.
(a) If T is of the opinion that the incorrect form of summons has been used, can T make use of any
procedure to correct the situation? (2)
Application to set aside irregular proceedings
(b) When does the period commence within which the applicant must act? (4)
The period within which the applicant must act commences as soon as a party takes notice that a
step has been taken or that a proceeding has occurred, and not once the irregularity thereof
has come to his notice. This interpretation was given in Minister of Law and Order v Taylor.
However, such an application may be launched only if the objector has not taken some further step
in the litigation after becoming aware of the existence of an
irregularity.
(c) If T files a notice of intention to defend prior to the taking of other steps, will this prevent him
from using the procedure you have referred to in your answer to (b) above? (2)
No. Our courts have held that filing notice of intention to defend is merely an act done to enable the
defendant to put his defence forward. It is not regarded as a further step
(d) What form of proceeding must T use in order to approach the court for relief? (2)
Application proceedings

You are acting for the defendant in a divorce matter. On behalf of your client you receive a
summons, attached to which a supporting affidavit. With these facts in mind :
(a) Explain why summons is defective. (2)
Attached to the combined summons should be the particulars of claim, not a supporting affidavit
(b) describe the procedure that you would use to remedy the defect; (5)
Application to set aside an irregular proceeding – page 63
(c) explain whether the filing of a notice of intention to defend constitutes a "further step". (3)
A further step would therefore include the next sequential exchange of pleadings and any
objection to the content of a pleading (eg an exception or motion to strike out). It would not
include the filing of a notice of intention to defend; our courts have held that this is merely an act
done to enable the defendant to put forward his or her defence.

By means of a summons a bank claims payment of a specified amount from the defendant who is
the surety in terms of a deed of suretyship. The bank fails to disclose a cause of action by omitting
to allege that the principle debtor, to whom the defendant has bound himself as surety, has failed
and or is not in a position to pay the debt. With these facts in mind identify the pleading that the
defendant may use in order to respond to this situation. Give full reasons for your answer. (4)
The Exception may be used since the bank failed to disclose a cause of action.
Where a pleading discloses no cause of action or defence, an exception provides a speedy and
inexpensive method of determining the issue without having to embark on the lengthy and
expensive procedure of a full trial.

C issues a summons against D for damages arising out of a breach of contract. With these facts in
mind answer the following questions.
(a) Name the procedure that D must follow if C issues a simple summons against D. (1)
Application on notice to set aside an irregular proceeding
(b) Discuss briefly the period within which D must commence the procedure identified in (a)
above. (3)
The period within which the applicant must act commences as soon as a party takes notice that a
step has been taken or that a proceeding has occurred, and not once the irregularity thereof
has come to his notice. See Rule 30 (2)
(c) Name the type of proceedings that D must follow. (1)
Application proceeding
(d) Briefly explain why D acts correctly by serving and filing a notice of intention to defend, despite
the procedure that is followed in (a) above. (3)
Page 63
(e) Name the orders that a court may make. (2)
Page 63

In each of the instances given below, indicate briefly in what way the pleading or process
concerned is defective, and whether there is any procedure the defendant may use to raise an
objection against it.
(i) In his particulars of claim, the plaintiff alleges that the parties concluded an agreement on 1
February 2070, instead of on 1 February 2007. (2)
Amendment of pleadings – page 58
(ii) The plaintiff institutes an action for divorce against the defendant by way of a simple
summons. (2)
Application to set aside irregular proceedings – page 63
(iii) The plaintiff claims payment of a specific amount from the defendant in terms of an
agreement on which the defendant would be liable for such payment if a certain Z were to fail to
pay this amount. In the particulars of claim the plaintiff does not allege that Z has failed to pay the
amount. (2)
Exception – page 59
(iv) The plaintiff issues summons against the defendant in the Cape High Court to the amount of
R500 000 for damages resulting from a motorcar collision. The court grants judgment to the
amount of R300 000. The defendant subsequently moves to Pretoria and is sued by the plaintiff in
the Pretoria High Court for the balance of the claim, namely R200 000. (2)
Special plea (res iudicata) – page 62

STUDY UNIT 11 - OFFER TO SETTLE, TENDER AND INTERIM PAYMENTS

Solly owns a red microbus which he uses as a taxi. Solly is a registered taxi driver. One Friday
afternoon while he is busy transporting a full load of passengers home, he is involved in an
accident with another vehicle. The driver of the other vehicle is seriously injured while occupants of
the microbus mainly suffer damage to their possessions (radios, clothing and groceries). Solly is
insured with MVO Insurers Ltd. Although everyone who suffered damage instituted claims for
damages, the finalisation of the claims takes a long time and there is some financial hardship. The
insurer is also anxious to finalise the claims as soon as possible in order to save costs.

(1) Briefly indicate the requirements which an offer must meet in terms of Rule 34.(4)

The plaintiff must satisfy any of the following requirements (you may state any one):

(1) The defendant (respondent) has in writing admitted the liability in respect of the plaintiff’s
damages (Rule 34A(4)(a))
(2) that he or she (the plaintiff) has obtained judgment against the defendant for the
damages, the amount (quantum) of which still has to be determined (Rule 34A (4)(b))

(3) that the defendant is insured in relation to the plaintiff’s claim, or that the defendant has the
means to make such an interim payment (Rule 34A(5)

(2) Briefly indicate what the content of the prohibition on disclosure is in terms of Rule 34A(8). Go
back and read the set of facts at the beginning of the study unit and then answer the following
questions:

These provisions are also set out very clearly in the Rule, and you must summarise them yourself.

(3) Simply name the procedure which X, the seriously injured driver of the vehicle which Solly
crashed into, must follow if he needs financial aid to cover his medical expenses.

An application for interim payment in terms of Rule 34A.

(4) From the set of facts it appears that the passengers in the minibus also suffered damage in that
their property was either damaged or destroyed. To what extent can they make use of the
procedure contained in Rule 34A? Briefly explain.

They cannot use this procedure, since the procedure can only be used in actions for damages for
personal injuries or the death of a person (usually the breadwinner). Actions for damages for
damage to property are therefore excluded.

As attorney for the plaintiff, you have issued summons against the defendant wherein damages
are claimed for the plaintiff’s medical costs and loss of income as a result of his physical incapacity.
The stage of the litigation is that judgment has been given in favour of your client but the issue of
quantum has not yet been settled. Your client has serious financial problems. With these facts in
mind, answer the following questions:

(a) What can you do to alleviate your client’s financial situation? (1)

The plaintiff’s attorney may make an application for interim payment in terms of Rule 34A

Comment: Again, it would have been necessary to consult the prescribed reading to answer this question.

(b) Would you use application or summons procedure to obtain this relief? (1)

Application procedure

(c) Set out one of the requirements in terms of which the plaintiff must satisfy the court that
he/she is entitled to such relief. (1) [3]

The plaintiff must satisfy any of the following requirements (you may state any one):

(1) The defendant (respondent) has in writing admitted the liability in respect of the plaintiff’s
damages (Rule 34A(4)(a))

(2) that he or she (the plaintiff) has obtained judgment against the defendant for the
damages, the amount (quantum) of which still has to be determined (Rule 34A (4)(b))
(3) that the defendant is insured in relation to the plaintiff’s claim, or that the defendant has the
means to make such an interim payment (Rule 34A(5)

When can the procedure for interim payment be instituted?

-At any time after the lapse of the prescribed timeframe to file a notice of intention to defend

(b) State the four requirements laid down in Rule 34(5) with which an offer to settle must comply.
(8)

Rule 34(5) : Notice of any offer must be given to all parties to the action, and it must state :

(a) Whether the offer is unconditional or without prejudice.

Unconditional = Liability in respect of the claim is accepted.
Without prejudice = Liability is denied.
(b) Whether it is accompanied by an offer to pay all or only part of the costs of the party to
whom the offer is made. The offer may also be made subject to certain conditions.
If so, these must be stated in the notice.
(c) Whether the offer is made by way of settlement of both claim and costs or of claim only.
(d) Whether the defendant denies liability for the payment of costs or part thereof, and if so,
the reasons for this must be given. Thereafter, the action may be set down on the question
of costs only.

(c) Write concise notes on interim payments. (6)

 Interim payments may be ordered only
o in an action for damages as a result of either
personal injuries or the death of a person (usually the breadwinner). Personal
injuries naturally refer to the plaintiff's own injuries.
 An application for an order for such payments may be made at any time after the lapse of
the dies induciae in respect of the intention to defend.
 The damages which are relevant are confined to
(1) the plaintiff's medical costs
(2) the plantiff's loss of income as a result of his or her physical incapacity
(3) the plaintiff's loss of income as a result of the death of another person.
 the order is made by way of application, and that Rule 34A(2) lays down that the provisions
of Rule 6 must be complied with.
 the court is not obliged to make an order for an interim payment, but has a discretion. In
addition, the court must be satisfied that certain prescriptions have been complied with. The
plaintiff (applicant) must thus satisfy the court that
(1) the defendant (respondent) has in writing admitted liability in respect of the
plaintiff's damages (Rule 34A(4)(a))
or
(2) that he or she (the plaintiff) has obtained judgment against the defendant for the
damages, the amount (quantum) of which still has to be determined (Rule 34A(4)(b))
and
(3) that the defendant is insured in relation to the plaintiff's claim, or that the
defendant has the means to make such an interim payment (Rule 34A(5))

(d) As attorney for the plaintiff you have issued summons against the defendant wherein damages
are claimed for the plaintiff’s medical costs as well as plaintiff’s loss of income as a result of his
physical incapacity. The stage of the litigation is that judgment has been given in favour of your
client but the issue of quantum has not yet been settled. Your client has serious financial problems.
With these facts in mind answer the following questions:
(i) What can you do to alleviate your client's financial situation? (2)
Apply for interim payments
(ii) Would you use application or summons procedure to obtain this relief? (1)
Application procedure
(iii) Set out one of the requirements in terms of which the plaintiff must satisfy the court that he /
she is entitled to such relief. (2)
Pg 69

(e) Briefly indicate the requirements which an offer to settle must meet in terms of Rule 34(5) of
the Uniform Rules of Court. (4)

that the defendant is insured in relation to the plaintiff's claim, or that the defendant has the means
to make such an interim payment (Rule 34A(5))

STUDY UNIT 12 - PRE-TRIAL JUDGMENTS

Homework CC sues Computer Mecca CC for damages for the provision of defective hardware and
installation. Homework CC not only lost data, but also clients. Although Computer Mecca CC enters
appearance, it fails to deliver the pleadings which should follow thereupon. Homework CC is
dissatisfied with this since it delays finalising the action. The question is what action can be taken
by the plaintiff? John, a handyman, buys a large number of items on credit at his local hardware
shop. John has known the owner of the hardware shop for years. The things are delivered at John's
house and a copy of the invoice is handed to him once he has signed the original. The total amount
for the items is R120 000. Despite requests, John refuses and/or fails to pay his account. The owner
of the shop suspects that John simply does not have the money to pay owing to the generally poor
economic situation. John is sued and he enters an appearance to defend. What should the plaintiff
do now?

(1) Briefly state the grounds on which summary judgment may be requested.

(a) Based on a liquid document.

(b) For a liquidated amount of money.
(c) For delivery of specified movable property.
(d) For ejectment.
(2) Briefly explain the procedure which must be followed when judgment by default is requested
where the plaintiff fails to deliver a declaration.

(3) Briefly explain the procedure which the plaintiff in the first set of facts must follow to acquire
judgment by default.
Firstly, the pleading which follows the notification of intention to defend is naturally the plea on the
merits. Consequently, before the plaintiff may apply for judgment by default, it will first mean a
notification of bar of the defendant. If the defendant still fails to deliver the plea, the plaintiff can go
on to request a judgment by default. Secondly, the claim is one for compensation for damages. This
means that the claim is unliquidated. Consequently, the plaintiff must approach the court in terms of
Rule 31(2) and evidence in respect of the quantum of the claim must be led.

(4) Name the procedure that the plaintiff in the second set of facts may follow in the given
circumstances.

An application for summary judgment.

(5) Explain what action the defendant may follow in reply to the procedure mentioned in (4)
above.

Rule 32(3):
(a) He may give security to the plaintiff to the satisfaction of the registrar for any
judgment including costs which may be given
OR
(b) the defendant must satisfy the court by affidavit signed by himself or someone who
can swear positively to the fact that he has a bona fide defence to the action (NB :
the court may allow oral evidence to this effect). Such affidavit or evidence must
disclose fully the nature and grounds of the defence and the material facts relied
upon for this.

Q is a landlord and Z is his tenant. Z is in arrears with his rental. Q issues a summons against Z for
the arrear rental and ejectment. With regard to the given facts determine the procedure that Q
would use if

(i) Z failed to respond to the summons within the time stated in the summons. (5)

Q would request a judgment by default in respect of a claim for a debt or liquidated demand, and
the defendant(Z) is in default of delivery of a notice of intention to defend or of a plea. The plaintiff
(Q) must submit to the registrar of the court a written request for judgment. Default judgment may
be sought without notice to the defendant (Z). The registrar is empowered to make a variety of
orders and no evidence in respect of the claim need be led.

(ii) Z files a notice of intention to defend within the time stated in the summons and Q believes
that Z has done so solely for the purpose of delaying the proceedings. (5)

Q would request a summary judgment. Summary judgment procedure is designed to protect a

plaintiff(Q), who has a claim of a particular nature, against a defendant who has no valid defence to
his or her claim, and who has simply entered an appearance to defend for the purpose of gaining
time and preventing the plaintiff from obtaining the relief he or she seeks and deserves.
Summary judgment should not be granted lightly, and the courts will deprive a defendant of his
or her defence in this manner only in clear cases. The courts are cautious and conservative in
this regard because of the audi alteram partem rule, since summary judgment procedure does to
a certain extent infringe on this principle.
(iii) Z files a notice of intention to defend within the time stated in the summons but fails to file his
plea on the merits timeously. (4)

A Notice of bar must first be delivered. Only where the defendant (Z) still fails to deliver the plea, will
Z be in default. The plaintiff may then set the action down, where default judgment is sought in
respect of an unliquidated claim. The court may, after hearing evidence grant judgment against the
defendant.

Briefly compare default judgment with summary judgment as procedures applied in the High
Court. [10]

The procedures are similar in that they are both pre-trial judgments, in other words, that a court
may give judgment before the trial of a matter, bringing the matter to an end.
However, there are more differences than similarities between these procedures. The
procedures can be distinguished according to the circumstances that give rise to the use of
each of them; the procedure used in each instance, and the remedy available if a defendant is
dissatisfied with the judgment given.
Summary judgment is used when a plaintiff has a claim of a particular nature while default judgment
is used when a party fails to take a procedural step timeously (i.e., the delivery of a pleading or a
process, such as failing to enter a notice of intention to defend within the stated dies induciae). The
rules of court also lay down specific grounds for bringing an application for summary judgment,
namely that the defendant has no bona fide defence and that an appearance to defend has been
entered solely to delay the action. No formal grounds are laid down for an application for default
judgment.
The procedure for obtaining the respective judgments also differ: in the case of default
judgment the matter is placed on the roll after notice to the party in default (except when a
party failed to enter an appearance to defend), and if the claim is liquidated, a written
application is delivered to the registrar of the High Court (or the clerk of the court in the
magistrate’s court) and the registrar (or clerk of the court) notes the judgment or direction
given. In the case of summary judgment, the plaintiff has to deliver a notice of application for
summary judgment together with an affidavit, confirming the facts on which the claim is based and
setting out the averments relating to the grounds (referred to above). When the matter is heard, the
defendant can either give security for the judgment plus costs, or the defendant can try to convince
the court by way of an affidavit that he or she has a bona fide defence (by setting out fully the nature
and grounds of the defence as well as the material facts on which the defence is based).
Lastly, a party who is dissatisfied with the granting of a default judgment can apply for it to be
reconsidered by the court, while a defendant against whom a summary judgment is given,
must appeal if dissatisfied.
Comment:
This is not a typical examination question, but has been included to assist you in distinguishing between these two procedures, as this
seems to be problematic for many students. The answer is also slightly more detailed than would have been expected from you
in an examination (considering our guidelines in this respect contained in Tutorial Letter 101), in order to fully demonstrate the
differences. Hopefully this question made you realise that a comparison consists of both similarities and differences, and that a
comparison is presented in a narrative form

(b) Name four instances in which default judgment may be granted. (4)
(i) The defendant does not timeously give notice of intention to defend.
(ii) The defendant does not deliver a plea timeously.
(iii) The plaintiff does not deliver a declaration timeously.
(iv) A party fails to appear at the trial.
(c) Indicate what is meant by "sound reasons" in regard to setting aside an order for default
judgment. (3)
1. A reasonable explanation must be given for the failure.
2. The application must be bona fide and not merely a delaying tactic.
3. The defendant must have a bona fide defence.

(d) Write short notes on automatic bar and notice of bar (7) page 73
Rule 26 clearly states that a party who fails to deliver a replication and the ensuing pleadings, is
ipso facto (ie automatically) barred from doing so. This means that the party who is in default
will no longer be entitled to deliver the specific pleading concerned.
In the case of all other pleadings a party must first receive a notice of bar, and, if such party still
fails to deliver within the period indicated in the notice of bar (or within a period agreed upon),
he or she will be in default as regards the specific pleading and will ipso facto be barred.
The type of order which a court is empowered to make where a party is barred, depends on the
specific pleading concerned. The court is not compelled to grant an order, but has a discretion

(f) Indicate and discuss under what circumstances a court will use its discretion to set aside a
default judgment in terms of Rule 31 of the Uniform Rules of Court. (4) Page 74 – 75
The defendant must advance sound reasons for the failure concerned.
The courts have held that ``sound reasons'' mean that
(1) a reasonable explanation must be given for the failure
(2) the application must be bona fide and not merely a delaying tactic
(3) the defendant must have a bona fide defence

C issues and serves summons in a High Court against D for D's ejectment from certain premises
owned by C. With these facts in mind, comment on the correctness of the procedure followed. Give
reasons for your answers and where necessary, state what the correct procedure should be and
why.
(a) Although D fails to serve and file a notice of intention to defend within the stipulated dies
induciae, C serves and files his particulars of claim. (5)
Incorrect. C should have applied for default judgment – page 73

(b) D reacts to the summons by serving and filing a notice of intention to defend outside the
stipulated dies induciae. C immediately responds by claiming D has ipso facto (automatically) been
barred from delivering the notice of intention to defend. (6)
Incorrect. C should have approached the court to have the appearance set aside as an irregular step
– page 74

(c) D reacts to the summons by serving and filing a notice of intention to defend within the
stipulated dies induciae. C reacts by applying for default judgment. (4)
Incorrect. C should have afforded D the opportunity to file his plea within the stipulated dies
induciae – page 74

(d) The matter proceeds to the trial phase. After close of pleadings and for purposes of shortening
the trial, C requests D to make discovery in terms of Rule 35 of the Uniform Rules of Court of all
documents pertaining to the action. (3)
Correct, but discovery is primarily to prevent the parties being taken by surprise and not to shorten
the trial

C has already paid the purchase price of a motor vehicle in full, which was brought from D. C issues
summons against D in the High Court for the delivery of the motor vehicle. D responds to the
summons by delivering a notice of intention to defend. C is of the opinion that D is simply
employing delaying tactics and proceeds with steps to obtain judgment against D. On the basis of
these facts, answer the following questions. Give brief reasons for your answer.

(a) What procedure must C follow to obtain judgment? (2)

Summary judgment. The question deals with delivery of a specified movable property (a car). This is
one of the grounds for summary judgment.

(b) Discuss the steps that C must take to obtain judgment. (4)
If the plaintiff (C) wishes to apply for summary judgment, he or she must, within a specific period
after receipt of a notice of intention to defend, deliver a notice of such application. This
application must be accompanied by an affidavit deposed to by the plaintiff or by someone else who
can confirm the facts upon which the cause of action and the amount (if any) are based. The
affidavit must indicate the following (and may contain no further averments):
• that, in his or her opinion, there is no bona fide defence to the action
• that the purpose of entering an appearance is merely to delay an action If the claim is based on a
liquid document, a copy thereof must be attached to the application.

(c) Indicate the steps that D can take to avert the proceedings which C has instituted against him.
(4)
The defendant (D) has the choice either to give security to the plaintiff (C) for any judgment
including costs which may be given, or to satisfy the court by affidavit (which shall be delivered
within the specified period) or with the leave of the court by oral evidence by himself or by any
other person who can swear positively to the fact that he has a bona fide defence to the action;
this affidavit or oral evidence must disclose fully the nature and grounds of the defence and the
material facts relied upon therefore.

Question 4
You are acting for the defendant. Summons is issued against the defendant for damages
arising out of breach of warranty. Your client acknowledges that the product is defective
and admits full liability. Furthermore, your client requests you to keep costs to a minimum.
Describe how you would respond to your client’s instructions. (8)
Consent to judgment – Rule 31(1)
A defendant may (client), at any time, confess in whole or in part the claim contained in the
summons.
Exceptions
 Actions for relief in terms of the Divorce Act; or
 Actions for nullity of marriage.
Formal requirements
 The consent must be signed by the defendant personally and his signature shall be
witnessed by an attorney acting for him, and not the plaintiff, or be verified by affidavit.
 The consent must be furnished to the plaintiff.
Consequence
The plaintiff may apply in writing through the Registrar to a judge for judgment according to
such confession, usually granted in the judge’s office and not in open court.

