# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Summons: what you need to do

## Citizen X

Hi Guys,
For many a summons remains a scary document to receive, but it need not be especially if you know what to do.

1. Firstly, don't paic, you don't necessarily need an attorney at this stage. You can do the first few steps yourself and  thereby save some costs.
2. The summons will include a " Consent to judgement" option and a " notice of intention to defend option. The law allows you to defend a matter yourself. I'm not suggesting that you do, but you can do the first few steps yourself;
3. Now if you use the notice of intention to defend option on the summons itself, the plaintiff will immediately see that you unrepresented BUT if you use the template I have attached, they will immediately see that you mean business.
4. Simply fill out the attached document, make three copies, ffirst file 1 copy with the plaintiff's attorney first and get them to sign your second copy as proof of service, then , take the other copy to the clerk of courts and serve it on him. retain the third copy for your records

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Blurock (13-Jul-12), Dave A (22-Dec-11), wynn (22-Dec-11)

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## murdock

what happpens if the summons is issued in jhb for an account held in the cape...? where would the court case be held?


here is an example...what if the bank sends you a notification of an amount that your over draft is to be reduced...you agree and pay it every month for... lets say 3 years then one month due to unforseen circumstances...you pay late...but also pay and addtional amount of money to prevent it from happening again...and then pay 3 month ahead...should the bank hand you over to an attorney firm collection of the full amount plus 15.5 % interest legal cost and fees added(at a cost of over R1000 made up of ..R500 for judgement...R500 for summons...plus sheriff costs)...and should you receive a summons as a standard proceedure...and and then issued by the by the sheriff?

how do you know if the sheriff actually isses the summons...surely he should have some form of identification and an address and contact number to verify if he is legit...issued with the summons....and surely he should make you sign for the document...and most importantly give you an original document...not a piece of paper stamped "copy"  full of stamps with stamped signitures....from the clerk of the court.

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## Citizen X

Hi Murdock

Thank you for your questions.

There are 2 pieces of legislation that deal with the questions you pose: 1 The Magistrates Court Act 32 of 1944(as amended) and 2: The Magistrates’ Courts Rules of Court.
1.	Section 28 of the Magistrates Court Act 32 of 1994 answers the question: In which magistrates court would this action in which these parties are involved be instituted? This section deals with the nexus(link) that should exist between the jurisdictional area of a specific magistrates court and the person that the court’s jurisdiction is being exercised;
2.	 Section 28(1)(a) of the Act provides that a court shall have jurisdiction on any person who resides, carries on business or is employed within the district
3.	Section 28(1)(b) of the Act provides a court shall have jurisdiction on any person if the cause of action arose within it’s district(cause of action is the non payment of the account, breach of the contract etc
BUT
4.	Most financial institutions eg RCS lets you sign an a contract or tacitly agree to the terms of a contract where you consent to the jurisdiction of a specific court even though you don’t live there or even if the cause of action did not arise there. To illustrate further RCS is based in cape Town, you based in Johannesburg, you take a loan from them, you do this telephonically, they then send you terms and conditions at a later stage which will indicate that you consent to the jurisdiction of the Beville magistrates court in Cape Town; This form of consent is in terms of section 45 of the Act
5.	It is the financial institutions prerogative to sue out summons. The only requirement is that they send you a demand letter first BUT, I can tell you, even when you receive “notice of set down” date when case must be heard, you can still make arrangement to pay with the creditor and the case will be withdrawn.
6.	Identification of Sheriffs: All Sheriffs and Deputy Sheriffs must carry a valid Identification Card issued by the South African Board for Sheriffs while on duty and must be able to produce it on request. Sheriff’s are regulated by the South Africa Board of Sheriffs. The act  is the Sheriffs Act, 1986 (Act 90 of 1986), Their phone number is (021) 462 3209 and email “contact@sheriffs.org.za

