Page 1 of 6 123 ... LastLast
Results 1 to 10 of 53

Thread: Summons, notice of intention to defend and plea in practice

  1. #1
    Diamond Member Vanash Naick's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    2,807
    Thanks
    704
    Thanked 609 Times in 541 Posts
    Blog Entries
    1

    Summons, notice of intention to defend and plea in practice

    Hi guys,
    The purpose of this post is to give you practical insight into a summons, a notice of intention to defend and a plea. This applies to civil matter and not criminal matters. To this end I have attached a summons, a notice of intention to defend and a plea for illustration purposes(Please note the magistrates courts rules have been severely amended, as such should you google anything to do with summons and in particular plea, you most likely will get formats based on old court rules, there’s nothing worse than quoting old court rules in your documents, the other party will be able to tell immediately that you don’t know what you doing)..combined summons is commonly used for divorce. A practical reason that attorneys use a combined summons is that it will have the consent to judgement/notice of intention to defend froms as well as a request for a plea, which if you use an ordinary summons, you will have to file additional documents later to request the plea. I use it here so as not to complicate matters)(SEE ATTACHED FOR SUPPORTING DOCUMENTS)
    1. I’m going to use a fictitious example of a breach of contract, what the plaintiff does in practice and what the defendant does in practice; I’m going to use a combined summons as an example for illustration purposes;
    2. There are two parties to this matter Mr A and Mr B. Mr A is a reputable corporate company and advertises the job post of a truck driver. Mr B applies, is interviewed and gets the Job. Mr B starts working for Mr A on 12 January 2011. Mr B signs a contract with Mr A. Mr A soon realizes that the job is not that of a truck driver but that of a forklift driver and decides to leave work after one week of working with no notice whatsoever to his employer Mr A;
    3. A cause of action arises(something must take place to motivate someone to take you to court). Mr A procures the services of xyz attorneys and instructs them to sue Mr B for breach of contract;
    4. The first thing that xyz attorney is likely to do is to send a ‘final demand’ letter to Mr B stating that should he not pay Mr A certain amount of money, then Mr a intends to sue out summons in the Johannesburg magistrates Court against Mr B;(the letter of demand and the subsequent summons is sued out in terms of section 57 of the magistrates court act 32 of 1944 (as amended)
    5. In addressing this letter xyz attorneys can either should the physical address that Mr A provided them with or do a “consumer trace alert” with one or more credit bureaus such as XDS, Transunion ITC and Experian. The trace alert will provide xyz attorneys with the latest contact information of Mr B which they obtained from either a creditor who last done a check on Mr B when he applied for finance and thereby furnished the credit bureau with all his latest cell, landline, residential address, employer and employer details or from a potential employer who done a check on Mr B and supplied the same information to the credit bureaus;
    6. The reason that xyz needs this information is because they want the summons served at Mr B residential address(domicile);
    7. A summons is known in law as a “precedent”(NOT JUDICIAL PRECEDENT/CASE LAW/STARE DECISIS), A ‘precedent in this context’ simply means a predetermined or legally allowed format or template that the court will accept, that is , they will not accept it in any other format accept the laid down “precedent, the summons precedent and the notice of intention precedent are just two!
    8. XYZ attorneys will have all these precedents/forms saved on their pcs alternatively they can be downloaded from the Department of Justice website under the “forms” section;
    9. One must bear in mind at this point that our South African system of the law of civil procedure is based and practiced on the premise of exchange of various documenst which have different names, i.e. summons, notice of intention to defend, plea, notice of exception etc. This is to comply with the “audi alteram partem” rule which is a latin maxim that means “ there are two sides to a story.”
    10. So in practice Mr Shark an associate of XYZ attorneys goes to his pc and prints out the precedent of the summons and particulars of claim(after he has filled out these forms on his pc); Mr Shark will be particularly meticulous in drafting the correct headings. Here he must first establish which magistrates court has jurisdiction(I’m only using the example of a magistrates court which has monetary jurisdiction of R100 000 as opposed to regional magistrates court(R300 000) as opposed to high court(unlimited monetary amount). They intend to sue for R50 000 and the defendant Mr B lives in Eldorado Park south of Johannesburg. Mr Shark decides to sue out summons from the Johanessburg magistrates court in terms of section 28(1)(a) of the Magistrates Court Act 32 of 1944 as amended) which basically says that this court will have jurisdiction over Mr B because Mr B lives and works within the district of this court, furthermore the amount sued is R50 000 so this court also has jurisdiction in that regard;The summons that Mr Shark must prepare must state in which court the case is adjudicated,The case number The parties i.e. plaintiff/defendant and the type of document which will be clearly apparent from appearance, i.e. a summons can only look a certain way, Mr Shark cannot suddenly become creative on word 2010 and reinvent the wheel and create his whole new version of a summons, no, there is a precedent.
    11. The particulars of claim that Mr Shark prepares is simply the version of events from the plaintiff Mr A’s perspective in a clear, concise, chronological and numbered format i.e. 1, 2,3, 4 etc;
    12. Once Mr Shark has printed this , he physically takes this to the magistrates court in Johannesburg. It is specifically taken to the clerk of the civil court. It is stamped, filed etc;
    13. The sheriff then serves this summons on Mr B;
    14. On the summons itself, will be a section for consenting to judgment or notice of intention to defend, should the defendant choose to defend the action he must complete the notice of intention to defend form, sign it and then serve it on the clerk of courts and the plaintiffs attorney(SEE ATTACHED SUMMONS);
    15. So you get the summons, if it’s an ordinary summons, it will included the actual summons and a particulars of claim(which is the plaintiff’s complaint or dispute if you will; You need to study the particulars of claim on the summons(this is normally included as an annexure, simply because there are not enough lines/space on the summons itself to state the particulars of claim;
    16. Now, if you want to be professional i.e. do exactly what an attorney will do, then you don’t use the ‘notice of intention to defend form” on the summons itself but use the one I attach here..attorneys use this format(SEE ATTACHED NOTICE OF INTENTION TO DEFEND)
    17. Because this was a combined summons, the plea can be served with the notice of intention to defend or before the stipulated date on the summons(SEE ATTACHED PLEA). You can institute a counter claim when you submit your plea, but I’m not addressing that here
    18. In the plea you must be as clear and concise as possible and state your defence very clearly. You respond to a plea paragraph by paragraph i.e. ad para 1..the defendant admits the contents of this paragraph(SEE ATTACHED PLEA)
    19. You need to have a defence, the law provides a set of pre determined defences that you can chose which ever is most suitable to your case: There are certain question that you should ask yourself before preparing your plea:
    19.1Whether you going to admit or deny the courts jurisdiction?
    19.2Are you going to admit or deny the allegation of damages suffered by the plaintiff
    19.3Are you going to admit or deny the amount of damages?
    19.4Whether you going to admit or deny the demand?
    19.5And in conclusion your plea must end with a prayer for the dismissal of the plaintiff’s claim with costs(ps. This is not a religious prayer, it’s merely court decorum. I too am still trying to research why this prayer must be included at the end o f a plea!



