South African Civil Procedure: Default Judgments, Summons, and Debt Collection

What initiates the execution process in a default judgment case?

The plaintiff's attorney sets the execution process in motion upon receipt of the warrant.

What documents must accompany a request for default judgment not based on a liquid document?

An affidavit, original return of service, original summons, and warrant for execution against movable assets.

What happens after the clerk of the court receives the application for default judgment?

The clerk hands the documents and court file to the magistrate for review.

What must the magistrate do if satisfied with the default judgment application?

Grant default judgment by affixing his official stamp and signature to the request.

What is the time frame for the plaintiff to file a declaration after receiving a notice of intention to defend?

Within 15 days.

What is a declaration in the context of a default judgment?

It is identical in form and substance to a Particulars of Claim, detailing the plaintiff's claim.

What must the defendant do if he wishes to counterclaim?

File his Counterclaim simultaneously with his plea.

What is the purpose of the Notice of Intention to Defend?

To inform the plaintiff that the defendant intends to oppose the claim.

How long does the defendant have to enter an appearance to defend?

10 court days.

What must the appearance to defend contain?

It must state the defendant's intention to defend and include an address for service of documents.

What is the maximum distance the defendant's service address can be from the court?

No more than 15 km.

What should be included at the bottom of all exchanged documents?

The postal and service address of the signing party, the opposing party, and the court.

What can the plaintiff apply for if the defendant enters appearance to defend without a bona fide defense?

Summary judgment.

What happens if no application for summary judgment is filed or if it is dismissed?

The plaintiff must file a declaration within the specified time frame.

What occurs after the defendant has pleaded?

The pleadings are closed, and the matter may be enrolled for trial.

What is the role of the magistrate in the default judgment process?

To review the application and grant default judgment if satisfied with the documents.

What is required for a default judgment to be granted?

The magistrate must be satisfied that the application documents are in order.

What does the plaintiff's attorney receive after the magistrate issues the warrant for execution?

The warrant and one of the applications for default judgment.

What is the significance of the affidavit in the default judgment process?

It confirms the nature and extent of the claim when not based on a liquid document.

What must the defendant do after entering an appearance to defend?

File his plea.

What happens to the original application for default judgment?

One original is kept on the court file.

What is the consequence of the defendant delaying the matter without a bona fide defense?

The plaintiff may apply for summary judgment.

What is the purpose of the original summons in the default judgment process?

To formally notify the defendant of the legal action against him.

What does 'deliver' mean in the context of the Magistrate's Court rules?

It means that a copy of the document must be served on the opposing litigant and the original must be handed in at court.

What is the printed notice on the back of a summons for defendants?

It is a notice of intention to defend, allowing the defendant to enter appearance to defend in person by completing and delivering the form.

What are the conditions under which a plaintiff may apply for summary judgment?

The claim must be based on a liquid document, for a liquidated sum of money, for delivery of specified movable property, or for ejectment.

What must a claim for ejectment from residential property comply with?

It must comply with the provisions of the PIE Act.

What is a liquid document?

A liquid document is one from which the amount of indebtedness appears on its face, such as a cheque or an acknowledgment of debt.

What defines a liquidated sum of money?

It is an amount that can be readily determined by simple calculation, such as insurance premiums or an account rendered by a shopkeeper.

What is included in the application for summary judgment?

The application consists of a signed application (Annexure A7) with the hearing date and must include a copy of the liquid document if applicable.

What must the affidavit (Annexure A8) by the plaintiff confirm?

It must confirm the cause of action, the amount claimed, and assert that the defendant has no bona fide defense.

What is the timeframe for the plaintiff to deliver the application for summary judgment?

The application must be delivered within 15 days of the defendant's notice of intention to defend.

What must the defendant do to prevent judgment against him during the summary judgment application?

The defendant may give security to the plaintiff or satisfy the court by affidavit (Annexure A9) that he has a bona fide defense.

What happens if the defendant delivers a bona fide defense affidavit before the hearing?

If believed by the court, the application may be dismissed and the matter will proceed normally.

What is the difference between a plea and a special plea?

A plea addresses the merits of the claim, while a special plea raises a technical defense unrelated to the merits.