I’m including the following examples to further assist you in answering your questions(UNISA:2010:Pages 141-148)
You are a candidate attorney in Pretoria. Thandi, who lives in Rustenburg, arrives at your office with a problem.
Thandi signed an agreement with Rashid to buy a piece of land from him for R80 000.
Rashid lives in Johannesburg and the piece of land is situated in Kempton Park. She then signed a contract with Thomas, a builder from Pietersburg. In terms of this contract Thomas will build a house for her on this land. She contractually undertook to pay Thomas R90 000 for the building work. Thandi paid Rashid the purchase price of R80 000 but Rashid then refused to sign the transfer documents. Thomas started to dig the foundations but then told Thandi that he had found a better job and no longer intended to build her house. She thinks that the value of the house alone, when finished, will be about R150 000, the value of the house together with the land, about R240 000 and the expense of finding another builder to complete the building work about R120 000. (UNISA:2010:Pages 141-148)
 (1) Thandi wants to institute action against Rashid for damages, for R90 000, because he failed to give transfer of the property. In which court or courts may she do so?
(2) Thandi want to institute action against Rashid for transfer of the property. In which court or courts may she do this?
(3) If Thandi signed the contract with Thomas in Pretoria, in which court or courts may she institute action against Thomas for damages in an amount of R100 000, for breach of the contract?
(4) If Thomas was a resident of Zimbabwe, not of Pietersburg, in which court could Thandi institute action against him for damages for breach of contract?
(5) What would Thandi have to do before she could institute an action against Thomas as set out in question (4)?(UNISA:2010:Pages 141-148)




(1) Thandi may institute action against Rashid in the Johannesburg magistrate's court in terms of section 28(1)(a) because Rashid resides in Johannesburg. You cannot determine whether another court might also have jurisdiction in terms of section 28(1)(d) because you do not know where the agreement was signed or breached.
(2) Thandi may institute action against Rashid in the Johannesburg magistrate's court in terms of section 28(1)(a). She may also institute action against Rashid in the Kempton Park magistrate's court in terms of section 28(1)(g) because the property is situated there and the action is in respect of the property.
Note: Unlike the position in the High Courts in terms of common law, the court where property is situated does not have exclusive jurisdiction in actions concerning the property.
(3) Thandi may institute action against Thomas in the Pietersburg magistrate's court in terms of Jurisdiction in respect of persons section 28(1)(a) because Thomas resides in Pietersburg. Thandi cannot institute action against Thomas in either of the courts (Pretoria or Kempton Park) where a part of the cause of action arose, in terms of section 28(1)(d), because the whole cause of action must arise in one court. The contract was signed in Pretoria but the breach occurred where the work was to be performed, in Kempton Park.
(4) A foreign peregrinus may be sued in the magistrates' courts in terms of section 30 bis but it is then necessary for some other link to exist between the court and either the plaintiff or the cause of action. As the cause of action did not arise wholly in one court, this cannot serve as the link to enable arrest or attachment to confirm jurisdiction to take place. The only possible link is the residence of the plaintiff, Thandi. Thandi can institute action against Thomas in Rustenburg provided that she can arrest Thomas or attach some of his property to found jurisdiction, because she is a resident of Rustenburg.
(5) Thandi will have to bring an application in terms of magistrates' courts rule 57, for leave to arrest Thomas or to attach his property in order to found jurisdiction. This application must be brought in the Rustenburg magistrate’s court. (UNISA:2010:Pages 141-148)

B
 (1) What is the first matter you must consider if you decide to institute legal proceedings against Thomas?
(2) If Thandi asks you to institute action in the magistrate's court, what is the first question you must consider?
(3) What is the second question?
(4) What is the third question?
(5) Can you answer this third question by relying on High Court principles? (UNISA:2010:Pages 141-148)

 (1) The first matter to consider is whether you should try to institute action in the High Court or in the magistrate's court. Here, issues of convenience, complexity and expense are taken into account. Remember that, even if a magistrate's court has jurisdiction to hear an action, you may still approach the High Court. However, you then run the risk of the judge's
awarding you costs on the scale of the magistrates' courts, which is lower than that of the High Courts. So, even if your action is successful, your legal costs will not be reimbursed fully.
(2) If you would like the action to be heard by a magistrate's court, the first matter to consider is whether the action is the type that may be heard by any magistrate's court. If Thandi wants the court to make an order forcing Thomas to complete the work, you cannot institute action in the magistrates' courts, as section 46 provides that magistrates' courts cannot make an order for specific performance without an alternative order for damages. 
(3) The second question is whether the claim falls within the financial limits of the magistrates' courts. Section 29 provides that the current limit is R100 000. If a claim for damages is instituted, Thandi will have to be prepared to limit her claim to R100 000. 
(4) The third question can only be considered once the other two are answered in the
affirmative. To decide which particular magistrate's court must be approached, you will have to study the provisions of section 28. 
(5) No. This third question namely the determination of which particular magistrate's court may exercise jurisdiction, cannot be answered by reference to common-law principles, as they frequently differ from the statutory equivalents. (UNISA:2010:Pages 141-148)

