Interpleader summons must be in accordance with Annexure 1, Form 35. Where the court makes an order of ejectment, the warrant will be in accordance with Annexure 1, Form 30. If a guarantee is given conditional upon the breach of contract, or default of the principal debtor, such a guarantee is accessory in nature and therefore, ranks as a suretyship. In the context of movable and immovable property, this means that ownership in the property must vest in the debtor. <>/XObject<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 595.32 841.92] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> If the creditor proceeds by way of summons, and the debtor consents to judgment, certain provisions also provide for obtaining an appropriate judgment. A copy of the issued summons must be served (delivered) on the defendant in person or by a sheriff (service fee payable). default judgment (if sufficient cause is shown); in terms of rule 42(1) (just discussed), when there has been an error of some kind; and. the premier of the eastern cape . the execution creditor and every claimant to the subject matter reside, carry out business or are employed within the area; the subject matter have been attached by the court; and. 1980-81. Of course, it is well within your legal rights to … endobj This is mainly because development assistance in South Africa is highly fragmented and the country has yet to establish a system for collecting accurate and complete data. All the debts listed in the statement of affairs are deemed to be proved, subject to any amendments the court may make, except where a creditor objects to a listed debt, or the court rejects or requires the debt to be substantiated by evidence. The notice must be in accordance with Annexure 1, Form 34. A court may also make an attorney-and-client order to penalise a party which the court believes has acted improperly. The property must be sold at or near the place where it was attached, or to which it has been removed. The affidavit must set out the grounds on which liability is disputed or contain an admission or denial with respect to the personal signature or the authority or signature of the agent on the face of the liquid document. A writ or warrant may be issued only after judgment. The inventory must be annexed to a notice of attachment. There is no requirement to send the document through the sheriff. [5] Since its establishment in 1985, the Rules Board alone has competence to make rules for courts.[4]. The sheriff will then forward a copy of the affidavit to the execution creditor, and another copy to the execution debtor. [38] During the trial, parties endeavour to prove the basic facts formulated in the pleadings, by means of witnesses who appear in person and who provide oral, documentary, or real evidence. In this regard, MCR 33(16) provides that, where costs or expenses are awarded to any party by the court (otherwise than by a judgment in default of the defendant's entry of appearance to defend, or on the defendant's consent to judgment before the time for such appearance has expired), the party to whom such costs or expenses have been awarded must deliver a bill of such costs or expenses. : JOHN WILLIAMS (PLAINTIFF) (Identity Number: 0000000000000) And. Having received such notification, the creditor is obliged, in terms of section 66(2) of the Magistrates' Courts Act, to cause a notice of the intended sale in execution to be served personally upon the preferent creditor; alternatively, the execution creditor must make application to the Magistrate's Court of the district in which the property is situated in order to obtain a direction as to what steps must be taken to bring the intended sale to the notice of the preferent creditor. He must ensure, however, that he minimises his own cost. The rules of substantive law determine whether or not a demand is an essential element of the cause of action; generally speaking, a demand is required in two instances:[1]. This is normally done at a pre trial conference. This “endorsement” is known as the taxing master's allocatur. Service of such an application need not be effected by the sheriff; it is usually effected by the attorney's messenger. Rule 42(1) supplements the common law by providing for certain instances in which the court may, either mero motu or on application by one of the parties, set aside or vary one of its judgments or orders. Divorce process in South Africa is quite straightforward A case for law - your free advice on all things pertaining to the law. send, by registered post, a copy of the notice of sale to each judgment creditor who has caused the immovable property to be attached, and to each mortgagee whose address is known; and. [4] The Regional Court was previously only a criminal court; however, since August 2010, it has also had civil jurisdiction. REPUBLIC OF SOUTH AFRICA No. Rule 41(1) of the Divorce Courts provides that parties to divorce proceedings in these courts should pay their own costs, unless there is good reason for the court to order otherwise. Should the plaintiff fail to do so, a defendant may, in writing, request the plaintiff to deliver such declaration within five