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PLEADINGS PACK : 20185

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INDEX : PLEADINGS : 2015 ANNEXURE: PLEADINGS A.

INTRODUCTION TO THE DRAFTING OF PLEADINGS

CASE STUDY: FACTS

5 11

PART 1: THE PLEADING PHASE IN THE MAGISTRATE'S COURT a)

Framework

b)

Interim steps that the parties can consider during the pleading stage in the

c)

d)

17

magistrates court

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Theory - Motor Vehicle Accident

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i) Cause of action

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ii) Defense

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Exchange of pleadings in defended motor vehicle collision until litis contestatio Example 1 Summons commencing action (Ordinary)

21 21

2 Particulars of Claim

25

3 Notice of Intention to Defend

27

4 Request for Further Particulars ito Rule 16 of Act 32 of 1944

28

5 Application in terms of Rule 60(2)

30

6 Notice of Application in terms of Rule 60(3)

31

7 Notice of Bar

32

8 Plea

33

9 Plea to Counterclaim

36

10 Notice of Set Down for Trial

37

11 Notice in terms of Rule 23(1), (3) & (4)

38

12 Discovery Affidavit

40

13 Notice in terms of Rule 24(9)(a) and (b)

44

14 Request for Inspection of Object in terms of Rule 24(6) and (7)

46

15 Notice in terms of Rule 24(10)

47

16 Agreement Not to Appeal

49

2 MAGISTRATES COURT PLEADING: DEVIATIONS

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Scenario One: Defective Summons Example 17 Summons Commencing Action 51 18 Particulars of Claim

55

Scenario One: Exception Example 19 Notice in terms of Rule 17(5)(c) 20 Notice of Exception

57 59

Scenario One: Amendment Example 21 Notice of Intended Amendment ito Rule 55A

61

22 Application for Amendment ito Rule 55A(4)

63

Scenario Two: Failure to enter an Appearance to Defend, Default Judgment Example 23 Application for Default Judgment

64

24 Affidavit in support of Application for Default Judgment ito Rule 12(4)

66

Scenario Three: Application for Summary Judgment and Opposing Affidavit Example 25 Application for Summary Judgment

68

26 Supporting Affidavit

69

27 Opposing Affidavit

70

Scenario Four: Where Defendant requests copies of Accounts and Documents Example 28 Notice ito Rule 15(1) 29 Plaintiff's reply to Defendant's request ito Rule 15(1)

72 73

Scenario Five: Where Plaintiff is a company, Defendant would be able to request security for costs Example 30 Request for Security for Costs ito Rule 62(1) of Act 32 of 1944 31 Notice in terms of Rule 62(2)

74 75

Scenario Six: Where a party requests reason for the judgment and decides to appeal Example 32 Request for Reasons for judgment ito Rule 51

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Scenario Seven: Notice of Appeal

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Example 33 Notice of Appeal PART II: THE ACTION PROCEDURE IN THE HIGH COURT a)

Framework

b)

Interim steps that the parties can consider during the pleading phase

80

3 in the High Court

81

(1) DAMAGES ACTION IN THE HIGH COURT Example 34 Notice of Motion (Appointment of curator ad litem)

83

35 Draft Order

85

36 Founding Affidavit

88

37 Letter of Consent

91

38 Notice of Set Down

92

39 Combined Summons

93

40 Return of Service

98

41 Appearance to Defend

99

42 Notice ito Rule 36(4)

100

43 Notice of Offer of Settlement ito Rule 34(1) & (5)

101

44 Reply to Notice ito Rule 36(4)

102

45 Defendant’s Plea

104

46 Notice of Application for a Trial Date

107

47 Notice of Set Down

108

48 Notice ito Rule 35(1)

109

49 Notice ito Rule 35(10)

110

50 Notice ito Rule 35(8)

111

51 Notice ito Rule 36(9)(a)

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52 Notice ito Rule 36(10)

113

53 Notice ito Rule 36(9)(b)

114

54 Subpoena

115

55 Notice ito Rule 36(1) & (2)

116

56 Notice ito Rule 36(9)(a) and 36(9)(b)

118

(2) THE DIVORCE ACTION Theory: The Divorce Action

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Example 57 Combined Summons

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58 Deed of Settlement

124

59 Notice ito Rule 35(1), (8) and (10)

126

60 Notice ito Rule 37(1)(a)

127

61 Notice ito Rule 43

129

62 Affidavit

130

63 Defendant’s Plea

133

4 PART III : PROVISIONAL SENTENCE Theory: Provisional Sentence: Cheque

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Example 64 Summons

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PART IV : AGENT’S COMMISSION Theory: Agent’s Commission

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Example 65 Particulars of Claim

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PART V : INTERDICTS AND SPOLIATION Theory: Interdicts and Spoliation

144

Example 66 Founding Affidavit

146

PART VI : SEQUESTRATION AND REHABILITATION APPLICATIONS Theory : Voluntary Surrender

148

Example 67 Application Voluntary Surrender

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Theory: Compulsory Sequestration

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Example 68 Application Compulsory Sequestration

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Theory: Rehabilitation

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Example 69 Application Rehabilitation