Question 5
J has renovations done to his house by K who is a building contractor. Throughout the
period that the renovations were done, J complained to K about the lack of skill and
workmanship which K failed to rectify. As a result, J refused to pay the balance of the
contract price until K had rectified all the defects. To J's surprise, he received a summons
from K for payment of the balance of the contract price. J takes the summons to you and
you immediately respond by entering a notice of intention to defend on J’s behalf.
K's attorney responds by serving an application for summary judgment on your client.
With these facts in mind,

(a) explain to your client why K is not justified in bringing an application for summary
judgment. (2}
Because J has a bona fide defence and the summary judgment procedure is designed to protect a
plaintiff, who has a claim of a particular nature, against a defendant who has no valid defence to his
or her claim, and who has simply entered an appearance to defend for the purpose of gaining time
and preventing the plaintiff from obtaining the relief he or she seeks and deserves ..

(b) describe the step that you would take to oppose K’s application for summary
judgment. (6)
I will satisfy the court by affidavit, delivered before noon on the preceding court day of the set down
date) or by oral evidence (with leave of court) of the defendant himself or any other person who can
swear positively to the fact that he has a bona fide defence to the action; such affidavit or evidence
disclosing fully the nature and grounds of the defence and the material facts relied upon.
The reason for this is related to the nature of the claim (ie that it is liquid, which means, inter alia,
that it is certain and fixed), which, in turn, results in the fact that the court grants summary
judgment on the assumption that the plaintiff's claim is unimpeachable.

Question 6
X issues a combined summons against Y for damages arising out of breach of contract. Y
responds with a notice of intention to defend. With these facts in mind, answer the
following questions.
(a) May X bring an application for summary judgment in response to Y's notice of
intention to defend? (2)
No. summary judgement can only brought on a simple summons.

(b) Discuss the procedure that X may follow if Y fails to file a plea on the merits. (3)
Notice of bar must first be delivered where the defendant fails to deliver a plea before application
for default judgment may be made. Proceedings in Rules 31(2) & (3) shall be set down for hearing on not
less than 5 days' notice to default party, provided that no notice of set down need
be given to any party in default of delivery of notice of intention to defend.

(c) Discuss the procedure that X may follow if Y fails to file a plea on the merits, despite
the procedure discussed in (b) above. (5)
Default judgment is relevant in the following cases:
(1) where the defendant does not timeously give notice of intention to defend
(2) where the defendant does not deliver a plea timeously
(3) where the plaintiff does not deliver a declaration timeously
(4) where a party fails to appear at the trial
Thus X may make an application for default judgment.

STUDY UNIT 13 - PREPARATION FOR TRIAL

S and T are involved in a car accident. S suffers some serious injuries to his back and has had to
have several operations. It is also expected that he will have to have future operations to his back.
S sues T and claims damages. The pleadings are closed and both parties begin to prepare for the
trial. On the one hand, both parties must be informed of the steps which may be taken to prevent
them from being caught unprepared by the opposing party at the trial. On the other hand, they
must also be informed about the steps they must take to shorten the trial as required by the Rules.
In conclusion, the parties must also be informed on how they may present their evidence to the
court.

(1) With reference to the set of facts at the beginning of the study unit, simply name the different
steps that the plaintiff will have to take in preparation for his case.

 The plaintiff will have to give notice of his intention to call expert witnesses and
 will also have to make summaries of their evidence available to the opposing party;
 notice will also have to be given of any plans, photographs, et cetera which will be used. (as
was a collision and in all likelihood there will be a police plan and possibly even photographs
of the scene of the accident.)
 The plaintiff will also request further details for trial purposes,
 will have to disclose documents,
 request inspection of the defendant's discovery
 and possibly also demand that the defendant specify documents that he is going to use in
the trial. (the steps will depend on the facts of the particular case and that not necessarily all
the steps will be taken in every case.)

(2) Briefly indicate when evidence may be taken down by way of affidavit and when this will not
be permitted.

A witness must give evidence viva voce and in open court. If a witness is unable to give evidence in
person, she may be allowed to give evidence by affidavit. The court will permit it if there is adequate
reason. If the court believes that the opposing party has reason to want to cross-examine a witness,
and the witness can be brought before court, evidence by way of affidavit will not be permitted.

A institutes proceedings against B whereby he claims damages to the amount of R150 000. A
sustained these damages on account of a motor vehicle collision with B. With these facts in mind,
answer the following questions.
(i) Name the pleading that B may use if A fails to allege in his particulars of claim that the collision
was caused solely by the negligence of B. (1)
The exception.
Note: Negligence is one of the elements of a delict, and failure to aver negligence will therefore render a pleading excipiable because the
pleading does disclose a cause of action.

(ii) Name the pleading that B may use if he is of the opinion that the court does not have
jurisdiction to hear the matter because the collision did not occur within the court’s jurisdiction
area. (1)
The special plea.
Note: We are specifically dealing with a plea in abatement. Because the question was phrased in general terms, it was sufficient to answer
“the special plea”.

(iii) Name the process that A has to serve on B if B fails to deliver his plea on the merits timeously,
and A wishes to obtain judgment against B. (1)
A notice of bar.

(iv) When may a party refuse to discover a document in terms of Uniform Rule 35? (1) [4]
This is when a party claims that a document is privileged. See study unit 13.3 and Uniform Rule 35.
Note: See also Form 11, First Schedule, and note the manner in which the necessary averment is made.

(a) A and B are involved in a motor collision. A suffers serious injuries to his back, and he will have
to undergo several operations. A sues B and claims damages. The pleadings are closed and both
parties begin to prepare for trial. The parties need to be informed on how they can present their
evidence to the trial court. Discuss the various ways in which evidence can be placed before the
trial court. (6)
(1) Unless special circumstances exist, a witness must give evidence viva voce and in open court
(Rule 38(2)). Where a witness is required by a subpoena to make available at the trial a document,
instrument or object which is in his or her possession, or is under his or her control, such a subpoena
is termed a subpoena duces tecum.

(2) If a witness cannot give evidence in person, and if the necessary circumstances are present, he or
she may be allowed to give evidence in the following ways:

(a) on commission (commission de bene esse)

Evidence is given generally and application must be made to the court for evidence to be given in
this way.

(b) by way of interrogatories

Specific evidence only is taken, and for this purpose specific questions are formulated which must be
put to the witness by the commissioner.

(c) by way of affidavit

- at any time

- for sufficient reason

The courts are reluctant to grant such leave, and are usually disposed to do so only when the
evidence so required is of a formal nature.

C issues summons against D in the local High Court to the amount of R250 000 for goods sold and
delivered to D. On the basis of these facts, determine in each instance whether the procedures
followed by either C or D are correct or incorrect. If incorrect, state the correct procedure. In each
instance give reasons your answer.
(a) C issues a combined summons. (2)
(a) Incorrect. The nature of the claim falls within the definition of a “debt or liquidated demand”,
and therefore C should have used a simple summons to institute the action.

(b) D alleges in his plea on the merits that C owes him an amount of R400 000 for a
piece of land that C bought from him. (2)
(b) Incorrect. A plea on the merits sets out fully the nature of and grounds for a defence. In
this instance D’s action amounts to the setting out of a claim against C, and therefore D
should institute a counterclaim. (See study unit 9.3.)
Commentary: Please note that a plea on the merits and a counterclaim are separate documents. The mere fact that the two documents
are usually delivered simultaneously, and are often included in one document for reasons of convenience, does not change this fact. In the
latter instance the documents are clearly distinguished by their respective headings.
(c) C excepts to D’s plea because it contains an allegation that “C is always untrustworthy”. (2)
(c) Incorrect. This statement falls within the meaning of “scandalous, vexatious or irrelevant”,
and C should therefore apply for its striking out. (See study unit 10.3.)
Commentary: Only the vexatious, etcetera, part of the pleading is struck out, and not the pleading as a whole. The opposite is true in the
case of an exception: an exception is raised on very specific grounds (vague or embarrassing or no disclosure of claim or defence) and the
pleading as a whole is affected: see study unit 10.5 in this regard.

(d) C applies for the amendment of the plea on the merits to change the amount of the
alleged purchase price to R200 000. (1)
(d) Incorrect. A party may amend only his or her own pleading. In this instance C is the
plaintiff and not the defendant. Only the defendant may amend the amount in the plea on
the merits if incorrect. (See study unit 10.4.)

(e) D makes a verbal offer to settle C’s claim in terms of Uniform Rule 34(1). (1)
(e) Incorrect. Uniform Rule 34(1) requires an offer to settle to be in writing: “ … the
defendant may … make a written offer to settle …”. (See study unit 11.1.)

(f) C informs Z by letter that she is herewith compelled to give evidence at the trial, and
stating further the date and time of the trial as well as the particulars of the trial
court. (2)
(f) Incorrect. The presence of a witness at a trial cannot be secured by letter (i.e., in an informal
manner) – this is done by using a subpoena (see Form 16, First Schedule to the Uniform Rules) which
is issued by a court official and served by the sheriff. (See study unit 13.4.2.) [10]

(b) Describe the information that must be contained in a discovery affidavit. (3)
In this discovery affidavit the party making discovery must set out
(1) those documents relating to the matters in dispute in the action which are in his or her
possession or are under his or her control
(2) those documents which, although relating to the matters in dispute in the action and being
in the party's possession or control, the party objects to producing, and the reasons for
such objection must be stated
(3) those documents which he or she has had in his or her possession or which were under his
or her control, but which he or she does not now have in his or her possession or which are
not now under his or her control. Such party must also state when such documents were
last in his or her possession or under his or her control, and where such documents now
are.

(c) Describe the three matters that must be set out in a discovery affidavit. (6) Same as (b) but for 6 marks

(d) Name the three methods by which evidence may be presented before the court if the witness
is unable to give evidence in person. (3)
Page 83
(1) Unless special circumstances exist, a witness must give evidence viva voce and in open
court (Rule 38(2)).
(2) If a witness cannot give evidence in person, and if the necessary circumstances are present,
he or she may be allowed to give evidence in the following ways:
(a) on commission (commission de bene esse)
 (b) by way of interrogatories
(c) by way of affidavit

(e) L and M are involved in a motor vehicle accident. L suffers serious injuries to his back and has to
have a number of major operations. L sues M and claims for damages. At this state, the pleadings
have closed and both parties begin to prepare for trial. With these facts in mind, answer the
following questions:

(i) Name two procedures that may be used to prevent the parties from being caught unprepared
at the trial. (2)
Any two of the following
• Discovery
• Request for further particulars for trial
 Notice of expert witnesses
• The production of plans, diagrams, models andphotographs
• Inspection or production of documents and tape recordings

(ii) Name two steps that may be taken to shorten the trial as required under the Uniform Rules of
Court. (2)
 The pre-trial conference and
 the exchange of the summaries of expert testimony by experts

(iij) Name two methods by means of which the parties may present their evidence in court (2)
Personal or viva voce evidence; otherwise on commission, by way of interrogatories or on affidavit

Set out five matters that can be discussed at a pre-trial conference?(5)

STUDY UNIT 14 - THE TRIAL AND COSTS

X and Y are involved in litigation. During the preparation for the trial, X's attorney comes across
some documents which are in X's possession and which support Y's case. He intentionally fails to
disclose these documents. X and his attorney also make it impossible for Y's attorney to consult
certain witnesses. During the trial, it appears that such a consultation would have shortened the
trial considerably and that the witnesses support Y's case in an important respect. Both these
things are disclosed during the trial. The question is what would an appropriate action against X
and his attorney be.

(1) Briefly discuss in what two important ways attorney and client costs and party and party costs
differ from each other.

Attorney and client costs arise out of the contractual relationship between client and attorney and
are not at all related to possible litigation.

Party and party costs, however, are those costs which a party incurs on taking legal steps and which
are payable by an opposing party in terms of a court order.
 However, these costs are only estimated costs and expenses, while attorney and client costs are
remuneration for all professional services and expenses flowing from the attorney's mandate and
are not statutorily fixed.

Party and party costs are taxed by the Taxing Master in accordance with a fixed prescribed scale,
thus ensuring that only such charges and costs actually incurred in the course of litigation are
allowed. Attorney and client costs are a form of punitive measure for improper behaviour.

(2) Re-read the set of facts at the beginning of the study unit.

Identify the type of order as to costs applicable in these circumstances. Explain briefly.(3)

Attorney and client costs. The actions of X and his attorney point to misconduct: the intentional non-
disclosure of documents and the obstruction of access to a witness are unacceptable behaviour in
the conduct of a trial.

1. Indicate when evidence may be taken down by way of affidavit and when this will be permitted.

Write short notes on party and party costs; (6)

Party and party costs are those costs which have been incurred by a party to legal proceedings
and which the court orders the other party to pay him or her. These differ from attorney and
client costs, in that they do not include all the costs which the party to litigation may have
incurred, but only such costs, charges and expenses as were incurred in the actual litigation and
which are allowed by the Taxing Master.

Taxing Master = the officer of High Court who checks bills of costs. These are drawn up according to
a tariff setting out the maximum fee allowed for each item in the litigation process.Taxing Master
decides whether the fee charged by the attorney is reasonable in view of the complexity of the case.
Once a reasonable figure has been determined (taxed), the bill of costs is presented to the other
party for payment.

Only costs incurred in the actual litigation process are included in this amount. Costs incurred
BEFORE issue of summons is not considered party and party costs. Only his taxed party and party
costs are paid. The balance owing to his attorneys will have to be paid out of his own pocket, unless
attorney and client costs are awarded by the court.

When will a court award party and party costs?

(i) General rule : the successful party is entitled to his costs.

(ii) To determine who the successful party is, court must look to the SUBSTANCE, not merely the form,
of the judgment.
(iii) Court has a DISCRETION to deprive successful party of part or all of his costs.

What circumstances will the court take into account?

(a) Whether the demands made are excessive.

(b) How the litigation was conducted.
(c) The taking of unnecessary steps or the adoption of an incorrect procedure.
(d) Misconduct.
STUDY UNIT 15 - ENFORCEMENT OF JUDGMENT
K sues L for damages on the ground of breach of contract. K succeeds in his action and the court
orders L to pay K damages to the amount of R200 000. Despite reminders, L refuses and/ or fails to
do so. K wants to know if there are any legal steps that he can take against L, since asking nicely
has not worked.

Briefly distinguish between orders ad pecuniam solvendam and orders ad factum praestandum in
respect of their nature and means of enforcement.

Orders ad pecuniam solvendam are orders in terms of which the debtor is ordered to pay a sum of
money, while orders ad factum praestandum are orders in terms of which a person is ordered to
perform or not to perform a certain action.

Orders ad pecuniam solvendem in respect of the defendant’s property are enforced by means of a
writ of execution, whereas orders ad factum praestandum in respect of the person of the debtor are
enforced by means of a contempt of court

Judgment is granted against the defendant. Upon the defendant's failure to pay the judgment
debt, you issue a writ of execution against the defendant's movable property. The Sheriff furnishes
you with a nulla bona return. What is the next step that you may take to enforce the judgment (2)
Then the Immovable property can be attached and sold where a writ has been issued against the
movables and the Sheriff has made a nulla bona return, that is, has indicated that no movable
property exists which can be attached

STUDY UNIT 16 - INTERDICTS AND EXTRAORDINARY PROCEDURES

Ben's neighbour has a row of pine trees on his property which runs the entire length of the border
they share. The trees are very old and are all taller than 15 metres. One afternoon on returning
home from work, Ben sees that his neighbour is making preparations to chop down the trees with
the help of some untrained workers. His road is blocked by branches that have already been
chopped off and which have fallen onto his property. He notices that the wall that divides the
properties has already been damaged and that some branches are caught in the electric fence on
top of the wall. By looking at the way in which some of the trees are being chopped down, there is
the distinct possibility that not only will his wall be seriously damaged but also his house if the
trunks fall in the wrong direction. B's neighbour refuses to stop cutting down the trees and points
out that his house is cold and damp because of the deep shade of the trees. He also argues that
they are his trees and that he can do what he likes on his property. Ben is highly upset and phones
his attorney with the request that he ``do something''.

Simply name the procedures applicable in the given situations:

(1) X's 90-year-old father is sometimes found wandering around town where he arbitrarily
withdraws money from the ATM and hands it out to onlookers.
A de lunatico inquirendo application (or rather an application to declare him unfit to manage his own
affairs).

(2) Read the set of facts at the beginning of the study unit. Now act for your client.

Prohibitive interdict.

(3) A and B have been neighbours for fifteen years. In the third year in which they were
neighbours, A was unsuccessful in an action against B, and since then has instituted six actions
against B. Although all the actions appear different at first glance, the facts are only slightly
different and the actions are essentially the same.

An order which prohibits vexatious proceedings.

(4) Y arrives at his holiday house one weekend. To his surprise, he sees that about ten people have
taken possession of his property. When he tries to chase them away, they threaten him with
serious bodily harm.

Restitution interdict.

(5) Z sues B. Z believes that B has two passports, that he has sold his luxury house and that his wife
and children have already left for the country of which he is a second passport holder.

Arrest suspectus de fuga.

State the grounds for interdicts:

Final interdicts
1. Must be a clear right established on a balance of probabilities
2. An actionable wrong that has been committed or reasonably thought to be committed in the
future
3. No other satisfactory method of providing the applicant with protection

Temporary interdicts
1. Must be a clear right or if this cannot be established, then a prima facie one
2. If the right is prima facie, applicant must show that he would suffer irreparable harm if
application is not granted and the respondent would not suffer such irreparable harm
3. Balance of convenience must favour the granting the interdict. Court must weigh the
prejudice caused to each of the parties if interdict is granted or not granted. If there is a
great prejudice that will be caused to the respondent, the interdict will not be granted
4. No other satisfactory remedy available to the applicant

(b) Name and explain the purpose of the different types of interdicts. (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. Prohibitory Interdicts
 An interdict in the more literal and restricted sense of the word
 An order requiring a person to abstain from committing a threatened wrong, or from
continuing an existing one
2. Mandatory Interdicts
  An order compelling a person to perform some positive act in order to remedy a wrongful
state of affairs which the respondent has brought about, or to do something which he is in
law obliged to do if the complainant is not to be deprived of his rights
 Where the act to be carried out must be performed by a public official, the order is called
a mandamus
3. Restitutory Interdicts
 Where a person is unlawfully disturbed in the possession of his property, he is entitled to
immediate restitution – even before the merits of the dispute are investigated by a court
 This type of order restores the status quo ante and is known as a mandamenten van spolie

COMBINATION QUESTIONS ON HIGH COURT

Question 1
Z wishes to obtain a divorce from her husband X. Merely state the correct answer to each of the
questions that follow. You must not give reasons for your answers.

(a) What type of summons must Z use to institute the action? (1)
Combined summons

(b) What pleading must be attached to the summons?

Particulars of claim

(c) What document can Z sign whereby Z authorises her attorney to act on her behalf? (1)
Power of attorney

(d) What form of service is necessary to serve the summons on X who is at a known address in South
Africa? (1)
Personal service

(e) What form of service of summons is necessary if X is living overseas at the time when summons is
issued? (1)
Edictal citation

(f) What form of proceedings must Z follow to obtain permission to use the form of service referred
to in (e) above? (1)
Application proceedings

(g) What is the first document that X must file if he wishes to oppose the divorce action? (1)
Notice of intention to defend

(h) What pleading must X file in order to raise his defence? (1)
Plea

(i) What step must Z take if X files the document referred to in (h) above but fails to file a plea? (1)
The giving of a notice of bar

(j) What further step may Z take if X still fails to respond to the document referred to in (i) above? (1)
Application for default judgment
(k) What procedure should a party use if the name of one of the minor children is stated incorrectly
in the plea? (1)
Amendment procedure

(l) Which party is responsible for using the procedure referred to in (h) above? (1)
Any party wanting to amend his own pleadings – in this case the DEFENDANT

(m) What procedure can Z use if X files a plea that contains vexatious statements about Z? (1)
Application to strike out the vexatious portions

(n) What pleading can X use if he has already issued summons in another court in which he has
instituted divorce proceedings against Z? (2)
Special plea – lis pendens

(o) What pleading can Z file if X raises new matter in his plea? (1)
Replication

(p) What may Z do immediately after pleadings have closed to ensure a speedy allocation of a trial
date? (1)
Apply for set down of trial

(q) What procedural step can Z take, after close of pleadings, if she feels that the pleadings contain
insufficient information to enable her to prepare for trial? (2)
Request for further particulars

(r) What procedure may Z use after pleadings have closed in order to establish what documents X
will raise as evidence at the trial? (1)
Discovery

(s) What proceeding are X and Z compelled to arrange and attend before the trial in order to attempt
to shorten the trial? (1)
Pre-trial conference

(t) What form of cost order will Z request if she is of the opinion that X seriously misconducted
himself during the course of proceedings? (1)
Attorney and client costs

e) Name the type of procedure which X must use if Z used the incorrectly type of summons to
institute the action.
Application for setting aside irregular proceedings

f) Which remedy may Z use if she believes that X will leave the country to avoid paying her R800 000
in terms of the settlement reached between them?
Arrest suspectus de fuga

g)What is the subpoena called in terms of which a witness is directed to make a specific document,
which is in his/her possession, available at the trial?
Subpoena duces tecum
Question 2
F intends to sue G in the amount of R150 000 for goods sold and delivered by F to G, for which
despite demand, G fails to pay. With these facts in mind, answer the following questions.
(a) Name the type of summons F should use to institute the action for payment of the contract price.
(1)
Simple summons

(b) Explain why you selected the summons stated in your answer to (a)above. (2)
It is for a debt or liquidated demand

c) Name the options available to G within the prescribed period stated in the summons. (2)
Page 36

(d) Indicate the step F may take if G fails to exercise the options stated in your answer to (c) above?
(1)
Application for default judgment

(e) If G indicates that he wishes to defend the action, determine whether F must deliver a
declaration or bring an application for summary judgment. (2)
F can react by serving and filing a declaration within a prescribed period, PROVIDED the plaintiff
does not apply for summary judgment.

