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

  1. #11
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    Thank you for the thorough answer Vanash. We already have all the legal documents, and already completed all of them. I just wanted to make sure of the proceedings in taking them to court, and where should I get the case number from, or should I leave that blank.
    This was one of the reasons our company decided to purchase the bad debt, taking all risks, instead of acting on behalf of our clients.

    You have definitely helped me a great deal.

    On the note of the law being unequal, we are aware of it, and we are not your traditional debt collectors, as we take in consideration why the debtor failed to pay his / her account(s). We are also not issuing Emolument orders or garnishee orders against anyone. The only time we want to go this extreme route is if the debtor has all the means to pay for the debt, but they have the attitude that they will not pay for it, because they were charged more than what they think it is worth, as per one statement received from a debtor.

    Kind Regards

  2. #12
    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by Sourcemart View Post
    Thank you for the thorough answer Vanash. We already have all the legal documents, and already completed all of them. I just wanted to make sure of the proceedings in taking them to court, and where should I get the case number from, or should I leave that blank.
    This was one of the reasons our company decided to purchase the bad debt, taking all risks, instead of acting on behalf of our clients.

    You have definitely helped me a great deal.

    On the note of the law being unequal, we are aware of it, and we are not your traditional debt collectors, as we take in consideration why the debtor failed to pay his / her account(s). We are also not issuing Emolument orders or garnishee orders against anyone. The only time we want to go this extreme route is if the debtor has all the means to pay for the debt, but they have the attitude that they will not pay for it, because they were charged more than what they think it is worth, as per one statement received from a debtor.

    Kind Regards
    I’ll answer your question in point 2

    1. I can appreciate that many will conclude that I’m one sided when it comes to these matters especially since the creditor does also have rights! I have unfortunately already taken a stance, i.e. where I stand on these matters. I stand for the grassroots people of this country, those who are marginalized in our country and are actually not even aware of their rights. We have a wonderful Constitution, but our Constitution itself doesn’t take a lot into consideration e.g. we all have the right to life, but for so many life is so very miserable, intolerable and unbearable that this right means nothing to them. They struggling to survive on a daily basis for basic things as such food, and shelter. We all have the right to dignity and respect, but I ask where is the dignity and respect for the 20 families who are forced to use one toilet in an informal settlement. So for the larger part my posts are meant to assist people who are marginalized alternatively the ordinary working class person who is overcome by debt etc.;

    2. The clerk of court will give you the case number. Be forewarned though, if it’s a credit agreement i.e. personal loan, credit card, retail apparel account etc. even though it was bought, you are forced to use the combined summons which includes the process which is the summons itself and the particulars of claim. The two are not separated. The reason for this is that there are many averments which you need to include in the particulars of claim to show alleged compliance with the National Credit Act; you also have to send a final letter of demand via registered mail first

    3. This is what I’ll advise you, see an attorney for the very first one and be forthcoming with him or her i.e. you a small company, you ideally want to litigate in your personal capacity as the Plaintiff so for one case, you want them to consult with you, provide you with all the necessary averments, take you through the procedure. You then pay them for the consultation and then you good to go. As mentioned you intend litigating as the Plaintiff itself and not on behalf of somebody else. So it’s your own matters, you simply feel that you should not contend with costs of litigation, but you also want to be set in the right direction. I think that you’ll get your monies worth by a thorough consultation with an attorney. You want them to set you in the right direction..

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  3. #13
    Email problem workshop's Avatar
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    Quote Originally Posted by Vanash Naick View Post
    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..[/FONT][/COLOR]
    Vanash I am being sued for defamation and out of principle have decided not to engage an attorney. I want to feel what it's like to be be victimised. I am also a bit tight on cash. Whatever! Having received a notice to plea I approached the Clerk of the Court who giggled whilst she told me "she can tell me nothing" and all because she is just a clerk.

    I then asked her "What do most people do in this sort of situation" and she didn't answer. She just giggled some more.

