Procedural Steps - Court Proceedings Flashcards
In a claim against your client arising from a collision your cljent the defendant admits the collision but alleges that someone other than the plaintiff was the cause. What steps must the defendant take before pleadings are closed?
Issue a third party notice and have the sheriff serve it on party concerned
The defendant must enter an appearance to defend
File a plea
Your client instructs you to collect two months rent in the sum of R50000. You issue summons and find out rental was R20 000 per month.
What procedure should you take to correct this mistake?
Assume defendant objects to correction of mistake what procedures should defendant follow?
Assume the defendants objection was unsuccessful. What is the next step for plaintiff to take in order to finalize procedure?
1 the plaintiff must deliver a notice of intention to amend by deleting the incorrect amount and substituting the correct amount
2 defendant must deliver a notice to object setting out his grounds for objection
3 the plaintiff must within 10 days of amendment being granted deliver and file the amended pages
What proceeding best assist client where she is a credit of a CC and suspects the CC owns assets that could be attached but she does not have any information to confirm suspicion. She wants to establish this before issuing a warrant of execution
Financial Enquiry into the affairs of the CC section 65
What court proceeding could best assist our client if she is a creditor of the CC and the CC has a substantial credit balance in its bank account?
Application for a Garnishee Order
What proceeding could best assist her if she is a creditor of the CC and has obtained judgment and attempted execution but has received a ROS which indicates that the debtor has insufficient assets. She fears that the members of the CC might sell the remaining assets and pocket the money
Application for Liquidation of the CC
What court proceeding best assist your client if she is a member of a CC defending an application for Liquidation by a creditor bank and she believes that the CC can trade out of its precarious position
Application to place the CC under Business Rescue
Which court proceeding would assist your client best if she has a judgment against the CC and has attached assets on the premises from which the CC trades but a member of the CC claims the assets belong to him personally? She does not believe him
Interpleader
Which court proceeding would best assist her if she has issued summons and the CC is defending the summons. She believes that this is a staling tactic
Application for Summary Judgment
Which court proceeding could best assist her if she is a minor orphan with no guardian to assist her in an action to claim against the CC on her behalf
Application for the Appointment of a curator ad litem
Your client is being sued in the District Magistrate court for damages of R60 000 iro motor vehicle collision. His instructions are that he believes that the plaintiff who was the driver of the other vehicle was 50% to blame for the collision. He has R30 000 available. What advice would you give him to curtail costs
Your client should serve notice ito which you make a without prejudice statement ito rule 18(2) in the amount of R30 000 plus costs up to date
Your client advises that his car was damaged in a collision. The cost of repair amounts to R46 000. The driver of the other vehicle was charged with and found guilty of driving under the influence of alcohol and will be sentenced shortly. Your client wishes to recover his damages
Advice your client of the procedure to be followed into CPA and pursue claim for compensation
How is the amount awarded to be determined
What is the effect of an order made by the court and what steps are available to your client should accused not comply with order
S300 of CPA a person who is convicted of an offense which has caused loss/damage of property may be ordered to pay compensation to the victim. This will be done by application brought by prosecutor or victim.
The court may refer to evidence at trial and/ or hear further expert evidence either by affidavit or orally.
The award shall be given effect to as if it were a civil judgment of the magistrates court in the event of the accused failing to pay judgment it may be executed as if it was a civil judgment
What would your next step be: the plaintiff claim is for the cost of repairing his motor vehicle which was damaged as result of a motor collision. The defendant entered an appearance to defend and a month has gone by without the defendant doing anything
Plaintiff to file a notice to pleas/ bar
What would your next step be:
Your clients claim is for the purchase price of goods sold and delivered in respect of which your client has provided you with orders and delivery notes signed by defendant. The defendant has entered an appearance to defend
Plaintiff apply for summary judgment
What would the next step be:
The defendant has failed to enter an appearance to defend despite the expiry of the 10day period allowed in the summons for him to do so.
Request for Default Judgment
What would your next step be:
Your client claim is based on a cheque that was dishonored 5 years ago. Defendant pleads prescription as only defence
Prescription of cheques is 6 years. File an exception that the plea does not disclose a defense
What will your next steps be: you have obtained an emolument order ito s65(J) of the Magistrate court act against a judgment debtor employer. You have order served on employer but he fails to make payments. What action should you take
Issue a warrant of execution against the employer
What would your next steps be:
You have obtained a judgment for your client in the magistrate court against a debtor who is unemployed and has no assets except a large investment in the North West bank, somersetwest. How would you enforce judgment debtor
Apply for a garnishee order
In a trial in the magistrates court arising out of a motor collision, the only evidence is that of the two drivers who gave completely different versions of what happened. Magistrate is unable to decide which of two witnesses is to be believed. What should the magistrate order?
Absolution from the first instance
After the judgment in the magistrate court and independent witnesses comes forward and introduces himself to plaintiff and tell that he saw the whole incident fully and corroborates the plaintiffs version. Is there any action the plaintiff can take and if so what?
Start a new action
Your client calls on you having been served with a summons in a magistrates court in which Joe Spaza CC is the plaintiff. Your client tells you that the financial position of the CC is not very sound and that the claim is vexatious and he produces a letter written by Joe Spaza to that effect. When you enter an appearance is there anything you ought to do in light of your instructions?
Ask for security for costs under common law and rule 62, sec 13 of the old companies act has not yet been repealed
You are preparing for trial in an action in the magistrate court obo your client for the recovery of costs repairing his vehicle which was damaged in a collision. How would you prove the Plaintiffs damages? What document if any will you prepare
Notice of intention to call an expert; and summary of expert evidence
You are instructed to issue summons for the recovery of a motor vehicle sold km suspensive sail because defendant has failed to pay his instalments. Besides complying with the credit agreement the NCA requires you to do something before instituting proceedings
Give notice as contemplated by s129 and 130 of the National Credit Act
