civil proc slides

TERM 2:PLEADING STAGE

(1) CONTINUE WITH SUMMONS/POC(2) NOTICE OF INTENTION TO DEFEND

Civil Procedure A

Basic pleadings (continued)

• Implications of not following HC rule 18(12) & MC rule 6(13)

• Failure to comply with provisions– Pleadings deemed irregular step – Opposite party – application to set aside pleadings– Certain circumstances – pleadings ‘excipiable’– Pleader’s failure to rectify pleadings – claim/defence

dismissed/set aside.

• Step 1: summons and particulars of claim (continued)

PART 2: A: PLEADINGS


• Provisions for summonses relating exclusively to MC’s– Electronic addresses

• Plaintiff’s attorney must include electronic, facsimile and postal address in summons

• Plaintiff may indicate preferred manner of service• Defendant consents to exchange/service of subsequent documents

and notices by way of facsimile/electronic mail• Should defendant refuse/fail to consent – court may on application

by plaintiff grant consent – just and appropriate terms as to costs.




• Provisions for summonses relating exclusively to MC’s (continued)– Provision for jurisdictional averments

• Defendant cited under jurisdiction conferred on court by S 28(1)(d) of Act – averment that whole CoA arose within district/region

• When plaintiff relies on S 28(1)(g) – averment that property situated within district/region

– Abandonment of part of claim under S 38 of Act – Set-off under S 39 of Act.




• Service and methods of service (see pgs 6-7)– NB substituted service and edictal citation

• Lapsing and superannuation of summons– MC rule 10 eliminated by new rule 10 providing for Edictal

Citation– Matter always governed by common law in HC

• Plaintiff must proceed with action within reasonable time• Failure = summons becoming ‘stale’• ‘Reasonable time’ depends on case’s facts – final decision in court’s

discretion.



PARTICULARS OF CLAIM The Plaintiff is B Torr, an adult businessman of 15 High Street, Grahamstown. The Defendant is A Cox, an adult teacher whose full names are to the Plaintiff unknown of 124 Disa Street, Port Elizabeth. During or about February 2009 and at Grahamstown, Plaintiff and one Peter Twice, entered into a verbal agreement in terms of which Plaintiff agreed to sell and deliver to Peter Twice certain building materials, at a costs of R 155 000,00 to be paid in cash on delivery. Plaintiff duly delivered the building material to Defendant at his place of residence on 21 February 2009. Defendant paid to Plaintiff an initial amount of R 45 000,00 on delivery of the building material. Notwithstanding demand, Defendant has failed to pay the balance of R 110 000,00 to the Plaintiff . Defendant is also indebted to ABC (Pty) Ltd in the sum of R 30 000,00 for a similar transaction as referred to in paragraph 3 above. In the premises Defendant is indebted to Plaintiff in the sum of R 110 000,00. WHEREFORE PLAINTIFF PRAYS FOR JUDGMENT AS AGAINST THE DEFENDANT FOR: Payment of the sum of R 110 000,00;Interest thereon from 22 February 2009 to date of payment;Costs of Suit;Further and/or alternative relief.


• Summons served – defendant several choices– Do nothing– Contact plaintiff’s attorney – attempt to settle

matter by agreement– MC – ‘consent to judgment’, HC – ‘confession to

judgment’– Defend matter – enter ‘appearance to defend’ –

matter on defended basis.

• Step 2: notice of intention to defend


Basic pleadings (continued)• Notice• Delivery of notice• Dies induciae

• Step 2: notice of intention to defend (continued)


For next week:• Public lecture: The recognition of a class action in

South Africa (Mon, 1715)

• Guest lecture: The impact of the Constitution on the law of civil procedure (Tues, 1030)

• Hand-in of assignments: either 1230 or 1630 (Tues)

• BREAK?: two thirds of class attend public lecture (Wed, 1030)

Civil Procedure A

Counterclaims, FP, litis contestatio

Counterclaims• Overview

– Claim brought by defendant against plaintiff– Plaintiff’s claim = claim in convention – Defendant’s counter-claim = claim in reconvention– Normal rules for drafting particulars of claim apply to counterclaims– Counter-claim linked to plaintiff’s claim– Normally parties same – defendant sued in personal capacity – may

counter-claim in representative capacity– Claim and counter-claim heard at same hearing, unless they arise

from different sets of facts– Judgments should be given pari passu/simultaneously in MC and

HC.• Procedure?• Counterclaims in the MC?

