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CIVIL PROCEDURE: CIV3701
HIGH COURT PROCEDURE
QUESTION 1
(a) Explain whether a declaration is a pleading or a process. (2)
A pleading: a declaration contains the material facts which is relied upon by the plaintiff in support of
the claim. (Study unit 19.2)
(b) X issues a combined summons against Y for damages arising out of breach of contract. Y responds
with a notice of intention to defend. With these facts in mind, answer the following questions.
(i) May X bring an application for summary judgment in these circumstances? Explain fully. (3)
No, on two grounds. First, an application for summary judgment can only be brought if the claim falls
within the provisions of Rule 32 of the Uniform Rules of Court. Each of these types of claims falls within
the definition of a debt or liquidated demand. In casu the nature of the claim (a claim for damages is
unliquidated) does not fall within the definition of a debt or liquidated demand, and therefore falls
outside the ambit of Rule 32(1).
Secondly, where a claim does fall within the ambit of Rule 32, summary judgment may only be applied
for after delivery of a plea on the merits, and not after delivery of a notice of intention to defend as in
the present instance. (Study unit 23.4)
(ii) Discuss the procedure that X may follow if Y fails to file a plea on the merits. (3)
If Y fails to file a plea on the merits, X must first serve and file a notice of bar on Y in terms of which Y
is directed to serve and file his plea within the stated further dies induciae. Should Y persist in his
failure to do so, he will be in default and ipso facto barred from delivering his plea. (Study unit 23.3)
(iii) Discuss the procedure that X may follow if Y fails to file a plea on the merits, despite the procedure
discussed in (ii) above. (2)
The plaintiff may set the matter down and apply for default judgment. As the claim is unliquidated,
judgment will only be given after presentation of evidence to prove the quantum. (The court also has
the discretion to make any other order.) (See Rule 31(2) and study unit 23.3)
(c) M issues a combined summons against N for damages arising out of breach of contract. N responds
with a notice of intention to defend. Thereafter, within the dies induciae N files a plea on the merits
along with a counterclaim. With these facts in mind, answer the following questions.
(i) Name the pleading that must be filed by M if N in his plea on the merits responds to one of the
allegations contained in M’s particulars of claim by means of confession and avoidance. (1)
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