Summons, notice of intention to defend and plea in practice

[De Weer]

Hi Citizen X

Thank you for your effort to help out here - very helpful.

I have been summonsed by my landlord for R40k outstanding rent. However, I have paid him R30k a week ago, so only R10k is now outstanding. I need TO urgently file an INTENTION TO DEFEND if I understand correctly), but there is a twist to the situation.

Here is some background:
I signed a 1-year lease agreement with the landlord (about 15 months back) subject to a some conditions he agreed upon in writing on the rental agreement. Conditions not fulfilled yet is: the installation of a linen cupboard, move of a toilet and placing mirrors above basins in the bathrooms. Early in the first year the HOA disconnected my electricity. By closer enquiry they advised me that the landlord had no COC (certificate of compliance) that allows us to occupy the property. We were without electricity for 3 weeks. An attorney advised that I should book my family (wife, son and daughter - both high school students) into a guest house until a COC is acquired - for the landlord's account. I did not want to wreak such a heavy bill (R2800/day) onto my landlord so I bought a power generator and hooked it up with the house. The daily cost for petrol were about R200/day and it still caused us a lot of inconvenience. After three weeks the landlord acquired a temporary COC. Since the matter never came up again, I thought the issue was resolved.

Just last week my water was cut/restricted (my bill for services is paid in full). When the guy were busy to install the water restrictor I asked him why he do so and he replied that there is still no COC.

My QUESTION to you is: Since there is no COC, which surely implies that according to law the property is NOT FIT for rental - is my rental agreement valid? What should I do about this situation? Can I stop paying rent to force the landlord to obtain the required COC? Should I relocate at the landlord's expence? Please let me know what my options are. Best regards

[Citizen X]

Hi Citizen X

Thank you for your effort to help out here - very helpful.

I have been summonsed by my landlord for R40k outstanding rent. However, I have paid him R30k a week ago, so only R10k is now outstanding. I need TO urgently file an INTENTION TO DEFEND if I understand correctly), but there is a twist to the situation.

Here is some background:
I signed a 1-year lease agreement with the landlord (about 15 months back) subject to a some conditions he agreed upon in writing on the rental agreement. Conditions not fulfilled yet is: the installation of a linen cupboard, move of a toilet and placing mirrors above basins in the bathrooms. Early in the first year the HOA disconnected my electricity. By closer enquiry they advised me that the landlord had no COC (certificate of compliance) that allows us to occupy the property. We were without electricity for 3 weeks. An attorney advised that I should book my family (wife, son and daughter - both high school students) into a guest house until a COC is acquired - for the landlord's account. I did not want to wreak such a heavy bill (R2800/day) onto my landlord so I bought a power generator and hooked it up with the house. The daily cost for petrol were about R200/day and it still caused us a lot of inconvenience. After three weeks the landlord acquired a temporary COC. Since the matter never came up again, I thought the issue was resolved.

Just last week my water was cut/restricted (my bill for services is paid in full). When the guy were busy to install the water restrictor I asked him why he do so and he replied that there is still no COC.

My QUESTION to you is: Since there is no COC, which surely implies that according to law the property is NOT FIT for rental - is my rental agreement valid? What should I do about this situation? Can I stop paying rent to force the landlord to obtain the required COC? Should I relocate at the landlord's expence? Please let me know what my options are. Best regards

Good afternoon De Weer,

I have been summonsed by my landlord for R40k outstanding rent. However, I have paid him R30k a week ago, so only R10k is now outstanding

At this stage your issue in dispute which the court would have heard should already have been resolved. As a defendant can make payment or arrangements to pay at any stages of the pleadings and even right up to the ‘notice of set down,’ trial date. This is usually welcomed by all parties including the courts. It saves the courts time and resources to adjudicate over a matter and it appeases the plaintiff.

I signed a 1-year lease agreement with the landlord (about 15 months back) subject to a some conditions he agreed upon in writing on the rental agreement. Conditions not fulfilled yet is: the installation of a linen cupboard, move of a toilet and placing mirrors above basins in the bathrooms. Early in the first year the HOA disconnected my electricity. By closer enquiry they advised me that the landlord had no COC (certificate of compliance) that allows us to occupy the property. We were without electricity for 3 weeks.

These are grounds upon which you may state your defence based upon breach of contract. In this case, it’s a very specific defence ‘exceptio non admimpleti contractus,’ if you don’t [erform in terms of an agreement, I don’t have to perform

Just last week my water was cut/restricted (my bill for services is paid in full). When the guy were busy to install the water restrictor I asked him why he do so and he replied that there is still no COC.

In terms of even strict lease agreement you entitled to undisturbed occupation
.

My QUESTION to you is: Since there is no COC, which surely implies that according to law the property is NOT FIT for rental - is my rental agreement valid? What should I do about this situation? Can I stop paying rent to force the landlord to obtain the required COC? Should I relocate at the landlord's expence? Please let me know what my options are. Best regards

What should I do about this situation?

You respond to the immediate threat!
1. You file a notice of intention to defend, a plea on merits(which includes your response to the plaintiff’s particulars of claim as well as your defence to the plaintiff’s claim, a counterclaim is optional);
2. These documents need to be properly drafted and on both clerk of courts and plaintiff within a specified period of time

[workshop]

I have a civil claim pending. The plaintiff is acting for himself and making a hash of it. We have discovered documents and need to set the trial date. He arranged a date but did not set it down so the matter is left hanging. Can I apply to have the case struck down on the basis that it is unlikely to succeed and is a waste of time? Alternatively can I request that he makes provision for covering my costs should I engage an attorney to defend the case and he loses?