Replication, reply, etc!• Replication

– Only necessary if defendant raises new averments in plea – plaintiff cannot leave unchallenged

– Defendant makes new averments as part of plea of confession and avoidance

• Possible steps after replication– Defendant’s rejoinder to plaintiff’s replication– Plaintiff’s surrejoinder to defendant’s ‘rejoinder’– Defendant’s rebutter to plaintiff’s ‘surrejoinder’– Plaintiff’s surrebutter to defendant’s ‘rebutter’– Only necessary to respond by means of above pleadings

when new averments are made in previous pleading

Litis Contestatio• Litis contestatio: exact time pleadings close, moment

issue joined between parties• Effect: freezes plaintiff’s rights at that moment• Instances where pleadings considered closed:

1. Party joined issue without alleging new matter and without adding further pleading

2. Last day allowed for filing replication/subsequent pleading elapsed – not filed

3. Parties agree in writing that pleadings are closed and agreement filed with registrar

4. Parties unable to agree on close of pleadings – court declares them closed.

Further particulars BEFORE close of pleadings?(pp 9-10)

• General overview– HC rule 35(12) and MC rule 23(13)– Purpose: presumably to ensure party is in position to reply to

pleadings.– Not necessary to wait until close of pleadings– Request inspection by serving notice according to HC Form

15/MC Form 15B– Applicable to applications and actions– Appearance to defend entered – request to make available for

inspection clearly specified document/‘tape recording’ for pleading purposes

– Vague request for general class of documents not permitted– Must be relevant ‘to a reasonably anticipated issue in the action’

Preparation for trial• Step 1: Setting matter down for trial• Step 2: Discovery process• Step 3: Technical and medical examinations• Step 4: Obtaining further particulars for trial• Step 5: Issuing necessary subpoenas• Step 6: Arranging for special evidence• Step 7: Arranging and attending pre-trial

conference• Step 8: Final preparation for trial – advice on

evidence.

Motswai v RAF 2013 (3) SA 8 (SGHC)• ‘Dishonest litigation’ by ‘carnivorous’ and

‘predatory’ litigators: ‘mount the steed of greed’• Process systematically exploited by a predatory

cabal of administrators, attorneys, advocates and professional experts, to the detriment of accident victims and taxpayers.

• Para 61 (claims by legal practitioners)• Paras 71-72 (claims by expert witnesses)• Hearing to determine: costs (AND

disbursements!!) de bonis propriis

CIVIL PROCEDURE A

Declarations and the defence (technical basis)

Introduction

• • The Sheriff (Serves documents) The Clerk / Registrar (court admin)

Prelitigation (prelim issues,

demand) Litigation (pleadings, prep for trial)

Trial Post Litigation (costs)

material dispute of facts legislation

(summons v notice of motion)

Key Officials

Stages of a Dispute

Action / Application

Stage one: before On what basis am I suing?

ContractDelict

Who can sue or be sued?Common law: Direct & Subst InterestLegislation: Section 38 (Const)Capacity: minors, mentally ill, prodigals, insolvents, judges, p/ships

Which court must I sue out of?Value of claim

Nature of Claim

Is it necessary?Complete cause of actionLegislation

Cause of Action

Locus Standi

Jurisidiction

Demand

Stage two: pleadings m

RETURN OF SERVICE

Defend Ignore Settle /Consent

SUMMONS & PARTICULARS OF CLAIM

Notice of Intention to Defend

Default judgment

-Satisfy Claim (s 57)-Consent to

judgment (s 58)-Settle

-Pay into court

Declarations

–Only necessary in actions with simple summons

–HC rule 20 and new MC rule 15• Like a POC• Default?

