TLI4801 PORTFOLIO MAY - OCTOBER 2021

Question1 (a) The combined summons will be used to institute Mrs. Stevens actions. There are three different types of summons, simple summons, combined summons and provisional sentence summons. According to Marnewick CG,1combined summons are primarily used where the plaintiff claim is unliquidated, that is, where it is not claim for debt or liquidated demand. Matters for which a combined summons is used often involve serious factual disputes that require the leading of oral evidence to resolve the issues. An unliquidated claim would, therefore, refer to any claim in respect of which the quantum must be determined (e.g. a claim for damages) or where the status of the parties is affected (e.g. an action for divorce). In every case where the claim is not for a debt or liquidated demand, the plaintiff must annex to his or her summons, particulars of the material facts relied upon by him or her in support of the claim (the “particulars of claim”) (Uniform Rule 17(2); magistrates’ courts rule 5(2)). In Ex parte Inkley and Inkley 1995 (3) SA 538 (c), Court held that proceeding for divorce decree must be initiated by combined summons and not by application. Therefore, the combined summons will be used to institute Mrs. Steven action (divorce action). (b) the type of pleading will be annexed to the summons is “particulars of claim”.2 In every case where the claim is not for debt or liquated demand the plantiff must annex his or her summons particulars of the material facts relied upon by him or her support of the claim (the “particulars of claim”). The rule provides that the particulars of claim, unlike declaration do not constitute a separate pleading and are inseparably linked to the summons; hence the designation “combined summons”. The summons and the particulars of claim thus form a unit. ..................CONTINUED