If an exception is not raised timeously, the defendant may not raise it at a later stage unless he has the leave of the court. The court is empowered to extend these time periods despite the fact that the judgment has become final. arms and ammunition of which the debtor, in terms of any law, is required to have possession as part of his equipment. It is important to note that, when a matter is urgent, it will always be appropriate to proceed by way of application, at least to obtain temporary relief—even though a dispute of fact is anticipated. 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. [125], The notice of motion must be in general accordance with Form 2(a) of the First Schedule to the Rules. Thereafter, it is the responsibility of the creditor, after consultation with the sheriff, to prepare a notice of sale, and to send two copies thereof to the sheriff, so that one copy may be affixed to the notice board or door of the court, and the other copy near the place where the sale is to take place. This notice is supported by an affidavit (or affirmation) by the judgment creditor or a certificate by his attorney in which the following averments are made: When the original judgment or order for payment of the judgment debt, referred to in section 65A(1), has been given in any court other than the court of the district in which the inquiry is held, the clerk of the court may not issue the notice calling on the debtor to appear before the court until a certified copy of the judgment has been lodged with him. that the court is not barred by the provisions of the National Credit Act from making an order. The requirement of absence of wilful default has become more problematic. 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. 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 notice calling upon the debtor to appear before the courting chambers must be in a printed form. marked by the absence of grounds on which a court, acting reasonably, could have made the order in question. 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. 4 0 obj [10] The service of a summons commencing action serves to interrupt the running of prescription. These witnesses are examined in chief, cross-examined, and re-examined. A costs-reserved order entails that the issue of which of the parties is to pay the costs of a particular procedure will be decided at a later stage, usually at the end of the matter, when the court can adjudicate the issue in the light of everything that has occurred in course of the proceedings. In the South African legal system, a summons is the first step in the court process. the interest must have been current, not hypothetical. It is important to note that rescission is not available in respect of provisional sentences or summary judgments. The summons you received contains such a notice that you need to fill out. default judgment (if sufficient cause is shown); in terms of rule 42(1) (just discussed), when there has been an error of some kind; and. The second ground on which an objection can be levelled against a summons is the application to strike out. The court permits examination or cross-examination of the judgment debtor in relation to all matters affecting his financial position and his ability to pay the judgment debt and costs, and also in relation to his failure to do so. Service must be effected without undue delay. The Civil Practice of the Magistrates’ Courts in South Africa 9th ed by Erasmus and Van Loggerenberg (Juta & Co Ltd, Cape Town 1996, 1997) vol II, 33-23 et seqq. [108], The prejudice to both parties will be considered together with all the other factors set out above. It is the request for this order which distinguishes the procedure from that under the common law, where the person concerned suffers from a physical disability only. The case usually involves two legal representatives, who appear before a presiding officer and present their respective arguments based on facts which have already been recorded by either party in an affidavit. 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. in terms of the common law in the case of. This official undertakes such administrative duties as issuing summonses, receiving pleadings, compiling court rolls and keeping records,[4] and also has the task of noting judgments in certain matters. Although a successful special plea has the effect of dismissing the action, it is not frequently set down before the trial. Application procedure is therefore reserved for matters in which the court can reach a decision on the documents before it, without resorting to the oral evidence of witnesses because the parties do not dispute the material facts of the case. The inventory must be annexed to a notice of attachment. The application must still be set down for hearing on a motion day; the papers must still be filed with the registrar of the court sufficiently early for it to come onto the following week's motion roll. the debtor has consented thereto in writing, or the court has so authorised; or. 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. Where, however, any claim is made by another person to any property seized, the sheriff will, before taking the property into custody, request the execution creditor to provide indemnity to the sheriff's satisfaction against any loss or damage incurred as a result of the seizure. Otherwise the High Court enjoys jurisdiction over all persons residing and all causes of action arising within its area of jurisdiction. 