TLI Pleadings Pack 2010

PLEADINGS PACK : 2010
INDEX : PLEADINGS : 2010
ANNEXURE: PLEADINGS
A. INTRODUCTION TO THE DRAFTING OF PLEADINGS 5
CASE STUDY: FACTS 11
PART 1: THE PLEADING PHASE IN THE MAGISTRATE'S COURT
a) Framework 17
b) Interim steps that the parties can consider during the pleading stage in the
magistrates court 18
c) Theory - Motor Vehicle Accident 19
i) Cause of action 19
ii) Defense 20
d) Exchange of pleadings in defended motor vehicle collision until litis
contestatio 21
Example 1a Letter of demand 21
1b Summons commencing action (Ordinary) 22
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
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MAGISTRATES COURT PLEADING: DEVIATIONS 50

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) 57
20 Notice of Exception 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) 72
29 Plaintiff's reply to Defendant's request ito Rule 15(1) 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 74
31 Notice in terms of Rule 62(2) 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 76
Scenario Seven: Notice of Appeal 77
Example 33 Notice of Appeal
PART II: THE ACTION PROCEDURE IN THE HIGH COURT
a) Framework 80
b) Interim steps that the parties can consider during the pleading phase
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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
51 Notice ito Rule 36(9)(a) 112
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 120
Example 57 Combined Summons 121
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
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PART III : PROVISIONAL SENTENCE

Theory: Provisional Sentence: Cheque 135
Example 64 Summons 136
PART IV : AGENT’S COMMISSION
Theory: Agent’s Commission 140
Example 65 Particulars of Claim 141
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 148
Theory: Compulsory Sequestration 152
Example 68 Application Compulsory Sequestration 152
Theory: Rehabilitation 156
Example 69 Application Rehabilitation 156
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 166
Example 72 Section 129 notice 168
Example 73 Particulars of claim 169
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” 213
Legal Research Sources
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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) To inform the parties what the issues are in order to prepare for the trial.
b) To inform the court of the issues in order to know the extent (scope) of the
dispute.
c) 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.
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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) In which specific court the case is adjudicated.

ii) 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).
iii) The party or parties (it must be indicated who is plaintiff and defendant
or applicant and respondent respectively).
iv) The type of document must be identified (eg. Application for Summary
Judgement or Plea).
c) 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).
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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) 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.
ii) Never admit an allegation unless you are sure that it is in accordance
with your instructions.
iii) 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”.
iv) 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.
v) You must set out the material facts of your defence clearly and
concisely.
vi) 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).
c) 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.
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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) 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.
ii) You must take care to clearly mention the legal relief you desire.
4. 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
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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) 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.
ii) Do you refer to documents? If so, it must be attached to the affidavit.
iii) 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.
b) i) Ex parte application: Notice of motion
You must indicate the following:
- 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
- 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
- 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

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The following general allegations must be contained in such affidavit:
i) Names and addresses of applicant and respondent (if applicable)

ii) That the applicant has locus standi
iii) That the court has jurisdiction
iv) Material fact whereupon the application (or opposition thereof) is
based
v) If reference is made to documentary evidence, the document must be
attached
vi) 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) To what is the applicant (or respondent) entitled?

ii) Does the order that you request cover everything that is necessary to
render the legal relief effective?
iii) An answering affidavit should not only consist of denial of the
allegations contained in a founding affidavit.
iv) 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.
v) With replying affidavits it must be remembered that the general rule is
that the applicant must make out his case in his founding affidavit.
Consequently the introduction of new causes of action or new matters
in the replying affidavit is not permitted.
vi) A replying affidavit ought to contain a general allegation that it is not
meant to deal with each and every allegation in the answering
(opposing) affidavit but that it should be read in the light of the
allegation contained in the founding affidavit.
e) Drafting of heads of argument
Suggested approach:
- Begin by identifying the issues

- Give a summary of the material facts
- Set out the proposition of law with reference to authority
- Apply the propositions to the facts
- Conclude with a conclusion regarding the relief to which the litigant is
entitled.
-
f) NB:
Remember to sign your pleadings.
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CASE STUDY
FACTS:
Jim Swift, an auditor, is testing his new Nissan Hardbody 4 x 4 (registration number ABC
123 GP) in his suburb, Stoneridge. He did not keep a proper lookout and skipped a stop street
at the corner of King and Queen avenues. Jack and Jill Hill, two chemists who got married
recently, were already driving through the crossing in Jill’s Toyota Corolla (registration
number XYZ 456 GP) at the time. Jim hit the Toyota - that was driven by Jack at the time- on
the door of the driver. The damages to the Toyota amounted to R20 000 whilst there were
only damages to the front bulbar of the Nissan of which the costs to repair amounted to R10
000. Only Jack suffered injuries. He suffered injuries to his head, back and both legs. The
police visited the scene of the accident and drafted a sketch plan. They also obtained
statements from both Jill and Jim. The public prosecutor had decided to prosecute Jim for
reckless and/or negligent driving, alternatively that he failed to stop at the stop street. (The
Road Hawk towing service company removed the Toyota from the scene of the accident and
took it to the premises of a panel beater.)
It appears that Jack will be in hospital for 3 months and that he sustained severe injuries. He
will probably never be able to work or take care of his own affairs again.
As a result of the injuries:

a) he received medical treatment in the hospital;
b) he will be dependent on medical treatment for an indefinite period;
c) he suffered loss of amenities of life;
d) he will probably suffer from pain and discomfort for the rest of his life;
e) he suffered emotional trauma and shock that will persist for an indefinite period.
The amount of the damages is as follows:
a) Hospital expenses. R155 246-85

b) Medical expenses. R 37 020-20
c) Future Medical expenses. R200 000-00
d) Future loss of income/earning capability. R400 000-00
e) General damages eg pain and suffering,
disfiguration, loss of amenities, (etc.) claimed
by way of a global amount. R150 000-00
R942 267-05
Jill is advised to appoint a curator ad litem for Jack in order to institute a claim against the
RAF. (The full claim of R 949 267-05 has been submitted to the RAF but the Fund indicates
that it will probably only pay R 343 726-50). Meanwhile Jill sues Jim with regard to the
damages to her Toyota.
[Although this set of facts clearly demonstrates that both criminal and civil consequences
may flow from the same set of facts, this case study will be limited to the civil
consequences.]
Damages to the Toyota:

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Since Jill is the registered and/or common law owner of the Toyota she should be advised to
institute a civil claim against Jim in a magistrate’s court. The magistrate’s court will be the
suitable court since it may adjudicate this type of claim and the monetary value of the claim
falls within the monetary jurisdiction of the magistrate’s courts, being R100 000. In order to
decide at what specific court the action must be instituted, the place where the action arose
wholly or where the defendant resides can be used. Since a dispute of facts may be foreseen
in this matter, the procedure to be used is the action procedure in which case Jill must begin
the proceedings by issuing a summons against Jim. [The action procedure begins with the
issuing of a summons from the relevant court and by serving it on the defendant. In this
instance the action will commence with an ordinary magistrates’ court summons. The rest of
the procedure is mutatis mutandis the same as the action procedure in the high court as
described below with regard to the claim of Jack.]
Jack’s claim for bodily injuries:
Jack has a claim against the RAF and should institute such claim in the high court since the
amount involved is more than R100 000. The civil procedure to use in such a case is also the
action procedure. Although there are a number of summonses available in the high court, the
combined summons will be the type of summons to use since it is a claim for unliquidated
damages. A curator ad litem will have to be appointed since Jack is not mentally fit to bring
such an action himself. The application for the appointment of a curator ad litem must be
brought by way of an ex parte application since it does not involve another person. [Action
procedure is to be used where a (serious) dispute of facts is foreseen at the beginning of the
case or where it is prescribed by statute like in this instance.]
[Note: With regard to Jack’s claim against the RAF, the general procedure will be discussed.
Since every case is unique in some way, a few special procedures that might arise will also be
referred to.]
PROCEDURE:
Preliminary step: application to appoint a curator ad litem
As indicated above, a curator ad litem must first be appointed since Jack is not mentally fit to
institute the action himself. [The application procedure is used in this instance and Jill will
probably bring the application.]
Claim for damages etc:
General:
After the appointment of a curator ad litem, the curator will institute the action on behalf of
Jack against the RAF. [Jack would have had a claim against Jim based on delict but the RAF
takes the position of a statutory insurer in this instance.]
The high court action will be instituted by way of combined summons that will be issued by
the Registrar of the High Court and served on the RAF by the Sheriff.
The action procedure is marked by various phases, i.e. the pleading phase during which the
parties exchange pleadings in order to crystallise the issues between them; the preparation for
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trial phase during which the parties prepare for trial and during which procedures like
discovery and the pre-trial conference take place; thereafter the trial and after judgment,
execution of the judgment. [After judgment other procedures like review or appeal may
follow.]
Pleadings phase:
If the RAF fails to give notice of intention to defend after the summons has been served on it,
judgment by default may be applied for by the plaintiff. If the RAF indicates that it will
defend the matter, it must follow the notice of intention to defend with a formal plea on the
merits stating its defence. Jack (the plaintiff) may reply to the plea by way of a reply and the
pleadings will usually be closed. [Instead of answering the summons with a plea the RAF
may in certain circumstances, if the summons does not contain a cause of action or is vague
and embarrassing, raise an exception. If the claim has become prescribed or the court lacks
jurisdiction the claim may be met with a special plea that will either destroy the claim or have
a dilatory effect on the matter.]
Closure of pleadings and the procedure thereafter:
After the closure of the pleadings, a court date must be applied for. Documents and expert
witnesses to be used in the trial must be discovered, medical examinations and inspection of
objects may be asked for and in the high court the pre-trial conference must take place.
If the parties cannot settle the matter during the preparation for trial phase, the matter must go
on trial during which oral evidence may be heard on those matters that are still in issue. The
court will give judgment and if the plaintiff is successful he or she will now be entitled to
execute the judgment against the defendant. The successful litigant will usually also obtain a
cost order in his or her favour. The type of cost order depends on the facts of the case and the
costs may become subject to taxation of the bill of cost.
Execution of judgment:
After judgment sounding in money has been granted, the plaintiff is known as the judgment
creditor and the defendant as the judgment debtor. The judgment creditor (plaintiff) may now
execute the judgment against the judgment debtor (defendant) in terms of the execution
procedure provided for by the rules of court. This entails the individual debt enforcement or
execution procedure.
[It may happen that when the sheriff confronts the judgment debtor with the judgment, that he
may not be able to settle the amount of the order or he may not be able to indicate sufficient
disposable property that will meet the amount of the judgment if sold in execution. In such an
event the sheriff will issue a nulla bona return and since it amounts to an act of insolvency,
the judgment creditor may then consider to apply for the compulsory sequestration of the
estate. The debtor may also decide to apply for sequestration by way of voluntary surrender if
his estate is factually insolvent. Sequestration introduces a collective execution device that
will replace the abovementioned individual execution procedure and it will bring a concursus
creditorum about.]
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Appeal and review:
A party who is dissatisfied with the judgment may lodge an appeal if the court erred on the
facts or on a point of law. If it was a magistrates’ court, the case may also be taken on review
if there was a serious irregularity in the court procedure.
LEGAL REPRESENTATION
In practice a prospective litigant will usually consult a practising attorney when faced with a
potentially litigious matter. The attorney, in deciding whether to represent the prospective
litigant, will have to consider a number of circumstances including:
 Whether he or she may act on behalf of the client.

 What cause of action or procedure should be followed?
 Whether an advocate needs to be appointed in the matter.
 The cost implications.
During the initial consultation between the attorney and the client it is important to take great
care to ensure that all relevant information is obtained from the client. At this early stage the
attorney must be sufficiently informed of the facts surrounding the client’s case. The attorney
collects and considers the documentary evidence relevant to the matter as well as identifying
persons to be called as witnesses. This is fundamental in preparing the way ahead, especially if it
is anticipated that the matter will become litigious.
During the initial consultation, apart from taking proper instructions, the attorney will also
make a number of administrative arrangements.
a) As a first step the attorney will open a file on behalf of the client. The names of the
parties should be clearly indicated on the outside of the file and columns should be
drawn up on the outside and inside pages of the file so that a chronological record
may be kept of all pleadings and notices received as well as those drafted and served
and filed by the attorney. It is also advisable to draw up a column wherein telephone
calls made and received may be noted as this will assist when it becomes necessary to
draft a bill of costs at a later stage. (In this regard the attorney should note the date
and time of the call, to whom the call was made or from whom it was received, and
the duration and the main points of discussion.)
It is advisable to have a standard form available to be completed by the client prior to the
consultation and containing the following information:
 Full names; residential address; postal address; telephone numbers; particulars of

contact person; occupation; marital status;
 Employer’s address. This is especially useful if the client fails to pay for services
rendered and the attorney is later forced to apply for an emoluments attachment
order;
 Nature of claim (briefly);
 Date on which the cause of action arose. This is necessary for purposes of
prescription;
 A list of relevant documents. The client must provide the attorney with these
documents. Preferably the originals rather than copies. This will assist the attorney
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in the discovery process. The client’s original documents should be handed back
to the client on the conclusion of the matter;
 A list of witnesses and contact numbers and addresses.
It is important to indicate all relevant dates (i.e. prescription dates and trial dates)
clearly on the outside of the file in order to ensure that the case is properly
administered.
b) An account number should be allocated to the client so that the account may be
debited with fees and disbursements in respect of services rendered. The attorney
should discuss the possible cost implications of the case with the client during the first
consultation and obtain a written fee agreement. It is also customary to obtain a
deposit from the client in order to cover the initial expenses of the case. After the
consultation, the attorney should address a letter to the client wherein the attorney’s
mandate is clearly confirmed. It is essential to keep the client informed of any and all
progress with regard to the matter.
In the event that the attorney is unable to contact the client for lengthy periods of time
and is unable to receive instructions, the appropriate course is to withdraw as the
attorney of record. Once the attorney has considered all the relevant aspects of the
matter, he or she must have a clear understanding of the procedure to be followed.
The attorney remains responsible for the management of the case until the matter has
been finalised by means of settlement, a court order or until his or her mandate is
withdrawn.
The attorney may, in some matters, appoint an advocate to attend to the drafting of
some of the pleadings and finally to conduct the case when the matter goes on trial –
especially when it is a High Court matter. It may therefore become necessary to
properly brief the advocate as well.
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PART I
THE PLEADING PHASE IN THE

MAGISTRATE'S COURT
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a) FRAMEWORK
Plaintiff issues Summons (1)
Sheriff serves (2) Summons on Defendant
Defendant serves (3) Notice of Intention to Defend
Defendant delivers Plea (4) and Counterclaim (5)
Plaintiff delivers Replication (6) and Plea to

Counterclaim (7)
CLOSE OF PLEADINGS
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b) INTERIM STEPS THAT THE PARTIES CAN CONSIDER

DURING THE PLEADING STAGE IN THE MAGISTRATES
COURT:
I.r.o. 3:
Plaintiff can consider: - Summary Judgment

- Provisional Sentence
- Defective Default Judgment
(first send remedial notice)
Defendant can consider: - Rule 15(1) [later Rule 15(3)

- Rule 16 (later Rule 60(2) + (3))
- Exception
- Security for costs
I.r.o. 4:
Plaintiff can consider: - Notice of Bar

(if Plea is late)
- Exception
I.r.o. 5:
Plaintiff can consider: - Rule 15(1) (later Rule 15(3))

Rule 16 (later Rule 60(2) + (3))
- Exception
I.r.o. 6:
Defendant can consider: - Exception
I.r.o. 7:
Defendant can consider: - Exception

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c) THEORY - MOTOR VEHICLE ACCIDENT
i) CAUSE OF ACTION
When you are formulating the cause of action the event of a motor vehicle collision it is
important to mention the following in your summons:
1. Locus standi – This requirement is usually met by an allegation that the plaintiff is
the owner of the vehicle that was damaged in the accident.
2. Jurisdiction – The court's jurisdiction will usually appear from the citation of the
defendant where his address is given. Otherwise you must explicitly mention the
ground of jurisdiction, eg that the cause of action arose wholly within the court's
jurisdiction area.
3. Where, when and between which vehicles the collision occurred and who drove the
respective vehicles at the time of the accident.
4. The reason why the plaintiff alleges that the defendant is liable for the plaintiff's
damages - that is, an allegation that the defendant was negligent. (Certain drafters
expressly mention the grounds of negligence in the summons, while others merely
make an allegation of negligence. The latter are of opinion that a defendant in the
magistrates court who wishes to obtain more information regarding the aspect of
negligence can request further particulars).
5. The fact that the plaintiff suffered damages as a result of defendant's negligence.
6. The amount of damages and that it represents the reasonable repair costs of the
vehicle to its pre-collision condition.
7. Prayers for payment of the damages, interest and costs.
NOTE:
1.
In the cause of a collision where vicarious liability is concerned, there will be two defendants.
The following clauses will have to be inserted in such a summons:
2.
"The FIRST DEFENDANT is OMEGA MEDICALS (PTY) LTD, a private company with
limited liability, duly registered and incorporated in terms of the Companies Act of South
Africa with its registered office at KINGBOLT CRESCENT 10, WAPADRAND,
PRETORIA, GAUTENG".
3.
"The SECOND DEFENDANT is COL SPANDALIE, an adult female medical
representative, resident at KINGBOLT CRESCENT 7, WAPADRAND, PRETORIA,
GAUTENG".
4.
After the clause describing how the accident occurred, the following should be inserted as a
new clause.
5.
20
The SECOND DEFENDANT at all relevant times hereto acting within the course and scope
of her employment with FIRST DEFENDANT.
NOTE FURTHER: When you pray for judgment it will be against FIRST and SECOND
DEFENDANT, jointly and severally; the one to pay, the other to be
absolved.
ii) DEFENSE
When you are formulating the defence, you must pay attention to the following:
1. Are you going to admit or deny the plaintiff's locus standi?
2. Are you going to admit or deny the courts jurisdiction?
3. Are you going to admit or deny the citation of the parties?
4. Are you going to admit or deny the allegations of negligence by the defendant or are you
going to confess and avoid/admit or deny liability for collision in question?
5. Are you going to admit or deny the allegation of damages suffered by the plaintiff?
6. Are you going to admit or deny the amount of damages?
7. Are you going to admit or deny the demand?
8. Your plea must contain a specific prayer for dismissal of the plaintiff's claim with costs
or, where applicable, an appropriation i.t.o. the Appropriation of Damages Act.
21
d) EXCHANGE OF PLEADINGS IN DEFENDED MOTOR VEHICLE

COLLISION UNTIL LITIS CONTESTATIO
EXAMPLE 1a
Johannes voet Attorneys

Attorneys, Conveyancers and Notaries
___________________________________________________________________________
431 Kirkness Street / Straat P O Box / Posbus 007
Sunnyside Hatfield
Pretoria 0075
Tel: (012) 420 3198

Fax/Faks: (012) 420 4405
___________________________________________________________________________
10 March 2006
Mr Jim Swift
7 Kingbolt Crescent
Wapadrand
Pretoria PER REGISTERED POST
Dear Sir
MOTOR VEHICLE COLLISION ON 1 MARCH 2006 / MRS JILL HILL /

YOURSELF
We refer to the above matter and confirm that we act herein on behalf of our client, mrs Jill
Hill.
It is our instructions that a collision took place on or about 1 March 2006 between a Nissan
Hardbody motor vehicle with registration number ABC 123 GP, driven by yourself and a
Toyota Corolla motor vehicle with registration number XYZ 456 GP, of which our client is
the owner.
It is further our instructions that the aforementioned collision was caused by your sole
negligence.
As a result of aforementioned collision our client suffered damages to her vehicle in the
amount of R20 000, being the fair and reasonable costs to repair the vehicle to its pre-
collision condition.
Unless the amount of R20 000 is paid to our offices within a period of 14 days after the
sending of this letter, a summons will be summarily and without any further notice be issued
against you.
Yours faithfully
J Voet
22
EXAMPLE 1b
Form 2
SUMMONS COMMENCING ACTION (ORDINARY)
[Form 2 substituted by GNR.3002 of 1969 by GNR.2222 of 1978 and R.1314 of
1980 and amended by GNR.2409 of 1991 and GNR.910 of 1998.]
Sued out by:
Johannes Voet Attorneys

Kirkness Street 431
Sunnyside
Pretoria
_______________________________
Signature of plaintiff or his attorney
Postal Address: P O Box 9460, PRETORIA 0001
Ref. J Voet
Telephone Number: 3445901 Fax: 3445907
In the Magistrate’s Court for the district of PRETORIA held at PRETORIA
Between JILL HILL

Plaintiff
and JIM SWIFT

Defendant
To: JIM SWIFT, an adult male auditor resident at 7 Kingbolt Crescent,

Wapadrand, Pretoria
You are hereby summoned that you do within 5 (five) days of the service of this
summons deliver or cause to be delivered to the Clerk of the Aforesaid Court and
also the Plaintiff or his Attorney, at the address specified herein, a notice in
writing of your intention to defend this action and answer the claim of
JILL HILL, an adult female pharmacist resident at 20 Queens Crescent,

Lynnwood, Pretoria
the plaintiff herein, particulars whereof are endorsed hereunder.
(1) Particulars:
Plaintiff’s claim against defendant is for:
SEE PARTICULARS OF CLAIM ATTACHED HERETO
Wherefore plaintiff prays for judgment against the defendant in the said sum,
with costs
Costs if the action is undefended, will be as follows:
23
Summons Judgment
R R
Attorney’s charges
Court fees
Sheriff’s fees
Sheriff’s fees on re-issue
TOTALS R R
TOTALS R
AND TAKE NOTICE THAT—
(a) in default of your paying the amount of the claim and costs within the said period or of
your delivering a notice of intention to defend you will be held to have admitted the said claim and
the plaintiff may proceed therein and judgment may be given against you in your absence;
(b) if you pay the said claim and costs within the said period judgment will not be given
against you herein and you will save judgment charges. You will also save judgment charges if,
within the said period, you lodge with the clerk of the aforesaid Court a consent to judgment;
(c) if you admit the claim and wish to consent to judgment or wish to undertake to pay the
claim in instalments or otherwise, you may approach the plaintiff or his attorney.
Notice.—
(i)
Any person against whom a court has, in a civil case, given judgement or made any order
who has not, within 10 days, satisfied in full such judgment or order may be called upon by
notice in terms of section 65A (1) of the Act to appear on a specified date before the court
in chambers to enable the court to inquire into the financial position of the judgment debtor
and to make such order as the court may deem just and equitable.
(ii)
If the court is satisfied that—
(aa)
the judgment debtor or, if the judgment debtor is a juristic person, a director or officer
of the juristic person has knowledge of the abovementioned notice and that he or she
has failed to appear before the court on the date and at the time specified in the notice;
or
(bb)
the judgment debtor, director or officer, where the proceedings were postponed in his
or her presence to a date and time determined by the court, has failed to appear before
the court on that date and at that time; or
(cc)
the judgment debtor, director or officer has failed to remain in attendance at the
proceedings or at the proceedings so postponed,
the court may, at the request of the judgment creditor or his or her attorney, authorise the
issue of a warrant directing a sheriff to arrest the said judgment debtor, director or officer
and to bring him or her before a competent court to enable that court to conduct a financial
inquiry. [Section 65A (6) of the Act]
(iii)
Any person who—
(aa)
is called upon to appear before a court under a notice in terms of section 65A (1) or
65A (8) (b) of the Act (where the sheriff, in lieu of arresting a person, hands to that
person a notice to appear in court) and who wilfully fails to appear before the court on
the date and at the time specified in the notice; or
24
(bb)
where the proceedings were postponed in his or her presence to a date and time
determined by the court, wilfully fails to appear before the court on that date and at
that time; or
(cc)
wilfully fails to remain in attendance at the relevant proceedings or at the proceedings
so postponed,
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a
period not exceeding three months. [Section 65A (9) of the Act]
(iv)
On appearing before the court on the date determined in the notice in terms of section 65A
(1) or (8) (b) of the Act in pursuance of the arrest of the judgment debtor, director or officer
under a warrant referred to in section 65A (6) of the Act or on any date to which the
proceedings have been postponed, such judgment debtor, director or officer shall be called
upon to give evidence on his or her financial position or that of the juristic person and his or
her or its ability to pay the judgment debt. [Section 65D of the Act]
(v)
Any person against whom a court has, in a civil case, given any judgment or made any
order who has not satisfied in full such judgment or order and paid all costs for which he or
she is liable in connection therewith shall, if he or she has changed his or her place of
residence, business or employment, within 14 days from the date of every such change
notify the clerk of the court who gave such judgment or made such order and the judgment
creditor or his or her attorney fully and correctly in writing of his or her new place of
residence, business or employment, and by his or her failure to do so such judgment debtor
shall be guilty of an offence and liable upon conviction to a fine or to imprisonment for a
period not exceeding three months. [Section 109 of the Act]
(2) Consent to Judgment.

I admit that I am liable to the plaintiff as claimed in this summons (or in the amount of
R.............................. and costs to date) and I consent to judgment accordingly.
Dated at ................................................... this ...... day of ..............................................., 19......
Defendant
*(3) Notice of Intention to Defend.
To the Clerk of the Court:
Kindly take notice that the defendant hereby notifies his intention to defend this action.
Dated at .......................................... this ...... day of ..................................................., 19......
Defendant/Defendant’s Attorney
Address
Postal address
(Give full address for acceptance of service of process or documents within eight kilometres
from the Court-house and also postal address.)
*Note—The original notice must be filed of record with the Clerk of the Court and a copy
thereof served on the plaintiff or his attorney.
25
EXAMPLE 2
e) PARTICULARS OF CLAIM
1.
The plaintiff is Jill Hill, an adult female pharmacist resident at 20 Queens Crescent,
Lynnwood, Pretoria.
2.
The defendant is Jim Swift, an adult male auditor resident at Kingbolt Crescent 7, Wapadrand,
Pretoria.
3.
The plaintiff is the owner of a Toyota Corolla vehicle with registration number XYZ 456 GP.
4.
On 1 March 2006 and at the corner of King and Queen Avenues, Lynnwood, Pretoria a collision
occurred between the plaintiff's vehicle and the defendant's vehicle, a Nissan Hardbody
registration number ABC 123 GP, which vehicle was at all material times driven by defendant.
5.
The collision as aforesaid was caused by the sole negligence of the defendant in that he
wasnegligent in one, more or all of the following aspects:
5.1 failed to keep a proper look-out;

5.2 drove at a speed in excess of the speed limit.
6.
As a result of the collision as aforementioned, plaintiff suffered damages in the amount of
R20 000, being the fair and reasonable and necessary costs of repairing plaintiff's vehicle to its
pre-collision condition.
26
7.
Despite proper and lawful demand defendant fails or refuses to pay the aforementioned
amount or any part thereof as claimed to plaintiff).
WHEREFORE PLAINTIFF PRAYS FOR JUDGMENT AGAINST DEFENDANT

FOR:
a) Payment of R20 000

b) Interest on the above amount at 15,5% a tempore morae
c) Cost of suit.
Signed at Pretoria on this _______________day of March 2006
_______________________________
Attorneys for Plaintiff
431 Kirkness Street
Sunnyside
Pretoria
27
EXAMPLE 3
IN THE MAGISTRATES COURT FOR THE DISTRICT OF PRETORIA

HELD AT PRETORIA
Case Nr. 1/2006
In the matter between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant

_____________________________________________________________________________
NOTICE OF INTENTION TO DEFEND

_____________________________________________________________________________
Take notice that defendant hereby gives notice of his intention to defend the action.
Take notice that defendant hereby appoints the below mentioned attorneys as his attorneys of
record at which address he will accept service of all processes, notices and documents in the
action.
Signed at Pretoria on this the ___ day of March 2006
___________________________
Gaius Van Wyk
Defendant’s Attorney
10 Kirkness Street
Sunnyside
Pretoria
TO: The Clerk of the Court

Pretoria
AND TO: Johannes Voet Attorneys

431 Kirkness Street
Sunnyside
Pretoria
Received copy hereof on this the
______ day of April 2006
__________________________
28
EXAMPLE 4

HELD AT PRETORIA
Case Nr. 1/2006

JILL HILL Plaintiff
and
JIM SWIFT Defendant
______________________________________________________________________________
REQUEST FOR FURTHER PARTICULARS

IN TERMS OF RULE 16 OF ACT 32 OF 1944
______________________________________________________________________________
Kindly take notice that Defendant requires the following particulars to Plaintiff's Particulars of
Claim to reasonably enable him to plead:
1.
AD PARAGRAPH 5.1 THEREOF
1.1 In which manner is it alleged, did Defendant not keep a proper lookout?
1.2 At which speed did the defendant allegedly drive?
2.
AD PARAGRAPH 6 THEREOF
A detailed indication of how the amount of R20 000,00 is calculated, is required.
3.
AD PARAGRAPH 7 THEREOF
Detailed particulars of the alleged demand to defendant, is required. It must specifically be
indicated when, by whom and to whom demand was made and whether it was oral or in writing.
If oral, detailed particulars are required. If in writing, a copy is required.
Signed at Pretoria on this the ___ day of April 2006

29
_______________________________
Gaius van Wyk
Attorneys for Defendant
10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)

Pretoria
AND TO: Johannes Voet

431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)

_____ day of April 2006
________________________________
30
EXAMPLE 5

HELD AT PRETORIA
Case Nr. 1/2006

JILL HILL Plaintiff - Respondent
and
JIM SWIFT Defendant -Applicant

______________________________________________________________________________
APPLICATION IN TERMS OF RULE 60(2)

______________________________________________________________________________
Kindly take notice that the Applicant intends to apply to Court on 28 April 2006 for an order in
the following terms:
1. That Respondent is ordered to furnish the further particulars requested by Applicant on 2

April 2006 within 10 (ten) days.
2. That Respondent bears the costs of this application.
Signed at Pretoria on this the ___ day of April 2006.
_______________________________
Gaius van Wyk
Attorneys for Applicant
10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)

Pretoria

Attorneys for Respondent
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)

_____ day of April 2006.
________________________________
31
EXAMPLE 6

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff - Respondent
and
JIM SWIFT Defendant - Applicant

______________________________________________________________________________
NOTICE OF APPLICATION IN TERMS OF RULE 60(3)
______________________________________________________________________________
Kindly take notice that Applicant intends to apply to Court on 28 May 2006 for an order in the
following terms:
1. That the Respondent's claim be dismissed with costs due to Respondent's failure to furnish
further particulars in terms of the Court Order dated 28 April 2006.
2. That Respondent is ordered to pay the costs of this application.
Signed at Pretoria on this the ___ day of May 2006.