days. where the respondent denies all the material allegations made by the various deponents on behalf of the applicant, and furnishes positive evidence by deponents or witnesses to the contrary; "confession and avoidance," where the respondent admits the allegations (or evidence) in the applicant's founding or supporting affidavit, but raises other facts which in turn are denied by the applicant; where the respondent concedes that he has no knowledge of the main facts alleged by the applicant, but denies them and orders the applicant to the proof thereof, and furnishes (or undertakes to furnish) evidence to indicate that the applicant or the applicant's deponents are prejudiced, incredible or otherwise unreliable, and that certain facts upon which the applicant or the deponents rely to prove the main facts are also unreliable; or. This is the highest court in constitutional matters. that, in exceptional circumstances, a party may be ordered to pay costs on a more punitive scale than would normally have applied (an attorney-and-client scale, for example, instead of party-and-party scale). Three different forms of warrant are provided for in Annexure 1. Islam Islam, though a minor religion, was introduced by the Dutch settlers’ Cape Malay slaves and constitutes 1.5% of the total population in the country. [24], The court has jurisdiction in terms of section 28 over any party to interpleader proceedings if. In the South African legal system, a summons is the first step in the court process. Where the ownership in the movable or immovable property vests in the debtor, but a third party has a real right in respect of that property, such as a pledge (in the case of movable property) or a mortgage (in the case of immovable property), as a general rule that property may nevertheless be attached and sold in execution, subject to certain conditions. The civil summons must be personally served by a process server, sheriff, constable, or other person over the age of 18. The purpose of a provisional sentence is therefore to bring the proceedings to a speedy end, especially when the defendant does not have a defence to the plaintiff's liquid claim. [38], A summons has been defined as "a court process in which the defendant is called upon to enter appearance to defend the action within a stipulated time and to answer the claim of the plaintiff, and in which he is warned of the consequences of failure to do so. that a particular legal representative acts on behalf of the prospective plaintiff/applicant; about the nature and content of the claim; that payment or performance is being requested; about the time period within which action is required; and, about the consequences of failure to comply with the demand. an order to pay the debt in whole or in instalments; that the defendant may admit his liability to the plaintiff; that he may offer to pay the debt in instalments; and. It must set out, The order must specifically state a weekly or monthly amount to be paid over to the administrator by the debtor. Certain property belonging to the judgment debtor may not be attached and sold in execution. In conclusion, the contract of “guarantee” does not have a defined legal meaning in South African law. Types of adoptions. The key difference is that application proceedings are used only where there is no material dispute as to the facts.[136]. Section 2 of the Statutory Pensions Protection Act provides that no pension, right to a pension or any contributions made by any person towards a pension, shall be liable to be attached or subjected to any form of execution under a judgment of a court. After a defendant has filed a plea, the plaintiff may file a replication (or reply) if he wishes to plead new facts in answer to a defendant's plea. In terms of the Uniform Rules of Court in South Africa, any court Application or Summons is required to be served personally on the person you intend to act against (i.e. A new section 65A(6) provides that, where the court is satisfied that the debtor has knowledge of the notice in section 65A(1), and has failed to appear, or where the debtor fails to appear on a postponement date, or where he has failed to remain in attendance, the court may issue a warrant of arrest to bring the debtor before a competent court to conduct an enquiry in terms of section 65A(1). A party may, in exceptional circumstances, be ordered to pay his counterparty's cost. These factors are. Service may not be effected on a Sunday or a public holiday (with some exceptions). In suitable cases, it will adopt a “robust, common sense approach” to disputes of fact. If the defendant disputes the validity of the liquid document, by denying the authenticity of the signature or the agent's signature or authority, or by averring that a simple condition must be fulfilled before payment can take place, the onus lies with the plaintiff to prove, on a balance of probabilities, the validity of the document or the fulfilment of the simple condition. Notwithstanding a factual dispute, foreseen or foreseeable, the situation may demand that the applicant be afforded urgent relief in the face of a factual dispute. These decisions will influence