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Dave A (23-Dec-11)

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## murdock

thanks for taking the time to answer my question in such detail.

my concern has moved from whether or not the sheriff is legit...as the clerk of the jhb court has indicated that the summons sounds legit according to details i gave her over the phone...and who delievered it or even if anyone signed it...is not important anymore..

my only concern at this point in time is why the summons was issued...and why the bank did not contact the attorney firm to indicate that payment had be made...

or why the attorney firm issued the summons after being advised that the defendant had made the payments...

standard proceedure?

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## Citizen X

Looking at it now with the circumstances you explained. I think it was just a scare tactic. They won't really want to go to court especially if you are prepared to meet your obligation to them which you doing? You are not running away from this. You are merely asking to be treated with dignity and respect. Anyway, the court roll for civil cases is backlogged by 6 months!!!

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## Dave A

There could be a darker aspect to this, you know. 

One aspect of the National Credit Act is that any debt where the creditor has already commenced legal action is not included in the debt rearrangement and administration order. It proceeds separately.

Is it possible that Standard Bank is strategically trying to get their legal shot in before the client applies for debt counselling and they get caught up in the debt reconcilliation process?

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## MommyT

Hi All
I urgetly need some help I am been sued for defamation of character for posting an issue on social media regarding an incident that occured at my childs creche creche and the owner. She is suing me for alot of money I dont have, I have now recieved a summons, I am going to defend myself but cant afford a lawyer. I am also pregnant and this whole issue is putting alot of stress on me. I am going to do what Vanash has said but I am realy worried as to what to do next.

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## Citizen X

*Hi MommyT,*
*1. I would firstly like to impress upon you that I am not an admitted attorney and I do not represent myself to be as such, that being said, it is a verifiable fact that I am at a very advanced stage of my LLB studies;*
*2. I know, understand and appreciate your predicament;*
*3. I would suggest that you do file a notice of intention to defend with the clerk of the relevant court and the plaintiffs attorneys. In practice have 3 copies of the notice of intention to defend. The original one you file with the clerk of courts and have him/her stamp your copy, you then take the second copy to the plaintiffs attorney, serve the notice of intention to defend on them and also let them sign your copy(the same copy that the clerk of courts stamped)*
*4. The reason why it is important to do this within the ten day deadline is simply this, your failure to do so will prejudice you and give the plaintiff sufficient reasons to apply for default judgment;*
*5. I will suggest that you then approach the Legal Aid board, The UNISA law clinic or WITS law clinic. They will conduct a means teats to establish what you can or cannot afford. They will then take on your case;*
*6. I suggest that you instruct the aforementioned to also put in a counterclaim for you.*
*7. Attached is a word document of a notice of intention to defend.Modify it to suit your individual needs.*

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AndyD (26-Mar-12), Dave A (26-Mar-12)

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## Dave A

Hi MommyT.

When it comes to understanding the merits of such a case, this discussion on defamation might helps some.

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## georgeylopey

Hi Vanash and Dave
Please assist me
about 3 years ago i was involved in a very minor motor vehicle accident, which i feel was never my fault.
the 2nd party involved in this accident never contacted me regarding,and i forgot it ever happened, however to my horror i arrived home with the summons on my kitchen table, im stil a student , can not afford an attorney and sure cant afford the alleged R19,000.00 in damages im being guilty of paying.
also the "birthday" period since the accident would be sunday and the summons was delivered to my house on friday.
please advise me on steps to take as i am super stressed regarding this and really feel I am being victimised.