(f) Would your answer to (a) above differ if G paid F for the goods sold and delivered but G's cheque
was dishonoured payment stopped? Explain. (2)
Simple summons could still be used, but the plaintiff would have the additional option of using
provisional sentence summons, as he has a liquid document.

(g) Would your answer to (a) above differ if F's claim was for defamation? Explain. (2)
Yes, the answer would be different. As it is a claim for satisfaction, a combined summons must be
used.

Question 3
Q is a landlord and Z is his tenant. Z is in arrears with his rental. Q issues a summons against Z for
the arrear rental and ejectment.
(a) Name the summons that Q must issue against Z. (1)
Simple summons

(b) Explain why Q must issue this type of summons. (4)

A claim for ejectment is regarded as a debt or liquidated demand –
see page 35

(c) Name the procedure that Z may use if he/she does not want to defend the action but wishes to
dispose of the claim by means of a pre-trial judgment. (1)
Consent to judgment

(d) Describe the procedure identified in (c) above. (3)

Page 72

(e) Name the procedure that Q may use if Z fails to respond to the summons within period of time
stated therein. (1)
Default judgment

(f) Describe the procedure identified in (e) above. (4)

Page 73

(g) Name the procedure that Q may use if Z enters' a notice of intention to defend but Q believes
that Z does not have a bona fide defence. (1)
Summary judgment

(h) Describe the procedure that Q must use in order to bring the application identified in (g) above.
(5)
Page 75

(i) What document must Q file in response to Z’s notice of intention to defend? (1)
Declaration

Question 4
X and Y are involved in a motor vehicle collision. X alleges that the collision was due solely to the
negligence of Y. On account of the collision, X claims for loss of earnings, medical expenses as well as
pain and suffering. In the light of these facts, you must merely NAME -
(a) the nature of X's claim against Y; (1)
Claim for damages
(b) the type of summons that X must issue against Y; (1)
Combined summons
(c) the method of serving the summons if Y is in South Africa but his
address is unknown; (1)
Substituted service
(d) the pleading that Y must deliver to X after Y has filed a notice of
intention to defend; (1)
Plea
(e) the notice which X will serve on Y if Y fails to file the pleading referred to in (d) above; (1)
Notice of bar
(f) the pleading which Y will use (in conjunction with his pleading referred to in (d) above) if Y has a
claim in reconvention against X; (1)
Counterclaim
(g) the pleading that X will use if Y introduces new facts in the pleading referred to in (d) above; (1)
Replication
(h) the pleading that Y must use if he is of the opinion that X's particulars of claim do not disclose a
cause of action; (1)
Exception
(i) the pleading that Y will use if X's claim has prescribed; (1)
Special plea - prescription
(j) the process that Y may use if X's particulars of claim contain allegations that are vexatious; (1)
Application to strike out
(k) the procedure that Y will use in order to correct his motor vehicle registration number stated in
his pleading referred to in (d) above; (1)
Amendment procedure
(I) the procedure that Y must follow if X has used the wrong type of summons to institute the action;
(1)
Application to set aside irregular proceedings
(m) the procedure that X must follow if, during the course of the proceedings, he requires assistance
in paying his medical costs; (1)
Application for interim payments
(n) the procedure that Y may use in order to settle the matter in terms of Rule 34; (1)
Offer to settle
(o) the notice that should be delivered by X (or by Y upon X's failure to do so) once pleadings have
closed; (1)
Notice of set down
(p) the meeting that X must arrange in terms of Rule 37 after receipt of notice of the trial date; (1)
Pre-trial conference
(q) the type of application that X may use to request relief from the court in regard to V's failure to
deliver his discovery affidavit to X; (1)
Application to compel discovery
(r) the usual costs which the court will order Y to pay if X succeeds in his claim. (1)
Party and party costs

Question 5
X purchases a second-hand vehicle from Y and pays the purchase price of R150 000 by cheque. The
cheque is dishonoured by X's bank. Y issues a provisional sentence summons against X for an
amount of R150 000. Bearing these facts in mind, merely STATE:
(a) What document must be attached to the provisional sentence summons (1)
Copy of the liquid document
(b) What process must X, the defendant, file if he wishes to dispute liability for the debt? (1)
Affidavit setting forth the grounds upon which he disputes liability
(c) What are the two matters on which the court may hear oral evidence during the provisional
sentence proceedings; (2)
Authenticity of the defendant’s signature or that of his agent, or the authority of the defendant’s
agent
(d) Once the court grants provisional sentence, what is the defendant entitled to demand from the
plaintiff before making payment? (1)
Security de restitutiendo
(e) What document must the defendant file to indicate that he wishes to enter into the principal
case? (1)
Notice of intention to defend
(f) Within what period must the defendant file the document stated in (e) above? (1)
Within 2 months after provisional sentence has been granted
(g) What is the next pleading that must be filed in the principal case? (1)
Plea
(h) What notice must X serve on Y if Y fails to file the pleading referred to in (g) above? (1)
Notice of bar
(i) What procedure may Y follow if X has commenced proceedings by using the wrong type of
summons? (1)
Application to set aside irregular proceedings
(j) What notice should be delivered by X (or by Y upon X's failure to do so) once pleadings have
closed? (1)
Notice of set down
(k) What procedure can X use if X fears that Y is about to leave the country to avoid payment of the
debt before the judgment becomes final? (1)
Arrest suspectus de fuga
(I) What document will the registrar issue which authorises the sheriff to arrest Y in the
circumstances described in (k) above? (1)
Writ of arrest
(m) After the issue of the provisional sentence summons, what type of order must Y obtain in order
to prevent X from selling the vehicle? (1)
Prohibitory Interdict
(n) Will Y use summons or application proceedings to obtain such an order? (1)
Application procedure

Question 6
C claims damages from D in the amount of R500 000 on the grounds of defamation. The action is
instituted in the High Court by means of a combined summons. On the basis of these facts,
determine whether the procedure used by either C or D is correct or incorrect. Give reasons for
each answer and where necessary, state what the correct procedure should be.
(a) D raises a defence on the merits by means of a notice of intention to defend. (3)
Incorrect. D must file a notice of intention to defend and raise a defence on the merits by means of
a plea
(b) D applies for an amendment of C's particulars of claim on the grounds that the intention to
defame has not been alleged by C. (4)
Incorrect. If D believes C’s particulars do not disclose a cause of action, he must except to the
summons
(c) C brings a motion to strike out the whole of D's plea on the merits on the grounds that it contains
the words " .. It is well-known that C is a dishonest politician". (3)
Incorrect. C has brought the correct application, but an application to strike out is only to strike
out the offending words and not the whole document.
(d) In his/her plea, D confesses the defamatory words but raises truth and the public interest as a
defence in avoidance of the claim. D assumes that the pleadings are closed in terms of rule 29(a) and
sets the matter down for trial. (4)
Incorrect. D has raised a special defence in his plea, to which the plaintiff can respond by
replication. Thus, the pleadings have not closed. Also it is the plaintiff’s right to set the matter
down for trial. It is only if the plaintiff fails to do so, that the Defendant can do so.
(e) Once the pleadings have closed, C requests further particulars in respect of the evidence which D
will lead at the trial. (2)
Incorrect. C can request further particulars for the purpose of preparing for trial. However no party
is ever required to reveal the evidence he will present at the trial.
Question 7
B wishes to sue her husband, C, for divorce in a High Court (a) Why is it appropriate for B to issue a
combined summons in this instance? (2)
it is an unliquidated claim
(b) Name the usual processes and pleadings that will be exchanged between the parties if the action
is opposed. (8)
combined summons and particulars of claim (plaintiff); notice of intention to defend (defendant);
plea (defendant); possible counterclaim (defendant); replication (plaintiff)
(c) C, the husband, has always refused to settle down in any one place and prefers to travel around
South Africa doing odd jobs and selling wooden crafts. Briefly identify and discuss the procedure that
B will have to follow to effect service of summons upon C under these circumstances. (8)
Substituted service – page 31
(d) C, the husband, fears that B may leave the country, taking their two minor children with her. C
approaches the court for a temporary interdict to prevent such an occurrence.
(i) Name the type of proceedings that C would use to obtain the interdict. (1)
application procedure
(ii) Name the documents that the parties must exchange if B opposes the proceedings. (5)
notice of motion plus supporting affidavit; notice of intention to oppose; answering affidavit;
replying affidavit

Question 8
F intends to sue G for damages in the amount of R200 000 arising from breach of contract.
(a) Explain why F should use a combined summons and not a simple summons to institute his action
against G. (4)
The claim for damages is an unliquidated claim. This means that the quantum still has to be
proved by the leading of evidence. Only then can a court make a finding. Consequently, the
combined summons is the correct summons to use. A simple summons is only used if a claim falls
within the definition of a "debt or liquidated demand"; in other words, this refers to a claim
that is (amongst others) fixed and definite or easily ascertainable.
(b) Explain why it would not be correct for F to institute the action by way of application procedure.
(3)
There would clearly be a real dispute of fact (or a real dispute over any fundamental question of
fact), which cannot satisfactorily be settled without hearing oral evidence.
(c) Name the options available to G if he wishes to respond within the prescribed period stated in
the summons. (3)
The defendant has various options and can
 admit the claim and pay the amount claimed
 give notice of his/her intention to defend
 consent to judgment
(d) Explain the procedures that F must follow if G fails to deliver his plea on the merits. (6)
Default judgment. The plea on the merits is not a pleading as envisaged by Rule 26; namely, a
"replication or subsequent pleading". The defendant is therefore is not automatically barred; the
plaintiff first has to deliver a notice of bar to the defendant in which he or she is instructed to
deliver his or her plea on the merits. Should the defendant fail to do so, he/she is in default and is
automatically barred. The plaintiff can now request default judgment. (since the claim is
unliquidated, evidence to prove the quantum is required and you would have received credit.)
Please note that one cannot apply for a notice of bar (or any other notice for that matter); a party
simply issues a notice.

Question 9
X and Y enter into an agreement of sale in terms of which X has to deliver 10 specially selected and
branded oxen to Y. The agreed purchase price is R300 000. Y pays the purchase price by cheque. X
fails to deliver the oxen and Y issues summons against X for delivery of the oxen.
(a) Discuss the procedure that Y may use if X delivers a notice of intention to defend and Y is of the
opinion that X did this to gain time and to prevent Y from obtaining the relief. (6)
Clearly, summary judgment should have been identified on the basis of the given facts. You need
to identify the types of claim which give rise to this procedure. You have to state the 2 grounds
for summary judgment – page 75
(b) During the court proceedings referred to in (i) above, but before the court delivers its judgment,
Y is informed that X is finalising arrangements to leave the country. Explain which remedy is
available to Y under these circumstances as well as its purpose. (5)
Arrest suspectus de fuga. The writ of arrest is issued by the
Registrar and that the court is not directly involved – page 99
(c) Name the process that Y may use in order to commence the proceedings referred to in (ii) above.
(1)
Writ of arrest
(d) If X delivers the oxen but Y's cheque is dishonoured by his bank, name the two types of summons
which X may select to institute the action.(2)
Simple summons and provisional sentence summons

Question 10
X and Y are married to each other. A minor son is born out of the marriage. The husband X wishes to
emigrate to Australia. However, Y the wife, refuses to leave South Africa and insists that the minor
child remain with her. Ten days before X is due to leave for Australia, he abducts the minor child. Y
wishes to obtain an order for the custody and control of the minor child. Bearing these facts in mind,
answer the following questions.
(a) Should Y use action or application proceedings? (4)
Ex parte application procedure
(b) If the matter is opposed by S, name and describe the documents which will be exchanged
between the parties. (4)
Notice of motion plus supporting affidavit; notice of intention to
oppose; answering affidavit; replying affidavit
(c) What procedure may X use if Y's documents contain inadmissible evidence? (1)
Motion to strike out
(d) What type of order is the court likely to grant in favour of Y? (1)
Rule nisi

Question 11
S issues a summons against T for goods sold and delivered in the amount of R120 000, which T
refuses to pay despite demand. With these facts in mind, answer the following questions, giving
adequate reasons for your answer where necessary.
(a) What should T, the defendant, do if he/she acknowledges that part of the claim is due and owing
and wishes to settle this part of the claim immediately? (2)
A written offer to settle in terms of Rule 34 (study unit 11.2). Note: Strictly speaking, common law
tender can also be considered,
(b) What procedure should S, the plaintiff, use if T does not respond to the summons within the
period stated in the dies induciae? (1)
Default judgment
(c) Should S deliver a notice of bar to T before S can apply for the procedure stated in (ii) above? (1)
No. The reasons are twofold: since the defendant did not give a notice of intention to defend,
he/she is not a party to the matter and therefore does not need to be involved in the matter any
further. Secondly, the notice of intention to defend is not a pleading and bar applies only in
respect of pleadings
(d) Name the procedure that S may use if T files a notice of intention to defend within the period in
the dies induciae but does so merely to delay the action?
Application for summary judgment
(e) Indicate the steps that T can take to defend the proceedings instituted by S in (iv) above. (2)
T can convince the court by way of affidavit that he/she has a bona fide defence or, with the leave
of the court, by way of oral evidence
(f) Discuss the differences in the nature of evidence presented by both S and T at the hearing of the
proceedings instituted by S in (iv) above. (3)
The plaintiff may not include evidence in support of his/her claim in the affidavit, while the
defendant must fully disclose the nature and grounds of his/her defence

Question 12
B is totally shocked when he is informed that an order for default judgment has been granted
against him. The claim is for goods sold and delivered to him in the amount of R140 000 and in
respect of which B has written to the supplier stating that he was withholding payment because
the goods were defective. To B's knowledge a summons had not been served on him. However B’s
18 year old daughter confesses that she accepted service of the summons and was so busy with
her UNISA exams that she forgot to give the summons to B. She finds the summons hidden away
between her study material. B consults you. Explain.
(a) whether proper service was effected; (2)
YES – page 31
(b) what steps can be taken to assist B. (4)
Page 74

Question 13
X purchases a second-hand vehicle from Y and pays the purchase price of R150 000 by cheque. The
cheque is dishonoured by X's bank. Bear these facts in mind and indicate if the following procedures
are correct or not, and give reasons for your answers. Where necessary, indicate the correct
procedure.
(a) Y issues a combined summons against X since the claim is for a debt or a liquidated demand. (6)
Although the claim falls within the definition of a "debt or liquidated demand", it is incorrect to
issue a combined summons. A combined summons is used when the claim is unliquidated. Y
should have issued either a simple summons, or a provisional sentence summons, since, on the
one hand, a claim based on a (dishonoured) cheque is an example of a "debt or liquidated
demand" (it is also one of the types of claim on which summary judgment can be given). On the
other hand, the provisional sentence summons procedure is specifically designed to accommodate
claims based on liquid documents (eg, a cheque).
(b) Y issues an appropriate summons. X wishes to defend the matter and serves and files his plea on
the merits. (4)
One does not indicate one's wish to defend a matter by serving and filing a plea on the merits, a
notice of intention to defend is used for this purpose. The latter is only a notice to that effect and
nothing more. Only after this notice (and within the stated dies induciae) is a plea on the merits
served and filed, detailing in clear terms the grounds of the defendant's defence in answer to the
plaintiff's claim. Note: This is a fairly complex question in the sense that each aspect touched upon
in the statements has to be commented on.
Therefore you should read this question carefully and should you encounter a similar one in the
examination, you should make sure that your answer covers all aspects of the question.

Question 14
M issues a combined summons against N for damages arising out of breach of contract. N responds
with a notice of intention to defend. Thereafter, within the prescribed time limit, N files a plea on
the merits along with a counterclaim. With these facts in mind, answer the following questions.
(a) Name the pleading that must be filed by M if N in his plea on the merits responds to one of the
allegations contained in M's particulars of claim by means of confession and avoidance. (1)
Replication
(b) Name the pleading that M must file in response to the allegations contained in N's counterclaim.
(1)
Plea on the counterclaim
(c) Name the pleading that N may use if M's pleading referred to in (b) above does not disclose a
valid defence. (1)
Exception
(d) Name the procedure that M may use if M believes that N is in possession of a tape recording of
the negotiations between M and N and which gave rise to the conclusion of the contract. (1)
Request inspection of the tape recording

Question 2
X and Y, with their toddler, emigrate from Poland to South Africa. After six months X, the husband,
decides to leave South Africa and settles in Namibia. The wife, Y, remains behind and later decides
to institute divorce proceedings. Answer the following questions, giving full reasons for each
answer where appropriate.
(a) Why is it inappropriate for Y to issue a simple summons in this instance? (2)
It is an action for divorce – combined summons must be used.
(b) Why is it inappropriate for Y to use application proceedings to institute action? (1)
In terms of the rules, it is compulsory to use summons proceedings
c) Briefly explain why Y's attorney should draw up a power of attorney, despite the fact that Rule
7(1) of the Uniform Rules of Court does not require one for the issuing of the summons in the action.
(2)
Page 23
(d) In matrimonial actions it is the practice of most courts to insist on personal service. Does this
mean that Y will not be able to sue X for divorce in South Africa? (3)
No. Use edictal citation – page 31
(e) Why would it be necessary for Y to deliver a replication if X's defence is one of confession and
avoidance? (1)
Page 53
(f) In the Deed of Settlement X has undertaken to pay Y an amount of R500 000, but pending a
divorce order Y is strapped for cash. Can she make use of the procedure contained in rule 34A to
obtain an interim payment? (3)
No. Interim payments are only in the case of personal injuries or death of a person – page 69. Y
must make use of the R43 application procedure.
(g) If X wishes to claim financial support from Y, may he do so in his plea on the merits? (3)
No – see page 51
(h) Y is successful in obtaining an order for divorce. Explain whether the
court is compelled to award Y party and party costs. (5)
No – see page 88

PART 2 - Procedure in the Magistrate's Court

STUDY UNIT 17 - THE APPLICATION PROCEDURE

Tom issues summons against Samuel in the amount of R50 000 for goods sold and delivered.
Samuel undertakes to settle the matter. Meanwhile, Tom hears from some business colleagues
that Samuel has liquidated his assets, and that he is making plans to relocate to Zimbabwe. Tom
also discovers that Samuel holds a Zimbabwean passport because his mother is Zimbabwean by
birth. Tom needs to act quickly. Peter and Solly enter into a contract. A dispute arises between
them. Peter wishes to approach the magistrate's court for relief. The dispute relates to the legal
interpretation of various clauses of the contract.

(1) What procedure must Tom use?

Tom must bring an application for arrest tanquam suspectus de fuga.

(2) How must this procedure be instituted?

It must be brought by ex parte application.

(3) What is the reason for such application?

Relief is urgently required. The purpose of it is that if the person is notified he will flee the country to
avoid payment of the debt. The arrest prevents Samuel from leaving the court's jurisdiction unless
he can give security for the debt so that the court can give an effective judgment.

(4) Write concise notes on ex parte applications in magistrates' courts procedure.

Ex parte applications may be brought only in those instances where the applicant cannot request an
order against a person. Rule 56 provides an exception in that applications for arrests tanquam
suspectus de fuga, interdicts, attachments to secure claims, and mandamenten van spolie may be
made by means of ex parte applications. The reason is that a speedy remedy, where relief is urgently
required, will be frustrated if the other party is notified of the intended application in advance. The
court grants a temporary order and determines a return day on which the person against whom the
order is made must give reasons why the order should not be made final (rule nisi). The court may
also require the applicant to provide security for any losses suffered and may require any additional
evidence where relevant. Any party affected by the ex parte order may apply to court after 12 hours'
prior notice to have the order discharged. The order is ipso facto discharged upon security being
provided by the respondent for the amount to which the order relates.

(1) Name the form of proceeding that Peter should use to approach the court for relief.

Motion or application procedure.

(2) Briefly describe the documents which may be exchanged between Peter and Solly in the
opposed application proceedings in the magistrates' courts.

The applicant, Peter, will initiate the proceedings by drawing up a notice of motion which conforms
with Form 1 of the Magistrates' Courts Rules. Attached to this notice of motion is 109 The
application procedure a supporting affidavit. Such affidavit sets out Peter's and other interested
persons' evidence in support of the order applied for. The respondent, Solly, replies to Peter's
allegations as contained in the supporting affidavit, in the responding affidavit. Peter has an
opportunity to reply to Solly's responding affidavit. The purpose of such reply is to adduce new facts
which serve as a reply to the respondent's defence. The court has a discretion to allow the filing of
further affidavits.

Explain briefly why it may be said that ex parte applications constitute an exception to the audi
alteram partem doctrine. [4]

The audi alteram partem rule, if applied to the sphere of civil procedure, means that every person is
entitled to be heard before an order or judgment is granted against him or her. For this reason, the
courts meticulously enforce the requirement that a party be timeously notified of any steps to be
taken against him or her, to enable such party to reply to the case against him or her and to place his
or her case before the court. In this way, the rule protects those whose rights may be affected by an
order, or whose interests may be affected by it. Against this background it is clear why an ex parte
application is an exception to this rule: an ex parte application may be heard by the court without
notice being given to anyone.

(a) Name three types of applications in the magistrates' courts. (4)

(1) Applications by notice of motion without affidavits. Rule 55(2) is applicable in this instance.
(2) Applications by notice of motion supported by affidavits. These applications are those in which an
order is sought in terms of section 30, namely orders for arrest tanquam suspectus de fuga,
attachments, interdicts and mandamenten van spolie.
(3) Applications for which a special form is prescribed, that is, applications for summary judgment,
for trials with assessors and for administration orders.