    DISCLAIMER: PLEASE DON’T TAKLE MY ADVISE, IT WILL PROBABLY HARM YOU!!!!
    Attached Files Attached Files
    Last edited by Vanash Naick; 13-Feb-12 at 04:14 PM. Reason: very poor spelling!!!!!
    THIRD WORLD CHILD
    “Before dying I want to share the verses of my soul with the poor people of this earth. My verse is light green and it is a flaming red.My verse is like a wounded deer who seeks refuge in the forest.The solitude of the mountains pleases me more than the sea."

  2. Thank given for this post:

    Dave A (13-Feb-12), Singhms (26-Feb-13), Sourcemart (04-Mar-13)

  3. #2
    Diamond Member Vanash Naick's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    2,807
    Thanks
    704
    Thanked 609 Times in 541 Posts
    Blog Entries
    1
    Default Judgement
    1. Default judgement occurs where you don’t submit a “notice of intention ‘ to defend and/or where you submit a notice of intention to defend and respond to all other documents but don’t appear on the date set down;
    2. The magistrates courts rules has so been amended that as at today’s date even the clerk of courts himself/herself can enter a default judgement against you;
    3. So, if you have a defence, submit a notice of intention to defend (see attached prescribed format)to the clerk of courts and the plaintiff’s attorney and either simultaneously or within 20 days of submitting the notice of intention to defend submit your “plea” in the prescribed format(see attached)
    DISCLAIMER: PLEASE DON’T TAKE MY ADVISE, IT WILL PROBABLY HARM YOU!!!!

