A plaintiff who fails to provide security is not entitled to provisional relief; he must proceed to the principal case and request a grant of final judgment. Unless the court or the Act provides otherwise, the cost of the application in terms of section 74(1) becomes a first claim against the moneys controlled by the administrator. This procedure is applicable only where the dispute is of limited or narrow scope, not where it is extensive and complicated. Rule 10 of the previous court rules provided for the lapsing of a summons after twelve months if service has not taken place by then. the name, occupation and address of the respective persons suggested as curators to the patient's person and/or property, and a statement that these persons have been approached and have intimated that, if appointed, they would be willing to act in those capacities. On completion of the sale, the sheriff must attach to the return a “vendue roll,” showing details of the property sold, the prices realised, the names and addresses of the purchasers (where known), and an account of the distribution of the proceeds. The following requirements must be complied with before it may be said that execution has been levied: An attachment of property is subject to and qualified by the recent Constitutional Court decision in Jaftha v Schoeman, which holds that the attachment process in the Magistrate's Court, specifically section 66, is unconstitutional in so far as it does not provide for judicial supervision over the attachment of immovable property. The defendant will often sign on the back page of the process to acknowledge receipt thereof. A summons doesn’t have to be served in person. Sexual violence is the use of force or manipulation to get someone to engage in unwanted sexual activity without their consent. This information has not been provided to meet the individual requirements of a specific person and LegalWise insists that legal advice be obtained to address a person’s unique circumstances. to defend on a technical basis by objecting to the form and manner of the summons. With regards to the content, it must contain the following: Rule 6 of the new Magistrates' Court Rules and Rule 18 of the High Court have specific rules regarding certain categories of cases, namely. Being a document containing evidence, the substantive law of evidence applies as much to an affidavit as to viva voce evidence.[128]. JANE WILLIAMS (DEFENDANT) (Identity Number: … [37], Action proceedings are heard in so-called "trial court". The SCA would continue to exist; indeed, its workload would be enhanced, in that it would have to deal also with appeals from courts of similar status to that of a High Court, such as the Competition's Court and the Labour Court. In terms of the Seventeenth Constitutional Amendment Bill, the Magistrate's Court would be renamed the "Lower Court," and the presiding magistrates known as "Judges of the Lower Court," who would be appointed by the Judicial Service Commission. This effectively means that conclusions of fact are pleaded. Its contents will vary widely, depending on Motion court the nature of the specific application. The party suing (the applicant) is dominus litis; he chooses the procedure to be used. In this article we will discuss what a partnership is, how it works and what the implications are. In terms of the amendments proposed in the Seventeenth Constitutional Amendment Bill, the Constitutional Court would become the highest court in respect of all matters (not just those in which a constitutional point is raised), so that leave to appeal any decision of a high court would be granted directly to the Constitutional Court if this is deemed to be in the interest of justice. The matter will proceed as if it had been started as an action. As noted by Sachs J in Coetzee, the small debtor without means will no longer be faced with imprisonment, from which he can only be rescued by family or friends. Divorce process in South Africa is quite straightforward A case for law - your free advice on all things pertaining to the law. An attachment over movables is valid for four months, calculated from the date of attachment. If the defendant has not filed an appearance to defend, there is no need to send a copy of this request to the defendant. The aim of the application is to delete the offending portions of the pleading. DIY divorces are concluded without the help of an attorney and are a very affordable alternative. the “Respondent” or “Defendant”). In particular, the Constitutional Court found that any legal process or measure which removes from persons their pre-existing access to adequate housing is unconstitutional, because it limits unjustifiably the right to housing as defined in section 26(1) of the Constitution. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court. In Bernstein v Visser, the court explained that an interpleader is a form of procedure available to a person who is in custody of property to which the custodian lays no claim by right, but to which two or more other persons lay claim. The defendant may make an unconditional payment into the court with an admission of liability, in which case the matter then terminates. Finally, there are legal representatives and presiding officers.