STUDY UNIT 18 - INSTITUTING THE ACTION: THE SUMMONS

John and Peter are involved in a motor collision in Johannesburg. Peter contends that the collision
was due solely to the negligence of John. Peter suffers damages in the amount of R80 000. Peter
wishes to institute proceedings in a magistrate's court in the amount of R80 000. John intends to
defend the action.

(1) In what circumstances will it be necessary for Peter's attorney to file a power of attorney?

A power of attorney does not have to be filed since rule 52(2) provides that it is not necessary for
anyone to file a power of attorney to act in a magistrate's court unless the attorney's authority to act
is challenged.

(2) Who is responsible for issuing the summons?

The Clerk of the Civil Court.

(3) Name the instances when the issue of a summons may be refused.

The Clerk of the Court may refuse to issue a summons in the following instances: when an excessive
amount is claimed for attorney's costs or court fees, or if the address of service does not comply
with the provisions of the Act (rule 6(4)).

(4) What procedure must Peter follow if he decides to amend the summons after service?
Peter may amend the summons after service by following the procedure set out in rule 55(A).

(5) What particulars will Peter's summons contain?

Peters's summons will contain the following particulars:

(a) the dies induciae

(b) a warning of the consequences which will result if the defendant fails to comply with the request
in the summons

(c) a notice of consent to judgment

(d) a notice of intention to defend

(e) a notice drawing the defendant's attention to the provisions of section 109 of the Act

(f) a notice in the case of a summons where the claim is founded on a debt in which the defendant's
attention is drawn to sections 57, 58, 65A and 65D

(g) the address at which the plaintiff will receive pleadings

(h) a description of the parties

(i) averments in respect of jurisdiction

(j) particulars of claim

(k) the prayers

D issues a summons against Y. Y queries whether D’s attorney acted under a proper mandate from
D, because no document has been filed with the registrar that identifies him as D’s attorney.
Discuss the merits of Y’s objection. [ 4 ]

A power of attorney offers proof of the existence of a mandate from a client to an attorney, and also
of its contents and its extent. It therefore identifies the party’s attorney. In terms of Rule 7(1) of the
Uniform Rules of Court, the filing of a power of attorney is not required for the issuing of a summons
(or even for the entering of an appearance). However, it is required for the conduct or defence of a
civil appeal in the High Court (Rule 7(2) and 7(3)). In this particular instance, we are dealing with the
issuing of a summons, and therefore Y’s objection is without merit.

As clerk of the court, state

(i) the formalities with which you must comply in order to issue the summons. (4)
 correct value revenue stamps must be attached
 Rule 1(2)(a) provides that, in all respects, a summons must conform either to Form 2 of
Schedule 1 of the Act (in the case of an ``ordinary summons''), or to Form 3 (in the case of a
summons including an automatic rent interdict).
 Rules 5 and 6 set out the content of the summons
 A power of attorney does not have to be filed, since rule 52(2) provides that it is not
necessary for anyone to file a power of attorney to act in a magistrate's court.
(ii) what you must do if the plaintiff amends the summons before it is served. (1)
116
STUDY UNIT 19 - STEPS THAT MAY BE TAKEN BY THE DEFENDANT AFTER
SERVICE OF THE SUMMONS
John and Peter are involved in a motor-vehicle collision in Johannesburg. Peter contends that the
collision was due solely to the negligence of John. Peter suffers damages in the amount of R80 000.
Peter wishes to institute proceedings against John in the magistrate's court. Peter issues summons
in the amount of R80 000 against John. John may take various steps after being served with the
summons.

(1) Complete the following notice:

NOTICE OF XXXXXXXXX
Take notice that the Defendant intends to defend the
action.
Take further notice that XXXXXXXX

NOTICE OF INTENTION TO DEFEND

Take notice that the Defendant intends to defend the action.
Further kindly take notice that the Defendant gives the address of his
attorneys for acceptance of service of process or documents in this
case.

(2) What is the definition of a judgment by default?

It is a judgment given in the absence of a party against whom it is granted. See rule 2(1)(b).

(3) What is the position if appearance to defend is entered late but before lodgement of the
request for judgment?
The appearance to defend will be valid provided it is submitted before request for default
judgment or default judgment has not been granted.

(4) What documents must be forwarded to court in order to obtain judgment by default?
The following documents, namely
(a) The original summons with return of proper service.
(b) The written request for default judgment in duplicate.
(c) In the case of unliquidated claims (eg damages as a result of motor-vehicle collision)
affidavits which prove the nature and extent of the damages must be attached.
(d) In the case of a claim based on a liquid document, the original document duly stamped or
an affidavit setting out reasons to the court's satisfaction why such original cannot be filed.
(e) In the case of an action based on a credit agreement which is subject to the Credit
Agreements Act, the agreement and certain affidavits must be lodged.
(f) In the case of an action based on a written agreement, the agreement duly stamped
must be lodged. (See rule 12)
(5) What steps may the court take when a request for judgment is referred to it by the Clerk of
Court?
The court may take any of the following steps:
(a) The court may call upon the plaintiff to produce either written or oral evidence if default
judgment is sought, to support his or her claim.
(b) If judgment by consent is sought, the court may call upon the plaintiff to produce
1 2evidence to satisfy the court that the consent has been signed by the defendant and it is
a consent to the judgment sought.
(c) Give judgment in terms of the plaintiff's request or for so much of the claim as has been
established to its satisfaction.
(d) Give judgment in terms of the defendant's consent.
(e) Refuse judgment.
(f) Make such order as may be just (rule 12(7)).

While overseas furthering her studies, judgment by default is granted against X in the Pretoria
High Court. Upon her return to South Africa, X learns that the plaintiff also applied for a writ of
execution. X approaches you for advice and alleges that the summons was never served on her,
that for the past six months she was overseas and that the plaintiff was aware of this fact, because
before her departure she arranged with the plaintiff to pay him the amount owing within seven
days after her return.

(a) Advise X on what to do in these circumstances. (4)

(a) X may, within 20 days after this judgment has come to her knowledge, apply to court to have the
judgment set aside. Since the court has a discretion whether or not to set aside this judgment, X
must also advance sound reasons for her failure to enter an appearance.

(b) Indicate briefly the court’s interpretation of the expression “sound reasons” in this context. (3)

• a reasonable explanation must be given for the failure

• the application must be bona fide, and not merely a delaying tactic

• the defendant must have a bona fide defence.

(c) If the plaintiff may proceed to enforce the judgment, indicate the order in which X’s property
may be attached. (2)

Execution is first levied on movable property, and then, circumstances permitting, on immovable
property.

(a) Discuss fully consent to judgment in terms of rule 11. (10)

If the defendant admits that he or she owes the amount claimed in the case of a liquidated claim,
he or she may pay the amount of the claim. However, the problem arises that the defendant is
usually not in a position to pay this amount immediately. Therefore, the Act provides that the
defendant may consent to judgment and an instalment order (ss 57 and 58).
Rule 11 also provides for consent to judgment. This consent may be given in respect of all types
of claims including unliquidated claims. Please note the following in respect of consent to
judgment in terms of rule 11:
(1) Consent to judgment may be given before or after entering appearance to defend.
(2) When consent occurs before entering appearance to defend, the defendant must sign the
prescribed form on the original summons. The Clerk of the Court is required to notify the
plaintiff of the consent. (The sheriff returns the original to the court after service.)
The defendant may also sign the form of the copy of the summons, but he or she is then
responsible for the lodgment thereof with the Clerk of the Court. The defendant may also
sign a similar form, but this form must then also be signed by two witnesses, and their
names and addresses must be furnished. This form must then be submitted to the Clerk of
the Court.
(3) If consent to judgment is given before the Sheriff of the court has been ordered to serve the
summons, the defendant will not be responsible for the costs of service. If consent to
judgment is given before the expiry of the period allowed for the filing of notice of intention
to defend, the defendant will also not be responsible for the costs of service.
(4) It is also possible to consent to judgment after appearance to defend (rule 11(4)). The
plaintiff may take judgment in the amount for which consent has been given, but he or she
would have to prove the balance of the claim as he or she would in a normal trial.
(5) The defendant may also consent to judgment in an amount less than that claimed in the
summons, and he or she may still file his or her notice of intention to defend regarding the
balance of the claim.
(6) The purpose of the procedure is to limit costs in two ways: to ensure that no further costs
are payable after total consent, and to ensure that costs may be calculated at a lower scale
in the case of partial consent.
(7) Where the defendant has consented to judgment, the Clerk of the Court must record
judgment in favour of the plaintiff for such amount, unless the consent is contained in the
defendant's plea, in which case it must be referred to court.

(b) Explain the procedure that must be followed in order to obtain judgment by default in terms of
rule 12 of the Magistrates' Courts Rules. (8)
(1) The application for default judgment is not ordinarily heard in open court. The plaintiff
merely lodges a written request with the Clerk of the Court.
(2) The Clerk of the Court may grant the judgment in all liquidated claims. Barclays Western Bank Ltd
v Creser 1982 (2) SA 104 (T)
(3) In any unliquidated claim, such as a claim for damages, the request for judgment must be
referred to a magistrate in chambers. The plaintiff must give evidence either orally or on
affidavit regarding his or her quantum of damages (rule 12(4)). In Barclays Western Bank
Ltd v Creser 1982 (2) SA 104 (T), it was decided that the plaintiff does not have to prove
his or her cause of action in this respect. The plaintiff merely has to identify his or her
claim by showing, for instance, that it is a claim for specific performance or damages.
Thereafter, the magistrate can determine the amount which the plaintiff is entitled to recover
according to rule 12(4), and can grant an apposite judgment.
(4) In any request for judgment made in respect of a claim arising out of a credit agreement
governed by the Credit Agreements Act, the request must also be referred to the court.
(5) If the application is based on a liquid document, this document must be filed before judgment
is entered. If the original document cannot be located, the plaintiff must file an affidavit setting
out reasons why the original liquid document cannot be attached to the request.
(6) Please note that the proceedings only take place in open court when evidence is led.
Furthermore, an official of the court may grant judgment in certain cases

(c) Discuss the notice of intention to defend in the magistrates' courts. (8)
 If defendant wants to defend the action, he must file a notice of intention to defend
 If the notice is defective (certain requirements ito the rules have not been complied with):
o Not been properly served
 o Not been properly signed OR
o Does not comply with the requirements iro address for service
Plaintiff must first file a written notice requesting the defendant to file a proper notice within 5
days of service of plaintiff’s said notice (Notice ito Rule 12(2))
 Plaintiff can apply for default judgment if the defendant fails to submit a proper notice of
intention to defend
 Even if defendant does not timeously give notice of intention to defend, his notice will be
valid, ,provided that it was submitted before a request for default judgment
 If notice of intention to defend and request for default judgment are delivered on the same
date, the notice remains valid, provided that judgment has not been granted
 In HC plaintiff may apply for rescission of a late notice of intention to defend (different from
MC)
 Entry of appearance to defend takes place without prejudice to any exception which the
defendant may raise
 Special provision is made for recording of appearance by the COC on behalf of illiterate
persons who do not have legal representation

(d) Name six (6) circumstances under which a defendant may require a plaintiff to provide security
for costs. (6)
o Is not resident or working in RSA
o Is an unrehabilitated insolvent
o Is a registered or incorporated company or CC
o Has no substantial interest in the cause of action
o Is a person iro whom the court has made an order ito s74 of the Act Is a person to whom
assistance is rendered ito the Agricultural Credit Act

(e) Discuss the four (4) instances when default judgment may be granted against a party in a
magistrate's court. (8)
Default judgment may be granted in the following instances:
 If the defendant fails to enter an appearance to defend within the dies induciae.
 Where the defendant enters appearance to defend, but fails to deliver a plea within the time
stipulated in the notice of bar in terms of Rule 12(1)(b). Speelman v Duncan 1997 1 SA 868
(C) is authority for the preposition that five days written notice in terms of rule 12(1)(b)
means five days from the date of receipt of the notice within which the defendant may
comply with it, and not five days from the date on which the notice was delivered to the
clerk of the court.
 If the plaintiff or applicant does not appear at the time set down for the hearing in the trial
of the action or in the application. The action or application may be dismissed with costs.
 If a party fails to comply with a court order obliging him or her to comply with the provisions
of the rules of court in terms of rule 60(2) and (3). The court may for example, have ordered
a plaintiff to supply further particulars and he or she fails to furnish further particulars within
the time stipulated in the court order. The judgment is granted on application in terms of
rule 60(3).

(g) Discuss payment without prejudice of rights by way of an offer in settlement. (6)

 Aka – “payment into court”

 Defendant must indicate in the notice which he has to deliver together with payment, whether the
payment includes the settlement of both the claim and the costs
  If plaintiff does not accept payment ito rule 18(2), and does not at trial, succeed in proving that he
is entitled to more than the amount of the payment, he will be liable for all costs incurred after the
date of payment
 Payment into court is not disclosed to the court in the pleadings until after the court decides
liability
 Procedure enables plaintiff to reassess whether he wishes to persist in the original claim or whether
he intends to accept the amount paid into court
 Only used where claims sound in money
 Hallick v Plumtree Motors CC
o When payment ito Rule 18 is accepted, litigation is terminated as the whole cause of action is
destroyed

(h) Summons is served on a defendant. However, the defendant does not wish to defend the
action. Describe the steps that the defendant must take under these circumstances. (5)
If the defendant does not succeed in persuading the plaintiff to settle the matter by means of
negotiation, the following three procedures may be followed to bring about settlement, or,
alternatively, to minimise his or her liability for costs:
(1) unconditional payment into court
(2) payment into court without prejudice of rights by way of an offer in settlement of the
plaintiff's claim
(3) tender

Question 2
S is a bachelor who goes on an extended holiday overseas. When he returns he discovers that
summons has been served on him. He consults with his attorney who informs him that the dies
induciae has expired. Nevertheless, S instructs his attorney to file a notice of intention to defend.
Determine whether the notice of intention to defend is valid. (5)
If the defendant does not timeously give notice of intention to defend, his
or her notice will nevertheless be valid, provided that
 it is submitted before a request for default judgment.
If the notice of intention to defend and the request for default judgment are delivered
on the same date, the notice remains valid, provided that judgment has not been granted.
In the High Court, the plaintiff may, in terms of Uniform Rule 30, apply for rescission of a late notice
of intention to defend. The magistrate's court procedure therefore differs from that of the High
Court in this respect.

STUDY UNIT 20 - SUMMARY JUDGMENT AND PROVISIONAL SENTENCE

John, a spaza shop owner, purchases goods to the value of R80 000 from Peter, the owner of a
retail merchandise store. The goods are delivered at John's shop. John receives a copy of the
invoice after having signed the original. Despite repeated requests John refuses and/or fails to pay
for the goods delivered. Peter issues summons against John in the amount of R80 000 for goods
sold and delivered. John enters an appearance to defend.

(1) What procedure may Peter use when applying for summary judgment?

The plaintiff, Peter, proceeds by way of application procedure. This procedure involves an
application for which a special form is prescribed, namely summary judgment, and must be
distinguished from an application by means of notice of motion with or without supporting
affidavits.

(2) What are the three requirements for the supporting affidavit which must be filed by the
plaintiff together with the notice for summary judgment?

The three requirements are as follows:

(a) It must be signed by the plaintiff personally and he or she must state that he or she has personal
knowledge of the facts; or in the case of a legal person, it must be signed by someone who alleges
that he or she is duly authorised to make the affidavit; in addition, he or she must state his or her
capacity in respect of the plaintiff and that he or she has personal knowledge of the facts.

(b) The plaintiff must verify or confirm the amount or cause of action.

(c) The deponent must state that in his or her belief there is no bona fide defence to the claim and
that appearance has been entered solely for the purpose of delaying the action (rule 14(2)).

(3) What steps may the defendant John take to ward off the summary judgment application?

The defendant, John, may take the following steps:

(a) He may pay into court the amount for which he or she is sued together with such costs as the
court may determine or may give security to the satisfaction of the plaintiff for such sum.

(b) The defendant may give security that he will satisfy whatever judgment may be given against him
in the action.

(c) The defendant may give evidence that he or she has a bona fide defence or counterclaim against
the plaintiff (rule 14(3)).

(4) What allegations must be contained in John's opposing affidavit?

John's opposing affidavit must contain the following:

(a) the allegation that he has a bona fide defence

(b) a denial that the appearance to defend has been entered solely for the purpose of delaying the
plaintiff's action

(c) a disclosure of the nature and grounds of the defence or counterclaim.

(5) What orders may the court make at the hearing of the summary judgment application?

The court may grant the following orders:

(a) The court may give leave to defend to a defendant so entitled and give judgment against a
defendant not so entitled.

(b) It may give leave to defend to a defendant as to such part of the claim and give judgment against
the defendant as to the balance of the claim unless the defendant shall have paid such balance into
court.
(c) It may make both such orders (rule 14(9)).

(6) Suppose John pays the amount of R80 000 to Peter by cheque and the cheque is dishonoured
by the bank. What type of summons may Peter now use?

Peter may now use a provisional-sentence summons.

(7) What is a defence against provisional sentence based on?

A defence against a provisional sentence summons is based on the authenticity of the signature on
the document or the authority of the person signing, and the merits of the claim itself.

(8) What do you understand by the term ``security de restituendo''?

The term refers to the security which the plaintiff must give for the restitution of money he or she
has received from the defendant in terms of a judgment in the event of the defendant defending
and succeeding in the main case.

(b) The provisional sentence summons procedure is an executory procedure which may be used
after hearing prima facie only. Name and discuss the three protective mechanisms built into the
procedure for the sake of the defendant. (6)

• The judgment is provisional: the defendant can therefore within two months of date of judgment
enter into the main action (provided he paid the judgment debt and the taxed costs)
• Although payment can immediately be required, the plaintiff can only do so against security de
restituendo
• Although execution can be levied against the property of the defendant if he/she fails to pay the
judgment debt, this can only be done against security de restituendo.

(d) X issues a combined summons against Y for damages arising out of breach of contract. Y
responds with a notice of intention to defend. With these facts in mind, answer the following
questions.

(i) May X bring an application for summary judgment in response to Y’s notice of intention to
defend? (2) explain?
No. An application for summary judgment can only be brought if the claim falls within the provisions
of Rule 32 of the Uniform Rules of Court. Each of these types of claims falls within the definition of a
debt or liquidated demand. In casu the nature of the claim falls within the definition of a debt or
liquidated demand and therefore falls outside the ambit of Rule 32(1). (Study unit 12.4.1 read with
study unit 6.3.2.)

(ii) Discuss the procedure that X may follow if Y fails to file a plea on the merits. (3)
(ii) If Y fails to file a plea on the merits, X must first serve and file a notice of bar on Y in terms of
which Y is directed to serve and file his plea within the stated further dies induciae. Should Y persist
in his failure to do so, he will be in default and ipso facto barred from delivering his plea. (Study unit
12.3.1.)
(iii) Discuss the procedure that X may follow if Y fails to file a plea on the merits, despite the
procedure discussed in (ii) above. (5)
(iii) The plaintiff may set the matter down and apply for default judgment. As the claim is
unliquidated, judgment will only be given after presentation of evidence to prove the quantum. (The
court also has the discretion to make any other order.)

(iv)

STUDY UNIT 21 - STEPS TAKEN BY THE DEFENDANT IN THE CASE OF A

DEFECTIVE SUMMONS OR A SUMMONS WITH INCOMPLETE PARTICULARS
Peter and John are involved in a motor-vehicle collision in Johannesburg. Peter suffers damages in
the amount of R80 000. Peter issues summons against John in the amount of R80 000. John intends
to defend the action.

(1) John notices that the summons contains insufficient particulars. What steps may John take to
remedy this defect in the summons?
John may make a request for further particulars to Peter in terms of rule 16. He may also apply for
copies of documents or accounts upon which the action is founded in terms of rule 15.

(2) Peter fails to comply timeously with the request for further particulars. What step may John
now take?

John may apply to court for an order compelling Peter to furnish the particulars in terms of rule
60(2). Please note that if Peter fails to comply with the above-mentioned order the court will grant
judgment against Peter immediately on application (rule 60(3)).

(3) Peter fails to allege in the summons that he has suffered harm as a result of the collision, and
that the collision was due solely to John's negligence. What step may John now take?

John may file a notice of exception because the summons does not disclose a cause of action.

(4) What procedure is used when an exception is taken?

By application or notice of motion procedure without an affidavit. An interlocutory application must

be clearly distinguished from a notice of motion procedure. A notice of motion is used to institute an
action, and notice to other person or persons is necessary. An interlocutary application on the other
hand, is used where proceedings have already been instituted and such application is related to
these proceedings. An example of an interlocutary application is where a party is compelled to
discover in terms of rule 35(7).

(5) Explain the difference between a request for further particulars and a notice of exception.

A request for further particulars is intended for the purpose of pleading, whereas a notice of
exception gives the defendant an opportunity of removing the cause of complaint from the plaintiff's
summons. The defendant may utilise rule 60 if the request for further particulars is not complied
with by the plaintiff. This may lead to the court granting judgment against the plaintiff on application
in terms of rule 60(3). Similarly, if the plaintiff does not remove the cause of complaint from his or
her summons, the defendant may except to it. The exception will be upheld if the court is satisfied
that should the summons be allowed to stand, the defendant would be prejudiced in his or her
defence.

(6) Peter alleges in the summons that John is responsible for the collision because he drove
recklessly as he is in the habit of doing. What step may John now take?