Defence on a technicality (NB but also responses to defective pleadings and non-compliance with

rules)

• General overview– Pleadings that fail to concisely and accurately define

issues in matter/do not comply with court rules– Procedures to attack defective pleadings:

• Exception• Application to strike out

– Procedures to respond to breaches of court rules• Application to set aside irregular step• Enforcing compliance and condoning non-compliance with rules

– Procedure to cure defective pleadings.PART 2: A: PLEADINGS

Exceptions

– Legal objection to pleading – pleading not legally valid for purpose

– Defect apparent ex facie document – excipiable– Party bringing exception = excipient– Defect in pleading not apparent ex facie pleading –

exception itself bad– Effect: dismissal/setting aside of claim/defence.


Exceptions

• 2 major grounds for taking exception1. Failure to disclose CoA/defence

• Most serious fault• Bring exception – truth of each allegation in pleading not

questioned• Defendant’s plea – material facts necessary for defence

to plaintiff’s CoA – failure, plea excipiable.


Scallan v Cadbury (Pty) Ltd (2006) 8 BLLR 811 (SE). Both Mr Buchanan and Mr Redding submitted, however, that a constitutional claim could and should be implied from the averments set out in the particulars of claim. I must confess to an inability to grasp the basis upon which such implication should be drawn from the particulars of claim as it stands. I am put in mind, however, of the pictures which were once a popular feature on the back of cereal boxes some years ago. The seemingly unintelligible jumble of dots and squiggles, if stared at long enough, would suddenly resolve themselves, for instance, into a picture of a tiger lurking in the foliage. I have stared long and hard at the pleadings but it does not appear to me that any tiger in the form of a constitutional claim is lurking in the verbiage thereof. However, when two senior counsel, each instructed by an experienced attorney, assure one that it is indeed there, then one is loath mero motu to decide otherwise. Despite my reservations I will therefore proceed to deal with the exception in the light of counsels’ submissions.

Exceptions

• 2 major grounds for taking exception (continued)2. Vague and embarrassing

• Pleading ambiguous/lacks clarity• Vagueness must result in prejudice/‘embarrassment’• Strikes at formulation of CoA, not legal validity• Examples:

– Lack of clarity/ambiguity– Omission of material facts– Contradictions in pleadings.


Exceptions

• Prejudice requirement• Harmonisation of practice regarding exceptions in MC

& HC


Exceptions• Procedure for lodging exception

– Procedure in general– Time periods– Notice– Hearing– Consequences for failing to lodge exception– Consequences of successful exception– Overlap with special plea?


Applications to strike out• Offending averment deleted/erased from

pleading– 2 requirements

• Distinction between exception and application to strike out

• Within period allowed for filing any subsequent pleading.


Other responses to defective pleadings and non-compliance with rules

1. Application to set aside irregular step (rule 30A, 27)

2. MC Rule 60 – non-compliance with rules, including time limits and errors

3. Amendment of pleadings


Agenda:Applications to strike out and pleas


Substantive Technicality grounds

Plea Exception/ Appl to strike out

• Plea

– General overview• Plea: defendant’s reply to plaintiff’s particulars of claim

and defendant’s defence• Plea on merits

– Substance of plaintiff’s claim– Attacks validity of CoA regarding facts of case

• Special plea– Legal objection to some aspect of plaintiff’s claim

• Plea on merits added as alternative to special plea.


Plea on merits

• Time limits– Defendant must deliver 20 days after delivering notice

of intention to defend/receiving plaintiff’s declaration– NA in case of exception/application to strike out

• Different kinds of pleas on merits» Admit allegation» Deny allegation» Confess and avoid allegation» Not admit allegation.