future development of the execution process relating to residential property. Rule 6 of the Magistrates' Courts Act, and Rule 18 of the Uniform Rules, set out the form and content of pleadings in general. Petitions were abolished by the Petition Proceedings Replacement Act. %���� It largely determines whether or not the matter will proceed to the principal case. After the property is transferred, and the plan of distribution of the proceeds has lain open for inspection, the necessary pay-outs are made to the creditors in accordance with the plan of distribution. It is important to note the difference between a special plea and an exception. This form of imprisonment, when it related to failure to pay or the inability to pay debts, was nothing more than a disguised extension of civil imprisonment for debt, which had been abolished by the Abolition of Civil Imprisonment Act of 1977. If the plaintiff merely denies everything stated by the defendant in his plea, no reply is necessary. In the case of breach of contract, for example, one should identify the type of breach, be it misrepresentation or mora debitoris or something else. There is no specific reference to a special plea in either the MC rules or the HC rules. It is submitted that this is not a true “guarantee”. A provisional-sentence summons contains the following particulars: The defendant may admit liability for the amount claimed, in which case the court may grant final judgment in favour of the plaintiff. The property may be removed in two circumstances: In the Magistrate's Court, there is no equivalent to HCR 45(5), which sets out the mechanism by which property attached and inventoried may be left on the premises if the execution debtor, together with some person of sufficient means acting as a surety, undertakes that such property will be produced on the day appointed for the sale. Normal eviction process 2. Only if the matter is so urgent that the applicant cannot set the matter down for hearing on the court's weekly motion day, and give the registrar the prescribed period of notice of the hearing, may the applicant set the matter down for hearing on the next motion day while giving the registrar a shorter period of notice. The summons must comply with the usual requirements for a summons, in respect of the plaintiff's and the defendant's personal details, and must provide an address for service within eight kilometres of the court. This involves the winning party drafting a bill of costs, which will be taxed. The pleading contained averments that were mutually inconsistent and had not been made in the alternative. [70], Where a defendant is faced with a summons, he has two choices—either. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function. In terms of section 83(6) and (7) of the Attorney's Act, a practising attorney may not share his professional fees with anyone other than another practising attorney. Any document not discovered may normally not be used at trial unless by consent or on application to court. In a simple summons, the particulars appear in abbreviated form, often in one line. In practice, Form 2 is adapted for this purpose by reflecting on it both the applicant and the respondent, and by addressing it to both the Registrar and the respondent. In application proceedings, the equivalent documents to pleadings are called "processes"; these processes not only formulate the factual dispute but also offer the evidence in support of the factual allegations. authorise the issuing of such a warrant, together with an order for the payment of the judgment debt, in periodical instalments in terms of section 73. to submit to the court a full statement of his affairs; and. Action proceedings commence with a summons followed by an exchange of pleadings based on the facts. The law acknowledges different types of marriage in South Africa, and the divorce process and consequences depend on how a couple got married: Civil Marriages, Civil Unions and African Customary Marriages. The aim of the exception is thus to have the summons dismissed and do away with the action in its entirety. The following are the different types of Originating Summons: Following such an inquiry, the court may issue various orders: Prior to the decision in Coetzee, the sanction for non-compliance on the part of the debtor was imprisonment, which was described as “imprisonment for contempt of court.” Sachs J, in his judgment in Coetzee, described this as a misnomer. The exception must be raised within 10 days of receipt of the notice of intention to defend. Where a debtor deliberately refuses to co-operate with the courts regarding his refusal to pay a debt, even a proper judgment debt, the creditor who finds that the normal process of execution yields no dividends will have to resort to an administration order in terms of section 74, or to full-scale sequestration. Where a court simply makes an order of costs against one party in favour of another, this is deemed to be a party-and-party order of costs. the date of the judgment or the date of the expiry of the period of suspension under section 48(e) of the Act, as the case may be; that the judgment or order