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## Citizen X

Hi there,
Im terribly sorry for the late reply! The slings and arrows of outrageous fortune, really!
1. Fortunately, you do have recourse to the law and there are remedies alternatively defences that you can successfully raise in court;
2. Im going to start with the end result of this process, the worst case scenario if you will! Default judgment or even judgement where you do appear but cannot raise an acceptable defence!
3. You need to avoid this at all costs!
4. The idea is that you will get a legal aid board attorney failing which a university law clinic attorney at a later stage, but you need to act now by doing 2 important things;
5. I suspect you received a combined summons? You need to file the notice of intention to defend with the plaintiff and clerk of courts within 10 days of the date of summons having been served, you then have 20 days from the date on which summons has been served to file your plea, in your case, its a plea that includes 2 sections, your special plea and then your normal plea. Extinctive prescription can be used as a special plea for third party road accident fund claims. This depends largely on what we call,  civilian method of calculating time, Interpretation Act. So it depends on when the accident took place;
6. You can also defend the action and submit a normal plea as it were, Ill state and confirm this for the record, when people are involved in an accident, they dont really know where to look for the relevant law, they most often try and google the insurance act, and it wont help you even slightly, what will help you however is the law of delict( delictual liability) and the apportionment of damages act.If you go this route, you still need a plea, and your argument will in essence be that according to the reasonable person concept of law, you were not negligent and therefore not liable and that the other party was. This needs to be specifically pleaded in a very specific way;
7. Just a small note on negligence, in both criminal law and delict, fault is an essential requirement, now fault itself has 2 components, Intention(dolus) and Culpa(negligence). In delictual liability, its culpa(negligence) that is required to find you liable and the test remains the reasonable person test. The reasonable person is merely a fictitious character that the law invents to personify the objective standard of reasonable conduct that the law sets in order to determine negligence.

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Dave A (14-Jul-12)

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## elaine25

Good-day Vanash and Dave

I am in a predicament where my employer is not paying my salary as per my contract.
I am now having to go the legal course as after several discussions, they believe they are fully intitled to pay me a pro-ratio salary.
My lawyer has already sent them a letter of demand which they have just ignored.
Can you give me some details about the summons process? How long do they get once they recieve the summons to give in the notice of intention to defend and how long would this case go on?

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## Citizen X

Okay, I won't advise the summons process. I'm being presumptious, the amount outstanding is less than R10 000?
Instruct your attorney to go 'ordinary application, motion proceeding, form 2 A,' alternatively use the small claims court..Yes, in common law, an employer is obliged to pay pro rata. The Common law was developed through our court decisions. That field of pro rate is ironically enough not even labour law where one would assume it belongs. That field is Unjustified enrichment. Your point of departure is 'spencer v gostelow 1920 ad 617

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## KCLudick

Hi, where do I get the attached file you are talking about?

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## Dave A

> Hi, where do I get the attached file you are talking about?


I'm not sure which one you're looking for, but there's an "attached files" section below the text section in the relevant post.

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## ashnee72

Hi,

My husband & I have been issued with joint summons. 

We utilized a construction company for the building of our house. The construction company has issued us with summons for the interim interest owed and extras on the house, a total amount of R40 000.00

We would like to submit a counter claim due to the fact that the house was not completed to the agreed specifications and the costs should be off setted as a result.

Please advise what should the next step be. We were issued with the summon on the 5 October 2015. 

Your urgent assistance will be greatly appreciated.

Kind Regards,
Ashnee

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## RoseNaidoo

Hi there

I received Summons last week Friday. 
My lawyer is saying that I need to pay 15K upfront as it is expensive to defend against repossession of property.
However I was not aware that my soon to be ex was in arrears, and the house has been sold, there is a signed OTP and money sitting in attorneys trust account just waiting for the buyer to get balance of bond approval. 
What are my options, already 7 days have passed and I needed to respond in 10 days from receipt.

Rose

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## sterne.law@gmail.com

First put in the notice to defend.
Having done that you reply to their claim. The non performance is a defence.
Then in the same reply, or seperate, you put in your claim.

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## oops1

Hi Guys
I urgently need some help I am been sued...
first of all got a summons today, its for "notice to respondent to show cause section 3(4) of the protection from harassment... Under the claims section of the summons or letter from the other lawyer they are suing me for R500 000, i certainly don't have that kind of money.
long story, but on a day in April 2015 i phoned someone a couple of times... didn't say a word.
Got over it and again in November freaked out and actually spoke to the person. now im being sued, they say i posted something on a social media site and called the person something bad. which i never did, and they have no proof or evidence to back up the claim.

what do i do???

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## sakkie

1. I don't think it is a summons.
2. I might be wrong but it is a Notice for you to show cause why the protection order should not be granted.
3. You should respond to the Notice in the given time frame if you feel that the Protection order should not be granted. I suggest you go see a lawyer asap.