[4]. The matter proceeds to trial in the usual way, with the court ordering the provisional summons to stand as a normal summons and the defendant to file a plea within a stated time. Part A: consultations, appearances, conferences and inspections, Part D: miscellaneous (including the making of copies, telephone calls and faxes), Part E: charges in connection with the bill of costs, money claims, in which there is an offer, unconditional or without prejudice, of payment of money by the defendant (34(1)); and. Such an order refers to party-and-party costs, unless the court indicates otherwise. With respect to the form, particulars of claim must be divided into separate paragraphs and numbered consecutively with each averment appearing in a separate paragraph.[45][46]. The decision abolished the committal procedure of section 65 as being contrary to the right to freedom of the person. South African National Defence Force is subject to the jurisdiction of Military Courts. HCR 67 indicates which fees are payable to the court, while HCR 68 indicates which tariffs are applicable to the sheriff. 9 Service of process, notices and other documents (1) A party requiring service of any process, notice or other document to eastern cape division, grahamstown . The defendant may select either of the following two procedural options: The onus of proof is an important principle. Court tariffs in South Africa. There are three common grounds of jurisdiction in the High Court: High Court jurisdiction is founded on the doctrine of effectiveness, which refers to the principle that a claimant must sue out of the court which will be most effective in giving a judgment: that is, the court which is best positioned to enforce the judgment. Unlike the provision in the HCR, which requires service by registered letter addressed to the intended recipient, the MCR require service in the same manner as a summons. [4] The Regional Court was previously only a criminal court; however, since August 2010, it has also had civil jurisdiction. This principle is often expressed by the saying that “the costs follow the outcome of the case.” The result of such an order is that the losing party will have to pay a substantial portion of the costs incurred by the winning party, along with his or her own costs. Margo. The attorney and client may agree that the attorney will charge the client only if he succeeds in the case. This would seem to overlap with their inherent jurisdiction to regulate their own proceedings in the interests of justice. The applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm. A simple summons is a document which contains the basis (the particulars of the claim) for the plaintiff's action in the body of the summons. After deducting necessary expenses and a specified remuneration determined by tariff, the administrator will in turn make a regular distribution in weekly or monthly instalments, or otherwise out of such received payments to all creditors. The court may exercise the power to call for oral evidence only in exceptional circumstances, having regard to the nature and purpose of the provisional-sentence proceeding. Where the writ pertains to immovable property, HCR 46(2) provides that it must be as near as possible in accordance with Form 20 of the First Schedule. These include. In the case of breach of contract, for example, one should identify the type of breach, be it misrepresentation or mora debitoris or something else. If the exception is upheld, the plaintiff may be ordered to rectify his papers or court may dismiss the plaintiff's claim. A special plea may be raised on the following listed grounds: Where a party fails to raise the above issues, the court assumes that the party condones the other party's failures in those respects. In the Constitutional Court, the Land Claims Court and the Labour Courts, judgments are often given with no order as to costs, or with an order that each party should pay its own costs. What follows is a series of documentary exchanges, called pleadings, between the parties akin to a conversation on paper. In many cases the party against whom the judgment is granted (the “judgment debtor”) will willingly comply with the judgment by, for example, paying an amount of money or performing a specific act in accordance with the terms of the judgment. The application is lodged with the clerk and delivered personally, or by registered post, to the creditors at least three calendar days before the hearing. A review relates to procedural fairness. The cause of action is essential in identifying the elements which must be proved to be successful with the claim. The High Courts of South Africa used to be called "The Supreme Courts". Rule 70 of the Rules of Court sets the tariff schedule for South African High Courts. At the end of the case, the legal representatives will sum up the evidence and argue which way the court should decide. The court held that the following factors, listed in ascending order of urgency, must be borne in mind: The court explained that practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the rules is required. Where the exception is taken on the grounds that the summons is vague and embarrassing, the defendant is required to state that he has given the plaintiff a chance to rectify the cause of complaint. [39], Magistrates’ Courts do not provide for a general application procedure, and only recognise specific instances in which applications may be brought. This must be done at least twenty days before trial. The ex parte application may be used in the following cases: In accordance with the audi alteram partem principle, and as a general rule, justice and fairness demand that the court should not make an order against any person unless the affected person has received proper notice of the legal relief sought. There are two different forms which proceedings may take: action or trial proceedings and application or motion proceedings. The defendant who intends to proceed to trial and enter