Student name: Kaisa Audrey

Student number: 19001156

Module: Civil Procedure
Module code: CIV 4641
Lecture: MR Lubusi

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Table of content
Question 1
1. Letter of demand……………………………………page 3
2. Combined summons……………………………….page 3
2.1. Content and form of summons………………..page 3
2.2. Service of summons……………………………………page 4
2.3. Particulars of claim ……………………………………..page 4
3. Steps by the defendant ……………………………………..page 5
3.1. Notice of intention to defend………………………………….page 5
3.2. Consent judgment…………………………………………….page 5
2.3. Defective summons …………………………………………..page 5

4. Pleadings by the defendant……………………………………..page 6

4.1. Rule 19 (4) and 19(6)………………………………………..page 6
i. Admissions……………………………………………..page 6
ii. Deny…………………………………………………….page 6
iii. Confess…………………………………………………..page 6
iv. Avoid and non-admission…………………………………….
ii. special plea…………………………………………………….page 6
4.2. Counterclaim…………………………………………………………………..

5. Steps by the plaintiff after service of the plea………………………………page 6

5.1
5.2. striking out…………………………………………………………page 6
5.3. Replication…………………………………………………………page 6
6. Pre-trial……………………………………………………………….page 7
6.1. Set down for trial…………………………………………………page 7
6.2. Discovery of documents…………………………………………page 7
6.3. Pre-trial Conference………………………………………………page 7
6.4. Subpoena ……………………………………………………….
6.5. The trial………………………………………………………….page 7
6.6. 6.6 judgment………………………………………………..page 7

7. Cost……………………………………………………………page 7
Question 2.
2.1………………………page 8
2.2. drafting of a default judgment ……………………………..

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 Question 1: The process step by step
1. A letter of Demand

The first step will be to send a letter of demand. It claims the recipient to fulfill their end
of the agreement. Furthermore, a letter of demand is sent when a person is owed
money and exhausts any other means unsuccessfully. It is the last step prior to the
commencement of legal proceedings. A letter of demand, further, states the amount
owed and when the amounts need to be paid. It further entails a warning that legal
action will be taken if the money is not paid by the given date.

2. Combined Summons

The summons is a notice from the plaintiff to the defendant via the sheriff and the
particulars of the claim contain the material facts on which the plaintiff relies for his or
her cause of action. Action proceedings in the Magistrate court are instituted in terms
of summons. This is so because the magistrate court has jurisdiction in terms of the
amount being claimed. The claim is unliquidated, thus the use of combined summons.
The rules to be used and followed are that of the magistrate court unless specified to
that of another court.

2.1. Content and form of the summons

A summons is a written judicial demand. It is issued by the registrar or the clerk of the
district court or High court. It is further directed to the sheriff; he then orders the
defendant to enter an appearance to defend by the fixed date to reply to the particulars
of claim of the plaintiff. In terms of rules 5 and 6 of the Magistrates Court, the summons
must include dies induciae, this is the given time the defendant must enter an
appearance to defend in rule 5(1). There must be also a warning of the consequence if
the defendant fails to respond to the request in the summons. A notice to consent to
judgment in terms of rule 5(5). There must also be the address of service of documents
in terms of rule 6(2)(c). Parties should be citated, this generally entails names,
addresses, and occupation of both parties in terms of rule 5(4)(a). The summons must
be signed in terms of rule 6(1) by either the attorney if the plaintiff and represented or
by the plaintiff if not represented.

The clerk of the magistrate court will issue the summons by providing a serial number.
Further, the clerk will sign and date the summons. In terms of rule 6(4), the clerk could
refuse to issue a summons if the amount claimed for cost is excessive or if the address
of service does not comply with the provisions of the Act

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 2.2. Service of summons

Rule 9(3) of the Magistrates Court provides various ways of services. These include
personal service, service upon an agent, and service at the workplace.