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. The procedures described below must be read with the Constitutional Court's remedy in mind. Specific types of Originating Summons can be filed depending on the selected Legislation and Nature of Case. Therefore, in almost every civil matter, the court is required, when granting judgment, to consider. If the plaintiff rejects it, he must be sure that the court will grant judgment for more than the offer, or risk an adverse costs order. Rule 15(1) instructs a plaintiff to deliver the declaration within fifteen days of the date of the receipt of the notice of intention to defend. Getting Divorced in South Africa – Dissolving a Marriage. When considering the relevant rules of the High Court, and the appropriate section and rules of the Magistrate's Court, one should not lose sight of the fact that interpleader proceedings may occur in a context other than execution. The applicant will accordingly seek an order on an interim basis, directing that, pending the determination of the application, the vehicle be preserved. The property may be removed in two circumstances: In the Magistrate's Court, there is no equivalent to HCR 45(5), which sets out the mechanism by which property attached and inventoried may be left on the premises if the execution debtor, together with some person of sufficient means acting as a surety, undertakes that such property will be produced on the day appointed for the sale. "[104], "Good cause" has never been properly defined, but it incorporates both an investigation into the existence of a prima facie defence, and whether or not the defendant was in wilful default. South African National Defence Force is subject to the jurisdiction of Military Courts. This means that they may only hear matters prescribed by the Act. [64][65] The document must be signed by the defendant or his legal representative. Different procedures apply in different courts. A counterclaim is often called a claim in reconvention. The procedure has two advantages for the plaintiff: The defendant must raise his defence by way of an affidavit, to which the plaintiff may respond with a replying affidavit. If, at the hearing, the court is satisfied that the judgment debtor has movable or immovable property which may be attached and sold in order to satisfy the judgment debt, or part of it, the court may. 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. Thereafter the execution creditor must publish the notice of sale in a newspaper circulating in the district in which the property is situated, as well as in the Government Gazette not less than five days, and not more than fifteen days, before the date of sale. After the property is transferred, and the plan of distribution of the proceeds has lain open for inspection, the necessary pay-outs are made to the creditors in accordance with the plan of distribution. Urgent eviction process 3. The property must be sold at or near the place where it was attached, or to which it has been removed. Such notice is not necessary, however. If the court is of the opinion that it is proper to hear oral evidence in terms of HCR 6(5)(g), the court may determine which persons to call as witnesses; it may also determine the issues in respect of which oral evidence must be presented. For the purpose of this article, we will look at a case where the … [10] It is therefore an enquiry into substantive law, assisting in the determination of the appropriate civil procedure to be followed. This does not include all costs; only those which were necessary and properly incurred in order to obtain justice and to protect the client's rights. [35], In certain cases, a demand is required as a prerequisite for litigation, failing which a cause of action cannot arise and any action instituted will be premature. Note, however, that there may be some exceptions,[34] and that such a defendant may only consent to jurisdiction over his person and cannot consent where the court lacks jurisdiction in any event. Earlier cases must be used with caution in the interpretation of the new rule. Ordinarily a default judgment may be granted administratively. The clerk may not issue the section 65A notice until it is shown, from the minutes of the proceedings, that the debtor was present or represented when judgment was given, or a warrant of execution was served on the debtor personally—unless the judgment creditor or his attorney demonstrates that the debtor has been notified by registered letter of the terms of the judgment or of the expiry of the period of suspension ordered under section 48(e), and a period of ten days has elapsed since the posting of the letter. It is not, then, for every case in which a factual dispute arises that motion proceedings are excluded. As a speedy process, it allows for the prompt recovery of a monetary debt from the defendant. where he is unable immediately to satisfy a judgment obtained against him in court; where no judgment has yet been obtained against the debtor, but he has insufficient cash on hand to meet his financial obligations, and in addition lacks sufficient realisable assets capable of satisfying his debts. An applicant may contend, for example, that the respondent is in wrongful possession of the applicant's motor vehicle, and has threatened to destroy it in the event of the applicant's proceeding to court for its recovery. A specific procedure is laid down for obtaining execution in this manner. The court may in any event, on good cause shown, suspend or amend or rescind the emoluments attachment order on such conditions as it may deem just. Committee of Investigation into the Finances of Local Authorities in South Africa. In a broad sense, attorney-and-client costs include all costs that the attorney is entitled to recover from the client. Other notable Christian belief systems in South Africa include the Methodist Christian with a 6.8% of the population and the Charismatic Christians with a fascinating 8.2%. (b) Name and explain the purpose of the different types of interdicts. At the preliminary stage, however, it proceeds by way of affidavits (as in an application procedure), and is converted back into an action procedure only once the defendant enters into the principal case. The defendant's bona fides, whether or not the default was wilful, and the existence of a prima facie defence are all taken into account in exercising that discretion, the most important aspect being that of the existence of a prima fade defence. Consequently, HCR 6(12) provides that the court may dispense with the forms and service provided for in the rules, and may dispose of the matter at such a time and place, and in such manner and in accordance with such procedure (which shall, as far as