Summons: what you need to do

[Citizen X]

Hi Guys,
For many a summons remains a scary document to receive, but it need not be especially if you know what to do.

1. Firstly, don't paic, you don't necessarily need an attorney at this stage. You can do the first few steps yourself and thereby save some costs.
2. The summons will include a " Consent to judgement" option and a " notice of intention to defend option. The law allows you to defend a matter yourself. I'm not suggesting that you do, but you can do the first few steps yourself;
3. Now if you use the notice of intention to defend option on the summons itself, the plaintiff will immediately see that you unrepresented BUT if you use the template I have attached, they will immediately see that you mean business.
4. Simply fill out the attached document, make three copies, ffirst file 1 copy with the plaintiff's attorney first and get them to sign your second copy as proof of service, then , take the other copy to the clerk of courts and serve it on him. retain the third copy for your records

[murdock]

what happpens if the summons is issued in jhb for an account held in the cape...? where would the court case be held?


here is an example...what if the bank sends you a notification of an amount that your over draft is to be reduced...you agree and pay it every month for... lets say 3 years then one month due to unforseen circumstances...you pay late...but also pay and addtional amount of money to prevent it from happening again...and then pay 3 month ahead...should the bank hand you over to an attorney firm collection of the full amount plus 15.5 % interest legal cost and fees added(at a cost of over R1000 made up of ..R500 for judgement...R500 for summons...plus sheriff costs)...and should you receive a summons as a standard proceedure...and and then issued by the by the sheriff?

how do you know if the sheriff actually isses the summons...surely he should have some form of identification and an address and contact number to verify if he is legit...issued with the summons....and surely he should make you sign for the document...and most importantly give you an original document...not a piece of paper stamped "copy" full of stamps with stamped signitures....from the clerk of the court.

[Citizen X]

Hi Murdock

Thank you for your questions.

There are 2 pieces of legislation that deal with the questions you pose: 1 The Magistrates Court Act 32 of 1944(as amended) and 2: The Magistrates’ Courts Rules of Court.
1. Section 28 of the Magistrates Court Act 32 of 1994 answers the question: In which magistrates court would this action in which these parties are involved be instituted? This section deals with the nexus(link) that should exist between the jurisdictional area of a specific magistrates court and the person that the court’s jurisdiction is being exercised;
2. Section 28(1)(a) of the Act provides that a court shall have jurisdiction on any person who resides, carries on business or is employed within the district
3. Section 28(1)(b) of the Act provides a court shall have jurisdiction on any person if the cause of action arose within it’s district(cause of action is the non payment of the account, breach of the contract etc
BUT
4. Most financial institutions eg RCS lets you sign an a contract or tacitly agree to the terms of a contract where you consent to the jurisdiction of a specific court even though you don’t live there or even if the cause of action did not arise there. To illustrate further RCS is based in cape Town, you based in Johannesburg, you take a loan from them, you do this telephonically, they then send you terms and conditions at a later stage which will indicate that you consent to the jurisdiction of the Beville magistrates court in Cape Town; This form of consent is in terms of section 45 of the Act
5. It is the financial institutions prerogative to sue out summons. The only requirement is that they send you a demand letter first BUT, I can tell you, even when you receive “notice of set down” date when case must be heard, you can still make arrangement to pay with the creditor and the case will be withdrawn.
6. Identification of Sheriffs: All Sheriffs and Deputy Sheriffs must carry a valid Identification Card issued by the South African Board for Sheriffs while on duty and must be able to produce it on request. Sheriff’s are regulated by the South Africa Board of Sheriffs. The act is the Sheriffs Act, 1986 (Act 90 of 1986), Their phone number is (021) 462 3209 and email “contact@sheriffs.org.za

I’m including the following examples to further assist you in answering your questions(UNISA:2010:Pages 141-148)
You are a candidate attorney in Pretoria. Thandi, who lives in Rustenburg, arrives at your office with a problem.
Thandi signed an agreement with Rashid to buy a piece of land from him for R80 000.
Rashid lives in Johannesburg and the piece of land is situated in Kempton Park. She then signed a contract with Thomas, a builder from Pietersburg. In terms of this contract Thomas will build a house for her on this land. She contractually undertook to pay Thomas R90 000 for the building work. Thandi paid Rashid the purchase price of R80 000 but Rashid then refused to sign the transfer documents. Thomas started to dig the foundations but then told Thandi that he had found a better job and no longer intended to build her house. She thinks that the value of the house alone, when finished, will be about R150 000, the value of the house together with the land, about R240 000 and the expense of finding another builder to complete the building work about R120 000. (UNISA:2010:Pages 141-148)
(1) Thandi wants to institute action against Rashid for damages, for R90 000, because he failed to give transfer of the property. In which court or courts may she do so?
(2) Thandi want to institute action against Rashid for transfer of the property. In which court or courts may she do this?
(3) If Thandi signed the contract with Thomas in Pretoria, in which court or courts may she institute action against Thomas for damages in an amount of R100 000, for breach of the contract?
(4) If Thomas was a resident of Zimbabwe, not of Pietersburg, in which court could Thandi institute action against him for damages for breach of contract?
(5) What would Thandi have to do before she could institute an action against Thomas as set out in question (4)?(UNISA:2010:Pages 141-148)