2.3. Particulars of claim

Particulars of claim is a document that goes with the summons. It sets out the details of
the claim. This document ought to contain:

i. the citation of the parties

ii. locus standi, this is the interest one must claim in a matter

iii. . Further, it must contain jurisdiction, and this is the competence of the court
to hear a matter, in terms of rule 5(6) of the Magistrates Court.

iv. There must be the cause of action in terms of rule 6(4), which are the merit
of the case.

v. Prayers

3. Steps by the defendant after the service of summons

3.1. The notice of intention to defend

This notice is provided in terms of rule 13 of the Magistrates Court. An appearance to

defend is entered by the defendant’s attorney and it is a notice to both the plaintiff and
the court entailing that the defendant wishes to defend. It also appoints an address for
the service of further documents in the action. Further, the notice has the effect of
placing the defendant’s attorney on record. If the defendant fails to enter an
appearance within the time specified in the summons, the plaintiff may apply for a
default judgment against him/her.

3.2. Consent to judgment

The defendant may consent to judgment in terms of rule 11. This means the defendant
will admit that he owes the amount in question and admit to paying the claim against
him or her.

3.3. Defective summons or summons without particulars

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Rule 15 of the Magistrates Court provides that a defendant may request the plaintiff to
provide copies of documents on which the action is founded within ten (10) days of the
receipt of the notice of intention to defend. A defendant who has entered a notice of
intention to defend, only, may rely on this option. Furthermore, in terms of rule 60(2), a
defendant may make an order compelling the plaintiff to furnish the particulars, where
the summons fails to provide sufficient details to complete a plea. To add on, a
defendant may apply for striking out any one or more claims in the summons in terms
of 17(6) (a) where there is any vexation, irrelevance, and contradiction.

4. Pleading by the defendant

4.1 plea

A plea will contain the defence and the defendant’s answer to the plaintiff’s averments
in the particulars of the claim. In terms of rule 19, averments are, the case number, the
plea must be in writing and date, signed by the attorney if the defendant is represented,
and if not, the defendant must sign. The plea must comply with subrules 19)4) and
19(6).

4.2 subrule 19(4) and 19(6)

The plea must be formulated in a way that is sufficiently clear to inform the plaintiff of
the core of the defendant’s defence. A bare denial of liability or defence of general
issues is not sufficient. Each allegation in the summons must be dealt with separately
in the defence. The defence must be either a special plea or plea on merit (this is either
to admit, deny, confession and avoid or non-admission)

i. Plea on merits: Admission, deny, confess, avoid and non-admission

Admission entails that all facts must be admitted explicitly and admitted facts need not
be proved at trial. Denial, on the other hand, must be clear and explicit to all the facts
that one wishes to deny. This further entails that a defendant must ensure that he or
she does not make a general denial because it will be admissible. To add on,
confession and avoid is when the defendant confesses to a particular averment in the
particular of claim but sets out new facts which, if proved would justify or excuse the
defendant’s admitted conduct. Non-admission is when the defendant does not know
anything about the particular allegation.

ii. Special plea

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This plea concentrates on the legal averments that need to be complied with, rather
that the factual allegation. It tries to knock out the plaintiff’s case before the merits of
the plaintiff’s case are even considered. The onus is on the defendant to prove the
special plea. This includes amongst others, lack of jurisdiction, locus standi, and
arbitration.

4.3. Counterclaim

A counterclaim is made by filling within the period given for delivery of the plea. This is
provided by rule 20(2) of the Magistrates Court Rule and it is a statement in writing
giving such particulars of claim in reconvention as required by the claim in the
convention.

5. Steps by the plaintiff after service of plea

In terms of rule 16, a plaintiff is permitted to request further particulars in respect of the
defendant’s plea. This permission will not be available where the defendant does not
disclose their defence. Further, when the defence is vague or does not comply with
rule 19, the request will not be available.

5.2. Striking out

The plaintiff may strike out any defence or matter in the plea on the same grounds that
the defendant would have struck out claims and matters in their summons as provided
by rule 19(17)(a). In terms of rule 19(18), an application to strike out any matter from
the plea may be set down for hearing by either party on the 10 days notice. In the case
where the application to strike out is not granted nor no application is made for
amendments, or such an application is refused, the court has the power to give
judgments for the plaintiff only if the plea discloses no defence in terms of rule 19(19).

5.3 Replication

In the case where the defendant turns to confession and avoidance and rise new
averments that the plaintiff cannot leave unchanged, the plaintiff has to counter such
new averments made by the defendant through further averments of her own in their
replication. The replication must be delivered 15 days after receiving the plea.
Furthermore, the plaintiff can only bring new averments if the defendant has brought
new facts.

