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Summary Chapter 12

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Detailed summary of chapter 12 from the fundamental principles of civil procedure textbook

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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

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Uploaded on
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Number of pages
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Written in
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Type
SUMMARY

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