_______________________________
Gaius van Wyk
10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)

Pretoria

431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)
_____ day of May 2006.
________________________________
32
EXAMPLE 7

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

_____________________________________________________________________________
NOTICE OF BAR
_____________________________________________________________________________
Kindly take notice that Plaintiff herewith requests Defendant to file his plea within 5 (five) after
receipt hereof failing which she will ipso facto be barred to deliver his plea in which event
Plaintiff will apply for default judgment against Defendant.
Signed at Pretoria on this the ___ day of June 2006.
_______________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)

Pretoria
AND TO: Gaius van Wyk

10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)
_____ day of June 2006.
________________________________
33
EXAMPLE 8

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

_____________________________________________________________________________
PLEA
_____________________________________________________________________________
Kindly take notice that defendant pleads as follows to Plaintiff’s Particulars of Claim:
1.
AD PARAGRAPH 1, 2 AND 3 THEREOF:
The contents of these paragraphs are admitted.
2.
AD PARAGRAPH 4 AND 5 THEREOF:
The contents of these paragraphs are denied as if specifically traversed and plaintiff is put to
the proof thereof.
3.
AD PARAGRAPH 6 THEREOF:
The Defendant bears no knowledge of the allegation contained herein cannot admit or deny
same and accordingly puts the plaintiff to the proof thereof.
4.
The defendant pleads that he was in no respect negligent and can consequently not be held
liable for plaintiff's damages, which damages he lawfully refuses to pay. Demand is admitted.
Wherefore defendant prays that plaintiff's claim be dismissed with costs.

34
_____________________________________________________________________________
COUNTERCLAIM
_____________________________________________________________________________
1.
Brevitas causa the parties are referred to as in convention.
2.
Paragraphs 1 and 2 of plaintiff's particulars of claim are referred to as if specifically
incorporated herein.
3.
At all relevant times hereto the Defendant was the owner of a Nissan Hardbody, registration
number ABC 123 GP.
4.
On 1 March 2006 and at the corner of King and Queen Avenues, Lynnwood, Pretoria, a
collision occurred between the defendant’s vehicle and the plaintiff’s vehicle, a Toyota
Corolla with registration number XYZ 456 GP, which vehicle was at all material times driven
by plaintiff.
5.
The aforementioned accident was solely caused by the negligence of the Plaintiff in that she:
a) Failed to keep a proper lookout.
b) In the prevailing circumstances, drove at an unreasonably high speed.
6.
As a result of the plaintiff's negligence the Defendant suffered damages in the amount of
R10 000, being the fair, reasonable and necessary costs to repair his vehicle to its precollision
condition.
7.
Despite proper and lawful demand Plaintiff fails and/or refuses to pay to Defendant the
aforementioned amount or any part thereof.
35
Wherefore Defendant prays for judgment against Plaintiff for:

c) Cost of suit.
Signed at Pretoria on this _______________day of June 2006
_____________________________
Gaius van Wyk
10 Kirkness Street
Sunnyside
Pretoria

Pretoria
AND TO: Attorneys for Plaintiff

Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
day of June 2006.
_____________________________
36
EXAMPLE 9
HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant
___________________________________________________________________________
PLEA TO COUNTERCLAIM
___________________________________________________________________________
Kindly take notice that Plaintiff pleads as follows to Defendant's counterclaim:
1.
AD PARAGRAPHS 1 TO 4:
The contents of these paragraphs are admitted.
2.
AD PARAGRAPHS 5 AND 6:
The contents of these paragraphs are denied as if specifically traversed and the defendant is put
to the proof thereof.
3.
AD PARAGRAPH 7
Demand is admitted.
4.
The Plaintiff specifically pleads that the sole cause of the collision and the consequent damages
was occasioned by the negligence of the Defendant, as set out in paragraph 5 of the Plaintiff's
Particulars of Claim (may also add alternative of contributory negligence).
5.
Should the court find that the Plaintiff was negligent, all which is still denied, the plaintiff
pleads in the alternative that such negligence did not cause the collision.
Wherefore the Plaintiff prays that the Defendant's counterclaim be dismissed with costs
alternatively that the amount claimed be reduced in accordance with the Appropriation of
Damages Act.
Signed at Pretoria on this the ____ day of July 2006.
___________________________
Johannes Voet
431 Kirkness Street
Sunnyside Pretoria
Pretoria
10 Kirkness Street
Sunnyside Pretoria
__________________________________
Received on this the ____ day of July 2006.
_____________________________
37
EXAMPLE 10

HELD AT PRETORIA
Case Nr. 1/2006
In the case between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
NOTICE OF SET DOWN FOR TRIAL
Take notice that the above matter has been set down for hearing on
_________________________ at 08:30 or thereafter as soon as the parties may be heard.
Signed at Pretoria on _________day of July 2006.
_____________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
Ref. J Voet
Pretoria

10 Kirkness Street
Sunnyside
Pretoria
Ref. G van Wyk
Received on this the _________ day of

July 2006
_______________________________

38
EXAMPLE 11

HELD AT PRETORIA
CASE NR. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant
__________________________________________________________________________
NOTICE IN TERMS OF RULE 23(1), (3) & (4)
__________________________________________________________________________
Be pleased to take notice that in terms of Rule 23(1) of the Magistrates Court Act plaintiff
requires defendant within 10 (ten) days from date of receipt hereof to deliver a list of the
documents under defendant’s control or in his possession that relate to this action and that
defendant intends to use at the hearing of this matter/in this action, or that can contribute to
proving or disproving the case of the one or the other of the parties.
Kindly further take notice that in terms of Rule 23(4) of the Magistrates Court Act plaintiff
requires defendant to produce at the trial of this action all books and documents disclosed by
defendant in terms of Rule 23(1).
Kindly furthermore take notice that in terms of Rule 23(3) of the Magistrates Court Act
plaintiff requires defendant to allow plaintiff to inspect all books and documents disclosed by
defendant in terms of Rule 23(1) or that were indicated in a notice delivered in terms of Rule
23(4) and to make copies thereof.
Signed at Pretoria on this _________day of August 2006

________________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria

Pretoria
39

10 Kirkness Street
Sunnyside
Pretoria
Received a copy hereof on this
__________day of August 2006
______________________________
40
EXAMPLE 12

HELD AT PRETORIA
Case Nr. 1/2006
In the case between:
JILL HILL Plaintiff
and
JIM SWIFT Defendant
DISCOVERY AFFIDAVIT
I, the undersigned,
JILL HILL
do hereby state under oath as follows:
1.
I am the Plaintiff in this matter and the facts deposed to herein are within my personal
knowledge and I can and do swear positively to the truth thereof.
2.
I have in my possession or under my control the books and documents which relate to the
action and which I intend to use in the action or which tend to prove or disprove either party's
case, as set out in the attached schedules A and B.
3.
I object to the production of the books and documents set forth in schedule B on the grounds
that they are privileged, being communications between attorney and client, statements of
witnesses, or other documents that are by the nature and origin thereof privileged.
4.
According to the best of my knowledge and belief I have not now and never had in my
possession, custody, or power or in the possession, custody or power of my attorney or agent,
or any other person on my behalf, any document or copy thereof or extract from any document
41
relating to any matters in question in this action, other than the books and documents set forth
in schedules A and B attached hereto.
Signed and sworn to at Pretoria on ________________________ by the deponent who has

stated that:
a He/She knows and understands the contents hereof and that it is true and correct;
b He/She has no objection to taking the prescribed oath; and
c That he/she regards the prescribed oath as binding on his/her conscience.
Signed before me,
COMMISSIONER OF OATHS:
SIGNATURE
FULL NAMES:
CAPACITY:
AREA:
BUSINESS ADDRESS:
42
SCHEDULE A
___________________________________________________________________________
DATE NUMBER DOCUMENT ___________ COPY/ORIGINAL_
All pleadings and notices under
the above case number
1/3/2006 5094 Invoice by "SPANNER IN THE
WORKS" original
1/3/2006 1234 Invoice by RICK'S TOWING
dated 1 March 2006 original
1/3/2006 - Police report MAS 120/06 copy
______________________________________________________________________________
43
SCHEDULE B
1.
Books, documents and letters of a privileged nature, being communications between attorney and
client relating to this case.
2.
Statements of witnesses with whom the attorneys and advocates have consulted about this matter.
3.
Communications, opinions, memoranda and advice on evidence given by the attorney and/or
advocate of the party.
4.
Notes made by the party's attorneys and advocates during consultations with witnesses who might be
called to give evidence in this matter.

44
EXAMPLE 13

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

____________________________________________________________________________
NOTICE IN TERMS OF RULE 24(9)(a) and (b)

____________________________________________________________________________
Kindly take notice that Plaintiff intends to call Mr Spanner Koekemoer as expert at the trial of
the above matter;
Kindly further take notice that Mr Koekemoer will testify at the aforementioned trial that:
1.
He obtained his N3 Certificate in Panelbeating in 1980 and has worked as panelbeater for his
own account at Spanner in the Works, 10 Rose Avenue, Mayville, Pretoria since 1981.
2.
He has 25 (Twenty Five) years experience in the repair of petrol driven vehicles of various
models and is also acquainted with the costs of spares and related items and the standard tariffs
for panelbeating labour.
3.
On 1 March 2006 he inspected the Plaintiff's vehicle, a Toyota Corolla with registration
number XYZ 456 GP and found the following damage thereto, which damage, in his expert
opinion, is consistent with damage sustained in a motor vehicle accident:
3.1 Front passenger door damaged beyond repair;

3.2 Damage to rear passenger door;
3.3 Damage to midpanel between two passenger doors.
45
4.
In accordance with his expert knowledge regarding repairs, cost of labour, prices of spares and
related items, it is his opinion that the fair and reasonable costs of repairing the aforesaid
damage will amount to R20 000,00, which amount is calculated as follows:
4.1 Removal and replacement of front passenger door:
R8 000,00: door
R1 000,00: labour
R1 000,00: spray painting
4.2 Removal and replacement of midpanel:
R3 000,00: panel
R1 000,00: labour
4.3 Repairs to rear passenger door:

R4 000,00: labour
Signed at Pretoria on this the ________day of September 2006.
____________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)

Pretoria

10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)
_____ day of September 2006.
_________________________________
Defendant’s Attorneys
46
EXAMPLE 14

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant
_____________________________________________________________________________
REQUEST FOR INSPECTION OF OBJECT IN TERMS OF RULE 24(6) AND (7)

_____________________________________________________________________________
Kindly take notice that Defendant requires Plaintiff to make the following object available for a
mechanical inspection for a period of at least 10 (ten) days:
1 Toyota Corolla, registration number XYZ456GP
as the condition thereof is relevant in determining the damages in the above matter.
Signed at Pretoria on this the ___ day of September 2006.
_______________________________
Gaius van Wyk
10 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
_____ day of September 2006
________________________________
47
EXAMPLE 15

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

____________________________________________________________________________
NOTICE IN TERMS OF RULE 24(10)

____________________________________________________________________________
Kindly take notice that Plaintiff intends to present the photographs copies of which are attached
hereto as Annexures "A" to "F", as evidence at the trial of the above matter;
Kindly further take notice that you are entitled to inspect the originals of the said photographs
at the offices of the Plaintiff's Attorneys on weekdays from 09:00 to 16:00;
Kindly further take notice that you are requested to indicate within 5 (five) days after receipt of
this notice whether you have any objection against the authenticity of the photographs, failing
which the photographs will be introduced into evidence upon mere presentation and without
proof thereof.
Signed at Pretoria on this the _________day of October 2006.
_________________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)

Pretoria

10 Kirkness Street
Sunnyside
48
Pretoria
(Ref. G van Wyk)

_____ day of October 2006.
_________________________________
49
EXAMPLE 16

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

______________________________________________________________________________
AGREEMENT NOT TO APPEAL

______________________________________________________________________________
We, Jill Hill of 20 Queens Crescent, Lynnwood, Pretoria and Jim Swift of 7 Kingbolt Crescent,
Wapadrand, Pretoria, the above-mentioned Plaintiff and Defendant respectively, do hereby agree
in terms of Section 82 of the Magistrate's Court Act, 32 of 1944, that the decision of the Court in
the abovementioned action shall be final.
Signed at Pretoria on this the ____ day of October 2006
AS WITNESS:
1. __________________________ ______________________________
PLAINTIFF
2. __________________________
Signed at Pretoria on this the ____ day of October 2006.
AS WITNESS:
1. __________________________ ______________________________
DEFENDANT
2. __________________________
50
MAGISTRATE’S COURT PLEADING:

DEVIATIONS
51
SCENARIO ONE:
DEFECTIVE SUMMONS
EXAMPLE 17
Issued by: Case nr
Clerk of the Court Date

R20,00 Revenue stamp
No. RM2 SUMMONS COMMENCING ACTION (ORDINARY)
Sued out by:

Kirkness Street 431
Sunnyside
Pretoria
_______________________________________________
Signature of Plaintiff or his Attorney
Postal Address: PO Box 9460, PRETORIA, 0001
Ref. J Voet
Telephone Number: 3445901 Fax: 3445907
____________________________________________________________________________
In the Magistrate's Court for the district of PRETORIA held at PRETORIA
Between JILL HILL Plaintiff
and JIM SWIFT Defendant
TO: JIM SWIFT, an adult male auditor resident at 7 Kingbolt Crescent, Wapadrand,
Pretoria.
You are hereby summoned that you do within 5 (five) days of the service of this summons
deliver or cause to be delivered to the Clerk of the aforesaid court and also the Plaintiff or his
attorney, at the address specified herein, a notice in writing of your intention to defend this
action and answer the claim of:
JILL HILL, an adult female pharmacist resident at 20 Queens Crescent, Lynnwood, Pretoria
the Plaintiff herein, particulars whereof are endorsed hereunder.

52
(1) Particulars:
Plaintiff's claim against the Defendant is for:
SEE PARTICULARS OF CLAIM ATTACHED HERETO
The whole cause of action arose within the jurisdiction of the above Honourable Court.
Wherefore Plaintiff prays for Judgment against the Defendant in the said sum, with costs.
Costs if the action is undefended will be as follows:

Summons Judgment
R c R c
Attorney's charges ................................................................. 142 50 108 30
Court fees .............................................................................. 20 00
Messenger's fees (to be added) .............................................
Messenger's fees on re-issue .................................................
----------- -----------
Totals ..................................................................................... R R
----------- ------------
Total ..................................................................................... R
======
AND TAKE NOTICE THAT -
(a) in default of your paying the amount of the claim and costs within the said period or of
your delivering a notice of intention to defend you will be held to have admitted the said
claim and the plaintiff may proceed therein and judgment may be given against you in
your absence;
(b) if you pay the said claim and costs within the said period judgment will not be given
against you herein and you will save judgment charges. You will also save judgment
charges if, within the said period, you lodge with the clerk of the aforesaid Court a
consent to judgment;
(c) if you admit the claim and wish to consent to judgment or wish to undertake to pay the
claim in instalments or otherwise, you may approach the plaintiff or his attorney.
NOTICE:
Any person against whom a court has, in a civil case, given any judgment or made any order,
and who has not, within 10 days, satisfied in full such judgment or order –
(a) may, for such failure, be committed for a period not exceeding 90 days or be sentenced
to periodical imprisonment for a period not exceeding 2 160 hours (section 65F of the
Act);
(b) is liable to notify the Clerk of the Court and the judgment creditor or his attorney fully
and correctly, in writing, within 14 days after he has, at any time, changed his place of
residence, business or employment, of his new place of residence, business or
employment, and by his failure to do so he may be committed for a period not
exceeding 30 days or be sentenced to periodical imprisonment for a period not
exceeding 720 hours (section 109 of the Act)
53
(c) may, for such failure, be called upon by notice to appear before the court in chambers to
show cause why he in his personal capacity and/or in his capacity as a representative of
a juristic person should not be committed for contempt of court and why he should not
be ordered to pay the judgment debt in instalments or otherwise (section 65A of the
Act). He shall then be called upon to give evidence on his financial position or that of
the juristic person, his or its liability to pay the judgment debt and his or its failure to do
so (section 65D of the Act).
NOTICE:-
(i) Any person against whom a court has, in a civil case, given judgment or made any order
who has not, within 10 days, satisfied in full such judgment or order may be called upon
by notice in terms of section 65A(1) of the Act to appear on a specified date before the
court in chambers to enable the court to inquire into the financial position of the
judgment debtor and to make such order as the court may deem just and equitable.
(ii) If the court is satisfied that-
(aa) the judgment debtor or, if the judgment debtor is a juristic person, a director or
officer of the juristic person has knowledge of the above-mentioned notice and
that he or she has failed to appear before the court on the date and at the time
specified in the notice; or
(bb) the judgment debtor, director or officer, where the proceedings were postponed in
his or her presence to a date and time determined by the court, has failed to appear
before the court on that date and at that time; or
(cc) the judgment debtor, director or officer has failed to remain in attendance at the
proceedings or at the proceedings so postponed, the court may, at the request of
the judgment creditor or his or her attorney, authorise the issue of a warrant
directing a sheriff to arrest the said judgment debtor, director or officer and to
bring him or her before a competent court to enable that court to conduct a
financial inquiry. (Section 65A(6) of the Act)
(iii) Any person who-

(aa) is called upon to appear before a court under a notice in terms of section 65A(1) or
(8)(b) of the Act (where the sheriff, in lieu of arresting a person, hands to that
person a notice to appear in court) and who wilfully fails to appear before the court
on the date and the time specified in the notice; or
(bb) where the proceedings were postponed in his or her presence to a date and time
determined by the court, wilfully fails to appear before the court on that date and at
that time; or
(cc) wilfully fails to remain in attendance at the relevant proceedings or at the
proceedings so postponed, shall be guilty of an offence and liable on conviction to
a fine or to imprisonment for a period not exceeding three months. (Section 65(9)
of the Act)
(iv) On appearing before the court on the date determined in the notice in terms of section
65A(1) or (8)(b) of the Act in pursuance of the arrest of the judgment debtor, director or
officer under a warrant referred to in section 65A(6) of the Act or on any date to which
the proceedings have been postponed, such judgment debtor, director or officer shall be
called upon to give evidence on his or her financial position or that of the juristic person
and his or her or its ability to pay the judgement debt. [Section 65D of the Act]
54
(v) Any person against whom a court has, in a civil case, given any judgment or made any
order who has not satisfied in full such judgment or order and paid all costs for which
he or she is liable in connection therewith shall, if he or she has changed his or her place
of residence, business or employment, within 14 days from the date of every such
change notify the clerk of the court who gave such judgment or made such order and
the judgment creditor or his or her attorney fully and correctly in writing of his or her
new place of residence, business or employment, and by his or her failure to do so such
judgment debtor shall be guilty of an offence and liable upon conviction, to a fine or to
imprisonment for a period not exceeding three months. [Section 109 of the Act]
(2) Consent to judgment

I admit that I am liable to the plaintiff as claimed in this summons (or in the amount of
R and costs to date) and I consent to judgment accordingly.
Dated at this day of 20 .
Defendant________________________
Let wel: As die toestemming nie op die oorspronklike Dagvaarding wat geteken is of op die
afskrif gegee word nie, moet dit onderteken word deur twee getuies wie se adresse aangedui
moet word.
*(3) Notice of intention to defend

To the Clerk of the Court
Kindly take notice that the defendant hereby notifies his intention to defend this action.
Dated at this day of 20 .
____________________________
Defendant/Defendant's attorney
Address:
Postal address:
(Give full address for acceptance of service of process or documents within eight kilometres
from the Court-house and also the postal address.)
* Note: The original notice must be filed of record with the Clerk of the Court and a copy
thereof served on the plaintiff or his attorney.
55
EXAMPLE 18
PARTICULARS OF CLAIM
1.
The plaintiff is Jill Hill, an adult female pharmacist resident at 20 Queens Crescent,
Lynnwood, Pretoria.
2.
The defendant is Jim Swift, an adult male auditor resident at 7 Kingbolt Crescent, Wapadrand,
Pretoria.
3.
On 1 March 2006 and at the corner of King and Queen Avenues, Lynnwood, Pretoria a collision
occurred between the plaintiff's vehicle and the defendant's vehicle, a Nissan Hardbody
registration number ABC 123 GP.
4.
The collision as aforesaid was caused by the negligence of the defendant in that he has:
4.1 failed to keep a proper look-out;

4.2 drove at a speed in excess of the speed limit.
5.
As a result of the collision as aforementioned, plaintiff suffered damages in the amount of
R20 000, being the fair and reasonable costs of repairing plaintiff's vehicle to its precollision
condition.
6.
Despite demand defendant fails or refuses to pay the aforementioned amount to plaintiff).
WHEREFORE PLAINTIFF PRAYS FOR JUDGMENT AGAINST DEFENDANT

FOR:
56

c) Cost of suit.
Signed at Pretoria on this _______________day of _________________2006
_______________________________
431 Kirkness Street
Sunnyside
Pretoria
57
SCENARIO ONE: EXCEPTION

EXAMPLE 19

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

______________________________________________________________________________
NOTICE IN TERMS OF RULE 17(5)(c)
___________________________________________________________________________
Kindly take notice that defendant objects against plaintiff’s particulars of claim as it is vague
and embarrassing due to the following reasons:
a) It is unclear whether the plaintiff is the owner of the Toyota Corolla vehicle with
registration number XYZ 456 GP;
b) It is unclear whether the defendant drove the Nissan Hardbody vehicle with
registration number ABC 123 GP at the time of the accident;
c) It is unclear whether the plaintiff is of opinion that the accident was caused solely by
the exclusive negligence of the defendant.
Kindly further take notice that unless the cause of complaint is removed within 10 days from
receipt of this notice, defendant will approach the abovementioned Honourable court and
raise an exception against plaintiff’s particulars of claim.
_______________________________
Gaius van Wyk
10 Kirkness Street
Sunnyside
Pretoria

Pretoria
58

431 Kirkness Street
Sunnyside
Pretoria

________________________________
59
EXAMPLE 20

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

______________________________________________________________________________
NOTICE OF EXCEPTION
___________________________________________________________________________
Kindly take notice that defendant hereby notes an exception against plaintiff’s particulars of
claim as it is vague and embarrassing for the follow reasons:
a) It is unclear whether the plaintiff is the owner of the Toyota Corolla vehicle with
registration number XYZ 456 GP;
b) It is unclear whether the defendant drove the Nissan Hardbody vehicle with
registration number ABC 123 GP at the time of the accident;
c) It is unclear whether the plaintiff is of opinion that the accident was caused solely by
the exclusive negligence of the defendant.
Kindly further take notice that defendant afforded plaintiff an opportunity to remove the
cause of complaint in accordance with a notice in terms of rule 17(5)(c) that was served on
the plaintiff on ______________________.
Kindly further take notice that the exception is enrolled for hearing on __________________
at 09:00 or as soon thereafter as the legal representative for the plaintiff may be heard.
Kindly also further take notice that the defendant will request at the hearing of the exception
that the exception be upheld with costs and that plaintiff’s particulars of claim be struck out.

60
_______________________________
Gaius van Wyk
10 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria

________________________________
61
SCENARIO ONE: AMENDMENT

EXAMPLE 21

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

______________________________________________________________________________
NOTICE OF INTENDED AMENDMENT IN TERMS OF RULE 55A
___________________________________________________________________________
Kindly take notice that plaintiff intends to amend the particulars of claim to his summons
dated ___________________ as follows:
1.
By adding another paragraph, paragraph 3, after paragraph 2, reading as follows:
“The plaintiff is the owner of a Toyota Corolla vehicle with registration number XYZ 456
GP”.
2.
By adding the following words at the end of the current paragraph 3 (now paragraph 4):
“which vehicle was at all relevant times driven by defendant”.
3.
By adding the following word before the word “caused” in the current paragraph 4 (now
paragraph 5):
“solely”.
Kindly further take notice that unless you deliver a notice of objection against such
amendments, stating the nature and grounds of your objection, within 10 (ten) days after
receipt of this notice, such amendments will be effected.
62
Kindly note that plaintiff herewith tenders the wasted costs occasioned by the proposed
amendment, save the costs occasioned should the matter be opposed.
Signed at Pretoria on this the _________day of _________________ 2006.
_________________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)

Pretoria

10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)

_____ day of _______________2006.
_________________________________
63
EXAMPLE 22
HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

______________________________________________________________________________
APPLICATION FOR AMENDMENT IN TERMS OF RULE 55A(4)
___________________________________________________________________________
Kindly take notice that applicant intends to make application on ____________________ at
09:00 or as soon thereafter as applicant’s legal representative may be heard, for an order in
the following terms:
a) That the particulars of claim to Applicant’s Summons dated ___________________
be amended in accordance with the Notice of Intended Amendment dated
____________________
b) That the respondent bears the costs of this application.
_________________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)
Pretoria

10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)
_____ day of _______________2006.
_________________________________
64
SCENARIO TWO:
FAILURE TO ENTER AN APPEARANCE TO DEFEND; DEFAULT JUDGMENT
EXAMPLE 23

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

______________________________________________________________________________
APPLICATION FOR DEFAULT JUDGMENT
___________________________________________________________________________
Whereas the plaintiff instituted action against the defendant in terms of a summons that was
served on the defendant on _______________________.
And whereas the defendant failed to enter an appearance to defend on or before

________________________ and is still in default with the delivery of such notice.
Now therefore the plaintiff prays for judgment against the defendant for:
a) Payment of R20 000;
b) Interest on the aforementioned amount at the rate of 15,5% a tempore morae;
c) Cost of suit.
_________________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
(Ref. J Voet)

Pretoria
65

10 Kirkness Street
Sunnyside
Pretoria
(Ref. G van Wyk)
_____ day of _______________2006.
_________________________________
66
EXAMPLE 24

HELD AT PRETORIA
Case Nr. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

______________________________________________________________________________
AFFIDAVIT IN SUPPORT OF APPLICATION FOR DEFAULT JUDGMENT IN
TERMS OF RULE 12(4)
___________________________________________________________________________
I, the undersigned SPANNER KOEKEMOER hereby state under oath as follows:

1.
I am an adult male panelbeater that obtained my N3 Certificate in Panelbeating in 1980 and has
worked as panel beater for my own account at "Spanner in the Works”, 10 Rose Ave, Mayville,
Pretoria since 1981.
2.
I have 25 (Twenty Five) years experience in the repairs of petrol driven vehicles of various
nature and is also acquainted with the costs of spares and related items and the standard tariffs
for panelbeating labour and I am therefore competent to depose to this affidavit, the contents
which fall in my personal knowledge and expertise.
3.
On 1 March 2006 I inspected the Plaintiff's vehicle, a Toyota Corolla, Registration Number
XYZ456GP and found the following damage thereto, which damage, in my expert opinion, is
consistent with damage sustained in a motor vehicle accident:
3.1 Front passenger door damaged beyond repair;
3.2 Damage to rear passenger door;
3.3 Damage to midpanel between two passenger doors.
67
4.
In accordance with my expert knowledge regarding repairs, cost of labour, prices of spares and
related items, it is my opinion that the fair and reasonable costs of repairing the aforesaid
damage will amount to R20 000,00, which amount is calculated as follows:
4.1 Removal and replacement of front passenger door:
R8 000,00: door
R1 000,00: labour
R1 000, 00: spray painting
4.2 Removal and replacement of midpanel:
R3 000,00: panel
R1 000,00: labour
R1 000, 00: spray painting
4.3 Repairs to rear passenger door:

R4 000,00: labour
Signed at Pretoria on this the ________day of ___________________ 2006.