practicable, be in terms of the rules), as it deems fit. The test is more stringent: The applicant will only succeed if the facts as stated by the respondent, together with those facts in the applicant's affidavit which have been admitted by the respondent, justify the order sought. The defendant may therefore find that a trial gives him an advantage over the plaintiff. There are certain other limitations. The notice may be dispensed with if the value of the property does not exceed R5,000. On its face, this document must raise a presumption of indebtedness against the defendant. Article by listed Attorney: Nanika Prinsloo. Service of such an application need not be effected by the sheriff; it is usually effected by the attorney's messenger. The property will then be sold by the sheriff through public auction, or with the approval of the magistrate, by an auctioneer or other person so appointed by the sheriff. Further, creditors will no longer be able to extend credit on the basis that the debt can be exacted through fear of imprisonment. In the High Court, the form of the writ of execution differs, depending on whether it pertains to movable property or to immovable property: MCR 36(1) provides that the process for the execution of any judgment for ejectment, the delivery of property (movable or immovable), or the payment of money, shall be by warrant issued and signed by the clerk of the court and addressed to the sheriff. The same rules apply as those in the claim in convention. 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. Defending a claim: The defendant may settle the plaintiff’s claim. If the debtor admits liability, the creditor may proceed to gain an order against the debtor. 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. Witnesses may be summoned for the purpose of giving such evidence. The Act also provides in section 65 for a procedure whereby debtors may be summonsed before the court to face an inquiry into their failure to pay the debt. In terms of section 83(6) and (7) of the Attorney's Act, a practising attorney may not share his professional fees with anyone other than another practising attorney. 2 - Summons (Claim in respect of debt or liquidated demand) ... And immediately thereafter serve on the defendant a copy of this summons and return the same to the registrar or clerk of the court with whatsoever you have done thereupon. One may not sue for more than these amounts in these courts; nor may one institute a claim whose judgment value is more than these amounts. Money or bank notes, as a form of moveable property, may also be seized. Obtaining judgment in one's favour is not necessarily the final step in the litigation process. If the court is of the opinion that the probabilities of success are not in favour of either party, or are only in favour of the plaintiff, it is established practice to grant provisional sentence. The most common type of application for rescission, however, is an application for rescission of a default judgment. the defendant may take the steps set out above after he has been summonsed, or after he has received a letter of demand in terms of section 56. He may be detained at a police station pending the court appearance. At the end of the case, the legal representatives will sum up the evidence and argue which way the court should decide. Because the majority of cases involve the payment of accounts for goods provided, or for services rendered, and for which the defendant has no valid defence, the Act provides in sections 55 to 60 a procedure whereby judgment may be obtained in this kind of instance without first issuing a summons and following the full summons procedure. ", This term refers to the place at which the defendant is self-employed, not at which he is employed by another (, For an instance in which application was made (without success) to set aside a summary judgment, see, A somewhat different conclusion was reached in, Other grounds for rescission may also be brought in terms of rule 49(3), of course, such as the judgment's being void. In terms of the order, the debtor has an obligation to make regular payments to the administrator. The court may make such order as to any additional expenses of execution occasioned by the claim, and for payment of costs incurred by the application or sheriff, as may be just. Do-it-yourself (DIY) divorces. This is perhaps the most drastic course of action open to the court. to defend on a technical basis by objecting to the form and manner of the summons. Section 39 of the Supreme Court Act, and section 67 of the Magistrates' Courts Act, which are framed in identical terms, provide that the following items are exempt from attachment and execution: The limit set by the minister is R2,000. The defendant is bringing the application to rescind the default judgment, but does not wish to defend the proceedings. See In such a case, the sheriff will have the rights of an applicant; an execution creditor will have the rights of a claimant. If a debtor has not lodged an application for an administration order with the court before or at the time of the hearing of the section 65 proceedings, and it appears at the hearing that the judgment debtor has other debts also, the court considers whether all of the judgment debtor's debts should be treated collectively. If it emerges that the creditor refused the offer, the court may order the judgment creditor to pay those costs, including the loss of wages suffered by the debtor through having to appear in court in connection with the proceedings. In terms of section 65M, the debtor is entitled to dispute the correctness of the amount specified in the affidavit. This form is often referred to as the “long-form notice of motion.”