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Summary

Summary Chapter 15

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Detailed summary of chapter 15 from the fundamental principles of civil procedure textbook

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CHAPTER 15 – TENDERS &
SECURITY FOR COSTS

Offer or Tender to Settle in the
High Court
WRITTEN OFFER OR TENDER:

An offer or tender to settle an action or application
proceeding that has already been instituted is regulated
by HCR 34

HCR 34 provides for:
 An unconditional or without prejudice written offer
or tender
 Made by the defendant or authorised attorney
 With the aim of settling the plaintiff’s claim

HCR 34(1) and (2) refers to:
 Offer – as a payment of a sum of money
 Tender – specific performance

This can be used in:
 Action and application procedures
 Counterclaims
 HCR 13 – 3rd party procedures

2 Main Options to plaintiff when defendant gives a
written offer of a sum of money – HCR 34(1):
 Option 1:
 Where defendant unconditionally accepts liability
in part or whole, plaintiff may accept the written
offer
 If defendant only admits partial liability, plaintiff
may accept partial offer and proceed to claim the
balance at trial
 Option 2:

,  When the defendant makes an offer of
compromise, without prejudice, and the plaintiff
accepts – the claim will be extinguished
 Ie: the action ceases and there can be no further
recourse against the defendant
HCR 34(2):
 The defendant may tender, unconditionally or
conditionally without prejudice, to perform an
obligation due to the plaintiff
 Eg: transfer immovable property, deliver movable
property, ejectment, perform a service
 When performance is one that need to be performed
personally by the defendant – an irrevocable power
of attorney must be executed authorising the
performance by someone else
Unconditional offer or tender VS Conditional offer or
tender without prejudice:
 No reference to a conditional offer or tender without
prejudice may be disclosed to the court at any time
before judgment – may be brought to court’s
attention after judgment as long as it is relevant to
the issue of costs
 Unconditional offer or tender may be brought to the
attention of the court
 A court may penalise a plaintiff who has refused an
offer or tender made without prejudice (ie: an
adverse cost order / or being granted a smaller
amount than what was prayed for etc)
OTHER OFFERS OF SETTLEMENT:
HCR 34 also makes provision for other types of offers –
especially where there are several defendants or a
defendant seeks to join the action
These include:
 Written offer of contribution
 Written offer of indemnity
Note:
 This offer is not made to the plaintiff – but is made to
the defendant who has taken steps to claim
contribution or indemnity
 Offer is made by other defendant
NOTICE OF OFFER OR TENDER:

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