What must the defendant do within 10 days after entry of appearance?

The defendant must deliver the plea or special plea (Annexure A11) to the plaintiff.

What occurs if the defendant fails to deliver the plea within the prescribed period?

The plaintiff must deliver a notice of bar (Annexure 10) requesting the defendant to deliver his plea within 5 days.

What can the plaintiff apply for if the defendant fails to deliver his plea after a notice of bar?

The plaintiff may apply for judgment by default as if the matter was undefended.

What is the purpose of the affidavit delivered by the defendant in response to a summary judgment application?

To demonstrate that there is a bona fide defense and to prevent judgment against him.

What may the plaintiff's attorney do if they anticipate the court will dismiss the summary judgment application?

The attorney may withdraw the application to save costs while retaining the affidavit for cross-examination at trial.

What is Annexure A7 in the context of summary judgment?

It is the application form signed by the attorney or plaintiff for summary judgment.

What is Annexure A8 in the context of summary judgment?

It is the affidavit by the plaintiff confirming the cause of action and amount claimed.

What is Annexure A9 in the context of summary judgment?

It is the affidavit that the defendant may submit to show he has a bona fide defense.

What is Annexure 10 in the context of the plea process?

It is the notice of bar that the plaintiff delivers if the defendant fails to deliver his plea.

What is the significance of the PIE Act in relation to ejectment claims?

It sets the provisions that must be complied with for claims of ejectment from residential property.

What happens if the defendant's affidavit is accepted by the court?

The court will dismiss the summary judgment application, allowing the case to proceed normally.

What must the plaintiff do after the pleadings have closed?

Obtain a trial date from the clerk of the court and deliver a notice of set-down to the defendant.

What is the purpose of a notice to discover?

It requires the other party to deliver a schedule specifying the books and documents related to the action that they intend to use.

What must a party do within 10 days after receiving a notice to discover?

Verify on affidavit the schedule of books and documents furnished.

What happens if a party claims privilege over certain documents during discovery?

Those documents must be separately listed, and the grounds for claiming privilege must be stated.

What is the consequence of not disclosing a book or document during discovery?

It may not be used for any purpose at trial without leave of the court.

What rights does the opponent have regarding undisclosed documents?

The opponent may call for the production of the book or document and use it in cross-examination.

What must a party allow after furnishing a list of discovered documents?

Allow the opponent to inspect the books or documents and make copies.

What can either party do by giving notice to produce?

Require the opponent to produce at trial the disclosed books and documents as well as any other specified documents.

What can a party do if damages for bodily injury are claimed?

Require the party claiming damages to submit to an examination by duly registered medical practitioners.

What must a party do if they want to inspect a condition of something in their opponent's possession?

Give notice to the opponent to make the item available for inspection or examination within 15 days before the hearing.

What must a party obtain after a medical examination or inspection?

A full written report of the results and opinions formed from the examination or inspection.

Is it necessary to supply the inspection report to the examined party without a request?

No, it is not necessary unless there is an express request for a copy.

What is the time frame for giving notice to inspect an item in possession of an opponent?

Not later than 15 days before the hearing.

What is the role of the affidavit in the discovery process?

It informs the court on oath which books and documents pertain to the case.

What happens if a party objects to the discovery of certain documents?

They must indicate clearly the grounds for their objection.

What is required of the party making a discovery affidavit regarding relevant documents?

All relevant books and documents must be mentioned; they cannot conceal evidence.

What is the significance of the notice of set-down?

It formally sets the date for the trial after pleadings have closed.

What is the purpose of medical examinations in the context of trial preparation?

To assess the state of health relevant to claims of bodily injury.

What must be included in the notice to inspect an item?

A stipulation that the item or a fair sample must be available for inspection for a specified period.

What happens if a party fails to comply with the notice to produce?

The opposing party may seek court intervention to compel production.

What is the relationship between the discovery process and trial preparation?

Discovery is a critical step in preparing for trial, allowing parties to gather evidence.

What is the consequence of failing to provide a report after an examination?

The report does not form part of the pleadings and may not be provided unless requested.