________________________
Deponent
stated that:
Signed before me,
SIGNATURE
FULL NAMES:
CAPACITY:
AREA:
BUSINESS ADDRESS:
SCENARIO THREE:
68
EXAMPLE 25
APPLICATION FOR SUMMARY JUDGMENT AND OPPOSING AFFIDAVIT
HELD AT PRETORIA
Case No. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant
______________________________________________________________________________
APPLICATION FOR SUMMARY JUDGMENT
______________________________________________________________________________
Kindly take notice that Plaintiff intends to apply to court on _________________at 09:00 or as
soon thereafter as counsel for the Plaintiff may be heard, for an order against Defendant in the
following terms:
1. Summary judgment in the amount of R20 000,00;
2. Interest on the above amount at 15,5% a tempore morae;
3. Cost of suit.
Kindly further take notice that the Affidavit of JILL HILL, attached hereto, will serve to support
this application.
Kindly place the matter on the roll accordingly.
Signed at Pretoria on this the ___ day of ______________ 2006

_______________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
Pretoria
AND TO: Gaius Van Wyk
10 Kirkness Street
Sunnyside
Pretoria
_____ day of ________________ 2006
________________________________
69
EXAMPLE 26

HELD AT PRETORIA
Case No. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

______________________________________________________________________________
SUPPORTING AFFIDAVIT
______________________________________________________________________________
I, the undersigned,
JILL HILL
hereby make oath and declare as follows:
1.
I am the Plaintiff in this matter and can swear positively to the facts contained herein which facts
fall within my personal knowledge and are true and correct.
2.
I confirm that the cause of action and the amount as set out in the Summons are correct.
3.
I verily believe that the Defendant does not have a bona fide defence and has merely entered an
appearance to defend for purposes of delay.
____________________________
DEPONENT
THUS SWORN AND SIGNED TO BEFORE ME, AT ___________________ ON THIS THE
_______ DAY OF _____________________________ the Deponent having acknowledge that
he knows and understands the contents of this affidavit and that he considers the oath to e binding
on his conscience.
______________________________
COMMISSIONER OF OATHS
70
EXAMPLE 27

HELD AT PRETORIA
Case No. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

_____________________________________________________________________________
OPPOSING AFFIDAVIT
_____________________________________________________________________________
I, the undersigned,
JIM SWIFT
herewith make oath and declare as follows:
1.
I am the Defendant in the above matter and the facts contained herein fall within my personal
knowledge and are true and correct.
2.
I have read the affidavit by the Defendant and wish to reply thereto as follows:
2.1 POINT IN LIMING

I am advised by my legal representative that the Plaintiff's claim is for an unliquidated amount
for damages allegedly suffered and does not fall within the scope of application of the Summary
Judgment remedy. Argument on this issue will be advanced at the hearing of the application for
Summary Judgment.
2.2 AD DEFENCE
I confirm that I indeed have a bona fide defence to Plaintiff's claim and that I have not entered an
appearance to defend merely for purposes of delay.
71
2.2.1 The nature and grounds of my defence are that I deny that I was negligent and thus I also
deny that I caused the plaintiff’s damages. My defence is that the negligent conduct of the
plaintiff was the sole cause of the accident because she failed to keep a proper look-out in
the wet and unpleasant weather circumstances on the appropriate day and also drove at an
unreasonably high speed.
2.3 AD COUNTERCLAIM
As a result of plaintiff's negligence as aforesaid I have a bona fide counterclaim for

R10 000,00, being the fair, reasonable and necessary costs of repairing my vehicle to its
pre-collision condition.
______________________________
DEPONENT
THUS SWORN AND SIGNED TO BEFORE ME AT ___________________ ON THIS THE

_______ DAY OF _____________________________ the Deponent having acknowledge that
he knows and understands the contents of this affidavit and that he considers the oath to be
binding on his conscience.
______________________________
CAPACITY:
ADDRESS
72
SCENARIO FOUR:
WHERE DEFENDANT REQUEST COPIES OF ACCOUNTS AND DOCUMENTS IN
TERMS OF RULE 15(1)
EXAMPLE 28

HELD AT PRETORIA
Case No. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant
_____________________________________________________________________________

_____________________________________________________________________________
Kindly take notice that Defendant requests Plaintiff to furnish copies of all or any accounts or
documents upon which the action is based to Defendant within 10 (ten) days after receipt hereof.
Signed at Pretoria on this the ___ day of ________________ 2006

_________________________
Gaius Van Wyk
10 Kirkness Street
Sunnyside
Pretoria
(REF: G VAN WYK)
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
_____day of ____________ 2006.
__________________________
73
EXAMPLE 29

HELD AT PRETORIA
Case No. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant
_____________________________________________________________________________
PLAINTIFF’S REPLY TO DEFENDANT’S REQUEST IN TERMS OF RULE 15(1)

_____________________________________________________________________________
Kindly take notice that due to the fact that plaintiff’s action is based on a motor vehicle collision,
there are no accounts or documents upon which the action is based.
Signed at Pretoria on this the ___ day of ________________ 2006
_________________________
Gaius Van Wyk
10 Kirkness Street
Sunnyside
Pretoria
(REF: G VAN WYK)
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
_____day of ____________ 2006.
__________________________
74
SCENARIO FIVE:
WHERE PLAINTIFF IS A COMPANY, DEFENDANT WOULD BE ABLE TO
REQUEST SECURITY FOR COSTS
EXAMPLE 30
HELD AT PRETORIA
Case No. 1/2006

JILL HILL (PTY) LTD Plaintiff
and
JIM SWIFT Defendant
_____________________________________________________________________________
REQUEST FOR SECURITY FOR COSTS

IN TERMS OF RULE 62(1) OF ACT 32 OF 1944
_____________________________________________________________________________
Kindly take notice that Defendant herewith requests that Plaintiff furnish to Defendant security
for the costs of this action in the amount of R5 000,00 as the Plaintiff is an uncorporated
company.
Signed at Pretoria on this the ___ day of _____________ 2006

_______________________________
Gaius Van Wyk
10 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
_____ day of ________________ 2006
________________________________
75
EXAMPLE 31

HELD AT PRETORIA
Case No. 1/2006
JILL HILL PLAINTIFF - RESPONDENT
and
JIM SWIFT DEFENDANT - APPLICANT
______________________________________________________________________________

______________________________________________________________________________
Kindly take notice that Applicant intends to apply to the abovementioned Court on
_________________at 09:00 for an order in the following terms:
a. That Respondent's action against Applicant be dismissed with costs due to Respondent's
failure to furnish security for Applicant's costs in accordance with the requested dated
________________.
b. That Respondent be ordered to pay the costs of this application.
Signed at Pretoria on this the ___ day of __________________ 2006

_______________________________
Gaius Van Wyk
10 Kirkness Street
Sunnyside
Pretoria

Pretoria

431 Kirkness Street
Sunnyside
Pretoria

_____ day of _______________ 2006
________________________________
76
SCENARIO SIX:
WHERE A PARTY REQUESTS REASON FOR THE JUDGMENT AND DECIDES TO
APPEAL
EXAMPLE 32

HELD AT PRETORIA
Case No. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant

______________________________________________________________________________
REQUEST FOR REASONS FOR JUDGMENT I.T.O. RULE 51

______________________________________________________________________________
Be pleased to take notice that the Plaintiff in the above case hereby requests that the Honourable
Magistrate Z, within 15 (Fifteen) days from receipt hereof, hand to the Clerk of the Court a
written judgment in respect of the trial of the above case that took place on _______________
2006, which judgment will form part of the record and must show:
a) the facts he found to be proved

and
b) his reasons for judgment.
Dated at Pretoria on this the ____ day of __________________ 2006
________________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
Pretoria

10 Kirkness Street
Sunnyside
Pretoria
day of __________________ 2006
_________________________________
77
SCENARIO SEVEN: NOTICE OF APPEAL

EXAMPLE 33

HELD AT PRETORIA
Case No. 1/2006
JILL HILL Plaintiff
and
JIM SWIFT Defendant
______________________________________________________________________________
NOTICE OF APPEAL
______________________________________________________________________________
Kindly take notice that Plaintiff herewith notes an appeal to the Transvaal Provincial Division of
the High Court against the whole of the judgment delivered by the Honourable Magistrate Z on
_____________________in the above matter.
Further take notice that the appeal is based upon the following legal and factual grounds:
1. The honourable magistrate has erred by finding that the plaintiff did not prove his case, for the
following reasons:
a) The honourable court failed to give sufficient weight to the evidence of Mr Frik Vos who
testified that shortly before the accident with plaintiff, the defendant overtook his vehicle
at an excessive speed and sped on.
b) The honourable court failed to make a finding that Mr James Carey, who was allegedly an
eyewitness of the accident between the cars of plaintiff and defendant, was not a credible
witness due to the following material contradictions in his testimony:
i) He initially testified that the accident occurred at 13:00 on 1 March 2006
when he was on his way to buy lunch. During cross-examination he however
testified that it occurred at 09:00 on 1 March 2006 when he was on his way to
work.
ii) He initially testified that defendant drove a blue Nissan Hardbody. During
cross-examination he testified that defendant drove a red Nissan Hardbody.
iii) He initially testified that plaintiff drove at a high speed and could not stop to
prevent the accident. During cross-examination he however testified that she
did not concentrate on the road as she was talking over a cell phone and thus
could not stop timeously to prevent an accident.
Signed at Pretoria on this the ____ day of _________________ 2006
_____________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
78

Pretoria
10 Kirkness Street
Sunnyside
Pretoria

day of _________________ 2006
_________________________________
79
PART II
THE ACTION PROCEDURE IN THE HIGH

COURT
80
a) FRAMEWORK
Plaintiff issues Combined Summons (1)
Sheriff serves (2) Combined Summons on Defendant
Defendant serves Notice of Appearance to Defend (3)
Defendant delivers Plea (4) and Counterclaim (5)
Plaintiff delivers Replication (6)and Plea to

Counterclaim (7)
CLOSE OF PLEADINGS
81
b) INTERIM STEPS THAT THE PARTIES CAN CONSIDER DURING THE

PLEADING PHASE IN THE HIGH COURT:
I.r.o. 3:
Plaintiff can consider: - Summary Judgment
- Provisional Sentence
- Rule 30
Defendant can consider: - Rule 30

- Exception
- Security for Costs
- Special Plea
I.r.o. 4:
Plaintiff can consider: - Notice of Bar
(if Plea is late)
- Rule 30
- Exception
I.r.o. 5:
Plaintiff can consider: - Exception
- Rule 30
- Security for Costs
I.r.o. 6:
Defendant can consider: - Rule 30
- Exception
I.r.o. 7:
Defendant can consider: - Notice of Bar
(if Plea is late)
82
(1) DAMAGES ACTION IN THE HIGH COURT

83
EXAMPLE 34
IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
Case Nr. 10/2006
In the ex parte application of:
JILL HILL Applicant
in re:
JACK HILL Patient

(hereinafter referred to as “the patient”)
for the appointment of a curator ad litem

_____________________________________________________________________________
NOTICE OF MOTION (APPOINTMENT OF CURATOR AD LITEM)

_____________________________________________________________________________
Be pleased to take notice that the applicant intends to make application on ______________ at
10:00 or as soon thereafter as counsel for the applicant may be heard for an order in the
following terms:
1. That Cicero Nel be appointed as curator ad litem for the patient, Jack Hill.
2. That the curator ad litem be authorised to act as set out in annexure “A” hereto.
3. Further and/or alternative relief.
Kindly be pleased to take further notice that the affidavit of Cicero Nel together with the
annexures will be used in support of this application.
Kindly enrol the matter accordingly.
Dated at Pretoria on this ___________ day of April 2006
___________________________
Kirkness Street 431
Sunnyside
Pretoria
TO: The Registrar of the High Court

Pretoria
84
AND TO: The Master of the High Court

Pretoria
AND TO: The RAF

38 Ida Street
Menlo Park
Pretoria
Received copy hereof this ______

day of _______________ 2006
____________________________
RAF
85
EXAMPLE 35

Case Nr. 10/2006
JILL HILL Applicant
in re:
JACK HILL Patient

_____________________________________________________________________________
DRAFT ORDER
_____________________________________________________________________________
After hearing the advocate on behalf of applicant and after reading the papers, the following
terms are made an order of court:
1. That Cicero Nel, an advocate of the Pretoria Bar, be appointed as curator ad litem for
and on behalf of Jack Hill.
2. That the curator ad litem is authorised to:
2.1 Take all necessary steps and take all steps that is necessary for institution of an
action arising from a collision on 1 March 2006;
2.2 Ratify all steps taken and all actions done on behalf of the patient in respect of
the action;
2.3 Sign all documents necessary for the institution, procurement and completion of
the third party action as aforementioned.
2.4 To initiate such negotiations in settlement of the action with a view to finalising
the action to the advantage of the patient. Provided that the curator ad litem will
not have the authority to settle the claim on behalf of the plaintiff without the
prior consent of a judge obtained in open court or in chambers.
2.5 To report to the court regarding the appointment of a curator bonis for the
patient.
86
3. Costs reserved.
By order of Court
________________________
REGISTRAR
87
ANNEXURE A
1. That the curator ad litem is authorised to:
1.1 Take all necessary steps and take all steps that is necessary for institution of an
action arising from a collision on 1 March 2006;
1.2 Ratify all steps taken and all actions done on behalf of the patient in respect of
the action;
1.3 Sign all documents necessary for the institution, procurement and completion of
the third party action as aforementioned.
1.4 To initiate such negotiations in settlement of the action with a view to finalising
the action to the advantage of the patient. Provided that the curator ad litem will
not have the authority to settle the claim on behalf of the plaintiff without the
prior consent of a judge obtained in open court or in chambers.
1.5 To report to the court regarding the appointment of a curator bonis for the
patient.
88
EXAMPLE 36

Case Nr. 10/2006
JILL HILL Applicant
in re:
JACK HILL Patient

_____________________________________________________________________________
FOUNDING AFFIDAVIT
_____________________________________________________________________________
I, the undersigned
JILL HILL
hereby make oath and declare as follows:
1.
1.1 I am the applicant in this matter, an adult female pharmacist resident at 20 Queens
Crescent, Lynnwood, Pretoria.
1.2 The facts mentioned herein fall within my personal knowledge and are true and correct.
2.
I am married to the patient, Jack Hill, identity number ……………………. as confirmation
thereof I attach copy of marriage certificate marked annexure AA.
3.
AD BACKGROUND:
3.1 The patient was involved in a motor vehicle accident on 1 March 2006 while he was a
passenger in a motor vehicle with registration number XYZ 456 GP, driven by
89
myself. The accident occurred at the corner of King and Queen Streets Pretoria when
the aforementioned vehicle collided with another vehicle with registration number
ABC 123 GP.
3.2 The driver of the vehicle with registration number ABC 123 GP was negligent in the
following aspects:
a) he failed to keep a proper look-out;
b) he drove at a speed in excess of the speed limit.
I refer the court to the assessor’s report attached hereto marked annexure A.
4.
AD MEDICAL BACKGROUND
4.1 I humbly refer the Honourable Court to annexure B hereto, being a medical report of
Dr F Erasmus of the Eugene Marais Hospital c/o 5th Avenue and Fred Nicholson
Street, Les Marais, Pretoria wherein the said Dr Erasmus comments on the patient’s
brain injuries.
4.2 I further wish to refer the court to annexure C hereto being the medical legal report of
Drs Lamprecht, Greeff and partners, radiologists at the Eugene Marais Hospital
wherein the patient’s head injuries are also mentioned.
4.3 I further wish to refer the Honourable Court to annexure D hereto being a report by
Wilma Van der Watt, an occupational therapist, practising at 31 Sycamore Street,
Zwartklip, Centurion.
5.
A claim has been filed at the Road Accident Fund on behalf of the patient and I wish to refer
the court to annexure E hereto, being the aforementioned claim form.
6.
In view of the content of the annexures referred to above, it is my humble submission that it
is desirable and necessary that a curator ad litem be appointed.
7.
It is then also the purpose of this application and I humbly refer the Honourable Court to
annexure F hereto, being a letter of consent by advocate Cicero Nel of the Pretoria Bar.
90
8.
I humbly submit that the patient’s condition is such that he is unable to handle his own affairs
and I consequently request that the Honourable Court grant an order as set out in the notice of
motion.

stated that:
Signed before me,
SIGNATURE
FULL NAMES:
CAPACITY:
AREA:
BUSINESS ADDRESS:
91
EXAMPLE 37

Case Nr. 10/2006
JILL HILL Applicant
in re:
JACK HILL Patient


___________________________________________________________________________
LETTER OF CONSENT
___________________________________________________________________________
I, the undersigned
ADVOCATE CICERO NEL
Confirm herewith that I am prepared and available to serve as curator ad litem for the injured
Jack Hill. I am a member of the Pretoria Bar and practise as advocate at 1408 New Court
Chambers, 115 Paul Kruger Street, Pretoria, Gauteng.
Signed at Pretoria on this __________________ day of ___________________ 2006
___________________________
C Nel
92
EXAMPLE 38

Case Nr. 10/2006
JILL HILL Applicant
in re:
JACK HILL Patient

_____________________________________________________________________________
NOTICE OF SET DOWN

___________________________________________________________________________
Kindly take notice that the above matter is set down for hearing on __________________ at
_________________ or as soon thereafter as counsel for the applicant may be heard.
Dated at Pretoria on this ___________ day of ________________ 2006
___________________________
Kirkness Street 431
Sunnyside
Pretoria
TO: The Registrar of the Court
Pretoria
AND TO: The RAF

38 Ida Street
Menlo Park
Pretoria
day of _______________ 2006
______________________
RAF
AND TO: Master of High Court
Pretoria
93
EXAMPLE 39
COMBINED
SUMMONS
Case number:

CICERO NEL N.O. Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
To the sheriff: PRETORIA EAST
Inform
The Road Accident Fund, a legal persona instituted as such and endowed with legal personality
in terms of the provisions of section 2 of the Road Accident Fund Act, Act 56 of 1996 as
amended (hereafter the 1996 Act) with main place of business within the area of jurisdiction of
the above honourable court at RAF Building, 38 Ida Street, Menlopark, Pretoria, Gauteng,
(hereafter the defendant) that
Cicero Nel, an adult male practising advocate of New Court Chambers, Pretoria, who is acting
herein in his capacity as duly appointed curator ad litem for Jack Hill, an unemployed adult
male born on 26 June 1968 (hereafter “the patient”)
Hereby institutes an action against defendant in terms whereof plaintiff claims the legal relief
indicated in the attached particulars of claim, on the grounds set out therein.
94
Further notify the defendant that if the defendant disputes the action and wishes to defend same,
defendant must
(i) Within 10 (ten) days after service upon defendant of this summons, file with the Sheriff
of the High Court, corner Paul Kruger and Vermeulen Streets, Pretoria, a notice of
defendant’s intention to defend and serve a copy thereof on plaintiff’s attorney, wherein
an address as intended in Rule 19(3) is given for the purpose of service on defendant of
all notices and documents in the action.
(ii) Thereafter, and within 20 (twenty) days after entering and serving the notice of intention
to defend as aforesaid with the sheriff, enter a plea, exception, notice of motion for
striking out, with or without a counterclaim and serve same on the plaintiff.
Further inform the defendant that if the defendant fails to enter or serve a notice as aforesaid,
judgment can be requested and granted against the defendant without further notice to the
defendant or if he/she fails to plea, except, apply for striking out or institute a counterclaim after
entering a notice of intention to defend, judgment can also be granted against the defendant.
And immediately thereafter serve a copy of this summons on the defendant and deliver the
original to the Registrar together with a return of what you did with same.
Signed at Pretoria on __________________ day of March 2006
____________________________
Registrar of the High Court
Pretoria
_______________________________
Signed: Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
95
____________________________________________________________________________
____________________________________________________________________________
1.
The plaintiff is Cicero Nel, a practising advocate at New Court Chambers, Pretoria, acting in his
capacity as duly appointed curator ad litem for Jack Hill, an unemployed adult male born on 26
June 1968 (the patient).
2.
The defendant is the Road Accident Fund, a legal persona instituted as such and endowed with
legal personality in terms of the provisions of section 2 of the Road Accident Fund Act, Act 56
of 1996 as amended (the 1996 Act) with main place of business within the area of jurisdiction
of the above honourable court at RAF Building, Ida Street 38, Menlopark, Pretoria, Gauteng.
3.
On 1 March 2006 on the corners of King and Queen Streets, Pretoria, a collision occurred
between a motor vehicle with registration number XYZ 456 GP driven by Jill Hill and a motor
vehicle with registration number ABC 123 GP (hereafter referred to as the insured vehicle)
there and then driven by Jim Swift (hereafter referred to as the insured driver). At the time of
the incident the patient was a passenger in the vehicle with registration number XYZ 456 GP.
4.
The aforementioned collision has been caused by the exclusive negligence of the insured driver,
who was negligent in one, more or all of the following aspects:
4.1 he failed to keep a proper look-out;

4.2 he drove his vehicle at a speed that exceeded the speed limit.
5.
As a result of the aforementioned collision, the patient sustained the following physical injuries:
5.1 Lacerations to right knee and both legs;

5.2 Skull fracture;
5.3 Fracture of base of skull;
5.4 Facial fractures;
5.5 Bruising of his neck.
96
6.
As a result of the injuries that the patient sustained in the aforementioned accident:
6.1 He received medical treatment in a hospital;

6.2 He will have to receive medical treatment, aids and other specialised services in the
future;
6.3 He suffered loss of amenities;
6.4 He suffered pain and discomfort that will probably continue in future;
6.5 He suffered emotional trauma and shock that will probably continue in future.
7.
In the circumstances the patient sustained personal damages in an amount of R942 267-05,
which amount is calculated as follows:
7.1 Past hospital expenses R155 246-85

7.2 Past medical expenses R 37 020-20
7.3 Future medical expenses R200 000-00
7.4 Future loss of earnings earning capacity R400 000-00
7.5 General damages for pain and suffering, discomfort, incapacity,
loss of amenities and bodily mutilation (which amount cannot be
practically subdivided and is claimed as a global amount) R150 000-00
TOTAL R942 267-05
8.
Prior to the institution of this action the patient complied with the provisions of section 62 of the
Act, alternatively the patient is deemed to have so complied in terms of the provisions of section
62(e), and the period prescribed by section 63(a) has since prescribed.
9.
The incident in which the patient’s damage was caused, occurred in the area of jurisdiction of
the above honourable court. The defendant’s main place of business is also situated within the
area of jurisdiction of the above honourable court.
97
10.
In the aforementioned premises, the defendant is liable to pay the abovementioned amount to
plaintiff, but despite demand defendant has to date failed to pay such amount or any part thereof
to plaintiff.
Wherefore plaintiff claims:
a) Payment of the amount of R942 267-05.

b) Should the defendant fail to pay the aforementioned amount or any part thereof within
14 (fourteen) days from date of judgment, then such amount will bear interest at a rate
of 15,5% per year calculated from the date of judgment to the date of payment thereof.
c) Cost of suit.
d) Should the defendant fail to pay the plaintiff’s taxed costs within 7 (seven) days from
receipt of the signed allocatur of the bill of costs, such legal costs will bear interest at a
rate of 15,5% per year calculated from and including the date of the signing of the
allocatur of the bill of costs to date of payment.
e) Further and/or alternative relief.
____________________________
Johannes Voet
Admitted in terms of section 4(2)
of Act 62 of 1995
431 Kirkness Street
Sunnyside
Pretoria
98
EXAMPLE 40

Case Nr. 10/2006
RETURN OF SERVICE
CICERO NEL N.O. on behalf of JACK HILL Plaintiff
and
Nature of process: COMBINED SUMMONS
RETURN OF SERVICE : ROAD ACCIDENT FUND
On 29 May 2006 at 12:00 at 38 Ida Street, Menlo Park, Pretoria a copy of the combined
summons was served on Christina Gonane (administrative clerk) a person apparently older than
16 years, being the address of the Road Accident Fund after the original was shown to aforesaid
person and the nature and content thereof was explained to her. (Rule 4(1)(a)(v))
________________________________
DEPUTY SHERIFF
FROM:
CF NEL
P O Box 714, Pretoria, 0001
Telephone Nr. (012) 326-2305
Fax Nr. (012) 326-2397
Email address: shefeast@m-web.co.za
VAT Reg Nr. 4790168993
Compiler: Mrs/10
TO: The Sheriff of the High Court

Pretoria

431 Kirkness Street
Sunnyside, Pretoria
99
EXAMPLE 41
Case Nr. 10/2006
and
ROAD ACCIDENT FUND Defendant

____________________________________________________________________________
NOTICE OF INTENTION TO DEFEND

____________________________________________________________________________
Kindly take notice that the Defendant, the Road Accident Fund, with principal place of business
at 38 Ida Street, Menlopark, Pretoria hereby gives notice of its intention to defend the above
action.
And further take notice that the Defendant hereby appoints the undermentioned address of his
attorneys for the service on it of all documents in the said action.
Dated at Pretoria on this the ____________ day of June 2006

____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria
To: The Registrar of the High Court
Pretoria
And to: Johannes Voet

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
100
EXAMPLE 42

Case Nr. 10/2006
and

____________________________________________________________________________

____________________________________________________________________________
Kindly take notice that the Defendant requires of Plaintiff, insofar as Plaintiff is in position to
do so, to make available within 10 (ten) days from the date hereof, medical records, hospital
records, x-rays photographs, or other documentary information of a like nature relevant to the
assessment of such damages and to provide copies thereof upon request.
____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria

Pretoria

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
101
EXAMPLE 43
Case Nr. 10/2006
and
____________________________________________________________________________
NOTICE OF OFFER OF SETTLEMENT IN TERMS OF RULE 34(1) & (5)

____________________________________________________________________________
Be pleased to take notice that Defendant tenders in full and final settlement and solely without
prejudice and admission of liability to settle the Plaintiff’s claim in his capacity as curator ad
litem for Jack Hill (the patient) to pay to Plaintiff the amount of R25 000 (Twenty Five
Thousand Rand) within 15 (fifteen) days after acceptance of this tender by Plaintiff.
Be pleased to take further notice that Defendant also tenders to pay Plaintiff’s taxed party and
party costs on a Magistrate’s Court scale to date hereof including the allowable preparation fees
of experts, as agreed between the parties or as may be ordered by the above Honourable Court.

____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
102
EXAMPLE 44
Case Nr. 10/2006
and

____________________________________________________________________________
REPLY TO NOTICE IN TERMS OF RULE 36(4)

____________________________________________________________________________
Kindly take notice that Plaintiff herewith, in accordance with Rule 36(4), provide a list of
medical reports, hospital records and other documentary information that may be relevant to the
determination of the quantum of plaintiff’s claim against defendant.
Kindly further take notice that the following documents can be inspected at the offices of
plaintiff’s attorney of record:
1. Form 1 dated 1 March 2006;
2. Drs Lamprecht, Greeff and Partners dated 1 March 2006;
5. Wilma Van der Walt dated 22 June 2006;
6. Daphne Beukes dated 7 July 2006.
Dated at Pretoria on this the ____________ day of July 2006
___________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
Pretoria
103
And to: Paul Grotius

420 Kirkness Street
Sunnyside
Pretoria

day of _______________ 2006
____________________________
104
EXAMPLE 45
Case Nr. 10/2006
and
JIM SWIFT Defendant

____________________________________________________________________________
DEFENDANT’S PLEA
____________________________________________________________________________
The Defendant pleads as follows to the Plaintiff’s particulars of claim:
1.
1.1 The Defendant admits that the Plaintiff was appointed as the curator ad litem for the
patient who was born on 26 June 1968.
1.2 Defendant has no knowledge of the further allegations contained in this paragraph
cannot admit or deny same and puts the Plaintiff to the proof thereof.
2.
The allegations contained in this paragraph are admitted.
3.
3.1 The Defendant admits that on 1 March 2006 an incident occurred which involved motor
vehicle bearing registration letters and numbers XYZ 456 GP driven by Jill Hill and
motor vehicle ABC 123 GP driven by Jim Swift.
3.2 Each and every further allegation contained in this paragraph is denied and the
Defendant puts the Plaintiff to the proof thereof.
105
4.
4.1 The Defendant denies each and every allegation contained in this paragraph as if
specifically traversed and puts the Plaintiff to the proof thereof.
4.2 In the event of the above Honourable Court finding that a collision occurred as alleged
by Plaintiff and that the driver of motor vehicle ABC 123 GP was negligent as alleged
by the Plaintiff, which is still denied, then and in that event the Defendant denies that
such negligence caused or contributed to the collision.
4.3 In the alternative to paragraphs 4.1 and 4.2 above and in the event of it being held by the
above Honourable Court that a collision occurred as alleged by Plaintiff and that the
driver of motor vehicle ABC 123 GP was negligent and that such negligence caused or
contributed to the collision, all of which is still denied, then and in that event the
Defendant pleads that:
4.3.1 The patient at all material times negligently failed to make use of a seat belt
which was at all reasonable times available for use by the patient in motor
vehicle XYZ 456 GP and in such circumstances in which he reasonable ought to
have made use of such seat belt;
4.3.2 The aforesaid negligent omission by the patient was a cause of or contributed to
the extent of the injuries which he sustained in the collision abovementioned.
5.
AD PARAGRAPHS 5, 6 AND 7 THEREOF:
5.1 The Defendant has no knowledge of the extent of the injuries allegedly sustained by the
patient or the amount of damages allegedly suffered by the Plaintiff, does not admit or
deny them and puts Plaintiff to the proof thereof.
5.2 The Defendant has no knowledge of the further allegations contained in this paragraph,
does not admit or deny same and puts the Plaintiff to the proof thereof.
6.
Defendant denies each and every allegation contained in this paragraph and puts Plaintiff to the
proof thereof.
106
7.
The Defendant admits the allegations contained in this paragraph.
8.
8.1 The Defendant denies being liable to pay to Plaintiff the amount claimed or any other
amount and puts Plaintiff to the proof thereof.
8.2 The Defendant denies every further allegation contained in this paragraph and puts the
Plaintiff to the proof thereof.
Wherefore the Defendant prays that the Plaintiff’s claim be dismissed with costs alternatively
that the Plaintiff’s claim be reduced in accordance with the Apportionment of Damages Act
together with a cost order to the extent of the patient’s contributory negligence in failing to wear
a seat belt.
Dated at Pretoria on this the ____________ day of July 2006.
____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
107
EXAMPLE 46
Case Nr. 10/2006
and

____________________________________________________________________________
NOTICE OF APPLICATION FOR A TRIAL DATE
____________________________________________________________________________
Kindly take notice that the Plaintiff herewith applies for a trial date in the above matter and will
simultaneously herewith make an inscription into the register of applications for trial date held
by the Registrar of the above court.
Kindly further take notice that the defendant has complied with the requirements of Uniform
Rule 37.
Dated at Pretoria on this the ____________ day of __________________2006
___________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
Pretoria

420 Kirkness Street
Sunnyside
Pretoria

day of _______________ 2006
____________________________
108
EXAMPLE 47
Case Nr. 10/2006
and

____________________________________________________________________________
NOTICE OF SET DOWN
Be pleased to set the above matter down for trial on ____________ day of ________________
2006 at 10:00 or as soon thereafter as Counsel may be heard.
Dated at Pretoria on this the ____________ day of __________________2006
___________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
Pretoria

420 Kirkness Street
Sunnyside
Pretoria

day of _______________ 2006
____________________________
109
EXAMPLE 48

Case Nr. 10/2006
and

____________________________________________________________________________

____________________________________________________________________________
Take notice that in terms of Rule 35(1) the Defendant hereby requires the Plaintiff to make
discovery on oath within 20 (twenty) days of receipt hereof of all documents and tape
recordings in his possession or control relating to any matter in question in this action (whether
such matter is one arising between the Defendant and Plaintiff or not) or have at any time been
in the possession or control of the Plaintiff.
Dated at Pretoria on this the ____________ day of August 2006.
____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
110
EXAMPLE 49

Case Nr. 10/2006
and

____________________________________________________________________________
____________________________________________________________________________
Take notice that in terms of Rule 35(10) the Defendant requires the Plaintiff to produce at the
hearing of this matter the originals of all documents or tape recordings discovered by them, not
being privileged documents or tape recordings.
____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
111
EXAMPLE 50

Case Nr. 10/2006
and

____________________________________________________________________________
____________________________________________________________________________
Take notice that in terms of Rule 35(8) the Plaintiff is hereby required to specify in writing,
particulars of dates and parties or to any document or tape recording, intended to be used at the
trial of this action on behalf of the Plaintiff.
____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
112
EXAMPLE 51

Case Nr. 10/2006
and

____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(9)(a)
____________________________________________________________________________
Be pleased to take notice that the Plaintiff intends to call Mr Barry Grobbelaar, mechanical
engineer of 285 Marais Street, Brooklyn, Pretoria, to give evidence on the Plaintiff’s behalf as
an expert at the trial of the above matter.
Dated at Pretoria on this the ____________ day of October 2006
___________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
Pretoria

420 Kirkness Street
Sunnyside
Pretoria

day of _______________ 2006
____________________________
113
EXAMPLE 52
Case Nr. 10/2006
and

____________________________________________________________________________
____________________________________________________________________________
Kindly take notice that Defendant intends to present the following documents as evidence in the
trial of the above matter:
2 Colour photographs of the accident scene, marked Annexure A1 and A2
which can be inspected at the office of Defendant’s attorneys on weekdays from 08:00 to 16:00.
Kindly further take notice that the Plaintiff is required, within 10 days from receipt of this
notice, to admit the authenticity of the aforementioned photographs, failing which the said
documents will be tendered as evidence without further proof.
Dated at Pretoria on this the ____________ day of October 2006.

