CHAPTER 12 – JUDGMENT AT AN
EARLY STAGE AND STAY OF
PROCEEDINGS
Summary
BASIC STEPS TO ACTION PROCEDURE:
Plaintiff issues SUMMONS
Defendant delivers a NOTICE OF INTENTION TO DEFEND
and EXTRA STEPS
Defendant delivers PLEA
Plaintiff delivers a REPLICATION
Litis contestatio
Intention to Defend
OPTIONS AVAILABLE TO DEFENDANT AFTER RECIEVING
SERVICE OF SUMMONS:
A main options available:
Defendant can refrain from defending action
(plaintiff can apply for default judgment)
Defendant may defend actions (plaintiff may apply
for summary judgment if defendant has no bona fide
defence)
Defendant can comply with plaibtiff’s claim
Defendant may consent to judgment (MC) or confess
to judgment (HC)
DEFENDANT DEFENDS THE ACTION:
Defendant issues a notice of intention to defend
Ie: he files a notice with the registrar/ clerk of the
court and delivers a copy of the notice on the
plaintiff
Deliver the notice NOT issue
It is not a pleading
, Legal effect of notice:
Places the defendant’s attorney as the attorney on
record
Implication = attorney will have to formally withdraw
as attorney of record by issuing a notice of intention
to withdraw
INTENTION TO DEFEND IN HC:
Dies induciae:
HCR 19:
Must be delivered within 10 court days after
receiving the service of summons
If state = 20 court days
Does not include court recess/ weekends/ public
holidays (= dies non)
FOLI principle
S27 SC Act provides for a situation where summons
is served outside the court’s jurisdiction – time limits
are
14 calendar days (place is within 100miles/160km
of court)
21 calendar says (place is further than
100miles/160km away from court)
Content of notice:
Must inform the plaintiff that the defendant will
contest the matters
Must appoint and address for the acceptance of all
service of processes (8km rule)
Defendants residential or business address
Effect of Notice:
Mere fact defendant enters into a notice of intention
to defend does not mean that he waives any of his
rights to raise an irregularity in proceedings / object
to court’s jurisdiction etc
Can still issue a notice of intention to defend after
expiry of dies as long default judgment has not been
granted
If plaintiff already applied for a default judgment
and defendant delivers notice after prescribed
period – plaintiff will not be allowed to proceed
with default judgment but will be entitled to the
costs of an unsuccessful default judgment
application
EARLY STAGE AND STAY OF
PROCEEDINGS
Summary
BASIC STEPS TO ACTION PROCEDURE:
Plaintiff issues SUMMONS
Defendant delivers a NOTICE OF INTENTION TO DEFEND
and EXTRA STEPS
Defendant delivers PLEA
Plaintiff delivers a REPLICATION
Litis contestatio
Intention to Defend
OPTIONS AVAILABLE TO DEFENDANT AFTER RECIEVING
SERVICE OF SUMMONS:
A main options available:
Defendant can refrain from defending action
(plaintiff can apply for default judgment)
Defendant may defend actions (plaintiff may apply
for summary judgment if defendant has no bona fide
defence)
Defendant can comply with plaibtiff’s claim
Defendant may consent to judgment (MC) or confess
to judgment (HC)
DEFENDANT DEFENDS THE ACTION:
Defendant issues a notice of intention to defend
Ie: he files a notice with the registrar/ clerk of the
court and delivers a copy of the notice on the
plaintiff
Deliver the notice NOT issue
It is not a pleading
, Legal effect of notice:
Places the defendant’s attorney as the attorney on
record
Implication = attorney will have to formally withdraw
as attorney of record by issuing a notice of intention
to withdraw
INTENTION TO DEFEND IN HC:
Dies induciae:
HCR 19:
Must be delivered within 10 court days after
receiving the service of summons
If state = 20 court days
Does not include court recess/ weekends/ public
holidays (= dies non)
FOLI principle
S27 SC Act provides for a situation where summons
is served outside the court’s jurisdiction – time limits
are
14 calendar days (place is within 100miles/160km
of court)
21 calendar says (place is further than
100miles/160km away from court)
Content of notice:
Must inform the plaintiff that the defendant will
contest the matters
Must appoint and address for the acceptance of all
service of processes (8km rule)
Defendants residential or business address
Effect of Notice:
Mere fact defendant enters into a notice of intention
to defend does not mean that he waives any of his
rights to raise an irregularity in proceedings / object
to court’s jurisdiction etc
Can still issue a notice of intention to defend after
expiry of dies as long default judgment has not been
granted
If plaintiff already applied for a default judgment
and defendant delivers notice after prescribed
period – plaintiff will not be allowed to proceed
with default judgment but will be entitled to the
costs of an unsuccessful default judgment
application