6. Preparation of Trial

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 6.1 Set down for trial

The plaintiff is the dominus litus which means the master of litigation. This entails that
the plaintiff must set down a matter for trial. Further, it is provided for by rule 22 of the
Magistrates’ Court Rules. The plaintiff, however, has to set down the matter within 15
days after the closing of pleadings. Otherwise, the defendant will be entitled to set the
matter down for trial. Rule 27(5) gives the defendant an option to apply for the
dismissal of the plaintiff’s action.

6.2 Discovery of documents

The application for the discovery of documents is done in terms of rule 23. Discovery of
documents is when a party can compel the other to reveal documentary evidence with
the hopes to adduce such a documentary at trial. Further, it also entails revealing other
documents that are in the possession of the other party which may prove or disapprove
of the party’s case.

6.3 Pretrial conference

At this conference, parties try to limit the points in issue by making admission not
present in the pleadings. In terms of rule 25 and section 54(1) of the Magistrates Court
Act, a party to a suit may request the court to hold a pretrial conference.

6.4 Subpoena

This compels a witness to prevent himself /herself at a civil court and it also directs a
witness to bring evidence in their possession and under their control at trial. This is in
terms of rule 26 and form 24.

6.5 The Trial

This is the moment when the matter is litigated before the magistrate in an open court
at the courthouse unless the court orders otherwise.

6.6 Judgment 1

i. Release from the instance at the close of the plaintiff case will be granted if there is
insufficient evidence upon which the court may reasonably find for the plaintiff

ii. Release from the instance at the close of the defendant case, occurs when the
defendants fail to discharge the onus on the balance of probabilities.
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7. Costs

This is when a court decides who will be reliable to pay for legal service.
Furthermore, this order may be granted against either party, or no order in this
regard can be made. Section 48(d) of the Magistrate court Act provides that the
court may grant a judgment as to cost.

Question 2

2.1 . Default judgment.

This is a judgment granted when the defendant has failed to file a notice of intention
to defend, when the defendant has delivered the intention to defend but fails to but
failed to serve and file a plea and when the defendant has entered a defective entry
of notice to defend. Furthermore, a default judgment is entered against a party that
has failed to defend a claim that has been bought by another party. It is provided
under rule 12 of the Magistrates’ Court Rules.

The procedure is as follows:

A written request for default judgment is lodged by the plaintiff. This is done when
the defendant has failed to file a notice of intention to defend within 10 days. The
request is accompanied by the original summons, sheriff’s return of service, and
documents on which the cause of action is based if it is applicable. The case
number must be present, and the plaintiff may only claim the amount indicated in
the summons, not exceeding the amount claimed in the summons and also cost
and interest as claimed in the summons.

2.2. documents

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 IN THE MAGISTRATES COURT FOR THE DISTRICT OF THOHOYANDOU

HELD AT THOHOYANDOU

Case number: 113/2022

In the matter between:

John Mudau Plaintiff

Versus

Peter Moore Defendant

REQUEST FOR DEFAULT JUDGMENT IN TERMS OF RULE 12(1)(a)

The Plaintiff hereby applies that:

1. The Defendant having been duly served;

2. The time for entering an appearance to defend having expired;

3. The Defendant not having entered an appearance to defend;

Judgment be given against the Defendant as claimed in the Summons for:

a) Payment of the sum of R120 000.00

b) Payment of interest thereon at the agreed rate of 7,25 % per month a

tempore morae from 14 July 2022 to the date of payment;

c) Cost of the suit in an amount of R 25 5000 made up as

follows:

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Attorney chargers: Summons R 5 000

Judgment R 5 000

Court fees R 10 000

Messengers fees R 2 500

Total R 25 5000

DATED at THOHOYANDOU this day of 5th of August 2022.

TO:
………………………………………...

THE CLERK OF THE CIVIL COURT PER

AK ATTORNEYS INC

11 church street

Thohoyandou

Limpopo

ATTACHED:

Original Summons

Original Messenger’s Return.

Affidavit in terms of rule 12(4)

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IN THE MAGISTRATES COURT FOR THE DISTRICT OF THOHOYANDOU

HELD AT THOHOYANDOU

Case number: 113/2022

In the matter between:

John Mudau Plaintiff

Versus

Peter Moore Defendant

COMBINED SUMMONS

To the Sheriff of his Deputy:

Inform Mr. John Mudau an adult male teacher, resident at 630 Church Street, P west,
Thohoyandou, Limpopo.