____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
114
EXAMPLE 53
Case Nr. 10/2006
and

____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(9)(b)
____________________________________________________________________________
Be pleased to take notice that the Defendant delivers herewith a summary of the opinion of the
expert witness Mr Barry Grobbelaar (Accident Reconstruction Analyst) dated __________
October 2006 and his reasons therefor.

____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
115
EXAMPLE 54
Case Nr. 10/2006
and

____________________________________________________________________________
SUBPOENA
____________________________________________________________________________
To the Sheriff or his Deputy:-
Notify: Jim Swift
Auditor
At address: 7 Kingbolt Crescent
Wapadrand
Pretoria
That he is herewith ordered to personally appear before the High Court, Vermeulen Street,
Pretoria on _____________________ at 10:00 and to stay present until he is excused by the
court, in order to testify on behalf of the above plaintiff regarding matters of which he has
knowledge regarding an action that is now pending in the above court, instituted by the Plaintiff
against the Defendant.
And further notify the abovementioned person that he may under no circumstances omit to
comply with this subpoena as he can otherwise expose himself to a fine of R300 (three hundred
rand) or imprisonment of 3 (three) months.
____________________________
Sheriff of the High Court
____________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
116
EXAMPLE 55
Case Nr. 10/2006
and

____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(1) & (2)
____________________________________________________________________________
Kindly take notice that defendant hereby requests that patient, Jack Hill, undergoes a medical
examination at Dr Piet Noble (MBChB) at 947 General Louis Botha Avenue, Constantiapark,
Pretoria at 11:00 on __________________ 2006.
Kindly further take notice that the purpose of the examination is to ascertain the extent and
nature of the patient’s injuries sustained in the motor vehicle accident on 1 March 2006.
Kindly further take notice that:

a) The patient is entitled to have his own medical advisor present;
b) The defendant tenders the patient’s cost for attendance of the examination in the amount
of R_______________ and that defendant will bear the costs of the examination.
Also take notice that if the patient has any objection against the proposed examination, he must
notify the defendant accordingly in writing within 10 (ten) days from delivery of this notice and
he must indicate whether he has any objection against:
a) the nature of the proposed examination;
b) the person who will conduct the examination;
c) the place, date and time of the examination;
d) the amount of costs tendered.
In the event of an objection, the patient may propose an alternative time, date or place for the
examination or provide particulars of such increased amount as he desires.
117
Upon failure to deliver an objection as set out above, it will be deemed that the patient agreed to
the examination on the terms as set out herein.

____________________________
Paul Grotius
420 Kirkness Street
Sunnyside
Pretoria
Pretoria

431 Kirkness Street
Sunnyside
Pretoria
day of _______________ 2006
____________________________
118
EXAMPLE 56
Case Nr. 10/2006
and

____________________________________________________________________________
NOTICE IN TERMS OF RULE 36(9)(a) & 36(9)(b)
____________________________________________________________________________
Please note that the Plaintiff intends to call Dr AP Rossouw, Neurologist of Suite 516, Muelmed
Hospital, Arcadia, Pretoria as an expert witness at the trial of the above matter to give evidence
with regard to his reports dated 25 March 2006.
Kindly further take notice that Plaintiff herewith delivers a summary of the opinion of the
aforementioned Dr Rossouw, dated ____________ and his reasons therefore.
Dated at Pretoria on this the ____________ day of October 2006
___________________________
Johannes Voet
431 Kirkness Street
Sunnyside
Pretoria
Pretoria

420 Kirkness Street
Sunnyside
Pretoria

day of _______________ 2006
____________________________
119
(2) THE DIVORCE ACTION

120
THEORY: THE DIVORCE ACTION
i) CAUSE OF ACTION
The particulars of claim to a divorce summons must mention the following:

1) Citation of parties
2) Allegation of where and when and in terms of which marriage dispensation the parties
concluded a valid marriage and that such marriage still subsists
3) An allegation that the Court has jurisdiction in terms of section 2 of the Divorce Act 70
of 1979.
4) If applicable particulars must be furnished of any minor children born from the marriage
between the parties.
5) An allegation regarding future custody and control of the minor children.
6) An allegation that the marriage relationship between the parties broke down irretrievably.
7) The grounds for breakdowns of the marriage.
8) Compliance with Children’s Act if there are minors involved eg parenting plan.
9) Annexure A with regard to Particulars [Regulation 2 of the Mediation in certain divorce
matters regulations, (1990) Arrangements regarding dependent and minor children].
10) Prayers
NOTE: There must compliance with the regulations promulgated in terms of the Act on
Mediation in Certain Divorce Matters, no 24 van 1987
121
EXAMPLE 57
COMBINED SUMMONS
Case No:
(TRANSVAAL PROVINCIAL DIVISION)
BETTY BUTCHER PLAINTIFF
and
BILLY BUTCHER DEFENDANT
____________________________________________________________________________
TO the Sheriff of his Deputy:
INFORM: BILLY BUTCHER, a adult male doctor, resident at 20 WATENT

CRESCENT, WAPADRAND, PRETORIA, GAUTENG.
(hereinafter called the Defendant) that
BETTY BUTCHER, a adult female nurse, resident at 20 WATENT

(hereinafter called the Plaintiff), hereby institutes action against the Defendant, in which action
the Plaintiff claims the relief and on the grounds set out in the particulars annexed hereto.
INFORM the Defendant further that if Defendant disputes the claim and wishes to defend the
action, the Defendant shall -
(i) Within 10 (TEN) days of the service upon the Defendant of this Summons, file with the
Registrar of this Court at the Court Building, Vermeulen Street, Pretoria, Transvaal, a
Notice of Defendant's intention to defend and serve a copy thereof on the Attorneys of
the Plaintiff, which notice shall give an address (not being a post office or poste
restante) referred to in Rule 19 (3)(b) for the service upon the Defendant of all notices
and documents in the action.
(ii) Thereafter and within TWENTY DAYS after filing and service a Notice of Intention to
Defend as aforesaid, file with the Registrar and serve upon the Plaintiff a Plea,
Exception, Notice to Strike out, with out without a Counter-claim.
122
INFORM the Defendant further that if the Defendant fails to file and serve notice as aforesaid,
Judgement as claimed may be given against the Defendant without further notice to the
Defendant, or if having filed and served such notice, the Defendant fails to Plead, Except, make
application to strike out or Counter-claim, Judgement may be given against the Defendant.
AND IMMEDIATELY thereafter serve on the Defendant a copy of this Summons and return
the same to the Registrar with whatsoever you have done thereupon.
SIGNED at PRETORIA on this _____ day of JANUARY 2000.
_______________________________
REGISTRAR OF THE HIGH COURT
______________________________________
VAN HEERDEN'S INCORPORATED
ATTORNEYS FOR PLAINTIFF
431 KIRKNESS STREET
SUNNYSIDE
PRETORIA
(REF: W VAN HEERDEN)
TEL.: 3445901
123
_____________________________________________________________________________
_____________________________________________________________________________
1.
The PLAINTIFF is BETTY BUTCHER, an adult female nurse resident at 20 WATENT
2.
The DEFENDANT is BILLY BUTCHER, an adult male doctor, resident at 20 WATENT
3.
The parties were married to each other in community of property on 1O MAY 1995 at
PRETORIA, which marriage still subsists.
4.
Both parties are domiciled within the jurisdiction area of the above Honourable Court.
5.
From the marriage between the parties, two minor children were born:
5.1 CATE, a girl, born on 10 MAY 1996;
5.2 DUPLICATE, a girl, born on 10 MAY 1996.
6.
It is in the best interests of the minor children that care and permanent residence be awarded to
the Plaintiff subject to the Defendant’s right of reasonable contact.
7.
The marriage relationship between the parties has broken down irretrievably and there are no
prospects of restoring a normal marriage relationship for the following reasons:
7.1 The Defendant has an affair with TANTALIZING TINA TURNER since 10 MAY
1997, which affair is unacceptable to Plaintiff.
7.2 The Defendant abuses the Plaintiff emotionally.
7.3 There is no meaningful communication between the parties.
7.4 The parties have lost their love and affection for each other.
WHEREFORE PLAINTIFF PRAYS FOR AN ORDER IN THE FOLLOWING TERMS;

1. A decree of divorce;
2. Division of the joint estate;
3. Care and permanent residence of the minor children subject to Defendant's right of
reasonable contact.
4. Maintenance for the minor children in the amount of R1 000,00 per month per child.
5. Cost of suit.
SIGNED AT PRETORIA ON THIS THE ____ DAY OF JANUARY 2000.

_________________________________ _______________________________
C M VAN HEERDEN VAN HEERDEN'S INCORPORATED
ADMITTED IN TERMS OF SECTION 4(2) ATTORNEYS FOR PLAINTIFF
OF ACT 62 OF 1995 431 KIRKNESS STREET
SUNNYSIDE PRETORIA
124
EXAMPLE 58

CASE NR. 40/2000
In the matter between
BILLY BUTCHER PLAINTIFF
and
BETTY BUTCHER DEFENDANT

___________________________________________________________________________
DEED OF SETTLEMENT
___________________________________________________________________________
WHEREAS the plaintiff issued a divorce summons against the defendant wherein she prayed,
inter alia, for the following:
a) A decree of divorce
b) Division of the joint estate
c) Care and control of the minor children born from the marriage subject to defendant’s
right of reasonable access
d) Maintenance for the minor children in the amount of R1 000 per child per month
e) Cost of suit
AND WHEREAS the parties are desirous to settle the matter
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1. Divorce Proceedings
The plaintiff will proceed to obtain a divorce order on an undefended basis.
2. Division of the joint estate
The defendant will pay the plaintiff an amount of R500 000 on 20 March 2000 in
settlement of her claim for division of the joint estate.
3. Care and Control

(a) Care and control of the minor children will be awarded to plaintiff subject to
defendant’s right of reasonable access.
(b) Such right of reasonable access will entail that the defendant may take the
children with him every alternative weekend and one long and one short
holiday per year on condition that such access is exercised in such a manner
that it does not interfere with the scholastic and religious activities of the
minor children.
125
4. Maintenance
(a) Defendant will pay maintenance in an amount of R1 000 per month per minor
child and will also pay all reasonable medical, dental and related expenditures
of the minor children.
(b) The defendant will buy the minor children complete summer and winter
school uniform at the beginning of each school year including any sport year
that the children may need or scholastic purpose.
(c) The maintenance amount will escalate automatically at a rate of 10% per year.
5. Contribution towards costs
The defendant will contribute an amount of R5 000 towards plaintiff’s legal costs
6. Entire Agreement
This agreement constitutes the whole of the agreement between the parties and after
signing hereof the parties will have no further claims against each other save as
mentioned herein.
This provision does not interfere with the plaintiff’s right to approach the court at any
stage for purpose of increasing the maintenance payable in respect of the minor
children.
SIGNED at PRETORIA on this ____________ day of _____________
AS WITNESSES: __________________
__________________
___________________
BETTY BUTCHER
(PLAINTIFF)
SIGNED at PRETORIA on this ____________ day of _____________
AS WITNESSES: __________________
__________________
___________________
BILLY BUTCHER
(DEFENDANT)
126
EXAMPLE 59

CASE NR:
and
_____________________________________________________________________________
NOTICE IN TERMS OF RULE 35(1), (8) AND (10)
_____________________________________________________________________________
KINDLY TAKE NOTICE THAT:
1. Plaintiff requires of Defendant that he discovers under oath, within 20 (TWENTY) days
after delivery of this notice all documents and/or tape recordings that are relevant to an
issue in dispute, whether it arose between the parties or not, and which is or was in his
possession or under his control.
2. Plaintiff requires particulars from Defendant in terms of Rule 35(8), of dates and parties
to documents and/or tape recordings that Defendant is desirous to use, which notice must
be delivered to Plaintiff at least 15 (FIFTEEN) days prior to the trial date.
3. Plaintiff informs Defendant in terms of Rule 35(1) to have the documents discovered as
such, at least 10 (TEN) days prior to the trial.
SIGNED AT PRETORIA ON THIS THE _____ DAY OF JANUARY 2000.
______________________________
JOHANNES VOET
431 KIRKNESS STREET
SUNNYSIDE
PRETORIA
TO: THE REGISTRAR OF THE HIGH COURT

PRETORIA
AND TO: GAIUS VAN WYK

ATTORNEYS FOR DEFENDANT
10 KIRKNESS STREET
SUNNYSIDE
PRETORIA
(REF: G VAN WYK)

____ day of JANUARY 2000.
_________________________________
127
EXAMPLE 60

CASE NO:
and

____________________________________________________________________________
NOTICE IN TERMS OF RULE 37(1)(a)

____________________________________________________________________________
KINDLY TAKE NOTICE that Plaintiff's Attorney herewith requires that Defendant or his
Attorney attend a conference at a mutually suitable time and place, with the purpose of
agreeing on manners to shorten the trial and more specifically in regard to as many as possible
of the following:
1. Admission of facts and documents;
2. Conduct of inspections and examinations;
3. Discovery;
4. Exchange of expert reports;
5. Furnishing of further particulars for trial;
6. Exchange, inspection and communication of plans, photographs, drawings, models and
plans that will be used at the trial;
7. Consolidation of trials;
8. Quantum of damages;
9. Preparation and presentation at trial of copies of correspondence and pleadings in a
paginated file;
10. Locus standi;
11. Any other matters that may serve to shorten the trial.
SIGNED AT PRETORIA AT THIS THE ____ DAY OF JANUARY 2000,.
______________________________
JOHANNES VOET
431 KIRKNESS STREET
SUNNYSIDE
PRETORIA
TO: TO THE REGISTRAR OF

THE SUPREME COURT
128
AND
TO: GAIUS VAN WYK
10 KIRKNESS STREET
SUNNYSIDE
PRETORIA
_____ day of JANUARY 2000.
_________________________________
129
EXAMPLE 61

CASE NO. 50/2000
BETTY BUTCHER APPLICANT
and
BILLY BUTCHER RESPONDENT
___________________________________________________________________________
NOTICE IN TERMS OF RULE 43

___________________________________________________________________________
TO: The abovementioned Respondent
TAKE NOTICE THAT if you intend to defend this claim you must file your reply with the
Registrar of the Court within 10(days), and therein you must furnish an address for service as
indicated by Rule 6(5) and that you must serve a copy thereof on the applicant’s attorneys. If
you fail to do so, you will automatically be barred from defending the matter and judgement
as requested can be granted against you.
In your reply you must indicate which allegations in the Applicant’s affidavit you admit or
deny, and you must set out your defence concisely.
Kindly enrol the matter accordingly.
SIGNED at PRETORIA on this ____________ day of _____________________
__________________________
APPLICANT’S ATTORNEYS
ADDRESS

PRETORIA
AND TO: RESPONDENT’S ATTORNEYS

ADDRESS
130
EXAMPLE 62

CASE NR 50/2000
and

___________________________________________________________________________
AFFIDAVIT
___________________________________________________________________________
I, the undersigned
BETTY BUTCHER
Hereby make oath and declare as follows:
1.
I am the applicant in this matter, an adult female nurse resident at 30 Lockshoe Street,
Wapadrand, Pretoria
2.
The respondent is Billy Butcher, an adult male medical doctor, resident at 20 Watent Crescent,
Wapadrand, Pretoria.
3.
The respondent and I are domiciled within the jurisdiction area of this Honourable Court.
4.
The respondent and I were married to each other in community of property in Pretoria on 10
May 1995, which marriage still subsists.
5.
From the above marriage, two minor children were born:
5.1 Cate, a girl, born on 10 May 1996

5.2 Duplicate, a boy, born on 10 May 1996
131
6.
On 5 January 2000 I issued a divorce summons against respondent in the above Honourable
Court, under case number 40/2000. Respondent has since given notice of intention to defend
and I am currently awaiting his plea. At the hearing of this application the pleadings in the
divorce matter will be made available to this Honourable Court.
7.
The deterioration of the marriage relationship between myself and respondent has reached
such a degree that there are no prospects of restoration of a normal marriage relationship.
The reasons therefore are evident from the particulars of claim to the divorce summons as
referred to above. I therefore submit that my marriage relationship with the respondent has
broken down irretrievably in terms of section 4(1) of the Divorce Act nr 70 of 1979 and it is
my intention to proceed with the divorce action.
8.
The respondent is a man of means and we maintained an above average living standard. In
order to enable the court to determine the respondent’s financial position, I refer this
Honourable Court to the following:
(a) The respondent is a medical doctor who inherited his father, the famous dr Imno
Butcher’s Alternative Healing practice in Eridanus Ave, Waterkloof Heights, Pretoria.
The said practice has a turnover o f R2 million per year. Respondent draws a salary
of R40 000 per month.
(b) The respondent is the owner of a fully paid-up Mercedes Benz E 280 which has a
market value of R200 000.
(c) The respondent is the owner of an unbonded property situate at 20 Watent Cresent,
Wapadrand, which property is valued at R750 000.
(d) All our domestic expenses, which included frequent dining out and relaxation at
luxurious guest houses and spas, were paid for by respondent. The running cost of the
aforesaid amounted to approximately R20 000 per month.
9.
(a) When I realised that our marriage was unsuccessful I started working again in order to
have a source of income in the event of divorce, which seemed to be inevitable. I
currently earn a monthly netto salary of R4 500-00.
(b) I left the common house in Watent Crescent, Wapadrand shortly after having issued
the divorce summons as aforesaid. I am currently renting a three bedroomed
townhouse in Lockshoe Street, Wapadrand which I rent at a monthly rental of R3 000.
The townhouse belongs to a friend of mine who is letting it to me at a very reasonable
rate due to our friendship relationship. My two children are living with me and are at
day care while I work.
(c) I am the owner of a 1997 Toyota Tazz with market value of R40 000.
(d) I have a savings account at Absa Bank with a balance of R15 000.
132
(e) As indicated above my children live with me and I have to make provision for their
maintenance and care which include food, clothing and day care.
(f) My monthly expenditure amount to the following:
Rent 3 000
Petrol 500
Day care for children 800
Clothing (myself) 400
Clothing (children) 400
Medical expenses 400
Groceries 3 000
Telephone 400
Insurance 500
Motor and electricity 500
Recreation and sundry expenses 500
10 400
From the aforesaid it is clear that I am not in a financial position to meet the above
expenditures.
10.
I have requested the Respondent to make a contribution toward the aforesaid expenses but he
indicated to met that I am a leech and that I can wait until the Divorce court determines the
amount of maintenance that he should pay for the children. The respondent’s behaviour is
very unacceptable but it is my opinion that he is merely angry at the fact that I have decided
to proceed with the divorce and move from the common home.
11.
I submit that in view of the aforementioned it is clear that I need the amount of R6 000 as
maintenance pendente lite for myself and my two children. I furthermore submit that the
respondent is in a financial position to pay the said amount. I also need a contribution to my
legal costs in the amount of R10 000.
I therefore humbly request the above Honourable Court to grant an order in the following
terms:
(a) That the respondent pay maintenance of R6 000 per month for myself and our children
pendente lite beginning on the 1st day of March 2000 and thereafter on or before the 1st
day of each consecutive month
(b) That the respondent be ordered to pay a contribution of R10 000 towards my legal costs
(c) Further and/or alternative relief
___________________
BETTY BUTCHER
Signed and sworn to on this ____________ day of _____________ the deponent having
acknowledged that she knows and understands the contents of this affidavit and that she has no
objection against taking the prescribed oath, which oath she regards us binding on her
conscience.
___________________________
133
EXAMPLE 63
CASE NR 50/2000
and

___________________________________________________________________________
DEFENDANT'S PLEA
___________________________________________________________________________
Kindly take notice that defendant pleads as follows to plaintiff's particulars of claim:
1.
Ad paragraph 1, 2, 3, 4 and 5 thereof
The contents of these paragraphs are admitted
2.
Ad paragraph 6 thereof
Defendant admits the contents of this paragraph.
3.
Ad paragraph 7 thereof
Defendant denies the allegations in this paragraph and that the marriage relationship between
the parties broke down irretrievably.
Wherefore defendant prays that plaintiff's claim be dismissed with costs.
Signed at _________________________ on _________________________
__________________________
DEFENDANT'S ATTORNEY
ADDRESS
To: THE REGISTRAR OF THE HIGH COURT
And to: PLAINTIFF'S ATTORNEY

ADDRESS
134
PART III
PROVISIONAL SENTENCE
135
THEORY: PROVISIONAL SENTENCE : CHEQUE
The following necessary allegations must be made:

1) Plaintiff is the holder of a cheque
2) The cheque was drawn by defendant
3) The cheque was duly presented for payment
4) The cheque was dishonoured by non-payment
5) Notice of dishonour is dispensed with in terms of section 48 (2)(c) of the Bills of
Exchange Act 34 of 1964
6) Defendant still fails, despite demand to effect payment
(A copy of the face and reverse sides of the cheque must be attached to the summons)
136
EXAMPLE 64
Issued by Case nr.
Clerk of the Court Date R20,00 Revenue Stamp

1. No 2A SUMMONS : PROVISIONAL SENTENCE
Issued out by:
NAGEL INCORPORATED
431 BOOM STREET
SUNNYSIDE, PRETORIA (signed)
Tel: (012) 586 0000 Docex: 1 Signature of plaintiff or his attorney
Postal address: PO BOX 213 Ref: File KD 1538
PRETORIA, 0001
IN THE MAGISTRATE`S COURT FOR THE DISTRICT OF PRETORIA
HELD AT PRETORIA

CONCORDIA (PTY) LTD PLAINTIFF
and
MR HORRIBLE HARRY DEFENDANT
To: MR HORRIBLE HARRY, an adult builder t/a Mainman Builders at 11 Block Avenue, Lyttelton, Pretoria,
Gauteng, at which address the defendant is also resident
1) You are hereby summoned to immediately after service of this summons pay to the hereinmentioned
plaintiff an amount of R50 000 together with interest calculated at 15,5% p.a. from 13 December 2001
and costs.
Plaintiffs claim against defendant for payment of the abovementioned amount is for:
As set out on Annexure attached hereto
2) On default of payment, you are hereby called upon to appear personally or by legal practitioner before
Court 32A, Pretoria, on _______________________ at 09h00 (or as soon thereafter as the matter may be
heard) in order to admit or deny your liability with regard to the above claim;
3) If you deny liability, you must not later than _____________________ file an affidavit with the clerk of
the court of which you must serve a copy on the plaintiff or his attorney at the address as set out in the
summons wherein you must mention the grounds of your defence to the claim and you must specifically
mention whether you admit or deny that it is your signature or the signature of your agent that appears on
the said cheque, and if it is the signature of your agent, whether you admit or deny the agent’s authority.
You are further notified that if you do not immediately pay the aforementioned amount and interest to the plaintiff
and if you also fail to file an affidavit as mentioned above and fail to appear before this court in the above specified
time, provisional sentence will forthwith be granted against you with costs but that against payment of the said
amount, interest and costs, you will be entitled to demand security for the restitution thereof if the said sentence is
thereafter reversed.
Costs if the action is undefended will be as follow:

Summons Judgment
R c R c
Attorney’s Charges
Court fees
Section 56 letter of demand
Sheriffs fees
Sheriffs fees on re-issue
Totals R
Total _____________ R ____________
VAT is included in fees and disbursements
137
AND TAKE NOTICE THAT –

(a) if you pay the said claim and costs immediately judgment will not be given against you herein and you will save judgment charges;
(b) if you admit the claim and wish to consent to judgment, you may file with the clerk of the court an admission of liability signed by
yourself and witnessed by your attorney, or otherwise verified by affidavit, and if you wish to undertake to pay the claim in
instalments or otherwise, you may approach the plaintiff or his attorney.
NOTICE –
(i) Any person against whom a court has, in a civil case, given any judgment or made any order who has not, within 10 days, satisfied in
full such judgment or order may be called upon by notice in terms of section 65A(1) of the Act to appear on a specified date before
the court in chambers to enable the court to inquire into the financial position of the judgment debtor and to make such order as the
court may deem just and equitable.
(ii) If the court is satisfied that -
(aa) the judgment debtor or, if the judgment debtor is a juristic person, a director or officer of the juristic person has
knowledge of the abovementioned notice and that he or she has failed to appear before the court on the date and at the
time specified in the notice;
or
(bb) the judgment debtor, director or officer, where the proceedings were postponed in his or her presence to a date and time
determined by the court, has failed to appear before the court on that date and at that time; or
(cc) the judgment debtor, director or officer has failed to remain in attendance at the proceedings or at the proceedings so
postponed,
the court may, at the request of the judgment creditor or his or her attorney, authorize the issue of a warrant directing a sheriff to
arrest the said judgment debtor, director or officer and to bring him or her before a competent court to enable that court to conduct a
financial inquiry.
[Section 65A(6) of the Act]
(iii) Any person who -
(aa) is called upon to appear before a court under a notice in terms of section 65A(1) or (8)(b) of the Act (where the sheriff, in
lieu of arresting a person, hands to that person a notice to appear in court) and who wilfully fails to appear before the
court on the date and at the time specified in the notice; or
(bb) where the proceedings were postponed in his or her presence to a date and time determined by the court, wilfully fails to
appear before the court on that date and at that time; or
(cc) wilfully fails to remain in attendance at the proceedings or at the proceedings so postponed,
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three months. [Section
65A(9) of the Act]
(iv) On appearing before the court on the date determined in the notice in terms of section 65A(1) or (8)(b) of the Act in pursuance of the
arrest of the judgment debtor, director or officer under a warrant referred to in section 65A(6) of the Act or on any date to which the
proceedings have been postponed, such judgment debtor, director or officer shall be called upon to give evidence on his or her
financial position or that of the juristic person and his or her or its ability to pay the judgment debt. [Section 65D of the Act]
2. Admission of liability
Kindly take notice that the defendant is liable to the plaintiff as claimed in this summons
Dated at ........................ this ....................day of ............................20………..

.................................................
Defendant
(Must be witnessed by defendant’s attorney or otherwise verified by affidavit)
3. Notice of intention to defend*

To: THE CLERK OF THE COURT
Kindly take notice that the defendant denies liability and that his affidavit setting forth the grounds upon which he
disputes liability is attached hereto.
Dated at ........................... this.......................day of.............................. 20…………….

