# Regulatory Compliance Category > General Regulatory Compliance Forum >  Summons, notice of intention to defend and plea in practice

## Citizen X

Hi guys,
*The purpose of this post is to give you practical insight into a summons, a notice of intention to defend and a plea. This applies to civil matter and not criminal matters.* *To this end I have attached a summons, a notice of intention to defend and a plea for illustration purposes(Please note the magistrates courts rules have been severely amended, as such should you google anything to do with summons and in particular plea, you most likely will get formats based on old court rules, there’s nothing worse than quoting old court rules in your documents, the other party will be able to tell immediately that you don’t know what you doing)..combined summons is commonly used for divorce. A practical reason that attorneys use a combined summons is that it will have the consent to judgement/notice of intention to defend froms as well as a request for a plea, which if you use an ordinary summons, you will have to file additional documents later to request the plea. I use it here so as not to complicate matters)(SEE ATTACHED FOR SUPPORTING DOCUMENTS)*
1. I’m going to use a fictitious example of a breach of contract, what the plaintiff does in practice and what the defendant does in practice; I’m going to use a combined summons as an example for illustration purposes;
2. There are two parties to this matter Mr A and Mr B. Mr A is a reputable corporate company and advertises the job post of a truck driver. Mr B applies, is interviewed and gets the Job. Mr B starts working for Mr A on 12 January 2011. Mr B signs a contract with Mr A. Mr A soon realizes that the job is not that of a truck driver but that of a forklift driver and decides to leave work after one week of working with no notice whatsoever to his employer Mr A;
3. A cause of action arises(something must take place to motivate someone to take you to court). Mr A procures the services of xyz attorneys and instructs them to sue Mr B for breach of contract;
4. The first thing that xyz attorney is likely to do is to send a ‘final demand’ letter to Mr B stating that should he not pay Mr A certain amount of money, then Mr a intends to sue out summons in the Johannesburg magistrates Court against Mr B;(the letter of demand and the subsequent summons is sued out in terms of section 57 of the magistrates court act 32 of 1944 (as amended)
5. In addressing this letter xyz attorneys can either should the physical address that Mr A provided them with or do a “consumer trace alert” with one or more credit bureaus such as XDS, Transunion ITC and Experian. The trace alert will provide xyz attorneys with the latest contact information of Mr B which they obtained from either a creditor who last done a check on Mr B when he applied for finance and thereby furnished the credit bureau with all his latest cell, landline, residential address, employer and employer details or from a potential employer who done a check on Mr B and supplied the same information to the credit bureaus;
6. The reason that xyz needs this information is because they want the summons served at Mr B residential address(domicile);
7. A summons is known in law as a “precedent”(NOT JUDICIAL PRECEDENT/CASE LAW/STARE DECISIS), A ‘precedent in this context’ simply means a predetermined or legally allowed format or template that the court will accept, that is , they will not accept it in any other format accept the laid down “precedent, the summons precedent and the notice of intention precedent are just two!
8. XYZ attorneys will have all these precedents/forms saved on their pcs alternatively they can be downloaded from the Department of Justice website under the “forms” section;
9. One must bear in mind at this point that our South African system of the law of civil procedure is based and practiced on the premise of exchange of various documenst which have different names, i.e. summons, notice of intention to defend, plea, notice of exception etc. This is to comply with the “audi alteram partem” rule which is a latin maxim that means “ there are two sides to a story.”
10. So in practice Mr Shark an associate of XYZ attorneys goes to his pc and prints out the precedent of the summons and particulars of claim(after he has filled out these forms on his pc); Mr Shark will be particularly meticulous in drafting the correct headings. Here he must first establish which magistrates court has jurisdiction(I’m only using the example of a magistrates court which has monetary jurisdiction of R100 000 as opposed to regional magistrates court(R300 000) as opposed to high court(unlimited monetary amount). They intend to sue for R50 000 and the defendant Mr B lives in Eldorado Park south of Johannesburg. Mr Shark decides to sue out summons from the Johanessburg magistrates court in terms of section 28(1)(a) of the Magistrates Court Act 32 of 1944 as amended) which basically says that this court will have jurisdiction over Mr B because Mr B lives and works within the district of this court, furthermore the amount sued is R50 000 so this court also has jurisdiction in that regard;The summons that Mr Shark must prepare must state in which court the case is adjudicated,The case number The parties i.e. plaintiff/defendant and the type of document which will be clearly apparent from appearance, i.e. a summons can only look a certain way, Mr Shark cannot suddenly become creative on word 2010 and reinvent the wheel and create his whole new version of a summons, no, there is a precedent.
11. The particulars of claim that Mr Shark prepares is simply the version of events from the plaintiff Mr A’s perspective in a clear, concise, chronological and numbered format i.e. 1, 2,3, 4 etc;
12. Once Mr Shark has printed this , he physically takes this to the magistrates court in Johannesburg. It is specifically taken to the clerk of the civil court. It is stamped, filed etc;
13. The sheriff then serves this summons on Mr B;
14. On the summons itself, will be a section for consenting to judgment or notice of intention to defend, should the defendant choose to defend the action he must complete the notice of intention to defend form, sign it and then serve it on the clerk of courts and the plaintiffs attorney(SEE ATTACHED SUMMONS);
15. So you get the summons, if it’s an ordinary summons, it will included the actual summons and a particulars of claim(which is the plaintiff’s complaint or dispute if you will; You need to study the particulars of claim on the summons(this is normally included as an annexure, simply because there are not enough lines/space on the summons itself to state the particulars of claim;
16. Now, if you want to be professional i.e. do exactly what an attorney will do, then you don’t use the ‘notice of intention to defend form” on the summons itself but use the one I attach here..attorneys use this format(SEE ATTACHED NOTICE OF INTENTION TO DEFEND)
17. Because this was a combined summons, the plea can be served with the notice of intention to defend or before the stipulated date on the summons(SEE ATTACHED PLEA). You can institute a counter claim when you submit your plea, but I’m not addressing that here
18. In the plea you must be as clear and concise as possible and state your defence very clearly. You respond to a plea paragraph by paragraph i.e. ad para 1..the defendant admits the contents of this paragraph(SEE ATTACHED PLEA)
19. You need to have a defence, the law provides a set of pre determined defences that you can chose which ever is most suitable to your case: There are certain question that you should ask yourself before preparing your plea:
19.1Whether you going to admit or deny the courts jurisdiction?
19.2Are you going to admit or deny the allegation of damages suffered by the plaintiff
19.3Are you going to admit or deny the amount of damages?
19.4Whether you going to admit or deny the demand?
19.5And in conclusion your plea must end with a prayer for the dismissal of the plaintiff’s claim with costs(ps. This is not a religious prayer, it’s merely court decorum. I too am still trying to research why this prayer must be included at the end o f a plea!

 :Cool: 

DISCLAIMER: PLEASE DON’T TAKLE MY ADVISE, IT WILL PROBABLY HARM YOU!!!!

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AmithS (26-Feb-13), Dave A (13-Feb-12), Sourcemart (04-Mar-13)

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## Citizen X

*Default Judgement
1. Default judgement occurs where you don’t submit a “notice of intention ‘ to defend and/or where you submit a notice of intention to defend and respond to all other documents but don’t appear on the date set down;
2. The magistrates courts rules has so been amended that as at today’s date even the clerk of courts himself/herself can enter a default judgement against you;
3. So, if you have a defence, submit a notice of intention to defend (see attached prescribed format)to the clerk of courts and the plaintiff’s attorney and either simultaneously or within 20 days of submitting the notice of intention to defend submit your “plea” in the prescribed format(see attached)
DISCLAIMER: PLEASE DON’T TAKE MY ADVISE, IT WILL PROBABLY HARM YOU!!!!

