TLI4801
EXAM PACK
, lOMoARcPSD|18222662
QUESTION 1
(a) Two types of summonses are available to choose from:
A provisional sentence summons, which is used where the plaintiff relies on a liquid
document for their claim. A liquid document is a document in which the defendant has
admitted or acknowledged their indebtness to the plaintiff. 1 These include cheques,
acknowledgment of debt and mortgage bonds. In a provisional sentence summons,
there is no dispute regarding the facts and the amount claimed.
2
And a combined summons, is a summons which is accompanied by a
particulars of claim, which indicates that the summons is a “combined summons”.
An unliquidated amount is claimed with a combined summons since the quantum
of the claim still needs to be determined. 3 The parties will be entitled to a certain
amount and the presiding officer or judge will determine or award the most
appropriate amount. The particulars of claim serves as a detailed description of
the pleading and will contain the facts surrounding the case and include evidence
that substantiates the arguments made surrounding the order. A combined
summons must comply with the requirements of rule 17 (2) and be in the form
prescribed in Form 10 of the First Schedule.4
A claim for personal injuries and damages will be instituted against Mr Joe Speedy.
Mr Barnes will therefore use a combined summons as the action involves an
unliquidated claim, even though an amount is mentioned with regards to the damages
sustained by Mr Barnes, the quantum of the claim needs to be proved or determined,
by way of evidence. Furthermore, Mr Joe Speedy did not acknowledge his indebtness
to the plaintiff and the full extend of the damages still need to be determined, as they
have not been set forth in terms of a contract or agreement.
By considering the changing circumstances, needs, facts and statements from the
parties, the presiding officer or judge will be able to make an appropriate order
regarding the amount payable. 5
A third defendant, namely the Road Accident Fund (RAF), can be a potential
defendant in the plaintiff’s lawsuit, as the injuries relate to an accident caused on a
public road. The following persons are able to institute a claim for damages (i)
drivers; (ii) passengers; (iii) pedestrians; (iv) cyclists and (v) motorcyclists provided
that they are not fully responsible for the accident.6
1
Marnewick CG, Litigation skills for South African Lawyers (4th edn LexisNexis 2019) 125.
2
Marnewick Litigation skills 125.
3
Marnewick Litigation skills 99.
4
Marnewick Litigation skills 99.
5
Marnewick Litigation skills 99.
6
DSC Attorneys, ‘The Road Accident Fund (RAF): All you need to know’
<https://www.dsclaw.co.za/road-accident-fund/> accessed on 09 August 2023.
2
, lOMoARcPSD|18222662
(b) A particulars of claim
The unliquidated claim is issued by means of a particulars of claim, which is a
separate document annexed to the summons. The particulars of claim will always
be submitted together with the summons. The particulars of claim and summons
amounts to a “combined summons”.7
The legal practitioner is required to set out the material facts with sufficient detail as to
enable the plaintiff to rely on the particulars of claim as evidence (rule 18 (4). This is a
detailed description of the pleading and will contain the facts surrounding the case
and include evidence that substantiates the arguments made surrounding the order.
This evidence will be indicated within the pleading as “Annexures”. The particulars of
claim need to be set out in sequential numbered paragraphs, containing separate
allegations and prove (rule 18 (3) as to enable the plaintiff, the defendant, the counsel
and the judge to understand the details regarding the claim.
8
Uniform rules regarding the particulars of claim:
- Rule 18 (10) of the Uniform Rules of Court states that any claim for damages,
must include sufficient particulars to allow the defendant, counsel and the
presiding officer or judge to make a reasonable assessment of the claim.9
- Rule 13 of the Uniform Rules of Court requires that each allegation is
contained within a separate numbered paragraph. 10
- Rule 18 (4) of the Uniform Rules of Court require the name, residence,
occupation, sex, marital status, details regarding the claim.
(c) The facta probanda, are the material facts which are therefore the essential legal
elements of the particular cause of action, charge of defence, they should be
mentioned in such a manner that they incorporate the specific facts of the case
concerned. 11 They need to apply to the particulars of the case. In order to
establish or prove, the material facts, supporting evidence, also known as
evidential facts, consisting of individual parts of evidence need to be included. The
material facts within the pleading, need to be in compliance with the rules of the
pleading. The law requires that all material facts of a particular claim or defence
are set out in the pleading. 12 As determined by the rules of court, certain
additional information need to be proved since the material facts on the own do not
supply the other party with sufficient information to answer the case against
them.13 Rule (18) (4) of the Uniform Rules of Court requires that material facts
7
Marnewick Litigation skills 99.
