Summons, notice of intention to defend and plea in practice

[Citizen X]

A very good afternoon to you Sourcesmart,

I’ll answer your question in p2..

1. In my opinion the law in unequal in so far as companies and businesses are normally in a much better financial position to litigate than is the case with the defendant. This is especially true when it comes to debt, you may well find a situation whereas the debtor was actually a very good payer but then due to illness, retrenchment or such other reasons they unable to pay. It’s not a case that they don’t want to pay but rather that they unable to pay. They eventually get another job, but years of unemployment has set them back in life. It’s still difficult for them to repay. There in my opinion the law is still unequal. I’ve not conducted any research on the following postulation, but I pretty certain that University Law Schools and the Legal Aid Board etc. take on the cause of the defendant with the ethos that these people really can’t afford professional legal representation. Now with a business this is not so, as even though a business may be small, they still generate revenue. Can you see why I say that the law is unequal in the relationship between a debtor and creditor?

2. Okay, the fact that you buy the debtor's book changes things substantially! What you essentially saying is that you have purchased the rights, tile and deed of the debts. The debt belongs to you. You are therefore the Plaintiff. So as the Plaintiff you not going to prepare a court document for anyone else to use in court, but in essence you going to prepare your own documents, sign your own documents and then use your very own documents in court. This does indeed change everything! The tell-tale sign, if you excuse the pun, is actually where you sign the process documents as you will inevitably sign as the Plaintiff or the Plaintiff’s attorney. Both physical address and postal address is now required, another tell-tale sign. So you would actually be signing as the Plaintiff as you not acting for someone else and you not preparing a document in contravention of the Attorneys Act but rather you preparing the document for your- self which the law does cater for!;

3. At the following link you’ll find all the forms you require in PDF form, they are interactive fill in. Once you completed the form, you take it to the clerk of courts of the relevant magistrates court, as your first port of call, they’ll then stamp and direct you as to next steps. You actually tell the clerk of courts that you are the Plaintiff and that you are acting for yourself. The costs stated are party to party costs, the 1 thing the defendant knows for sure is that all those amounts mentioned mean that should he/she lose , he/she is liable for such costs

http://www.justice.gov.za/forms/form_mcr.htm

[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

[Starman202]

Hi there Vanash, 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