John may file an application to strike out the offensive words (in bold). The summons contains an
averment which is irrelevant or superfluous.

(7) Discuss the differences between the application to strike out and an exception.

The application to strike out is thus used to rectify that part of the opposing party's pleadings
containing the inconsistent, vexatious, irrelevant, superfluous or contradictory averments. It has no
bearing on the pleadings as a whole. On the other hand, the exception may be taken to the pleading
as a whole and not to a portion of the pleading, unless such portion constitutes a separate cause of
action or defence. An exception is used to note an objection to the pleading as a whole, while the
application to strike out is used to raise an objection to certain portions of a pleading. Thus an
exception goes to the root of a particular claim or defence contained in a pleading whereas an
application to strike out attacks individual paragraphs in a pleading which do not comprise an entire
claim or defence.

X and Y litigate in the magistrates’ court. X is the plaintiff, and Y is the defendant. Answer
the following questions:
(a) Name the type of application that X will have to bring to amend his summons after
service thereof. (1)
(a) An application in terms of rule 55A is referred to. (See study unit 18.7.)
Commentary: The use of this procedure is prescribed by rule 7(3)(b).

(b) Explain briefly in what circumstances X’s attorney must file a power of attorney. (2)
(b) Since rule 52(2) provides that a power of attorney need not be filed, this is only
compulsory when the authority of an attorney to act on behalf of a party is disputed. A
signed power of attorney serves as proof of such authority. (See further study unit 18.3.)

(c) Name the procedure that Y may use if Y admits liability for the amount claimed as
damages in the summons. (1)
(c) Y may consent to judgment in terms of rule 11. (See study unit 19.3.)

(d) How would your answer to (c) above be affected if the amount claimed is the
amount stated in a duly executed acknowledgment of debt? Explain briefly. (3)
(d) The nature of the claim is now liquidated, and apart from consent to judgment in terms of
rule 11, the defendant may also pay the amount so acknowledged to the plaintiff. Should
the defendant not immediately have sufficient funds to pay, the defendant may consent to
judgment and an instalment order. (See study unit 19.3 and s 57-58 of the Magistrates’
Courts Act, 1944.)

(e) Y decides to defend the action. X fails to timeously deliver further particulars to Y.
What step may Y now take? (1)
(e) Y can apply to court in terms of rule 60(2) for an order compelling X to supply such
particulars. (Study unit 21.3.)

(f) Y wishes to place the matter on the roll as soon as possible. Explain when
pleadings are deemed closed. (2)
(f) Rule 21(4) provides that on delivering a reply, or where no reply is delivered, upon expiry
of the period allowed for the reply, pleadings are deemed to be closed. [10]

The following statements are all false. Briefly state the correct position.
(a) Despite the noting of an appeal, execution of the original judgment takes place automatically.
(1)
(a) Regardless of whether an appeal is noted against a judgment of a magistrate’s court or a High
Court, the position is that execution of the judgment is automatically suspended pending the
outcome of the appeal. (See study unit 32.2.)
Commentary: Note that in the High Court the “operation and execution” is suspended.

(b) Three judges constitute a full bench hearing an appeal from a magistrate’s court. (1)
(b) An appeal from a lower court is not heard by a full bench: it must be heard by at least two
judges in terms of section 13(2)(a)(i) of the Supreme Court Act, 1959.
Commentary: Note the words in bold – many of you did not read the section accurately,
and therefore did not answer the question correctly. Also note that even if three judges
hear the appeal, they still do not constitute a “full bench” in these circumstances. The term
“full bench” carries a very specific meaning: see study unit 32.3.2.

(c) If a High Court judgment contains a patent error, the whole judgment will be rescinded. (1)
(c) Rule 42(1) specifically states that in such an instance the judgment may be rescinded (or varied)
to the extent of the error or mistake.
Commentary: Again it would have been necessary to consult the prescribed reading to answer this question.

(d) High Court judgments may be taken on review. (1)

(d) Only judgments of lower courts and quasi-judicial bodies may be reviewed. (See study unit
31.2.)

(e) Leave to appeal against a decision of a single judge must always be noted at the time when
judgment is given. (1) [5]
(e) Leave may be requested when judgment is made, or a party must within 15 days of the judgment
file an application for leave to appeal: see Rule 49(1). See also study unit 32.4.3.1 in this regard.

Name the five grounds in terms of which an exception can be raised to

a summons. (5)
(1) the summons does not disclose a cause of action
(2) the summons is vague and embarrassing
(3) the summons does not comply with the requirements of rules 5 or 6
(4) the summons has not being properly served
(5) the copy of the summons served upon the defendant differs materially from the original (rule 17
(2))

(d) Acting on behalf of the defendant, you receive a summons alleging that your client is in arrears
regarding the rental under a lease agreement. Name the step you would take and explain the
reason for the procedure that you would use if the prayers for relief read as follows:
Wherefore the plaintiff claims:
(i) arrear rental in the amount of R35 604.98;
(ii) ejectment for unlawful occupation;
(iii) costs
(iv) further and/or alternative relief. (2)
Application to strike out on the following grounds:
(1) Where two or more claims, which, not being in the alternative, are mutually inconsistent or
are based on inconsistent averments of fact.

(e) You represent the defendant. The plaintiff serves a summons on your client. You read through
the summons and notice that it contains averments that are so vague that you are unable to prepare
a plea on the merits on behalf of your client. With these basic facts in mind:
(i) state the step that you could take to rectify the situation; (1) and
Exception
(ii) explain the procedure that must be used. (4)
 An exception is taken by way of notice of motion without an affidavit.
 It must be taken within 10 days of the filing of notice of intention to defend or
 within 10 days of the delivery of further particulars.
 Alternatively, the exception may be taken within 10 days after the defendant has given the
plaintiff notice in terms of rule 17(5)(c) that the summons is vague and embarrassing and the
plaintiff is given 10 days to remove the cause of complaint.

STUDY UNIT 22 - PLEADINGS BY THE DEFENDANT

John and Peter are involved in a motor-vehicle collision in Johannesburg. Peter contends that the
collision was due solely to the negligence of John. Peter suffers damages in the amount of R80 000.
Peter issues summons against John in the amount of R80 000. John files his notice of intention to
defend.

(1) What pleading must John file in order to disclose his defence?

John must file his plea.

(2) When must the pleading referred to in (1) above be filed?

Rule 19(1) sets out the instances when the defendant may deliver his or her plea. In terms of
aforesaid Rule, the defendant may within ten days

(a) after entry of appearance to defend; or

(b) after delivery of documents or particulars in terms of rule 15 or 16; or

(c) after the dismissal of an application for summary judgment, if such application is made;

or

(d) after the making of an order giving leave to defend; or

(e) after the dismissal of an exception or application to strike out, if such exception or application to
strike out is set down for hearing in terms of rule 17(7); or

(f) after any amendment of the summons allowed by the court at the hearing of such exception or
application, deliver a plea. However, if an appeal is noted against a decision on exception, or such
proceedings are brought on review, the plea shall be delivered within such time as may be directed
by the court of appeal or, on application by the court.

(3) What is the difference between a special plea and an exception?

Both these procedures are used to point out a technical defect in specific pleadings, and both
procedures can result in a matter being extinguished. In both instances the correctness of the
averments in the documents is presupposed and therefore the merits of the action are not dealt
with. The exception can be distinguished from the special plea in that the exception must appear ex
facie the pleading to which the exception is raised, while a special plea is used to raise an exception
on the basis of certain facts which do not appear in certain of the plaintiff's specific pleadings. An
exception can also be raised against any pleading, while a special plea can be raised only against the
plaintiff's declaration or particulars of claim. An exception is raised against a pleading as a whole and
not merely against a portion thereof, while the purpose of a special plea is to destroy or to postpone
the operation of the plaintiff's cause of action. Finally, there are specific procedural requirements
relating to the exception (such as the time period within which a notice of the exception has to be
given and set down) which do not apply to a special plea.

(4) John alleges that Peter was also negligent. He wishes to institute proceedings against Peter.
What pleading must John file?

John must file his counterclaim.

(5) When must the pleading referred to in (4) above be filed?

The particular pleading may be filed within the time period laid down for the delivery of a plea. See
rule 20(2) in this respect.

(a) Name the instances when a defendant may deliver his/her plea in terms of rule 19(1) of the
Magistrate’s Courts Rules. (7)
Page 145

(b) Write a short note on the provisions governing the form and content of a plea on the merits in
the magistrates' courts. (8)
The plea contains the defence. It contains the defendant's answer to the plaintiffs averments in the
particulars of claim attached to the summons. Rule 19 contains precisely formulated provisions
governing the form, content, time and manner of filing pleas. The following provisions are
important, namely it must:
(1) have a case number (rule 3(2)
(2) be in writing (rule 19(1))
(3) be dated and signed by the defendant or his or her attorney (rule 19(3))
(4) comply with the provisions of subrules 19(4) and 19(6).
The plea must be formulated sufficiently clearly to inform the plaintiff precisely of the basis of the
defendant's defence. A bare denial of liability or defence of a general issue is not permissible,
although specific allegations in the summons may be denied in so far as such denials are not
inconsistent with the rest of the defence. The defence must admit (admission relates not only to
facts explicitly admitted but also necessary implications or results of facts explicitly admitted) or
deny (the defendant must clearly and explicitly deny all the facts which he or she wishes to deny) or
confess and avoid all the material facts alleged in the summons (this arises when the defendant
admits all or certain of the facts in the plaintiffs summons but proceeds to raise other facts which
put a different complexion on the facts admitted, thereby neutralising them) and state clearly and
concisely the nature thereof (defendant must indicate whether he or she admits or denies the
allegations, whether confession and avoidance will apply or whether he or she will file a special plea)
and provide all the material facts on which his or her defence rests (defendant
must not only indicate the nature of the defence but must also indicate the actual facts on which his
or her defence rests).

(c) List any five examples of special pleas. (5)

The court has no jurisdiction;
_ Plaintiff’s claim has become prescribed;
_ Defendant or plaintiff has no locus standi;
_ Lis pendens – special defence as action already pending;
_ Res iudicata – special defence as matter already adjudicated upon;
_ Arbitration;
_ Splitting of claims;
_ Non-joinder and misjoinder

STUDY UNIT 23 - STEPS BY THE PLAINTIFF AFTER SERVICE OF PLEA

John and Peter are involved in a motor-vehicle collision in Johannesburg. Peter contends that the
collision was due solely to the negligence of John. Peter suffers damages in the amount of R80 000.
Peter issues summons against John in the amount of R80 000. John files his notice of intention to
defend. He thereafter files his plea. The plea contains a mere denial that John is responsible for the
collision.

(1) Peter discovers that the plea discloses no defence. What step may Peter take?

Peter may file a notice of exception because John's plea does not disclose a defence.

(2) When will the court uphold an exception?

The court will not uphold any exception unless it is satisfied that the plaintiff would be prejudiced in
the conduct of his or her case if the plea were allowed to stand (rule 19(15)(a)). The court will also
not uphold an exception that the plea is vague and embarrassing unless the plaintiff has delivered a
notice to the defendant giving him or her the opportunity to remove the cause of complaint before
taking the exception (rule 19(15)(c)).
(3) What is the final pleading that may be delivered by the parties during the exchange of
pleadings in the course of a trial action in the magistrate's court?

The reply to a plea (replication).

(4) What is the purpose of a reply to a plea?

If the defendant raises new factual allegations in his or her plea, the plaintiff may file a reply.

STUDY UNIT 24 - AMENDMENT OF PLEADINGS

Peter issues summons against Tom for goods sold and delivered in the amount of R60 000. Peter
subsequently discovers that he made an error regarding the amount in that an amount of R50 000 is
still outstanding. He wishes to amend the error.

(1) How will the amendment be effected?

An amendment of pleadings will be effected in terms of section 111 and rule 55A.

(2) If the error appeared in the further particulars, could the further particulars be amended?

Yes. Section 111(1) makes provision for the amendment of pleadings. (1 mark) The further
particulars form part of the pleadings that are exchanged between the parties. (1 mark)

(3) What procedure must Peter follow if Tom lodges an objection to the proposed amendment?

If the other party (Tom) objects to the proposed amendment, the party who wishes to amend
(Peter) must, within 10 days, lodge an application for leave to amend.

(4) What are the grounds for refusal of an amendment?

No amendments will be made by which any party other than the party applying for such amendment
may be prejudiced in the conduct of his or her action or defence (s 111(1)).

(5) Who is responsible for the costs of an amendment?

The party giving notice of such amendment, that is, Peter unless the court directs otherwise (rule
55A(9)).

Discuss the amendment of pleadings in the magistrates' courts. (8)

A party may conclude during the exchange of pleadings that he or she wishes to rectify an error. The
main aim is to obtain a proper solution to the dispute between the parties and to identify the real
issues in the matter. Amendment is usually allowed unless the application is mala fide or the
amendment would cause injustice or prejudice to the other side which could not be compensated by
an order of costs (see Rosner v Lydia Swanepoel Trust 1998 (2) SA 123 (WLD)). Section 111(1)
provides that the court may, at any time before judgment, amend a pleading. A party wishing to
amend a pleading may deliver a notice in terms of Rule 55A. If the other party objects to the
proposed amendment, the party who wishes to amend must, within 10 days, lodge an application
for leave to amend. The amending party is liable for costs.

STUDY UNIT 25 - PREPARATION FOR TRIAL

Peter issues summons against John in the amount of R80 000 for damages sustained in a motor-
vehicle collision. Peter alleges that the collision was due solely to the negligence of John. John
defends the action. Pleadings have been closed between the parties. The parties now begin to
prepare for trial. The parties need to disclose to each other certain aspects of the evidence which
they hope to adduce at the trial.

(1) What is the reason for discovery?

Discovery of documents is important so that parties may prepare for trial and not be taken by
surprise. This would prevent unnecessary postponements, delays and costs.

(2) When does discovery take place?

Discovery takes place when pleadings have been closed.

(3) What is the procedure involved?

Rule 23 describes the procedure involved. See rule 23. After the close of pleadings, but not later than
15 days before the date of trial, either party may deliver a notice to the other party calling on him or
her to deliver a schedule specifying the books and documents in his or her possession or under his or
her control relating to the action and which he intends to use in the action or which tends to prove
or disprove either party's case. Such schedule, verified by affidavit, shall be delivered by the party
required to do so within 10 days after the delivery of the notice. If privilege is claimed for any of the
books or documents scheduled, such books or documents shall be separately listed in the Schedule
and the ground on which privilege is claimed in respect of each shall be set out.

(4) What are the consequences of failure to disclose?

In terms of rule 23(2), a book or document not disclosed may not be used for any purpose on the
trial of the action by the party in whose possession or under whose control it is without the court's
leave on such terms as to adjournment and costs as may be just. However, the other party may call
for and use such book or document in the cross examination of a witness.

(5) When is it necessary to submit to a medical examination in terms of rule 24?

A medical examination is relevant in the following instance: Any party to proceedings in which
damages or compensation in respect of alleged bodily injury is claimed may require any party
claiming such damages or compensation whose state of health is relevant to the determination of
such damages or compensation to submit to an examination by one or more duly registered medical
practitioners (rule 24(1)).

(6) What matters may be discussed at a pre-trial conference?

(ii) Name any three (3) matters to be considered at a pre-trial conference in terms of section 54. (3)
The court may at any stage in any legal proceedings in its discretion or upon the request in writing of
either party direct the parties or their representatives to appear before it in chambers for a pre-trial
conference. The following issues/matters are addressed at a pre-trial conference:

(a) the simplification of the issues

(b) the necessity or desirability of amendments to the pleadings

(c) the possibility of obtaining admissions of fact and of documents with a view to avoiding
unnecessary proof

(d) the limitation of the number of expert witnesses

(e) such others matters as may aid in the disposal of the action in the most expeditious and least
costly manner (s 54(1)).

(b) Pleadings have closed between the parties. The parties now begin to prepare for trial. They
need to disclose to each other certain aspects of the evidence which they hope to adduce at the
trial. On the basis of these facts, answer the following questions:
(i) What is the reason for discovery? (2)
Discovery of documents is important so that parties may prepare for trial and not be taken by
surprise. This would prevent unnecessary postponements, delays and costs.

Information that must be contained in a discovery affidavit:

1. Those documents relating to the matter in dispute which are in his possession or under his
control
2. Those documents which although relate to the matter in dispute and which are in his
possession- he objects to producing and the reasons why eg privilege
3. Those documents he had in his possession but no has them. Must state when was the last he
had them and where they are now.

(b) Discuss discovery of documents in terms of rule 23 of the Magistrates' Courts Rules. (10)
Discovery is the process whereby each party can compel the other to reveal the
documentary evidence which it hopes to adduce at the trial, and also to reveal other
documents in its possession which tend to prove or disapprove its case.
After close of pleadings, but not later than 15 days before the trial, either party may deliver
a notice to the other party calling on him to deliver a schedule specifying the books and
documents in his possession or under his control relating to the action or which tend to
prove/ disprove either party’s case.
Such schedule, verified on affidavit, shall be delivered by the party required to do so within
10 days after the delivery of the notice. PLEADINGS HAVE TO BE CLOSED
Documents in respect of which privilege is claimed must be listed separately in the schedule
and the grounds for each particular claim of privilege must be specified.
Confidential communications between attorney and client are “privileged” from disclosure.

In which circumstances does legal professional privilege apply between attorney and client?

1. where the communication pertains to the professional or intended professional

relationship,
2. made for the dominant purpose of seeking or giving legal advice, or for use in
existing or anticipated legal proceedings,
 3. whether written or oral, or even
4. where the client confesses to the attorney the commission of a prior crime or
fraud.

One party can compel the other to make discovery by means of rule 60(2).
If an order is made compelling discovery within a certain period and the other party persists
in his default, a further application can be made for judgment against the defaulting party.
A book or document not disclosed may not be used for any purpose on the trial of the action
by the party by the party in whose possession or under whose control it is without the
court’s leave.
However, the other party may call for and use such book or document in the cross-
examination of a witness.
The parties may be compelled to produce the books or documents disclosed in their
schedules.
Each party is also allowed to inspect and make copies of the documents so disclosed.

(c) Name the five grounds in terms of which an exception can be raised to a summons. (5)
Page 135

STUDY UNIT 26 - THE TRIAL

Peter issues summons against John in the amount of R80 000 for damages sustained in a motor-
vehicle collision. Peter contends that the collision was due solely to the negligence of John. John
defends the action. The pleadings are closed. The parties have discovered relevant documentary
evidence which they hope to adduce at the trial. The parties go to trial.

(1) Which party bears the onus of proof?

Peter.

(2) Give reasons for your answer in (1) above.

Usually it is the plaintiff (Peter, in this instance) who has to lead evidence first. Peter has to establish
the facts giving rise to the cause of action. Peter must prove on a balance of probabilities that John is
negligent, and therefore responsible for the damages.

(3) What happens if the parties disagree regarding the question of on whom the onus of proof
rests?

The court will direct which party must first adduce evidence (rule 29(10)).

STUDY UNIT 27 - JUDGMENT

Peter issues summons against John in the amount of R80 000 for damages sustained in a motor-
vehicle collision. Peter contends that the collision was due solely to the negligence of John. John
defends the action. The pleadings are closed. The parties have discovered relevant discovery
evidence which they hope to adduce at the trial. The parties go to trial. Peter's attorney adduces
his evidence first. He closes his case after presenting all the evidence which he wishes to lead to the
court.

(1) Suppose Peter has failed to discharge his onus on a balance of probabilities. What step may
John take at the end of Peter's case?

John's attorney may apply for absolution from the instance. This order may be applied for when
there is insufficient evidence on which the court may reasonably find for the plaintiff (Peter, in this
instance).

(2) What is the effect of such an order?

The parties are left in the same position as if the case had never been brought.

(3) Discuss whether the above order can be applied for if the onus rested on John and he failed to
discharge his onus on a balance of probabilities.

No. The court can never grant absolution from the instance when the onus rests on the defendant.
The court will grant judgment in favour of the plaintiff (Peter) when John (defendant) fails to
discharge his onus on a balance of probabilities.

(4) What judgments may the court grant after the plaintiff and the defendant have closed their
cases and presented argument?

The court may grant the following judgments:

(a) judgment for the plaintiff in respect of his claim in so far as he or she has proved the same

(b) judgment for the defendant in respect of his or her defence in so far as he or she has proved the
same

(c) absolution from the instance, if it appears to the court that the evidence does not justify the
court in giving judgment for either party

(d) such judgment as to costs (including costs as between attorney and client) as may be just

(e) 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 satisfaction of the
judgment

(f) an order against a party for the payment of an amount of money for which judgment has been
granted in specified instalments or otherwise, including an order contemplated by sections 65J or 73
(s 48)

(d) Indicate the effect of an order for absolution of the instance. (1)
The parties are placed in the same position as if the case had never been brought

(d) Discuss absolution from the instance when the onus is on the defendant at the close of the
case. (3)
Where onus is on the defendant, the court can never grant absolution from the instance at the end
of the entire case. Where the defendant fails to discharge this onus on a balance of
probabilities, the court must give judgment for the plaintiff. Where the defendant does discharge
this onus on a balance of probabilities, the court must give judgment in his or her favour.
Thus, there is no room for a judgment of absolution in this situation.

STUDY UNIT 28 – COSTS

(1) What do you understand by the following terms?

(a) Attorney and client costs

The amount due for services rendered and expenses incurred for which the client is liable to his or
her attorney is known as attorney and client costs.