.................................................
Defendant/Defendant’s attorney
…………………………………………………….
(Address where service of process
and documents shall be accepted)
……………………………………………………..
(Postal address)
_______________________________________
*The original notice and affidavit must be filed with the clerk of the court and a copy thereof served on the
plaintiff or his attorney.
[Form 2A inserted by GN R498 of 1994, as corrected by GN R710 of 1994, and
amended by GN R910 of 1998.]
138
PARTICULARS OF CLAIMS
1
The Plaintiff is Concordia Concrete (Pty) Ltd, a private company with limited liability duly
incorporated in terms of the Companies Act 76 of 1973 of the Republic of South Africa with
registered office and main place of business at 5 ANDRIES STREET, PRETORIA,
GAUTENG.
2
The Defendant is Horrible Harry an adult male builder t/a Mainman Builders at 11 BLOCK
AVENUE, LYTTELTON, PRETORIA, GAUTENG.
3
The Plaintiff is the holder for value of a cheque in the amount of R50 000 dated 1
DECEMBER 2000 drawn by Defendant in favour of Plaintiff on the Cantonment Road
Branch of Absa Bank and delivered by Defendant to Plaintiff.
4
The Plaintiff duly presented the cheque for payment at the said branch but the cheque was not
paid out by the bank and was dishonoured due to insufficient funds in Defendant's account.
5
In terms of the Provisions of Section 48 of the Negotiable Instruments Act nr 34 of 1964 the
Plaintiff is exempted from any obligation to give notice of refusal as the bank was not obliged
to pay out the said cheque due to insufficient funds.
6
The cause of action wholly arose within the jurisdiction area of the above honourable court.
WHEREFORE the Plaintiff claims for judgment against Defendant in the following terms:
a Payment of the sum of R50 000.00.

b Interest on the above amount calculated at 15.5% per annum from 3 December 2001
being the date on which Plaintiff presented the cheque for payment.
c Costs of suit.
(sgnd) J DE SWART
_____________________________
PLAINTIFF'S ATTORNEYS
NAGEL INCORPORATED
431 BOOM STREET
SUNNYSIDE
PRETORIA
Tel: (012) 586-0000 Docex: 1
Ref: J DE SWART
File No: KD1523
139
PART IV
AGENT'S COMMISSION
140
a) THEORY: AGENT'S COMMISSION
CAUSE OF ACTION
The material allegations that have to be made are the following:
1. Compliance with the provisions of the Estate Agent's Act, 112 of 1976
In terms hereof a person may only act as an estate agent and is only entitled to collect
commission if he:
a) is in receipt of a valid Fidelity Fund certificate;

and
b) is in possession of Fidelity Insurance.
2. A mandate to find a buyer or seller
The general rule is that the seller is liable for payment if commission even if the mandate is
silent about same.
3. Specific performance of the mandate
This entails the following:
a) Material compliance with the provisions of the mandate;

b) Introduction of a willing and able buyer;
c) Conclusion of a binding contract;
d) The introduction by the agent of the buyer to the seller must be the effective cause of
the conclusion of the contract.
4. That agent's commission is payable

141
EXAMPLE 65
b) PARTICULARS OF CLAIM: AGENTS COMMISSION
1.
Plaintiff is Housestory CC, a closed corporation duly registered and incorporated in terms of
the Close Corporation Act, with registered office at 10 Lynnwood Avenue, Lynnwood,
Pretoria.
2.
Defendant is Stingy Sam, an adult male auditor resident at 5 Sysielaan, Garsfontein, Pretoria.
3.
At all material times Plaintiff was the holder of a valid fidelity fund certificate issued to
plaintiff by the Board of estate agents in terms of section 26 of Act 112 of 1976.
4.
At all relevant times plaintiff possessed fidelity fund insurance in terms of the provisions of
Act 112 of 1976.
5.
At all relevant time Tough Eberhard (hereafter referred to as the agent) was an estate agent in
the employ of Plaintiff and he acted in the course and scope of his employment with plaintiff.
6.
During May 2001 and at Pretoria Luscious Lola (hereinafter referred to as the seller) gave a
written mandate to Plaintiff to find a buyer for his property situated at 5 Dollar Street, Silver
Lakes, Pretoria. Copy attached marked annexure “A”.
7.
In the execution of the above mandate Plaintiff through its agent sold the aforementioned
property to the Defendant as a "willing and able buyer" in terms of a written agreement of
sale, attached hereto, marked annexure "B".
8.
Plaintiff was the effective cause of the said sale and duly complied with its obligations in
terms of the mandate.
9.
In terms of the agreement of sale, the sale of the property was subject to the following
conditions:
9.1 Payment of a deposit of R50 000 at the signing the agreement of sale;
9.2 Obtaining of a loan of R450 000 by defendant from Absa Bank within 30 days after
signing of the agreement of sale.
10.
The parties have agreed that an estate agents commission of R17 000 would be payable in
terms of the agreement of sale.
142
11.
In spite of compliance with the aforementioned conditions, Defendant however failed to
proceed with the sale.
12.
Defendant was notified in writing of such failure in accordance with paragraph 10 of the
agreement of sale.
13.
The said agreement of sale was consequently cancelled due to defendant's failure to proceed
with the sale.
14.
In the aforesaid premises Plaintiff is consequently entitled to claim the aforementioned
agreed commission from the Defendant.
15.
Despite demand Defendant fails/refuses to pay the aforementioned commission or any part
thereof to Plaintiff.
Wherefore Plaintiff claims against Defendant:

1. Payment of the amount of R17 000;
2. Interest @ 15,5% a tempore morae;
3. Cost of suit;
143
PART V
INTERDICTS AND SPOLIATION

144
1. THEORY: INTERDICTS AND SPOLIATION
1.1 Interdicts
An interdict is a type of court order in terms whereof a person is ordered to do a specific act or to
refrain from doing a specific act. It is prerequisite for the granting of an interdict that there must
be a real or threatening infringement upon the applicant’s rights.
The magistrates court has no jurisdiction to grant an interdict that amounts to an order for
specific performance of a contractual obligation
There are three types of interdicts:

- prohibitory interdicts;
- mandatory interdicts;
- restitutory interdicts.
Insofar as the procedure for obtaining an interdict is concerned, it is important to note that an
interdict can be obtained by means of the action procedure or the application procedure. The
procedure used will depend on whether a trial with oral evidence and cross-examination is
anticipated to.
In order to obtain an interdict, the applicant must convince the court of the following:
i) That he has a clear right
(Where the applicant applies for a final interdict he must prove this right on a preponderance of
probabilities. Where he applies for an interim interdict it is not necessary to prove the clear right
on a preponderance of probabilities.)
ii) That there was an injury
For both an interim and a final interdict the plaintiff must establish that the respondent
conducted himself in a manner that infringed upon the applicant's right or that the applicant
viewed objectively has a well grounded apprehension that the respondent will conduct himself in
such a manner. The applicant must also set out the grounds for his "apprehension".
iii) That no other remedy is available
If the prejudice is irreparable unless the conduct complained about is terminated, an interdict
will be the only available remedy. In general an interdict will not be granted where an award of
damages will sufficiently compensate the applicant or where other legal relief is available.
1.2 Spoliation
The mandament van spolie is a restitutory interdict that is to the avail of a possessor who is
deprived of his possession of an item by another person on the pretext that the latter was entitled
to do so or where the possessor has otherwise been deprived of possession unlawfully.
145
The mandament van spolie is usually applied for by means of an ex parte application supported
by an affidavit. In the affidavit, the applicant briefly sets out the facts upon which the
application is based as well as the nature of the desired legal relief.
Before the court will grant the application, the applicant must indicate on a preponderance of
probabilities that:
i. He was in peaceful and undisturbed possession of the item:

and
ii. That the respondent deprived him of possession in a violent or unlawful manner or
against his will.
It is not necessary for the plaintiff to make out a prima facie case that he was lawfully in
possession. The purpose of the mandament is merely to confirm the principle that the law may
not be taken into a party's own hands. The respondent must thus prove that the deprivation of
possession was lawful in the sense that the applicant was not in possession of the item when it
was deprived or that, for example, he surrendered the item voluntarily to the plaintiff.
1.3 Anton Piller Orders and Mareva Injunctions
Within the ambit of interdicts, two remedies, i.e. the Anton Piller Order and Mareva
injunction developed within the English law.
In the case of the Anton Piller order the applicant usually asks for the authority to search for
and attach property and/or documents in the possession of the respondent. This remedy finds
application where there is a fear that material may disappear and might thus not be available
as evidence during the trial. The remedy is thus for the attachment of documents or things to
be preserved as evidence. Sometimes the application is for the disclosure of information.
Care must be taken to execute such orders strictly in accordance with the court order since it
may be extremely detrimental to the respondent. It is to be noted that this type of order first
developed in English law and the name has been derived from the English case Anton Piller
KG v Manufacturing Processes Ltd & Others [1976] 1 All ER 779 (CA). It was recognised as
a remedy in South African law in Universal City Studios Inc & Others v Network Video (Pty)
Ltd 1986 (2) SA 734 (A) and Shoba v Officer Commanding, Temporary Police Camp,
Wagendrift Dam, & Another; Maphanga v Officer Commanding, SA Police Murder &
Robbery Unit, Pietermaritzburg, & Others 1995 (4) SA 1 (A).
As far as the Mareva injunction is concerned Prest (Interlocutory Interdicts) on 172 states that
the Mareva principle as applied in our law entails that “where an applicant can establish that
the respondent has no bona fide defence to an action and that, objectively considered, there
are good grounds for fearing that he intends to make away with his assets in order to defeat
the applicant’s claims, the court may grant an interdict restraining the respondent from
parting with his property pending the result of an action.” This order can thus be given
against a debtor or against a third party in possession of asset (property) of the debtor. The
general effect of the interdict is thus to provide some guarantee that there will be assets
available to satisfy an eventual judgment against the defendant in the main case. The interdict
is however directed against the possessor (debtor or third person) personally, in that it
restrains such persons from dealing with the goods in question. (The term Mareva is not
approved of by the appellate division but a similar remedy was acknowledged in Knox
D’Arcy Ltd v Jamieson 1996 (40 SA 348 (AD)).
146
EXAMPLE 66
FOUNDING AFFIDAVIT: SPOLIATION
I, the undersigned
Sad Sammy

1.
I am the applicant in this matter, an adult female teacher resident at 5 Tears Avenue, Capital
Park, Pretoria and the facts deposed herein are within my personal knowledge and I can and
do swear positively to the truth thereof.
2.
The respondent is Horrible Harry on adult businessman resident at 10 Grab Avenue,
Mayville, Pretoria.
3.
On 1 January 2001 respondent and I entered into an oral instalment sale agreement in terms
whereof respondent sold to me a Mazda 626-vehicle, registration number XYZ 123 GP, for
an amount of R12 000.
4.
It was provided in terms of the agreement that I would pay respondent R1 000 per month
towards the purchase price from 31 January 2001.
5.
The vehicle was delivered to me by respondent.
6.
At all relevant times I was in peaceful and undisturbed possession of the vehicle.
7.
On 10 October 2001 respondent unlawfully retook possession of the vehicle from myself.
8.
The said repossession occurred without my consent and without respondent having recourse
to the law.
Wherefore applicant prays for:

a) Return of the Mazda-vehicle as described above.
b) Cost of suit.
c) Further and/or alternative legal relief.
Signed and sworn to on this ____________ day of _____________ the deponent having
acknowledged that she knows and understands the contents of this affidavit and that she has no
objection against taking the prescribed oath, which oath she regards us binding on her
conscience.
___________________________
147
PART VI
SEQUESTRATION AND REHABILITATION

APPLICATIONS
148
THEORY: VOLUNTARY SURRENDER
Rule 6 of the Uniform Rules of Court and form 2 of the prescribed High Court Forms. The
definitions of in section 2 of the Insolvency Act 24 of 1936; sections 3-7 and 13 of the
Insolvency Act 24 of 1936.
In brief the ex parte application (motion) and founding affidavit must contain the following:
 Citation
 Compliance with formalities:
o Notice of surrender;
o Notice to creditors;
o Notice to employees; trade unions (if applicable);
o Notice to SARS
o Statement of affairs
 Insolvent (balance sheet) and facts to establish this
 Free residue sufficient to meet costs of sequestration
 Reasons for insolvency
 Property that my be utilised
 Advantage of creditors
 Income and expenditure of debtor
EXAMPLE 67
Notice of motion
( ................................................. DIVISION)
In the matter of: CASE NUMBER ................................
........................................................ Applicant
NOTICE OF MOTION
TAKE NOTICE that application will be made to the abovementioned Honourable Court on
......... the ...... day of ........... 20... at 10 a.m. or as soon thereafter as counsel may be heard for
an order in the following terms:–
(a) For the acceptance of the surrender of the Applicant’s estate;
(b) alternative relief as the Court may deem fit.
and that the affidavit of .................................... and annexures hereto will be used in support
of the application.
Kindly place the matter on the roll for hearing accordingly.
Dated at ............... this ..... day of ............. 20 ....
...............................................................
APPLICANT’S ATTORNEY
TO: THE REGISTRAR OF THE HIGH COURT,
....................................................................................................................................
AND TO: THE MASTER OF THE HIGH COURT,
....................................................................................................................................
Copy hereof received on this ........ day of ................... 20.....
Affidavit
( ................................................. DIVISION)
149
In the ex parte application of: CASE NUMBER ......................

Applicant
AFFIDAVIT
I, the undersigned, (applicant)
....................................................................................................................................
do hereby make oath and say:
1.
I am the applicant in this matter and the facts mentioned herein are within my personal
knowledge.
2.
I am an adult male/female presently residing at
....................................................................................................................................
and employed as ........................................................................................................
by ...............................................................................................................................
My identity number is ....................................... I am unmarried/married to ................... ,
identity no ................... [Join both spouses as co-applicants where they are married in
community of property] out of community of property.
3.
I am domiciled within the jurisdiction of the above Honourable Court.
4.
By misfortune and without fraud or dishonesty on my part, I have become insolvent. The
reasons for my insolvency are evident from the detailed statement contained in annexure VII
of my statement of affairs which is attached hereto as annexure “A”.
5.
A copy of my statement of affairs was lodged at the office of the Master of the High Court
(................... Division) and the office of the Magistrate of ............. as prescribed by sections
4(3) and (5) of the Insolvency Act 24 of 1936 which was open for inspection by my creditors
during office hours for a period of 14 days, calculated from the .......... day of ............ 19 ... I
further attach hereto annexures “B” and “C” respectively, being the certificates of the
aforementioned Master of the High Court and Magistrate which confirm this.
6.
I further refer the above Honourable Court respectfully to the contents of my statement of
affairs and documents attached hereto (annexure “A”) from which it appears that my total
debts amount to R ........... while my total assets amount to R .......... which is a clear indication
of my insolvency. I do not have any cash except for my salary, most of which I need to
support myself and my dependants.
7.
The notice of surrender was published in the Government Gazette of the .......... 19..... and in
‘.....................’ newspaper of the ............. 19..... as prescribed by section 4(1) of the
Insolvency Act 24 of 1936 and I attach hereto the relevant page of the Government Gazette as
annexure “D” and of the .......................... as annexure “E” to which I respectfully refer the
above Honourable Court.
8.
There is realisable property in my estate of a sufficient value to defray all costs of the
sequestration which in terms of the said Act are payable out of the free residue of the estate. I
respectfully refer the above Honourable Court to annexure II of my statement of affairs
(annexure “A”) from which it appears that the value of the movable property amounts to
R.......... It is my respectful submission that this amount will be more than sufficient to cover
all costs of the sequestration.
150
9.
I furthermore respectfully submit that it will be to the advantage of my creditors if my estate
was to be sequestrated and the surrender of my estate accepted because –
(a) I am not able to pay my debts and various creditors have already instituted action
against me. Some of them have already obtained judgment against me.
(b) I expect that other creditors will also institute actions against me.
(c) My creditors will receive a substantial dividend if the assets in my estate are realised by
a trustee.
(d) My current salary amounts to R....... per month, which amount is barely sufficient to
cover the costs of supporting myself and my dependants.
10.
Notice has been given by registered post within 7 days of publication of the notice of
surrender to all my creditors whose addresses were known or ascertainable as required by
section 4(2)(a) of the Insolvency Act 24 of 1936. I attach hereto a document as proof that my
notice of surrender was sent to these creditors on the .......... day of ...................... 19..... by
registered post, as annexure “F”.
11.
surrender to every registered trade union that, to my knowledge, represents any of my
employees as required by section 4(2)(b)(i) of the Insolvency Act 24 of 1936,. I attach hereto
a document as proof that my notice of surrender was sent to such trade union(s) .......... day of
...................... 19..... by registered post, as annexure “G”. [Note: Indicate that the provision is
not applicable if there is no such a trade union(s)]
12.
Notice has been given within 7 days of publication of the notice of surrender to the
employees themselves by ….(Indicate the prescribed mode of notification that was followed.
This notification may be effected by affixing the notice to any notice board to which the
employees have access inside the debtor’s premises; or, if there is no access to the premises
by the employees, by affixing a copy of the notice to the front gate of the premises, where
applicable, failing which to the front door of the premises from which the debtor conducted
any business immediately prior to the surrender.) as required by section 4(2)(b)(ii) of the
Insolvency Act 24 of 1936. I further attach hereto a document as annexure “I” that notice to
employees was effected as prescribed by section 4(2)(b)(ii),,, of the Insolvency Act 24 of
1936. [Note: If the provision is not applicable, indicate as such.]
13.
surrender to the South African Revenue Services as required by section 4(2)(b)(iii) of the
Insolvency Act 24 of 1936. I attach hereto a document as proof that my notice of surrender
was sent to such trade union(s) .......... day of ...................... 19..... by registered post, as
annexure “I”.
14.
My estate has never been declared insolvent and as far as I am aware there is no pending
application for the sequestration of my estate in this court or in any other court in South
Africa.
151
15.
Therefore the above Honourable Court is respectfully requested to issue an order in
accordance with the prayers contained in the Notice of Motion.
........................................
I certify that the deponent acknowledged that he knew and understood the contents of the
above declaration, did not have any objection to taking the prescribed oath and considered it
to be binding on his conscience. I thereafter administered the oath by causing him to utter the
following words: “I swear that the contents of this declaration are true, so help me God”, and
thereafter the deponent in my presence signed the declaration on this ....... day of ....................
19..... on which date and at which place I also signed this certificate.
.............................................................
FULL NAMES
EX OFFICIO
ADDRESS:
152
THEORY: COMPULSORY SEQUESTRATION
Rule 6 of the Uniform Rules of Court and form 2(a) of the prescribed High Court Forms. The
definitions of in section 2 of the Insolvency Act 24 of 1936; sections 3-7 and 13 of the
The creditor(s) of an estate could also apply for the compulsory sequestration of the estate.
The application is also brought by way of notice of motion supported by one or more
affidavit(s). Seen from a creditor's point of view, this is a form of final execution.
Scheme of compulsory sequestration
Application (motion) with notice:
 Citation of parties
 Jurisdiction
 Formalities: security; notice to employees; trade unions, debtor and SARS
 Particulars concerning the claim of applicant (amount , secured or not)
 Act(s) of insolvency committed or factual insolvency
 Reason to believe that sequestration will be to the advantage of creditors
 Statement that copy of application will be lodged with the Master
EXAMPLE 68
Notice of Motion

( ................................................. DIVISION)
In the matter between: CASE NUMBER ................................
………………………………………………………………………………………….Applica
nt
and
………………………………………………………………………………………Responden
t
NOTICE OF MOTION
TAKE NOTICE THAT ...............(hereinafter called the applicant) intends to make
application to this Court for an order that:
1 The estate of the Respondent is provisionally sequestrated and the assets be placed in the
hands of the Master of the High Court.
2 The costs of this application be costs of sequestration.
3 Such alternative relief as the Honourable Court deems fit.
TAKE NOTICE FURTHER THAT the applicant has appointed.............. (here set forth an
address referred to in rule 6(5)(b)) at which he will accept notice and service of all process in
these proceedings.
TAKE NOTICE FURTHER THAT if you intend opposing the application you are required
(a) to notify applicant’s attorney in writing on or before the........ (b) and within fourteen days
of the service of this notice upon you, to file your answering affidavits, if any; and further
that you are required to appoint in such notification an address referred to in rule 6(5)(b) at
which you will accept notice and service of all documents in these proceedings.
153
If no such notice of intention to oppose be given, the application will be made on the
............................. at .... a.m.
Dated at ........................ this ........... day of ...... 20 ....
...............................................................
....................................................................................................................................
AND TO: THE MASTER OF THE HIGH COURT
....................................................................................................................................
AND TO: THE RESPONDENT
....................................................................................................................................
(PER SHERIFF)
Affidavit

( ................................................. DIVISION)
CASE NUMBER ................................
………………………………………………………………………………………..Applicant
and
…………………………………………………………………………Respondent
AFFIDAVIT
I, the undersigned,
....................................................................................................................................
do hereby make oath and say:
1.
I am the applicant in this matter and the facts contained herein are within my personal
knowledge. I am an adult male/female presently residing at ....................................
2.
The respondent(s) is/are ............................... a ............. date of birth .......... identity number
...............
of ...............................................................................................................................
The respondent(s) is/are unmarried/married out of community of property to/ married in
community of property to each other
.............................date of birth.............................identity number.............................
[Note: If the above particulars as contemplated by section 9(3)(a)(i) and (ii) of the Insolvency
Act 24 of 1936 cannot be furnished, the applicant –creditor must state reasons why he is
unable to do so - – section 9(3)(c) of the Insolvency Act 24 of 1936. It is submitted that it
must further be stated that the marital status is unknown to the applicant. The particulars
regarding the marital status must otherwise be cited in both the heading and the affidavit. See
also section 17(4) of the Matrimonial Property Act 84 of 1984 that requires similar
information regarding the marital status of the respondent -debtor.] ].
3.
The respondent is domiciled within the jurisdiction of the above Honourable Court.
4.
The respondent is lawfully indebted to me in the amount of R........... being monies lent and
advanced to him, for which amount I obtained a judgment from this Honourable Court on
....................... The judgment remains wholly unsatisfied. I, therefore, have a liquidated claim
against the respondent in excess of R100. I annex a copy of the judgment marked ‘............’.
154
5.
I humbly submit that the respondent committed an act of insolvency as envisaged by section
8(_) of the Insolvency Act 24 of 1936 in that: (State the particular act of insolvency by
following the wording of the particular subsection of s 8 of the Act or by relying on the
respondent’s actual insolvency. Attach any document of proof to the affidavit by way of an
annexure.)
6.
I hold no security for my claim/hold security in the form of ................... over ................... of
the respondent for an amount of ........................... which security I value in the sum of
R..............................
7.
7.1 The respondent is the registered owner of immovable property being ........................
which he holds under Deed of Transfer No. ...................... The property is subject to a
mortgage bond in the amount of ............................ in favour of ............................ which
bond was registered on ...........................
7.2 The property referred to in 7.1 has been attached by several creditors of the respondent
and a sale in execution is to be held on ............................at......................
8.
It is respectfully submitted that there is reason to believe that it will be to the advantage of
creditors if the estate of respondent is sequestrated for inter alia the following reasons:
8.1 If the sale of the property as advertised proceeds a substantial benefit will accrue to some
creditors and all the other creditors will likewise be prejudiced.
8.2 The sale of .........................................................................................................
will result in much lower proceeds and this is to the detriment of the creditors.
8.3 The appointment of a trustee will ensure that the property of the respondent can be realised
for the true value and to the advantage of the creditors as a group. The trustee will also
have the power to take charge of the insolvent’s estate, investigate all the circumstances
surrounding the respondent’s financial difficulties and his actions regarding his estate with
the view of reporting to the creditors and taking action accordingly.
9.
As required by section 9(4A)(a)(i) of the Insolvency Act 24 of 1936 I have …by registered
post/ service/ delivery furnished (a) copy of the application to every registered trade union
that, as far as could reasonably be ascertained, represents any of the debtor’s employee(s). I
attach hereto a sworn affidavit as annexure “B” as prescribed by section 9(4A)(b) of the
Insolvency Act 24 of 1936 as proof that the application has been furnished to the trade
union(s)/ alternatively that it will be submitted before or during the hearing. [Indicate as such
if the section is not applicable.]
10.
As required by section 9(4A)(a)(ii) of the Insolvency Act 24 of 1936 I have …by registered
post/ service/ delivery…. furnished (a) copy of the application to employee(s) of the debtor
….(Indicate the prescribed mode of notification that was followed. This notification may be
carried out by affixing the application to any notice board to which the employees have
access inside the debtor’s premises; or, if there is no access to the premises by the employees,
by affixing it to the front gate of the premises, where applicable, failing which to the front
door of the premises from which the debtor conducted any business immediately prior to the
surrender.)….. I attach hereto a sworn affidavit as annexure “C” as prescribed by section
9(4A)(b) of the Insolvency Act 24 of 1936 as proof that the application has been furnished to
the employee(s)/ alternatively that it will be submitted before or during the hearing. [Note:
Indicate as such if the section is not applicable.]
155
11.
As required by section 9(4A)(a)(iii) of the Insolvency Act 24 of 1936 I have …by
service/registered post/ delivery… furnished (a) copy of the application to the South African
Revenue Services. I attach hereto a sworn affidavit as annexure “D” as prescribed by section
9(4A)(b) of the Insolvency Act 24 of 1936 as proof that the application has been furnished to
the South African Revenue Services/ alternatively that it will be submitted before or during
the hearing.
12.
I have furnished a copy of the application to the debtor as required by section 9(4A)(a)(iv) of
the Insolvency Act 24 of 1936. The application was served on the debtor/or send by
registered post, see annexure “E” as proof/ or not furnished/ alternatively it will be submitted
before or during the hearing. (Provide facts in order to enable the court to exercise its
discretion regarding the disposal of this notification requirement for not furnishing a copy of
the application to the debtor as provided for in section 9(4A)(a)(iv) of the Insolvency Act.)
[Note: Regarding paragraphs 9, 10, 11 and 12, section 9(4A) simply requires from the
applicant to “furnish” a copy of the application to the relevant interested parties without
prescribing the manner in which such furnishing must be effected. It is submitted that formal
serving should be used as far as possible, especially in the case of the respondent-debtor.]
13.
I have furnished security with the Master of the High Court as required by section 9(3)(b) of
the Insolvency Act 24 of 1936. A certificate by the Master of the High Court to this effect is
annexed hereto marked annexure “F” to which the Honourable Court is respectfully referred.
14.
I shall, furthermore, see to it that a copy of this application is served timeously on the Master
of the High Court, with the view to obtaining his report in terms of section 9(4) of the
15.
Therefore the Honourable Court is respectfully requested to issue an order in accordance with
the prayers contained in the Notice of Motion.
thereafter the deponent in my presence signed the declaration on this ....... day of ................
20 .... on which date and at which place I also signed this certificate.
.............................................................
FULL NAMES
EX OFFICIO
ADDRESS:
156
THEORY: REHABILITATION
Rule 6 of the Uniform Rules of Court and form 2 of the prescribed High Court Forms. The
definitions of in section 2 of the Insolvency Act 24 of 1936; sections 124 and 125 of the
The insolvent may apply for the rehabilitation of his or her estate. The court that issued the
sequestration order will have jurisdiction to hear the rehabilitation order as well.
Scheme of rehabilitation
Ex parte Application
 Citation of applicant
 Jurisdiction (approach court that granted sequestration order)
 Formalities: security to the Registrar ito s 125 of the Insolvency Act; notice(s) as
prescribed, report of Master when required.
 Factual account regarding sequestration, distributions to creditors, estate accounts etc
(claims paid, contributions etc), current financial position (income expenditure).
 Vesting order (if applicable).
EXAMPLE 69
Notice of motion
(............................................................ DIVISION)
CASE NUMBER ...............................
In the matter of:
................................................................
Applicant
NOTICE OF MOTION
TAKE NOTICE that application will be made to the abovementioned Honourable Court on
the ........ day of ............... 19....., at 10:00 a.m. or so soon thereafter as counsel may be heard,
for an order in the following terms:
(a) For the rehabilitation of the Applicant;
(b) other or alternate relief.
and that the affidavit of the applicant (annexed hereto), will be used in support hereof.
KINDLY PLACE the matter on the roll for hearing accordingly.
DATED at ......... this ......... day of ............... 19.....
.............................................................
TO: THE REGISTRAR OF THE HIGH COURT,
....................................................................................................................................
157
AND TO: THE MASTER OF THE HIGH COURT,

....................................................................................................................................
RECEIVED COPIES HEREOF THIS ......... DAY OF ................... 19.....
MASTER OF THE HIGH COURT.
AND TO: (trustee)
....................................................................................................................................
....................................................................................................................................
RECEIVED COPY HEREOF ON THIS ....... DAY OF ................. 19.....
....................................................................................................................................
pp (trustee)
Affidavit
(............................................................ DIVISION)
CASE NO ...........................................
................................................................
Applicant
for his/her rehabilitation
AFFIDAVIT
I, the undersigned,
....................................................................................................................................
do hereby make oath and say that:
1.
1.1 I am the applicant in the above matter and the facts herein stated are true and correct to
the best of my knowledge and belief.
1.2 I am an adult male/female and was born on .................. and my identity number is
.............................
1.3 I presently reside at .......................... and am employed as ................ by .................. at
................
1.4 At the time of my sequestration I was employed by ........................... and I was resident
at .................................
2.
I am domiciled within the jurisdiction of this Honourable Court.
3.
My estate was finally sequestrated by order of this Honourable Court on .............. 19..... and
............................. was appointed provisional trustee by the Master of the above Honourable
Court on ................ and as trustee on ............... under Certificate of Appointment No. ..........
158
4.
4.1 The following facts caused my insolvency and subsequent sequestration:
......................................................
4.2 I respectfully submit that my insolvency was in no way due to any malicious, fraudulent
or unlawful conduct on my part.
5.
5.1 At the time of my sequestration the total amount of my liabilities was .............. My
assets were the following:............................................
5.2 Claims totalling .............. /no claims were proved against my estate after sequestration
as appears from the First and Final Liquidation and Distribution Account hereto
annexed as annexure “E”.
5.3 In terms of the First and Final Liquidation and Distribution Account (annexure “E”)
which was confirmed by the Master of this Court on....... there were ............ proved
creditors with claims totalling R....... The total amount of R....... was awarded to such
creditors as dividends leaving a deficiency of R........ on claims proved against my
estate.
6.
6.1 This application is brought under section 124(-) of the Insolvency Act 24 of 1936 in
that: (State ground(s) as provided for by section 124 of the Act).
6.2 My estate was never sequestrated before and I was not convicted of any fraudulent act
regarding my existing (or previous) insolvency or offence provided for in sections 132,
133 or 134 of the Insolvency Act 24 of 1936. (Provide full particulars if applicable.)
7.
There are no further assets in my estate available for realisation.
8.
8.1 The joint income of my wife and myself, to whom I am married in/out of community of
property, presently amounts to the sum of .................... per month. The monthly
expenditure of our household is as follows:
PAYE
Bond repayments
Rates and taxes
Lights and water
Medical aid contributions
Clothing for self, wife and children
Household insurance and other insurance premiums
Servants
Food
Telephone
Petrol
Lease payments on car
Newspapers and other magazines
Entertainment
School fees for children
159
Provision for holiday