*

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Sourcemart (04-Mar-13)

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## motanyane

This is an awesome article. I'm in the middle of a divorce, and fighting for access to my two daughters at the same time. I have managed to get an interim order giving me access to the girls. However, in the process of the case being finalized by making a draft parenting plan into an order of the court, malicious allegations were made, and I made a motion that they should be investigated; a motion that the court upheld, however, postponed the case for 90 days. In the mean-time my wife served me with summons for divorce. I have been doing my research and I must say it is said to note that this is just about one of the few articles that explains the procedures on defending civil matters. Even though, you have not used divorce as your case study, you have managed to explain the processes in an eloquent manner that can be adapted in divorce case. In my opinion, there is a market in the law fraternity to defend cases, since all lawyers are concerned with helping people to divorce as opposed to mending the ills of the society. I am more determined to study law than ever before, and hope that you "Vanash Naick" are already studying as your ideas are profound and unique in presentation. Good work!

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## Fii

Hi, in desperate need of some advice!
Today a sheriff of the court arrived with a default judgement taken against my husband, to attach property to the value of R19000. The case concerned was from an accident in 2008 in which my husband was not involved. He arrived on the scene of a work-related accident (a TLB driven by a company operator drove into the back of a car), and provided his details for correspondence. The lawyers who contacted him were then given the details of the owner of the company and the particulars for insurance, etc. In 2009 my husband received a summons to appear in court relating to this case, as he was personally being sued for the amount owing. He refused to accept the summons and asserted again that it was not HIS accident and he was not liable. He then contacted the lawyers concerned, gave them particulars once again, and thought that was that. Now he has the default judgement against him. WHAT CAN WE DO?? Surely as it was neither himself operating the TLB, nor was the TLB his or in any way his responsibility, this is an error?? We can't afford hefty lawyer fees but at the same time we most certainly aren't going to pay R19000 for something that did not concern us?! Any advise will be greatly appreciated!!

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## Citizen X

> Hi, in desperate need of some advice!
> Today a sheriff of the court arrived with a default judgement taken against my husband, to attach property to the value of R19000. The case concerned was from an accident in 2008 in which my husband was not involved. He arrived on the scene of a work-related accident (a TLB driven by a company operator drove into the back of a car), and provided his details for correspondence. The lawyers who contacted him were then given the details of the owner of the company and the particulars for insurance, etc. In 2009 my husband received a summons to appear in court relating to this case, as he was personally being sued for the amount owing. He refused to accept the summons and asserted again that it was not HIS accident and he was not liable. He then contacted the lawyers concerned, gave them particulars once again, and thought that was that. Now he has the default judgement against him. WHAT CAN WE DO?? Surely as it was neither himself operating the TLB, nor was the TLB his or in any way his responsibility, this is an error?? We can't afford hefty lawyer fees but at the same time we most certainly aren't going to pay R19000 for something that did not concern us?! Any advise will be greatly appreciated!!


Good evening Fii ,
I can understand your reasonable anxiety and worry about this matter! That said, one must never lose sight of the fact that a summons is a court process! The court must be respected by the defendant entering an appearance and a plea on merits. If I explain it like this, someone has accused your husband formally in a civil court for liability for an accident. The fact that he was not responsible does not negate the fact that he failed to enter an appearance within the time frame and a plea on merits. So judgment was rightfully and lawfully granted!
What to do next
Im afraid youll have to instruct an attorney on this one, but Ill advise you on what to specifically instruct.
1. In instruct an attorney to institute proceedings to have the warrant set aside in terms of section 62;
2. In instruct an attorney to have the judgment rescinded on the basis of rule 49(7) or (8) whichever one your attorney believes to be more applicable

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Dave A (27-Feb-13)

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## Sourcemart

Hi Vanash,
Thank you for the information.  I have a quick question.  Completing the Summons document is real easy, but where do I get the "Case" number from?  I see in your example 6003/5013.  If I need to complete a draft summons for the magistrate's court, how will this look draft look like?  I also then need to know, do I just take the draft personally to the magistrates court, and ask for the clerk of the court to take and stamp it?
I am the director for a debt collections company, and up to now, we did not have the need to complete summons documents.  But people are more resistant than ever to pay their outstanding debt this year.

Kind Regards

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## Citizen X

Hi Sourcemart,

1. Any individual can sue out summons in his personal capacity for a matter that involves him or her directly!
2. As a debt collector if you not a practicing attorney i.e. registered with the law society then you precluded from suing out summons on behalf of your clients, only an attorney may do so. So youll have to instruct an attorney to do so;
3. Let me explain as follows: If Mr A owes you money in your personal capacity, an agreement between you and Mr A, then yes, you may sue out summons in your personal capacity, however based upon what you say, you collecting debts on behalf of clients for payment, you therefor precluded from drafting any court document to be used in court as this is in contravention to the Attorneys Act 53 of 1979(as amended)
3. The stamping gets done by the clerk of courts, payment of the court fees goes along with this;
4. So attorney will have summons templates in their portfolio of documents on their pc, they would then simply complete and take it to the clerk of courts for relevant stamping etc

My single most important reason for this thread is for someone who has received a summons and merely wants some form of insight as to what can be done thereafter. It's here for academic enlightenment..

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## Darkangelyaya

I don't mean to offend, but shouldn't debt collectors be 100% familiar with this process?

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## Sourcemart

Good day Darkangelyaya,

No offence taken.
We are 100% familiar with our process, as we have been doing it for a very very long time.  It has never been necessary for us to issue a summons against a debtor, as they usually start paying after receiving their Letter of Demand.
We have never had the means to send summons or obtain default judgement against a debtor.

The other thing is, we are in a very competitive industry, so everything you learn is the hard way, by means of trial and error.  Due to there being so many debt collectors, they never share their methods, nor does attorneys tell you anything, because they want you to make use of them.  Everyone always thinks about their pockets first.

I am also very aware that a plaintiff or a plaintiff's attorney can issue a summons.  The reason why I asked, is due to the fact that we take on the client's debt from the debtor.  So, in essence, the debt becomes our company's debt.  Will this not enable our company as being the plaintiff?

Kind Regards

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## Citizen X

A very good afternoon to you Sourcesmart,

I’ll answer your question in p2..

1. In my opinion the law in unequal in so far as companies and businesses are normally in a much better financial position to litigate than is the case with the defendant. This is especially true when it comes to debt, you may well find a situation whereas the debtor was actually a very good payer but then due to illness, retrenchment or such other reasons they unable to pay. It’s not a case that they don’t want to pay but rather that they unable to pay. They eventually get another job, but years of unemployment has set them back in life. It’s still difficult for them to repay. There in my opinion the law is still unequal. I’ve not conducted any research on the following postulation, but I pretty certain that University Law Schools and the Legal Aid Board etc. take on the cause of the defendant with the ethos that these people really can’t afford professional legal representation. Now with a business this is not so, as even though a business may be small, they still generate revenue. Can you see why I say that the law is unequal in the relationship between a debtor and creditor?