(1) Thandi may institute action against Rashid in the Johannesburg magistrate's court in terms of section 28(1)(a) because Rashid resides in Johannesburg. You cannot determine whether another court might also have jurisdiction in terms of section 28(1)(d) because you do not know where the agreement was signed or breached.
(2) Thandi may institute action against Rashid in the Johannesburg magistrate's court in terms of section 28(1)(a). She may also institute action against Rashid in the Kempton Park magistrate's court in terms of section 28(1)(g) because the property is situated there and the action is in respect of the property.
Note: Unlike the position in the High Courts in terms of common law, the court where property is situated does not have exclusive jurisdiction in actions concerning the property.
(3) Thandi may institute action against Thomas in the Pietersburg magistrate's court in terms of Jurisdiction in respect of persons section 28(1)(a) because Thomas resides in Pietersburg. Thandi cannot institute action against Thomas in either of the courts (Pretoria or Kempton Park) where a part of the cause of action arose, in terms of section 28(1)(d), because the whole cause of action must arise in one court. The contract was signed in Pretoria but the breach occurred where the work was to be performed, in Kempton Park.
(4) A foreign peregrinus may be sued in the magistrates' courts in terms of section 30 bis but it is then necessary for some other link to exist between the court and either the plaintiff or the cause of action. As the cause of action did not arise wholly in one court, this cannot serve as the link to enable arrest or attachment to confirm jurisdiction to take place. The only possible link is the residence of the plaintiff, Thandi. Thandi can institute action against Thomas in Rustenburg provided that she can arrest Thomas or attach some of his property to found jurisdiction, because she is a resident of Rustenburg.
(5) Thandi will have to bring an application in terms of magistrates' courts rule 57, for leave to arrest Thomas or to attach his property in order to found jurisdiction. This application must be brought in the Rustenburg magistrate’s court. (UNISA:2010:Pages 141-148)

B
(1) What is the first matter you must consider if you decide to institute legal proceedings against Thomas?
(2) If Thandi asks you to institute action in the magistrate's court, what is the first question you must consider?
(3) What is the second question?
(4) What is the third question?
(5) Can you answer this third question by relying on High Court principles? (UNISA:2010:Pages 141-148)

(1) The first matter to consider is whether you should try to institute action in the High Court or in the magistrate's court. Here, issues of convenience, complexity and expense are taken into account. Remember that, even if a magistrate's court has jurisdiction to hear an action, you may still approach the High Court. However, you then run the risk of the judge's
awarding you costs on the scale of the magistrates' courts, which is lower than that of the High Courts. So, even if your action is successful, your legal costs will not be reimbursed fully.
(2) If you would like the action to be heard by a magistrate's court, the first matter to consider is whether the action is the type that may be heard by any magistrate's court. If Thandi wants the court to make an order forcing Thomas to complete the work, you cannot institute action in the magistrates' courts, as section 46 provides that magistrates' courts cannot make an order for specific performance without an alternative order for damages.
(3) The second question is whether the claim falls within the financial limits of the magistrates' courts. Section 29 provides that the current limit is R100 000. If a claim for damages is instituted, Thandi will have to be prepared to limit her claim to R100 000.
(4) The third question can only be considered once the other two are answered in the
affirmative. To decide which particular magistrate's court must be approached, you will have to study the provisions of section 28.
(5) No. This third question namely the determination of which particular magistrate's court may exercise jurisdiction, cannot be answered by reference to common-law principles, as they frequently differ from the statutory equivalents. (UNISA:2010:Pages 141-148)

[murdock]

thanks for taking the time to answer my question in such detail.

my concern has moved from whether or not the sheriff is legit...as the clerk of the jhb court has indicated that the summons sounds legit according to details i gave her over the phone...and who delievered it or even if anyone signed it...is not important anymore..

my only concern at this point in time is why the summons was issued...and why the bank did not contact the attorney firm to indicate that payment had be made...

or why the attorney firm issued the summons after being advised that the defendant had made the payments...

standard proceedure?

[Citizen X]

Looking at it now with the circumstances you explained. I think it was just a scare tactic. They won't really want to go to court especially if you are prepared to meet your obligation to them which you doing? You are not running away from this. You are merely asking to be treated with dignity and respect. Anyway, the court roll for civil cases is backlogged by 6 months!!!

[Dave A]

There could be a darker aspect to this, you know.

One aspect of the National Credit Act is that any debt where the creditor has already commenced legal action is not included in the debt rearrangement and administration order. It proceeds separately.

Is it possible that Standard Bank is strategically trying to get their legal shot in before the client applies for debt counselling and they get caught up in the debt reconcilliation process?