    Besides your thread what other resources are available to someone who is being bullied and bamboozled by the profession?

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    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by workshop View Post
    Vanash I am being sued for defamation and out of principle have decided not to engage an attorney. I want to feel what it's like to be be victimised. I am also a bit tight on cash. Whatever! Having received a notice to plea I approached the Clerk of the Court who giggled whilst she told me "she can tell me nothing" and all because she is just a clerk.

    I then asked her "What do most people do in this sort of situation" and she didn't answer. She just giggled some more.

    Besides your thread what other resources are available to someone who is being bullied and bamboozled by the profession?
    Good morning ,
    1. You indicate that you have received a notice for request for plea? Normally with defamation matters, a combined summons is used, which requires you to enter an appearance as well as file your plea on merits.
    2. You need to actually in a very clear and concise manner answer to every single paragraph in the Plaintiff’s particulars of claim, you need to either admit, deny, place in issue or confess each paragraph. You also need to state the defense to the allegations. This needs to be done within a specified period of time;
    3. Might I suggest that you get a University Law Clinic to assist you with your pleadings i.e. you are representing yourself, you just need help with the pleadings!


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    A bit intimidating. But think I have managed to put a reasonable plea together. Will see what transpires. Especially liked the bit about Wherefore defendant prays that plaintiff's claim be dismissed with costs.

    It's something that is raising many questions in my mind.

  7. #16
    Diamond Member Citizen X's Avatar
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    I'm copying, cuttting and pasting this query here and my response to such quesry:

    "Hi I have received a Summons from a large Hospital

    I joined a Medical a Hospital Plan in April 2011 and was submitted to a 3 month General Waiting Period and a 12 month period for my wife's depression

    In Dec 2011 my wife OD'ed and was in serious respiratory failure and needed to be resussed on the bed, paramedics were called and they called up the local private hospital as the nearest state hospital was 20km away and the private hospital asked about my med aid details and said bring her in.

    When she got to the hospital i was in a state of blind panic and the hospital phoned the med aid and they said she should be admitted as she was on the hospital plan.

    the hospital gave me forms to sign but i did not know what they were and as i was from the UK i assumed they were her name and address.

    She had to be resussed twice in emergency and then put on life support

    The following morning i received a call from the hospital saying i owed them Ł10 000 and that if i do not pay my wife will be discharged, but the doc in ICU said the med aid would pay until she is stable.. I told the hospital that she had a hospital plan but the hospital said the med aid rejected the request and were not paying

    The following day as soon as the tubes came out of her throat she discharged herself.

    Then I received around R35 000.00 of bills and i kept saying med aid will cover.. and they re submitted to med aid and they kept rejecting saying that the reason was that the cause was depression and that she was in a waiting period.

    There is a pamphlet from the med aid that says quite clearly that the med aid will pay in a life threatening emergency until you are stabilised EVEN IF YOU ARE IN A WAITING PERIOD.


    In sept 2011 I laid a complaint with the council of med aid and am still waiting a response

    But in the mean time the largest creditor the Hospital has issued a summons, they did wait 6 months but now have issued.. I am unemployed and so is my wife and i do not have R22 000 to pay them

    I am still waiting for the council before i can sue the med aid for breach of promise / false advertising etc..

    What can I do in the mean time to delay the summons further?"

    RESPONSE:
    Good afternoon DazedandConfused,

    I would like to impress upon you that your matter is indeed heart wrenching! I’m terribly sorry that both you and your wife had to endure so much at the hands of a hospital and a medical aid. My response may be long winded, but it’s really necessary.

    My advice is not meant to substitute for the services of an attorney. I’m hoping that the council will resolve this matter in your favour!