. Report, part 1. Supreme Court of Appeal of South Africa 5th ed by Cilliers, Loots and Nel (Juta & Co Ltd, Cape Town 2009) and Jones and Buckle. [38], In contrast to summons proceedings, there is no distinction between the pleading stage and the trial stage in application proceedings. In the High Court, there does not appear to be any rule prescribing when, after judgment, a writ may be issued. <>/XObject<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 595.32 841.92] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> A writ or warrant of execution is issued by the registrar of the High Court or the clerk of the Magistrate's Court. Provisional sentence may be refused, or the proceedings postponed, if an improper copy is annexed to the summons. Various documents are exchanged before the matter is ready to proceed to trial. The provisional summons is subsequently converted into a High-Court combined summons or a Magistrate's-Court ordinary summons, as the case may be. These are all in the possession of the motion court when the case appears before it. where the respondent denies all the material allegations made by the various deponents on behalf of the applicant, and furnishes positive evidence by deponents or witnesses to the contrary; "confession and avoidance," where the respondent admits the allegations (or evidence) in the applicant's founding or supporting affidavit, but raises other facts which in turn are denied by the applicant; where the respondent concedes that he has no knowledge of the main facts alleged by the applicant, but denies them and orders the applicant to the proof thereof, and furnishes (or undertakes to furnish) evidence to indicate that the applicant or the applicant's deponents are prejudiced, incredible or otherwise unreliable, and that certain facts upon which the applicant or the deponents rely to prove the main facts are also unreliable; or. Having thus put his version of events on paper, the client need not appear in person. There is no requirement to send the document through the sheriff. It places an onus on the defendant at the preliminary sage to establish a defence by satisfying the court, on a balance of probabilities, that the defendant should not be made to pay the amount claimed by the plaintiff, and that the probability of success in the principal case does not favour the plaintiff. It instructs the sheriff of the court to attach and sell, by public sale, so much of the judgment debtor's property as is necessary to satisfy the judgment debt, plus the costs of the execution process. Apart from calling the deponents of the affidavits to give oral evidence, the court may also order that any other person be called as a witness. The courts will examine such an application very carefully, that the interests of affected persons may be properly safeguarded. During this conversion process, the court has discretion to award such an order as to costs as it may deem just. The rules provide that a party may file a counterclaim against the plaintiff. If a guarantee is given conditional upon the breach of contract, or default of the principal debtor, such a guarantee is accessory in nature and therefore, ranks as a suretyship. Three different forms of warrant are provided for in Annexure 1. It must indicate the date of judgment or order, as well as the amount of the judgment and the balance of the capital, interest, costs and collection fees which the defendant has undertaken to pay in terms of section 57(1)(c), and which remains due on the date of issue or reissue of the notice. A stay of execution may be granted in exceptional circumstances; a final judgment may even occasionally be rescinded. In such a case, this only amounts to final judgment if the plaintiff does not then apply for leave to amend his papers. In such case Magistrates' Courts rule 12(1)(b) and High Court rule 31(5)(a) require that the plaintiff afford the defendant a chance to do so by delivering a notice calling on the defendant to file his plea; otherwise he will be barred. Appeals are based on the grounds that the decision by the trial court was wrong in fact or law. At least twenty days prior to the sale, the execution creditor prepares the conditions of sale, which must include a condition for payment by the purchaser of any interest due to a preferent creditor from the sale of the property to the date of transfer. 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. This means that the costs of preliminary or interlocutory proceedings are included in the total costs of the court case. The consultancy industry is one of the most diverse markets within the professional services industry, and, therefore, a number of different types of consultants are found in the industry. The only question that must be answered then is whether a case can be made for granting the requested order.[39]. Incorporeal property, whether movable or immovable, may also be attached. where the respondent states that he can lead no evidence himself, or by others, to dispute the truth of the applicant's allegations, but puts the applicant to the proof thereof by oral evidence subject to cross-examination. An attachment in respect of immovables is valid for one year from the date of attachment. An attachment over movables is valid for four months, calculated from the date of attachment. Any person obstructing the sheriff in the carrying out of his duties is guilty of an offence. It is clear from the principles above that equity is an important consideration. There are two alternative choices available to the defendant should he decide to oppose the matter and deny liability: Should the defendant choose to defend the matter by filing an opposing affidavit, the plaintiff must be afforded a reasonable opportunity of replying thereto. An unqualified person may not receive remuneration from a practitioner for work done where he is not permitted by law to carry out such work. The former, in MCR 44(2), is the most relevant for present purposes. The execution creditor has ten days after the receipt of the notice in which to admit the claim, in which event the execution creditor will not be liable for any costs, fees or expenses afterwards incurred, and the sheriff may withdraw from possession of the property concerned. Your case document in which the debtor, lays claim to property seized by the plaintiff must issue warrant... Used for applications in the High Courts of South Africa – Dissolving a Marriage 129 ] the... 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