TLI4801 POTFOLIO EXAMINATION ANSWERS

Name : Mr TL Solomon
Student no : 62273302
Module name : Techniques of trial & litigation
Module code : TLI4801
Assessment type : May/June 2020 Examination
Unique number : 766311

,QUESTION 1: CIVIL PRACTICE



1.

(a) It has been emphasised in civil procedure that if for instance application
proceedings are found to be unsuitable, the summons procedure will be
endorsed and such action will be commenced by way of a summons. For
purposes of logic a summons is defined as a legal document which is
drafted by the plaintiff’s legal representative or attorney and therefore
issued by the Registrar of the court.1 The purpose of this document is to
call the defendant to appear before a judge or a court of law and answer
the claim made by the plaintiff in the document (summons).2


The summons proceedings are divided into two:
1) An illiquid summons proceeding is instituted either by way of the
combined summons or by way of the simple summons.
2) Liquid summons proceeding is instituted by way of the provisional
sentence summons.


It can thus be concluded that action proceedings (summons proceedings)
are instituted by way of one of the three types of summons above. From
the three types outlined above only one is relevant to our hypothetical
case. The hypothetical case relates to illiquid summons proceeding which
comprise of combined summons and simple summons. Simple summons
is issued in respect of a liquidated claim whereas combined summons is
used in respect of an unliquidated claim.3


The type of summons that will be used to institute Timbersons (Pty) Ltd.’s
action in this regard will be simple summons since this dispute relates to a
liquidated claim. An example of a liquidated claim is a claim for the
payment of the purchase price with regard to goods purchased and

1
Marnewick CG Litigation Skills for South African Lawyers 4th edition (2019 LexisNexis) 88
2
Marnewick Litigation Skills for South African Lawyers 88
3
Marnewick Litigation Skills for South African Lawyers

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, delivered. This means in laymen’s terms Timbersons (Pty) Ltd will
commence the claim in convention towards Mr Toms through simple
summons.


(b) Summary judgment is used to protect a plaintiff (like Timbersons in this
instance) who has a claim of a particular nature against a defendant (Mr
Toms in this regard) who has no valid defence to his or her claim and who
has simply entered an appearance to defend for the purpose of gaining
time and preventing the plaintiff from obtaining the relief he or she seeks
and deserves.4 It is unfortunate that the courts have now amended
Uniform Rule 32 to an extent that an application for a summary judgment
is now made when the defendant has filed a notice of intention to defend.5
In conclusion if Mr Toms files the notice of intention to defend then
Timbersons can institute a summary judgment.




(c) The pleading that must be drafted by Timbersons in response to Mr Toms
notice to defend the matter is a declaration. It has been highlighted that
where a summary judgment is inapplicable or proves to be unsuccessful a
declaration must be delivered.6 This document is an equivalent of
particulars of claim, and it is used in proceedings instituted by means of
simple summons like our hypothetical case. However, Timbersons is only
obliged to serve and file this declaration if Mr Toms has delivered a notice
of intention to defend provided that the Timbersons did not apply for
summary judgment.




4 Pete et al Civil procedure: a practical guide 3rd ed (2017) Oxford University Press 252-259
5
Uniform Rules of Court
6
Pete et al Civil procedure: a practical guide

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