2. Okay, the fact that you buy the debtor's book changes things substantially! What you essentially saying is that you have purchased the rights, tile and deed of the debts. The debt belongs to you. You are therefore the Plaintiff. So as the Plaintiff you not going to prepare a court document for anyone else to use in court, but in essence you going to prepare your own documents, sign your own documents and then use your very own documents in court. This does indeed change everything! The tell-tale sign, if you excuse the pun, is actually where you sign the process documents as you will inevitably sign as the Plaintiff or the Plaintiff’s attorney. Both physical address and postal address is now required, another tell-tale sign. So you would actually be signing as the Plaintiff as you not acting for someone else and you not preparing a document in contravention of the Attorneys Act but rather you preparing the document for your- self which the law does cater for!;

3. At the following link you’ll find all the forms you require in PDF form, they are interactive fill in. Once you completed the form, you take it to the clerk of courts of the relevant magistrates court, as your first port of call, they’ll then stamp and direct you as to next steps. You actually tell the clerk of courts that you are the Plaintiff and that you are acting for yourself. The costs stated are party to party costs, the 1 thing the defendant knows for sure is that all those amounts mentioned mean that should he/she lose , he/she is liable for such costs

http://www.justice.gov.za/forms/form_mcr.htm

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Dave A (05-Mar-13), Sourcemart (04-Mar-13)

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## Sourcemart

Thank you for the thorough answer Vanash.  We already have all the legal documents, and already completed all of them.  I just wanted to make sure of the proceedings in taking them to court, and where should I get the case number from, or should I leave that blank.
This was one of the reasons our company decided to purchase the bad debt, taking all risks, instead of acting on behalf of our clients.

You have definitely helped me a great deal.

On the note of the law being unequal, we are aware of it, and we are not your traditional debt collectors, as we take in consideration why the debtor failed to pay his / her account(s).  We are also not issuing Emolument orders or garnishee orders against anyone.  The only time we want to go this extreme route is if the debtor has all the means to pay for the debt, but they have the attitude that they will not pay for it, because they were charged more than what they think it is worth, as per one statement received from a debtor.

Kind Regards

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## Citizen X

> Thank you for the thorough answer Vanash. We already have all the legal documents, and already completed all of them. I just wanted to make sure of the proceedings in taking them to court, and where should I get the case number from, or should I leave that blank.
> This was one of the reasons our company decided to purchase the bad debt, taking all risks, instead of acting on behalf of our clients.
> 
> You have definitely helped me a great deal.
> 
> On the note of the law being unequal, we are aware of it, and we are not your traditional debt collectors, as we take in consideration why the debtor failed to pay his / her account(s). We are also not issuing Emolument orders or garnishee orders against anyone. The only time we want to go this extreme route is if the debtor has all the means to pay for the debt, but they have the attitude that they will not pay for it, because they were charged more than what they think it is worth, as per one statement received from a debtor.
> 
> Kind Regards


Ill answer your question in point 2

1. I can appreciate that many will conclude that Im one sided when it comes to these matters especially since the creditor does also have rights! I have unfortunately already taken a stance, i.e. where I stand on these matters. I stand for the grassroots people of this country, those who are marginalized in our country and are actually not even aware of their rights. We have a wonderful Constitution, but our Constitution itself doesnt take a lot into consideration e.g. we all have the right to life, but for so many life is so very miserable, intolerable and unbearable that this right means nothing to them. They struggling to survive on a daily basis for basic things as such food, and shelter. We all have the right to dignity and respect, but I ask where is the dignity and respect for the 20 families who are forced to use one toilet in an informal settlement. So for the larger part my posts are meant to assist people who are marginalized alternatively the ordinary working class person who is overcome by debt etc.;

2. The clerk of court will give you the case number. Be forewarned though, if its a credit agreement i.e. personal loan, credit card, retail apparel account etc. even though it was bought, you are forced to use the combined summons which includes the process which is the summons itself and the particulars of claim. The two are not separated. The reason for this is that there are many averments which you need to include in the particulars of claim to show alleged compliance with the National Credit Act; you also have to send a final letter of demand via registered mail first

3. This is what Ill advise you, see an attorney for the very first one and be forthcoming with him or her i.e. you a small company, you ideally want to litigate in your personal capacity as the Plaintiff so for one case, you want them to consult with you, provide you with all the necessary averments, take you through the procedure. You then pay them for the consultation and then you good to go. As mentioned you intend litigating as the Plaintiff itself and not on behalf of somebody else. So its your own matters, you simply feel that you should not contend with costs of litigation, but you also want to be set in the right direction. I think that youll get your monies worth by a thorough consultation with an attorney. You want them to set you in the right direction..

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## workshop

> My single most important reason for this thread is for someone who has received a summons and merely wants some form of insight as to what can be done thereafter. It's here for academic enlightenment..[/FONT][/COLOR]


Vanash I am being sued for defamation and out of principle have decided not to engage an attorney. I want to feel what it's like to be be victimised. I am also a bit tight on cash. Whatever! Having received a notice to plea I approached the Clerk of the Court who giggled whilst she told me "she can tell me nothing" and all because she is just a clerk. 

I then asked her "What do most people do in this sort of situation" and she didn't answer. She just giggled some more.

Besides your thread what other resources are available to someone who is being bullied and bamboozled by the profession?

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## Citizen X

> Vanash I am being sued for defamation and out of principle have decided not to engage an attorney. I want to feel what it's like to be be victimised. I am also a bit tight on cash. Whatever! Having received a notice to plea I approached the Clerk of the Court who giggled whilst she told me "she can tell me nothing" and all because she is just a clerk. 
> 
> I then asked her "What do most people do in this sort of situation" and she didn't answer. She just giggled some more.
> 
> Besides your thread what other resources are available to someone who is being bullied and bamboozled by the profession?


Good morning ,
1. You indicate that you have received a notice for request for plea? Normally with defamation matters, a combined summons is used, which requires you to enter an appearance as well as file your plea on merits.
2. You need to actually in a very clear and concise manner answer to every single paragraph in the Plaintiff’s particulars of claim, you need to either admit, deny, place in issue or confess each paragraph. You also need to state the defense to the allegations. This needs to be done within a specified period of time;
3. Might I suggest that you get a University Law Clinic to assist you with your pleadings i.e. you are representing yourself, you just need help with the pleadings!

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workshop (16-Apr-13)

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## workshop

A bit intimidating. But think I have managed to put a reasonable plea together. Will see what transpires. Especially liked the bit about _Wherefore defendant prays that plaintiff's claim be dismissed with costs_. 

It's something that is raising many questions in my mind.

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## Citizen X

I'm copying, cuttting and pasting this query here and my response to such quesry:

"Hi I have received a Summons from a large Hospital

I joined a Medical a Hospital Plan in April 2011 and was submitted to a 3 month General Waiting Period and a 12 month period for my wife's depression

In Dec 2011 my wife OD'ed and was in serious respiratory failure and needed to be resussed on the bed, paramedics were called and they called up the local private hospital as the nearest state hospital was 20km away and the private hospital asked about my med aid details and said bring her in.

When she got to the hospital i was in a state of blind panic and the hospital phoned the med aid and they said she should be admitted as she was on the hospital plan.

the hospital gave me forms to sign but i did not know what they were and as i was from the UK i assumed they were her name and address.

She had to be resussed twice in emergency and then put on life support

The following morning i received a call from the hospital saying i owed them £10 000 and that if i do not pay my wife will be discharged, but the doc in ICU said the med aid would pay until she is stable.. I told the hospital that she had a hospital plan but the hospital said the med aid rejected the request and were not paying

The following day as soon as the tubes came out of her throat she discharged herself.

Then I received around R35 000.00 of bills and i kept saying med aid will cover.. and they re submitted to med aid and they kept rejecting saying that the reason was that the cause was depression and that she was in a waiting period.

There is a pamphlet from the med aid that says quite clearly that the med aid will pay in a life threatening emergency until you are stabilised EVEN IF YOU ARE IN A WAITING PERIOD.


In sept 2011 I laid a complaint with the council of med aid and am still waiting a response

But in the mean time the largest creditor the Hospital has issued a summons, they did wait 6 months but now have issued.. I am unemployed and so is my wife and i do not have R22 000 to pay them

I am still waiting for the council before i can sue the med aid for breach of promise / false advertising etc..

What can I do in the mean time to delay the summons further?"

RESPONSE:
Good afternoon DazedandConfused,

I would like to impress upon you that your matter is indeed heart wrenching! I’m terribly sorry that both you and your wife had to endure so much at the hands of a hospital and a medical aid. My response may be long winded, but it’s really necessary.

My advice is not meant to substitute for the services of an attorney. I’m hoping that the council will resolve this matter in your favour!

1. Firstly, for the sake of clarity, let’s separate the parties for now. The Hospital is the service provider and is regulated by a) The National Health Act 61 of 2003[1] and b) The Health Professionals Act 56 of 1974.[2] Disciplinary control is meted out by the Health Professionals Council of South Africa(HPCSA) alternatively a court of law for delict[3]. The Medical Aid is regulated by the Medical Schemes Act 131 of 1998.[4](The versions that I have, definitely have the latest amendments as they are downloaded from Sabinet. I’m not entirely certain about the url’s I include here. So at this stage the hospital and not the medical aid is the plaintiff and you are the defendant;
2. The Plaintiff sued out summons, due to the monetary value , the Magistrates Court has jurisdiction. Upon receiving the summons( which I suspect is an ordinary summons), you are called upon to enter a notice of intention to defend the action. You are given a specified period of time within which to do so. Ideally you have 3 copies, one you serve on the plaintiff(their attorney), get them to stamp your copy or sign your copy, then file the second copy to the clerk of courts of the relevant Magistrates court. Also get the clerk of courts to stamp your copy.;
3. If as I suspect, this is an ordinary summons, then, at a later stage, the Plaintiff will send you a notice to file your plea on merits. It is here where your challenge lies, as you will have to plead paragraph by paragraph to every paragraph included in the Plaintiff’s particulars of claim. A problem is that the patient remains liable for the bill and not the medical aid; The fact that you signed indemnity forms which would have placed medical costs responsibility upon you without reading it will unfortunately not be a valid defence, as at today’s date the latest case-law on the law of contract and medical law strongly suggest that the admission clerk was not obliged to point out any clause to you and that by signing it you deemed to have read it.
*I don’t know* if ‘section 27,’ can assist you, it won’t harm to contact them. This is their website:
http://www.section27.org.za/




The following is off topic but I feel that it belongs here(This has no bearing on your case!!!)!

4.Emergency Medical Treatment: The legal position
We may all have conceptions of what is classified as emergency medical treatment and perhaps more importantly how long should such emergency medical treatment be administered when a patient doesn’t pay for whatever reason.
*Section 27(3)* of the Constitution of 1996 provides that “No one may be refused emergency medical treatment.”[5]
*Section 5* of the National Health Care Act[6] is entitled “ Emergency Treatment” and reads as follows:
“A health care provider, health worker *or* health establishment may not refuse a person emergency medical treatment.”
So we come to the vital question again: What is emergency medical treatment?


The Constitutional Court decided just such a question In Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).[7] In this case Mr Soobramaney was a very ill man, he was unemployed at this time and was suffering from chronic kidney failure and needed dialysis to prolong his life. The hospital refused him admittance on the basis that his was a chronic condition. The CC was of the opinion that ‘emergency medical treatment,’ does not include on-going treatment of a chronic illness.

At para 51 Sachs J stated “The special attention given by section 27(3) to non-refusal of emergency medical treatment relates to the particular sense of shock to our notions of human solidarity occasioned by the turning away from hospital of people battered and bleeding or of those who fall victim to sudden and unexpected collapse. It provides reassurance to all members of society that accident and emergency departments will be available to deal with the unforeseeable catastrophes which could befall any person, anywhere and at any time.The values protected by section 27(3) would, accordingly, be undermined rather than reinforced by any unwarranted conflation of emergency and non-emergency treatment such as that argued for by the appellant.” 

Upon studying this case *my layman’s conclusion* is that emergency medical treatment is meant to resuscitate, alternatively emergency medical treatment to save a life. This is what cannot be refused by any health care provider, but once you are alive, there is no longer any emergency, this doesn’t mean that you may not require more treatment but just that the emergency phase is over! The key question arises when a patient can no longer pay for treatment, what takes place then? From what I deduce as long as the hospital can state that they resuscitated the patient or stabilised the patient, they would have met the requirement of section 27. They could then discharge the patient or transfer the patient





[1] Vide: National Health Act: http://www.polity.org.za/article/nat...-no-61-of-2003. Accessed 28 March 2013

[2] Vide: Health Professionals Act: http://www.hpcsa.co.za/downloads/hea...ct_56_1974.pdf. Accessed 28 March 2013

[3] Vide: HPCSA: http://www.hpcsa.co.za/

[4]Vide: Medical Schemes Act: http://www.doh.gov.za/docs/legislati...act98-131.html. Accessed 28 March 2013




[5]Vide: Constitution: http://www.info.gov.za/documents/constitution/1996/a108-96.pdf. Accessed 28 March 2013



[6] Supra n 1

[7] Vide: Soobramoney v Minister of Health:http://www.saflii.org.za/za/cases/ZACC/1997/17.pdf. Accessed 28 March 2013

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Dave A (30-Mar-13)

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## workshop

Vanash I have been served with a Notice to deliver schedule of documents in terms of:
Rule 23(1)
Rule 23(3)
and Rule 23(4)

But I have started a new thread here so as not to take this one off topic

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## Citizen X

> Vanash I have been served with a Notice to deliver schedule of documents in terms of:
> Rule 23(1)
> Rule 23(3)
> and Rule 23(4)
> 
> But I have started a new thread here so as not  to take this one off topic


A very good evening to you Workshop,
This advice is not meant to substitute for the services of an attorney. It’s here for academic curiosity!
To summarise, you being sued for defamation of character. You decided that you want to represent your self and have thus far entered an appearance as well as a plea on merits.
*Your question requires a very specific answer!* One which is unambiguous and clear and concise. Discovery of documents is a procedure which allows both the plaintiff and defendant to know what the other party will be using in court. You are also entitled to request discovery of their documents.
I’ve just learnt that legislation needn’t be placed in quotation marks as it’s not copyright. So in keeping with this, the following is what rule 23(1), 23(3) and 23(4) state
*23. Discovery of documents*
(1)
(a) Any party to any action may require any other party thereto, by notice in writing, to make discovery on oath within 20 days of all documents and tape, electronic, digital or other forms of recordings relating to any matter in question in such action, whether such matter is one arising between the party requiring discovery
and the party required to make discovery or not, which are or have at any time been in the possession or control of such other party.
(b) A notice in terms of paragraph (a) shall not, save with the leave of a magistrate, be
given before the close of pleadings.

(3) If any party believes that there are, in addition to documents or tape, electronic, digital or other forms of recordings disclosed in terms of this rule, other documents, including copies thereof, or tape, electronic, digital or other forms of recordings which may be relevant to any party thereto, the former may give notice to the latter requiring him or her to make the same available for inspection in accordance with sub-rule (6), or to state an oath within 10 days that such documents are not in his or her possession, in which event
he or she shall state their whereabouts, if known to him or her.

(4) A document or tape, electronic, digital or other forms of recording not disclosed as requested in terms of this rule may not, save with the leave of the court granted on such terms as to it may seem meet, be used for any purpose at the trial by the party who was obliged but failed to disclose it, provided that any other party may use such document or tape, electronic, digital or other forms of recording.

1) So in practice you need to download the precedent (discovery of documents affidavit) from http://www.justice.gov.za/forms/form_mcr.htm
This is the j801 affidavit;
2. In your case you will need to attach 3 schedules(aka annexures) to the affidavit. A schedule looks like this:
*Schedule A*
DATE
NUMBER
DOCUMENT 
COPY/ORIGINAL

16 April 2013

Cheque
Original

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workshop (16-Apr-13)

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## workshop

Appreciated. But the Plaintiffs attorney has served notice that the Defendant requires Plaintiff to....

I assume they have made a mistake. If so what do I do?

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## Citizen X

> Appreciated. But the Plaintiffs attorney has served notice that the Defendant requires Plaintiff to....
> 
> I assume they have made a mistake. If so what do I do?



It's just a typographical mistake! Don't ignore it, rather file your discovery of documents in the prescribed way..

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## workshop

My ten days is nearly up. Can you just clarify what I am supposed to be doing:

rule 23(1), requires me to deliver "a schedule". My question is deliver to who?

rule 23(3), requires me to "produce for inspection" the specified documents. Is this subsequent to delivering?  

and rule 23(4), requires me to show to the Court. Which I think is self explanatory

What happens if one or other party misses, in this case, the ten day deadline?

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## Citizen X

> My ten days is nearly up. Can you just clarify what I am supposed to be doing:
> 
> rule 23(1), requires me to deliver "a schedule". My question is deliver to who?
> 
> rule 23(3), requires me to "produce for inspection" the specified documents. Is this subsequent to delivering? 
> 
> and rule 23(4), requires me to show to the Court. Which I think is self explanatory
> 
> What happens if one or other party misses, in this case, the ten day deadline?


As previously mentioned, in your case, you will have to deliver three schedules or annexures!
"2. In your case you will need to attach 3 schedules(aka annexures) to the affidavit. A schedule looks like this:
*Schedule A*
DATE
NUMBER
DOCUMENT
COPY/ORIGINAL

16 April 2013

Cheque
Original











You file or serve in the standard manner, have 3 coipies of each bundle. File the first to the plaintiff's attorney, get them to sign or stamp one copy as proof that you served it on them, you then file/serve the same on the clerk of courts, you get the clerk of courts to stamp your copy as proff that you filed the same with the clerk of courts. So after service, you'll have one copy with the signature/stamp of the plaintiff's attorney as well as the stamp of the clerk of courts. This one copy is for your 
records.

Certain explanation may not be expressed in a manner in which one can get the desired results in practice! I sincerely believe that you do need the services of an attorney to assist you...

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## workshop

It's something that I have to work through myself. I have no choice in this. 

I understand that I need three packs. One for the Plaintiff, one for the Clerk and one for me. But I am a bit confused about the need for three schedules. Schedule A will be a list of the books and documents in my possesion which I intend to use. The Affidavit refers to a second schedule which lists documents that are no longer in my possesion. Is this what you are referring to? If so what is the third schedule suppoed to list?

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## Citizen X

The way I see it, you being asked for two different things, *as such two* schedules are required(I deduce this from information that you have provided) If an attorney is out of the question, why don't you approach a University Law clinic to assist you with the correct drafting of discovery alternatively to give you very specific advice....

*23. Discovery of documents
*(1)
(a) Any party to any action may require any other party thereto, by notice in writing, to make discovery on oath within 20 days of all documents and tape, electronic, digital or other forms of recordings relating to any matter in question in such action, whether such matter is one arising between the party requiring discovery
and the party required to make discovery or not, which are or have at any time been in the possession or control of such other party.
(b) A notice in terms of paragraph (a) shall not, save with the leave of a magistrate, be given before the close of pleadings.

(3) If any party believes that there are, in addition to documents or tape, electronic, digital or other forms of recordings disclosed in terms of this rule, other documents, including copies thereof, or tape, electronic, digital or other forms of recordings which may be relevant to any party thereto, the former may give notice to the latter requiring him or her to make the same available for inspection in accordance with sub-rule (6), or to state an oath within 10 days that such documents are not in his or her possession, in which event
he or she shall state their whereabouts, if known to him or her.

(4) A document or tape, electronic, digital or other forms of recording not disclosed as requested in terms of this rule may not, save with the leave of the court granted on such terms as to it may seem meet, be used for any purpose at the trial by the party who was obliged but failed to disclose it, provided that any other party may use such document or tape, electronic, digital or other forms of recording.

Remember this is your matter, and you defending yourself, so it's your call at the end of the day as to how you intend proceeding with exchange of documents..thread wisely though, an opinion from a university law clinic can't harm, it will help!!!

It will be 3 if the following applies to you:

1 Documents and tape recordings in one's possession.
2 Privileged documents 
3 Documents and tape recordings that were in one's possession but which are no longer so.

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workshop (05-May-13)

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## workshop

Thx. Wish we had "law clinic". But Knysna types are simple woodcutters, forest fairies and fading hippies. Everyone is a little long in the tooth, no young 'uns in these parts I am afraid. We are also mean spirited and as grumpy as all hell.

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## Citizen X

> Thx. Wish we had "law clinic". But Knysna types are simple woodcutters, forest fairies and fading hippies. Everyone is a little long in the tooth, no young 'uns in these parts I am afraid. We are also mean spirited and as grumpy as all hell.


The Western Cape is a beautiful piece of South African land. Hey, you have the University of Western Cape(UWC) there

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## workshop

That's a six day trek. Sedgefield is about as far as we ever venture, Plett if we are doing a day trip. And as for Buffelsbaai the residents are still talking about booms to keep the rooinekke uit.

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## workshop

They fudged the task by objecting to the disclosure of any of their documents. They dressed this in a whole lot of legal gobbledly gook. Do I bother to challenge them? Can one challenge them? I would just like to get to court and confirm for all concerned that I really don't like the Plaintiff and meant every word he is objecting to.

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## Citizen X

> They fudged the task by objecting to the disclosure of any of their documents. They dressed this in a whole lot of legal gobbledly gook. Do I bother to challenge them? Can one challenge them? I would just like to get to court and confirm for all concerned that I really don't like the Plaintiff and meant every word he is objecting to.


Unfortunately, there's only one way to find out!

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## workshop

And that I must. What is next, after discovery docs have been lodged? Is there a manual I can follow? Does anyone run an online clinic?

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## Citizen X

> And that I must. What is next, after discovery docs have been lodged? Is there a manual I can follow? Does anyone run an online clinic?


I’m afraid there’s no online clinic that I’m aware of that will give you step by step guidance!
Based on the facts you present, after Discovery, pleadings close and the final document you should receive, should state ‘notice of set down,’ this simply means that a trial date has been set, the document will provide you with the time and court number

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## workshop

Thx. Do you not think that there is need for, a demand for a paralegal clinic? I sure could use one. Your advise has helped considerably and I am sure there are many others who find themselves in the same position I am in.

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## sterne.law@gmail.com

There is and always will be huge demand.
The problem stems from how does the paralegal institute pay its way. Even if advice was dispensed at R250 an hour  would people pay that, considering it is mere advice and will seldom bring a solution. I doubt it.
A paralegal type structure could only guide a person, whereafter any court action still requires lawyers.
Justice centres, NGOs and such receive funding from donors, they can only help so many people so they need to choose which cases most need help. The cases are normally filtered by virtue of public interest, human rights , children and such.
Very few, if any will handle civil case.

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Citizen X (07-May-13)

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## workshop

There is a lot that could be done simply by organising and archiving information. Liquor licence applications for example. And what I was thinking of were students and layman who act as guides and mentors rather than experts. There are a lot of people who simply cannot afford the fees attorneys charge.

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## Dave A

I recommend spending a morning or afternoon in court just watching proceedings. It can get quite interesting, and at least you won't be stumbling around blind when you have your moment in court.

You might even be able to tug on some sleeves for a little help and guidance with your case.

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## workshop

Am not looking forward to it. A bit like walking back in time and into a Charles Dickens novel.

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## Dave A

I suppose I'd better get this off my chest, because I've certainly been thinking it. When I read:




> I would just like to get to court and confirm for all concerned that I really don't like the Plaintiff and meant every word he is objecting to.


I *did* think that it might be cheaper in the long run for you to hire a lawyer to represent you. Depends on the facts of the matter to some extent, I guess.

Anyhow, seems you're old and grumpy enough to know your own business and make up your own mind in these things  :Wink: 

May you get a wise and reasonably sympathetic judge.

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## workshop

I don't trust the system

Our economy is in melt down, child molesters, rapists and murders walk free and I am afraid I am just no good at growing organic spinach and cabbages. But I am perfectly capable of defending myself and speaking my mind. And if the magistrate does not understand this I will have to think about cabbage farming as an alternative solution to the problems I create.

There comes a time when we need to call time-out. And if we don't start challenging the way things are, we are all going to end up neck deep in it. Plain and simple.

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## sterne.law@gmail.com

> I suppose I'd better get this off my chest, because I've certainly been thinking it. When I read:
> 
> 
> 
> I *did* think that it might be cheaper in the long run for you to hire a lawyer to represent you. Depends on the facts of the matter to some extent, I guess.
> 
> Anyhow, seems you're old and grumpy enough to know your own business and make up your own mind in these things 
> 
> May you get a wise and reasonably sympathetic judge.


I think we should be clear, the job is not to convince anyone, that you meant every word, defamation is about whether the complainant's reputation has been damaged by your words and/or actions and thats what needs to be proved/dispproved.

Litigating just to prove one really feels something may just lead to a punitive costs order.

With out all the facts, it may be somewhat presumptious, but this sounds like a squabble and a scrap that could have and may still be able to be resolved over a beer and an arm wrestle rather than in a court. [Probably much cheaper as well depending on one's capacity for consumption and the events that transpire form a night of revellery.]

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## Dave A

> Litigating just to prove one really feels something may just lead to a punitive costs order.


It would certainly need a well planned argument in mitigation  :Big Grin:

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## workshop

I should be OK. If there is one thing I do, it is to argue. Not sure about well planned. But I can defend and I am hoping that the blind lady hasn't taken a backhander. But who knows.

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## Seperated

Hi,

I'm busy with a divorce. My wife has opened a case against me, but she refuses to have the Sheriff serve the summons against me.
I was told I cannot open a new case as one already exists.

What are my options?
Can she simply hold up the process as long as she pleases by opening a case and not serving the summons to get the process started?

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## Citizen X

Hi there,
Please excuse my lack of understanding where I demonstrate the same as I sincerely fail to understand a few aspects here! I’d really like to assist you*!( My advice is not meant to substitute for the services of an attorney!!)*



> I'm busy with a divorce.



In practice one of the parties normally initiate divorce proceedings on the basis of irreconcilable differences (either the wife or husband). This person will consult a family attorney and give instructions to initiate divorce proceedings(If both want a divorce, even better and far easier for everyone concerned!). This process will commence with a combined summons which will be served on the husband for instance. The husband will then have to respond in kind, ideally by consulting a family attorney who will then prepare the relevant pleading in response to the combined summons received.(Custody issues, property issues etc.)





> My wife has opened a case against me




This I don’t understand! It’s possible that your wife didn’t consult an attorney and went straight to the regional magistrates court herself to get things started but this is unlikely! If she wants a divorce, she would want the summons to be served!





> Can she simply hold up the process as long as she pleases by opening a case and not serving the summons to get the process started?




This depends on what you want! Do you want a divorce or not?
Remember, if you also want the divorce,  then that’s fine, the real battle then becomes assets and custody and this is where your attorney comes in!!

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ghostwriter (02-Sep-13)

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## Seperated

Sorry for the lack of detail.

I want a divorce and tried to discuss a separation agreement before going to an attorney. My wife wants to stall the divorce.

She did consult a lawyer and via him opened a case against me. A summons was drafted and case number allocated, but the summons was never served on me and she has no intention of serving it. She simply wants to prevent me from filing for divorce against her.

My question - is there nothing I can do to proceed with the divorce? I approached an attorney who indicated I cannot open a new divorce case since one has already been opened and a case number allocated.

I just can't believe you can be stalled in this way with no legal remedy?

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## sterne.law@gmail.com

You can approach the court for a mandamus. This is a form of interdict where the prayer is an instruction to do something rather than stop or forbid something.
You could speak to the court registrar to issue a directive to proceed with action within a time period, failing which the matter is archived or withdrawn. Im not sure if the registrar will do this in a divorce proceeding though.
The more creative way would be to file for divorce in a different court. So if she filed in mag court, you file in High court, or vice versa.

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AndyD (21-May-13), ghostwriter (02-Sep-13)

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## De Weer

Hi Vanash

Thank you for your effort to help out here - very helpful.

I have been summonsed by my landlord for R40k outstanding rent. However, I have paid him R30k a week ago, so only R10k is now outstanding. I need TO urgently file an INTENTION TO DEFEND if I understand correctly), but there is a twist to the situation.

Here is some background:
I signed a 1-year lease agreement with the landlord (about 15 months back) subject to a some conditions he agreed upon in writing on the rental agreement. Conditions not fulfilled yet is: the installation of a linen cupboard, move of a toilet and placing mirrors above basins in the bathrooms. Early in the first year the HOA disconnected my electricity. By closer enquiry they advised me that the landlord had no COC (certificate of compliance) that allows us to occupy the property. We were without electricity for 3 weeks. An attorney advised that I should book my family (wife, son and daughter - both high school students) into a guest house until a COC is acquired - for the landlord's account. I did not want to wreak such a heavy bill (R2800/day) onto my landlord so I bought a power generator and hooked it up with the house. The daily cost for petrol were about R200/day and it still caused us a lot of inconvenience. After three weeks the landlord acquired a temporary COC. Since the matter never came up again, I thought the issue was resolved.

Just last week my water was cut/restricted (my bill for services is paid in full). When the guy were busy to install the water restrictor I asked him why he do so and he replied that there is still no COC. 

My QUESTION to you is: Since there is no COC, which surely implies that according to law the property is NOT FIT for rental - is my rental agreement valid? What should I do about this situation? Can I stop paying rent to force the landlord to obtain the required COC? Should I relocate at the landlord's expence? Please let me know what my options are. Best regards

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## Citizen X

> Hi Vanash
> 
> Thank you for your effort to help out here - very helpful.
> 
> I have been summonsed by my landlord for R40k outstanding rent. However, I have paid him R30k a week ago, so only R10k is now outstanding. I need TO urgently file an INTENTION TO DEFEND if I understand correctly), but there is a twist to the situation.
> 
> Here is some background:
> I signed a 1-year lease agreement with the landlord (about 15 months back) subject to a some conditions he agreed upon in writing on the rental agreement. Conditions not fulfilled yet is: the installation of a linen cupboard, move of a toilet and placing mirrors above basins in the bathrooms. Early in the first year the HOA disconnected my electricity. By closer enquiry they advised me that the landlord had no COC (certificate of compliance) that allows us to occupy the property. We were without electricity for 3 weeks. An attorney advised that I should book my family (wife, son and daughter - both high school students) into a guest house until a COC is acquired - for the landlord's account. I did not want to wreak such a heavy bill (R2800/day) onto my landlord so I bought a power generator and hooked it up with the house. The daily cost for petrol were about R200/day and it still caused us a lot of inconvenience. After three weeks the landlord acquired a temporary COC. Since the matter never came up again, I thought the issue was resolved.
> 
> ...


Good afternoon De Weer,



> I have been summonsed by my landlord for R40k outstanding rent. However, I have paid him R30k a week ago, so only R10k is now outstanding





> 



At this stage your issue in dispute which the court would have heard should already have been resolved. As a defendant can make payment or arrangements to pay at any stages of the pleadings and even right up to the ‘notice of set down,’ trial date. This is usually welcomed by all parties including the courts. It saves the courts time and resources to adjudicate over a matter and it appeases the plaintiff.



> I signed a 1-year lease agreement with the landlord (about 15 months back) subject to a some conditions he agreed upon in writing on the rental agreement. Conditions not fulfilled yet is: the installation of a linen cupboard, move of a toilet and placing mirrors above basins in the bathrooms. Early in the first year the HOA disconnected my electricity. By closer enquiry they advised me that the landlord had no COC (certificate of compliance) that allows us to occupy the property. We were without electricity for 3 weeks.





These are grounds upon which you may state your defence based upon breach of contract. In this case, it’s a very specific defence ‘_exceptio non admimpleti contractus,’_ if you don’t [erform in terms of an agreement, I don’t have to perform




> Just last week my water was cut/restricted (my bill for services is paid in full). When the guy were busy to install the water restrictor I asked him why he do so and he replied that there is still no COC.



In terms of even  strict lease agreement you entitled to undisturbed occupation
.

My QUESTION to you is: Since there is no COC, which surely implies that according to law the property is NOT FIT for rental - is my rental agreement valid? What should I do about this situation? Can I stop paying rent to force the landlord to obtain the required COC? Should I relocate at the landlord's expence? Please let me know what my options are. Best regards



> What should I do about this situation?



You respond to the immediate threat!
1. You file a notice of intention to defend, a plea on merits(which includes your response to the plaintiff’s particulars of claim as well as your defence to the plaintiff’s claim, a counterclaim is optional);
2. These documents need to be properly drafted and on both clerk of courts and plaintiff within a specified period of time

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## workshop

Vanash I have a civil claim pending. The plaintiff is acting for himself and making a hash of it. We have discovered documents and need to set the trial date. He arranged a date but did not set it down so the matter is left hanging. Can I apply to have the case struck down on the basis that it is unlikely to succeed and is a waste of time? Alternatively can I request that he makes provision for covering my costs should I engage an attorney to defend the case and he loses?

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## sterne.law@gmail.com

When you say that a date was arranged are you referring to the original summons containing a date on it?
If so there is no need to file a notice of setdown as the setdown was incorporated into the original summons.

If this is not the case, and your reference is that the registrar was asked for a date, but the Plaintiff has not yet set it down, then the matter is at a standstill.
You can ask for security of costs from the plaintiff, it is an application.

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Citizen X (09-May-14)

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## workshop

It has been a long drawn out and irritating affair. It is at a standstill. What does one do to apply? What security can one expect? What grounds does one have to request security or is it standard practice?

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## Citizen X

> It has been a long drawn out and irritating affair. It is at a standstill. What does one do to apply? What security can one expect? What grounds does one have to request security or is it standard practice?


 The point of departure is rule 22(1) which states:
(1) The trial of an action shall be subject to the delivery by the plaintiff, after the pleadings have been closed, of notice of trial for a day or days approved by the registrar or clerk of the court: Provided that, if the plaintiff does not within 15 days after the pleadings have been closed deliver notice of trial, _the defendant may do so._

To put things into perspective, pleadings have closed and in fact discovery has already taken place. In the plaintiff’s particulars of claim/declaration, there is an order as to costs and in the defendants plea , there is also an order as to costs;

1. Might I suggest that you set down the matter

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workshop (10-May-14)

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## workshop

When do I request security to cover my costs? I am hoping this will not happen and that the case will get struck off and go away. Do I apply for set down? How does one proceed?

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## the mugg

Hi Vanash,
May you please mail me the attachment used in this eg

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## Harri

How do I get access to the attached documents

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## Dave A

> How do I get access to the attached documents


It is public content, so access permissions on the server side is not the issue. 
(I have just tested to make absolutely sure).

As a starting point as to what your challenge might be - The files are in .pdf and .doc format, so you will need programs that can open files in these formats to read them.

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## Starman202

Hi there Vanash, as you indicated searching for a Form 3 (J798) one would probably end u0p with an old version. Could you make available for download the latest Form 3 Summons combing a rent interdict ideally in word format

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## suki

Hi Vanesh, 
I was looking for information on google to help with my problem and came across your thread. We landed in financial trouble in 2008 and couldn't pay our bond and it was repossessed - we got home to find 4 copies of a summons from the courts , we didn't have the money for a lawyer and figured we were in the wrong so how could we defend.....a month later we got a letter from the bank to vacate the property within 30 days - which we did - the bank then sold the house to a broker without a judgement or sale in execution for a third of the value and this broker then sold the house a month later for double what she had bought it for - our problem is, now 9 years later they are demanding the full amount that we original had a bond on the property for and calling it "shortfall in sale" - the bank said they never received the monies from the sale and that makes us liable as we made a private sale - which we did not and signed no papers for any sale as the house was repossessed and we have asked for the copy of judgement but they say the lawyer who dealt with it cannot find it and its misplaced - we have also checked online for announcements to sell our house in sale in execution which we cannot find. they cannot even produce a copy of the summons to commence legal action. Kind regards

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## Citizen X

> Hi Vanesh, 
> I was looking for information on google to help with my problem and came across your thread. We landed in financial trouble in 2008 and couldn't pay our bond and it was repossessed - we got home to find 4 copies of a summons from the courts , we didn't have the money for a lawyer and figured we were in the wrong so how could we defend.....a month later we got a letter from the bank to vacate the property within 30 days - which we did - the bank then sold the house to a broker without a judgement or sale in execution for a third of the value and this broker then sold the house a month later for double what she had bought it for - our problem is, now 9 years later they are demanding the full amount that we original had a bond on the property for and calling it "shortfall in sale" - the bank said they never received the monies from the sale and that makes us liable as we made a private sale - which we did not and signed no papers for any sale as the house was repossessed and we have asked for the copy of judgement but they say the lawyer who dealt with it cannot find it and its misplaced - we have also checked online for announcements to sell our house in sale in execution which we cannot find. they cannot even produce a copy of the summons to commence legal action. Kind regards


Sale in execution: This is what should have happened:
1.    Within 3 months of you not being able to meet your monthly bond payments, the bank should have contacted you and explored various ways in which you could meet your monthly payment;
2.    Failing which, a section 129 letter should have been sent to you informing you of your rights to contact a debt counsellor and go under debt review etc;
3.    Should the debtor not go under debt review and still not be in a position to pay, the bank must obtain a court order to sell the house(order to attach and sell)
4.    Before the sale in execution is held, the auction must be advertised in two local newspapers and  the government gazette’
5.    The sale in execution is conducted by public auction by the sheriff
6.    Where there is still an outstanding balance , the debtor is liable for this balance
7.    It’s clear from what you say, that no permission was granted by the bank for you to conduct a private sale and no private sale was conducted;
8.    It’s also clear that the bank never received any payment from this ‘broker,’
9.    The  bank is stating that the amount owed is a ‘shortfall in the sale,’ 
  There does appear to be irregularities here, my advice, contact a property law specialist asap

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## MarelizeS

A notice of bar was issued, but I could not afford my lawyer (wanted a R5000 advance to plea), so I missed the date....what is the best for me to do now? I don't have a new lawyer yet, as they withdrew from my case. I am scared someone will just pitch and take my belongings - this was a summons for my business and then myself as I stupidly signed surety on the contract.

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## suki

Hi Vanesh,
Thank you for the reply.
I thought before I go to a lawyer , I would try get information from the bank and requested the sale in execution and judgement once again - their reply was there is not documents as they were destroyed and they do not have any copies but the judgment stands.

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## Tired Dez

Good day, Please can I ask how would one institute a counter claim with the plea?

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## pmah1326

Hi I really need some help. I purchased a BMW on residual and struggled but paid all but 2 premiums out when the residual payment date arrive in NOV 2018. My efforts to ask the credit provider for further extension to finance was unsuccessful. I then proceed to ask the NCR and Motor Industries ombudsman for advice and that was  no help either. The vehicle packed up 4 days before the date of payment for the residual. It was towed to my premises were it stood. I have been a terrible financial downturn since beginning 2017  and had no income coming in my wife tried her best to help us considering our losses. I sent communication via email and telephonically to BMW to collect their car as i was in no position to have the vehicle towed to them. Since end November till today 22 May i have not had any formal communication from them or signed any documents. I understand that the summons can be served any how they please but i noticed the following my gender is incorrect in the document, the financial services made a mistake on the engine no. on the documents when selling me the car and now added this a amendment to summons claiming accepted this as part of the deal. Which i never did! The recent recall on all models of BMW internationally also is something i was aware about and this is the problem I complained about to the servicing agents when the car was last serviced. The vehicle has been parked off in my yard since and now i am being served. I requested them to recover the vehicle and was not willing to sign any documents until then. I don't know what to do as i am in no position to fight financially or pay off the debt as i have been self employed and the business completely failed leaving me in a very bad position. Please advise me i don't  want a judgement and i was willing to sell the car and pay the difference to them settle the outstanding, which i emailed to the collections department.

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## Edgar

Hi, not sure or I can add my "Notice to defend" problem here?
On the "Notice to defend" we FORGOT the small print at the bottom or last paragraph, where it say (Give full address for acceptance of service of process or documents..........)
Then two days later the Plaintiff who is a Lawyer, send us a email that say; 
1) You aforesaid notice does not comply with rule 13(3(b), 
2)You are requested to indicated and consent within 3 days to accept service of notice at this email address ......................(my email)
THE QUESTION, How do we rectify this, 
1) Just send a email to the plaintiff 
2) Redone a "Notice to defend" complete, let the plaintiff sign and hand it in at the court with the letter from the plaintiff recieved

Please if any one can advice us, this must be in by Monday 4 May
Thank you 
Edgar

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## clubber

Hi All

Thank you all the valuable information. The documents are a huge help. After I provide the court registrar with my intention to defend, I will be required to provide the courts with either a plea (but I don't understand what I would plead to or with?). What is an exception and a notice to strike out? I do not have the terms yet from my wife's lawyers so what do I do to plea or make an exception? I cannot afford a lawyer so am representing myself inn the high court. I am trying to obtain a fair split of assets which is not currently the case. I am well prepared, bar the court documentation and understanding of the legalese. My assets are also being sold off while this process is taking place. How can I stop this from happening? I would really appreciate some help and advice. Really appreciated.

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## Citizen X

A very good morning to you Clubber,

I have sent yo a private message.




> Hi All
> 
> Thank you all the valuable information. The documents are a huge help. After I provide the court registrar with my intention to defend, I will be required to provide the courts with either a plea (but I don't understand what I would plead to or with?). What is an exception and a notice to strike out? I do not have the terms yet from my wife's lawyers so what do I do to plea or make an exception? I cannot afford a lawyer so am representing myself inn the high court. I am trying to obtain a fair split of assets which is not currently the case. I am well prepared, bar the court documentation and understanding of the legalese. My assets are also being sold off while this process is taking place. How can I stop this from happening? I would really appreciate some help and advice. Really appreciated.

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## Mamokete

Hi.I need info and advice of what the next step is after filing notice to indented to defend. 
I received summons (mortgage related) and within the 10 days I file for that I dont have a clue whats next apart from what o read here and few of my research.

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## Citizen X

> Hi.I need info and advice of what the next step is after filing notice to indented to defend. 
> I received summons (mortgage related) and within the 10 days I file for that I dont have a clue whats next apart from what o read here and few of my research.


LTC Harms, from his leading book Amlers Precedents of Pleadings, can best answer your question:




> Pleadings and *love letters* have much in common: both are personal and reflect somewhat of the authors personality. Precedents in either instance are dangerous because they tend to be inapplicable to the facts under consideration. Each sets out and explains the position of the parties involved. If too much or too little is said, problems arise. They provide embarrassing evidence of the original perceptions and intentions of the author and never please successors in title.
> LTC Harms, Pretoria. February 2015
> To add, a plea is a brief, clear, concise answer to each individual paragraph of allegation found in either the simple summons or the combined summons.


Look at the example:
Suppose the combined summons includes the following as the first four paragraphs.
1.
The Plaintiff is  ABC bank, a bank registered in terms of the laws of South Africa
2.
The Defendant is Jack Joap Soap supply, a Close Corporation, duly registered in terms of the laws of the Republic of South Africa which is situated at Pretoria

3.

On or about October 2020, the parties entered into a written agreement for a specialized service, for the supply of liquid soap
4.
The Plaintiff was represented by Mr D  and the Defendant was represented by Mr H.  
5. On or about November 2020, the defendant breached the contract by no supplying the soap.
This is how it must be answered in practice in the plea

AD PARAGRAPH 1 THEREOF
The defendant admits the contents of this paragraph. 
AD PARAGRAPH 2 THEREOF
The defendant admits the contents of this paragraph
AD PARAGRAPH 3 THEREOF
The defendant admits the contents of the of this paragraph
AD PARAGRAPH  4 THEREOF
The defendant denies the contents of this paragraph, as if specifically traversed and puts the plaintiff to the proof thereof. The defendant submits,  the Plaintiff breached the contract. The Defendant submits as his defence _exception non adempleti contractus

_ :Offtopic: 

 Lately I've been quite  reluctant to state things as they randomly just appear in mind, lest it be misinterpreted!(will explain later, it has everything to do with the communication model, and a problem with decoding because of different channels of communication.)

See I've identified the exact problem!

Sometimes when you really admire and look up to an author for instance one may employ certain words and phrases that they use. Since this is a apparently a crime equivalent to High Treason. I'll refrain from doing so going forward.


*In this instance I have the emails as evidence though!
*
When I was in my first year of law school I wanted to know literally everything! It was beyond the remit of a first year law student to be familiar with pleadings. I was very familiar because I researched several books on the matter. The complex area of law were not my problem. It was the small things.

I didn't know what " AD," in "AD paragraph 1 meant. So I emailed all my lecturers at the time. They couldn't answer me. This nagged at me for several months.

I got my answer from solving a different riddle. I was into Biblical eschatology as at this time. I knew what BC meant, but couldn't reconcile AD to certain important years as I thought that it meant "After the death of Christ;" I did get my answer. "AD," means "in the year of the Lord."

The implication is that "AD paragraph 1," means *in* paragraph 1 of the plaintiff's summons.

My lecturers were shocked when I emailed them this explanation! They said _inter alia th_at after years of practicing law they never thought about it!

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## Citizen X

:Offtopic:  :Sorry: 

Communication at the best of times, in person, can be misinterpreted!


This book was given to me by a lady with the initial L.





Communication is any process where one individual, known as the sender sends through a channel to someone else known as the receiver.[1] There are many barriers to effective interpersonal communication.[2] These barriers include perceptual barriers, psychological barriers, physical barriers, physiological barriers and semantic barriers.[3]

To illustrate, suppose there is a one sender and one receiver The sender is a truck driver who uses an old school CB radio. The receiver is deliberately confined to communicate back only via an advert in the paper. 
It would be nothing short of extraordinary if they could communicate effectively without misunderstanding each other.

You know this gives me two ideas both related to effective communication.

Firstly, someone should start a threat in the business section of TheForumSa entitled “The problems and challenges of communicating in the business world,” and secondly, Advertising and sales promotion that vie for your attention.

I’ll tell you what I’ll start the second one. Someone in TheForumSa please start the first 


[1] Staden Ev  _et al_ _Corporate communication_ (Van Schaik Publishers Pretoria 2002) p 12.

[2] Staden Ev  et al Corporate communication (Van Schaik Publishers Pretoria 2002) p 30.

[3] Staden Ev  et al Corporate communication (Van Schaik Publishers Pretoria 2002) p 34.

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