Civil trial proceedings will be discussed by way of a series of various parts, explaining the trial process and how to enforce a judgment.
(This series will focus on Action proceedings and not Motion proceedings. Furthermore, only the procedure relating to monetary claims will be discussed)
Part 1:
1. Taking Instructions
It is of paramount importance that a client meets with his attorney when deciding to proceed with legal action and to obtain advice relating to the validity of the claim.
A client and attorney should preferably meet in person to consult, alternatively, they should have a telephonic conference and discuss the matter. It is important that a client furnishes the attorney with all relevant information and documentation. If you are uncertain as to what information or documents your attorney requires, your attorney will be able to guide the consult and to extract all relevant information to start your litigation journey.
After the necessary consultation, the attorney will open a file and draft the necessary letter of demand, alternatively, the necessary notice in terms of the applicable law applying to the claim, for example: Section 129 Notice in terms of the National Credit Act, Act 34 of 2005 (“NCA”) should the agreement on which the debt is based, be a credit agreement or an incidental credit agreement (The applicability of the NCA will be discussed in another article).
A letter of demand clearly sets out the claim of the client and provides the debtor an opportunity to settle or negotiate the amount outstanding.
It is preferable that an attorney sends a letter of demand before issuing a summons to avoid the unnecessary situation where the creditor then proceeded with a summons but the debtor would have settled the debt after receipt of a letter of demand.
3. Summons
Should a debtor fail to respond to a letter of demand, or refuse to pay, the Attorney will in most instances advise his client to proceed with a summons. The Trial procedure starts only after the Court issues the summons and the Sheriff serves same on a debtor.
Most clients are not aware that there are three forms of Summonses.
The Rules of Court allow for the following Summonses to be issued:
- Simple Summons;
- Combined Summons; and
- Provisional Sentence Summons.
The person/entity proceeding with a summons is called a “Plaintiff” and the person against whom relief is sought is called a “Defendant”.
Simple Summons –
This form of summons sets out a Plaintiff’s case in a very basic manner (e.g. goods sold and delivered or services rendered). This summons is mainly used when a Plaintiff’s claim is based on a liquid document (e.g. a document such as a cheque, a promissory note or an Acknowledgement of Debt) or is based on a liquidated amount of money.
Proceeding with a simple summons is a more cost-effective way to have a summons issued and served, especially if the client is certain that the mere service thereof might prompt the debtor to settle.
After a simple summons is served on the Defendant, the Defendant should file a notice of intention to defend within 10 (ten) days after receipt of the summons, or default judgment can be granted against the Defendant.
Should the Defendant file a notice of intention to defend, the Plaintiff can proceed with an Application for Summary Judgment (discussed later in the series) or the Plaintiff should, within 15 (fifteen) days after service of the notice to defend, file a declaration setting out his claim in more detail. A “Declaration” is similar to a Particulars of Claim (discussed below) where the Plaintiff’s claim is set out in greater detail to enable the Defendant to understand the case which he should meet.
To understand whether your claim is based on a liquid document or whether it is a liquidated amount of money, the following should be considered:
Liquid document –
This is where the Court can, based on the mere production of the documents on which the debt is based, establish the amount due to the Creditor.
As previously mentioned, this document can be a promissory note, cheque, acknowledgement of debt etc., where the document, without the need for evidence, establishes a clear acknowledgement of indebtedness linked to an ascertained amount of money.
Liquidated amount of money –
This concept has been described as an amount which has been agreed upon or which is capable of being easily established. In Lester Investment (Pty) Ltd v Narshi 1951 (2) SA 464 (C) the Court clearly defines the aforesaid point. The Court should be able to examine the claim and determine its value by a simple calculation.
If a Plaintiff’s claim is based on services rendered, and the invoice of the services so rendered is attached to the Summons, the Court can then easily determine the value of such services without the need for oral/expert evidence.
Combined Summons –
This form of summons is commonly used in our law.
If a Plaintiff’s claim is not be based on a liquid document or a liquidated amount of money, this form of summons should be used. However, should an attorney foresee that his client’s claim will be defended (which prompts the filing of a declaration), a combined summons can also be used for a claim based on a liquid document or liquidated amount of money.