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## oops1

thank you!!! seeing one today!!!

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## smilingdassie

Hi there

I was made aware only via a credit report that judgement in the high court had been given against me for an outstanding debt.
I did not receive a Summons.
Is this legal?







> Hi Guys,
> For many a summons remains a scary document to receive, but it need not be especially if you know what to do.
> 
> 1. Firstly, don't paic, you don't necessarily need an attorney at this stage. You can do the first few steps yourself and  thereby save some costs.
> 2. The summons will include a " Consent to judgement" option and a " notice of intention to defend option. The law allows you to defend a matter yourself. I'm not suggesting that you do, but you can do the first few steps yourself;
> 3. Now if you use the notice of intention to defend option on the summons itself, the plaintiff will immediately see that you unrepresented BUT if you use the template I have attached, they will immediately see that you mean business.
> 4. Simply fill out the attached document, make three copies, ffirst file 1 copy with the plaintiff's attorney first and get them to sign your second copy as proof of service, then , take the other copy to the clerk of courts and serve it on him. retain the third copy for your records

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## Dave A

> I was made aware only via a credit report that judgement in the high court had been given against me for an outstanding debt.
> I did not receive a Summons.
> Is this legal?


The first point to note is there is a difference between "not receiving a summons" and "failing to serve a summons".

In order to get the default judgement, the plaintiff will have proven service of summons. The question is - to where? And why?

The most common valid, legal reason for you not having received the summons is that you are no longer at your nominated (or apparent) _domicilium citandi et executandi_.

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## Anita Bester-Roos

> Hi Guys,
> For many a summons remains a scary document to receive, but it need not be especially if you know what to do.
> 
> 1. Firstly, don't paic, you don't necessarily need an attorney at this stage. You can do the first few steps yourself and  thereby save some costs.
> 2. The summons will include a " Consent to judgement" option and a " notice of intention to defend option. The law allows you to defend a matter yourself. I'm not suggesting that you do, but you can do the first few steps yourself;
> 3. Now if you use the notice of intention to defend option on the summons itself, the plaintiff will immediately see that you unrepresented BUT if you use the template I have attached, they will immediately see that you mean business.
> 4. Simply fill out the attached document, make three copies, ffirst file 1 copy with the plaintiff's attorney first and get them to sign your second copy as proof of service, then , take the other copy to the clerk of courts and serve it on him. retain the third copy for your records


Hi Vanash.  I am new to this forum do not know if I am even typing at the right place.  Should my reasons for intent to defend be attached to the Notice of Intention to defend PDF document that you shared?  Or is my counter to be discussed at a later stage?

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## Anita Bester-Roos

Hi Vanash,  I am new to this forum.  Thank you for the PDF document.  Should I send an annexure with my reasons why I am defending myself like ex: counter argument at this stage or not?

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## Citizen X

> Hi Vanash, I am new to this forum. Thank you for the PDF document. Should I send an annexure with my reasons why I am defending myself like ex: counter argument at this stage or not?


Hi Anita,

1. It depends whether you received a simple summons or a combined summons, with the simple summons, you serve and file the notice of intention to defend and then await the plaintiff's declaration. Once the declaration is served and filed on you, you then serve and file a plea
2. If it's combined summons, you have 20 days from the date on which you served and filed your notice of intention to defend to file your plea

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Dave A (19-May-16)

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## angelavermaak

> Hi Vanash and Dave
> Please assist me
> about 3 years ago i was involved in a very minor motor vehicle accident, which i feel was never my fault.
> the 2nd party involved in this accident never contacted me regarding,and i forgot it ever happened, however to my horror i arrived home with the summons on my kitchen table, im stil a student , can not afford an attorney and sure cant afford the alleged R19,000.00 in damages im being guilty of paying.
> also the "birthday" period since the accident would be sunday and the summons was delivered to my house on friday.
> please advise me on steps to take as i am super stressed regarding this and really feel I am being victimised.


Hi All,

One of our Residents received a Summons from our Security Guard, apparently given to the Guard and signed for by him, by the Sherrif's representative. Is this legal ? Please assist if you can.

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## Citizen X

> Hi All,
> 
> One of our Residents received a Summons from our Security Guard, apparently given to the Guard and signed for by him, by the Sherrif's representative. Is this legal ? Please assist if you can.