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PART VII : ENTRY AND WITHDRAWAL AS ATTORNEY OF RECORD Example 70 Notice of Entry as Attorney of Record

162

PART VIII : SPECIAL PLEA Example 71 Defendant’s Special Plea

164

PART IX : NATIONAL CREDIT ACT 34 OF 2005 Theory: Debt recovery

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Example 72 Section 129 notice

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Example 73 Particulars of claim

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ANNEXURE “A”

177

New High Court Name ANNEXURE “B”

179

Magistrate’s Court Application ANNEXURE “C”

187

High Court Application ANNEXURE “D”

204

Causes of Action ANNEXURE “E” Legal Research Sources

213

5 A.

INTRODUCTION TO THE DRAFTING OF PLEADINGS

“The more you practice, the luckier you get.” (Gary Player) 1.

The use of pleadings, notices and other related documents The South African System of Civil Procedural Law is based on the principle of exchange of written documents in compliance with the audi et alteram partem principle. This litigation technique promotes effective litigation as parties are notified of each other’s case. An orderly litigation process saves time and reduces legal costs as a party does not attend the trial without prior knowledge of the case. In King v King 1971 (2) SA 630 (O) it is said that the function of pleadings is: a) b) c)

To inform the parties what the issues are in order to prepare for the trial. To inform the court of the issues in order to know the extent (scope) of the dispute. To place the issues on record in case one of the parties wishes to reopen the same issues after it had already been decided.

It is important that the issues are set out in the pleadings precisely and with sufficient particularity so that it will also be clear to somebody other than the litigants what the dispute is about. Preciseness should however not be equated with furnishing of unnecessary detail. In principle the pleadings must be drafted in such a manner that it will be so precise and correct that amendments are unnecessary. In order to attain this goal the golden rule in the drafting of legal documents is: Consult properly, obtain all the facts, ensure that you know precisely what your mandate is and know the substantive law applicable to the specific circumstances. In so doing the necessity to amend in order to prevent embarrassment and damages is greatly eliminated. 2.

General Principles Applicable to the Drafting of Legal Documents a)

Use of language and words Although it is convenient to merely make use of precedents of legal documents, slavish application of precedents may sometimes be detrimental. It is better to develop and improve the skill of drafting of legal documents by regular exercise and meticulous analysis of the facts and required relief in each unique situation. The law consists of various fields of speciality which are often very technical in nature and include sui generis legal terminology. Elaborate poetical attempts to formulate issues will not suffice. You must give prior consideration to each statement that you make in a legal document: you must thus take care that you are fully aware of why you are making the statement in other words – what do you wish to attain thereby? The purpose and consequences of the statement must thus be taken into consideration. When you eventually formulate the statement, the language employed must be unambiguous, clear and concise.

6 b)

The Heading The importance of the heading of a pleading must never be underestimated. The drafting of the heading represents the initial phase in the drafting of pleadings and notices. You must take care that the heading indicates the following: i) ii)

iii) iv)

c)

In which specific court the case is adjudicated. The case number (a wrong case number can have the chaotic consequence that the document which you file at court is not placed on the correct court file). The party or parties (it must be indicated who is plaintiff and defendant or applicant and respondent respectively). The type of document must be identified (eg. Application for Summary Judgement or Plea).

A practical approach to the drafting of the contents of legal documents As already indicated, the golden rule for the proper drafting of pleadings is that you must consult properly and acquaint yourself with the facts. You must also take care to acquaint yourself with the applicable law in order to make an informed decision regarding the existence of a cause of action or defence as the case may be. You can then set out the main points of the claim or defence and ensure that you set out all the facta probanda necessary to support the claim or defence. What you must thus do, put simply, is to set out in legal language the “story” of your client’s claim or defence. As with any story it is important to have an orderly chronological course. You must thus elaborate the main points that you have identified to such an extent that it will amount to a clear and concise explanation of the material fact and that it will justify the legal conclusion and desired relief. You must guard against mentioning unnecessary and immaterial facts in your pleadings. You are for instance, not supposed to quote a section of an Act fully in your pleading. You may however refer to a relevant section, eg. section 11 of the Credit Agreement Act 75 of 1980.

3.

The Action Procedure: Principles with regard to the drafting of specific pleadings a)

The Summons The general rule is that the plaintiff ought to include in the particulars of claim only those particulars in respect whereof he or she bears the onus (eg. if the plaintiff sues as a result of assault, he need not also allege the lack of grounds of justification).

