Summary
Summary Unit 9 LVCP
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Page |1Additional Procedures.
A. SETTLEMENT
B. PROVISIONAL SENTENCE
C. INTERIM RELIEF PENDING JUDGMENT
D. ARREST TANQUAM SUSPECCTUS DE FUGA
E. MULTIPLE PARTIES AND ACTIONS
F. INTERDICTS
G. DRASTIC PROCEDURES
H. DECLARATIONS OF RIGHTS AND STATED CASES
I. SMALL CLAIMS COURT PROCEEDINGS
J. OTHER CIVIL COURTS
A. SETTLEMENT:
General Overview
A civil dispute may be settled any time before judgment and indeed many cases are settled
before trials or hearings.
The process of reaching an agreement requires many skills such as negotiation and
mediation skills with some knowledge of behavioral psychology and an understanding of
human nature.
Often it is settled after a demand was made.
Settlement procedures or rather the result of settlement processes are based (originate)
from common and customary law, particularly prevalent in the the law of contract.
A settlement is reached usually after an offer by the offeror to the offeree.
Rules 34 and 18 (HC and MC) supplement settlements in legislation.
The following are extracts from the HC Uniform Rules and some comments on the rules as
appears on the Butterworths Electronic resource which you can access through the UFS
Library. The reason why I include it, it to familiarize you with working with the rules as you
will often be required to do in legal practice.
UNIFORM RULE 34
OFFER TO SETTLE
Rule 34(1)
In any action in which a sum of money is claimed, either alone or with any other relief, the
defendant may at any time unconditionally or without prejudice make a written ofer to
settle the plaintiffs claim. Such ofer shall be signed either by the defendant himself or by
his attorney if the latter has been authorised thereto in writing.
, Page |2
B34.1IntroductionThe object of this rule is to limit costs and to create a possible safeguard
against costs.1 It is based upon the English practice of paying money into court in an attempt to
settle a case. Initially, this rule clarifed and consolidated the then existing practice. 2 It was
substantially amended during 1987 and the practice of physical payment into court was abolished
and replaced by a system of ofer or tender. Ofers relate to claims for payment and tenders to
claims for performance. After acceptance and upon a failure to perform in terms of the ofer or
tender, the plaintif is entitled to apply for judgment in terms of the settlement.
An ofer or tender to settle need not be made in terms of the rule3 but does not provide any
protection against costs unless it is contained in the plea, remains open to acceptance until
judgment, and is unconditional. 4 A defendant is bound to perform in terms of such a tender even if
it is found that the defendant is not at all liable to the plaintif or that he is liable for a lesser
amount.5
Although this rule does not in its terms apply to costs on appeals, courts of appeal tend to follow
its provisions.6
B34.4 Rule 34(2)
Where the plaintif claims the performance of some act by the defendant, the defendant
may at any time tender, either unconditionally or without prejudice, to perform such act.
Unless such act must be performed by the defendant personally, he shall execute an
irrevocable power of attorney authorising the performance of such act which he shall
deliver to the registrar together with the tender.
B34.3 Offer to settle An unconditional ofer to settle is designed for the case where the
defendant admits his liability in respect of the claim, in whole or in part. If he admits in part, the
plaintif may accept the ofer and proceed with his claim for the balance of the claim at his peril. 1
An unconditional ofer does not stay or terminate the proceedings and there is no obligation upon a
plaintif to accept it. This means that the plaintif may reject the ofer and increase his claim by
amendment.2
An ofer without prejudice is an ofer of settlement coupled with a denial of liability. If the
plaintif accepts the ofer, the claim is extinguished and he has no further recourse against the
defendant.3
Rule 34(3)
Any party to an action who may be ordered to contribute towards an amount for which any
other party to the action may be held liable, or any third party from whom relief is being
claimed in terms of rule 13, may, either unconditionally or without prejudice, by way of an
ofer of settlement
(a)
make a written ofer to that other party to contribute either a specifc sum or in a
specifc proportion towards the amount to which the plaintif may be held entitled in
the action; or
(b)
give a written indemnity to such other party, the conditions of which shall be set out
fully in the ofer of settlement.
B34.12 Rule 34(6)
A plaintif or party referred to in sub-rule (3) may within 15 days after the receipt of the
notice referred to in sub-rule (5), or thereafter with the written consent of the defendant or
third party or order of court, on such conditions as may be considered to be fair, accept
any ofer or tender, whereupon the registrar, having satisfed himself that the
requirements of this sub-rule have been complied with, shall hand over the power of
attorney referred to in sub-rule (2) to the plaintif or his attorney.
In the event of a failure to pay or to perform within 10 days after delivery of the notice of
acceptance of the ofer or tender, the party entitled to payment or performance may, on
fve daysf written notice to the party who has failed to pay or perform apply through the
registrar to a judge for judgment in accordance with the ofer or tender as well as for the
, Page |3
costs of the application.
Payment or performance in terms of compromise Once the ofer or tender has been
accepted, the plaintiffs claim is compromised. 1 That means that the litigation is terminated, even
as far as the liability for costs is concerned. 2 The oferor or tenderer is then obliged to pay or
perform within ten days after the delivery of the notice of acceptance. Should he fail to pay or
perform, the oferee may apply for judgment in terms of the compromise. Judgment is applied for
through the registrar to a judge in chambers on fve daysf written notice to the defaulting party. In
the absence of a reservation of the right to proceed on the original cause of action, the
compromise is a bar to such action. 3
1
Rule 34(10)
No ofer or tender made without prejudice shall be disclosed to the court at any time
before judgment has been given. No reference to such ofer or tender shall appear on any
fle in the ofce of the registrar containing the papers in the said case.
Non-disclosure before judgmentThe prohibition against disclosure is limited to tenders or ofers
made without prejudice under the rule. There is no prohibition against the disclosure of an
unconditional ofer or tender. In practice the registrar keeps a separate fle for the offer or
tender and accompanying power of attorney.
The sub-rule, though imperative both in form and in the sense that a court cannot grant
dispensation in advance from its requirements, is directory in the sense that if knowledge of the
ofer cannot reasonably cause any miscarriage of justice, the court may allow the case to continue
before it; not every breach of the rule results in a new trial. 1 The fact of a tender or ofer may be
brought to the notice of the court after judgment has been given as being relevant to the question
of costs.
Rule 34(11)
The fact that an ofer or tender referred to in this rule has been made may be brought to
the notice of the court after judgment has been given as being relevant to the question of
costs.
Rule 34(12)
If the court has given judgment on the question of costs in ignorance of the ofer or tender
and it is brought to the notice of the registrar, in writing, within fve days after the date of
judgment, the question of costs shall be considered afresh in the light of the ofer or
tender: Provided that nothing in this sub-rule contained shall afect the courtfs discretion
as to an award of costs.
The most important common law principle in settlements is therefore the distinction
between unconditional offers to settle and offers of compromise or plainly
conditional offers or tenders..
OFFERS AT COMMON LAW: UNCONDITIONAL OFFER VS OFFER OF COMPROMISE
(conditional offers)
Different consequences flow from the unconditional offer to settle and the conditional offer.
Which type of offer you make on behalf of your client must be made very clear to the
opposition.
Likewise when an offer has been made to you on behalf of your client you should be clear on
the nature of the offer.
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