Hi Angela,

A summons can be served at your place of residence, business or the address you nominated. The security guard in his/her capacity as guard of the residence is allowed to receive the summons and then hand it to the relevant resident, which he/she clearly did do. The security gaurd is employed at the residence of the defendant. 


All process shall, subject to the provisions of this rule, be served upon the person affected thereby by delivery of a copy thereof in one or other of the following manners:

(a) To the said person personally or to his or her duly authorised agent: Provided that where such person is a minor or a person under legal disability, service shall be effected upon the guardian, tutor, curator or the like of such minor or person under disability;

(b) *at the residence or place of business of the said person*, guardian, tutor, curator *or the like to some person apparently not less than 16 years of age and apparently residing or employed there*: Provided that for the purpose of this paragraph, when a building, other than an hotel, boarding house, hostel or similar residential building, is occupied by more than one person or family, “residence” or “place of business” means that portion of the building occupied by the person upon whom service is to be effected;

(c) at the place of employment of the said person, guardian, tutor, curator or the like to some person apparently not less than 16 years of age and apparently in authority over him or her or, in the absence of such person in authority, to a person apparently not less than 16 years of age and apparently in charge at his or her place of employment;

(d) *if the person so to be served has chosen a domicilium citandi, by delivering or leaving a copy thereof at the domicilium so chosen;*

(e) in the case of a corporation or company, by delivering a copy to a responsible employee thereof at its registered office or its principal place of business within the court’s jurisdiction, or if there is no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in any manner provided by law;

(f) if the plaintiff or his or her authorised agent has given instructions in writing to the sheriff to serve by registered post, the process shall be so served: Provided that a debt counsellor who makes a referral to court in terms of section 86(7)(c) or 86(8)(b) of the National Credit Act may cause the referral to be served by registered post or by hand.

(g) in the case of a Minister, Deputy Minister or Provincial Premier, in his or her official capacity, the State or provincial administration, at the Office of the State Attorney in Pretoria, or a branch of that Office which serves the area of jurisdiction of the court from which the process has been issued;

(h) to any agent or attorney who is duly authorised in writing to accept service on behalf of the person upon whom service is to be effected in any applicable manner prescribed in this rule;

(i) where a local authority or statutory body is to be served, on the town clerk or assistant town clerk or mayor of such local authority or the secretary or similar officer or member of the board or committee of such body, or in any manner provided by law; or

(j) where the person to be served with any document initiating application proceedings is already represented by an attorney of record such document may be served upon such attorney by the party initiating the proceedings:

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Dave A (23-May-16)

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## StaceyW

Hi There, 

I'm looking for a little advice.

I've just had a summons to appear in the Magistrate's court delivered to me at my workplace. (wasn't necessary to sign for it, however the sherriff delivering was very quick to tell me if I don't appear in court that he'll be back to arrest me...)
My ex-husband hasn't paid our eldest daughter's school fees and the summons is from the school to me for collection of this debt. According to the documents received it has already been to the 'landros' court where I 'failed to appear'. I have never received any summons for that appearance, nor any telephone calls, letters, no communications whatsoever. The copy of the proof of registered letters sent, were all sent to my ex's parent's postal address for his attention.
There's a notice that they want a list of all my assets/liabilities, income and expenses.


The agreement between us is that he is responsible for the school fees in full.
When I called to ask what on earth is going on now, he says 'yeah well, I don't have a job and the last I heard from the school was to make an arrangement with them and that the costs would be put on hold until I find a job.'

Now I get this summons, when I was completely unaware of the fact that he hadn't paid anything.
My current husband and our new baby are now being affected. 
I don't own any assets, the car is in my husband's name end we are renting a cottage atm. My husband is obviously quite upset, as, if I understand correctly, being married in community of property, they are going to be looking at his assets too?

What can I do??

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## Dave A

Is it a public or private school?

If it's a public school parents can be jointly and severably held accountable for the payment of school fees (despite any divorce agreement to the contrary), but there are certain requirements - see section 41 of the South African Schools Act, 1996 (Act No. 84 of 1996).

I have a staff member who ended up in exactly the same situation as you a few years ago. Based on her experience, it seems if you're earning above the exemption threshold you can squirm, but if your ex-spouse doesn't land a job anytime soon you're going to end up paying...