[sterne.law@gmail.com]

When you say that a date was arranged are you referring to the original summons containing a date on it?
If so there is no need to file a notice of setdown as the setdown was incorporated into the original summons.

If this is not the case, and your reference is that the registrar was asked for a date, but the Plaintiff has not yet set it down, then the matter is at a standstill.
You can ask for security of costs from the plaintiff, it is an application.

[workshop]

It has been a long drawn out and irritating affair. It is at a standstill. What does one do to apply? What security can one expect? What grounds does one have to request security or is it standard practice?

[Citizen X]

It has been a long drawn out and irritating affair. It is at a standstill. What does one do to apply? What security can one expect? What grounds does one have to request security or is it standard practice?

The point of departure is rule 22(1) which states:
(1) The trial of an action shall be subject to the delivery by the plaintiff, after the pleadings have been closed, of notice of trial for a day or days approved by the registrar or clerk of the court: Provided that, if the plaintiff does not within 15 days after the pleadings have been closed deliver notice of trial, the defendant may do so.

To put things into perspective, pleadings have closed and in fact discovery has already taken place. In the plaintiff’s particulars of claim/declaration, there is an order as to costs and in the defendants plea , there is also an order as to costs;

1. Might I suggest that you set down the matter

[workshop]

When do I request security to cover my costs? I am hoping this will not happen and that the case will get struck off and go away. Do I apply for set down? How does one proceed?

[the mugg]

Hi Citizen X,
May you please mail me the attachment used in this eg

[Harri]

How do I get access to the attached documents

[Dave A]

How do I get access to the attached documents

It is public content, so access permissions on the server side is not the issue.
(I have just tested to make absolutely sure).

As a starting point as to what your challenge might be - The files are in .pdf and .doc format, so you will need programs that can open files in these formats to read them.

[Starman202]

Hi there Citizen X, as you indicated searching for a Form 3 (J798) one would probably end u0p with an old version. Could you make available for download the latest Form 3 Summons combing a rent interdict ideally in word format

[suki]

Hi Citizen X,
I was looking for information on google to help with my problem and came across your thread. We landed in financial trouble in 2008 and couldn't pay our bond and it was repossessed - we got home to find 4 copies of a summons from the courts , we didn't have the money for a lawyer and figured we were in the wrong so how could we defend.....a month later we got a letter from the bank to vacate the property within 30 days - which we did - the bank then sold the house to a broker without a judgement or sale in execution for a third of the value and this broker then sold the house a month later for double what she had bought it for - our problem is, now 9 years later they are demanding the full amount that we original had a bond on the property for and calling it "shortfall in sale" - the bank said they never received the monies from the sale and that makes us liable as we made a private sale - which we did not and signed no papers for any sale as the house was repossessed and we have asked for the copy of judgement but they say the lawyer who dealt with it cannot find it and its misplaced - we have also checked online for announcements to sell our house in sale in execution which we cannot find. they cannot even produce a copy of the summons to commence legal action. Kind regards

[Citizen X]

Hi Citizen X,
I was looking for information on google to help with my problem and came across your thread. We landed in financial trouble in 2008 and couldn't pay our bond and it was repossessed - we got home to find 4 copies of a summons from the courts , we didn't have the money for a lawyer and figured we were in the wrong so how could we defend.....a month later we got a letter from the bank to vacate the property within 30 days - which we did - the bank then sold the house to a broker without a judgement or sale in execution for a third of the value and this broker then sold the house a month later for double what she had bought it for - our problem is, now 9 years later they are demanding the full amount that we original had a bond on the property for and calling it "shortfall in sale" - the bank said they never received the monies from the sale and that makes us liable as we made a private sale - which we did not and signed no papers for any sale as the house was repossessed and we have asked for the copy of judgement but they say the lawyer who dealt with it cannot find it and its misplaced - we have also checked online for announcements to sell our house in sale in execution which we cannot find. they cannot even produce a copy of the summons to commence legal action. Kind regards

Sale in execution: This is what should have happened:
1. Within 3 months of you not being able to meet your monthly bond payments, the bank should have contacted you and explored various ways in which you could meet your monthly payment;
2. Failing which, a section 129 letter should have been sent to you informing you of your rights to contact a debt counsellor and go under debt review etc;
3. Should the debtor not go under debt review and still not be in a position to pay, the bank must obtain a court order to sell the house(order to attach and sell)
4. Before the sale in execution is held, the auction must be advertised in two local newspapers and the government gazette’
5. The sale in execution is conducted by public auction by the sheriff
6. Where there is still an outstanding balance , the debtor is liable for this balance
7. It’s clear from what you say, that no permission was granted by the bank for you to conduct a private sale and no private sale was conducted;
8. It’s also clear that the bank never received any payment from this ‘broker,’
9. The bank is stating that the amount owed is a ‘shortfall in the sale,’
There does appear to be irregularities here, my advice, contact a property law specialist asap

[MarelizeS]

A notice of bar was issued, but I could not afford my lawyer (wanted a R5000 advance to plea), so I missed the date....what is the best for me to do now? I don't have a new lawyer yet, as they withdrew from my case. I am scared someone will just pitch and take my belongings - this was a summons for my business and then myself as I stupidly signed surety on the contract.

[suki]

Hi Vanesh,
Thank you for the reply.
I thought before I go to a lawyer , I would try get information from the bank and requested the sale in execution and judgement once again - their reply was there is not documents as they were destroyed and they do not have any copies but the judgment stands.