high court 2015 - Ettienne Barnard Attorneys Home

1 2015 /04/2911 Applications Actions234 PRACTICE MANUAL OF THE LABOUR court OF SOUTH AFRICA - 1 April 2013. Proper dress for Attorneys comprises: A black attorney s gown A white shirt or blouse closed at the neck. A white lace jabot. Dark pants or skirt. Black or dark closed My Lord / Lady Appeal court The court or justice In motion court wait until next matter is called before leaving Second last one waits till court adjourns Do not see judge alone if opposed Remember to introduce62015/04/292 Summary of matter NEVER GIVE ORIGINALS Make sure have copies Confirm fees Give time limit You are still responsible7 Superior court Act 10 of 2013 Promulgated 23 August 2013 Constitution Seventeenth Amendment Act8 What information need from a natural Person?

2 Close Corporation Companies Partnerships Trusts9 The same requirements for a letter of demand in the magistrate s court is applicable to the high Contract Delict Other causes Maintenance Enrichment Legal fact giving rise to an obligation, which results in liability Cause action must be complete Letter of demand11 Capacity to act as litigant the capacity to sue or be sued. Also must have direct and substantial interest in the right which is the subject matter of litigation. Constitution does create opportunity for group Minors 18 years Guardian represents child Curator ad Litem Legal Legal Legal Legal AidAidAidAid BoardBoardBoardBoard in in in in rererere FourFourFourFour ChildrenChildrenChildrenChildren(512/10) [2011] ZASCA 39 (29 March 2011)

3 Children brought application in a quo Did not have standing as minors Curator ad litem Common for legal practioners to be appointed and then conduct legal action themselves Legal Aid Board can be appointed as curator ad litem for children it represents13 Curatorship Curator bonis Administer person s property and affairs in general Curator ad litem Represent a person whether major or minor in civil litigation Mentally disordered person Interdicted prodigal (verkwister) Limited legal capacity Unrehabilitated insolvent Diminished locus standi14 Married Person MICP Must have written consent from other spouse Except if Between spouses Profession Damages for delict15 Other Natural Person who cannot sue or be sued Judges of the high court Consent of court Members and Officers of Parliament Can only be sued in Cape Town Can sue anywhere else Diplomats Immune civil and criminal proceedings Fugitives from Justice Can not sue Can be sued Alien Enemies Can not sue while living in enemy country Can be sued16 Legal competence of a court to hear a specific matter and to grant an order in that matter.

4 If Mag court jurisdiction then may only get Mag court costs Inherent Jurisdiction S50 Mag court only available for defendant Oosthuizen v Road Accident Fund 2011 (6) SA 3 (SCA)17 Seat of CourtSeat of CourtSeat of CourtSeat of CourtName of high CourtName of high CourtName of high CourtName of high court Bloemfontein Cape Town Nelspruit Grahamstown PMB Pretoria Polokwane Kimberly Mahikeng Free State Division, Bloem Western Cape Division, CT Mpumalanga Division, Nelspruit Eastern Cape Division, Graham KwaZulu-Natal Division, PMB Gauteng Division, Pta Limpopo Division, Polokwane Northern Cape Division, Kim North West Division, Mahikeng182015/04/294 Seat of CourtSeat of CourtSeat of CourtSeat of CourtName Name Name Name of high Courtof high Courtof high Courtof high court Bhisho Mthatha Port Elizabeth Durban Thohoyandou Johannesburg Eastern Cape Local Division Eastern Cape Local Division Eastern Cape Local Division KwaZulu Natal Local Division Limpopo Local Division Gauteng Local Division1920 All persons residing or being in its area All causes arising within the area All matters it may take cognisance Domicilium address not enough to establish jurisdiction Geyser v Nedbank 2006 (4)

5 SA 544 21 Sec 21 attach property to confirm jurisdiction Sec 19 old act Found jurisdiction But plaintiff must reside in court s jurisdiction Confirming jurisdiction but cause of action must arise in the jurisdiction Except if defendant resident in South Africa (Sec 28)22 Pleading stage Preparation for trail Trial itself23 Plaintiff s summons Defendant s Plea Defendant s Counterclaim Plaintiff s Reply Plaintiff s plea to defendant s counterclaim Request for further particulars Answer to the Request for further particulars Exception ????242015/04/295 Summons Summons Summons Summons Rule 17 & 18 Within 10/14/27 daysNotice of Notice of Notice of Notice of intention to intention to intention to intention to defend defend defend defend Sec 27 & Rule 19 Within 15 daysSummary Summary Summary Summary JudgementJudgementJudgementJudgementRule 32 Within 15 days Declaration Declaration Declaration Declaration if simple summons Rule 20 Within 20 daysPlea, Counter Plea, Counter Plea, Counter Plea.