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## Jacob Zuma

> Hi There, 
> 
> I'm looking for a little advice.
> 
> I've just had a summons to appear in the Magistrate's court delivered to me at my workplace. (wasn't necessary to sign for it, however the sherriff delivering was very quick to tell me if I don't appear in court that he'll be back to arrest me...)
> My ex-husband hasn't paid our eldest daughter's school fees and the summons is from the school to me for collection of this debt. According to the documents received it has already been to the 'landros' court where I 'failed to appear'. I have never received any summons for that appearance, nor any telephone calls, letters, no communications whatsoever. The copy of the proof of registered letters sent, were all sent to my ex's parent's postal address for his attention.
> There's a notice that they want a list of all my assets/liabilities, income and expenses.
> 
> 
> ...


If married ICP then your husbands assets will be affected unless there is an ANC that does not allow the joinder of assets that existed before marriage.

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StaceyW (06-Sep-16)

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## StaceyW

Hi Dave A, 

It's a public school in Mpumalanga.

Thanks!

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## StaceyW

> Is it a public or private school?
> 
> If it's a public school parents can be jointly and severably held accountable for the payment of school fees (despite any divorce agreement to the contrary), but there are certain requirements - see section 41 of the South African Schools Act, 1996 (Act No. 84 of 1996).
> 
> I have a staff member who ended up in exactly the same situation as you a few years ago. Based on her experience, it seems if you're earning above the exemption threshold you can squirm, but if your ex-spouse doesn't land a job anytime soon you're going to end up paying...


Hi Dave A, 

Thanks for that reply. And the link.

According to this law, 'parent' is thus defined as:
a)	the biological of adoptive parent or legal guardian of a learner;
b)	the person legally entitled to custody of a learner; or
c)	the person who undertakes to fulfil the obligations of a person referred to in paragraphs (a) and (b) towards the learner's education at school;

Now the ex is then classified as (b) & (c) as he has full custody and is under obligation to fulfill all financial needs of the child/ren.
If I understand what you're saying, whether he is under this obligation or not, whether we have a settlement stating that I have no obligation to pay anything towards school fees, or not, I would still be held liable because I am (a) the biological parent?

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## Dave A

> If I understand what you're saying, whether he is under this obligation or not, whether we have a settlement stating that I have no obligation to pay anything towards school fees, or not, I would still be held liable because I am (a) the biological parent?


That pretty much sums it up.

In my staff-member's case, the tactic adopted was to agree to pay a small monthly installment until the ex got an income and could start paying again.

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StaceyW (06-Sep-16)

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## StaceyW

So basically, I just go to the court, with a letter that the ex has signed stating that he will pay off the debt once he finds a job and has an income, and then agree that I will pay until that time, in small installments. (Whatever amount is affordable, which quite honestly, is really not alot as my husband and have have a 1yr old daughter together.)
Will that then be enough for them?

Someone also mentioned to me that I should then in return sue the ex for the money. Personally I don't see the point in that, as it would just accumulate more lawyers fees, and he can't pay it back anyway. 
But then again, if that is the best way, perhaps I should consider it.. I'll have to see what's best. 

I think I'm just so fed up with the toerag that I'm not thinking straight. A day or two to calm down a bit should bring some clarity.

Thank you again Dave A, you have been a great help in giving me some much needed advice, and direction.

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## Dave A

:Sorry: 

My only other comment is to try to avoid this becoming a judgement or an order of court against your name. If you can come to an arrangement with the school or lawyer directly without it becoming an order of court, that would be about as close to a win as you're probably going to get in the circumstances.

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StaceyW (06-Sep-16)

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## StaceyW

Again Thanks Dave.

I have tried to speak to the school, they won't even talk to me, I'm referred back to the lawyers firm handling he case.
Phoning the firm did not help, as the lawyer handling it is on leave until the 20th, which is basically 2 days before the summons is for... 

Not much I can do at the moment.

For now, I'm going to ask my dad to give his lawyer a call and get some more advice. 
Hopefully things will get resolved amicably. 