7 b)

The Plea In the plea you must indicate which of the allegations contained in the plaintiff’s particulars of claim or declaration you: admit; deny; confess and avoid. You must indicate which facts are not admitted and to which extent and you must clearly and concisely mention all material facts whereupon the defence is based. The following important rules must be borne in mind when you draft a plea: i)

ii) iii)

iv)

v) vi)

c)

Deal in paragraphs with each allegation that the plaintiff makes in his particulars of claim. Decide whether you must admit or deny such allegation or confess and avoid. If you fail to deal with an allegation, that allegation is deemed to be admitted. You must for example state: ad paragraph one of plaintiff’s particulars of claim: defendant admits the contents of this paragraph. Never admit an allegation unless you are sure that it is in accordance with your instructions. It is possible to include a so-called “non-admission” in a plea. Examples of a non-admission are: aa) “Defendant has no knowledge of the allegations contained in this paragraph cannot admit orderly same and puts plaintiff to the proof thereof”. or bb) “Defendant has no knowledge of the allegations contained herein and thus denies same”. You must take care that you are acquainted with the substantive law applicable to the specific case when you draft a plea as certain defences must be pleaded specifically eg. a lack of authority. In such a case a mere denial will be insufficient. You must set out the material facts of your defence clearly and concisely. You must include a prayer in the plea wherein you request that the plaintiff’s claim be dismissed with costs (or alternatively reduced eg in accordance with the Appropriation of Damages Act).

The Replication/Reply It is not necessary to deliver a replication/reply as in case of failure to deliver same it is deemed that the plaintiff in any event denies the allegations in the defendant’s plea. Depending on the facts of the specific matter, it may be necessary for the plaintiff in specific situations to reply to allegations contained in the defendant's plea eg. where the defendant pleads lack of authority and the plaintiff wishes to raise a special plea.

8

You must bear in mind that the replication/reply may not introduce a new cause of action and may not deviate from the original particulars of claim or declaration. In drafting the reply it is important to use paragraphs when dealing with the allegations in the defendant’s plea which the plaintiff wishes to reply to. d)

Counterclaim The counterclaim is in principle a claim and the drafting of the counterclaim ought to comply with the same requirements as those that are important when drafting particulars of claim. The concepts “plaintiff in reconvention” and “defendant in reconvention” often creates confusion. It is therefore purposive to avoid such confusion by indicating at the commencement of the counterclaim: “Brevitas causa/For purposes of convenience, the parties are referred to as in convention.” Such allegation then has the effect that you refer to the plaintiff throughout the pleadings as plaintiff and to the defendant as defendant for purposes of convenience although it is clear to the parties and the court that the plaintiff and defendant has claims against each other. Where the plea and counterclaim arise from the same set of facts, it is also possible, for purposes of convenience, to make use of cross-reference.

e)

Exceptions The extent of the detail that you must mention in the notice of exception will depend on the document that you are excepting against.

You must bear the following in mind: i)

ii) 4.

You are bound to the grounds of exception mentioned in your notice of exception. It is therefore advisable to make the basis of your exception as wide as possible to ensure that you cover all possible grounds of exception. Guard against making the grounds so wide that they become vague. You must take care to clearly mention the legal relief you desire.

The Application Procedure: Rules applicable to Applications a)

General You must take care to use the correct form of the notice of motion. When an application is of such a nature that the respondent must get prior notice of the

9 application you must not incorrectly use the ex parte form of the notice of motion. You must thus correctly indicate the type of notice of motion that you are using and take care to indicate the relevant information, as mentioned in (b) herein. You must also bear the following in mind: i)

ii) iii)

b)

i)

Are you requesting interim or final relief? You must thus ascertain which role the eventual prospects of success will play in order to decide to which extent you must address that aspect. Do you refer to documents? If so, it must be attached to the affidavit. Do you refer to facts that do not fall within your personal knowledge? If so, you must take care to obtain supporting affidavits by those persons in whose knowledge such matters do fall. Ex parte application: Notice of motion You must indicate the following:

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Heading Notice to the Registrar/Clerk of Court that a specific application will be made in a specific day and time to a specific court. Indication of the legal relief that will be requested. Reference to the attached supporting affidavit. Request for enrolment.

ii)

Application with prior notice

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Heading Notice to Registrar/Clerk of Court and respondent that a specific application will be made on a specific day and time to a specific court Reference to attached supporting affidavit Request for enrolment Time within which respondent must oppose Applicant and respondent’s addresses for purpose of service Consequences of failure to oppose

iii)

Interim applications

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Heading Notice to Registrar/Clerk of Court and respondent that specific application will be made to court on specific day and time Indication of the desired legal relief Reference to attached supporting affidavit (if applicable) Request for enrolment

-

c)

Affidavits in support of applications

10 The following general allegations must be contained in such affidavit: i) ii) iii) iv) v) vi)

Names and addresses of applicant and respondent (if applicable) That the applicant has locus standi That the court has jurisdiction Material fact whereupon the application (or opposition thereof) is based If reference is made to documentary evidence, the document must be attached Prayer for legal relief.

Note: Only admissible evidence may be contained in the affidavit. d)

Important aspects regarding the drafting of the affidavit You must bear the following aspects in mind when drafting the affidavit: i) ii) iii) iv)

v)

vi)

e)

To what is the applicant (or respondent) entitled? Does the order that you request cover everything that is necessary to render the legal relief effective? An answering affidavit should not only consist of denial of the allegations contained in a founding affidavit. When replying to a founding affidavit, it is not necessary for the respondent to deal seriatim with each of the allegations in the funding affidavit. The answering affidavit must however deal with all the material allegations contained in the founding affidavit in a logical orderly manner so that the respondent’s defence is clear. With replying affidavits it must be remembered that the general rule is that the applicant must make out his case in his founding affid...