    THIRD WORLD CHILD
    “Before dying I want to share the verses of my soul with the poor people of this earth. My verse is light green and it is a flaming red.My verse is like a wounded deer who seeks refuge in the forest.The solitude of the mountains pleases me more than the sea."

  4. Thanks given for this post:

    Sourcemart (04-Mar-13)

  5. #3
    New Member
    Join Date
    Dec 2012
    Location
    Boksburg, Gauteng
    Posts
    1
    Thanks
    0
    Thanked 0 Times in 0 Posts
    This is an awesome article. I'm in the middle of a divorce, and fighting for access to my two daughters at the same time. I have managed to get an interim order giving me access to the girls. However, in the process of the case being finalized by making a draft parenting plan into an order of the court, malicious allegations were made, and I made a motion that they should be investigated; a motion that the court upheld, however, postponed the case for 90 days. In the mean-time my wife served me with summons for divorce. I have been doing my research and I must say it is said to note that this is just about one of the few articles that explains the procedures on defending civil matters. Even though, you have not used divorce as your case study, you have managed to explain the processes in an eloquent manner that can be adapted in divorce case. In my opinion, there is a market in the law fraternity to defend cases, since all lawyers are concerned with helping people to divorce as opposed to mending the ills of the society. I am more determined to study law than ever before, and hope that you "Vanash Naick" are already studying as your ideas are profound and unique in presentation. Good work!

  6. #4
    New Member
    Join Date
    Feb 2013
    Location
    gauteng
    Posts
    1
    Thanks
    0
    Thanked 0 Times in 0 Posts
    Hi, in desperate need of some advice!
    Today a sheriff of the court arrived with a default judgement taken against my husband, to attach property to the value of R19000. The case concerned was from an accident in 2008 in which my husband was not involved. He arrived on the scene of a work-related accident (a TLB driven by a company operator drove into the back of a car), and provided his details for correspondence. The lawyers who contacted him were then given the details of the owner of the company and the particulars for insurance, etc. In 2009 my husband received a summons to appear in court relating to this case, as he was personally being sued for the amount owing. He refused to accept the summons and asserted again that it was not HIS accident and he was not liable. He then contacted the lawyers concerned, gave them particulars once again, and thought that was that. Now he has the default judgement against him. WHAT CAN WE DO?? Surely as it was neither himself operating the TLB, nor was the TLB his or in any way his responsibility, this is an error?? We can't afford hefty lawyer fees but at the same time we most certainly aren't going to pay R19000 for something that did not concern us?! Any advise will be greatly appreciated!!

  7. #5
    Diamond Member Vanash Naick's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    2,807
    Thanks
    704
    Thanked 609 Times in 541 Posts
    Blog Entries
    1
    Quote Originally Posted by Fii View Post
    Hi, in desperate need of some advice!
    Today a sheriff of the court arrived with a default judgement taken against my husband, to attach property to the value of R19000. The case concerned was from an accident in 2008 in which my husband was not involved. He arrived on the scene of a work-related accident (a TLB driven by a company operator drove into the back of a car), and provided his details for correspondence. The lawyers who contacted him were then given the details of the owner of the company and the particulars for insurance, etc. In 2009 my husband received a summons to appear in court relating to this case, as he was personally being sued for the amount owing. He refused to accept the summons and asserted again that it was not HIS accident and he was not liable. He then contacted the lawyers concerned, gave them particulars once again, and thought that was that. Now he has the default judgement against him. WHAT CAN WE DO?? Surely as it was neither himself operating the TLB, nor was the TLB his or in any way his responsibility, this is an error?? We can't afford hefty lawyer fees but at the same time we most certainly aren't going to pay R19000 for something that did not concern us?! Any advise will be greatly appreciated!!
    Good evening Fii ,