8.2 At present I have no assets and no liabilities other than normal monthly household
expenses.
8.3 My wife is the owner of the house situated at ................................... in which house my
wife, my children and I reside.
9.
I have made a complete surrender of the whole of my estate as it existed
on the date of my sequestration and I have not granted or promised any benefit whatsoever to
any person or entered into any secret agreement with intent to induce the trustee of my estate
or any creditor not to oppose this application.
10.
Notice of my intention to apply for the rehabilitation has been published in the Government
Gazette on ......................... and I annex hereto annexure “A” a copy of the relevant page of
the said Government Gazette.
11.
Notice of my intention to apply for the rehabilitation has been given to my trustee, the said
.................................. and to the Master of the High Court, and I annex hereto marked “B”
and “C” respectively, copies of the letters addressed to the trustee and the Master by my
attorneys. (The requirements for the notice in respect of time periods etc may vary depending
on the particular ground as prescribed by s 124 of the Act relied upon.)
12.
A copy of this affidavit, all annexures thereto and the Notice of Motion to which this affidavit
is annexed, will be served on the Master of the High Court prior to the hearing of this
application in compliance with the provisions of the Insolvency Act 24 of 1936.
13.
Security for costs as contemplated by section 125 of the Insolvency Act 24 of 1936 has been
furnished to the Registrar of the abovementioned Honourable Court.
14.
Therefore the Honourable Court is respectfully requested to issue an order in accordance with
the prayers contained in the Notice of Motion.
..................................
thereafter the deponent in my presence signed the declaration on this ....... day of ................
19 ........ on which date and at which place I also signed this certificate.
.............................................................
FULL NAMES
EX OFFICIO
ADDRESS:
160
TO: THE REGISTRAR OF THE ABOVE

HONOURABLE COURT
AND TO: THE MASTER OF THE HIGH
COURT
AND TO: THE TRUSTEE
161
PART VII
ENTRY AND WITHDRAWAL
AS ATTORNEY OF RECORD
162
EXAMPLE 70
CASE NO:
ELVIS PRESLEY PLAINTIFF
and
BUDDY HOLLY DEFENDANT

_____________________________________________________________________________
NOTICE OF ENTRY AS ATTORNEY OF RECORD

_____________________________________________________________________________
KINDLY TAKE NOTICE that the under-mentioned attorneys herewith enter as Attorneys of
record on behalf of Defendant and that Defendant will accept service of all notices, pleadings
and documents at the undermentioned address.
SIGNED AT PRETORIA ON THIS THE ____ DAY OF JANUARY 2000.
________________________________
GAIUS VAN WYK
10 KIRKNESS STREET
SUNNYSIDE
PRETORIA
(REF: G VAN WYK)
TO: THE REGISTRAR OF THE

HIGH COURT, PRETORIA
AND
TO: JOHANNES VOET
431 KIRKNESS STREET
SUNNYSIDE
PRETORIA
(REF: J VOET)

_____ day of JANUARY 2000.
_________________________________
163
PART VIII
SPECIAL PLEA
164
EXAMPLE 71
IN THE MAGISTRATES COURT FOR THE DISTRICT OF JOHANNESBURG

HELD AT JOHANNESBURG
CASE NO:
ELVIS PRESLEY PLAINTIFF
and
BUDDY HOLLY DEFENDANT

_____________________________________________________________________________
DEFENDANT'S SPECIAL PLEA

_____________________________________________________________________________
KINDLY TAKE NOTICE that Defendant pleads that the above Honourable Court has no
jurisdiction in respect of the person of the Defendant in terms of Section 28 of Act 32 of 1944
as:
a. The Defendant does not work or reside

or
b. Carry on business within the area of jurisdiction of the above Honourable Court
and
c. As the cause of action did not wholly arise within the area of jurisdiction of the above
Honourable Court.
SIGNED AT JOHANNESBURG ON THIS THE ____ DAY OF JANUARY 2000.

_________________________________
BOB MARLEY
ADDRESS
TO: THE CLERK OF THE COURT

JOHANNESBURG
AND
TO: MADONNA
ADDRESS
_____ day of JANUARY 2006
_________________________________
165
PART IX
NATIONAL CREDIT ACT 34 OF 2005
166
THEORY: DEBT RECOVERY
NOTE ON DEBT ENFORCEMENT ITO THE NATIONAL CREDIT ACT 34 OF 2005
READ:
 Boraine and Renke “Some practical and comparative aspects of the cancellation of
instalment agreements in terms of the National Credit Act 34 of 2005” 2007(2) and
2008(1) De Jure.
 Van Loggerenberg et al “Civil Procedure” 2008 De Rebus 40.
 Otto The National Credit Act Explained (2006)
Particulars of Claim
A debt enforcement procedure in terms of the National Credit Act 34 of 2005 must be
preceded by a s 129(1)(b) notice in terms of the Act. Compliance with this requirement must
be pleaded and it thus forms part of the cause of action.
It is submitted that the following aspects need to be included in the particulars of claim of the
credit provider plaintiff:
(a) Citation of the parties.1 (The parties being the credit provider as plaintiff and the
consumer as defendant.)
(b) Jurisdiction of the relevant court.2
(c) When, where and by whom the agreement was entered into3 as well as a description of
the financed item and the purchase price and charges.4
(d) The material terms of the agreement should be referred to, especially:
(i) that the agreement is regulated by the Act;

(ii) details of the deposit and further instalments;
(iii) reservation of ownership (or the right to repossess);5
(iv) that the item(s) has been delivered to the consumer defendant;
1
Follow ordinary rules of locus standi and citation.
2
Follow ordinary rules of jurisdiction as they apply in the high court or the magistrate’s court since either of these courts will
usually be approached. Schedule 2 item 1 of the Act amended s 29(1) of the Magistrates’ Court Act by making it clear that this
Court will have jurisdiction over actions arising from the Act.
3
The tenor of the Act is that the agreement must be reduced into writing containing all the prescribed rights and obligations of the
parties but non-compliance will not void it. Note that rule 18(6) of the Uniform Rules of the High Court, requires from a plaintiff to
indicate if the contract was entered into orally or in writing and if in writing, to attach a true copy thereof or of the part relied on in
the pleading. It is submitted that the same prescription be followed in a magistrates court although the rules of this court do not
provide a similar rule.
4
Although not discussed in this article, it is important to note that the Act contains a fixed list of fees, charges, interest and items
that a credit provider may claim from a consumer – see Part C in chap 5. It is also notable that the in duplum rule regarding interest
has been extended in s 103(5) of the Act. The particulars of claim and the prayers in this regard must thus comply with the
provisions of the Act and the credit provider may not charge any amount over and above that provided for by the Act – see in
particular s 100 of the Act and for a explanation of the financial matters regulated by the Act, see Otto The National Credit Act
Explained chap 8.
5
See the definition of instalment agreement in s 1 of the Act.
167
(v) terms and conditions and fulfilment thereof;

(vi) stipulations with regard to breach of the agreement;
(vii) details of the breach of the agreement by the defendant.
(e) Notification of the consumer by plaintiff in terms of section 129(1)(a) of the Act or
compliance with section 86(10).6
(f) Compliance with the time periods as prescribed in section 130(1).
(g) Compliance with the various other provisions as provided for by section 130(3).
(i) Cancellation of the agreement by plaintiff as a result of defendant’s breach and election
of plaintiff’s contractual remedies.
(j) The plaintiff is entitled to restitution where goods were sold and delivered to the
consumer-defendant.
(j) Prayers:
(i) cancellation or confirmation of cancellation of the agreement;
(ii) return of the goods as mentioned in the particulars of claim(if the claim is for the
cancellation and the return of goods sold);
(iii) payment of damages to be determined by the court;7
(iv) interest a tempore morae;
(v) legal costs;8
(vi) further and/or alternative relief.
Interim interdicts
It is submitted that in the absence of a specific statutory provision a request for interim relief
in the form of an interdict to prevent the consumer from carrying out or refraining from
performing certain detrimental acts regarding the goods, or to attach the goods to safeguard
them, must be based on substantive principles in the sense that the rights of the credit
provider are to be infringed since the consumer is in the process of, or about to alienate,
damage or destroy the goods. In this sense the credit provider is merely attempting to protect
his rights and interests in such goods and such relief must therefore be distinguished from the
debt enforcement proceedings.
It must be emphasised that such relief must be based on established substantive principles
and procedures. On a procedural point in this regard, it must be noted that section 30(1) of the
Magistrates’ Courts Act also provides for applications for attachments and interdicts in that
court which would thus entitle such a court to hear such applications as well if the matter
would otherwise fall within the jurisdiction of the court.
6
It is submitted that the particulars of claim could be amended to indicate compliance with the notification procedure where notice
had been complied with but where such notice had not been given, it would amount to a fatal defect in the pleading.
7
It is to be noted that the amount of damages would not necessarily be ascertainable before repossession of the goods. See also s
127.
8
It is also notable that the in duplum rule regarding interest has been extended in s 103(5) of the Act to also include legal costs.
168
EXAMPLE 72 SECTION 129 NOTICE

419 Kirkness Street/Straat
Clydesdale
Pretoria, 0002
Posbus 9460
PRETORIA
0001
DOCEX 19
Tel: (012) 344 5901

Tel: (012) 344 5475
Fax: (012) 344 5907
E-mail: vhi@vanheerdens.co.za
PROKUREURS, AKTEVERVAARDIGERS & NOTARISSE
ATTORNEYS, CONVEYANCERS & NOTARIES
Ons verw/Your ref.: W H VAN HEERDEN/JT/KN2857
15 NOVEMBER 2007
D SONGO
6 SMITH STREET
MENLOPARK
0145
RE: NEDBANK LIMITED / YOURSELF

NOTICE IN TERMS OF SECTION 129(1)(A) OF THE NATIONAL CREDIT
ACT 34 OF 2005 - ACCOUNT NR. 24008/0001
In terms of section 129(1)(a) of the National Credit Act 34 of 2005, your attention is
hereby drawn to the fact that you are in default with your obligations under the credit
agreement (account number 3032515/0001) that you entered into with (specify credit
provider) in the amount of R18 725-01.
It is proposed that you refer the above credit agreement to a debt counsellor,
alternative dispute resolution agent, consumer court or ombud with jurisdiction with
the intent:
 to resolve any dispute under the agreement
or
 to develop a plan, to be agreed upon with (specify credit provider), to bring the
payments under the agreement up to date.
Should you fail to respond to this notice within 10 (ten) business days from delivery
hereof by either rejecting the aforesaid proposal or by failing to respond to this notice
at all and should you remain in default with your obligations as aforesaid, for a period
of 20 (twenty) days since your default commenced, the credit agreement may be
cancelled and (specify credit provider) will proceed with legal steps to enforce the
agreement.
Yours faithfully
VAN HEERDEN’S INCORPORATED
per:
W VAN HEERDEN
169
EXAMPLE 73 : PARTICULARS OF CLAIM

_______________________________________________________
___________________________________________________________________
1.
1.1 The Plaintiff is NEDBANK LIMITED, a duly registered commercial bank with
limited liability duly incorporated in terms of the Laws of the Republic of
South-Africa with its principal place of business situated at 33 HOOFDT
STREET, FORUM 1, LEVEL 4, BRAAMPARK, JOHANNESBURG,
GAUTENG.
1.2 The plaintiff is a registered credit provider in accordance with Section 40 of

the National Credit Act, Act 34 of 2005.
2.
The defendant is D SONGO, an adult male with full legal capacity whose full and
further particulars are unknown to the Plaintiff currently residing at 6 SMIT STREET,
MENLOPARK, PRETORIA, GAUTENG also being the Defendant’s chosen
domicilium citandi et executandi.
3.
On/or about 20 JULY 2005 and at PRETORIA, the plaintiff therein represented by a
duly authorized employee and defendant who acted in person, entered into a written
Instalment Sale Agreement (hereinafter referred to as “the agreement”), which
agreement is attached hereto as ANNEXURE “A” and the terms of which are
requested to be read together herewith as if specifically incorporated herein.
4.
In terms of the aforementioned agreement the plaintiff sold to defendant the following
goods, namely:
1 X USED OPEL ASTRA 1.6 CDE A/C P/S, 2002 - MODEL, ENGINE NUMBER
C16SPA7997 AND CHASSIS NUMBER ADMRT69BA2B
(hereinafter referred to as “the goods”)
170
5.
The total purchase price at which defendant bought the goods from plaintiff is
calculated as set out in the agreement attached hereto as ANNEXURE “A” as
follows:
Total cash price R 98 942-95

Vat at 14 % R 13 852-01
Revenue stamps R 0-00
Sub Total R112 794-96
Less initial payment R 12 000-00
Principal debt R100 794-96
Plus finance charges at 9.650 % per annum R 23 994-18
Balance of purchase price R124 789-14
6.
The balance of the purchase price was payable in 54 monthly instalments of R2 310-
91 each, the first payment to be made on 26 AUGUST 2005 and thereafter on the
26th day of each consecutive month with the final instalment payable on 26
OCTOBER 2010.
7.
7.1 The said goods were delivered to the defendant and defendant is still in
possession thereof.
7.2 The defendant has paid the initial payment and has paid certain further
instalments.
8.
It was an express term of the agreement that:
8.1 Plaintiff will at all material times during the subsistence of the agreement
remain the owner of the goods and neither the defendant, nor anybody on her
171
behalf, will during the agreed period be entitled to obtain ownership of the
goods or to retain possession, use or enjoyment thereof other than as
provided for in the agreement.
8.2 Should defendant breach any of the terms or conditions of the agreement, or
fail to pay any amount in terms of the agreement when it is due, plaintiff will
be entitled, as he deems fit and without prejudice to any of his other rights, to
immediately request payment of all amounts that are payable in terms of the
agreement, regardless of whether such amounts are due at the stage or not,
alternatively, to cancel the agreement, to repossess the goods, to retain all
payments that have already been made by defendant and to claim as
damages the difference between the outstanding balance and the resale
value of the vehicle.
8.3 In the event of cancellation of the agreement defendant is obliged to return

the goods to plaintiff.
8.4 Plaintiff is entitled, on request, to recover all costs and disbursements

(including costs between attorney and client from defendant) that plaintiff
incurred directly or indirectly in order to enforce any rights in terms of the said
agreement.
8.5 Any amount due in terms of the agreement, not paid on the due date, would
bear additional finance charges, at the rate specified in the agreement.
8.6 If the word “fixed” does not appear next to the finance charges on the face of
the agreement, the following conditions shall apply:
8.6.1 Should the prime lending rate publicly quoted by the plaintiff from time to time
(evidenced by means of a certificate under the hand of any manager of the
applicant, whose status need not be proved) be increased or decreased, the
finance charges yet to accrue on the unpaid instalments payable in terms of
the agreement, will be increased or decreased commensurately with the
172
change in the prime lending rage. The period over which the instalments are
payable, shall remain unchanged;
8.6.2 In the event of the agreement being subject to the provisions of the Usuary
Act, No. 73 of 1968, as amended, the finance charge rate arising from the
paragraph above, shall not exceed the maximum permissible rate in terms of
the said Act;
8.7 The defendant, in writing and in terms of Section 45 of Magistrate's Court Act
Nr 32 of 1944, consented to the jurisdiction of any Magistrate's Court having
jurisdiction over the defendant, notwithstanding the fact that the amount of the
claim or the value in dispute might exceed such jurisdiction.
8.8 A certificate by a manager of the plaintiff (whose authority need not be

proved) shall for all purposes be prima facie evidence of the matters / sums
therein stated.
9.
Defendant failed to make payments as agreed in the agreement and was in arrears
in the amount of R5 005-13 on 05 SEPTEMBER 2007.
10.
10.1 The foresaid agreement is a pre-existing credit agreement as defined in the
National Credit Act 24 of 2005. (Hereinafter called “The Act”).
10.2 The plaintiff duly delivered a notice in accordance with S129(1)(a) of The Act
to the defendant on 10 SEPTEMBER 2007. A copy thereof is attached hereto
as ANNEXURE “B”.
10.3 The defendant has failed to respond to the aforesaid notice in terms of
S129(1)(a) of The Act within 10 (ten) business days after delivery thereof.
10.4 The defendant is in default with his obligations in terms of the credit
agreement for a period of 20 (twenty) business days.
173
10.5 The defendant has not surrendered the goods to the plaintiff as contemplated
in S127 of The Act.
10.6 The Honourable Court has not been approached while there is any matter
arising from the contract pending before the Tribunal.
10.7 The Honourable Court has not been approached in the circumstances
envisaged in S130(3)(c) of The Act, namely, despite the defendant having:
10.7.1 surrendered the asset to the bank in terms of S127 of the Act and
before the asset has been sold;
10.7.2 agreed to a proposal made in terms of the S129 notice and acted in
good faith in fulfilment of the agreement;
10.7.3 complied with an agreed plan as contemplated in S129(1)(a); or
10.7.4 brought the payments under the agreement up to date as contemplated

in S129(1)(a) of the Act.
10.8 A duly signed certificate as proof of compliance with the previsions of the NCA
is attached hereto as ANNEXURE “C”.
11.
11.1 In the aforesaid premises plaintiff is entitled to demand full payment of all
arrear amounts and any other amount due and payable in terms of the
agreement, alternatively to cancel the agreement, to repossess the goods, to
retain all payments already made by defendant in terms of the agreement and
to claim payment of all due amounts that remain unpaid on date of
cancellation.
174
11.2 Plaintiff elected to cancel the agreement, as plaintiff did in writing on

10 JANUARY 2008 and as is evident from ANNEXURE “D” attached hereto,
alternatively plaintiff cancels the agreement herewith.
11.3 The defendant is therefore in unlawful possession of the goods.
12.
In the premises:
12.1 The plaintiff is entitled to repossess the goods;
12.2 The plaintiff is further entitled to an order declaring the amounts paid by the
defendant to be forfeited in favour to the plaintiff;
12.3 The plaintiff is entitled to recover from the defendant an amount calculated by
deducting from the balance of the purchase price, the deposit and instalments
paid, such value as the goods may have upon their return to the plaintiff and
such reduction of finance charges to which the defendant may be entitled.
13.
The plaintiff will be unable, until the return of the goods to it and the subsequent
determination of the value thereof, to determine the amount due to it in terms of
paragraph 12.3 supra.
14.
Notwithstanding due demand, the plaintiff fails and refuses to return the goods to the
plaintiff and/or to pay the claimed amounts and/or any portion thereof.
15.
The above court has jurisdiction, as the defendant is resident within the jurisdiction area
of the court.
WHEREFORE PLAINTIFF PRAYS FOR JUDGMENT AGAINST THE DEFENDANT

IN THE FOLLOWING TERMS:
175
1. The Defendant is ordered to forthwith return -

One Used: OPEL ASTRA 1.6 CDE A/C P/S
Model: 2002
Engine Nr.: C16SPA7997
Chassis Nr.: ADMRT69BA2B
To the Plaintiff;
2. The Sheriff of the High Court is authorized and request to attach, cease and
hand over the to the Plaintiff, wherever it may be found -
One Used: OPEL ASTRA 1.6 CDE A/C P/S
Model: 2002
Engine Nr.: C16SPA7997
Chassis Nr.: ADMRT69BA2B
3. Forfeiture of all moneys paid by the Defendant to the Plaintiff in terms of the
agreement annexed to Plaintiff's summons as ANNEXURE "A".
4. Leave is granted to the Plaintiff to apply for -
4.1 Damages, if any, in an amount to be calculated by subtracting the

current market value of the aforesaid goods (as well as a rebate on
unearned financial charges from the balance outstanding, if
applicable);
4.2 Interest on the said damages at the rate of 9.650 % per annum.
5. Cost of suit on the scale as between attorney and client;
SIGNED AT PRETORIA ON THIS THE ___________ DAY OF JANUARY 2008

176
_____________________________ _____________________________
W H VAN HEERDEN VAN HEERDEN’S INCORPORATED
Admitted in terms of Section 4(2) ATTORNEY FOR PLAINTIFF
of Act 62 of 1995 419 KIRKNESS STREET
CLYDESDALE
PRETORIA
REF.: W VAN HEERDEN/KN2880
177
ANNEXURE/ AANHANGSEL “A”
All pleadings, applications and documents dealing with High Court litigation must in
terms of the High Court Act 30 of 2008 read in conjunction with GG nr 31948 dated 2
February 2009 as from 1 March 2009 refer to the new names of the various divisions
of the High Courts.
RENAMING OF HIGH COURTS ACT 30 OF 2008
The High Courts seated in the places mentioned in the first column of the table
hereunder, shall be known by the names set out in the second column of the said
table:
TABLE
SEAT OF HIGH NAME OF HIGH COURT ABBREVIATION

COURT
Bhisho Eastern Cape High Court, ECB (Ck)
Bhisho
Bloemfontein Free State High Court, FB (O)
Bloemfontein
Cape Town Western Cape High Court, WCC (C)
Cape Town
Durban KwaZulu-Natal High Court, KZD (D)
Durban
Grahamstown Eastern Cape High Court, ECG (E)
Grahamstown
Johannesburg South Gauteng High Court, GSJ (W)
Johannesburg
Kimberley Northern Cape High Court, NCK (NC)
Kimberley
Mafikeng North West High Court, NWM (B)
Mafikeng
Mthatha Eastern Cape High Court, ECM (Tk)
Mthatha
Pietermaritzburg KwaZulu-Natal High Court, KZP (N)
Pietermaritzburg
Port Elizabeth Eastern Cape High Court, Port ECP (SE)
Elizabeth
Pretoria North Gauteng High Court, GNP (T)
Pretoria
Thohoyandou Limpopo High Court, LT (V)
Thohoyandou
WET OP DIE HERBENAMING VAN DIE HOË HOWE 30 VAN 2008

178
Die Hoë Howe, gesetel op die plekke in die eerste kolom van die tabel hieronder
vermeld, bekend onder die name in die tweede kolom van vermelde tabel
uiteengesit:
TABEL
SETEL VAN HOF HOFNAAM VAN HOË HOF AFKORTING

Bhisho Oos-Kaap Hoë Hof, Bhisho OKB (Ck)
Bloemfontein Vrystaat Hoë Hof, VB (O)
Bloemfontein
Kaapstad Wes-Kaap Hoë Hof, Kaapstad WKK (K)
Durban KwaZulu-Natal Hoë Hof, KZD (D)
Durban
Grahamstad Oos-Kaap Hoë Hof, OKG (OK)
Grahamstad
Johannesburg Suid Gauteng Hoë Hof, GSJ (W)
Johannesburg
Kimberley Noord-Kaap Hoë Hof, NKK (NK)
Kimberley
Mafikeng Noordwes Hoë Hof, Mafikeng NWB (B)
Mthatha Oos-Kaap Hoë Hof, Mthatha OKM (Tk)
Pietermaritzburg KwaZulu-Natal Hoë Hof, KZP (N)
Pietermaritzburg
Port Elizabeth Oos-Kaap Hoë Hof, Port OKP (SOK)
Elizabeth
Pretoria Noord Gauteng Hoë Hof, GNP (T)
Pretoria
Thohoyandou Limpopo Hoë Hof, LT (V)
Thohoyandou
179
ANNEXURE/ AANHANGSEL “B”

[THE MOTIONS IN THE MAGISTRATES’ COURT DVD (DVD NO 1) MAY BE
ORDERED VIA THE LECTURER AT A COST OF R18-00. ]
Extract from Magistrates’ Court Bench Book
APPLICATIONS IN THE MAGISTRATES’ COURT
Part 7 Applications
7.1 General
7.1.1 Introduction
Application procedure provides a mechanism, other than trial action, by means of
which relief may be obtained from a court of law. Trial actions are commenced by
way of summons, while applications are initiated by way of a notice of application
(also referred to as a notice of motion) which is usually supported by an affidavit, or
affidavits, that set out the facts upon which the applicant relies for relief. An affidavit
is a document containing a statement of facts which is signed and sworn to by the
witnesses in front of a commissioner of oaths. In an application, the party initiating
proceedings is referred to as the applicant. The party called upon to answer the
application is known as the respondent.
A significant distinction exists between application procedure in the Magistrates’

Courts and motion proceedings in the High Courts in that application procedure is
widely used for claiming substantive relief in the High Court in matters not involving a
material dispute of fact. The increased utilization of application procedure was a
development which was able to take place in the High Courts because they have
inherent jurisdiction to regulate their own procedure, but the Magistrates’ Courts do
not have such inherent jurisdiction and are, therefore, limited to the use of
application proceedings only where provided for, either expressly or by necessary
implication, in the MCA or the Magistrate’s Court rules.
Even in the High Courts, where a much wider range of relief may be sought through
application, it is accepted that such procedure is not without its limitations and that it
not appropriate for deciding real and substantial disputes of fact. The reason for this
is that in trial actions witnesses must appear in person and may be subjected to
cross-examination so that their credibility may be tested. Seeing and hearing the
witnesses give evidence enables the court to decide which witness is more credible
or reliable.
When a court has only affidavits before it, and where the affidavits set out conflicting
facts, it may be very difficult for the court to decide which deponent is more credible
or reliable.
Applications may be used for two purposes:

• to claim substantive relief;
• to claim procedural relief.
In the Magistrates’ Courts there is very little scope for claiming substantive relief by
way of application. Almost all the provisions of the Act and rules which provide for
180
the application procedure deal with applications which are of a procedural nature and
which enable parties to claim relief in connection with litigation already instituted by
way of trial action. These are generally known as interlocutory applications because
they take place during the course of the trial action, but there are some which are
preliminary in nature and some which would be brought after judgment has been
given, such as applications relating to execution of judgments. Rule 55(9) provides
that all interlocutory matters may be dealt with upon application.
7.1.2 Ex parte applications

