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TLI4801 - ASSIGNMENT 1 2021 / 83%
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- University Of South Africa (Unisa)
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SUBJECT: TLI4801TRIAL AND LITIGATION
SEMESTER 1 – ASSIGNMENT 1
DATE: 25 MAY 2021
83%
1
, (a) In terms of section 11 of the Divorce Act1 read with the pertinent rules of the court2 provides that
insofar as it is relevant to divorce proceedings shall commence by way of a summons. Any claim
where the status, patrimonial issues, and children of the parties is concerned, such as the dissolution
of marriage, would qualify as an unliquidated or illiquid claim. According to Marnewick3, a combined
summons is primarily used where the plaintiff’s claim is unliquidated, that is where it is not a claim
for a debt or liquidated demand4. A matter for which a combined summons is used often involves a
serious factual dispute. As is the case with the dissolution of marriages through a divorce the nature
and extent of the dissolution have profound consequences. Therefore, such a matter is set down by
the court for the hearing of oral evidence.
The summons is notice from the plaintiff to inform the defendant that an action has been instituted
against him or her. The summons is served by the sheriff of the court together with the particulars of
claim which contain the facta probanda5 relied upon by him or her in support of the claim. The
summons is drafted by an attorney and, signed by the plaintiff or his or her attorney. In an action,
which is commenced by way of a combined summons, the summons must comply with the
requirements set out in Uniform Rule 17(2) and drafted under Form 10 of the First Schedule. A
defendant who wishes to dispute the claim or defend the action must serve a notice of intention to
defend within the dies induciae, generally ten court days after the summons is served.
In this regard, it is apparent from the substance in the preceding paragraph, Mrs. Cecile Stevens is
required to institute an action for divorce by means of a combined summons.
(b) As pointed out previously, a summons whereby the plaintiff’s claim is unliquidated or illiquid must
be attached to a separate annexure with the heading Particulars of Claim. In other words, the
summons and particulars of claim form an inseparable unit, i.e., a combined summons. In terms of
Uniform Rule 18(4) and Magistrates’ Courts rule 6(4) every pleading shall contain a clear and concise
statement of the facta probanda upon which the plaintiff relied upon by him or her in support of the
cause of action. In accordance with the form and content prescribed in Form 10, the particulars of
claim must contain facts sufficient to show or disclose a cause of action. In compliance with the rules,
these material facts must be set out in a sufficiently detailed and logical manner; ‘with sufficient
particularity to enable to the opposite party to reply thereto’. The particulars of claims are complete
by an advocate and thereby signed by an advocate and attorney in the High Court6.
In the event of a divorce, the particulars of claim must include the foregoing set of facts that are
specific to the divorce, such as:
1. In terms of the Divorce Act, the grounds upon which the court may exercise jurisdiction in the
case of a divorce;
2. If a marriage has reached such a state of disintegration or there is a reasonable prospect of
the restoration of marriage; in other words, a marriage subsists between the parties;
3. The matrimonial property regime between the spouses according to the Matrimonial Property
Act7;
4. Any children born as a result of the marriage, in respect of the issue of children a list of
comprehensible factors; i.e., inter alia full name, age, gender is of particular importance;
5. The domicile or ordinary residence of either spouse, regulated by the Domicile Act8 and
Divorce Act respectively; and
6. Any information the plaintiff may deem relevant in the context of divorce.
1 70 of 1979
2 Uniform Rule 1
3 Marnewick CG “Litigation Skills for South African Lawyers” 4th ed (2019 Lexis Nexis) – page 95 – 96
4 In other words, a claim is not a fixed, certain or ascertained amount or thing.
5 Uniform Rule 6
6 Uniform Rule 17(3) and Magistrate Courts rule 18(1) respectively.
7 88 of 1984
8 3 of 1992
2
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