    I can understand your reasonable anxiety and worry about this matter! That said, one must never lose sight of the fact that a summons is a court process! The court must be respected by the defendant entering an appearance and a plea on merits. If I explain it like this, someone has accused your husband formally in a civil court for liability for an accident. The fact that he was not responsible does not negate the fact that he failed to enter an appearance within the time frame and a plea on merits. So judgment was rightfully and lawfully granted!
    What to do next
    I’m afraid you’ll have to instruct an attorney on this one, but I’ll advise you on what to specifically instruct.
    1. In instruct an attorney to institute proceedings to have the warrant set aside in terms of section 62;
    2. In instruct an attorney to have the judgment rescinded on the basis of rule 49(7) or (8) whichever one your attorney believes to be more applicable


    THIRD WORLD CHILD
    “Before dying I want to share the verses of my soul with the poor people of this earth. My verse is light green and it is a flaming red.My verse is like a wounded deer who seeks refuge in the forest.The solitude of the mountains pleases me more than the sea."

  8. Thanks given for this post:

    Dave A (27-Feb-13)

  9. #6
    New Member
    Join Date
    Mar 2013
    Location
    South Africa
    Posts
    3
    Thanks
    3
    Thanked 0 Times in 0 Posts
    Hi Vanash,
    Thank you for the information. I have a quick question. Completing the Summons document is real easy, but where do I get the "Case" number from? I see in your example 6003/5013. If I need to complete a draft summons for the magistrate's court, how will this look draft look like? I also then need to know, do I just take the draft personally to the magistrates court, and ask for the clerk of the court to take and stamp it?
    I am the director for a debt collections company, and up to now, we did not have the need to complete summons documents. But people are more resistant than ever to pay their outstanding debt this year.

    Kind Regards

  10. #7
    Diamond Member Vanash Naick's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    2,807
    Thanks
    704
    Thanked 609 Times in 541 Posts
    Blog Entries
    1
    Hi Sourcemart,

    1. Any individual can sue out summons in his personal capacity for a matter that involves him or her directly!
    2. As a debt collector if you not a practicing attorney i.e. registered with the law society then you precluded from suing out summons on behalf of your clients, only an attorney may do so. So you’ll have to instruct an attorney to do so;
    3. Let me explain as follows: If Mr A owes you money in your personal capacity, an agreement between you and Mr A, then yes, you may sue out summons in your personal capacity, however based upon what you say, you collecting debts on behalf of clients for payment, you therefor precluded from drafting any court document to be used in court as this is in contravention to the Attorneys Act 53 of 1979(as amended)
    3. The stamping gets done by the clerk of courts, payment of the court fees goes along with this;
    4. So attorney will have summons templates in their portfolio of documents on their pc, they would then simply complete and take it to the clerk of courts for relevant stamping etc

    My single most important reason for this thread is for someone who has received a summons and merely wants some form of insight as to what can be done thereafter. It's here for academic enlightenment..
    THIRD WORLD CHILD
    “Before dying I want to share the verses of my soul with the poor people of this earth. My verse is light green and it is a flaming red.My verse is like a wounded deer who seeks refuge in the forest.The solitude of the mountains pleases me more than the sea."

  11. #8
    Silver Member Darkangelyaya's Avatar
    Join Date
    Nov 2012
    Location
    Johannesburg
    Posts
    247
    Thanks
    136
    Thanked 58 Times in 40 Posts
    Blog Entries
    6
    I don't mean to offend, but shouldn't debt collectors be 100% familiar with this process?
    ~Anything or anyone who does not bring you alive, is too small for you~ Carina
    ~The moment you think you know it all, is the moment you know nothing~ Carina
    twitter: @DarkAngelYaya - Blogger: The Common Garden Variety Goddess - darkangelcarina@gmail.com

    One Google Page Result away from being Famous

  12. #9
    New Member
    Join Date
    Mar 2013
    Location
    South Africa
    Posts
    3
    Thanks
    3
    Thanked 0 Times in 0 Posts
    Good day Darkangelyaya,

    No offence taken.
    We are 100% familiar with our process, as we have been doing it for a very very long time. It has never been necessary for us to issue a summons against a debtor, as they usually start paying after receiving their Letter of Demand.
    We have never had the means to send summons or obtain default judgement against a debtor.