the principal case must give notice to the plaintiff within two months from the date of the provisional judgment. South Africa has different laws which specify prescription periods, for example, the Prescription Act says that contractual and delictual debts extinguish after three years from the date when it became payable (due). The most common type of application for rescission, however, is an application for rescission of a default judgment. A limitation also exists in terms of the gratuity or benefit paid under the Occupational Diseases and Mines and Works Act, and movable or immovable property purchased with such gratuity or benefit. There are two important principles for ensuring fairness to the party against whom relief is sought in terms of an ex parte application: Interlocutory applications, and other applications incidental to pending proceedings, are brought on notice (notice here does not mean "notice of motion"), usually supported by an affidavit. The party bringing the application is known as the applicant; the party opposing the application, if any, is known as the respondent. It is recommended that the request be drafted as long as possible before the trial, as failure to comply may result in various interlocutory applications, which may take time. Certain property belonging to the judgment debtor may not be attached and sold in execution. The sheriff of the court (known formerly as the messenger of court) is a creature of statute, created by the Sheriff's Act,[9] which came into force in 1990. A set of facts may disclose multiple causes of action: In the case of a motor-vehicle collision in which a breadwinner dies, a claimant may sue both for damage to the vehicle and for loss of support. Where a party does not deal directly with an allegation, it will be deemed to be admitted. If a summons is served on you by the sheriff of the court, and you believe you do not owe the money claimed in the summons, you have ten court days from the date that the sheriff served the document on you, to file and serve a notice of your intention to defend the summons. The originals are handed to the court at the application hearing. If the court authorises the issuing of an emoluments-attachment order in terms of section 65J(1), the order must be issued in the form prescribed by the rules, and must contain sufficient information, including the identity number, work number or date of birth of the judgment debtor, to enable the garnishee to identify the judgment debtor. The Supreme Court of Appeal (SCA), located in Bloemfontein, is the highest court in appeal cases with no constitutional basis. Section 30bis deals with court orders for the attachment of property or person to found jurisdiction. A formal hearing thus proceeds where the party raising the exception (the excipient) has the onus of proof. The customary order made when referring an application to trial would typically read as follows: It is a fundamental policy that the respondent ought to be afforded the opportunity of placing his version before the court, and of being heard. It is located in Johannesburg and is presided over by judges under the leadership of the Chief Justice. Although a successful special plea has the effect of dismissing the action, it is not frequently set down before the trial. As a general rule, the simple summons is used where the claim is for a debt or a liquidated demand. This involves the winning party drafting a bill of costs, which will be taxed. On the trial date, the court will simply deal with the special plea before it proceeds to the plea on the merits. For all practical purposes, the juristic person is placed in the same position with regard to section 65 proceedings as a debtor who is a natural person. The procedure is initiated by means of a summons (as in an action procedure). The declaration is a separate document in which the Plaintiff must set out his particulars of claim in the same precise manner as he would in a combined summons. The applicant shall deliver a declaration within twenty days of this order. South Africa’s leading overseas tourists in March 2014 were from the United Kingdom. Specific types of Originating Summons can be filed depending on the selected Legislation and Nature of Case. The summons is issued at the magistrates or high courts and is served to the defendant by the sheriff of the court. Section 69(2) is the general provision which provides for interpleader proceedings in all other cases where two or more persons make adverse claims to any property in the custody or possession of a third party. Because this rule has been removed, a defendant no longer has the benefit of asking questions to clarify certain aspects of the plaintiff's claim at this early stage of the case. "[40] Action proceedings are characterised by a clear distinction between the pleading stage, and the trial and evidence stage.[36][39]. The notice of motion shall stand as a simple summons. There are prescribed forms of service that are permitted by law. Every effort must be taken to ensure that all these procedures are completed well before the trial date, as a postponement of the trial could have disastrous consequences for both parties. Cases move from a Magistrate’s Court to a High Court once the value of a claim goes over R400 000. Jurisdiction is dealt with in the Magistrates' Courts Act[17] and the Supreme Court Act.