Summons, notice of intention to defend and plea in practice

[workshop]

I should be OK. If there is one thing I do, it is to argue. Not sure about well planned. But I can defend and I am hoping that the blind lady hasn't taken a backhander. But who knows.

[Seperated]

Hi,

I'm busy with a divorce. My wife has opened a case against me, but she refuses to have the Sheriff serve the summons against me.
I was told I cannot open a new case as one already exists.

What are my options?
Can she simply hold up the process as long as she pleases by opening a case and not serving the summons to get the process started?

[Citizen X]

Hi there,
Please excuse my lack of understanding where I demonstrate the same as I sincerely fail to understand a few aspects here! I’d really like to assist you!( My advice is not meant to substitute for the services of an attorney!!)

I'm busy with a divorce.

In practice one of the parties normally initiate divorce proceedings on the basis of irreconcilable differences (either the wife or husband). This person will consult a family attorney and give instructions to initiate divorce proceedings(If both want a divorce, even better and far easier for everyone concerned!). This process will commence with a combined summons which will be served on the husband for instance. The husband will then have to respond in kind, ideally by consulting a family attorney who will then prepare the relevant pleading in response to the combined summons received.(Custody issues, property issues etc.)

My wife has opened a case against me

This I don’t understand! It’s possible that your wife didn’t consult an attorney and went straight to the regional magistrates court herself to get things started but this is unlikely! If she wants a divorce, she would want the summons to be served!

Can she simply hold up the process as long as she pleases by opening a case and not serving the summons to get the process started?

This depends on what you want! Do you want a divorce or not?
Remember, if you also want the divorce, then that’s fine, the real battle then becomes assets and custody and this is where your attorney comes in!!

[Seperated]

Sorry for the lack of detail.

I want a divorce and tried to discuss a separation agreement before going to an attorney. My wife wants to stall the divorce.

She did consult a lawyer and via him opened a case against me. A summons was drafted and case number allocated, but the summons was never served on me and she has no intention of serving it. She simply wants to prevent me from filing for divorce against her.

My question - is there nothing I can do to proceed with the divorce? I approached an attorney who indicated I cannot open a new divorce case since one has already been opened and a case number allocated.

I just can't believe you can be stalled in this way with no legal remedy?

[sterne.law@gmail.com]

You can approach the court for a mandamus. This is a form of interdict where the prayer is an instruction to do something rather than stop or forbid something.
You could speak to the court registrar to issue a directive to proceed with action within a time period, failing which the matter is archived or withdrawn. Im not sure if the registrar will do this in a divorce proceeding though.
The more creative way would be to file for divorce in a different court. So if she filed in mag court, you file in High court, or vice versa.

[De Weer]

Hi Vanash

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 Vanash

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]

Vanash 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?