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Thread: Notice of Bar without summons

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    Notice of Bar without summons

    Hi there. double question. I had to end the services of my lawyer as I cannot afford it. I was forwarded a notice of bar from my previous landlord's lawyers (for my business owning rent). I have, however not received any summons. What am I to do? Where can I find this summons? Secondly...in my lack of knowledge, I signed surety on the lease. I am in debt review currently. I had to close my retail store a week ago as I could not pay the rent anymore and have no more income from the business, although I have a bit of assets....will the court be able to attach any of my personal assets to this whilst I am in debt rescue?
    Thank you in advance for reading my question, I look forward to any good advice..... :-)

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    Platinum Member sterne.law@gmail.com's Avatar
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    There is a chance your attorney received the summons.
    A notice of bar is issued after a notice to defend is received. A person then has a set number of days in which to lodge their reply (defence).
    If the reply is not forthcoming a notice of bar is issued (effectively saying file your papers or we continue).
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Platinum Member sterne.law@gmail.com's Avatar
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    In Tuning Fork (Pty) Ltd t/a Balanced Audio v Greeff & another the court expressed a view that absent specific clauses, a surety could be exorcised when a compromise or settlement was reached. In this regard the business rescue plan (“the plan”) is viewed as a compromise. The plan, so the argument goes, is a full and final settlement and therefore there is no debt which can be claimed form the surety.

    The court held that the Companies Act’s (“the Act”) silence required that the common law with regards to sureties be examined. The court held that the business plan extinguished the debt through compromise, and due to the failure to preserve the creditors rights, the sureties were released from liability.

    In New Port Finance and Another v Nedbank the court faced the same question; does a signed off business rescue plan terminate a surety agreement. The facts in New Port were slightly different to those in Tuning Forks. In New Port the creditor had already obtained judgment against the sureties. In so doing the liability was fixed upon the sureties and liability established. Effectively, for any prospects, the judgment needed to be rescinded; and there was no reason to do so.

    The court also stated that the deed of suretyship was drafted so that no matter how a creditor pursues the principal debtor, the nature or form of the surety is not altered. Further, the deed allowed the bank to pursue the surety irrespective of its dealings or any compromise with the principal debtor. These clauses were described as the standard clauses to be found in deeds of suretyship, with the very intention of catering for a vast array of possible situations that may arise.

    Importantly the court spoke to the issue of business rescue halting litigation proceedings. The reading of the pertinent section can be paraphrased that, in certain circumstances, a creditor will not be able to enforce a debt against a company in business rescue. However, a company may enforce a debt in terms of a business rescue plan.

    The interpretation thereof, does not offer a surety any relief. The section is in relation to the principal debtor and has no effect on the surety, unless the plan, itself, makes specific provision for the surety. This would seem to suggest that the court is of the view that even sans the standard clauses, business rescue does not affect the surety deed obligations
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Silver Member PlatinumWealth.co.za's Avatar
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    This is quite insightful
    The JSE Investment and Finance Forum - PlatinumWealth.co.za
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    Thank you for this information. I really appreciate you taking the time!. I did eventualy find that this was referring to a summons issued in October 2015. The business owes the money but is not able to pay it. Therefore should I plea guilty and then get a lawyer :-) - the notice of bar expired yesterday, and I did not manage to get anyone who can do the plea on such a short notice (who is affordable to me at this stage)

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    I was involved in a relationship with a man in another town, he assulted me, threatened me with a gun and I fled with my kids, the following day after going back to my town I opened a case of assault againt this man at the SAPS. He duck and dived the police when I tried to collect all my belongings and also denied any alligations, got rid of the gun in the safe and denied everything. He keeps stalking me on social media, my work marketing and creates fake accounts.
    Due to not been hospitalized or able to meet with a detective in the town where the assault happened, and not wanting to put my children in court as my daughter witnessed the entire thing, also because I had to secure myself a place to stay with them and change schools for my kids the case was thrown out due to lack of evidence! 6 months later I am been sued by this individual for not wanting to fix the relationship or return to a relationship, he said he would make me pay. I received the summons of the accusations, managed to respond and go to his town to defend myself at the court to get it stamped and dropped the 2 copies off at his lawyers offices (his got money), Im a single mom, I earn 14000 a month but cannot afford a lawyer, now I received a letter of BAR to respond in 5 days. During these months since the assault happened I have been to my court to issue a restraining order and my boss complained as it was to much time off work, so therefore I never got around to giving my proof before receiving the summons. I have proof of the assault, a voice recording admitting that he hurt me and in black and white emails printed on paper of everything, every threat etc - what do I do with all of this, This BAR letter too, now I have to go again to his town to plea or defend, how do I do this for myself? I am a single mom of 2, I am struggling as is and he wont leave me alone and wants to make me suffer finacially.

    His suing me for R 306 000 for "false" accusations I charged him with, I have 5 days to respond, is this working days?
    I received this letter yesterday via registered post to my company I work for.
    Please help me someone??? Help me with what I must do!

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