I'll let you know.  :Huh:

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## StaceyW

Just an update on my case for you Dave A.
I have acquired legal representation, as upon request of the documents on file from the prosecutors, we found that the ex had in fact been in to the attorney's offices and signed an acknowledgement of debt with them. However on this form they had him as 1st respondent and my name as 2nd respondent, his signature on each page as 1st, and someone else's signature where I should have signed as 2nd.
The attorney agrees and admits that I didn't sign anything, however, is still proceeding to try and claim the school fees + costs from me.
They seem to think that there's nothing wrong with having someone sign on my behalf, when I had no knowledge thereof.....  Screams fraud in our opinion.
My attorneys, are putting in an application to rescind, and will also be proceeding against the school and the prosecuting attorneys for damages and costs.

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## HR Solutions

Its a tough one this.  I remember being on the Governing body and dealing with non paying parents that were separated or divorced.  We were very often told that the other spouse was going to pay the debt and gave us a run around.  The one said the other everytime.  We then always ended up going for both parents because an agreement between divorcing parents really has got nothing to do with the school.  I am just mentioning this here.

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## StaceyW

> Its a tough one this.  I remember being on the Governing body and dealing with non paying parents that were separated or divorced.  We were very often told that the other spouse was going to pay the debt and gave us a run around.  The one said the other everytime.  We then always ended up going for both parents because an agreement between divorcing parents really has got nothing to do with the school.  I am just mentioning this here.


Quite honestly HR, if I had known about it from the start it wouldn't have been a problem. We could have made arrangements and it wouldn't have gone this far. It would have been paid last year, while the child was still in the school, and there would have been no issues.

One would think that after being divorced for 11 years the ex would suck up his pride and tell me when there's a problem relating to the kids, but he doesn't, he still just keeps on telling lies.

The main reason I'm now fighting this is the fact that they are basing their whole case on fraudulent documents. They claim that I signed an aknowledgment of debt with my ex-husband last year in October, when in fact a) it is not my signature, b) they have witness signatures, but no names to the witnesses, and c) I was in a different town on that specific date, with a 6 week old baby, *I don't drive*(can't drive, and don't have a licence), and was packing to move to Gauteng... so there is absolutely no way I could have been there at all. 
It is now up to them to prove that it was I that signed those documents, which they won't be able to do.

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## Dave A

> However on this form they had him as 1st respondent and my name as 2nd respondent, his signature on each page as 1st, and someone else's signature where I should have signed as 2nd.


 :Stick Out Tongue: 

Well that certainly aids your cause.

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## Anonymous1416

What happens in a case where someone that is in a different country wanting to serve a summons to someone in South Africa.  How does that process work if that person is lets say from the USA and I am from Cape Town how does this work.

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## StaceyW

Just a quick update on my case vs the school/lawyers for DaveA:
Currently awaiting a court date in Bethal, for the Rescission Application to be put into force. Due to the fraud commited not only by my ex, but the school's lawyers as well, the Application will be going through unopposed, with (hopefully) re-imbursement on costs. Costs all depends on the Magistrate's decision.
We're hoping this will be before the 21st, when I have to appear in court again for the Section 65. If so this will be basically a formality to have my name cleared completely and the case taken off the roll... Here's holding thumbs we get a date before the 21st!  :Smile:

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## Dave A

Thanks for the update, Stacey.

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## Snce

Hi everyone please assist. I received summons and also filed notice to defend. This was obviously followed by a summery judgement which will be in the 9th. This is for a property foreclosure- my primary residence
I will be representing myself as I have no money to pay lawyer. 
When I did the notice to defend I did not attach any affidavit to it- is it too late to do it now? If I do it should I file it both with plaintiff and court or just court?


I also have my business partner who wants to help pay the arrears and maintain monthly installments until am fine. How do I put this well for the judge to be convinced?

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## Tele

Hi Vanash. I cannot seem to download the attached files on your first thread

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## mrfabalos

Hi guys, I hope you can help me with this.
We left SA in July 2014 and moved to Argentina, now my wife had a  Nedbank credit card debt of 15K, we never heard from them (no email) now we came back in Jan 2018 and for the past 3 months she has sms, calls and emails claiming she has to pay R60K. It's not Nedbank, and now they say that she was summoned, how do I know she was summoned? I was reading about prescribed debts. I wanted to know if she should just ignore the calls and sms or what to do. Thank you in advance! Federico

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## Dave A

Notices of legal processes would likely have been sent to your wife's last given address for the serving of notices. If there was no response, the creditor could quite legitimately have taken a default judgement. This would mean the debt is still validly owed.

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