(b) Party and party costs

The court usually makes an order at the end of a case to the effect that one of the parties (eg the
defendant) is to pay the legal costs incurred by the other party (plaintiff). This is known as party and
party costs and must be paid by one party (defendant) to the other party (plaintiff) and not to the
plaintiff's attorney. The defendant therefore reimburses the plaintiff for costs that he or she
(plaintiff) must pay to his or her attorney. Also note that party and party costs are determined by a
tariff rather than a contract between attorney and client as is the case with attorney and client costs.

(c) Costs de bonis propriis

Costs de bonis propriis are costs of suit which the court directs are to be paid by the unsuccessful
party out of his or her own pocket where he or she instituted proceedings or defended the matter in
a representative capacity. This usually applies where the litigation in question has been mala fide,
negligent or unreasonable.

(2) The attorney and client costs between attorney John Smith and his client Abel Dixon amount to
R5 000. According to the cost order granted by the court, the defendant Joshua Simelane, is
obliged to reimburse Abel for his costs on the party and party scale. The party and party costs are
taxed at R3 800. Will Joshua be liable for R5 000 or R3 800? Give reasons for your answer.

Party and party costs are calculated according to a fixed tariff. These party and party costs are less
than the attorney and client costs because only certain items of cost may be recovered on the party
and party scale and even those costs which are recoverable can be recovered only at the given tariff.
Joshua therefore pays only part of Abel's costs namely, R3 800 (not the entire R5 000) to John Smith.
Abel then remains liable for payment of the balance of the amount namely, R1 200.

(3) Why is an order for costs granted?

The reason for granting an order for costs is that the successful party (eg the plaintiff) must be
compensated for the costs that he or she is obliged to pay his or her attorney for conducting the
case on his or her behalf.

STUDY UNIT 29 - THE ENFORCEMENT OF JUDGMENT

Peter sues John for damages sustained in a motor-vehicle collision.. Peter succeeds in his action,
and the court orders John to pay Peter damages in the amount of R80 000. Despite reminders John
refuses and/or fails to comply with the court judgment. Peter wishes to know if there are any legal
steps that he can take against John to enforce the judgment.

(1) What kind of movables may be attached?

Corporeal things, incorporeal things, bills of exchange, cheques, promissory notes, bonds, and
securities for money belonging to the execution debtor (s 68).

(2) List the items that are exempt from execution.

The following items are exempt from execution in terms of section 67:

(a) the necessary beds, bedding and wearing apparel of the execution debtor and of his family

(b) the necessary furniture (other than beds) and household utensils in so far as they do not exceed
in value the sum of R2 000

(c) stocks, tools and agricultural implements of a farmer in so far as they do not exceed in value the
sum of R2 000

(d) the supply of food and drink in the house sufficient for the needs of such debtor and of his family
during one month

(e) tools and implements of trade, in so far as they do not exceed in value the sum of R2 000

(f) professional books, documents or instruments necessarily used by such debtor in his profession,
in so far as they do not exceed in value the sum of R2 000

(g) such arms and ammunition as such debtor is required by law, regulation or disciplinary order to
have in his or her possession as part of his equipment:

Provided that the court shall have a discretion in exceptional circumstances and on such conditions
as it may determine to increase the sums referred to in paragraphs (b),(c), (e) and (f)

(3) When may a warrant be issued against immovable property?

If the debtor does not possess sufficient movable goods but does own immovable property, or if the
court, may on good cause shown, order such attachment (s 66).
(4) When do you issue a warrant of execution?

When compliance with a judgment is sought.

(5) May a creditor at will elect to issue a warrant of execution against movable property or
immovable property?

No, this may not be done. Sections 66(1) and 66(2) are relevant here. Section 66(1) provides that
execution may first be levelled against the movable property of the judgment debtor and then
against his or her immovable property, provided that there is not sufficient movable property to
satisfy the judgment or order, or if the court, on good cause shown, orders that execution be levied
against the debtor's immovable property. Section 66(2) refers to execution against immovable
property which is subject to a preferent claim. Refer to section 66(2) above regarding the instances
when such execution will be allowed.

(c) Peter succeeds in his action against John, and the court orders John to pay Peter damages in
the amount of R80 000. Despite reminders, John refuses and/or fails to comply with the court
judgment. Peter discovers that John owns movable and immovable property. Peter elects to issue
a warrant of execution against John’s property. May Peter at will elect to issue a warrant of
execution against John’s movable or immovable property? Discuss briefly. (3)

No. The successful litigant can only enforce the judgment given in his or her favour. There is a
specific order in which goods may be attached, namely as much movable property as may be
necessary to satisfy the judgment given: only then, if these goods are insufficient or on good grounds
shown, may immovable property be attached. Incorporeal property may also be attached, and
certain property is excluded from attachment.

PART 3 - Variation of judgments, review and appeals

STUDY UNIT 30 - THE RESCISSION OR VARIATION OF JUDGMENTS

Thomas purchases goods to the value of R90 000 from Sibeko. Thomas takes delivery of the goods,
but despite demand, refuses to pay the purchase price. Thomas alleges that the goods are
defective. Sibeko institutes proceedings against Thomas in the magistrate's court to obtain
payment of the purchase price. Thomas fails to respond timeously to the summons, and default
judgment is granted against him. Thomas is now displeased because the judgment was granted in
his absence and he has a valid defence to the action.

(1) What procedure must Thomas follow to set aside the judgment?

Thomas must apply to court for rescission of the judgment in terms of rule 49.
(2) What information must be contained in the supporting affidavit?

The supporting affidavit must contain reasons for the defendant's absence or default and the
grounds of the defendant's defence to the claim (rule 49(3)).

(3) What judgments may be rescinded by a court in terms of section 36(1) of the Magistrates'
Courts Act 32 of 1944?

In terms of section 36(1), the magistrate's court may

(a) rescind or vary any judgment granted by it in the absence of the person against whom that
judgment was granted

(b) rescind or vary any judgment granted by it which was void ab origine or was obtained by fraud or
by mistake common to the parties

(c) correct patent errors in any judgment in respect of which no appeal is pending

(d) rescind or vary any judgment in respect of which no appeal lies

(4) What judgments may be varied or rescinded by the High Court in terms of Rule 42(1)?

The High Court may, in addition to any powers it may have mero motu or upon the application of any
party affected, rescind or vary:

(a) an order or judgment erroneously sought or erroneously granted in the absence of any party
affected thereby

(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to
the extent of such ambiguity, error or omission

(c) an order or judgment granted as the result of a mistake common to the parties (Rule 42(1))

(5) Name the procedure to be followed when variation of judgment in terms of Uniform Rule 42 is
sought.

The application procedure must be followed.

(6) Name the procedure to be followed when variation of judgment in terms of the common law is
sought.

The action procedure must be followed.

STUDY UNIT 31 - REVIEW
Peter Rendell, a disc jockey, is sued in the magistrate's court by Tony Mokaba, a supplier of stereo
sound equipment, for the non-payment of his account. Peter contends that the equipment that he
purchased was defective. The magistrate, in passing judgment in favour of Tony Mokaba, states
inter alia that: ``only a lying, thieving, degenerate and drunken DJ would neglect to pay his debts
like all other law-abiding citizens''.

(1) Should Peter appeal against the judgment or take it on review in terms of the requirements of
section 24 of the Supreme Court Act of 1959? Explain.

In determining which procedure is appropriate, one should begin by enquiring what one's grounds of
complaint are. Generally, if one complains of the reasoning employed by the court in coming to a
decision, one will proceed by way of appeal. But if one complains about the process which led to the
decision of the magistrate, one will proceed by way of review. From the facts, it seems that Peter
should take the judgment on review in terms of section 24(1)(b) of the Supreme Court Act of 1959.
Section 24(1)(b) provides that a court will interfere with the judgment where there is interest in the
cause, bias, malice or corruption on the part of the presiding judicial officer. Peter should use the
above review procedure because the magistrate's comments display bias and/or malice. It should be
noted that a court may also interfere in other instances (not applicable to this answer though):

(a) In the absence of jurisdiction on the part of the court (s 24(1)(a)).

(b) Gross irregularity in the proceedings (s 24(1)(c)).

(c) Where a magistrate has admitted inadmissible or incompetent evidence, or rejected admissible
or competent evidence, the proceedings will be reviewed (s 24(1)(d)).

(2) Depending on your answer to (1) above, state the procedure that must be used.

Motion proceedings must be used because review of a decision of a magistrate's court is being
sought.

(3) Name two distinctions between appeal and review.

Please refer to 31.1.2 above to answer this question.

(4) Name two instances when a court will interfere with a decision taken by a quasi-judicial body.

The court will interfere in the following instances:

(a) If a public body or individual exceeds its powers, the court will exercise a restraining influence.
(b) If a public body although confining itself within the scope of its powers, acts mala fide or
dishonestly, or for ulterior reasons which ought not to influence its judgment.

(a) Name the four grounds for review. (4)

The grounds are –

• Absence of jurisdiction on the part of the court
• Interest in the cause, bias, malice or corruption on the part of the presiding officer
• Gross irregularity in the proceedings
• The admission of inadmissible or incompetent evidence or the rejection of admissible or
competent evidence

STUDY UNIT 32 - APPEALS

Jane Smith institutes proceedings in a magistrate's court against John Richards for damages
arising out of breach of contract. The magistrate grants judgment against John. John is
dissatisfied, and takes the matter on appeal. Fanie Botha institutes an action for damages against
Solly Sibeko in the High Court. Both the court a quo and, on appeal, the full bench of the
provisional division, reject his claim. Fanie wishes to appeal to the Supreme Court of Appeal.

(1) Must John apply for leave to appeal to a High Court?

No, John is allowed one appeal as of right in terms of section 83 of the Magistrates' Courts Act of
1944. The appeal lies to the appropriate provincial or local division of the High Court from judgments
of magistrates' courts. See section 83.

(2) How many judges must hear the appeal?

An appeal from an inferior court must be heard by not fewer than two judges. See section 13(2)(a)(i)
of the Supreme Court Act of 1959.

(3) Describe how John must note his appeal to a High Court.

This matter is regulated by rule 51(3). John must note the appeal within 20 days of the date of
judgment appealed against, or within 20 days of the clerk of the court's providing a copy of the
written judgment, whichever period is the longer. John notes the appeal by delivering a notice and,
unless the court of appeal directs otherwise, by furnishing security for the respondent's costs of
appeal to an amount of R1 000. A notice of appeal must state the following:

 whether the judgment as a whole, or only part of the judgment or order, is being appealed
against, and if only part, then what part
 the grounds of appeal, specifying the findings of fact or rulings of law appealed against The
grounds of appeal must be clearly specified in order for the notice to pass muster.

See 32.4.1 to answer this question.

(4) Explain the implications for John if Jane abandons part of the judgment granted in her favour.

Jane was the plaintiff in the original application. If a plaintiff abandons any part of a judgment
granted in his or her favour judgment in respect of the part abandoned is entered for the defendant
(John) with costs in terms of section 86(2) of the Magistrates' Courts Act 32 of 1944. See section
86(2).

(5) How does the noting of the appeal affect the execution of the judgment given in the
magistrate’s court?

The noting of an appeal automatically suspends execution of the judgment, pending the outcome of
the appeal. Upon application, however, the court may order that the judgment be put into effect.
The court's discretion will be made on such terms as the court may determine about security for the
due performance of any judgment which may be given upon the appeal or application. See section
78 of the Magistrates' Courts Act.

(1) What procedure must Fanie follow to apply to appeal to the Supreme Court of Appeal?

An application for leave to appeal must be lodged in duplicate with the Registrar of the Supreme
Court of Appeal within the time limits prescribed by the law.

(2) If leave to appeal is granted, what is the next step that Fanie must take?

A notice of appeal must be lodged with the Registrar of the Supreme Court of Appeal and with the
Registrar of the court a quo within one month after the date of the granting of leave to appeal.

(3) What essential information must be included in a notice of appeal?

The notice of appeal must state what part of the judgment or order is appealed against and state the
particular respect in which the variation of the judgment or order is sought.

(4) What is meant by the term ``heads of argument''?

The ``heads of arguments'' comprise the main points to be made in counsel's address to court as
well as a list of the authorities to be quoted in support of each point. The heads of argument will also
define the form of order sought from the Court.

(5) Suppose that Fanie is unsuccessful in his appeal. Can he now apply to the Constitutional Court?

No. The Constitutional Court only hears constitutional issues. The Supreme Court of Appeal is the
highest court in non-constitutional matters.

If X appeals against the judgment of a single judge, may Y, the plaintiff, execute this judgment
given in his favour? (4)
No. It is a common law rule in the high courts that the execution of a judgment is automatically
suspended. This rule is also reflected in the rules of court which provide that it is not merely the
right to levy execution, but also the “operation of execution”. Consequently the judgment is of no
effect, pending the appeal. If Y wishes to have the judgment carried out, he has to approach the
court which gave judgment for leave to execute, and has to provide reasons why the judgment
should be carried out. If his application is successful, he will be required to furnish security de
restituendo.

Briefly explain weather an appeal on a no-constitutional matter may be noted against a decision of
the supreme court of appeal to the constitutional court (1)

Name the courts in respect of whose judgments appeal may only be noted once leave to appeal
has been obtained. Also state which court will grant such leave in each instance.[5]

The courts are the following:

• A provincial or a local division constituted before a single judge. This court will grant leave to
appeal or, if refused, the Supreme Court of Appeal: section 20(2)(a) read with section 20(4)(b) of the
Supreme Court Act, 1959.

• A full bench of a local or provincial division. The Supreme Court of Appeal will grant special leave to
appeal: section 20(4)(a) of the Supreme Court Act, 1959.

Note: Obviously only an appeal against a judgment of the High Court is relevant, because a party has a right of appeal against a judgment
of a magistrate’s court.

COMBINATION QUESTION MAGISTRATES COURT

(a) Vusi is cited as the defendant in a matter commenced in a magistrate's court. With these facts in
mind, answer the following questions. (i) Name three of the specified circumstances in which Vusi
may require the plaintiff to furnish security. (3)
Page 119
(ii) Advise Vusi about the procedure and the related implications if he should decide to make an
unconditional payment into court. (4)
Page 122
(iii) If Vusi does enter a notice of intention to defend and the plaintiff brings an application for
summary judgment against Vusi, what steps may Vusi take to ward off the application for summary
judgment? (3)
Page 131
(iv) If the court sets aside the application for summary judgment and Vusi wishes to object to the
summons, name the various grounds on which Vusi may raise an exception. (5)
Page 135
(b) When drafting Vusi’s plea on the merits, describe the manner in which Vusi’s attorney may deal
with the allegations of fact contained in the plaintiffs particulars of claim by means of:
(i) admitting certain allegations; (3)
Page 142
(ii) confessing and avoiding certain allegations. (2)
Page 143
(c) Vusi wishes to amend his plea on the merits. With this in mind, answer the following questions:
(i) What would the approach of the court be in regard to the amendment of Vusi’s plea on the
merits? (3)
Page 152
(ii) Describe the procedure that must be used to effect an amendment of a pleading. (2)
Page 152

(d) X, a plaintiff, and Y, a defendant, are preparing for a trial in the magistrate's court. Merely
name the procedure which must be followed in each instance.
(i) X notices a factual error in his summons and wishes to correct it. (1)
Page 152 - amendment
(ii) Y wishes to find out what documents X intends to use to prove his case. (1)
Page 155 - discovery
(iii) X wishes to ensure that a witness will be present in court to give evidence on his behalf. (1)
Page 156 - subpoena
(iv) Y wishes to obtain particulars regarding X's state of health to enable him (Y) to determine the
correctness of the amount claimed by X for damages due to personal injury. (1)
Page 156 – rule 24
(v) X fails to give notice of trial within the prescribed time limit. (1)

APPEAL, REVIEW AND VARIATION OF JUDGMENT

Briefly explain what is meant by right of appeal?(1)

QUESTION 1
X, the plaintiff, institutes proceedings in a magistrate's court against B, the defendant. Judgment is
granted against B. B is dissatisfied and takes the matter on appeal to a High Court. Bearing these
facts in mind, answer the following questions, giving brief reasons for your answer where necessary.

(a) With reference to the given facts, state two reasons why B cannot take the matter on review. (4)
If B is dissatisfied with the judgment, he must take the matter on appeal, not review – page 184
(b) How many judges must hear the appeal? (1)
At least 2
(c) If B is dissatisfied with the judgment given by the court of first appeal, to which court(s) does a
further appeal lie, if any? (3)
The Supreme Court of Appeal – page 199
(d) Does a right of appeal exist in respect of (c) above? (1)
No. see page 199
(e) May X execute the original judgment given in his favour in the magistrate's court before the
appeal is finalised? (3)
Noting of appeal automatically suspends execution of judgment, pending the outcome of the
appeal. See page 194
(f) What information must be contained in the notice of appeal in MC? (3)
Page 197
QUESTION 2
M, a disc jockey, is sued in the Pretoria magistrate's court by P, a supplier of stereo sound
equipment, for the non-payment of his account. M's contention is that the equipment that he
purchased is defective. The magistrate, in passing judgment in favour of P, stated inter alia that:
"Only a degenerate, drunken DJ would neglect to pay his debts". With these facts in mind answer
the following questions, giving full reasons in each instance.
(a) Should M appeal against the judgment or take it on review in terms of the requirements of
section 24 of the Supreme Court Act of 1959? Explain. (2)
M should take it on review. He is concerned about the method employed in achieving the result.
The magistrate has displayed interest in the cause and bias – page 185
(b) Depending on your answer to (a) above, state the procedure that must be used. (1)
Page 187
(c) Discuss two basic differences between appeal and review. (4)
Page 184

QUESTION 3
Z institutes proceedings in a magistrate's court against X for damages arising out of breach of
contract. The magistrate grants judgment against X. X is dissatisfied and takes the matter on appeal.
On the basis of these facts, answer the following questions.
(a) Must X apply for leave to appeal to a High Court? (2)
No: there is an automatic right of appeal (or perhaps more technically correct, one appeal as of
right)
(b) How many judges must hear the appeal?
At least two
(c) Describe how X must note his/her appeal to a High Court.(in terms of rule 51(3))
X must note the appeal within (20) days of the date of the judgment appealed against, or within
(20) days of the clerk of the court providing a copy of the written judgment, whichever is the
longer. An appeal is noted by delivering a notice, and, unless the court of appeal directs otherwise,
by furnishing security for the costs of appeal to an amount of R1 000. No security is required
from the state
(d) Explain the implications for X if Z abandons part of the judgment granted in his/her favour. (2)
If Z (plaintiff) abandons part of the judgment granted in his/her favour, judgment in respect of the
part abandoned shall be entered for the defendant (X) with costs. Such judgment has the same
effect as if it was originally pronounced by the court.
(e) In what manner does the noting of the appeal affect the execution of the judgment given in the
magistrate’s, pending the hearing of the appeal? (2)
Noting of appeal automatically suspends execution of judgment, pending the outcome of the
appeal. See page 194
(f) May X still conduct the appeal if he/she satisfies any part of the judgment against which the
appeal is brought? (1)
No: section 85 specifically provides that an appellant does not lose his/her right of appeal.
(g) Will execution of the judgment given in the magistrate's court be suspended pending the decision
of the appeal in the High court? (2)
The noting of an appeal automatically suspends the execution of the judgment. However, the
court may, on application, order that the judgment be put into effect (continue with (e))

QUESTION 4
(a) Name the grounds on which an order or judgment of a High Court may be set aside in terms of
common law. (4)
Page 179
(b) Name the judgments that may be rescinded by a court in terms of section 36 of the Magistrates'
Courts Act of 1944? (8)
Page 177
(c) Explain what constitutes a quorum of the Supreme Court of Appeal in civil matters. (2)
Page 196
(d) What is the effect of noting an appeal from a magistrate's court to a High Court? (2)
The noting of an appeal automatically suspends the execution of the judgment. However, the
court may, on application, order that the judgment be put into effect
(e) Name-two instances when a court will interfere with a decision taken by a quasi-judicial body. (2)
The court will interfere in the following instances:
* if a public body or individual exceeds its powers
* if a public body although confining itself within the scope of its powers, acts mala fide or
dishonestly, or for ulterior reasons which ought not to influence its judgment
(f) Explain what is meant by the term "heads of argument" (1)
Briefly it refers to the main points to be made in counsel's address to court as well as a list of the
authorities relied upon in support of those points.
(g) State the grounds for reviewing the proceedings of any lower court as set out in section 24 of the
Supreme Court Act 1959. (4)
Page 185
(h) Describe the procedure to be followed when noting an appeal as prescribed by rule 51 of the
magistrates' courts rules. (9)
Page 196 – 199
(i) State the information must appear in a notice of appeal from a magistrate's court? (4)
The notice of appeal must state what part of the judgment or order is appealed against and state
the particular respect in which the variation of the judgment or order is sought. See 34.4.3.2 of the
study guide on page 189.
(j) Explain the meaning of the term "review". (3)
Review is a process whereby proceedings of a lower court (including various statutory bodies) is
considered by a higher court for gross irregularities (or some similar phrase). The term "review" is
also used when the proceedings of various statutory bodies are reconsidered by a superior court.
(k) Name the procedure to be followed when variation of judgment in terms of Uniform Rule 42 is
sought. (1)
Page 180
(l) Name the procedure to be followed when variation of judgment in terms of the common law is
sought. (1)
Page 180
(m) Name the procedure that the defendant must follow in order to appeal to the Supreme Court of
Appeal. (1)
An application for leave to appeal must be lodged in duplicate with the Registrar of the Supreme
Court of Appeal within the time limits prescribed by the law. See 34.4.3.2 of the study guide on
page 189.

