pleadings-pack-tli-this-has-all-of-tli4801-form-and-examples.

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 Downloaded by Jay Wa Borwa () lOMoARcPSD| 2 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 Downloaded by Jay Wa Borwa () lOMoARcPSD| 3 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 48 Notice ito Rule 35(1) 109 49 Notice ito Rule 35(10) 110 50 Notice ito Rule 35(8) 111 51 Notice ito Rule 36(9)(a) 112 52 Notice ito Rule 36(10) 113 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 Downloaded by Jay Wa Borwa () lOMoARcPSD| 4 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 Downloaded by Jay Wa Borwa () lOMoARcPSD| 5 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