8
Marnewick Litigation skills 103.
9
Marnewick Litigation skills 103.
10
Marnewick Litigation skills 103.
11
Marnewick Litigation skills 89.
12
Marnewick Litigation skills 89.
13
Marnewick Litigation skills 90.
3
, lOMoARcPSD|18222662
be pleaded with “sufficient particulars to enable the opposite party to reply
thereto”.14,15 It is usual to give details of any demand in the statement of claim,
but it is generally not required by law or under the rules for a claim to be
enforceable. These are facts that need to be proved to succeed with the case.
(d) IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION
OF GAUTENG HELD AT PRETORIA
In the matter between
JOHN BARNES PLAINTIFF
JOE SPEEDY DEFENDANT
1.
The plaintiff is Mr John Barnes, an adult male, a professor, with identity number,
5802010021084, who resides at 35 Kings Highway, Lynnwood Pretoria, 0081.
2.
The defendant is Joe Speedy, an adult male, a taxi driver with identity number
7202010021084, who resides at 85 Bovidan Crescent, Silverton, Pretoria, 0184.
3.1 On 2 July 2023 and at about 6:00 am, the plaintiff, was struck from behind
by a taxi, with registration number BN2464GP, driven by the defendant and
sustained serious bodily injuries as a result of the action by the defendant.
3.2 The accident occurred on a public road in Lynnwood, Pretoria.
4.
MATERIAL FACTS OF THE CASE
The parties agree that the following facts are relevant:
4.1 Mr John Barne’s was seriously injured by the accident caused by Mr Joe
Speedy.
14
Marnewick Litigation skills 90.
15
Rule 18 (4) of the Uniform Rules of the Supreme Court Act 59 of 1959.
4
EXAM PACK
, lOMoARcPSD|18222662
QUESTION 1
(a) Two types of summonses are available to choose from:
A provisional sentence summons, which is used where the plaintiff relies on a liquid
document for their claim. A liquid document is a document in which the defendant has
admitted or acknowledged their indebtness to the plaintiff. 1 These include cheques,
acknowledgment of debt and mortgage bonds. In a provisional sentence summons,
there is no dispute regarding the facts and the amount claimed.
2
And a combined summons, is a summons which is accompanied by a
particulars of claim, which indicates that the summons is a “combined summons”.
An unliquidated amount is claimed with a combined summons since the quantum
of the claim still needs to be determined. 3 The parties will be entitled to a certain
amount and the presiding officer or judge will determine or award the most
appropriate amount. The particulars of claim serves as a detailed description of
the pleading and will contain the facts surrounding the case and include evidence
that substantiates the arguments made surrounding the order. A combined
summons must comply with the requirements of rule 17 (2) and be in the form
prescribed in Form 10 of the First Schedule.4
A claim for personal injuries and damages will be instituted against Mr Joe Speedy.
Mr Barnes will therefore use a combined summons as the action involves an
unliquidated claim, even though an amount is mentioned with regards to the damages
sustained by Mr Barnes, the quantum of the claim needs to be proved or determined,
by way of evidence. Furthermore, Mr Joe Speedy did not acknowledge his indebtness
to the plaintiff and the full extend of the damages still need to be determined, as they
have not been set forth in terms of a contract or agreement.
By considering the changing circumstances, needs, facts and statements from the
parties, the presiding officer or judge will be able to make an appropriate order
regarding the amount payable. 5
A third defendant, namely the Road Accident Fund (RAF), can be a potential
defendant in the plaintiff’s lawsuit, as the injuries relate to an accident caused on a
public road. The following persons are able to institute a claim for damages (i)
drivers; (ii) passengers; (iii) pedestrians; (iv) cyclists and (v) motorcyclists provided
that they are not fully responsible for the accident.6
1
Marnewick CG, Litigation skills for South African Lawyers (4th edn LexisNexis 2019) 125.