A combined summons should be served together with a statement (“particulars of claim”) setting out the material facts relied upon by the Plaintiff in support of his claim, to provide the opposite party sufficient particularity to enable them to understand the nature of the claim.
If a claim is based on a written agreement or contract, the material terms of the said contract should be pleaded and the contract should be attached to the particulars of claim.
If a claim is based on damages suffered (e.g. a personal injury claim or motor vehicle accident), the extent of the damages suffered should be alleged to enable the Defendant to determine the quantum claimed and to what the quantum relates.
After a combined summons is served, the Defendant should, if he disputes the claim, file a notice of intention to defend with 10 (ten) Court days, whereafter, the Defendant should file his plea within 20 (twenty) Court days setting out his defence to the Plaintiff’s claim.
Provisional Sentence Summons –
This form of summons is not actively used and should be considered when a client’s claim is strictly based on a liquid document as previously discussed.
Even though a Simple Summons can be used for a claim based on a liquid document, the Provisional Sentence Summons procedure is mostly used if it is clear that a Defendant will not be able to raise a valid defence.
In Inter-UnionFinance Ltd v Franskraalstrand Bpk 1965 (4) SA 180 (W) at 181FG the Court states the following:
“The principle upon which provisional sentence is granted are well settled and clear. The difficulty lies in their application to particular documents which involves a construction of such documents. Provisional sentence may only be granted on a liquid document which is a document wherein a debtor acknowledges over his signature, or that of his duly authorised agent, or is in law regarded as having acknowledged without his signature actually having been affixed thereto, his indebtedness in a fixed and determinate sum of money. The amount of the debt must be ascertained and the document must be sufficient in itself and not require extrinsic evidence to prove that the debt is due.”
In Rich and Others v Lagerwey 1974 (4) SA 748 (A) at 754H, the Court held that:
“if a document in question, upon a proper construction thereof, evidences by its terms and without resort to evidence extrinsic thereto, an unconditional acknowledgement of indebtedness in an ascertained amount of money, the payment of which is due to the creditor, it is one upon which provisional sentence may properly be granted”.
The principals are clear in that a Provisional Sentence Summons should be based on a document where the Defendant clearly admits his indebtedness and that the amount is easily ascertainable. The best example of such a claim is one based on an Acknowledgement of Debt signed by the Defendant whereby the Defendant admitted his indebtedness and agreed to settle the debt by way of monthly instalments.
When a Plaintiff proceeds with a Provisional Sentence Summons, the Defendant is called upon to pay the amount claimed. Failing such payment, the Defendant or his legal representative should then appear at Court at a specific date and time as stipulated in the summons.
The summons will contain the material facts the Plaintiff relies upon to support his claim. The document on which the claim is based, should be attached to the summons.
On the day named in the provisional sentence summons when the Defendant should appear, the Defendant can admit or deny his liability to pay. If the Defendant admits his liability, the Court can grant a final judgment. Should the Defendant deny liability, he should file an affidavit, 3 (three) days before the hearing, setting out the reasons why he denies liability.
The Court will, after hearing arguments, either grant provisional judgment or refuse provisional judgment.
If the Court refuses provisional judgment, the matter will proceed to trail and the Defendant will be directed to serve his plea as he would have been required to do if the Plaintiff had rather proceeded with a combined summons.
Should the Court find that the Defendant did not disclose a proper defence, the Court can grant a provisional judgment. The effect of such a judgment is that the Defendant can only proceed with his defence if he satisfies the amount claimed, together with costs and gives notice within 20 (twenty) Court days of his intention to enter the principal case.
If Defendant fails to satisfy the amount claimed and fails to give his notice to enter the principal case, the provisional judgment granted becomes ipso facto a final judgment.
Conclusion
Contact our experienced civil litigation attorneys who will be able to advise you of the correct form of summons to use when instituting your claim.
The next part of the series will explain the steps after a Defendant filed a Notice of Intention to Defend such as an Application for Summary Judgment.