As a general rule, applications must be brought on notice to the party against whom
relief is claimed. This general rule is expressed in rule 55(1), which provides that,
except where otherwise provided, an application to the court for an order affecting
any other person shall be on notice. In certain circumstances, a party may bring an
application to court without first notifying the party against whom relief is claimed.
Such an application is called an ‘ex parte application’.
7.1.2
In the High Courts the only circumstance in which an applicant may proceed ex
parte, where relief is claimed against another party, is where the purpose of the
application would be defeated if notice were to be given to the party against whom
relief is claimed. For instance, where the party who wants to claim relief believes that
the other party will hide or destroy evidence if he becomes aware of an impending
action, then giving notice to that party of an application to attach the evidence would
probably have the result that the evidence would be hidden or destroyed before the
attachment order can be granted and served. In the High Courts urgency alone is not
accepted as a ground for proceeding ex parte, unless the urgency is so great that
there is not enough time to serve notice before bringing the application.
In the Magistrates’ Courts these same principles should apply, but, unfortunately
they have been distorted because
• rules 56 and 57 provide for certain types of application to be brought ex parte
without adding the requirement that they should be brought ex parte only if the giving
of notice would defeat the purpose of the application; and
• there is no provision for urgent applications in the MCA or rules, and therefore the
only way a party can obtain an order quickly without having to go through the usual
process of serving notice and enrolling the matter for hearing is to proceed ex parte
(although rule 9(14) does allow the court to reduce the notice period for an
application on good cause shown – see J & B Rule 9--4 to 9--15).
As a result of these distortions, a general opinion prevailed before 1997 that the
types of application governed by rules 56(1) and 57(1) could always be brought ex
parte, despite the fact that rule 55(8) provides that in every application the person
substantially interested shall be made respondent. Rule 55(9), which provides that
any application which may be brought ex parte may also be brought on notice, may
have been partly responsible for this opinion, because its wording creates the
impression that proceeding ex parte, where this is authorized, is the rule rather than
the exception.
181
The belief that parties had the right to proceed ex parte in applications governed by
rules 56 and 57 was dispelled in Office Automation Specialists CC and Another v
Lotter 1997 (3) SA 443 (E), a case in which it was held that parties should be
allowed to proceed ex parte only where there is good reason to dispense with the
giving of notice to the party against whom relief is claimed. At 447A--C, the court
quoted the following passage from the 8th edition of Jones and Buckle:
‘Though Rule 56 empowers magistrates' courts to grant ex parte orders affecting

other parties' interests, the Rule does not do away with the common-law principle
that the courts are extremely loath to grant any such orders upon ex parte
application. Rule 56 is quite consistent with the common-law principle; it is an
empowering provision, not an abolishing one, and it is still true to say that
applications should be made ex parte only when there is some good reason for that
procedure … – reasons such as urgency, or that the giving of notice would defeat
the very object for which the order is sought.’
At 448A-C the court concluded: ‘I accordingly conclude that, while applications of the
type referred to in Rule 56(1) can be brought ex parte, an applicant bringing such an
application does so at his peril if he does not make out a good and proper case as to
why an order should be granted without notice to the other party.’
It is important to note that a court will never grant final relief on an ex parte basis. If
notice is not given to the respondent, then once the order is granted, the order must
be served on the respondent together with a copy of the application. Such an order
is called a rule nisi. It informs the respondent that on a certain date, which is called
‘the return day’ the respondent may appear before the court to show cause why the
order granted ex parte should not be confirmed. The audi alteram partem principle
thus prevails in that, on the return day, the respondent is afforded the opportunity to
oppose the application and to request the court to set the order aside. Rule 55(7)
provides that any person affected by an order made ex parte may apply to discharge
it on not less than 12 hours’ notice. In other words, the party against whom the ex
parte order was granted may anticipate the return day by giving the applicant not
less than 12 hours’ notice that the matter has been set down for hearing. The
purpose of this subrule is to enable a party who is prejudiced by an ex parte order to
get the matter before court quickly.
Another principle which has been applied very strictly by courts in respect of ex parte
applications is the principle that the applicant has the duty of utmost good faith to
disclose to the court all facts which are relevant, including facts which tend to detract
from the applicant’s case and favour the party against whom relief is being sought. If
an order has been made on an ex parte application and it later appears that material
facts that might have influenced the decision of the court to grant the order were not
disclosed, the court has a discretion to set aside the order on the ground of
nondisclosure and make a punitive order. It is irrelevant whether the omission of
facts was made wilfully or negligently. The reason for this requirement is that hearing
a matter in the presence of only one party negates the audi alteram partem principle,
one of the most important principles underlying the rules of civil procedure.
There are numerous cases in which this principle has been applied: In Cometal-
Mometal SARL v Corlana Enterprises (Pty) Ltd 1981 (2) SA 412 (W) at 414 it was
182
held that failure to set out all the facts which might influence the court (whether these
facts are favourable to the applicant or otherwise) will justify the court setting aside a
rule nisi on the return date.
See also Gainsford and others NNO v HIAB AB 2000 (3) SA 635 (W); MV Rizcun
Trader (4) v Manley Appledore Shipping Ltd 2000 (3) SA 776 (C). • In Ex parte
Madikiza et uxor 1995 (4) SA 433 (Tk5) at 437A--B it was held that the absence of
acceptable reasons for failure to disclose a material fact is one of the reasons the
court will take into consideration in exercising its discretion whether to grant or deny
the relief sought.
• In J W Jagger & Co (Rhodesia) (Wholesaling) (Pvt) Ltd v Mubika 1972 (4) SA 100
(R) it was held that, even though he may be partially successful in an application, an
applicant may be ordered to pay the costs of the application if he has negligently
failed to disclose any material facts.
• In Schlesinger v Schlesinger 1979 (4) SA 342 (W) an order obtained ex parte was
set aside with costs, on the scale as between attorney and client, because the
applicant was found to have displayed a reckless disregard of a litigant’s duty to a
court to make a full and frank disclosure of all known facts that might influence the
conclusion the court reaches.
Recent case law has made it clear that the requirement of utmost good faith to
disclose all material facts applies whenever only one party is before the court at the
time when the application is made. Thus, in a default-judgment application the
applicant has a duty to disclose all relevant facts to the court because, even though
the summons was served on the defendant, at the time when the default-judgment
application is made it is only the applicant who is before the court. See Bankorp Ltd v
Ridl and Another 1993 (4) SA 276 (D).
It has also been held that the normal duty which counsel and attorneys have to direct
the court’s attention to relevant authority should be taken particularly seriously in ex
parte applications – Ex Parte Hay Management Consultants (Pty) Ltd 2000 (3) SA
501 (W).
One kind of application which must of necessity be brought ex parte is an application

for substituted service because, if documents cannot be served on the
defendant/respondent in any of the usual ways prescribed by rule 9, then it stands to
reason that notice of the application for directions as to how service should be
effected cannot itself be served.
In terms of rules 55(5) and (6), except where otherwise provided, ex parte
applications must be made in writing, stating shortly the terms of the order applied
for and the grounds on which the application is made, and need not be supported by
an affidavit or other evidence. Examples of rules which ‘provide otherwise’ are rules
56 and 57, both of which require the applications which they regulate to be
supported by an affidavit and prescribe what must be contained in the affidavit.
7.1.3 Types of application

183
A list of all the different types of application which may be brought in the Magistrates’
Courts is set out in Jones and Buckle Rule 55--2 to 3. The general rule which
governs the application procedure is rule 55, but some kinds of application have
special rules which prescribe how they should be brought and opposed.
Section 30 of the MCA provides that subject to the jurisdiction prescribed by the Act,
the court may grant against persons and things orders for arrest tanquam suspectus
de mandamenten fuga, attachments, interdicts and mandamenten van spolie. Rule
56 prescribes the procedure to be followed in these applications. Section 30bis
empowers the court to grant applications for attachment to found or confirm
jurisdiction and to give directions as to service of documents. This type of application
is governed by rule 57.
Both rule 56 and rule 57 state that these applications may be made ex parte. The
discussion under the heading ‘ex parte applications’ above is therefore applicable.
Section 32 enables a lessor to attach property on leased premises to perfect the

common-law landlord’s hypothec. Section 36 empowers the court to grant
applications for rescission of judgment and the procedure is prescribed by rule 49.
This part of the Bench Book deals with the general rules relating to application
procedure, such as rule 55, while parts 7.2 to 7.11 deal with specific types of
application.
7.1.4 General rules regulating application procedure

Rule 55(1) requires the notice of application to state the terms of the order applied
for and the time when the application will be made to court. The notice should be in
accordance with Form 1 of Annexure 1 the rules. It is usual practice to mention the
rule or section of the Act in terms of which the application is brought in the heading
to the notice, or in the body of the notice, although the rules do not prescribe this.
The notice must be delivered to the respondent not less than 10 days before the
hearing and not less than 20 days before the hearing where the State is the
respondent – rule 9(14).
Rule 55(2) states that, except where otherwise provided, an application need not be
supported by an affidavit, but in the event of any dispute arising as to the facts, the
court may –
(a) receive evidence either viva voce or by affidavit and try the issues in dispute in a
summary manner; or
(b) order that the issue shall be tried by way of action. The court may then order that
the applicant shall be the plaintiff and the respondent be the defendant, and that the
notice of application shall stand as a summons, or that the applicant shall deliver
such particulars of his claim as are prescribed in rule 6.
This subrule is anomalous, first because it is difficult to see how a dispute of fact
would arise if there are no affidavits filed in support of the application and,
presumably, no affidavits filed by the respondent. Secondly, it is not appropriate that
procedural applications should be converted into trial actions and, as previously
indicated, there is very little scope for claiming substantive relief by way of
application in the Magistrates’ Courts.
184
7.1.5 Affidavits
High Court rule 6(1) provides that every application must be supported by an
affidavit, but it has been held that affidavits are not always necessary for
interlocutory applications. The function of affidavits is to place facts before the court,
but in procedural interlocutory applications, such as an application to compel the
furnishing of further particulars for the purpose of pleading, whatever facts the court
needs to know are apparent from the court file and there is no need to place further
facts before the court. Thus, the test which should be applied in deciding whether an
application should be supported by an affidavit is to ask whether it is necessary to
place before the court facts in support of the relief sought. Unfortunately, the rules of
the Magistrates’ Courts differ from the general rule which should be applied in stating
that supporting affidavits are not necessary ‘[e]xcept where otherwise provided’.
Harms, in section 6.7, lists the instances in which affidavits are required. The law
relating to attestation of affidavits is set out by Harms in section 6.16.
The Magistrate’s Court rules are also anomalous in that they make no provision for
the filing of an answering affidavit by the respondent and a replying affidavit by the
applicant. There is no doubt, however, that the audi alteram partem rule requires that
a party who needs to respond to facts stated in an affidavit filed by the other party
should be given the opportunity to do so. Thus, if the respondent wishes to oppose a
matter and needs to place facts before the court, an answering affidavit may be filed.
The applicant may then file a replying affidavit, responding to the facts in the
answering affidavit, except in summary-judgment proceedings (see below).
7.1.6 Contents of affidavits

When affidavits are filed, they must contain all the facts which are relevant to
establish the case of the party filing them. Both the material facts and the facts
relevant to prove the material facts (facta probanda and facta probantia) must be
stated. In this respect affidavits which support a claim or respond to it are very
different from pleadings.
Pleadings should contain only facta probanda, because the facta probantia will be
placed before the court by way of oral evidence at the trial. At the hearing of an
application, no oral evidence is heard, unless the court invokes the provisions of rule
55(2)(a).
Every affidavit should begin with a statement by the deponent (the person who made
the affidavit) that the facts contained in the affidavit are within his personal
knowledge, because the hearsay rule applies to affidavits in the same way that it
does to oral evidence. This is particularly necessary where the deponent is making
the affidavit on behalf of a juristic person. Such a deponent should also state that he
has been authorized to make the affidavit on behalf of the juristic person. Sometimes
it is convenient for a party to file a main affidavit which ‘tells the whole story’ and
then, in so far as the main affidavit contains hearsay evidence, annex verifying
affidavits (also known as confirmatory affidavits) made by the people who do have
personal knowledge of the facts. The deponent to the main affidavit would normally
state: ‘The facts are within my personal knowledge save where otherwise indicated
and are, to the best of my knowledge and belief, true and correct.’ It should be kept
185
in mind that section 3 of the Law of Evidence Amendment Act 45 of 1988 gives the
court some discretion whether or not to admit hearsay evidence.
Documents which support the case of a party should be annexed to the affidavit of a
witness who has first-hand knowledge of that document, and the deponent should
‘prove’ the document by describing it in the affidavit and referring to the annexure.
Where substantive relief is claimed, the founding affidavit (the affidavit which
supports the notice of application) must contain:
• facts which indicate that the court has jurisdiction;
• facts which show that the applicant has locus standi;
• the material facts relevant to the cause of action on which the applicant relies, for if
an affidavit does not disclose a cause of action, the respondent can apply for the
dismissal of the application;
• facts relevant to prove the material facts (facta probantia);
• a conclusion of law;
• a prayer for relief.
It is important not to confuse a conclusion of law with an argument as to the law. A

conclusion of law simply states what the party submits it is entitled to on the basis of
the facts set out, but it does not argue why it is so submitted. Neither pleadings nor
affidavits should ever contain argument, either as to the facts or as to the law.
The requirements of the respondent’s answering affidavit, which deals with the
allegations contained in the applicant’s founding affidavit are the same as those of
the applicant.
7.1.7 Delivery of applications – rules 2(1)(b) and 9(11)

There is no requirement that applications need be served by the sheriff. The
definition of ‘deliver’ is set out in rule 2(1)(b) read with rule 9, indicates that it is only
a summons or other process of the court which needs to be served by the sheriff.
Again, this is probably an anomaly, or an indication that the drafters of the rules
considered all applications to be of an interlocutory or ancillary nature. In the High
Court any document which initiates proceedings must be served by the sheriff,
whereas applications of an interlocutory or ancillary nature are delivered inter partes
by the parties or their attorneys. Thus, a notice of motion which initiates proceedings
and claims substantive relief should served by the sheriff.
Delivery, according to rule 2(1)(b) includes both service on the defendant and filing
with the Clerk of the Court. The first day of the appearance to defend will be
excluded, and so will Saturdays, Sundays and public holidays.
7.1.8 Extension of time limits

Sometimes a specific time period within which a particular application must be
brought is prescribed by the Act or rules. When an application is brought outside this
prescribed period, the applicant will generally be able to apply to the court for
condonation of the late filing of the main application, either before or simultaneously
with the bringing of the main application.
186
Rule 60(5) provides that any time limit prescribed by the rules may at any time,
whether before or after expiry of the period limited, be extended by:
• the written consent of the opposite party; and
• if such consent is refused, then by the court on application and on such terms as to
costs and otherwise as may be just.
A defaulting party must, therefore, first approach the other party for written consent
to file the application late. Only if such consent is refused may the applicant then
approach the court for permission to file an application outside the prescribed time
limit.
The words ‘at any time’ does not mean that a person may bring a second application
for condonation after one application has already been refused on the same facts for
the same relief.
The court has a discretion whether to grant condonation or not. The applicant will
have to show sufficient cause why the courts should grant an extension of time – see
J & B Rule 60--4.
7.1.9 Condonation of short service

Rule 60(6) provides that where there has been no notice or where there has been
short service of any application, the court may, instead of dismissing the application,
adjourn the proceedings for a period equivalent at least to the period of proper notice
upon such terms as to costs as may be just. This does not apply if the court has
consented to short service in terms of rule 9(14), or where the parties have agreed to
treat such notice as valid. In that instance the court will then proceed as if the notice
was valid.
If the proceedings are postponed in the absence of the party who received short
service, due notice of the adjournment must be given to that party by the party
responsible for the short service.
187
ANNEXURE/ AANHANGSEL “C”

HIGH COURT MOTION: INTERDICT BY MEANS OF ( A DEFECTIVE)
APPLICATION
INSTRUCTIONS TO STUDENTS:
 FIRST STUDY THE SET OF FACTS AND ANALYSE THE

PROPOSED APPLICATION AND RESPONSE THERETO.
 THEN WATCH THE DVD AND TRY TO IDENTIFY PRINCIPLES OF
PROCEDURE, EVIDENCE AND SUBSTANTIVE LAW. (THE HIGH
COURT APPLICATION DVD (DVD NO 2) MAY BE ORDERED VIA
THE LECTURER AT A COST OF R18-00. )
 ALSO READ THE HEADS OF ARGUMENT ON BEHALF OF THE
APPLICANT AND RESPONDENT RESPECTIVELY.
 ALSO SEE IN PARTICULAR HOW THE ADVOCATE FOR THE
APPLICANT ARGUES THAT THE APPLICATION IN ITS CURRENT
FORMAT SHOULD BE ACCEPTED BY THE COURT.
 WRITE YOUR OWN JUDGMENT SINCE THE COURT DECIDED TO
RESERVE JUDGMENT IN THE MATTER.
 ACCEPT THE ATTACHED APPLICATION EXAMPLE IS NOT THE
BEST PRACTICE IN THIS CASE AND INDICATE HOW YOU WOULD
APPROACH THE MATTER. (IN OTHER WORDS, HOW WOULD YOU
DEAL WITH THE RELIEF SOUGHT AND HOW WOULD YOU
PREPARE THE ARGUMENT FOR THE HEARING IN COURT?)
 ALSO CONSIDER THE RESPONSE BY THE RESPONDENT.
 COULD THE COURT CONSIDER THE GRANTING OF A
TEMPORARY INTERDICT BASED ON THE SAME APPLICATION?
 HOW COULD THE COURT DEAL WITH THE FACTUAL DISPUTES
IN THE MATTER?
Facts:
John East’s next door neighbour, Stanley West, starts with extensive renovations
and alteration work on his house. This work entails rather elaborate excavations of
foundations that go right up to their communal border. Meanwhile John notices a
crack appearing in the outer wall of his house and his friend, Pete Smith, who is a
builder, opines that the crack is caused by the excavations next door. (John lives in
123 Smith Street, Queenswood, Pretoria and Stanley in 124 Smith Street in the
same suburb.)
John phones Stanley and asks him to either stop the excavations or to obtain the
services of a civil engineer in order to ensure that no further damages are caused to
his (John’s) house.
Stanley however responds that he is building in accordance with approved building

plans, the foundations are in accordance with the National Building Regulations and
that his building operation cannot cause any damages to John’s house. He does not
deem the further expenses to appoint a civil engineer necessary and thus flatly
188
refuses to co-operate. John informs Stanley that he has no choice but to obtain legal
advice to which Stanley responds that he will oppose any legal action that comes his
way.
John’s attorney applies for a final interdict and instructs an advocate to argue the
matter on behalf of the applicant on this basis.
(Indicate how you would act on behalf of the applicant and the respondent
respectively, by explaining the steps to be taken and by drafting the relevant
documentation.)
189
ANNEXURE “AA”

CASE NUMBER: 1 OF 2008
John East…………………………………………………………………Applicant
and
Stanley West……………………………………………………………Respondent
NOTICE OF MOTION
TAKE NOTICE THAT John East (hereinafter called the applicant) intends to make
application to this Court for an order that:
1 The Respondent be prohibited from continuing with excavations on Erf 207,

Queenswood, situated in 124 Smith Street, Queenswood.
2 The costs of this application.
3 Such alternative relief as the Honourable Court deems fit.
TAKE NOTICE FURTHER THAT the Applicant has appointed T. Mabula Inc of 24
Church Street Pretoria at which he will accept notice and service of all process in
these proceedings.
TAKE NOTICE FURTHER THAT if you intend opposing the application you are
required (a) to notify applicant’s attorney in writing on or before the 16 th April 2008
and (b) within fourteen days of the service of this notice upon you, to file your
answering affidavits, if any; and further that you are required to appoint in such
notification an address referred to in rule 6(5)(b) at which you will accept notice and
service of all documents in these proceedings.
If no such notice of intention to oppose be given, the application will be made on the
18 April 2008 at 14:30 p.m.
Dated at Pretoria this 14 th day of April 2008.
………………………………
.....................................................................................................................
AND TO: THE RESPONDENT

.....................................................................................................................
(PER SHERIF)
190

(TRANSVAAL PROVINICAL DIVISION)
and
FOUNDING AFFIDAVIT
I, the undersigned,
John East,
1.
I am the Applicant in this matter, an adult teacher resident at 123 Smith Street,
Queenswood, Pretoria.
2.
The Respondent is Stanley West an adult businessman resident at 124 Smith Street,
Queenswood, Pretoria.
3.
The property of the Respondent, being Erf 207, Queenswood, situated at 124 Smith
Street, Queenswood is adjacent to my property, being Erf 208, Queenswood,
situated at 123 Smith Street, Queenswood, Pretoria.
4.
The Respondent has embarked on building operations on his property that entail
elaborate excavations close to our communal border.
5.
Subsequently to his building operations and excavations a crack appeared in the
outer wall of my house which wall is 3 meters from the excavations referred to in
paragraph 4 hereof.
6.
A professional Builder, Pete Smith, inspected the crack and concluded that it is
definitely caused by the excavations as described in paragraph 4 and that it will
deteriorate causing the wall to collapse should the excavations continue. (See
Annexure “A”.)
191
7.
By continuing the excavations the Respondent is unlawfully infringing my rights and
if he continues to do so I will suffer serious damages which damages cannot be
prevented by any other remedy under the circumstances.
Wherefore Applicant prays for:

a) An order prohibiting the Respondent to continue with the excavations.
b) Cost of suit.
Signed and sworn to on this 14 th day of April 2008 the deponent having
acknowledged that she knows and understands the contents of this affidavit and
that she has no objection against taking the prescribed oath, which oath she
regards as binding on her conscience.
___________________________
192
Annexure “A”:
AFFIDAVIT
I, the undersigned,
Pete Smith,
1.
I am a builder for the last ten years and therefore suitably qualified to give an expert
opinion on all building matters.
2.
I have inspected the house situated on Erf 208, Queenswood, situated at 123 Smith
Street, Queenswood, Pretoria and found a crack in one of its outer walls in close
proximity to the next door property where excavations are in progress.
3.
After inspecting both the excavation activities as well as the crack I hold the opinion
that the crack is caused by such excavations.
Signed and sworn to on this 14 th day of April 2008 the deponent having
acknowledged that he knows and understands the contents of this affidavit and
that he has no objection against taking the prescribed oath, which oath he
regards as binding on his conscience.
___________________________
193

and
OPPOSING AFFIDAVIT
I, the undersigned,
Stanley West,
1.
Ad paragraphs 1, 2 and 3 of the Founding Affidavit:
I am the Respondent in this matter, and I acknowledge the contents of paragraphs 1,

2 and 3 of the Applicants Founding Affidavit.
2.
Ad paragraph 4 of the Founding Affidavit:
I admit that I have embarked on building operations that entail excavations but deny
that the excavations are elaborate since they are normal 30 x 50 cm excavations as
prescribed by the National Building Regulations.
3.
I have no knowledge of a crack on the outer wall of the Applicant’s house but if there
is a crack I specifically deny that it has been caused by my excavations.
4.
I deny that my excavations can cause any damage to the house of the Applicant
since the excavations are of a limited nature, they conform with the National Building
Regulations and they are in line with building plans that have been approved by the
194
building section of the Tshwane Metro. I thus also differ from the opinion of Mr Smith
and I specifically deny that he is suitably qualified to give such an expert opinion on
the cause of the alleged crack.
5.
I deny all the allegations made by the Applicant in paragraph 7.
6.
When I started my building activities the Plaintiff informed me that he will do anything
to prevent me from completing same since he does not want to have a building
bordering on the common boundaries of our respective properties.
Wherefore Respondent prays that:

a) The order sought by the Applicant be denied.
b) Cost of suit.
Signed and sworn to on this 16th day of April 2008 the deponent having
acknowledged that she knows and understands the contents of this affidavit and
that she has no objection against taking the prescribed oath, which oath she
regards as being binding on her conscience.
___________________________
NOTE:
Ad Application and subsequent documentation:
Please note that the Respondent refers to paragraphs in the Founding Affidavit as
indicated, i.e. Ad paragraph …, but he or she may also add additional information
like in paragraph 6 of the Opposing Affidavit. The Applicant may respond to the
Opposing Affidavit by means of an Affidavit in Reply. The format will basically be in
the style of the Opposing Affidavit. A reply should be used if the Applicant wants to
respond to any particular new averment made by the Respondent in the Opposing
Affidavit.
195
Ad description of immovable property:
The best way to identify property is to use both its formal description as indicated in
the Deeds Registry and its title deed as well as its physical address, for instance:
“Erf 123 Queenswood, situated at 124 Smith Street Queenswood.” If you have such
information - that can be obtained by means of a deeds search in the relevant Deeds
Registry - you may add held by ….(registered owner)… In terms of T 12456/ 2007
that refers to the registered owner in terms of the title deed as it appears in the
Deeds Registry.
Ad Practice:
Please note that apart from the uniform rules of court, there are particular rules that
apply to the Supreme Court of Appeal and the various divisions of the High Courts
that give certain directive regarding certain procedures that must be followed as well.
In the TPD there is also a Practice Manual that contains certain directives issued by
the Judge-President of this division.
For updated rules of court, relevant legislation, precedents and practice directives
and civil procedure information in general, visit the Butterworths-Lexis-Nexis page at
the library under the headings “Civil Procedure” and “Pleadings” respectively.
Ad litigation techniques:
See and if possible read:
CG Marnewick Litigation Skills for South African Lawyers.

H Daniels Morris Technique in Litigation.
Ad Heads of Argument:
Heads of Argument are used in the case of appeals as well as opposed applications
in the High Court. It is nevertheless advisable to prepare your arguments in other
matters, like opposed applications in the magistrate’s court, in the same format in
order to give structure to your arguments.
HEADS OF ARGUMENT:
Drafting of heads of argument:
- Begin by identifying the issues

- Give a summary of the material facts
- Set out the proposition of law with reference to authority
- Apply the propositions to the facts
- Conclude with a conclusion regarding the relief to which the litigant is entitled.
Examples based on the above application:

196
[TRANSVAAL PROVINCIAL DIVISION]
CASE NUMBER: 1/2008
JOHN EAST APPLICANT

And
STANLEY WEST RESPONDENT
______________________________________________________________
APPLICANT’S HEADS OF ARGUMENT
______________________________________________________________
URGENCY:
1.
1.1 Applicant applies for an interdict against Respondent in terms whereof
Respondent is prohibited to continue with excavations on Erf 207,
Queenswood situated at 124 Smith Street, Queenswood.
1.2 The Notice of Motion and Founding Affidavit are not drafted on the basis
thereof that the application will be brought as an urgent application.
1.3 However, Counsel for Applicant has been advised by his instructing attorney
that the matter has been enrolled for hearing before the Honourable Court in
view of the extreme urgency in this matter.
1.4 It is conceded that the Notice of Motion as well as the founding affidavit do not
specifically deal with the question of urgency as is required by Rule 6[12][b].
1.5 However it is respectfully submitted that the Honourable Court always has a
discretion to condone non-compliance with the Rules and Practice of the
Honourable Court in circumstances where such condonation are warranted.
1.6 In this matter it is respectfully submitted that from the context of the papers it
is abundantly clear that this is in fact a matter of extreme urgency:
1.6.1 Respondent refuses to desist from continuing with building operations.
1.6.2 The consequences for Applicant, should Respondent be allowed to continue
with his building operations are extremely serious.
1.7 In these circumstances the Honourable Court is respectfully requested to
condone the failure of Applicant to specifically deal with the question of
197
urgency in the founding affidavit and Notice of Motion. In all respects this is a
matter which comply with the requirements of an urgent application.
See in general: Luna Meubelvervaardigers (Edms) Bpk v Makin t/a
Makin’s Furniture Manufacturers 1977[4] SA 135 [W].
THE MERITS:
2.
2.1 Applicant applies for a final interdict with costs.
2.2 The requisites for a final interdict are:
(a) a clear right;
(b) an injury actually committed or reasonably apprehended;
(c) absence of similar protection by any other ordinary remedy.
See: The Law of South Africa, 1st re-issue Vol 11 p288 par 309.
3.
It is respectfully submitted that the excavations of Respondent are the cause of the
cracks.
4.
Respondent merely alleged that his building procedures are in compliance with the
usual City Council requirements, the National Building Regulations and are allegedly
of a limited nature.
5.
It is respectfully submitted that despite the fact that in applications where fact arise,
they are usually adjudicated upon the version of the Respondent, this is a case
where the Honourable Court ought to follow a robust common sense approach and
should dismiss the uncorroborated lay person’s allegations of Respondent and
indeed make an order in terms of the Notice of Motion in favour of Applicant.
See: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623
(A).
6.
Wherefore the Honourable Court is respectfully requested to grant an order in terms
of the Notice of Motion.
198
Dated at PRETORIA on this 18th day of APRIL 2008
________________________
AJ LOUW SC
COUNSEL FOR APPLICANT
199
CASE NUMBER: 1/2008
JOHN EAST APPLICANT

And
______________________________________________________________
RESPONDENT’S HEADS OF ARGUMENT
______________________________________________________________
1.
INTRODUCTION
This is an application for a final interdict, prohibiting the respondent “from continuing
with excavations on Erf 207, Queenswood, situated in 124 Smith Street,
Queenswood”, plus costs.9
2.
IN LIMINE
The attestation of the affidavit of both the applicant and the respondent is irregular.
In both cases, the commissioner of oaths refers to the parties as being female, while
that is clearly not the case. I submit that the error is, in the circumstances, a minor
one and request, on behalf of the respondent, condonation for the error.
3.
URGENCY
3.1 The application has been brought on the basis of urgency, in that the normal
rules regarding times periods and service have not been complied with and the
matter set down for hearing in the urgent court.
3.2 However, there has been no attempt to follow the requirements of rule
6(12),10 in that the applicant has failed:-
9
See prayers 1 and 2, notice of motion.
10
Uniform Rules of the High Court.
200
3.2.1 to set forth explicitly the circumstances which he avers render the matter
urgent and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course;11
3.2.2 to comply with the provisions of Part FB of the Practice Manual. As is
correctly pointed out by Erasmus,12 the provisions of the Practice Manual are
strictly applied. There has also been no attempt to comply with the
Memorandum issued by Justice South wood on 12 February 2007.13
3.3 In the premises, the respondent requests that the matter be struck from the
roll.
4.
THE MERITS:
BACKGROUND
4.1 Facts that are common cause
4.1.1 The applicant a teacher, and the respondent, a businessman, are neighbours,
living in adjacent properties in Smith Street, Queenswood, Pretoria.
4.1.2 The full description of the respondent’s property is Erf 207, Queenswood,
situated at 124 Smith Street, Queenswood and that of the applicant, Erf 208,
Queenswood, situated at 123 Smith Street, Queenswood, Pretoria.
4.1.3 The Respondent has embarked on building operations on his property that
entail excavations.
4.2 The factual allegations by the applicant that are in issue
4.2.1 That the excavations are “elaborate”. The respondent avers that they are
normal 30 x 50 cm excavations, as prescribed by the National Building
Regulations.
4.2.2 That there is a crack on the outer wall of the applicant’s house and if there is
indeed a crack, that it has been caused by the respondent’s excavations.
4.2.3 That if excavations continue, the alleged crack will deteriorate causing the
wall to collapse. The respondent avers that the excavations are of a limited
nature; they conform with the National Building Regulations and they are in
line with approved building plans.
11
Rule 6(12)(b).
12
Superior Court Practice at B1-56, fn 3.
13
Reproduced in Erasmus D5-14S-14W.
201
4.2.4 That by continuing the excavations the respondent is unlawfully infringing the
applicant’s rights; and that the applicant will suffer irreparable harm.
5.
LEGAL ARGUMENT
5.1 As set out in subparagraph 4.2 above, there are real, genuine and bona fide
disputes of fact in this matter, as contemplated in the Room Hire case.14
Therefore, the court should take the approach set out by the then Appellate
Division in the Plascon Evans matter.15
5.2 Taking the undisputed facts from the applicant’s version and, where there is a
dispute as to the facts, the respondent’s version, the applicant is clearly not
entitled to the relief sought.
5.3 Regarding the evidence of the builder, it is not at all clear that he is an expert
in anything other than, possibly, building. He has not properly qualified
himself as an expert as to the cause of the alleged crack. It is also not clear
what the extent of his examination was; for all we know, it could have been a
neighbourly look over the wall. The court should, in the premises, disregard
his evidence.
5.4 It is also significant that the applicant has not chosen to put any evidence
before the court regarding the extent of the crack. Once again, we are forced
to speculate. However, the mere fact that the applicant has brought this
application cannot of itself supply any clue as to the seriousness of the crack,
on the one hand, and, on the other, of the causal relationship, if any, between
the respondent’s excavations and the cracks.
5.5 The respondent’s action are, on the face of it, lawful. He has obtained the
necessary planning approval.
5.6 In any event, there is no evidence that the respondent has breached any duty
of lateral support.16
14
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd1949 (3) SA 1155 (T) at 1163.
15
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H-635C. See also the
recent unreported judgment in Wightman v Headfour (Pty) Ltd (66/2007) [2008] ZASCA 6 (10 March 2008), in
which this approach was once again affirmed.
16
See, in a different context, but equally applicable in casu, Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd
2007 (2) SA 363 (SCA). See also Foentjies v Beukes 1977 (4) SA 964 (C) at 966D-E; Gordon v Durban City
Council 1955 (1) SA 634 (N).
202
5.7 A further aspect that deserves mention is the fact that the applicant has
chosen, in an urgent application, in a matter in which a dispute of fact was
clearly foreseeable, to pray for a final interdict. He has not chosen to ask for
interim relief pending the institution of any action.
6.
In the premises, the respondent prays that the applicant be dismissed with costs.
______________________
LP DICKER
COUNSEL FOR THE RESPONDENT
1517 HIGH COURT CHAMBERS, PRETORIA, 18 APRIL 2008
203