    1. Firstly, for the sake of clarity, let’s separate the parties for now. The Hospital is the service provider and is regulated by a) The National Health Act 61 of 2003[1] and b) The Health Professionals Act 56 of 1974.[2] Disciplinary control is meted out by the Health Professionals Council of South Africa(HPCSA) alternatively a court of law for delict[3]. The Medical Aid is regulated by the Medical Schemes Act 131 of 1998.[4](The versions that I have, definitely have the latest amendments as they are downloaded from Sabinet. I’m not entirely certain about the url’s I include here. So at this stage the hospital and not the medical aid is the plaintiff and you are the defendant;
    2. The Plaintiff sued out summons, due to the monetary value , the Magistrates Court has jurisdiction. Upon receiving the summons( which I suspect is an ordinary summons), you are called upon to enter a notice of intention to defend the action. You are given a specified period of time within which to do so. Ideally you have 3 copies, one you serve on the plaintiff(their attorney), get them to stamp your copy or sign your copy, then file the second copy to the clerk of courts of the relevant Magistrates court. Also get the clerk of courts to stamp your copy.;
    3. If as I suspect, this is an ordinary summons, then, at a later stage, the Plaintiff will send you a notice to file your plea on merits. It is here where your challenge lies, as you will have to plead paragraph by paragraph to every paragraph included in the Plaintiff’s particulars of claim. A problem is that the patient remains liable for the bill and not the medical aid; The fact that you signed indemnity forms which would have placed medical costs responsibility upon you without reading it will unfortunately not be a valid defence, as at today’s date the latest case-law on the law of contract and medical law strongly suggest that the admission clerk was not obliged to point out any clause to you and that by signing it you deemed to have read it.
    I don’t know if ‘section 27,’ can assist you, it won’t harm to contact them. This is their website:
    http://www.section27.org.za/




    The following is off topic but I feel that it belongs here(This has no bearing on your case!!!)!

    4.Emergency Medical Treatment: The legal position
    We may all have conceptions of what is classified as emergency medical treatment and perhaps more importantly how long should such emergency medical treatment be administered when a patient doesn’t pay for whatever reason.
    Section 27(3) of the Constitution of 1996 provides that “No one may be refused emergency medical treatment.”[5]
    Section 5 of the National Health Care Act[6] is entitled “ Emergency Treatment” and reads as follows:
    “A health care provider, health worker or health establishment may not refuse a person emergency medical treatment.”
    So we come to the vital question again: What is emergency medical treatment?


    The Constitutional Court decided just such a question In Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).[7] In this case Mr Soobramaney was a very ill man, he was unemployed at this time and was suffering from chronic kidney failure and needed dialysis to prolong his life. The hospital refused him admittance on the basis that his was a chronic condition. The CC was of the opinion that ‘emergency medical treatment,’ does not include on-going treatment of a chronic illness.

    At para 51 Sachs J stated “The special attention given by section 27(3) to non-refusal of emergency medical treatment relates to the particular sense of shock to our notions of human solidarity occasioned by the turning away from hospital of people battered and bleeding or of those who fall victim to sudden and unexpected collapse. It provides reassurance to all members of society that accident and emergency departments will be available to deal with the unforeseeable catastrophes which could befall any person, anywhere and at any time.The values protected by section 27(3) would, accordingly, be undermined rather than reinforced by any unwarranted conflation of emergency and non-emergency treatment such as that argued for by the appellant.”

    Upon studying this case my layman’s conclusion is that emergency medical treatment is meant to resuscitate, alternatively emergency medical treatment to save a life. This is what cannot be refused by any health care provider, but once you are alive, there is no longer any emergency, this doesn’t mean that you may not require more treatment but just that the emergency phase is over! The key question arises when a patient can no longer pay for treatment, what takes place then? From what I deduce as long as the hospital can state that they resuscitated the patient or stabilised the patient, they would have met the requirement of section 27. They could then discharge the patient or transfer the patient






    [1] Vide: National Health Act: http://www.polity.org.za/article/nat...-no-61-of-2003. Accessed 28 March 2013