• 3 general responses» Counter-claim» Alternative defence» Tender.PART 2: A: PLEADINGS

Drafting plea on merits

• Pleadings divided into consecutively numbered paragraphs each containing allegations of fact

• Isolate allegations and respond • Admit ‘all the allegations’.• Drafting different plea responses• Respond (Yes’, or ‘No’, or ‘Yes But...’, or ‘I have no way of knowing,

you prove it.’, admit ‘all the allegations’) to each allegation in every paragraph of particulars of claim/declaration

• After responding end off plea with a prayer.• Dealing with all plaintiff’s allegations: Fail to deal with each and

every fact in particulars of claim/declaration – facts ought to have been denied – deemed admitted


Special pleas• Dilatory special pleas

– Arbitration– Lis pendens

• Special pleas in abatement– Special plea of prescription– Special plea of misjoinder/non-joinder– Special plea of res judicata– Special plea to jurisdiction– Special plea of non locus standi in judicio (lack of locus

standi).


Drafting and hearing a special plea?• Raised at start of defendant’s plea in separate section

with heading ‘Defendant’s Special Plea’• Statement – defendant raising particular special plea• Facts upon which special plea based• No uniform practice regarding need to plead over on

merits – all defences defendant intends to raise – raised at same time.

• Separate hearings for special pleas?• No provision for separate hearings of special pleas in MC

– S 54 conference– HC rule 33(4)


Civil Procedure A

Counterclaims, FP, litis contestatio

Counterclaims• Overview

– Claim brought by defendant against plaintiff– Plaintiff’s claim = claim in convention – Defendant’s counter-claim = claim in reconvention– Normal rules for drafting particulars of claim apply to counterclaims– Counter-claim linked to plaintiff’s claim– Normally parties same – defendant sued in personal capacity – may

counter-claim in representative capacity– Claim and counter-claim heard at same hearing, unless they arise

from different sets of facts– Judgments should be given pari passu/simultaneously in MC and

HC.• Procedure?• Counterclaims in the MC?

Replication, reply, etc!• Replication

– Only necessary if defendant raises new averments in plea – plaintiff cannot leave unchallenged

– Defendant makes new averments as part of plea of confession and avoidance

• Possible steps after replication– Defendant’s rejoinder to plaintiff’s replication– Plaintiff’s surrejoinder to defendant’s ‘rejoinder’– Defendant’s rebutter to plaintiff’s ‘surrejoinder’– Plaintiff’s surrebutter to defendant’s ‘rebutter’– Only necessary to respond by means of above pleadings

when new averments are made in previous pleading

Litis Contestatio• Litis contestatio: exact time pleadings close, moment

issue joined between parties• Effect: freezes plaintiff’s rights at that moment• Instances where pleadings considered closed:

1. Party joined issue without alleging new matter and without adding further pleading

2. Last day allowed for filing replication/subsequent pleading elapsed – not filed

3. Parties agree in writing that pleadings are closed and agreement filed with registrar

4. Parties unable to agree on close of pleadings – court declares them closed.



pleadings.– Not necessary to wait until close of pleadings– Request inspection by serving notice according to HC Form

15/MC Form 15B– Applicable to applications and actions– Appearance to defend entered – request to make available for


– Vague request for general class of documents not permitted– Must be relevant ‘to a reasonably anticipated issue in the action’



evidence.

Motswai v RAF 2013 (3) SA 8 (SGHC)• ‘Dishonest litigation’ by ‘carnivorous’ and

‘predatory’ litigators: ‘mount the steed of greed’• Process systematically exploited by a predatory

cabal of administrators, attorneys, advocates and professional experts, to the detriment of accident victims and taxpayers.

• Para 61 (claims by legal practitioners)• Paras 71-72 (claims by expert witnesses)• Hearing to determine: costs (AND

disbursements!!) de bonis propriis

Civil Procedure A

Prep for trial (FP and Discovery)



evidence.



pleadings.– Not necessary to wait until close of pleadings– Applicable to applications and actions– Appearance to defend entered – request to make available for


– Vague request for general class of documents not permitted– Must be relevant ‘to a reasonably anticipated issue in the

action’

Further particulars for trial (AFTER close of pleadings)

– Further particulars only permitted for purpose of trial preparation

– Purpose?• Prevent surprises at trial• Inform party what opponent is going to prove to enable

him to prepare case– 2 considerations – render requesting further

particulars pointless– Procedure?