2
Marnewick Litigation skills 125.
3
Marnewick Litigation skills 99.
4
Marnewick Litigation skills 99.
5
Marnewick Litigation skills 99.
6
DSC Attorneys, ‘The Road Accident Fund (RAF): All you need to know’
<https://www.dsclaw.co.za/road-accident-fund/> accessed on 09 August 2023.
2
, lOMoARcPSD|18222662
(b) A particulars of claim
The unliquidated claim is issued by means of a particulars of claim, which is a
separate document annexed to the summons. The particulars of claim will always
be submitted together with the summons. The particulars of claim and summons
amounts to a “combined summons”.7
The legal practitioner is required to set out the material facts with sufficient detail as to
enable the plaintiff to rely on the particulars of claim as evidence (rule 18 (4). This is a
detailed description of the pleading and will contain the facts surrounding the case
and include evidence that substantiates the arguments made surrounding the order.
This evidence will be indicated within the pleading as “Annexures”. The particulars of
claim need to be set out in sequential numbered paragraphs, containing separate
allegations and prove (rule 18 (3) as to enable the plaintiff, the defendant, the counsel
and the judge to understand the details regarding the claim.
8
Uniform rules regarding the particulars of claim:
- Rule 18 (10) of the Uniform Rules of Court states that any claim for damages,
must include sufficient particulars to allow the defendant, counsel and the
presiding officer or judge to make a reasonable assessment of the claim.9
- Rule 13 of the Uniform Rules of Court requires that each allegation is
contained within a separate numbered paragraph. 10
- Rule 18 (4) of the Uniform Rules of Court require the name, residence,
occupation, sex, marital status, details regarding the claim.
(c) The facta probanda, are the material facts which are therefore the essential legal
elements of the particular cause of action, charge of defence, they should be
mentioned in such a manner that they incorporate the specific facts of the case
concerned. 11 They need to apply to the particulars of the case. In order to
establish or prove, the material facts, supporting evidence, also known as
evidential facts, consisting of individual parts of evidence need to be included. The
material facts within the pleading, need to be in compliance with the rules of the
pleading. The law requires that all material facts of a particular claim or defence
are set out in the pleading. 12 As determined by the rules of court, certain
additional information need to be proved since the material facts on the own do not
supply the other party with sufficient information to answer the case against
them.13 Rule (18) (4) of the Uniform Rules of Court requires that material facts
7
Marnewick Litigation skills 99.
8
Marnewick Litigation skills 103.
9
Marnewick Litigation skills 103.
10
Marnewick Litigation skills 103.
11
Marnewick Litigation skills 89.
12
Marnewick Litigation skills 89.
13
Marnewick Litigation skills 90.
3
, lOMoARcPSD|18222662
be pleaded with “sufficient particulars to enable the opposite party to reply
thereto”.14,15 It is usual to give details of any demand in the statement of claim,
but it is generally not required by law or under the rules for a claim to be
enforceable. These are facts that need to be proved to succeed with the case.
(d) IN THE MAGISTRATES COURT FOR THE REGIONAL DIVISION
OF GAUTENG HELD AT PRETORIA
In the matter between
JOHN BARNES PLAINTIFF
JOE SPEEDY DEFENDANT
1.
The plaintiff is Mr John Barnes, an adult male, a professor, with identity number,
5802010021084, who resides at 35 Kings Highway, Lynnwood Pretoria, 0081.
2.
The defendant is Joe Speedy, an adult male, a taxi driver with identity number
7202010021084, who resides at 85 Bovidan Crescent, Silverton, Pretoria, 0184.
3.1 On 2 July 2023 and at about 6:00 am, the plaintiff, was struck from behind
by a taxi, with registration number BN2464GP, driven by the defendant and
sustained serious bodily injuries as a result of the action by the defendant.
3.2 The accident occurred on a public road in Lynnwood, Pretoria.
4.
MATERIAL FACTS OF THE CASE
The parties agree that the following facts are relevant:
4.1 Mr John Barne’s was seriously injured by the accident caused by Mr Joe
Speedy.
14
Marnewick Litigation skills 90.
15
Rule 18 (4) of the Uniform Rules of the Supreme Court Act 59 of 1959.
4
