In these notes, we step into the shoes of the defendant, alternatively the defendant’s attorneys, by discussing what to do upon receipt of a summons.
If you are served with a summons, it means that another person or entity has instituted legal action against you for certain relief.
A templa...
WHAT TO DO IF YOU (OR YOUR CLIENT) HAS BEEN
SERVED WITH A SUMMONS
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Readers must consult official and alternative sources before making any decisions based
on the information provided herein. Templates and examples provided by us are merely a
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1. Introduction
In these notes, we step into the shoes of the defendant, alternatively the
defendant’s attorneys, by discussing what to do upon receipt of a summons.
If you are served with a summons, it means that another person or entity has
instituted legal action against you for certain relief.
2. Being served with a summons
Before we look at the options available to a defendant after being served with a
summons, we need to briefly touch on the actual service itself.
Take note that a summons must be served on a defendant by the sheriff of the
court, having jurisdiction (there are a few exceptions to this, such as substituted
service). Despite the name, the sheriff is not associated with the police, but is
rather an officer of the court. There are many sheriff offices within each province
of South Africa, each serving specific jurisdictions. Examples include Randburg
West and Sandton South.
It is important that we discuss the concept of service, as valid service can be
affected in a number of ways. What I mean is that service may still be valid even
though you have not personally received the summons.
In this regard, take note that a summons may be served as follows:
• Personally, on the defendant directly;
• On another person at the defendant’s residential or employment address,
in the defendant’s absence;
• By affixing to the defendant’s residence or domicilium citandi et
executandi (see my episode on contractual clauses in this regard);
• By affixing to the defendant’s principal place of business and/or registered
address in the event that the defendant is a juristic person; and
• On an employee of the defendant where the defendant is a juristic person.
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There are however a few instances where personal service is strictly required,
such as where the relief sought in the summons is a decree of divorce.
From the aforesaid, it is clear that a summons may be validly served on you (or
your client) in a number of ways. Therefore, if you find a summons affixed to your
gate, for example, do not ignore it!
I will explain why you must never ignore a summons shortly.
3. I have been served with a summons. What must I do?
First things first – you need to peruse the summons (and the attached particulars
of claim, if it’s a combined summons). Take note of who the plaintiff is as well as
the relief they are seeking against you.
When considering the summons itself, you will see a paragraph or two affording
you ten days to deliver a notice of intention to defend and a further twenty days
to deliver a plea, exception, or notice to strike out. The paragraph/s will look
similar to the following:
• “INFORM the Defendant further that if he disputes the claim and wishes
to defend the action he shall:
o within 10 (TEN) days of the service upon him of this summons file
with the registrar of this court at {address of court}, notice of his
intention to defend and serve a copy thereof on the Plaintiff's
attorney, which notice shall give an address (not being a post office
box or poste restante) referred to in rule 19(3) {if High Court} for
the service upon the Defendant of all notices and documents in the
action;
o thereafter, and within 20 (TWENTY DAYS) after serving and filing
notice of intention to defend as aforesaid, file with the registrar and
serve upon the Plaintiff a plea, exception, notice to strike out, with
or without a counterclaim.”
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