TLI 4801 Portfolio_Exam_October_November

QUESTION 1: CIVIL PRACTICE 1. Mr Alan Smith, who is a medical doctor, is married to Cecile Smith, a housewife, for ten years. The couple reside in Sandton, Johannesburg. They have two minor children, Kevin and Nancy. The Smiths decide to divorce after ten years, citing irreconcilable differences. Mr Smith approaches you for assistance regarding the divorce proceedings. (a) Discuss the type of summons that will be used to institute Mr Smith’s divorce action. (4) There are three different types of summonses in practice i.e combined summons, simple summons and provisional sentence summons. The combined summons is the most important form of summons and may be used for any kind of claim. It is mandatory to use a combined summons in the case of illiquid claim such as a divorce or claim for damages. This summons consists of two parts: (i) The summons, which is really just a kind of notice from the plaintiff to the defendant via sheriff, telling him/her that action has been instituted, and giving various formal detail about the matter. (ii) The particulars of claim, which are attached to summons. The particulars of claim contain the material facts on which the plaintiff relies for cause of action. In Ex parte Inkley and Inkley 1995 (3) SA 528 (C), Court held that proceedings for divorce decree must be initiated by combined summons, not by application. Therefore, advise to Mr Smith will be that the most appropriate way proceed will be to issue combined summons for divorce decree. TLI 4801 Student: Page 3 (b) Name and discuss the pleading that will be annexed to the summons. (4) For combined summons the pleadings which get assigned are the particulars of claim for divorce summons which will be annexed. In the combined summons, both the plaintiff and defendants will be clearly stated including the sex, occupation and resident will be stated. The parties’ marriage status and date of marriage will be stated including the matrimonial property of the marriage. The children born of marriage i.e. Kevin and Nancy will be stated, the custody of the children. A prayer of divorce decree and order on the custody and maintenance of the children must be pleaded. The particular claim must clearly state that the marriage has irretrievably breakdown and no prospect of restoring the marriage. The summons must provide the material facts of the marriage and provide details where the defendant can reply to the summons. Details of the court which will adjudicate on the divorce must be provided and the register/clerk of that court must be stated. Direction on the action to either defend the claim must be provided on the combined summons.