What is required when a party wishes to call an expert witness at trial?

The party must give notice at least 15 days before the hearing and deliver a summary of the expert's opinions at least 10 days before the hearing.

What must a party do to tender plans, diagrams, models, or photographs as evidence?

They must give notice to every other party at least 10 days before the hearing, unless they have leave of the court or consent from all other parties.

What is a subpoena and what does it compel a witness to do?

A subpoena compels a witness to present themselves at a civil trial and may require them to produce books, papers, or documents in their possession.

What is a subpoena duces tecum?

It is a type of subpoena that directs a witness to bring documents or evidence to the court.

Who usually leads evidence first in a civil trial?

The plaintiff usually leads evidence first since the onus of proof rests on them.

What happens if the plaintiff calls all their witnesses before giving their own evidence?

It may raise suspicion that the plaintiff has tailored their version of the facts to fit what their witnesses have said.

What is the process of examination for witnesses in a trial?

Each witness may be examined by the court, cross-examined by the opposing party, and re-examined by the party that called them.

What occurs after the plaintiff has closed their case?

The defendant may apply for absolution from the instance; if denied, they can call their own witnesses.

What is the procedure after both parties have closed their cases?

Legal representatives address the court, with the party who first adduced evidence speaking first, followed by the other party, and then a reply from the first party.

What are the possible judgments the court may deliver after hearing both parties?

The court may grant judgment for the plaintiff, judgment for the defendant, absolution from the instance, judgment on costs, or an order suspending proceedings pending arrangements.

What are the three general types of applications in the application procedure?

Ex parte applications, bilateral applications, and interlocutory applications.

What characterizes an ex parte application?

It is an application where the applicant does not inform the respondent of their intended application.

What is the significance of the 10-day notice requirement for evidence submission?

It ensures all parties are adequately informed and prepared for the evidence to be presented.

What is the role of the plaintiff in the trial process?

The plaintiff leads the evidence, calls witnesses, and has the burden of proof.

What happens during the cross-examination of a witness?

The opposing party questions the witness to challenge their testimony and credibility.

What is re-examination in the context of a trial?

Re-examination allows the party who called the witness to ask additional questions about new matters that arose during cross-examination.

What does it mean for the court to reserve judgment?

It means the court will delay its decision and may adjourn to consider the case further.

What is the purpose of addressing the court after both parties have presented their cases?

It allows each party to summarize their arguments and persuade the court before a judgment is made.

What does 'absolution from the instance' mean?

It is a court ruling that dismisses the case without a judgment for either party.

Why might a party seek to suspend proceedings after a judgment is given?

To allow time for the other party to make arrangements for satisfying the judgment.

What is the importance of having witnesses sit outside the court until called?

It prevents witnesses from being influenced by each other's testimonies before they testify.

What is the onus of proof in a civil trial?

It is the responsibility of the plaintiff to prove their case to the court.

What are bilateral applications served on the respondent meant to achieve?

They are served because prior notice will not defeat the purpose of the application.

What is the purpose of interlocutory applications?

They are brought for provisional or temporary relief and serve as an intervening step to decide a procedural point.

What supports a Notice of Motion in legal proceedings?

It is usually supported by an affidavit.

What does the respondent file in response to a Notice of Motion?

The respondent files an answering affidavit.

What happens if a defendant fails to pay a judgment?

The plaintiff, now the judgment creditor, can take execution steps or proceed under section 65 of the Magistrate's Court Act.

What is the focus of the special debt collecting procedure under the Magistrate's Court Act?

It facilitates the collection of simple debts or claims, specifically liquidated sums of money.

What defines a debt according to Section 55 of the Magistrate's Court Act?

A debt is defined as a liquidated sum of money due.

Is the debt collecting procedure available for unliquidated claims?

No, it is not available for unliquidated claims.

What must occur before court procedures can be initiated for debts arising from credit agreements?

The debtor must be in arrears for at least 20 business days and Notices under Sections 129 and 130 of the National Credit Act must be complied with.

What options does a plaintiff have under the simple debt collection procedure?

The plaintiff can either issue summons for the recovery of the debt or send a registered letter of demand to the defendant.