Hi everyone, these are the last of the civil procedure notes, from after test 3 to the end of the year. They include everything discussed in lectures, with the textbook added everywhere where applicable, as well as all additional self-study and case law material. Lecturer: Mr SJH van der Merwe, Ste...
6.1 Answering notices
Keep context in mind: at this point, defendant is not happy with summons and is taking
steps against it
In an application, the party asks the court for a remedy; prepares proper application etc.
A notice, on the other hand, is very short and formal
o Party states that in terms of the court rules, he is allowed to do something and is
giving opposing party and court notice that he is taking these steps
These will be used by defendant; some available to plaintiff as well
Notices are not served by sheriff; only initial documents are served
They are delivered in terms of HCR 1 and MCR 2(1)
Practical differences between different kinds of notices (use this to study the different
types):
o Purpose of the notice
o When this notice should be delivered
o Requirements for this notice
o Reaction I expect from opposing party?
o What am I going to do if they don't react in the way that they should?
o Is this notice also available to plaintiff?
i. Notice of intention to defend Theo 213-216
o HCR 19 MCR 13
o Purpose: tell opposing party and court that you will defend the action; cannot take
default judgement against D if notice is filed
D does not disclose his defence in this notice; NOT a pleading
o When: dies induciae = 10 court days after service of summons to deliver notice of
intention to defend
If defendant fails to act, P will apply for default judgement on 11th day
What if the dies has lapsed and D has failed to act? R 19(5)/13(5)
- May still file notice of intention to defend as long as default
judgement has not been entered against D
- If defendant delivers notice of intention to defend after plaintiff has
applied for default judgement but before it has been granted, P will
not be allowed to proceed but will be entitled to the costs of the
unsuccessful default judgement application
o Requirements: must be in writing; proper heading; court; parties; case number
Must inform P of fact that D will defend action
Defendant’s address
Indicate address within 15km of court where defendant will receive service
of documents
Must indicate how he prefers service of all subsequent documents – e.g. fax
or e-mail
o Reaction expected from plaintiff: nothing as of yet
o Available to plaintiff as well? NO, even if he becomes defendant for purposes of
counter-claim later on
o Defective notice received from defendant:
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