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(hereinafter called the Defendant) that

Mr. Peter Moore, an adult female who is unemployed, resident at 33 Block F,

Thohoyandou, Limpopo.

(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 –

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 (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, Plaza street,
Thohoyandou 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 13(3) 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 of the clerk of the
court and serve upon the plaintiff’s attorney a plea, exception, notice to strike
out, with or without a counter-claim.

INFORM the defendant if he fails to file and serve notice as aforesaid, judgment as
claimed may be given against him without further notice to it, or if, having filed and
served such notice, defendant fails to plea, except, make application to strike out or
counter-claim. Judgment may be given against him.

And immediately thereafter serve on the defendant a copy of this summons and
return the same to the registrar of the court with whatsoever you have done
thereupon.

DATED at THOHOYANDOU on this 5th day of July 2022.

THE CLERK OF COURT …………………………………….

………………………….

Plaintiff’s Attorney

AK INCORPORATED ATTORNEY

Church Street 120, THOHOYANDOU

Tel: 011 246 678

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 Fax: 054 247 776

Our_reference: AkIncorporated.attorneys.ac.za

ANNEXURE A PARTICULARS

OF CLAIM

1.

The Plaintiff is, Mr. John Mudau, a major male, with Identity Number 756901556, and
currently residing at house no 630 Church Street, P West Thohoyandou.

2.

The Defendant is, Mr Peter Moore a major male professional teacher at

Thohoyandou Secondary School, Identity Number 11096745689, and currently
residing at house number 11 Block F Thohoyandou.

3.

The above Honourable Court has jurisdiction and authority to preside over this
matter in that both parties reside within its area of jurisdiction.

4.

On the 28th of June, near Mpephu drive near Game stores Thohoyandou, the
Defendant wrongfully caused damages to the Plaintiff’s vehicle, registration number
1109670L, by colliding with his vehicle of registration number 2789679L.

5.

The damage to this motor vehicle was due to the fault of the Defendant, who was
negligent in the followings:

5.1 . He moved his motor vehicle while the robots were red, indicating that motorist
should stop.

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5.2. He went on to crush with his bonnet into the Plaintiff’s motor vehicle which was
ahead of his vehicle.

6.

As a result of the damage caused by the collision to the Plaintiff’s motor vehicle, the
Plaintiff has suffered a loss of R 120 000.00, being the reasonable cost of repair of
the Plaintiff’s motor vehicle. This cost of repair is lower that the reasonable pre-
collision market value, less the reasonable post-collision motor vehicle value, of the
vehicle.

7.

Despite the demand, the Defendant has refused or omitted to compensate the
Plaintiff for his loss

WHEREFORE the Plaintiff prays for an order in the following terms:

(a) Payment of the amount of R 120 00.00

(b) Interest at the prescribed rate from the date of the demand to the date of
payment.

(c) Cost of the action

(d) Further and/ or alternative relief.

DATED at THOHOYANDOU on the 5th of July 2022.

Signed …………………………………..

ATTORNEY FOR PLAINTIFF

AK INCORPORATED ATTORNEYS

Church Street 120, THOHOYANDOU

Tel: 011 246 6789

Fax: 054 247 776

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Our_reference: AkIncorporated.attorneys.ac.

TO THE CLERK OF THE COURT

MAGISTRATE’S COURT

THOHOYANDOU

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IN THE MAGISTRATES COURT FOR THE DISTRICT OF THOHOYANDOU

HELD AT THOHOYANDOU

Case number:
113/2022

In the matter between:

John Madau Plaintiff

And

Peter Moore Defendant

AFFIDAVIT IN TERMS OF RULE 12(4)

I, the undersign,

Do hereby make an oath and say:

1. I am an adult male doctor at Tshilidzini and have been employed at

Tshilidzini Hospital, for the last ten years.

2. I served an apprenticeship and am the holder of a degree in medicine from

the University of Cape town. I have put the damage to the motor vehicle to the
assessment of an experienced panel beater at the Shell Panel Shop.

3. The panel beater inspected the damaged motor vehicle of registration number
1109670L and found the reasonable and necessary cost of repairs including
parts and labor to be R 120 000.00 as per the written quotation, a copy
whereof is attached hereto marked ‘ A’

…………………………………………….
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