Discovery procedure “Means by which each party can compel the other to

reveal the documentary evidence which he has in his possession or under his control, which relate to the action and which he intends to use in the action or which tend to prove or disprove either party’s case’(Eckard, 194)

• Purpose: – allows each party knowledge of/access to documents in opponent’s

possession relevant to trial– Prevents parties being surprised and eliminates disputes about issues

where evidence is incontrovertible

• HC rule 35 and MC rule 23

• S 50 Promotion of Access to Information Act 2 of 2000 ('PAIA').

Procedure?• Prompted by notice to discover• In response:

– Affidavit filed with 2 schedules• Automatic discovery? (HC v MC)• Contents?: Information may ‘fairly’ lead ‘train of enquiry’

that may advance case/damage opponent’s case• Privileged documents: opponent not entitled to inspect:

– Witness statements taken for purposes of proceedings– Communications btn att and client, att and advocate

• Failure to discover?

Follow up notices:• Notice to inspect:

– Party delivers notices to other party – requiring documents/‘tape recordings’ (extended meaning) discovered to be made available for inspection

– When and where?

• Notice to specify

• Notice to produce

• Notice to admit

PART 2: B: PRE-TRIAL PROCEDURE

For last week:

• Final prep:– Pre-trial conference

• Practical considerations– Trial itself

• Exam structure

Civil Procedure A

Prep for trial & practical considerations

Agenda

• Final prep:– Pre-trial conference

• Practical considerations– Trial itself

Reminder:Pleadings stage and pre-trial stage

• Pleading stage– Parties define issues in dispute between them– Issues defined in writing and set out in pleadings– Documents (pleadings with different legal names)

exchange between parties• Pre-trial stage

– Pleadings close – pre-trial stage begins• Parties prepare for trial: set down, discovery, issuing subpoenas,

pre-trial conference, etc.

PART 2: INTRODUCTION



evidence.

Pre-trial conference• In the High Court?

– No less than 6 weeks before date of trial– Curtails proceedings, curb costs, settle matter– Setting the agenda– Conference itself and minute– Special order as to costs

• In the Magistrate’s Court?– Issues– Contents of new s 54?

PART 2: B: PRE-TRIAL PROCEDURE

END OF COURSE… BUT!!!:

• Practical considerations on pg 18 including:– Indexing and paginating– Consultations

For tomorrow:

• Exam structure• Go over 2012 exam paper• Plan revision session before exam

Civil Procedure A

Final lectureRevision

Areas of concern for exam:

• civil procedure is that part of adjective law that regulates civil litigation and the enforcement of substantive rights, obligations and remedies (H & W 1)

• ‘[E]mbodied in [the] practices and rules [of civil procedure] are the great waves of history: the socio-economic as well as the intellectual changes, revolutions, and stagnations of history’

Civ Proc A exam 2013

• 14 June, GHV, PM• 2 hours, out of 70• SECTION A (COMPULSORY) = 50 marks

– Questions ranging from 3-10 marks• SECTION B (CHOICE OF 2x Qs) = 20 marks each

– Both questions subdivided into 2 sub-questions

Civ Proc Exam 2012 (revision and expectations)

(a) A defendant receives a notice of bar in terms of rule 12(1)(b). What is the consequence of this to a defendant?

(2)

(b) Name the three basic methods of pleading to a plaintiff’s particulars of claim.

(3)

(c) Rule 37 of the High Court Rules deals with a pre-trial conference. List 8 aspects which should be canvassed between litigants at such a conference.

(8)

(a) Must file plea within 5 daysIf not will be barred from pleadingJudgment may be taken

(2)(b) Admit

DenyConfess and avoid

(3)

(c) Any 8 of : Date, place

Prejudice due to non-complianceSettlement proposalsAny issue to mediation etcTransfer to another courtSeparation of issuesAny admissionsOnusProduction of proof by affidavit

Responsible for copying etc.Documents which serve as evidence without etc

(8)

A party to an action fails to provide further particulars for purpose of trial as requested by an opponent. What orders may a court make in such an instance?