[18]. A compromise offer of settlement is a valuable tactical weapon to achieve settlement of the matter. Section 69(1) makes specific provision for interpleader proceedings in the context of property attached or about to be attached in execution under the process of any court. The defendant is not a judgment debtor. costs in a previous suit between the same parties still outstanding; and. all registered holders of bonds (other than the execution creditor) registered against the property attached; the occupier of the property, if the property is in the occupation of some person other than the owner; and. A distinction must be drawn between a garnishee order and an emoluments attachment order: An emoluments-attachment order will only be granted if. The decision of Coetzee v Government declared the imprisonment provisions in section 65 of the MCA to be unconstitutional, with effect from September 22, 1995. The summons must appoint a day, not less than ten days after the service of the summons, on which the defendant is required to appear in court. In some courts, the registrar will refuse to award a trial date until the pre-trial conference has been held. It is important to note the difference between a special plea and an exception. The court, or any creditor or legal representative, may question the debtor with regard to, The content of an administration order takes a prescribed form. Rule 25 (MC) and Rule 37 (HC) deal with this question. The court's authority is limited to these specific instances; it may not call for viva voce evidence of other issues. Should a plaintiff elect to issue a simple summons (HC) or ordinary summons (MC), and the defendant decides to defend the matter by filing his notice of intention to defend, the plaintiff is then obliged to file a declaration. Once the notice of exception has been filed on the plaintiff, the exception has to be enrolled for hearing. The particulars of claim, then, sets out the facts that give rise to the claim as well as what the plaintiff wants the court to decide. TIP: South Africa follows a ‘no fault’ system, so you do not need to prove fault on the side of either party, but merely that the marriage has broken down irretrievably. Different procedures apply in different courts. Petitions were abolished by the Petition Proceedings Replacement Act. This is the third type of trade unions in South Africa. It is often useful to approach an affidavit in the same way as one would approach the oral evidence of a witness testifying to the facts. Unopposed applications are more common and often only last a few minutes each, so they make up most of the court's roll. an order to pay the debt in whole or in instalments; that the defendant may admit his liability to the plaintiff; that he may offer to pay the debt in instalments; and. The courts will examine such an application very carefully, that the interests of affected persons may be properly safeguarded. If necessary for purposes of execution of the warrant, the sheriff may open any door on any premises, or of any piece of furniture, even if such opening is refused, and even if there is nobody present representing the judgment debtor. Any person who owns immoveable property situated within the area of jurisdiction of the court, where such action is in respect of that property or a mortgage bond over that property, is subject to the jurisdiction of the court. Contested divorces can drag on for years, and can cause great emotional and … 1980. If the plaintiff merely denies everything stated by the defendant in his plea, no reply is necessary. when the party against whom costs have been awarded has not appeared at the hearing, either in person or through his legal representation; if the person liable to pay costs has consented in writing to taxation in his absence; or. Interpleader summons must be in accordance with Annexure 1, Form 35. It is the document in which the defendant answers the allegations raised by the plaintiff. This rule has now been removed and replaced with one which deals with proving a declaration and further particulars for the purposes of a trial. As a result of the Contingency Fees Act, it is now possible for attorneys to charge on a contingency basis. Opposed applications are set down separately for hearing, days in advance, and are heard after the unopposed matters have been dealt with. Any alteration in the notice to the debtor must be initialed by the judgment creditor or his attorney, and by the clerk of the court before issue or reissue. Thereafter the rules relating to actions shall apply. The form of the notice of application to strike out is very similar to the notice of exception. an averment calling on the defendant to pay the amount or to appear, personally or with representation, before the court to admit or deny liability; allowance for the defendant to file an affidavit setting out a defence; set-down of a day for the defendant's appearance in court; a clear and sufficient averment setting out the cause of action; an averment calling on the defendant to admit or deny his or the agent's signature; and. Following such an inquiry, the court may issue various orders: Prior to the decision in Coetzee, the sanction for non-compliance on the part of the debtor was imprisonment, which was described as “imprisonment for contempt of court.” Sachs J, in his judgment in Coetzee, described this as a misnomer. The new Rule 16 (MC) and Rule 21 (HC) have been introduced to assist with this. the judgment creditor has sent a registered letter to the debtor at his last known address, informing him of the judgment debt and the amount outstanding, and that an emoluments attachment order will be issued ten days from the posting of the letter. a reasonable explanation for the default; The defendant is bringing the application to rescind the default judgment and wants to defend the matter. Therefore, unlike the