Summary
Summary Unit 2 LCVP
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1PRE-LITIGATION ISSUES DEMAND
1. WHAT IS DEMAND?
“Demand” simply is a request for payment, or a request for the performance of a legal
obligation.
Usually a demand is made before legal proceedings start, as it is an attempt to obtain
satisfaction of a claim without the expense to incur legal costs in formal litigation.
A valid demand may be made by the prospective plaintiff or later, his attorney.
One demand is sufficient and repetitive demands are not required.
The person making the demand must take reasonable steps to ensure that the demand
reaches the intended recipient.
2. FORMS OF DEMAND
Can be made orally, in writing contained in a letter, it may even be constituted in the
summons, or by the launch of an application where that is demanded.
Sending a statement of account has been considered as lawful demand although in such
cases, it must be clear that a demand for payment is made.
Certain statutes require that demand or notice be given before summons is issued. We
will do this later.
3. CONTENT OF DEMAND
Whatever the form the demand assumes, it must contain sufficient information to inform
the recipient of the full cause of action. All the elements of the alleged cause of action must
be covered.
The recipient must therefore be placed in the position what case is alleged for her to decide
whether to defend/oppose or not. A demand clause in a letter is required
payment/performance and a date by which or within which this must be made.
It must also contain the consequences that will follow when not complying with the
demand.
PLEASE PAY ATTENTION TO YOUR LEGAL practice class in which you will be required to
write a letter of demand.
4. WHEN DEMAND MUST BE MADE:
(a) where legislation requires and
(b) where demand must be made to complete a cause of action.
.1 DEMAND REQUIRED BY LEGISLATION
THE FIRST IS IN TERMS OF THE INSTITUTION OF LEGAL PROCEEDINGS AGAINST
CERTAIN ORGANS OF STATE ACT 40/2002;
THE GENERAL LAW AMENDMENT ACT 62/1955,
THE CUSTOMS AND EXCISE ACT 91/1964;
THE NATIONAL CREDIT ACT 34/2005;
THE SMALL CLAIMS ACT 61/1984;
THE ROAD ACCIDENT FUND ACT 56/1996.
, 2
THE INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGANS OF STATE
ACT 40/2002.
First this Act as mentioned consolidates different time periods that were previously
applicable/required before actions could be instituted against different organs of state.
In terms of the Act, no legal proceedings for the recovery of a debt may be instituted against
an organ of state unless notice of the intention to do so was first given to the state organ or
the organ of state has consented in writing to the institution of those proceedings.
The notice is required to set out the facts briefly which gave rise to the debt detailing the
dates and parties involved giving rise to the debt and are within the knowledge of the
creditor.
This notice must be served on the organ of state within six months from the date on which
the debt became due.
The various manners in which lawful service are allowed are set out in the Act and includes
service by electronic mail.(Section 4).
The methods of service of process are set out in section 5 of the Act determining that no
process may be served within 30 days after the date on which the notice was served.
If it is served before 30 days, the process will be regarded as having been served on the first
day after the expiry of the 30 day period.
Service before the expiry date will therefore not interrupt prescription-prescription will
start running one day after the service of the process.
INTERIM INTERDICTS AGAINST THE GOVERNMENT: THE GENERAL LAW
AMENDMENT ACT 62/1955.
Section 35 of this Act provides that no court is permitted to issue a rule nisi that operates as
an interdict against any branch of the national or provincial government, or any official as
defined in the Act, unless notice of such an intention is served with at least 72 hours’ notice
of intention before the hearing of the application.
THE CUSTOMS AND EXISE ACT 91/1964:
Section 96 of this Act determines that legal action against the department (?) within one
year of the debt becoming due or the cause of action arising and written notice of intention
to institute legal action must be given at least one month before the legal proceedings are
instituted.
THE NATIONAL CREDIT ACT 34/2005
Sections 129 and 130 of this Act sets out the requirements before legal action can
commence.
SMALL CLAIMS COURT
letter of demand must be delivered by the plaintiff first.
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