QUESTION 5
During a trial, plaintiff's counsel objects to the admission of inadmissible evidence. Counsel's
objection is overruled by the magistrate and the magistrate bases a substantial part of the judgment
on the evidence that is contended to be inadmissible. The plaintiff's claim is dismissed. With these
facts in mind answer the following questions:
(a) Should the plaintiff appeal against the judgment or take it on review? (1)
Review
(b) Depending on your answer to (i) above, name the procedure that should be used. (1)
Page 187
(c) Name two distinctions between appeal and review. (2)
Page 184

Name six particulars that must be included in a summons in terms of rules 5 and 6 of the
magistrates court rules (6)

Indicate when an appellant will have a right to appeal?(1)

Multiple Choice
QUESTION 1

Indicate the statement which is the closest to correct:

An ex parte application may be used when applying

(1) for an order of arrest suspectus de fuga

(2) to attach property ad fundandam iurisdictionem

(3) for a final interdict

(4) for an amendment of access rights in respect of minor children by one of the parents.

QUESTION 2

Indicate the statement which is the closest to correct:

If the plaintiff’s claim is based on an acknowledgment of debt, the action may be instituted by way of
the following summons:

(1) only the simple summons

(2) only the provisional sentence summons

(3) only the combined summons

(4) both the provisional sentence summons and the simple summons.

QUESTION 3

Indicate the statement which is the closest to correct:

D wishes to divorce her husband, F. F lives and works in London, but D does not know his exact
whereabouts. The summons must be served on F

(1) by way of substituted service (because F’s exact whereabouts are unknown)

(2) by way of normal service (because it is a matrimonial action)

(3) by way of edictal citation (because F is overseas)

(4) by way of a combination of substituted service and edictal citation (because of a combination of
factors).

QUESTION 4

Indicate the statement which is the closest to correct:

X sues Y in the Transvaal Provincial Division of the High Court. X subsequently moves to Cape Town
and sues Y in the Cape Provincial Division of the High Court in respect of the same cause of action. To
prevent the second action against her being proceeded with, Y must

(1) raise an exception

(2) deliver a special plea

(3) apply for the striking out of the matter

(4) in terms of Rule 30 of the Uniform Rules of Court apply to have the summons set aside as an
irregular proceeding.

QUESTION 5

Indicate the statement which is the closest to correct:

(1) Although the general rule is that evidence must be given viva voce and in open court, the court
may, for sufficient reasons, order that evidence be given on affidavit.

(2) If a defendant fails to timeously give notice of intention to defend, the plaintiff must first give a
notice of bar before he or she may apply for default judgment against the defendant.
(3) Passengers of a minibus suffer damage in that their personal possessions are either damaged or
destroyed in a collision. Because actions for damages tend to be of a protracted nature and most
passengers involved suffer financial hardship while the action drags on, the passengers may, in terms
of Rule 34A of the Uniform Rules of Court, apply to court for interim payment.

(4) If a plaintiff issues two summonses against the same defendant on the same cause of action and
in two different courts, the defendant may approach the court to have the more recent summons
struck out on the ground that that summons is irrelevant.

QUESTION 6

Indicate the statement which is the closest to correct:

(1) Shortly after the granting of judgment against Y (the defendant), X (the plaintiff), learns that Y is
about to leave the country. According to X’s attorney an order of arrest suspectus de fuga would be
the proper remedy with which to prevent Y from leaving the country in order to avoid payment of
the judgment debt.

(2) A High Court will make an order, or give a judgment, only if the parties have exchanged pleadings
or process documents.

(3) Pre-trial judgments, just like post-trial judgments, bring matters to a close.

(4) The material difference between inspection in terms of Rule 35(14) and inspection in terms of
Rule 35(6) of the Uniform Rules of Court is that in the former information is requested for the
purposes of pleading, and in the latter for the purposes of preparation for trial.

QUESTION 7

Indicate the statement which is the closest to correct:

(1) An interdict may be defined as an extraordinary procedure, the object of which is to protect a
person against the unlawful deprivation of his or her rights.

(2) Negotiable instruments are the only documents that, by definition, are liquid documents.

(3) If a court makes a costs order in terms of which each party pays his or her own costs, the effect
of such an order is as though attorney-and-client costs are awarded against each party with regard
to his or her own costs.

(4) A case that has been closed may be reopened only if a party can show that he or she could not
reasonably have known that certain facts are relevant to the case.

QUESTION 8

Indicate the statement which is the closest to correct:

(1) In principle, both the plaintiff and the defendant may, after pleadings in a matter have closed,
set down the case on the roll for the allocation of a trial date.
(2) If a party or his or her attorney fails to attend a pretrial conference properly convened in terms of
Rule 37 of the Uniform Rules of Court, the court may penalise such conduct at trial by ordering him
or her to pay party-and-party costs.

(3) Because the South African legal system forms part of the Anglo-American legal system, the
principle applies that the losing party in a court case is ordered to pay the winning party’s legal costs.

(4) High Court judgments are enforced by way of a writ of execution, issued by the registrar of the
Court concerned

QUESTION 9

Indicate the statement which is the closest to correct:

(1) After entering an appearance to defend, the defendant, in order to raise a defence on the merits,
must deliver a plea on the merits, together with a special plea.

(2) The grounds on which an application to strike out may be brought in the magistrate’s court are
more extensive than those on which such application may be brought in the High Court.

(3) Lower court proceedings are reviewed by way of the summons procedure.

(4) A party may rectify an error in his or her pleading by simply lodging an application for leave to
amend and offering to pay costs.

QUESTION 10

Indicate the statement which is the closest to correct:

(1) Although a magistrate may, during a trial, recall any witness for further examination, he or she
may not mero motu call a new witness.

(2) If a plaintiff in a magistrate’s court action adduces new allegations of fact in his or her reply, the
defendant may react to it by way of a rejoinder.

(3) The single judge of the High Court whose judgment or order is being appealed against may sit on
the full bench at the hearing of the appeal.

(4) If the court has granted absolution from the instance, the matter is res iudicata, and the
defendant will be able to raise this defence if the plaintiff again issues a summons on the identical
cause of action.

QUESTION 1

Indicate the statement which is the closest to being correct.

(1) Application proceedings may be instituted by way of the ex parte application, the “ordinary”
application and the urgent application.

(2) If a party wishes to oppose an application, he or she must deliver a notice of intention to defend
within the dies induciae.
(3) A power of attorney essentially seeks to define the extent of an attorney’s mandate.

(4) Any indigent person may approach the registrar of his or her local High Court for free legal
services in terms of Rule 40 of the Uniform Rules of Court.

QUESTION 2

Indicate the statement which is the closest to being correct.

(1) The essential difference between substituted service and edictal citation lies in the fact that in
the case of substituted service it is unknown exactly where within a specific court’s area of
jurisdiction a defendant finds himself, whereas in the case of edictal citation it is unknown exactly
where within the borders of the Republic a defendant finds himself.

(2) Service ensures that the legal maxim audi alteram partem is adhered to.

(3) Persons with no legal capacity (such as minors and those under curatorship) cannot act as
litigants in the High Court.

(4) The three sets of affidavits which are usually exchanged between the parties in application
proceedings are the supporting affidavit, the answering affidavit and the replication.

QUESTION 3

The following are all examples of a “debt or liquidated demand”:

Indicate the statement which is the closest to correct:

(1) a claim for the delivery of ten selected and marked bulls;

(2) payment of an amount, being the apparent value of a piece of land;

(3) a claim for payment for future maintenance;

(4) a claim for a divorce order.

QUESTION 4

A issues a combined summons against B in which A claims damages from B. During the course of the
litigation process the following circumstances occur:

Indicate the statement which is the closest to correct:

(1) A avers in the particulars of claim that breach of contract occurred on 1 February “2080”, instead
of “2008”. B notices this error and applies for the amendment of the particulars of claim.

(2) B wishes to defend the matter and delivers his plea on the merits.

(3) A is of the opinion that B does not have a bona fide claim and that he entered an appearance
simply to delay the action. Consequently A applies for summary judgment.
(4) B is of the opinion that A’s claim has prescribed and therefore he objects to A’s summons by
delivering a special plea.

QUESTION 5

Indicate the statement which is the closest to correct:

(1) A party who fails to timeously deliver her notice of intention to defend, is automatically barred.

(2) A party who fails to timeously deliver her declaration and who despite having received a notice
of bar, persists in such failure, is in default as well as barred.

(3) To enable a defendant to deliver her plea on the merits, she can request further particulars from
the plaintiff in terms of Rule 21(2) of the Uniform Rules of Court.

(4) The objective of the pretrial conference in terms of Rule 37 of the Uniform Rules of Court is to
facilitate a settlement between the parties.

QUESTION 6

Indicate the statement which is the closest to correct:

(1) An offer to settle in terms of Rule 34 of the Uniform Rules of Court can be used in both
summons and application proceedings.

(2) A judgment can only be delivered at the end of the litigation process, in other words, at the end
of a trial, because the court is only competent to deliver a judgment after hearing and properly
considering the evidence.

(3) If a party intends instituting an action and a document which forms a vital part of the claim is in
the possession of a party who is to become the defendant in such an action, the prospective plaintiff
can require the prospective defendant to make discovery thereof in terms of Rule 35 of the Uniform
Rules of Court.

(4) Only viva voce evidence can be given by witnesses in open court.

QUESTION 7

Indicate the statement which is the closest to correct:

(1) As soon as a party closes his or her case, such a party forfeits any further opportunity to present
any new evidence which may come to the fore.

(2) If a debtor does not possess any assets and also does not have any income against which
execution can be levied, then execution can be levied against the person of the debtor. This process
is known as civil imprisonment.

(3) Final interdicts can be sought by way of notice of motion as well as by way of action.

(4) A creditor who fears that a debtor is about to leave the country before performing the judgment
of the court, can apply to court for an order of arrest tanquam suspectus de fuga of the debtor.
QUESTION 8

Indicate the statement which is the closest to correct:

(1) In the magistrate’s court an application for summary judgment is an example of an application
for which a special form is prescribed.

(2) Two types of summonses are found in the magistrate’s court, namely the simple summons and
the provisional sentence summons.

(3) Payment into court in terms of rule 18 of the magistrates’ court rules and tender are methods for
settling any claim in the magistrate’s court.

(4) The request for further particulars in the magistrate’s court is intended only to enable a party to
draw up a plea on the merits.

QUESTION 9

Indicate the statement which is the closest to correct:

(1) If a claim in the magistrate’s court is based on a liquid document, the plaintiff must attach the
original liquid document to the application for summary judgment.

(2) The grounds for raising an exception in the magistrate’s court are the same as those in the High
Court.

(3) If a court, after hearing evidence from both parties, is convinced that there is a person who
should be called as a witness because such a person possesses vital information, the court may call
such a person as a witness.

(4) The effect of an order for absolution from the instance is that the parties are placed in the
same position as if the case had never been brought.

QUESTION 10

Indicate the statement which is the closest to correct:

(1) A High Court derives the power to review the proceedings of quasi-judicial bodies from the
Supreme Court Act 59 of 1959.

(2) If a single judge from a particular division of the High Court heard a matter and an appeal is
lodged against his or her judgment, such a court is both the “court of first instance” and the “court
a quo”.

(3) The Constitutional Court is the highest court of appeal in respect of all civil matters.

(4) An appeal from a lower court is heard by a provincial division of the High Court in terms of
section 83 of the Magistrates’ Court Act 32 of 1944.

QUESTION 1
Indicate the statement which is the most accurate.
(1) A supporting affidavit is the equivalent of a pleading in summons proceedings. Consequently its
contents can, as in the case of a pleading, be amended in the event of a factual error.
(2) Summons proceedings are instituted by way of either the illiquid or the liquid summons.
(3) If a pedestrian sustains bodily injuries as a result of a collision between two vehicles but does
not know which of the drivers was negligent, he or she may join both drivers as defendants.
(4) In accordance with the audi alteram partem maxim, and in order to notify defendants of
proceedings instituted against them, notices of motion and summons must be served on the
defendants personally.
QUESTION 2
Indicate the statement which is the most accurate.
(1) The term “combined summons” bears reference to the distinctive composition of this particular
summons, namely that it combines in one document the summons and the declaration.
(2) A contract of suretyship, in terms of which the surety undertakes to pay an unspecified amount if
the debtor fails to do so, is an example of a liquid document, and any action that may arise from it
may therefore be instituted by way of a provisional sentence summons.
(3) The fact that after the granting of sentence in provisional sentence proceedings a plaintiff may
proceed to enforce the judgment only after providing security de restituendo means that a
defendant’s interests are protected.
(4) A specific loan amount that is repayable at an interest rate of “prime plus 2%” is an example of a
“debt or liquidated demand”.
QUESTION 3
Indicate the statement which is the most accurate.
(1) The basic rule for the drafting of pleadings is that the material facts upon which the claim or
defence is based must be fully pleaded. Evidence is therefore also pleaded.
(2) A notice of intention to defend is the first pleading delivered by a defendant who wishes to
defend an action.
(3) Whether an action is instituted by way of a combined or a simple summons, the prescribed dies
induciae for the delivery of a plea (with or without a counterclaim) is the same.
(4) In the High Court pleadings are deemed to be closed as soon as the plaintiff has delivered a
replication.
QUESTION 4
Indicate the statement which is the most accurate.
C issues a simple summons against D in which he claims D’s ejection because D is allegedly six
months in arrears with his rent. On receipt of the summons, D may react in one of the following
ways:
(1) He may deliver a special plea in which he disputes the jurisdiction of the court.
(2) He may note an exception on the ground that the claim is vague and embarrassing.
(3) He may deliver a plea on the merits in which he fully discloses his defence.
(4) He may apply for the summary dismissal of C’s action, since he (D) vacated the premises
concerned six months after terminating the lease in a proper manner.
QUESTION 5
Indicate the statement which is the most accurate.
The question of bar is raised in the following circumstances:
(1) The defendant does not timeously give notice of his intention to defend
(2) A party fails to appear at the trial
(3) A party fails to timeously deliver a replication
(4) A party fails to timeously request further particulars for the purposes of trial.
QUESTION 6
Indicate the statement which is the most accurate.
(1) In terms of Rule 35 of the Uniform Rules of Court a party may lawfully refuse to disclose
correspondence exchanged “without prejudice”.
(2) It is an accepted rule that an offer to settle in terms of Rule 34 and a tender may not by disclosed
in court before judgment has been given.
(3) Failure by an advocate to sign the particulars of claim causes the document to be defective and
enables the defendant to use the remedy known as the “special plea” with which to rectify the
defect.
(4) The amendment procedure is used only to correct errors in pleadings and may not, for instance,
be used to extend the relief claimed.
QUESTION 7
Indicate the statement which is the most accurate.
In the High Courts the position is as follows:
(1) Pleadings are deemed to be closed only after the plaintiff has filed his or her replication
(2) In reply to a defendant’s counterclaim, a defendant in reconvention may file a replication in
reconvention
(3) An exception may be lodged only against a declaration or particulars of claim.
(4) It is possible to inspect a clearly specified document or tape recording in a party’s possession
and relating to a reasonably anticipated issue in the action before the close of pleadings.
QUESTION 8
Indicate the statement which is the most accurate.
(1) In the magistrate’s court, unlike the High Court, three types of applications may be
distinguished where a respondent is cited.
(2) One of the consequences of issuing a summons is that it interrupts prescription.
(3) Summonses may be amended at any time before the defendant enters an appearance to defend
and by having the clerk of the court initial them.
(4) A summons lapses if it is not served within three years after issue, or if it is issued but no further
steps are taken within three years thereafter.
QUESTION 9
Indicate the statement which is the most accurate.
(1) A subpoena duces tecum compels a witness to present himself at a civil trial.
(2) In principle no book or document that has not been disclosed may be used for any purpose
during the trial by the party in whose possession or under whose control it is.
(3) In the magistrates’ court absolution from the instance will be considered only at the end of the
plaintiff’s case, because the plaintiff must discharge his or her onus of proof.
(4) Banknotes do not form part os movable property that may be attached for purposes
of execution in terms of section 68 of the Magistrates’ Courts Act 32 of 1944.
QUESTION 10
Indicate the statement which is the most accurate.
(1) In terms of Rule 42 of the Uniform Rules of Court, any variation of judgment sought under this
rule must be by way of the action procedure.
(2) Although the noting of an appeal against a decision of the High Court automatically suspends
the execution of the judgment pending the outcome of the appeal, the party in whose favour
judgment was given may approach the court that granted the original order for an order allowing
execution.
(3) In terms of section 13(2)(a) of the Supreme Court Act 59 of 1959, a court hearing an appeal from
a lower court may consist of only one judge.
(4) In terms of section 20(2)(a) of the Supreme Court Act 59 of 1959, a person has a right of appeal
to the Supreme Court of Appeal against the judgment of a single judge.

QUESTION 1
Indicate the statement which is the most accurate:
An ex parte application may be brought in the High Court when
(1) requesting that a writ of execution be issued
(2) applying for the attachment of property ad fundandam iurisdictionem
(3) applying for a final interdict
(4) one of the parents apply for an amendment of access rights in respect of minor
children.
QUESTION 2
Indicate the statement which is the most accurate:
If the plaintiff’s claim is based on an acknowledgment of debt, the action may be instituted
by way of the following summons(es):
(1) only the simple summons
(2) only the provisional sentence summons
(3) only the combined summons
(4) both the provisional sentence summons and the simple summons.
QUESTION 3
Indicate the statement which is the most accurate:
D wishes to divorce her husband, F. F lives and works in London, but D does not know his
exact whereabouts. The summons must be served on F
(1) by way of substituted service (because F’s exact whereabouts are unknown)
(2) by way of normal service (because it is a matrimonial action)
(3) by way of edictal citation (because F is overseas)
(4) by way of a combination of substituted service and edictal citation (because of a
combination of factors).
QUESTION 4
Indicate the statement which is the most accurate:
X sues Y in the Transvaal Provincial Division of the High Court. X subsequently moves to
Cape Town and sues Y in the Cape Provincial Division of the High Court in respect of the
same cause of action. To prevent the second action against her being proceeded with, Y
must
(1) raise an exception
(2) deliver a special plea
(3) apply for the striking out of the matter
(4) in terms of Rule 30 of the Uniform Rules of Court apply to have the summons set
aside as an irregular proceeding.
QUESTION 5
Indicate the statement which is the most accurate:
(1) Although the general rule is that evidence must be given viva voce and in open
court, the court may, for sufficient reasons, order that evidence be given on
affidavit.
(2) If a defendant fails to timeously give notice of intention to defend, the plaintiff must
first give a notice of bar before he or she may apply for default judgment against the
defendant.
(3) Passengers of a minibus taxi suffer damages because their personal possessions
were either damaged or destroyed in a collision. Because actions for damages tend
to be of a protracted nature and most passengers involved suffer financial hardship
while the action drags on, the passengers may, in terms of Rule 34A of the Uniform
Rules of Court, apply to court for interim payment.
(4) If a plaintiff issues two summonses against the same defendant on the same cause
of action and in two different courts, the defendant may approach the court to have
the more recent summons struck out on the ground that that summons is irrelevant.
QUESTION 6
Indicate the statement which is the most accurate:
(1) Both the plaintiff and the defendant may, as soon as pleadings in a matter have
closed, immediately set down the case on the roll for the allocation of a trial date.
(2) If a party or his or her attorney fails to attend a pretrial conference properly
convened in terms of Rule 37 of the Uniform Rules of Court, the court may penalise
such conduct at trial by ordering him or her to pay party-and-party costs.
(3) Because the South African legal system forms part of the Anglo-American legal
system, the principle applies that the losing party in a court case is ordered to pay
the winning party’s legal costs.
(4) High Court judgments are enforced by way of a writ of execution, issued by the
registrar of the Court concerned
QUESTION 7
Indicate the statement which is the most accurate:
(1) A power of attorney must be filed before a summons may be issued in the
magistrates’ courts.
(2) A summons in the magistrates’ courts which does not state that the whole cause of
action arose within the court’s area of jurisdiction in terms of section 28(1)(d) of the
Magistrates’ Courts Act, 1944, is excipiable.
(3) If a defendant fails to give notice of his intention to defend within the stated dies
induciae in the magistrates’ courts, he will be in default and will not be permitted to
file a late notice of intention to defend.
(4) All applications for default judgment in the magistrates’ courts are granted by a
magistrate sitting in an open court.
QUESTION 8
Indicate the statement which is the most accurate:
(1) If a claim in the magistrates’ courts is based on a liquid document, the plaintiff must
attach the original liquid document to the application for summary judgment.
(2) The grounds for raising an exception in the magistrates’ court are the same as
those in the High Court.
(3) If a court, after hearing evidence from both parties, is convinced that there is a
person who should be called as a witness because such a person possesses vital
information, the court may call such a person as a witness.
(4) Tools and implements of trade up to a value of R2 000 form part of the items that
are exempt from execution in terms of section 67 of the Magistrates’ Court Act,1944.
QUESTION 9
Indicate the statement which is the most accurate:
(1) After entering an appearance to defend, the defendant must deliver a plea on the
merits, together with a special plea in order to raise a defence on the merits.
(2) The grounds on which an application to strike out may be brought in the
magistrate’s court are more extensive than those on which such application may be
brought in the High Court.
(3) Lower court proceedings are reviewed by way of the summons procedure.
(4) A party may rectify an error in his or her pleading by simply lodging an application
for leave to amend and offering to pay costs.
QUESTION 10
Indicate the statement which is the most accurate:
(1) Although a magistrate may, during a trial, recall any witness for further examination,
he or she may not mero motu call a new witness.
(2) If a plaintiff in a magistrate’s court action adduces new allegations of fact in his or
her reply, the defendant may react to it by way of a rejoinder.
(3) The single judge of the High Court whose judgment or order is being appealed
against may sit on the full bench at the hearing of the appeal.
(4) If the court has granted absolution from the instance, the matter is res iudicata, and
the defendant will be able to raise this defence if the plaintiff again issues a
summons on the identical cause of action