    [2] Vide: Health Professionals Act: http://www.hpcsa.co.za/downloads/hea...ct_56_1974.pdf. Accessed 28 March 2013

    [3] Vide: HPCSA: http://www.hpcsa.co.za/

    [4]Vide: Medical Schemes Act: http://www.doh.gov.za/docs/legislati...act98-131.html. Accessed 28 March 2013




    [5]Vide: Constitution: http://www.info.gov.za/documents/constitution/1996/a108-96.pdf. Accessed 28 March 2013



    [6] Supra n 1

    [7] Vide: Soobramoney v Minister of Health:http://www.saflii.org.za/za/cases/ZACC/1997/17.pdf. Accessed 28 March 2013
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  9. #17
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    Vanash I have been served with a Notice to deliver schedule of documents in terms of:
    Rule 23(1)
    Rule 23(3)
    and Rule 23(4)

    But I have started a new thread here so as not to take this one off topic

  10. #18
    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by workshop View Post
    Vanash I have been served with a Notice to deliver schedule of documents in terms of:
    Rule 23(1)
    Rule 23(3)
    and Rule 23(4)

    But I have started a new thread here so as not to take this one off topic
    A very good evening to you Workshop,

    This advice is not meant to substitute for the services of an attorney. It’s here for academic curiosity!
    To summarise, you being sued for defamation of character. You decided that you want to represent your self and have thus far entered an appearance as well as a plea on merits.
    Your question requires a very specific answer! One which is unambiguous and clear and concise. Discovery of documents is a procedure which allows both the plaintiff and defendant to know what the other party will be using in court. You are also entitled to request discovery of their documents.
    I’ve just learnt that legislation needn’t be placed in quotation marks as it’s not copyright. So in keeping with this, the following is what rule 23(1), 23(3) and 23(4) state
    23. Discovery of documents
    (1)
    (a) Any party to any action may require any other party thereto, by notice in writing, to make discovery on oath within 20 days of all documents and tape, electronic, digital or other forms of recordings relating to any matter in question in such action, whether such matter is one arising between the party requiring discovery
    and the party required to make discovery or not, which are or have at any time been in the possession or control of such other party.
    (b) A notice in terms of paragraph (a) shall not, save with the leave of a magistrate, be
    given before the close of pleadings.

    (3) If any party believes that there are, in addition to documents or tape, electronic, digital or other forms of recordings disclosed in terms of this rule, other documents, including copies thereof, or tape, electronic, digital or other forms of recordings which may be relevant to any party thereto, the former may give notice to the latter requiring him or her to make the same available for inspection in accordance with sub-rule (6), or to state an oath within 10 days that such documents are not in his or her possession, in which event
    he or she shall state their whereabouts, if known to him or her.

    (4) A document or tape, electronic, digital or other forms of recording not disclosed as requested in terms of this rule may not, save with the leave of the court granted on such terms as to it may seem meet, be used for any purpose at the trial by the party who was obliged but failed to disclose it, provided that any other party may use such document or tape, electronic, digital or other forms of recording.

    1) So in practice you need to download the precedent (discovery of documents affidavit) from http://www.justice.gov.za/forms/form_mcr.htm
    This is the j801 affidavit;
    2. In your case you will need to attach 3 schedules(aka annexures) to the affidavit. A schedule looks like this:
    Schedule A
    DATE NUMBER DOCUMENT COPY/ORIGINAL
    16 April 2013 Cheque Original
    Last edited by Citizen X; 16-Apr-13 at 07:21 PM.
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    Appreciated. But the Plaintiffs attorney has served notice that the Defendant requires Plaintiff to....

    I assume they have made a mistake. If so what do I do?

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    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by workshop View Post
    Appreciated. But the Plaintiffs attorney has served notice that the Defendant requires Plaintiff to....

    I assume they have made a mistake. If so what do I do?

    It's just a typographical mistake! Don't ignore it, rather file your discovery of documents in the prescribed way..
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