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    Diamond Member Citizen X's Avatar
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    Summons, notice of intention to defend and plea in practice

    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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    Last edited by Citizen X; 13-Feb-12 at 04:14 PM. Reason: very poor spelling!!!!!
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    AmithS (26-Feb-13), Dave A (13-Feb-12), Sourcemart (04-Mar-13)

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    Default Judgement
    1. Default judgement occurs where you don’t submit a “notice of intention ‘ to defend and/or where you submit a notice of intention to defend and respond to all other documents but don’t appear on the date set down;
    2. The magistrates courts rules has so been amended that as at today’s date even the clerk of courts himself/herself can enter a default judgement against you;
    3. So, if you have a defence, submit a notice of intention to defend (see attached prescribed format)to the clerk of courts and the plaintiff’s attorney and either simultaneously or within 20 days of submitting the notice of intention to defend submit your “plea” in the prescribed format(see attached)
    DISCLAIMER: PLEASE DON’T TAKE MY ADVISE, IT WILL PROBABLY HARM YOU!!!!

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    This is an awesome article. I'm in the middle of a divorce, and fighting for access to my two daughters at the same time. I have managed to get an interim order giving me access to the girls. However, in the process of the case being finalized by making a draft parenting plan into an order of the court, malicious allegations were made, and I made a motion that they should be investigated; a motion that the court upheld, however, postponed the case for 90 days. In the mean-time my wife served me with summons for divorce. I have been doing my research and I must say it is said to note that this is just about one of the few articles that explains the procedures on defending civil matters. Even though, you have not used divorce as your case study, you have managed to explain the processes in an eloquent manner that can be adapted in divorce case. In my opinion, there is a market in the law fraternity to defend cases, since all lawyers are concerned with helping people to divorce as opposed to mending the ills of the society. I am more determined to study law than ever before, and hope that you "Vanash Naick" are already studying as your ideas are profound and unique in presentation. Good work!

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    Hi, in desperate need of some advice!
    Today a sheriff of the court arrived with a default judgement taken against my husband, to attach property to the value of R19000. The case concerned was from an accident in 2008 in which my husband was not involved. He arrived on the scene of a work-related accident (a TLB driven by a company operator drove into the back of a car), and provided his details for correspondence. The lawyers who contacted him were then given the details of the owner of the company and the particulars for insurance, etc. In 2009 my husband received a summons to appear in court relating to this case, as he was personally being sued for the amount owing. He refused to accept the summons and asserted again that it was not HIS accident and he was not liable. He then contacted the lawyers concerned, gave them particulars once again, and thought that was that. Now he has the default judgement against him. WHAT CAN WE DO?? Surely as it was neither himself operating the TLB, nor was the TLB his or in any way his responsibility, this is an error?? We can't afford hefty lawyer fees but at the same time we most certainly aren't going to pay R19000 for something that did not concern us?! Any advise will be greatly appreciated!!

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    Diamond Member Citizen X's Avatar
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    Quote Originally Posted by Fii View Post
    Hi, in desperate need of some advice!
    Today a sheriff of the court arrived with a default judgement taken against my husband, to attach property to the value of R19000. The case concerned was from an accident in 2008 in which my husband was not involved. He arrived on the scene of a work-related accident (a TLB driven by a company operator drove into the back of a car), and provided his details for correspondence. The lawyers who contacted him were then given the details of the owner of the company and the particulars for insurance, etc. In 2009 my husband received a summons to appear in court relating to this case, as he was personally being sued for the amount owing. He refused to accept the summons and asserted again that it was not HIS accident and he was not liable. He then contacted the lawyers concerned, gave them particulars once again, and thought that was that. Now he has the default judgement against him. WHAT CAN WE DO?? Surely as it was neither himself operating the TLB, nor was the TLB his or in any way his responsibility, this is an error?? We can't afford hefty lawyer fees but at the same time we most certainly aren't going to pay R19000 for something that did not concern us?! Any advise will be greatly appreciated!!
    Good evening Fii ,

    I can understand your reasonable anxiety and worry about this matter! That said, one must never lose sight of the fact that a summons is a court process! The court must be respected by the defendant entering an appearance and a plea on merits. If I explain it like this, someone has accused your husband formally in a civil court for liability for an accident. The fact that he was not responsible does not negate the fact that he failed to enter an appearance within the time frame and a plea on merits. So judgment was rightfully and lawfully granted!
    What to do next
    I’m afraid you’ll have to instruct an attorney on this one, but I’ll advise you on what to specifically instruct.
    1. In instruct an attorney to institute proceedings to have the warrant set aside in terms of section 62;
    2. In instruct an attorney to have the judgment rescinded on the basis of rule 49(7) or (8) whichever one your attorney believes to be more applicable


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    Hi Vanash,
    Thank you for the information. I have a quick question. Completing the Summons document is real easy, but where do I get the "Case" number from? I see in your example 6003/5013. If I need to complete a draft summons for the magistrate's court, how will this look draft look like? I also then need to know, do I just take the draft personally to the magistrates court, and ask for the clerk of the court to take and stamp it?
    I am the director for a debt collections company, and up to now, we did not have the need to complete summons documents. But people are more resistant than ever to pay their outstanding debt this year.

    Kind Regards

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    Diamond Member Citizen X's Avatar
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    Hi Sourcemart,

    1. Any individual can sue out summons in his personal capacity for a matter that involves him or her directly!
    2. As a debt collector if you not a practicing attorney i.e. registered with the law society then you precluded from suing out summons on behalf of your clients, only an attorney may do so. So you’ll have to instruct an attorney to do so;
    3. Let me explain as follows: If Mr A owes you money in your personal capacity, an agreement between you and Mr A, then yes, you may sue out summons in your personal capacity, however based upon what you say, you collecting debts on behalf of clients for payment, you therefor precluded from drafting any court document to be used in court as this is in contravention to the Attorneys Act 53 of 1979(as amended)
    3. The stamping gets done by the clerk of courts, payment of the court fees goes along with this;
    4. So attorney will have summons templates in their portfolio of documents on their pc, they would then simply complete and take it to the clerk of courts for relevant stamping etc

    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..
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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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    I don't mean to offend, but shouldn't debt collectors be 100% familiar with this process?
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