6 Counter claim or claim or claim or claim or ExceptionExceptionExceptionExceptionRule 22 Within 15 daysReplication or Replication or Replication or Replication or Plea on Plea on Plea on Plea on counterclaimcounterclaimcounterclaimcoun terclaimRule 25 Within 10 daysReplication in Replication in Replication in Replication in reconventionreconventionreconventionreco nventionRule 25 (4)Close of PleadingsClose of PleadingsClose of PleadingsClose of PleadingsRule 29 After close of pleadings, 20 days before trial dateFurther Further Further Further Particulars Particulars Particulars Particulars Rule 21 After close of pleadings DiscoveryDiscoveryDiscoveryDiscoveryRule 35 After notice of trial PrePrePrePre----trial conference trial conference trial conference trial conference Rule 37 Trial Trial Trial Trial R 39 high Court2 summonsOrdinarySimpleCompoundProvisional SentenceMagistrates Court4 summonsesOrdinarySimpleCompoundRent InterdictProvisional SentenceInterpleaderStakeholderSheriff26 262626 SIMPLE SUMMONS Debt / liquidated demand Form 9 Rule 17(2)(b)

7 Shall shall shall shall , choose Simple Summons Mag court may may may may COMBINED SUMMONS All others Form 10 All others Form 1027272727 Payment of a debt Delivery Transfer Eviction Cancellation of a contract NOT Divorce Declaratory order28 Causa must contain all factual allegations necessary to found plaintiff s claim If allegation not made in summons it cannot be considered during trial All legal requirements and make necessary allegations 29 Physical address within 15 km from court Also email and fax Signed by attorney or plaintiff If combined then also by advocate or attorney with right of appearance in high court Zeda Car Leasing (Pty) Ltd t/a Avis Fleet Services v Pillay 2007 (3) SA 89 D and CLD Only in Division where admitted302015/04/296 LIBERTY GROUP LTD v SINGH AND ANOTHER 2012 (5) SA 526 (KZD) an attorney with the right of appearance in the high court , confers on that attorney the right to appear before, and carry out the functions of an advocate in, all divisions of the high court .

8 The certificate also entitles the attorney to sign pleadings, qua advocate, in all divisions of the high court . However, an attorney's right to sign pleadings qua attorneyis limited to the division in which he or she was admitted or Name or initials and surname of Plaintiff and Defendant Address of residence or work Occupation if known Sex Female marital status If plaintiff sues in representative capacity, state the capacity if action based on contract state oral or written, when, where and by whom concluded and copy attached32323232 Standard Bank of SA Ltd v Saunderson & others2006(2) SA 264 (SCA)Elsie Gundwana v Steko Development CC and others2011(3) SA 608 (CC) The defendant s attention is drawn tosection 26(1)

9 Of the Constitution of theRepublic of South Africa which accords toeveryone the right to have access toadequate housing. Should the defendantclaim that the order for eviction willinfringe that right it is incumbent on thedefendant to place information supportingthat claim before the court .33333333 The plaintiff may indicate in a summons whether it is prepared to accept service of all subsequent documents and notices in the suit through any manner other than the physical address or postal address and, if so, shall state such preferred manner of If an action is defended the defendant may, at the written request of the plaintiff, deliver a consent in writing to the exchange or service by both parties of subsequent documents and notices in the suit by way of facsimile or electronic If the defendant refuses or fails to deliver the consent in writing the court may, on application by the plaintiff, grant such consent.

10 On such terms as to costs and otherwise as may be just and appropriate in the Shall be typed and printed in black ink on white paper of A4 size in double spacing on one side of the paper only with a font size not less than 12 point; shall have a margin of at least 35mm, where a document is not of A4 size or does not have a margin of 35mm be must be gummed to A4 size; 2015 /04/2937 Documents shall bear in the left-hand lower corner of the first page of such document the name, telephone number and (where available) the e-mail address of the legal representative filing such documents. Where a litigant acts in person, the relevant details of such litigant shall likewise appear. The Registrar's office may refuse to accept any document which does not comply with these Must also comply with Rule 18 in setting out the material termsParticulars of claim must:Be divided into paragraphs1 distinct averment = 1 paragraphClear & concise statement of material facts relied on(so that opponent can reply)39393939 18(5): when denying allegation not evasively answer the point of substance 18(6): reliance on contract must allege Written or oral When, where and by whom it was concluded Copy annexed if in writing 18(9) Party claiming division, transfer orforfeiture in divorce must give details ofgrounds40 18(10).