has remained unsatisfied for a period of ten days from the date on which it was given or became payable, or from the expiry of the period of suspension in terms of section 48(e); in what respect the judgment debtor has failed to comply with the judgment or order referred to in section 65A(1) of the Act, the amount in arrears and outstanding balance on the date on which the notice is issued; that the judgment debtor has been advised by registered letter of the terms of the judgment, or of the expiry of the period of suspension under section 48(e) of the Act, as the case may be, and of the consequences of his failure to satisfy the judgment, and that a period of ten days has elapsed since the date on which the letter was posted; and. In recent years, the Constitutional Court, the Land Claims Court and the Labour Courts have adopted a new principle: that persons should not be deterred from enforcing their rights because they fear that they will have to pay their opponent's costs, on top of their own, if they do not succeed. Legal adoptions can take many forms, as set out below: Related Adoption: Adoption of a child by a person who is related to the child. If it appears that the judgment debtor's total debts do not exceed R50,000, the court may grant the administration order in respect of his estate, and stay further proceedings, but may grant the judgment creditor the costs already incurred in connection with such proceedings. Each party's legal representative sets out the material facts of their complaint or defence, as the case may be, in summary form. The attorney and client may agree that the attorney will charge the client only if he succeeds in the case. Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits (as opposed to procedures in criminal law matters). A request thus consists of the following documents: The request must set out that the papers are in order as well as the grounds on which the request is being brought. The Act provides for several means whereby a creditor may exact payment of his debt. An ex parte or unilateral application is an application in which the applicant is the only party before the court. [99][100][101] In certain important respects, the new rule appears to revise the position as set out in the old cases. The execution creditor has ten days after the receipt of the notice in which to admit the claim, in which event the execution creditor will not be liable for any costs, fees or expenses afterwards incurred, and the sheriff may withdraw from possession of the property concerned. If necessary for purposes of execution of the warrant, the sheriff may open any door on any premises, or of any piece of furniture, even if such opening is refused, and even if there is nobody present representing the judgment debtor. The provisos to section 39 of the SCA, and section 67 of the Magistrates' Courts Act, state that the court may, in exceptional circumstances, and on such conditions as it may determine, increase this amount at its discretion. Official Development Assistance Figures The complete picture of development assistance figures in South Africa is difficult to obtain. There are instances, then, where the circumstances may justify the court in dispensing with service. Section 65M provides that, where judgment for the payment of money has been given by a division of the High Court, the judgment creditor may file with the clerk of the court a certified copy of that judgment and an affidavit specifying the amount still owing and how it has been arrived at. When the matter is too urgent for the respondent to be allowed the usual ten court days prescribed by HCR 6(5)(b), from date of service of notice of the application to date of hearing, the ten-day period may be ignored. This schedule will differ depending on which type of court hears your case. Types of Originating Summons. In this type of relationship there is also no concept of salary or remuneration, in most instances the independent In terms of rule 4B, the letter must contain particulars of the nature and amount of the claim. For this reason, the test is not as stringent as when final relief is sought; in fact, it favours the applicant. The former, in MCR 44(2), is the most relevant for present purposes. It may happen, however, that the debtor is recalcitrant and unwilling to comply with a judgment. performance claims, in which there is a tender, unconditional or without prejudice, of specific performance by the defendant (34(2)). the debtor has consented thereto in writing, or the court has so authorised; or. These arguments are based on the allegations and averments raised in the summons, the defendant's opposing affidavit and the plaintiff's replying affidavit. service at the defendant's place of employment; service via registered post (which applies only to the Magistrate's Court). In the High Court, interpleader proceedings are dealt with in terms of HCR 58, and in the Magistrate's Court in terms of section 69 of the Magistrates' Courts Act, read with MCR 39 and 44. Having thus put his version of events on paper, the client need not appear in person. TIP: South Africa follows a ‘no fault’ system, so you do not need to