(3)

Explain the circumstances in which the following special pleas may be filed by a defendant:

• Lis pendens;• Res judicata;• Non joinder.

(6)

A party files a request for further particulars, which is not strictly necessary to enable him to prepare for trial. What is the possible consequence to that party of doing so?

(3)

In which circumstances must a plaintiff initiate proceedings by way of a letter of demand? Provide examples of these.

(5)

Order their deliveryDismiss the actionOr strike out defence

(3) Action pending – same partiessame cause of actionsame subject matter

Point of issue already adjudicated onbetween the same partiesmust be end to litigation Has correct party been citedclear that another party should have been joined

(6) At conclusion of trialCourt may disallow all costs flowing from unnecessary requestMay order either party to pay wasted cost, even on attorney and client scale

(3)Ordered by statute – NCA, Small claims court or Legal proceedings against state or any other Necessary to complete the cause of action – payable on demand

Notice of breach clausePlace debtor in mora

(5)

Question 2Mistakes a. citation of plaintiff – pl’s full name, and gender of def. b. numbering of clauses c. whole cause of action arose clause left out All three, notice of irregular proceedings to set aside. Have to amend. Stay until complied with. d. Clause 3 –reference to Twice. Unknown person

Exception – vague and embarrassing alternatively no cause of action

Exception applicationMust amend if possible. e. Paragraph 7 - irrelevant

Application to strike out

Clause itself is expunged/removed.

Jurisdiction – • Grahamstown incorrect• Whole cause of action did not arise • Due to delivery of materials in PE• Court cannot hear case Prescription – • summons served more than 3 years after amount

became due on 21/2/2009

Jurisdiction – R110 000 falls outside the quantum allowedShould abandon R10 000 May be remedied.

• SECTION B – for your own study (not Q2(a))• Revision session? Still wanted? 12 June?

AND FINALLY:

“It's hard to detect good luck - it looks so much like something you've earned….”

Frank Clark

Agenda:Applications to strike out and pleas


Substantive Technicality grounds

Plea Exception/ Appl to strike out

• Plea

– General overview• Plea: defendant’s reply to plaintiff’s particulars of claim

and defendant’s defence• Plea on merits

– Substance of plaintiff’s claim– Attacks validity of CoA regarding facts of case

• Special plea– Legal objection to some aspect of plaintiff’s claim

• Plea on merits added as alternative to special plea.


Plea on merits

• Time limits– Defendant must deliver 20 days after delivering notice

of intention to defend/receiving plaintiff’s declaration– NA in case of exception/application to strike out

• Different kinds of pleas on merits» Admit allegation» Deny allegation» Confess and avoid allegation» Not admit allegation.

• 3 general responses» Counter-claim» Alternative defence» Tender.PART 2: A: PLEADINGS

Drafting plea on merits

• Pleadings divided into consecutively numbered paragraphs each containing allegations of fact

• Isolate allegations and respond • Admit ‘all the allegations’.• Drafting different plea responses• Respond (Yes’, or ‘No’, or ‘Yes But...’, or ‘I have no way of knowing,

you prove it.’, admit ‘all the allegations’) to each allegation in every paragraph of particulars of claim/declaration

• After responding end off plea with a prayer.• Dealing with all plaintiff’s allegations: Fail to deal with each and

every fact in particulars of claim/declaration – facts ought to have been denied – deemed admitted


Special pleas• Dilatory special pleas

– Arbitration– Lis pendens

• Special pleas in abatement– Special plea of prescription– Special plea of misjoinder/non-joinder– Special plea of res judicata– Special plea to jurisdiction– Special plea of non locus standi in judicio (lack of locus

standi).


Drafting and hearing a special plea?• Raised at start of defendant’s plea in separate section

with heading ‘Defendant’s Special Plea’• Statement – defendant raising particular special plea• Facts upon which special plea based• No uniform practice regarding need to plead over on

merits – all defences defendant intends to raise – raised at same time.

• Separate hearings for special pleas?• No provision for separate hearings of special pleas in MC

– S 54 conference– HC rule 33(4)
