The Plea & Special Plea

[Rule 20] A plaintiff who delivers his plea may decide to file a counterclaim. Enables the defendant to obtain an order against the plaintiff. Also known as a claim in reconvention. The claim may have arisen out of the same facts as the plaintiff or be unrelated.

Same rules apply to a counter claim as the claim in convention. Except: - CC need not be served by the sheriff.

no need to respond to it with a NID have 10 days to respond to the CC.

Note

that the claim in convention and the claim in reconvention are 2 separate claims, that are heard in one.

A plaintiff faced with a counterclaim becomes the defendant in reconvention. S/he then files a replication to the counterclaim/plea within 15 days (rule 21(1)). Same rules as in convention apply. A defendant in reconvention cannot however institute a new claim with his plea.

The replication may not be a bare denial (Rule 21(2)). Failure to address allegation raised in a plea or subsequent pleading operates as a bare denial of its contents. Replication is therefore only necessary where you wish to add something to the defendant's plea. May deliver further pleadings provided that it is not a mere joinder of issue or denial.

litis contestatio Means litigants have reached finality in all the allegations of fact forming the basis of their respective cases. parties are noe ready to prepare for trial.

Pleadings deemed to be closed when (Rule 21A):

- no further pleadings
- last day for filing a replication has elapsed - parties agree in writing that pleadings are closed. - parties cannot agree that pleading closed then court decides upon application that they have closed.

After close of pleadings, plaintiff has the responsibility of obtaining a court date to hear the matter. The date is ascertained from the clerk of the court . The case is then enrolled for trial by the filing of a Notice of Set Down. Notice of set Down must be delivered at least 20 days before the trial. If plaintiff fails to do so within 15 days of litis contestatio, the defendant may do so.

Pete

& Hulme pg 179 - 200 Eckard pgs 178 -192 Jones & Buckle (old Rule 19) Course Handout