prove fault on the side of either party, but merely that the marriage has broken down irretrievably. The sale must be by public auction without reserve. The second possibility is that the applicant may show that there is "good reason" to rescind the judgment. It is therefore a prerequisite for the issue of a writ or warrant that there be a judgment against the debtor. The Administration of Estates Act lays down that the Master may, by notice published in the Gazette, call upon the relatives of the person concerned to attend before him for the purpose of recommending the appointment as curator of a person or any number of specified persons. It has a discretion to decide on one of the other steps mentioned below, and in addition to penalise the applicant with a costs order. This is an order that the costs be paid by the attorney, instead of by the client. These witnesses are examined in chief, cross-examined, and re-examined. matters in which it is anticipated that a material dispute of fact will arise; or, when he has the prospect of a final judgment being granted against him; and, when he does not have the opportunity of giving. The first step in the procedure for attachment and execution is the valid issue of a document known in the practice of the High Court as a “writ of execution,” and in the Magistrate's Court as a “warrant of execution.” Although the terminology is different, the purpose of the documents is essentially the same. If the plaintiff rejects it, he must be sure that the court will grant judgment for more than the offer, or risk an adverse costs order. In terms of the amendments proposed in the Seventeenth Constitutional Amendment Bill, the Constitutional Court would become the highest court in respect of all matters (not just those in which a constitutional point is raised), so that leave to appeal any decision of a high court would be granted directly to the Constitutional Court if this is deemed to be in the interest of justice. What follows is a series of documentary exchanges, called pleadings, between the parties akin to a conversation on paper. Once the summons, with all annexures, has been served on the defendant, and the required time period for a response has lapsed without such a response, a party can apply for judgment. In plain terms, the summons acts as an instruction guide for the party to let them know exactly what to do next. Part A: consultations, appearances, conferences and inspections, Part D: miscellaneous (including the making of copies, telephone calls and faxes), Part E: charges in connection with the bill of costs, money claims, in which there is an offer, unconditional or without prejudice, of payment of money by the defendant (34(1)); and. After such a date has been allocated, the party who drafted the bill must send a notice of taxation to the other party, to inform him where and when the taxation will occur. Different procedures apply in different courts. The defendant's bona fides, whether or not the default was wilful, and the existence of a prima facie defence are all taken into account in exercising that discretion, the most important aspect being that of the existence of a prima fade defence. There is no standard form prescribed for the affidavit. The applicant is not necessarily the defendant in default. If the plaintiff does not accept payment, this cannot be disclosed to the court until the end of the trial. For this reason, it is important that an attorney keep meticulous records on the client’s file of all work done. There are five types of companies that you can register. Do-it-yourself (DIY) divorces. A provisional sentence summons is one whereby a creditor in possession of a liquid document may sue speedily. The Act prescribes the factors which the court must take into consideration in determining the ability of the debtor to pay the debt due. This often occurs in the context of provisional-sentence proceedings. The costs to date shall be reserved for determination by the trial court (or shall be paid by the applicant). If a person is incapable of managing his own affairs, and the estimated value of his property does not exceed R100,000, a judge may, on application, appoint a curator bonis. The defendant is bringing the application to rescind the default judgment, but does not wish to defend the proceedings. In terms of section 74(1)(a), where a debtor possesses a regular income, and where the burden of debt is reasonably manageable, the debtor may obtain an administration order from the court of the district in which he resides, carries on business or is employed, in the following circumstances: Additionally, in terms of section 65I, an administration order may be granted against a debtor who applied for such an order during a section 65 in camera inquiry into the debtor's financial position. Vast majority of provisional-sentence orders therefore become final judgments made up front whether! In mind process relating to residential property printed form that may be made by an attorney judgments... Relief is sought ; in fact, it was the subject of extensive Amendment in 1997 its area jurisdiction. 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