position in the High Court, no reserve price may be stipulated, as preferent creditors are protected by the provisions of section 66(2). Report, part 1. The procedure for applying for an administration order is based on an application, together with a prescribed statement of affairs, in which the debtor affirms on oath that the names of the creditors and the amounts owed to them, and all other statements or declarations made in the statement, are true. If the deponent is related to the patient or has any personal interest in the terms of any order sought, full details of that relationship or interest must be set forth in the affidavit. With regard to HCR 31(5), the SCA held that the Registrar may continue to grant default judgment declaring specially hypothecated immovable property executable in cases where such judgment is applied for based on a debt flowing from the mortgage bond over the property. There are various factors which may affect where a case will be heard: Very often there will be more than one court with jurisdiction. South Africa. Where a court simply makes an order of costs against one party in favour of another, this is deemed to be a party-and-party order of costs. the expiry of a period of suspension ordered in terms of section 48(e). On the other hand, section 26(4) of the Maintenance Act provides (notwithstanding anything to the contrary contained in any law) that any pension, annuity, gratuity or compassionate allowance or other similar benefit shall be liable to be attached or subjected to execution under any warrant of execution. delivery or transfer of property, moveable or immoveable, where the value of the property does not exceed the prescribed amount. They involve the calling of witnesses, who give their evidence orally before the court. ������d"��O��U���Ha���0��p�;�?�T����)���l�^���_Η�}L7b)Q}��rZ���id�+0��R*� It is important to bear in mind that, where the formalities set out in the HCR and MCR are not complied with, ultimately the sale in execution may be void. When the matter is opposed, it must be set down for a High-Court hearing by the plaintiff before noon on the court day but one preceding the day on which it is to be heard. The application for rescission of the default judgment is being made by a person other than those referred to in 1, 2 or 3 above. Where there has been judgment for the payment of a sum of money, and the judgment debtor has made a written offer to pay in instalments, and where such offer is accepted by the judgment creditor or his attorney, the judgment creditor may apply to the clerk of the court for an order that the debtor pay such amount in accordance with the offer. The latter tariff is divided into the following parts: In the Magistrate's Court, costs and fees are provided for by sections 80 and 81 of the Magistrates' Courts Act, MCR 33, 34 and 35, as well as the scale of costs and fees contained in Tables A and B of Annexure 2 of the MCRs. The object of the security is to ensure that, should the defendant succeed in the principal case, the defendant will receive repayment of the amount which was paid out in terms of the provisional judgment. Sometimes one or more supporting affidavits or relevant documentation are attached to the affidavit. It may. (RP 36/1982). Where the ownership in the movable or immovable property vests in the debtor, but a third party has a real right in respect of that property, such as a pledge (in the case of movable property) or a mortgage (in the case of immovable property), as a general rule that property may nevertheless be attached and sold in execution, subject to certain conditions. Magistrates' Courts Rule 13(5) provides that a late notice of intention to defend will still be effective provided that it is sent before default judgment has been granted. in respect of an order or judgment granted erroneously in the absence of an affected party (as often happens, for example, with default judgments); in respect of an ambiguity or patent error or omission; and. This page was last edited on 9 January 2021, at 06:09. The rule shows clearly that the appointment of such curator is aimed at a declaratory order. property situated within the court's area (. where a defendant admits liability in terms of section 57 and undertakes to pay the debt, in instalments or otherwise; and. Other types of divorces in South Africa: Default divorces. [41] There are certain matters for which a combined summons is prescribed: for example, in divorce matters. The sheriff will then send the original warrant of execution, together with the return of service, to the creditor's attorney. A provisional-sentence summons contains the following particulars: The defendant may admit liability for the amount claimed, in which case the court may grant final judgment in favour of the plaintiff. Only once the judgement debt and costs awarded have been settled—that is to say, paid by the losing party—can it be said that the matter is over. During this conversion process, the court has discretion to award such an order as to costs as it may deem just. The matter is therefore decided essentially on the respondent's version. 2 AND NEDBANK LIMITED, with registration number 1951/000009/06, a limited liability company duly registered and incorporated in accordance with the company laws (Companies Act No.61 of 1973, as amended) of the Republic of South Africa with its principal place of business 135 RIVONIA situated at ROAD SANDOWN SANDTON, JOHANNESBURG. Result in the interests of affected persons may be detained at a pre trial conference to banking the Uniform of. 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