Consolidation

Question 1

Set Down in terms of MCR 22(5)(a)(i)

Answer 1

❖ Defendant fails to enter the NITD / NNTD.
❖ Contents of Final Decree of Divorce is as per the prayers of the Plaintiff’s particulars of claim

Question 2

Set Down in terms of MCR 22(5)(a)(ii)

Answer 2

❖ Defendant is ipso facto barred [MCR 21B(2)] from serving Pleas and Counterclaim.
❖ Contents of the Final Decree of Divorce as per prayers in Plaintiff’s particulars of claim.

Question 3

MCR 21B(2)

Answer 3

▪ Where a party fails to deliver any other pleading within the time allowed by the rules or any extension of time given, any other party may provide a notice to that party
to provide such a pleading within 5 court days.

Question 4

Set Down in terms of MCR 22(5)(a)(iii)

Answer 4

❖ Defendant enters a NNTD.
❖ Contents of Final Decree of Divorce as per prayers of Plaintiff’s particulars of claim.

Question 5

Set Down in terms of MCR 22(5)(c)

Answer 5

❖ Parties enter into Deed of Settlement (DoS)
❖ Contents of Deed of Settlement incorporated into Final Decree of Divorce.

Question 6

MCR 22 Set Down for Trial

Answer 6

❖ MCR 22(1)
➢ Plaintiff must apply for a court date (NSD) within 15 court days from litis contestatio.
➢ If the Plaintiff fails to set the matter down, the Defendant can apply for a trial

Question 7

S54 Magistrates Courts Act

Answer 7

➢ Magistrate will review court file regarding whether a pre-trial conference is necessary

Question 8

MCR 22(4)

Answer 8

➢ Trial date must be allocated within 10 days from date of application (provided a Magistrate certified it trial-ready) & delivered within 20 court days of hearing.

Question 9

MCR 22(7)

Answer 9

➢ If party has not made discovery they must discover within 20 court days of receiving notice of the trial date.

Question 10

Discovery – Trial Preparation Intervention ito MCR 22(7)

Answer 10

➢ During the discovery process in litigation proceedings, parties consolidate for exchange information and evidence.
➢ Notice to Discover by Discovery Affidavit subject to commissioning by Plaintiff and Defendant , respectively.
➢ Documents listed in the discovery affidavit may be produced at court subject to proof of authenticity by calling the author of the document to the witness box or serving a notice regarding OP’s admission of authenticity or agreement at pre-trial conference confirming doc is what it purports to be. Note that proof of content requires the author thereof to testify as to contents.

Question 11

Pre-Trial Conference under MCR 22(7)

Answer 11

➢ Pre-trial notice is served & prepare a pre-trial memorandum outlining the issues, evidence & trial witnesses. The purpose hereof is:
▪ Case Assessment: Is the matter trial ready?
▪ Dispute Resolution: Settlement Negotiations?
▪ Procedural Clarity: Process at trial confirmed?
▪ Issue Identification: Focus of trial on date of hearing?

Question 12

Notice in terms of MCR 23 (1)

Answer 12

▪ Notice calling for discovery affidavit.
* The discovery affidavit states description, type of document, tape, electronic, digital, etc and specifies whether it is the original or a copy.

Question 13

Notice in terms of MCR 23 (6)

Answer 13

▪ Inspection of discovered documents.
* Inspect during normal business hours and make copies of listed documents.

Question 14

Notice in terms of MCR 23 (9)

Answer 14

▪ Notice calling for details (dates and parties) of
documents to be used at trial

Question 15

Notice in terms of MCR 23(10)

Answer 15

▪ Notice of validity and execution of documents to be used at trial

Question 16

MCR 23(10)(a)

Answer 16

• Party proposing to prove any document, etc may give notice requiring within 10 court days from receipt of such notice to admit that such document, etc wasproperly executed and is what it purports to be.

Question 17

MCR 23(10)(b) [NB]

Answer 17

• If they do not admit within 10 court days as required then the party giving notice in terms of MCR 23(10)(a) shall be entitled to produce the document, etc at trial without proof other than proof if it is disputed, that the document, etc is the document, etc referred to in the MCR 23(10)(a) notice and notice was duly given.

Question 18

MCR 23(10)(c)

Answer 18

If party receiving notice in terms of MCR 23(10)(a) states that the document, etc is not admitted as required, it shall be proved by the party giving notice before such party is entitled to use it at trial, but the party not admitting it may be ordered to pay costs of proof

Question 19

MCR 23(11)

Answer 19

▪ Notice to produce at trial all discovered documents inthe original.
▪ Eg. Served not less than 5 court days prior to trial – on party who has made discovery to produce original as per discovery affidavit and will be entitled to hand in original
without calling a witness (to read original into evidence via testimony)

Question 20

MCR 23(15)

Answer 20

▪ Inspection during exchange of pleadings stage prior to close of pleadings.
▪ Allows a request for inspection of clearly specified doc, tape or recording in their possession which is relevant to a reasonably anticipated issue in action.

Question 21

Analysing the Discovery Affidavit

Answer 21

➢ Plaintiff and Defendant are deponents to their respective discovery affidavit
➢ The Discovery Affidavit is subject to commissioning in the
presence of an independent commissioner of oaths whereby (SUPER NB FOR TEST 1):

Question 22

➢ The Discovery Affidavit is subject to commissioning in the presence of an independent commissioner of oaths whereby (SUPER NB FOR TEST 1):

Answer 22

▪ The plaintiff and the defendant will initial the bottom
right-hand corner of the discovery affidavit.
▪ The Commissioner with initial the bottom right-hand
corner of the discovery affidavit.
▪ The plaintiff and the defendant will write their full name
and surname prior to taking the oath / affirmation on the discovery affidavit.
▪ The plaintiff and defendant will answer 3 questions in the presence of the Commissioner related to the oath / affirmation:
* Do you know and understand the content of the declaration?
* Do you have any objection in taking the prescribed oath or affirmation?
* Do you consider the oath or affirmation binding on your conscience?
▪ The plaintiff and defendant will sign in full as the deponent of their respective discovery affidavit.
▪ The commissioner will sign in full, date and provide their designation and work address.

Question 23

Closing of Pleadings

Answer 23

➢ Parties may not exchange further pleadings.
➢ MCR 21A
▪ States when pleadings are closed (litis contestatio):
* Either party has joined issue without alleging a new matter, and without adding any further pleading.
* The last day allowed for filing a replication or
subsequent pleading has lapsed and it has not been filed.
* The parties agree in writing that the pleadings are closed and such agreement is filed with the registrar or clerk of the court.
* The parties are unable to agree as to the close of pleadings, and the court (upon application of a party) declares them closed

Question 24

Slides for Test Preparation (NB for Test 1)

Answer 24

➢ Review the revision slides to understand how to draft the
statement for each of the above subsections. These slides
are available on the ClickUp