CASE NUMBER: 1/2008

JOHN EAST APPLICANT

And
________________________________________________________________
PRACTICE NOTE: COUNSEL FOR RESPONDENT

______________________________________________________________
1. Number on role: 1
2. Counsel for Applicant: A J LOUW SC Tel 012 303 7569
3. Counsel for Respondent: L P Dicker Tel 012 303 7878
4. Nature of application: Urgent application for interdict.
5. Order sought: Final interdict prohibiting respondent from performing

certain excavations on his property; and costs.
5.1 By applicant: Probably an order in terms of Prayers 1 to 2 of Notice of

Motion.
5.2 By respondent: That the application be dismissed with costs.
6. Estimated duration: 1 hour
7. Urgency: None stated by applicant; applicant of view matter is urgent;

respondent disputes urgency.
8. Reading of papers: Required
9. Heads of argument: Attached hereto, on behalf of respondent.
L P DICKER
COUNSEL FOR THE RESPONDENT
1517 HIGH COURT CHAMBERS
PRETORIA
204
ANNEXURE/ AANHANGSEL “D”
THE LAW OF OBLIGATIONS AND CAUSES OF ACTION
[Acknowledgement: Adapted for teaching purposes only, from excerpts from

Hosten et al Introduction to SA Law (1977); Herbstein and van Winsen The Civil
Practice of the Supreme Court of SA (1997); Prest Interlocutory Interdicts; Becks:
Theory and Principles of Pleading in Civil Actions (1973))]
1 GENERAL
The word obligation is derived from the Latin word obligare meaning to bind. Hence
the definition in the Digest of an obligation as a juristic bond between two persons in
terms of which the one is legally bound as against the other to perform something. It
is therefore a relationship which entails on the one hand a person’s right to a
performance by someone else, ie a personal right;’ and on the other hand another
party’s duty to perform. The performance which forms the object of the right and the
corresponding duty may consist in giving something, in doing something or in not
doing something. The holder of the right is called the creditor and the other the
debtor. In most cases, the personal right or claim may be directly enforced in law, in
which case we speak of a civil obligation. Sometimes however the law, although
recognizing the validity of an obligation in certain respects, is not prepared to make it
enforceable in which case it is designated as a natural obligation.
Obligations arise mainly from three sources:
 Contract;
 Delict; and
 Various other sources arising ex lege like:
 Unjustified enrichment;
 Unauthorised management of affairs(negotiorum gestum, which is also a
kind of enrichment);
 Family and blood related relationships like a parent’s duty to maintain his
child, and the right of the child to claim maintenance from his parent;
 Statute.
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2 UNJUSTIFIED ENRICHMENT
Under certain circumstances unjustified enrichment gives rise to an obligation in

terms of which the enriched party, for convenience called the enrichee, incurs a duty
to restore the extent of his enrichment to the impoverished party, for convenience
called the impoverishee, and the latter acquires a corresponding right to claim that
the extent of the enrichment be restored to him.
However, unjustified enrichment is not a general source of obligations; in
other words an obligation will not always arise when the general requirements of
unjustified enrichment are present because, as we shall see, our law does not
recognize all-embracing enrichment action. These general requirements exist when
one person is enriched, and another is impoverished, the enrichment of the former
being at the expense of the latter and there has been no legal ground or cause for
the transfer of the asset concerned from the impoverishee’s estate to that of the
enrichee (in other words, transfer has taken place sine causa). But we repeat: our
law does not recognize that enrichment liability ensues whenever these
requirements are present, but acknowledges liability only in certain specific
circumstances. South African law can therefore be said to have a law of enrichment
actions. Most of these actions stem from Roman law and have come down via
Roman-Dutch law to South African law where their names, requirements and scope
are very often still unaltered.
Before 1966 the weight of contemporary South African legal opinion was in
favour of the view that the law with regard to enrichment liability had reached its
ultimate development and that it could be said that a general enrichment action
existed. In that year, however, the appellate division in Pool en ‘n Ander v Nortje NO
held that no such general enrichment action exists in South African law but only such
specific actions and ad hoc extensions thereof as have already been recognized or
may still be recognized. This decision left the law of enrichment liability in a state of
uncertainty because further extensions and even the future development of a
general action were not ruled out.
There is thus no general action in South African law based on enrichment. An
essential element in such an action is that the enrichment is unjust (Nortje en ‘n
Ander v Pool, N.O., 1966 (3) SA 96 (A.D.)). See also Odendaal v van Oudtshoorn,
1968 (3) SA 433 (T); Gouws v Jester Pools (Pty) Ltd., 1968 (3) SA 563 (T).
206
The condictio indebiti (note there are other types of actions in this regard as
well.)
This is the action used to recover money or property which was paid or delivered by
the plaintiff to another in the mistaken belief that it was due to such person. Thus if I
buy something and pay too much as a result of an error with regard to the price, I am
entitled to reclaim the amount in excess with the condictio indebiti. (The action is
however not available if the money paid was due under an obligation naturalis since
in that case the debt, although not claimable, was not indebitum.)
Example:
(1) Parties. (It must be shown that plaintiff sues in his capacity as executor of
the estate John Jones.)
(3) The estate of John Jones was indebted to defendant in the sum of R2 400
and no more.
(4) On or about the …………………. Plaintiff in ignorance of that fact and bona
fide and reasonably believing that a certain sum of R800 was also due to
defendant paid him the sum of R3 200.
(5) Defendant owes to plaintiff the sum of R800 overpaid by mistake but
notwithstanding demand defendant refuses to pay it or any part thereof.
Wherefore plaintiff claims……………………………..
Negotiorum gestio or unauthorized administration
Negotiorum gestio is another source of obligations which was classified by the

Romans as a quasi-contract and it is to be clearly distinguished from the cases of
unjustified enrichment discussed above.
Negotiorum gestio occurs where a person, called the gestor, with the intention
of acting to the advantage or benefit of another called the cominus, takes control of
the dominus’ interests in a reasonable manner and to the dominus’ advantage and
benefit, without any intention to act free of charge and without having been forbidden
to do so by the dominus. Thus the requirements for liability are that the gestor must
act without instruction, utiliter coeptum ie reasonably in the interests of the dominus,
with the animus negotia aliena gerendi ie with the intention of benefiting the
207
dominus, not animo donandi ie not with the intention to donate his performance, and
not against the express prohibition of the dominus.
A claim based on statute:
The notion of voidable dispositions in the insolvency law will serve as a good
example in this respect. See for instance sections 26 – 30 of the Insolvency Act of
1936 that provides statutory grounds for the trustee to attack certain dispositions
made by an insolvent prior to sequestration.
3 INTERDICTS
REQUIREMENTS FOR AN INTERDICT
In order to succeed in obtaining a final interdict, whether it be prohibitory or

mandatory, an applicant must establish:
(a) a clear right;
(b) an injury actually committed or reasonably apprehended; and
(c) the absence of similar protection by any other ordinary remedy.
An applicant for a temporary interdict will obviously succeed if he is able to satisfy

the above three requirements, but the court has a discretion to grant a temporary
interdict even when a clear right has not been proved. This the court will do if:
(a) the right that forms the subject matter of the main action and that the applicant
seeks to protect is prima facie established, even though open to some doubt;
(b) there is a well-grounded apprehension of irreparable harm to the applicant if
the interim relief is not granted and he ultimately succeeds in establishing his
right;
(c) the balance of convenience favours the granting of interim relief; and
(d) the applicant has no other satisfactory remedy.
As damages are claimed as well as an interdict a combined summons must be used.

If an interdict only is claimed an ordinary summons may be used.
208
In deciding whether the interdict sought is temporary or final, the court will
look at substance rather than form.
The main principles on which the court decides whether or not to grant an
interdict pendente lite are the probabilities of success in the main action and the loss
of inconvenience caused by the granting or the refusal of the interdict. Thus if the
loss or inconvenience would be serious to the applicant if refused, but of little
consequence to the respondent if granted, the interdict would be granted; but if the
loss or inconvenience if granted would be of great consequence to the respondent
and of less consequence to the applicant, the interdict should be refused.
A permanent interdict will seldom be granted on application. An action is the
proper procedure and plaintiff must allege and prove a clear right, a well-founded
fear that an injury, committed against him, will continue to be committed or that an
injury is about to be committed against him and there is no other adequate remedy
available to him. If plaintiff cannot show that an action for damages is not an
adequate remedy, an interdict is likely to be refused (cf. Lubbe v Die Administrateur
Oranje-Vrystaat, 1968 (1) SA 110 (O)).
A mandamus may sometimes be a remedy for a continuing wrong. This is an
order requiring the performance of an act. Thus if plaintiff alleges that a building is
encroaching on his property he may sue for an order that the owner of the building
remove the encroachment.
INTERDICT: CLAIM FOR REMOVAL OF ENCROACHMENT ON LAND

Example:
(1) Plaintiff is ………………………………….
(2) Defendant is ………………………………..
(3) Plaintiff is the registered owner of Stand No. ……………………
Johannesburg
(4) Defendant is the registered owner of Stand No. ………………….
Johannesburg, which stand adjoins plaintiff’s stand aforesaid.
(5) Defendant has built a residence on his stand aforesaid and portion of the said
residence, namely a verandah thereof, encroaches upon the plaintiff’s stand
aforesaid.
209
(6) The plaintiff has called upon defendant to remove the encroachment aforesaid
but the defendant has wrongfully and in breach of plaintiff’s rights refused to
remove the said encroachment.
Wherefore the plaintiff claims (a) an order that defendant remove all portions of the
building encroaching on plaintiff’s stand; (b) costs of suit; (c) alternative relief.
SPECIAL INTERDICTS:
Anton Piller Orders

An Anton Piller order is usually brought on an ex parte basis without notice and in
camera to the respondent based on interlocutory and urgent relief. The applicant
usually asks for the authority to search for and attach property and/or documents in
the possession of the respondent. This application finds application where there is a
fear that material may disappear and might thus not be available as evidence during
the trial. The application is thus for the attachment of documents or things to be
preserved as evidence. Sometimes the application is for the disclosure of
information. The Anton Piller order is of an interlocutory nature but care must be
taken to execute such orders strictly in accordance with the order since it may be
extremely detrimental to the respondent.
It is to be noted that this type of order first developed in English law and the
name has been derived from the English case Anton Piller KG v Manufacturing
Processes Ltd & Others [1976] 1 All ER 779 (CA). With regard to its development in
South African law, it is to be noted that Roamer Watch Co SA & another v African
Textile Distributors also t/a MK Patel Wholesale Merchants & Direct Importers 1980
(2) SA 254 (W) was the first reported case on this procedure. Although thereafter
rejected as part of the South African law this remedy was finally recognised as part
of our law in Universal City Studios Inc & Others v Network Video (Pty)Ltd 1986 (2)
SA 734 (A) and Shoba v Officer Commanding, Temporary Police Camp, Wagendrift
Dam, & Another; Maphanga v Officer Commanding, SA Police Murder & Robbery
Unit, Pietermaritzburg, & Others 1995 (4) SA 1 (A).
Mareva injunction (anti-dissipation order)

Prest (Interlocutory Interdicts) on 172 states that the Mareva principle as applied in
our law entail that “where an applicant can establish that the respondent has no
210
bona fide defence to an action and that, objectively considered, there are good
grounds for fearing that he intends to make away with his assets in order to defeat
the applicant’s claims, the court may grant an interdict restraining the respondent
from parting with his property pending the result of an action.” This order can thus be
given against a debtor or against a third party in possession assets(property) of the
debtor. The general effect of the interdict is thus to provide some guarantee that
there will be money assets available to satisfy an eventual claim against the
defendant in the main case. The interdict is however directed against the possessor
(debtor or third person) personally in that it restrains such persons from dealing with
the goods in question. The effect is however not as far reaching as writ of
attachment in that assets are attached as such. (The term Mareva is not generally
accepted in South African Law.)
4 CAUSES OF ACTION
A cause of action in civil litigation is first and foremost based on an obligation that
exists between the litigating parties since the remedy will follow the obligation and
will seek to address non compliance thereof. The relief sought will usually be in the
form of the payment of money; delivery of a thing; or an order that a person does or
refrain from doing certain acts.
A pleading/ application must thus first and foremost establish a cause of
action/ basis for the application by dealing with all the essential requirements for the
relief sought, i.e. containing the facta probanda. Where a pleading lack the required
allegations to establish a cause of action, such a pleading may become susceptible
to an exception.
Some examples of causes of action: Extract from Pete et al Civil Procedure: A
Practical Guide (2008) Oxford SA pp 587-588
“1 Goods sold and delivered

The plaintiff’s claim is against the defendant for the amount of R50 000 being the
amount due owing and payable by the defendant to the plaintiff in respect of goods
sold and delivered by the plaintiff to the defendant at the defendant’s special
instance and request during the period March to August 2004 (both months
inclusive).
2 Balance due for goods sold and delivered

The plaintiff’s claim is against the defendant for the sum of R50 000 being the
balance due owing and payable by the defendant to the plaintiff in respect of goods
sold and delivered by the plaintiff to the defendant at the defendant’s special
211
instance and request during the period March to August 2004 (both months
inclusive).
3 Work done and material supplied

The plaintiff’s claim is against the defendant for payment of the sum of R50 000
being the amount due owing and payable by the defendant to the plaintiff in respect
of work done and material supplied in connection therewith by the plaintiff for and on
behalf of defendant at the defendant’s special instance and request during the period
May to August 2004 (both months inclusive).
4 Professional services rendered

being the amount due and payable by the defendant to the plaintiff as the agreed,
alternatively fair and reasonable remuneration for professional services rendered by
the plaintiff to the defendant during the period May to August 2004 (both months
inclusive) at the defendant’s special instance or request.
5 Promissory notes
The Plaintiff’s claim is for the sum of R50 000 being the amount due and owing by
the Defendant to the Plaintiff under a certain promissory note dated ________ drawn
by the defendant in favour of the plaintiff which was due and payable on the
_____________ but which was dishonoured upon presentation for payment on due
date in accordance with its tenor. The plaintiff is the legal holder of the said
promissory note. Notice of dishonour is dispensed with in terms of the provisions of
Act 34 of 1964. [Note that promissory notes have largely been replaced by post-
dated cheques in modern commercial transactions.]
6 Cheques
The plaintiff’s claim is for the sum of R50 000 being the amount of a cheque dated
______________ drawn by the defendant in favour of the plaintiff or order which was
due and payable at the ______________ but which was dishonoured upon
presentation for payment in accordance with its tenor. The plaintiff is the legal holder
of the said cheque. Notice of dishonour is dispensed with in terms of the provisions
of Act 34 of 1964.
7 Bills of exchange
Plaintiff’s claim is for the sum of R50 000 being the amount of a certain Bill of
Exchange dated the ____________ drawn by the plaintiff in favour of the
___________ or order and payable on the ________________ and which said Bill of
Exchange was duly accepted by the defendant but dishonoured upon presentation
for payment in accordance with its tenor. Notice of dishonour is dispensed with in
terms of the provisions of Act 34 of 1964.
8 Acknowledgements of debts
The plaintiff’s claim is against the defendant for the sum of R50 000 being the
balance due owing and payable in respect of a written acknowledgement of debt
made by the defendant in favour of the plaintiff on the _______ day of ________
9 Monies lent and advanced

212
being the amount due owing and payable by the defendant to the plaintiff in respect
of monies lent and advanced by the plaintiff to the defendant at the defendant’s
special instance and request during the period May to August 2004 (both months
inclusive).”
213
ANNEXURE/ AANHANGSEL “E”

LibraryResearchmanual.doc
LEGAL RESEARCH NOTES

OLIVER R TAMBO LAW LIBRARY
2008
CONTENTS
1. Introduction
1. Books
2. Legislation
4. Case Law
8. Journals
8. Foreign legal material
INTRODUCTION
These notes are compiled as a research reference tool for final year law students to use
when they are employed in the legal profession.
BOOKS
When looking for the most relevant information on a topic South African law books or
textbooks may often be viewed as your first port-of-call. However, do take care to use the
latest editions. As you well know the law is always changing.
Follow up the footnotes to legislation, regulations, case law and other material.
Looseleaf books are very useful tools. Once again make sure that they have been kept up-
to-date. They are kept up-to-date by means of replacement pages. There are a great many
of these books published by Jutas and LexisNexis Butterworths and they cover many
different subject areas.
LAWSA For those who have access to this publication, either in hardcopy or online format, it
can be rather useful. The Law of South Africa (LAWSA) is an encyclopedia of our laws. It
is kept up-to-date by means of new volumes and a monthly publication called “Current Law”.
The latter helps you to stay abreast of the new developments. Use the “Key” to find new
cases and other material on a specific topic. Material is arranged by Volume and paragraph
numbers.
Take note that from Jutas one can purchase, in either hardcopy looseleaf format or online
(CD) format,
the following:
1. The Jones and Buckle: Civil Practice of the Magistrate’s Court
2. Erasmus Superior Court Practice
From LexisNexis Butterworths:

1. Harms - Civil Procedure in Magistrates Courts
2. Harms – Civil Procedure in the Superior Court
214
LEGISLATION
ACTS:
The acts and their amendments are published in the Government Gazettes. The
Government Printer does not yet publish online. During your studies you could use our
hardcopy and online versions of the legislation from Jutas and LexisNexis Butterworths.
These are updated regularly. Basically you cannot get away from the need to use these
commercial sources for legislation. The acts on the Government websites at this stage do not
include the amendments to the acts. Thus you can use it if it is a brand new act – but if not, it
may be outdated. In addition to these, there is also Netlaw from Sabinet, which is the most
up-to-date source of the acts.
In the hardcopy Butterworths sets of Statutes you will find very useful additional information.
For each act you will find “References to Decided Cases” for that act. The material is
arranged by the sections within the act. Besides this there are also “References to
Regulations,etc. Published in Government Gazettes” for each act. In the online Jutas SA
Statutes there is added to many acts a list of CASES where sections of acts have been
considered. These cross-references are very useful in practice.
RULES OF COURT: The online Jutas SA Statutes contains the Magistrate’s Rules of Court
and the High Court Rules of Court. They are found under ‘Regulations and Rules’.
FORMS: Still in the online Jutas SA Statutes find these under High Court Rules of Court
and then Uniform Rules of Court, and then First Schedule and Second Schedule. Below is a
screen shot of part of this information.
215
REGULATIONS:
Regulations appear in the Government Gazettes. In the library we have access to the online
Juta’s Regulations of South Africa. This is most useful if you can have access to it. If not
you will need to use the hardcopy version of Butterworths “References to Regulations,etc.
Published in Government Gazettes”(see above) or the gazettes. Online access is obtainable
commercially from Jutas, Butterworths and Sabinet. Many of the subject-specific looseleaf
books do have the relevant regulations included in them.
Please note the information on this screen shot which gives the contents of the online
version of Jutas Statutes:
The Butterworths RSA Statutes is quite similar to the Jutas’ version. Also has a lot of
useful additional information. Here is a screen shot of the contents of the Butterworths RSA
Statutes:
216
BILLS:
Bills and draft bills are mostly published in Government Gazettes.
Probably the best source is still the databases from Sabinet - under “All Legal Products” –
‘Bill Tracker’ and ‘Policy Documents’. The latter contains Draft Bills as well as Government
Policy documents. If you do not have access to these then you may use the free material
from the internet.
Bills are obtainable free from the following website:

http://gov.za – Under ‘Information’ go to ‘Documents’ – then ‘Bills’ and so on.
http://www.polity.org.za. (under ‘Legislation and Policy’)
We suggest that you subscribe to “Legalbrief” – it is a newsletter on legal matters and is

sent on a daily basis by email. There is a alert section dealing with new legislation and there
is also information on some new case law. Legalbrief@legalbrief.co.za
CASE LAW
It must always be remembered that it is most important to find the latest case law on a
particular point. As mentioned before you should use an up-to-date textbook on the subject
as a guide, and then search the law reports for the latest judgments. (Authors of textbooks
may leave out important case law)
Jutas and LexisNexis Butterworths are once again your most important sources.
Remember that there is considerable duplication between the 2 publishers. In practice you
217
will need to keep up-to-date with what is published in the “blue book” – your monthly edition
of the SA Law Reports.
Jutas publish the SA Law Reports (from 1828 up to the today), SA Criminal Law Reports and
the Industrial Law Journal, both in hardcopy and online. In addition, they also have the Jutas
Daily Law Reports - online only.
Butterworths publish the following series:
 All South African Law Reports 1828-1946

 All South African Law Reports
 Arbitration Law Reports
 Competition Law Reports
 Constitutional Law Reports
 Judgments Online
 Labour Law Reports
 Pension Law Reports
 Tax Cases Reports
NB - Noter-up or Annotations: This is information which you may not have used in your
studies but which you will find invaluable in practice and is contained in the following (in
hardcopy format):
 Butterworths Index and Noter-up to the All South African Law Reports and the
South African Law Reports. Noter-up section – “The table below lists the cases
which have been referred to or considered judicially in the judgements………” The
index is also very useful.
 Juta’s Index and Annotations to the South African Law Reports. The “Case
Annotations” contains the same information as in the Noter-up. Useful index.
If you are using the online versions of Jutas you will find the same information. For example -
in the case information in the SALR you will find a “Link to Case Annotations”. If you follow
this link it will give you the information regarding whether or not the case has been
considered judicially (compared, considered, applied, referred to, distinguished). Obviously,
when using case law you need this information. The Butterworths Noter-up online material
is available with their reference works. There are not direct links from the online law reports
as it is with the Juta material
218
UNREPORTED CASES:
These may be obtained from the clerk of the court in which the case was heard. But you may
also find them in the JOL (Judgments Online – Butterworths) , the Jutas Daily Law
Reports, or SAFLII. The first 2 are commercially available but SAFLII is a free site on the
web.
SAFLII - http://www.saflii.org.za./
It is also very useful to be aware of the free caselaw obtainable from the internet. Bear in
mind the following:
219
These are especially useful:
- Supreme Court of Appeal (UOFS) - http://www.ufs.ac.za/apps/law/appeal/

- Constitutional Court http://www.constitutionalcourt.org.za/site/home.htm
- South African Legal Information Institute – SAFLII http://www.saflii.org.za./
(Please note it is advisable to go directly to the websites as given above, rather than use the
UP Law Library website, unless you are still a registered student).
Acts and the case law linked to it:
 In the online Jutas SA Statutes there is added to many acts a list of CASES where
sections of acts have been considered.
 The hardcopy Butterworths Statutes have the lists of “References to Decided
Cases” (see above).
JOURNALS
You have all used journals and you know that journals contain very useful information. They
will also assist you to stay abreast of developments in the law. There are about 25 academic
220
law journal titles in this country alone.You may wish to subscribe to some of them. The
Annual Survey of South African Law can be useful. It is published by Jutas.
De Rebus – will probably be used by all of you and it is worthwhile. I believe it is free on the
web. http://www.derebus.org.za/
The sorry state of affairs is that there is only one fully free online academic journal in this
country – namely “Potchefstroom Electronic Law Journal”
http://www.puk.ac.za/fakulteite/regte/per/index.html
Other commercially available electronic journals can be obtained from Jutas and from
Sabinet (SAePublications). A list of the SA academic law journals is attached to these
notes.
The Constitutional court website contains a free index to journal articles called iSALPi
www.constitutionalcourt.org.za. – go to the library and then iSALPI.
FOREIGN LEGAL MATERIAL
If you have no access to any international legal databases then the first place to look for
material is on
WORLDLII http://www.worldlii.org/. On the left you see All Countries. Contains some law
reports and legislation. For some countries there is a lot of material – but for others there
may be very little.
221
If you work for a firm that has access to the Westlaw or LexisNexis (Iinternational)
database, you will have a wide range of legal information from the western world (UK, US,
Canada, Australia, Hong Kong and so on) at your disposal. These databases include full-text
law reports, legislation, journal articles and other material.
Westlaw: You will need to select a database when searching in Westlaw. For example:
“Combined world journals and law reviews’; ‘US collection-All Federal and State Cases’;
‘United Kingdom Statutes’ and so on. If you use the “Terms and connectors” search option
(which we would recommend) you will need to search for a phrase by using “inverted
commas”. Other searching tips:
& AND /s In same sentence

space OR /p In same paragraph
““ Phrase /n Within n terms of
% But not AU( ) author’s name
! Root expander TI( ) words in the article title
* Universal character
Below is a screen shot of one of the pages in Westlaw. Tip: Use World Journals for articles
and WLI Academic for case law and legislation.
222
HOW TO KEEP YOUR KNOWLEDGE UP-TO-DATE:
In view of the above it should be clear that it remains a huge task to keep oneself updated on
new developments in law. It is important though that lawyers develop a system to do so. It is
highly recommended that you,at least, read the summaries of new judgments on a regular
basis and to page through Government Gazettes etc and make notes of new legislation et. –
especially the areas of law that you work in.
It is also recommended that you visit a law library form time-to-time and page through law
journals – making notes of articles and other matters of interest to you.
A minimum requirement is to subscribe to the De Rebus (attorneys receive this journal

automatically) and to read it every month –especially those sections that deal with new
legislation and judgments. It also contains a list of recent journal publications and newly
published books.
It is also a good idea to read the Juta Law Quarterly and Annual Survey of SA Law (ASSAL is
published annually and it gives you a comprehensive overview of legal developments within a
particular year of almost all the legal fields.)
In time you will become a specialist in one or more areas of the law and clearly you will do
more reading in such area(s). If you are in practice it is a good idea to keep updated in terms
223
of the general tools of the trade, like civil procedure and evidence, even if you are a specialist
family law lawyer or whatever.
October 2008
Shirley Gilmore (With thanks to Andre Boraine for his assistance and suggestions)

TLI Pleadings Pack 2010

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PLEADINGS PACK : 2010

INDEX : PLEADINGS : 2010

MAGISTRATES COURT PLEADING: DEVIATIONS 50

in the High Court 81

PART III : PROVISIONAL SENTENCE

A. INTRODUCTION TO THE DRAFTING OF PLEADINGS

“The more you practice, the luckier you get.”

1. The use of pleadings, notices and other related documents

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

The importance of the heading of a pleading must never be underestimated.

i) In which specific court the case is adjudicated.

c) A practical approach to the drafting of the contents of legal documents

3. The Action Procedure: Principles with regard to the drafting of specific

It is not necessary to deliver a replication/reply as in case of failure to deliver

The counterclaim is in principle a claim and the drafting of the counterclaim

The concepts “plaintiff in reconvention” and “defendant in reconvention”

“Brevitas causa/For purposes of convenience, the parties are referred to as in

You must bear the following in mind:

i) You are bound to the grounds of exception mentioned in your notice of

4. The Application Procedure: Rules applicable to Applications

You must also bear the following in mind:

b) i) Ex parte application: Notice of motion

You must indicate the following:

ii) Application with prior notice

iii) Interim applications

c) Affidavits in support of applications

The following general allegations must be contained in such affidavit:

i) Names and addresses of applicant and respondent (if applicable)

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

d) Important aspects regarding the drafting of the affidavit

i) To what is the applicant (or respondent) entitled?

e) Drafting of heads of argument

- Begin by identifying the issues

As a result of the injuries:

The amount of the damages is as follows:

a) Hospital expenses. R155 246-85

Damages to the Toyota:

Jack’s claim for bodily injuries:

Preliminary step: application to appoint a curator ad litem

Claim for damages etc:

Closure of pleadings and the procedure thereafter:

Appeal and review:

 Whether he or she may act on behalf of the client.

 Full names; residential address; postal address; telephone numbers; particulars of

THE PLEADING PHASE IN THE

Plaintiff issues Summons (1)

Sheriff serves (2) Summons on Defendant

Defendant serves (3) Notice of Intention to Defend

Defendant delivers Plea (4) and Counterclaim (5)

Plaintiff delivers Replication (6) and Plea to

b) INTERIM STEPS THAT THE PARTIES CAN CONSIDER

Plaintiff can consider: - Summary Judgment

Defendant can consider: - Rule 15(1) [later Rule 15(3)

Plaintiff can consider: - Notice of Bar

Plaintiff can consider: - Rule 15(1) (later Rule 15(3))

Defendant can consider: - Exception

Defendant can consider: - Exception

c) THEORY - MOTOR VEHICLE ACCIDENT

d) EXCHANGE OF PLEADINGS IN DEFENDED MOTOR VEHICLE

Johannes voet Attorneys

Tel: (012) 420 3198

MOTOR VEHICLE COLLISION ON 1 MARCH 2006 / MRS JILL HILL /