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!!!!
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Originally Posted by Fii
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