Summary
Summary Unit 4 LCVP
- Course
- LCVP4814 (LCVP4814)
- Institution
- University Of The Freestate (UFS)
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Page |1PART 2 - ACTIONS
Action process consists of
(a) pleadings stage,
(b)pre-trial phase,
(c) trial stage,
(d)judgment phase and
(e) after judgment phases.
THE PLEADINGS STAGE.
In this stage the issues between the parties are defined and are set out in the
court documents called pleadings.
With the pleadings there may be other court documents also that are exchanged
between the parties such as notices. (Notice to bar, notice to compel, notice of
application for summary judgment)
The following are pleadings:
1. particulars of claim,
2. plea,
3. counter claim,
4. plea to the counter claim,
5. replications,
6. rejoinder,
7. surrejoinder,
8. rebutter
9. surrebutter.
AMENDMENTS TO MAGISTRATES’ court rules:
o these amendments were made with the view of having lower and high court rules
standardized.
o Examples of the now harmonised practice includes the abolition of further
particulars for the purpose of pleading, a common set of summonses, the
introduction of irregular proceedings, and the adoption of high court discovery
practices in the MC. (Previously after entering a notice to defend, it was followed by
a request for further particulars “in order to plead”)
IN MAIN THE CENTRAL PLEADINGS ARE,
(a) Particulars of claim: the plaintiff’s side of the claim.
(b) The plea: the defendant’s answer to plaintiff’s claim.
, Page |2
STEPS INVOLVED IN PLEADINGS
(1) Plaintiff issues and serves summons and particulars of claim (details of the action
and what he claims.)
(2) The defendant serves and files a notice of intention to defend
(3) The defendant serves and files his plea in which he gives details of his defence to
plaintiff’s claim.
(4) Sometimes the plaintiff now serves and delivers a replication or a reply in
which he responds to new facts raised in the defendant’s plea. The replication may
then be followed by other pleadings like rejoinder, surrejoinder, rebutter and
surrebutter in which parties respond in turn to the previous pleading of the other
party. This happens only in very complicated cases.
(5) The defendant may of course also institute a counter claim against plaintiff after
which the plaintiff would have to file a plea and the defendant would have the right
to reply to plaintiff’s plea.
Once the points at issue between the parties are clear, the pleadings close-litis
contestatio.
POSSIBLE EXTRA STEPS
Sometimes necessary for example further particulars in a VERY limited sense,
particulars e.g on certain documents/recordings.
When the simple summons is used-mostly in claims that are liquid-(determined)
the particulars of claim are formulated in a short manner-see annexures at the
back of the TB-.
If in such a case the defendant serves and files a notice of intention to defend,
the plaintiff must deliver a DECLARATION which is full, detailed particulars of
claim.
THE BASIC PLEADINGS:
1. SUMMONS, (IS A PRESCRIBED FORM) CONSISTING OF:
Actions are commenced by way of summons.
A summons is a written judicial demand, issued by the registry of the court from
which the summons is issued.
A summons is directed at the sheriff or his lawful deputy, rather than at the
defendant.
“The summons orders the sheriff to command the defendant to enter an
appearance to defend by a fixed day, in order to answer the claim made by the
plaintiff”.
All summonses contain three main parts:
i. Citation of parties
ii. Warning to defendant
iii. Dies induciae
iv. Address of service
, Page |3
2. PARTICULARS OF CLAIM
TOGETHER WITH summons are the PARTICULARS OF CLAIM:
the plaintiff’s cause of action is set out in the particulars of claim. There are 5
aspects-paragraphs which it should contain.
(1) CITATION OF THE PARTIES to show that there is locus standi: 1. “The
plaintiff is xxxxxx 2. The defendant is xxxxxx
(2) LOCUS STANDI-to show that the plaintiff has an interest: “The plaintiff is
xxxxNO in his capacity as xxx
(3) JURISDICTION OF THE COURT-Facts to support that the court has
jurisdiction. “The court has jurisdiction in that the whole cause of action
arose in its jurisdiction” “The court has jurisdiction in that the property, the
subject of the dispute is situated in the court’s jurisdiction”
(4) SETTING OUT THE CAUSE OF ACTION: this refers to the merits of the
matter. The plaintiff should set out the material facts on which he bases his
case; that is the facta probanda.
(5) PRAYER(S): the prayer comprises a list located at the end of the particulars,
which indicates the relief which the plaintiff is seeking from the court. The
plaintiff may only request the relief for which a case has been made or
pleaded in the particulars of claim. “Wherefore plaintiff claimsxxxxxx”
DIFFERENT FORMS OF SUMMONS:
o Combined,
o Simple,
o Provisional sentence
o Rent interdict (In the MC’s.)
COMBINED SUMMONS:
Can be used for any claim but is mandatory when the case is for an unliquidated
claim. It consists of:
The summons-form plus
Particulars of claim
SIMPLE SUMMONS:
in this summons there is no particulars of claim document included and the cause of
action is set out in the summons-form.
Used where the claim is for a DEBT or LIQUIDATED DEMAND.
That is, where the claim is fixed, certain or ascertained amount or thing.
Such a claim, that is fixed do not relate to only money claims but includes to do
things such as making the table such as in TB example. This qualifies as a claim
for debt or liquidated demand-it is CUT and Dry.
, Page |4
Take note that claims for damages are never cut and dried and are therefore
not debts or liquidated demands because it is open for dispute.
{MCR 6, and HCR 18, deal with these “short” causes of action. See again, the
examples in the annexures of the TB.}
It is mandatory to use a simple summons for a debt or liquidated demand in the HC
but not in the MC.Please see the TB for the differences between a simple and
combined summons.
PROVISIONAL SENTENCE SUMMONS:
it is used in cases where the plaintiff’s case is based on a liquid document.
A provisional sentence summons is used for those special cases where the plaintiff’s
claim is founded on a liquid document such as a cheque, a mortgage bond or an
acknowledgment of debt.
CITATIONS OF LITIGANTS: HCR 17(4)(a)(b) and MCR 5(4)(a):
(a) PLAINHTIFF: The rules require that a plaintiff be cited by inclusion of: Full
name, Gender-if natural person-, occupation, residential address OR place of
business AND IF plaintiff is suing in a representative capacity, that capacity must
be stated.
(b)CITATION of the defendant must include: surname and first names or initials
by which defendant is known to plaintiff, residential address or place of business
address; occupation and employment address if known, if sued as representative
sets out that capacity.
GENERAL DRAFTING
(1)See example of HEADING IN TEXTBOOK which each pleading must contain.
Page 188: IN THE HIGH COURT OF SOUTH AFRICA FREE STATE HIGH COURT
PROVINCIAL DIVISION.
(2)Pleadings MUST BE DIVIDED in paragraphs, including sub-paragraphs and each
paragraph shall as far as possible deal with a single MATERIAL FACT PER
PARAGRAPH.
(3)The full facts: “ PLEADING SHALL CONTAIN A CLEAR AND CONSISE STATEMENT
OF THE MATERIAL FACTS UPON WHICH THE PLEADER RELIES FOR HIS CLAIM,
DEFENCE OR ANSWER TO ANY PLEADING, AS THE CASE MAY BE, WITH
SUFFICIENT PARTICULARITY TO ENABLE THE OPPOSITE PARTY TO REPLY
THERETO”.
(4)THE ONLY MATERIAL FACTS YOU MAY RAISE AT A TRIAL AND ON WHICH YOU
MAY RELY ARE THOSE WHICH HAVE BEEN RAISED IN THE PLEADINGS.
(5)This is required amongst others, because it is no longer possible to request
further particulars for PURPOSES OF PLEADING.
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