    The other thing is, we are in a very competitive industry, so everything you learn is the hard way, by means of trial and error. Due to there being so many debt collectors, they never share their methods, nor does attorneys tell you anything, because they want you to make use of them. Everyone always thinks about their pockets first.

    I am also very aware that a plaintiff or a plaintiff's attorney can issue a summons. The reason why I asked, is due to the fact that we take on the client's debt from the debtor. So, in essence, the debt becomes our company's debt. Will this not enable our company as being the plaintiff?

    Kind Regards

  13. #10
    Diamond Member Vanash Naick's Avatar
    Join Date
    Sep 2011
    Location
    lenasia
    Posts
    2,807
    Thanks
    704
    Thanked 609 Times in 541 Posts
    Blog Entries
    1
    A very good afternoon to you Sourcesmart,

    I’ll answer your question in p2..

    1. In my opinion the law in unequal in so far as companies and businesses are normally in a much better financial position to litigate than is the case with the defendant. This is especially true when it comes to debt, you may well find a situation whereas the debtor was actually a very good payer but then due to illness, retrenchment or such other reasons they unable to pay. It’s not a case that they don’t want to pay but rather that they unable to pay. They eventually get another job, but years of unemployment has set them back in life. It’s still difficult for them to repay. There in my opinion the law is still unequal. I’ve not conducted any research on the following postulation, but I pretty certain that University Law Schools and the Legal Aid Board etc. take on the cause of the defendant with the ethos that these people really can’t afford professional legal representation. Now with a business this is not so, as even though a business may be small, they still generate revenue. Can you see why I say that the law is unequal in the relationship between a debtor and creditor?

    2. Okay, the fact that you buy the debtor's book changes things substantially! What you essentially saying is that you have purchased the rights, tile and deed of the debts. The debt belongs to you. You are therefore the Plaintiff. So as the Plaintiff you not going to prepare a court document for anyone else to use in court, but in essence you going to prepare your own documents, sign your own documents and then use your very own documents in court. This does indeed change everything! The tell-tale sign, if you excuse the pun, is actually where you sign the process documents as you will inevitably sign as the Plaintiff or the Plaintiff’s attorney. Both physical address and postal address is now required, another tell-tale sign. So you would actually be signing as the Plaintiff as you not acting for someone else and you not preparing a document in contravention of the Attorneys Act but rather you preparing the document for your- self which the law does cater for!;

    3. At the following link you’ll find all the forms you require in PDF form, they are interactive fill in. Once you completed the form, you take it to the clerk of courts of the relevant magistrates court, as your first port of call, they’ll then stamp and direct you as to next steps. You actually tell the clerk of courts that you are the Plaintiff and that you are acting for yourself. The costs stated are party to party costs, the 1 thing the defendant knows for sure is that all those amounts mentioned mean that should he/she lose , he/she is liable for such costs

    http://www.justice.gov.za/forms/form_mcr.htm

    THIRD WORLD CHILD
    “Before dying I want to share the verses of my soul with the poor people of this earth. My verse is light green and it is a flaming red.My verse is like a wounded deer who seeks refuge in the forest.The solitude of the mountains pleases me more than the sea."

  14. Thank given for this post:

    Dave A (05-Mar-13), Sourcemart (04-Mar-13)

Page 1 of 6 123 ... LastLast

Similar Threads

  1. Summons: what you need to do
    By Vanash Naick in forum Labour Relations and Legislation Forum
    Replies: 12
    Last Post: 21-Aug-12, 07:32 PM
  2. Law reports: How they work in practice
    By Vanash Naick in forum Labour Relations and Legislation Forum
    Replies: 2
    Last Post: 06-Feb-12, 02:00 PM
  3. summons
    By murdock in forum General Chat Forum
    Replies: 40
    Last Post: 16-Jan-12, 10:29 AM
  4. [Article] Case law: How it works in practice
    By Vanash Naick in forum General Business Forum
    Replies: 0
    Last Post: 07-Dec-11, 02:42 PM
  5. WHAT IS UNFAIR LABOUR PRACTICE?
    By manhav in forum Labour Relations and Legislation Forum
    Replies: 0
    Last Post: 24-Aug-10, 02:51 PM

Tags for this Thread

Did you like this article? Share it with your favourite social network.

Did you like this article? Share it with your favourite social network.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •