Chapter 12... ready - Judgement at an early stage. PDF

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Judgement at an early stage. ...

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CHAPTER 12 – JUDGMENT AT AN EARLY STAGE AND STAY OF PROCEEDINGS Summary BASIC STEPS TO ACTION PROCEDURE: Plaintiff issues SUMMONS Defendant delivers a NOTICE OF INTENTION TO DEFEND and EXTRA STEPS Defendant delivers PLEA Plaintiff delivers a REPLICATION Litis contestatio

Intention to Defend OPTIONS AVAILABLE TO DEFENDANT AFTER RECIEVING SERVICE OF SUMMONS: 

A main options available:  Defendant can refrain from defending action (plaintiff can apply for default judgment)  Defendant may defend actions (plaintiff may apply for summary judgment if defendant has no bona fide defence)  Defendant can comply with plaibtiff’s claim  Defendant may consent to judgment (MC) or confess to judgment (HC)

DEFENDANT DEFENDS THE ACTION: 

Defendant issues a notice of intention to defend  Ie: he files a notice with the registrar/ clerk of the court and delivers a copy of the notice on the plaintiff  Deliver the notice NOT issue  It is not a pleading

Legal effect of notice:  Places the defendant’s attorney as the attorney on record  Implication = attorney will have to formally withdraw as attorney of record by issuing a notice of intention to withdraw INTENTION TO DEFEND IN HC:

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Dies induciae:  HCR 19:  Must be delivered within 10 court days after receiving the service of summons  If state = 20 court days  Does not include court recess/ weekends/ public holidays (= dies non)  FOLI principle  S27 SC Act provides for a situation where summons is served outside the court’s jurisdiction – time limits are  14 calendar days (place is within 100miles/160km of court)  21 calendar says (place is further than 100miles/160km away from court)

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Content of notice:  Must inform the plaintiff that the defendant will contest the matters  Must appoint and address for the acceptance of all service of processes (8km rule)  Defendants residential or business address

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Effect of Notice:  Mere fact defendant enters into a notice of intention to defend does not mean that he waives any of his rights to raise an irregularity in proceedings / object to court’s jurisdiction etc  Can still issue a notice of intention to defend after expiry of dies as long default judgment has not been granted  If plaintiff already applied for a default judgment and defendant delivers notice after prescribed period – plaintiff will not be allowed to proceed with default judgment but will be entitled to the costs of an unsuccessful default judgment application

INTENTION TO DEFEND IN MC: 

Dies induciae:  Same as HC:  Must be delivered within 10 court days after receiving the service of summons  If state = 20 court days  Does not include court recess/ weekends/ public holidays (= dies non)  FOLI principle  Does not distinguish between inside/outside courts area of jurisdiction

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Content of notice:  Must inform the plaintiff that the defendant will contest the matters  Must appoint and address for the acceptance of all service of processes (15km rule)  Defendants residential or business address PLUS additional info (vs HC)  Appoint a postal address  Plus parties may agree to appoint an electronic address for the service of processes

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 Electronic addresses  Defendant can ask plaintiff whether he will accept service of processes by electronic mail  State his preferred method of service  Plaintiff may consent to the electronic service in writing  If plaintiff refuses – defendant can apply for consent from the court  Defendant must still appoint the 15km address

Judgment at Early Stage GENERAL: 

Normally judgment is granted at the end of the trial procedure

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However, there are certain exceptions where judgments are granted at an earlier stage:  Default judgment

 Summary judgment  Consent / confession to judgment

Default Judgment WHAT IS A DEFAULT JUDGMENT: 

= A short cut judgment

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2 forms of default judgments based on:  Defaults on appearance  Default on pleadings Default:  Is when a party fails to deliver and file a document/ pleading within the prescribed time limits  OR when a party fails to appear in court  Remedy to opposing party = may follow certain steps and request a default judgment be granted

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Default judgment:  Is a judgment taken against a party who is in default  Without hearing the version of such a party

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Result of a default judgment:  = The speedy conclusion of a matter  Pleadings phase is cut short  No preparation for trial or trial stage takes place

DIFFERENT GROUNDS/ TYPES OF DEFAULTS: 

In the HC, default judgment may be taken on the following grounds:  Failure of defendant to deliver a notice of intention to defend  Failure of defendant to deliver a plea within prescribed time limits  Failure of plaintiff to deliver declaration  Failure of the plaintiff to plea against defendant’s counterclaim  Failure of a party to appear at trial

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In the MC, default judgment may be taken on the following grounds:

 Failure of the defendant to deliver a notice of intention to defend  Defendant’s defective appearance to defend  Failure of defendant to deliver a plea within prescribed time limits  Failure of the plaintiff to plea against defendant’s counterclaim  Failure of a party to appear at trial FAILURE TO DELIVER A NOTICE OF INTENTION TO DEFEND: 

= Most common situation

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Content of the application for default judgment:  Request is accompanied by the original summons and return of service  Request must allege that the defendant did not deliver a notice of intention to defend within prescribed limits Procedure to apply for a default judgment, in both the HC and MC, due to failure to deliver the notice of intention to defend = depends on the NATURE of the claim  Ie: debt/ liquidated amount VS unliquidated amount

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What is a debt/ liquidated amount:  = a claim for a fixed/ certain/ ascertained amount or thing  Note – may granted by the registrar/ clerk of the court

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What is an unliquidated amount:  = a claim for damages  Note – cannot be granted by registrar/ clerk of court – must be granted by a judge in the HC

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Procedure for a debt / liquidated amount in HC:  Regulated by HCR 31 (5)(a)  Plaintiff may lodge a written request for default judgment to the registrar of the court no notice needs to be given to defendant  Thus, it takes place administratively in the chambers of the registrar  Purpose/ reason for this rule = to relieve the workload/ burden of judges and to allow the

registrar to assume the burden of deciding uncomplicated default requests  Registrar must place any judgment/ direction decided upon on record  Party not satisfied by the judgment/ direction can apply to the court within 20days after receiving notice of such judgment/ direction, to have it set aside based on good cause shown  Options for a Registrar when dealing with a request for default judgment – ie: he/ she may:  Grant the judgment as requested  Grant judgment for only part of the claim or on amended terms  Refuse judgment completely or partially  Postpone judgment on reasonable terms  Request or receive oral or written submissions  Requires that the matter be set down for hearing in an open court  Grant judgment for costs 

Procedure for an unliquidated amount in the HC:  Regulated by HCR 31(2)(a)  Matters must be set down for hearing before an open court  The matter is argued formally by council  No notice needs to be given to defendant  Evidence must be led to prove the plaintiff/s cause of action or the quantum of damages

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Procedure for a debt / liquidated amount in MC:  Plaintiff may lodge a written request for default judgment with the clerk of the court  Ie: default judgments are dealt with by judgment clerks and not heard before the court  The request is discussed in chambers  No notice needs to be given to defendant  No evidence needs to be led

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Procedure for an unliquidated amount in the MC:  Matters must be set down for hearing before court  Cannot be granted by the clerk  NOT granted in an open court – it is done by the magistrate in his chambers  Party must adduce evidence regarding quantum of damages  Evidence must either be oral or by way of affidavit

 Affidavit – normally attached to request and deponent must be an actual expert – ie: a person who is qualified to testify to the actual nature and extent of damage DEFENDANT’S FAILURE TO FILE A PLEA: 

Procedure = similar to procedure for application for default judgment with regards to failing to enter into an appearance to defend  EXCEPTION – only difference = that default judgment for failure to deliver a plea within prescribed dies CANNOT be applied for immediately  First have to deliver a NOTICE OF BAR

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What is a Notice of Bar:  = A notice calling on the defendant to enter into a plea within 5 court days  Failing which he will be ipso facto barred from delivering the plea

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Content of the application for default judgment:  Request is accompanied by the original summons and return of service  As well as with the notice of bar and acknowledgment of receipt/ proof of dispatch  Request must allege that although the defendant delivered a notice of intention to defend – he failed to enter into a plea timeously despite having been served with a notice of bar

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Procedure in HC:  Defendant fails to deliver plea within prescribed dies  First – plaintiff must deliver a Notice of Bar in terms of HCR 26, after 20 days after notice of intention to defend was delivered, giving defendant 5 court days to file his plea  Defendant still fails to deliver plea = ipso facto barred from pleading  Plaintiff can then apply for default judgment (notice of application MUST be given to defendant)  Application for default judgment = same as application when failing to deliver a notice of intention to defend (see above)

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Procedure in MC:  Defendant fails to deliver plea within prescribed dies  First – plaintiff must deliver a Notice of Bar in terms of MCR 12(1), after 20 days after notice of intention to defend was delivered, giving defendant 5 court days to file his plea  Defendant still fails to deliver plea = ipso facto barred from pleading  Plaintiff can then apply for default judgment (NO notice needs to be given to defendant)  Application for default judgment = same as application when failing to deliver a notice of intention to defend (see above)

PLAINTIFF’S FAILURE TO FILE A DECLARATION: 

Occurs both in the HC and in the MC  HCR 31 and MCR 15

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Failure of plaintiff to file the declaration to the simple summons – defendant must deliver a Notice of Bar calling on plaintiff to deliver declaration within 5 court days

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Failure = ipso facto barred from filing declaration

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The defendant may then apply for either:  Absolution from the instance (because plaintiff has not proved claim in simple summons) OR  Judgment calling for the claim to be dismissed

DEFENDANT’S DEFECTIVE APPEARANCE TO DEFEND: 

Only occurs in the MC – the defendant’s appearance to defend must be defective

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Dealt with in new MCR 12(2) which stipulates that:  Clerk will not grant a default judgment immediately when the plaintiff applies for it

 Plaintiff must first give the defendant written notice of the defect and afford him 5 days to correct such defect  Only if defendant fails to correct defect after 5 days then default judgment will be granted 

Examples of defects:  It is not properly delivered  It is not properly signed  It does not set out the postal address or person signing it or address for service  Has to or more defects relating to form

PLAINTIFF’S FAILURE TO FILE A PLEA AGAINST THE DEFENDANT’S COUNTERCLAIM: 

Regulated by HCR 24 and MCR 20

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Plaintiff must deliver a plea to defendant’s counterclaim within prescribed dies  If not – defendant must deliver a Notice of Bar calling on plaintiff to deliver plea within 5 court days of receipt of counterclaim  Failing which = plaintiff is ipso facto barred from filing plea  Defendant may then apply for a default judgment on the counterclaim

FAILURE OF A PARTY TO APPEAR AT TRIAL: 

Applies to both application and action procedure

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Regulated by HCR 39(3) and MCR 32(1)

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Procedure in HC:  If plaintiff fails to appear in court – P.O may grant:  Absolution from the instance  A final judgment in favour of defendant (thus no similar proceedings can be instituted by plaintiff against defendant)

 If defendant fails to appear in court – P.O may:  Allow plaintiff to prove claim  Grant a default judgment 

Procedure in MC:  If plaintiff fails to appear in court – P.O may dismiss application with costs (ie: absolution from the instance)  If defendant fails to appear in court – P.O may grant a default judgment without costs  May = Discretion of the P.O

Non-Compliance with and Deviation from the Rules GENERAL: 

Purpose of rules of court = to ensure:  The orderly course of litigation proceedings  And that all procedural steps comply with the requirements of form and the prescribed time limits  The convenience of courts and the proper administration of justice

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However, this does not mean that such rules must be applied inflexibly:  In exceptional circumstances parties can deviate from the prescribed rules and it would be unfair to hold them in rigid compliance  Thus, provision is made for the non-compliance with the rules and condonation by the court in certain circumstances based on good cause shown  Also, parties themselves can agree to extensions of time, or the removal of a sanction of non-compliance etc...

High Court

GENERAL: 

Different situations of non-compliance can be distinguished:  Notice of Bar  Discharge of Bar or extension by agreement  Discharge of bar, extension of time and condonation  Application to compel

NOTICE OF BAR: 

HCR 26:  If any party fails to file ‘any pleading’ within the prescribed dies  Opposing party must serve a notice of bar on the defaulting party  Calling on them to deliver the pleading within 5 days of receipt of such notice  Failing which, defaulting party will be ipso facto barred from delivering such a pleading thereafter

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Exception:  When defaulting party has failed to deliver a replication or subsequent pleading within the prescribed dies  The party is then under bar ipso facto  No notice of bar is required

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Effect of the notice of bar:  If defendant is barred from filing a notice of intention to defend or plea = disbarred from placing any defence to the merits before the court  If plaintiff is barred from filing a declaration = prevented from presenting its case before the court  Any defendant/ plaintiff that is barred may not file any pleading – and registrar may not accept any pleading without a court order  If party is barred from delivering a replication or subsequent pleading – only barred from such and cannot be prevented from appearing in trial

DISCHARGE OF BAR OR EXTENSION BY AGREEMENT: 

HCR 17(1):  Litigating parties may always consensually agree on the removal or discharge of bar OR  The extension or abridgment of a time period to take an essential procedural step

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Forms part of ‘party control’ which regulates the SA civil litigation process

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Refusal to agree to removal of bar will NOT necessarily lead to an award of costs against that party – unless refusal was unreasonable

DISCHARGE OF BAR, EXTENSION OF TIME AND CONDONATION: 

HCR 27(1) and (2):  If non-defaulting party refuses to consent to removal of bar or extension of a prescribed time period  Defaulting party may apply to the court requesting an order of discharge of the bar or extension of the time periods

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HCR 27(3):  Court is authorised to condone no-compliance with the rules  ONLY if it would not result in flagrant breach of the rules or defeat the object of the rules

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In order to succeed – Applicant must show good cause and that the application is bona fide and not frivolous  It = an application  Notice of motion + founding affidavit  4 requirements must be complied with (Smith v Brummer):  Must contain a reasonable explanation for the Applicant’s default  That the application is bona fide and is not made with the intention to delay the opposing party’s claim  That there has been no reckless disregard for the rules

 Opposing party will not be prejudiced by the granting of the application APPLICATION TO COMPEL: 

Certain rules allow a party to approach the court, in order to compel a party to take a certain procedural step, eg:  Compel further particulars – HCR 21(4)  Compel discovery of documents – HCR 35

Magistrate’s Courts GENERAL: 

Main rule = MCR 60  Read together with certain specific rules

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MCR 60:  Non-compliance with rules of MC  Time limits and errors  Interlocutory applications:  MCR 60(2) = application to compel compliance  MCR 60(3) = application for judgment

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MCR 60(5):  Time periods can be extended by written consent of parties (except appeals in terms of MCR 51)  No consent between parties – same as HC above...