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Summary Chapter 10
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Detailed summary of chapter 10 from the fundamental principles of civil procedure textbook
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CHAPTER 10 – SUMMONS /POC / DECLARATION
Summons
NATURE OF SUMMONS:
What:
Summons constitutes a ‘legal process’ which
initiates the action procedure/trial action against
the defendant
= A written judicial demand
Service:
It is served on the defendant by the Sheriff of the
court
It is addressed to the Sheriff and directs him to
inform the defendant of:
Nature of the plaintiff’s claim
Procedural steps to be followed in order to
dispute plaintiff’s claim
Prescribed time limits (dies induciae) to be
followed
Notes:
Must be signed by the plaintiff / plaintiff’s legal
representative
Must be issued by the Registrar of the HC
Regulated by HCR 17 and MCR 5
FUNCTION OF A SUMMONS:
Function = 2-fold:
It informs the defendant of the nature the
plaintiff’s claim / cause of action
Initiates the process whereby defendant is
brought before court
LEGAL EFFECT/ SIGNIFICANCE OF A SUMMONS:
3 Main legal effects:
, Determines the jurisdiction of the court
Interrupts the running of prescription
Lis pendens
Determines the jurisdiction of the court:
Plaintiff must abide by the choice of forum
Change of jurisdiction may only be made:
By permission of the court
By a withdrawal of the original summons
Interrupts the running of prescription:
S15(1) Prescription Act provides that the running
of prescription shall be interrupted by service on
the debtor of any legal process
Must be a successful service of the summons
Lis pendens:
Prevents the issuing of a second summons
against same defendant for same cause of action
in the same/different court
TYPES OF SUMMONS:
Main types:
Simple Summons (HC and MC)
Combined Summons (HC and MC)
Provisional Sentence Summons (HC and MC)
Automatic Rent Interdict Summons (Only MC)
Choice on the type of summons depends on the
nature of the plaintiff’s claim
Common features of the Summons’:
Citation of the parties
Warning to the defendant
Details of the claim
Options available to defendant when he receives the
delivery of the summons:
Defend – deliver a notice of intention to defend
May pay plaintiff’s claim
May consent to judgment
May choose not to defend – default judgment
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