[MommyT]

Hi All
I urgetly need some help I am been sued for defamation of character for posting an issue on social media regarding an incident that occured at my childs creche creche and the owner. She is suing me for alot of money I dont have, I have now recieved a summons, I am going to defend myself but cant afford a lawyer. I am also pregnant and this whole issue is putting alot of stress on me. I am going to do what Vanash has said but I am realy worried as to what to do next.

[Citizen X]

Hi MommyT,
1. I would firstly like to impress upon you that I am not an admitted attorney and I do not represent myself to be as such, that being said, it is a verifiable fact that I am at a very advanced stage of my LLB studies;
2. I know, understand and appreciate your predicament;
3. I would suggest that you do file a notice of intention to defend with the clerk of the relevant court and the plaintiff’s attorneys. In practice have 3 copies of the notice of intention to defend. The original one you file with the clerk of courts and have him/her stamp your copy, you then take the second copy to the plaintiff’s attorney, serve the notice of intention to defend on them and also let them sign your copy(the same copy that the clerk of courts stamped)
4. The reason why it is important to do this within the ten day deadline is simply this, your failure to do so will prejudice you and give the plaintiff sufficient reasons to apply for default judgment;
5. I will suggest that you then approach the Legal Aid board, The UNISA law clinic or WITS law clinic. They will conduct a means teats to establish what you can or cannot afford. They will then take on your case;
6. I suggest that you instruct the aforementioned to also put in a counterclaim for you.
7. Attached is a word document of a notice of intention to defend.Modify it to suit your individual needs.

[Dave A]

Hi MommyT.

When it comes to understanding the merits of such a case, this discussion on defamation might helps some.

[georgeylopey]

Hi Vanash and Dave
Please assist me
about 3 years ago i was involved in a very minor motor vehicle accident, which i feel was never my fault.
the 2nd party involved in this accident never contacted me regarding,and i forgot it ever happened, however to my horror i arrived home with the summons on my kitchen table, im stil a student , can not afford an attorney and sure cant afford the alleged R19,000.00 in damages im being guilty of paying.
also the "birthday" period since the accident would be sunday and the summons was delivered to my house on friday.
please advise me on steps to take as i am super stressed regarding this and really feel I am being victimised.

[Citizen X]

Hi there,
I’m terribly sorry for the late reply! The ‘slings and arrows of outrageous fortune,’ really!
1. Fortunately, you do have recourse to the law and there are remedies alternatively defences that you can successfully raise in court;
2. I’m going to start with the end result of this process, the worst case scenario if you will! Default judgment or even judgement where you do appear but cannot raise an acceptable defence!
3. You need to avoid this at all costs!
4. The idea is that you will get a legal aid board attorney failing which a university law clinic attorney at a later stage, but you need to act now by doing 2 important things;
5. I suspect you received a combined summons? You need to file the notice of intention to defend with the plaintiff and clerk of courts within 10 days of the date of summons having been served, you then have 20 days from the date on which summons has been served to file your plea, in your case, it’s a plea that includes 2 sections, your special plea and then your normal plea. Extinctive prescription can be used as a special plea for third party road accident fund claims. This depends largely on what we call, ‘ civilian method of calculating time,’ Interpretation Act. So it depends on when the accident took place;
6. You can also defend the action and submit a normal plea as it were, I’ll state and confirm this for the record, when people are involved in an accident, they don’t really know where to look for the relevant law, they most often try and google the insurance act, and it won’t help you even slightly, what will help you however is the law of delict( delictual liability) and the apportionment of damages act.If you go this route, you still need a plea, and your argument will in essence be that according to the reasonable person concept of law, you were not negligent and therefore not liable and that the other party was. This needs to be specifically pleaded in a very specific way;
7. Just a small note on negligence, in both criminal law and delict, fault is an essential requirement, now fault itself has 2 components, Intention(dolus) and Culpa(negligence). In delictual liability, it’s culpa(negligence) that is required to find you liable and the test remains the reasonable person test. The reasonable person is merely a fictitious character that the law invents to personify the objective standard of reasonable conduct that the law sets in order to determine negligence.

[elaine25]

Good-day Vanash and Dave

I am in a predicament where my employer is not paying my salary as per my contract.
I am now having to go the legal course as after several discussions, they believe they are fully intitled to pay me a pro-ratio salary.
My lawyer has already sent them a letter of demand which they have just ignored.
Can you give me some details about the summons process? How long do they get once they recieve the summons to give in the notice of intention to defend and how long would this case go on?

[Citizen X]

Okay, I won't advise the summons process. I'm being presumptious, the amount outstanding is less than R10 000?
Instruct your attorney to go 'ordinary application, motion proceeding, form 2 A,' alternatively use the small claims court..Yes, in common law, an employer is obliged to pay pro rata. The Common law was developed through our court decisions. That field of pro rate is ironically enough not even labour law where one would assume it belongs. That field is Unjustified enrichment. Your point of departure is 'spencer v gostelow 1920 ad 617

[KCLudick]

Hi, where do I get the attached file you are talking about?

[Dave A]

Hi, where do I get the attached file you are talking about?

I'm not sure which one you're looking for, but there's an "attached files" section below the text section in the relevant post.