QUESTION 1
Indicate the most accurate statement.
(1) The supporting affidavit is the equivalent of a pleading in summons proceedings.
Consequently, its contents may, as in the case of a pleading, be amended in the event
of a factual error.
(2) Summons proceedings are instituted by way of either the illiquid or the liquid summons.
(3) If a pedestrian sustains bodily injuries as a result of a collision between two vehicles
but does not know which of the drivers was negligent, he or she may join both drivers
as defendants.
(4) In accordance with the audi alteram partem maxim, and in order to notify defendants of
proceedings instituted against them, notices of motion and summons must be served
on the defendants personally.
QUESTION 2
Indicate the most accurate statement:
(1) The term “combined summons” bears reference to the distinctive composition of the
summons, namely that it combines in one document the summons and the
declaration.
(2) Where a temporary interdict is sought, the court is approached by way of the
summons procedure.
(3) The fact that after the granting of sentence in provisional sentence proceedings a
plaintiff may proceed to enforce the judgment only after providing security de
restituendo, means that the defendant’s interests are protected.
(4) An interlocutory application is brought by way of a notice of motion.
QUESTION 3
Indicate the most accurate statement:
(1) In terms of Rule 35 of the Uniform Rules of Court, a party may lawfully refuse to
disclose correspondence exchanged “without prejudice”.
(2) It is an accepted rule that an offer to settle in terms of Rule 34 and a tender may not be
disclosed in court before judgment has been given.
(3) Failure by an advocate to sign the particulars of claim causes the document to be
defective and enables the defendant to use the remedy known as the “special plea”
with which to rectify the defect.
(4) The amendment procedure is used only to correct errors in pleadings and may not, for
instance, be used to extend the relief claimed.
QUESTION 4
Indicate the most accurate statement.
In the High Courts, the position is as follows:
(1) Pleadings are deemed to be closed only after the plaintiff has filed his or her
replication.
(2) In reply to a defendant’s counterclaim, a defendant in reconvention may file a
replication in reconvention.
(3) An exception may be lodged only against a declaration or particulars of claim.
(4) It is possible to inspect a clearly specified document or tape recording in a party’s
possession and relating to a reasonably anticipated issue in the action before the close
of pleadings.
QUESTION 5
Indicate the most accurate statement.
(1) It is customary for the successful party to be awarded litigation costs on the attorneyand-
client-scale.
(2) Expert evidence may not be presented to court at will by the parties to an action.
(3) The mandamenten van spolie is an example of a mandatory interdict.
(4) If the activities of a nightclub which is situated within a residential area lead to a
disturbance, action can be taken against the owners of the club by applying for an
order for perpetual silence.
QUESTION 6
Indicate the most accurate statement.
(1) The automatic rent interdict is a separate type of summons used in the
magistrate’s court.
(2) In the magistrate’s court it is unnecessary for a plaintiff to aver in a summons that a
particular court has jurisdiction to hear a particular matter.
(3) A defendant may require security for costs from the plaintiff if the plaintiff is a close
corporation.
(4) The grounds on which one can apply for striking out in the magistrate’s court are
essentially the same as those that apply in the High Court.
24
QUESTION 7
Indicate the most accurate statement.
(1) If a defendant realises that an error has occurred in his notice of intention to defend, he
can rectify such error in terms of section 111(1) of the Magistrates’ Courts Act, 1944,
and rule 55A of the magistrates’ court rules.
(2) The magistrate’s court is competent to decide to subpoena a person as a witness if
the court feels that such a witness would be able to contribute towards settling the
action.
(3) The discovery of documents in the magistrate’s court is important because it allows a
litigant to properly prepare his or her case for trial.
(4) The effect of an order for absolution of the instance is that the parties are placed in
the same position as if the case had never been brought.
QUESTION 8
Indicate the most accurate statement.
(1) A cost order de bonis propriis is granted if a party to the action has been guilty of
misconduct in conducting the action.
(2) One of the items of property exempt from execution in terms of section 67 of the
Magistrates’ Courts Act, 1944 is “professional books, documents or instruments
necessarily used by the debtor” in his or her profession, in so far as the value of
these items does not exceed R2 000.
(3) Variation of judgment in both the magistrate’s court and the High Court is sought by
way of application procedure.
(4) The term “review” is only used when the proceedings of magistrates’ courts are
reconsidered by the High Court.
QUESTION 9
Indicate the most accurate statement.
(1) Review of the proceedings and decisions of quasi-judicial bodies takes place in
terms of both common law and legislation.
(2) Review of the proceedings of a lower court takes place by way of an ordinary,
opposed application and corresponds in all respects to ordinary, opposed
application proceedings.
(3) If review proceedings are successful, the High Court which reviewed the
proceedings will always refer the matter back to the particular body for a decision
according to the correct procedure.
(4) Both appeal and review must take place within a reasonable time.

QUESTION 10
Indicate the most accurate statement.
(1) Section 83 of the Magistrates’ Courts Act 1944 provides, inter alia, that an appeal in the
magistrate’s court may be brought against an order which has the effect of a final
judgment, for example the granting of a summary judgment.
(2) In the High Court the noting of an appeal suspends the execution of the
judgment, provided that the party in whose favour such an order was granted provides
security de restituendo.
(3) If a party in a civil action is dissatisfied with the judgment of the Supreme Court of
Appeal, such party can still appeal to the Constitutional Court.
(4) A full bench of a provincial division of the High Court, which hears an appeal against
the judgment of a single judge, consists of three judges.

QUESTION 1
Indicate the most accurate statement.
Mrs Mabena is recently divorced and cannot earn sufficient to support herself and her three young
children. In order to generate extra income, she opens a shabeen that she runs at night. Mrs
Mabena is Mr Mavuso's neighbour. The Mavuso family cannot sleep at night because of the laughter
and shouting; drunk strangers often enter their yard and there are often vicious fights in the
street. Mr Mavuso respectfully asks Mrs Mabena to close her shabeen but she laughs at him and
says she is making so much money she is going to do it hill-time. In order to prohibit Mrs Mabena
from running the shabeen, Mr Mavuso must approach a High Court by means of
(1) a writ of arrest suspectus de fuga;
(2) a summons;
(3) an ordinary application;
(4) a warrant of execution.
QUESTION 2
Indicate the most accurate statement.
X sells machinery to Y to the value of R600 000. Y pays X by means of a cheque to the full value of
the machinery. A few days later, Y's cheque is sent to X marked "return to drawer' on account of
there being insufficient funds in Y's bank account. In order to recover the purchase price of the
machinery, X may proceed by means of
(1) a simple summons:
(2) a provisional sentence summons;
(3) a simple summons or a provisional sentence summons;
(4) a combined summons.
QUESTION 3
Indicate the most accurate statement.
An interprovincial conference is held in Johannesburg dealing with the topic of
environmental waste management. During one of the sessions, Mr Toksick is
involved in a heated and personal exchange with a delegate representing
Green Peace, Mr Org Anic. Approximately a week later, the a combined
summons issued out of the Johannesburg High Court is served on Mr Toksick
in term of which Mr Anic claims damages on the grounds of defamation. In
order to respond to the summons, Mr Toksick must file the following pleading
(1) a counterclaim;
(2) a notice of intention to defend;
(3) a plea on the merits;
(4) a notice of bar.
QUESTION 4
Indicate the most accurate statement.
The facts in Question 3 remain the same. In response to Mr Anic’s particulars
of claim, Mr Toksick admits that the statement concerning Mr Ant was
defamatory but that it was stated as a matter of truth in the public interest. Mr
Anic must respond by means of
(1) rejoinder,
(2) a plea in reconvention;
(3) replication;
(4) a notice of amendment to delete the words stated as truth in the public
interest.
QUESTION 5
Indicate the most accurate statement.
The facts in Question 3 remain the same. However, Mr Toksick is now a
Nigerian domiciliary and the conference was held in London. Acting through
his attorney who has offices in Johannesburg, Mr Toksick must respond to Mr
Anic's particulars of claim by means of
(1) an exception;
(2) a plea in bar;
(3) a special plea;
(4) an application to strike out the particulars of claim as a whole on the grounds of its irrelevance.
QUESTION 6
Indicate the most accurate statement.
The facts in Question 3 remain the same. If Mr Toksick wishes to settle the
claim in full, one of the following procedures may be used:
(1) Mr Anic may apply the provision of rule 34A;
(2) Mr Toksick may make an unconditional written offer to settle in respect of both the claim and
costs:
(3) Mr Toksick may make an unconditional payment into court
(4) Mr Anic must assure the court that Mr Toksick has the means at his disposal to settle the claim.
QUESTION 7
Indicate the most accurate statement.
Determine which one of the following groups of procedures are not related to each other.
(1) an ex parte application and a rule nisi;
(2) the combined summons and the simple summons;
(3) default judgment and summary dismissal;
(4) discovery of documents and a declaration.
QUESTION 8
Indicate the most accurate statement.
(1) A power of attorney must be filed before a summons may be issued in
the magistrates' courts.
(2) A summons in the magistrates' courts which does not state that
the whole cause of action arose within the court's area of
jurisdiction in terms of section 28(1)(d), is excipiable.
(3) In the magistrates' courts, if a defendant fails to give notice of this
intention to defend within the dies induciae, he will be in default and will
not be permitted to file a late notice of intention to defend.
(4) All applications for default judgment in the magistrates' courts are
granted by a magistrate sitting in an open court.
QUESTION 9
Indicate the most accurate statement.
(1) The Magistrates' Courts Rules rule 15 enables a defendant to obtain copies of all documents or
accounts which relate to the action.
(2) The Magistrates' Courts Rules do not provide for the exchange of any further pleadings after
the delivery of the reply.
(3) After close of pleadings, a party involved in litigation in a magistrate's court may request further
particulars to enable him to prepare for trial.
(4) A defendant may raise res iudicata as a defence should the plaintiff again issue summons on the
same cause of action in respect of which an order for absolution of the instance was granted.
QUESTION 10
Indicate the most accurate statement.
(1) Fraud is not a ground for setting side a judgment of a superior
court.
(2) The review of proceedings must be commenced within a prescribed
period.
(3) A judgment of a superior court may always be executed when an
appeal has been noted.
(4) If an appeal is granted in regard to an appeal from a superior court, a
notice of appeal must be lodged with the registrar of the Supreme
Court of Appeal and with the registrar of the court a quo within one
month after the date of granting leave to appeal.
QUESTION 11
Indicate the statement which is the closest to being correct.
(1) The supporting affidavit is the equivalent of a pleading in summons
proceedings. Consequently its contents can, as in the case of a
pleading, be amended in the event of a factual error.
(2) Summons proceedings are instituted by way of either the illiquid or the
liquid summons.
(3) If a pedestrian sustains bodily injuries as a result of a collision
between two vehicles but does not know which of the drivers was
negligent, he or she may join both drivers as defendants.
(4) In accordance with the Judi alteram pattern maxim, and in order to
notify defendants of proceedings instituted against them, notices of
motion and summons must be served on the defendants personally.
QUESTION 12
Indicate the statement which is the closest to being correct.
(1) The term "combined summons' bears reference to the distinctive
composition of this particular summons, namely that it combines in one
document the summons and the declaration.
(2) A contract of suretyship, in terms of which the surety undertakes to pay
an unspecified amount if the debtor fails to do so, is an example of a
liquid document, and any action that may arise from it may therefore be
instituted by way of a provisional sentence summons.
(3) The fact that after the granting of sentence in provisional
sentence proceedings a plaintiff may proceed to enforce the
judgment only after providing security de restituendo means that
a defendants interests are protected.
(4) A specific loan amount that is repayable at an interest rate of "prime
plus 2%" is an example of a "debt or liquidated demand".
QUESTION 13
Indicate the statement which is the closest to being correct.
(1) The basic rule for the drafting of pleadings is that the material facts
upon which the claim or defence is based must be fully pleaded.
Evidence is therefore also pleaded.
(2) A notice of intention to defend is the first pleading delivered by a
defendant who wishes to defend an action.
(3) Whether an action is instituted by way of a combined or a simple
summons, the prescribed dies induciae for the delivery of a plea
(with or without a counterclaim) is the same.
(4) In the High Court, pleadings are deemed to be closed as soon as the
plaintiff has delivered a replication.
QUESTION 14
Indicate the statement which is the closest to being correct.
C issues a simple summons against D in which he claims Ds ejection because
of D's allegedly being six months in arrears with his rent. On receipt of the
summons, D may react in one of the following ways:
(1) He may deliver a special plea in which he disputes the jurisdiction of the court.
(2) He may note an exception on the ground that the claim is vague and embarrassing.
(3) He may deliver a plea on the merits in which he fully discloses his defence.
(4) He may apply for the summary dismissal of C's action, since he (D) vacated the premises
concerned six months after terminating the lease in a proper manner.
QUESTION 15
Indicate the statement which is the closest to being correct. The question of
bar is raised in the following circumstances:
(1) the defendant does not timeously give notice of his intention to defend
(2) a party fails to appear at the trial
(3) a party fails to timeously deliver a replication
(4) a party fails to timeously request further particulars for the purposes of
trial.
QUESTION 16
Indicate the statement which is the closest to being correct.
(1) In terms of Rule 35 of the Uniform Rules of Court, a party may lawfully refuse to disclose
correspondence exchanged "without prejudice”
(2) It is an accepted rule that an offer to settle in terms of Rule 34 and a
tender may not by disclosed in court before judgment has been given.
(3) Failure by an advocate to sign the particulars of claim causes the
document to be defective and enables the defendant to use the remedy
known as the ''special plea" with which to rectify the defect.
(4) The amendment procedure is used only to correct errors in pleadings
and may not, for instance, be used to extend the relief claimed.
QUESTION 17
Indicate the statement which is the closest to being correct.
In the High Courts the position is as follows'
(1) pleadings are deemed to be closed only after the plaintiff has filed his
or her replication
(2) in reply to a defendant's counterclaim, a defendant in reconvention may
file a replication in reconvention
(3) an exception may be lodged only against a declaration or particulars of
claim.
(4) it is possible to inspect a clearly specified document or tape
recording in a party's possession and relating to a reasonably
anticipated issue in the action before the close of pleadings.
QUESTION 18
Indicate the statement which is the closest to being correct
(1) In the magistrate's court, unlike the High Court, tree types of
applications may be distinguished where a respondent is cited.
(2) One of the consequences of issuing a summons is that it interrupts
prescription.
(3) Summonses may be amended at any time before the defendant enters
an appearance to defend and by having the clerk of the court initial
them.
(4) A summons lapses if it is not served within three years after issue, or if
it is issued but not further steps are taken within three years after that.
QUESTION 19
Indicate the statement which is the closest to being correct.
(1) A subpoena duces tecum compels a witness to present himself at a
civil Mal.
(2) In principle, no book or document that has not been disclosed
may be used for any purpose during the trial by the party in
whose possession or under whose control it is.
(3) In the magistrate's court absolution from the instance will be
considered only attic end of the plaintiff's case, because the plaintiff
must discharge his or her onus of proof.
(4) Banknotes do not form part as movable property that may be attached
for purposes of execution in terms of section 68 of the Magistrates'
Courts Act 32 of 1944.
QUESTION 20
Indicate the statement which is the closest to being correct.
(1) In terms of Rule 42 of the Uniform Rules of Court, any variation of
judgment sought under this rule must be done by way of the action
procedure.
(2) Although the noting of an appeal against a decision of the High
Court automatically suspends the execution of the judgment
pending the outcome of the appeal, the party in whose favour
judgment was given may approach the court that granted the
original order for an order allowing execution.
(3) In terms of section 13(2)(a) of the Supreme Court Act 59 of 1959, a
court hearing an appeal from a lower court may consist of only one
judge.
(4) In terms of section 20(2)(a) of the Supreme Court Act 59 of 1959, a
person has a right of appeal to the Supreme Court of Appeal against
the judgment of a single judge.
QUESTION 21
Indicate the statement which is the closest to correct:
An ex parte application may be used when applying
(1) for an order of arrest suspectus de fuga
(2) to attach property ad fundandam iurisdictionem
(3) for a final interdict
(4) for an amendment of access rights in respect of minor children by one
of the parents.
QUESTION 22
Indicate the statement which is the closest to correct:
If the plaintiffs claim is based on an acknowledgment of debt, the action may
be instituted by way of the following summons:
(1) only the simple summons
(2) only the provisional sentence summons
(3) only the combined summons
(4) both the provisional sentence summons and the simple
summons.
QUESTION 23
Indicate the statement which is the closest to correct:
D wishes to divorce her husband, F. F lives and works in London, but D does
not know his exact whereabouts. The summons must be served on F
(1) by way of substituted service (because F's exact whereabouts are
unknown)
(2) by way of normal service (because it is a matrimonial action)
(3) by way of edictal citation (because F is overseas)
(4) by way of a combination of substituted service and edictal citation
(because of a combination of factors).
QUESTION 24
Indicate the statement which is the closest to correct:
X sues Y in the Transvaal Provincial Division of the High Court. X
subsequently moves to Cape Town and sues Y in the Cape Provincial
Division of the High Court in respect of the same cause of action. To prevent
the second action against her being proceeded with, Y must
(1) raise an exception
(2) deliver a special plea
(3) apply for the striking out of the matter
(4) in terms of Rule 30 of the Uniform Rules of Court apply to have the
summons set aside as an irregular proceeding.
QUESTION 25
Indicate the statement which is the closest to correct:
(1) Although the general rule is that evidence must be given viva
voce and in open court, the court may, for sufficient reasons,
order that evidence be given on affidavit.
(2) If a defendant fails to timeously give notice of intention to defend, the
plaintiff must first xi give a notice of bar before he or she may apply for
default judgment against the defendant.
(3) Passengers of a minibus suffer damage in that their personal
possessions are either damaged or destroyed in a collision. Because
actions for damages tend to be of a protracted nature and most
passengers involved suffer financial hardship while the action drags on,
the passengers may, in terms of Rule 34A of the Uniform Rules of
Court, apply to court for interim payment.
(4) If a plaintiff issues two summonses against the same defendant on the
same cause of action and in two different courts, the defendant may
approach the court to have the more recent summons struck out on the
ground that that summons is irrelevant.
QUESTION 26
Indicate the statement which is the closest to correct:
(1) Shortly after the granting of judgment against Y (the defendant), X (the
plaintiff), learns that Y is about to leave the country. According to X's
attorney an order of arrest suspectus de fuga would be the proper
remedy with which to prevent Y from leaving the country in order to
avoid payment of the judgment debt.
(2) A High Court will make an order, or give a judgment, only if the parties
have exchanged pleadings or process documents.
(3) Pre-trial judgments, just like post-trial judgments, bring matters to
a dose.
(4) The material difference between inspection in terms of Rule 35(14) and
inspection in terms of Rule 35(6) of the Uniform Rules of Court is that in
the former information is requested for the purposes of pleading, and in
the latter for the purposes of preparation for trial.
QUESTION 27
Indicate the statement which is the closest to correct:
(1) An interdict may be defined as an extraordinary procedure, the object
of which is to protect a person against the unlawful deprivation of his or
her rights.
(2) Negotiable instruments are the only documents that, by definition, are
liquid documents.
(3) If a court makes a costs order in terms of which each party pays
his own costs, the effect of such an order is a though attorneyand-
client costs are awarded against each party with regard to his
or her own costs.
(4) A case that has been closed may be reopened only if a party can show
that he or she could not reasonably have known that certain facts are
relevant to the case.
QUESTION 28
Indicate the statement which is the closest to correct:
(1) In principle, both the plaintiff and the defendant may, after
pleadings in a matter have closed, set down the case on the roll
for the allocation of a trial date.
(2) If a party or his or her attorney fails to attend a pretrial conference
properly convened in terms of Rule 37 of the Uniform Rules of Court,
the court may penalise such conduct at trial by ordering him or her to
pay party-and-party costs.
(3) Because the South African legal system forms part of the Anglo-
American legal system, the principle applies that the losing party in a
court case is ordered to pay the winning party's legal costs.
(4) High Court judgments are enforced by way of a writ of execution,
issued by the registrar of the Court concerned
QUESTION 29
Indicate the statement which is the closest to correct:
(1) After entering an appearance to defend, the defendant, in order to raise
a defence on the merits, must deliver a plea on the merits, together
with a special plea.
(2) The grounds on which an application to strike out may be brought
in the magistrate's court are more extensive than those on which
such application may be brought in the High Court.
(3) Lower court proceedings are reviewed by way of the summons
procedure.
(4) A party may rectify an error in his or her pleading by simply lodging an
application for leave to amend and offering to pay costs.
QUESTION 30
Indicate the statement which is the closest to correct:
(1) Although a magistrate may, during a trial, recall any witness for
further examination, he or she may not mero motu call a new
witness.
(2) If a plaintiff in a magistrate's court action adduces new allegations of
fact in his or her reply, the defendant may react to it by way of a
rejoinder.
(3) The single judge of the High Court whose judgment or order is being
appealed against may sit on the full bench at the hearing of the appeal.
(4) if the court has granted absolution form the instance, the matter is res
iudicata, and the defendant will be able to raise this defence if the
plaintiff again issues a summons on the identical cause of action.