Litigation

1. What is a summons?

A summons is the document by which action proceedings is commenced and it sets out the Plaintiff’s claim.

2. What must I do when I receive a summons?

If you are not in agreement with the claim as per the summons, you have to defend the matter within 10 days after you received the summons.  The best would be to contact an attorney and to instruct him/her to file a notice of appearance to defend the matter.  If you do not wish to defend the matter and agree with the contents of the summons you have to contact the attorney whose details appear on the summons to make an arrangement for settlement of the matter.

3. What happens if I do not react to the summons within the ten days?

The Plaintiff’s attorneys may proceed to apply to court for default judgment to be granted against you.  If the claim is for the payment of moneys owed and judgment is granted against you, your name will be listed at the credit bureaus and it will affect your creditworthiness.

4. Who may serve court documents on me?

Only the sheriff in your jurisdiction may serve court documents on you.  A sheriff means a person appointed in terms of section 2 of the Sheriffs Act 90 of 1986 and also a person appointed in terms of sections 5 and 6 of the Act as an acting sheriff or deputy sheriff respectively.  The sheriff is an officer of the court attending to the service of all processes of the court and he/she also attends to execution of court orders.

5. How may the sheriff serve court documents on me?

  • Personal service: By delivery of a copy of the document to you personally;
  • Residence or business: By delivery of a copy of the document to you at your residence or business place.  A copy of the document may be left with a person who is apparently in charge of the premises at the time of service and not younger than 16 years;
  • Place of employment: By delivery of a copy of the document to you at your place of employment.  A copy of the document may be left with a person who is in a position of authority over you and who is not younger than 16 years;
  • Domicilium citandi et executandi: Where you have elected/nominated an address where you wish to have documents and correspondence delivered, a copy of the document may be delivered at such address;
  • Corporation or company: By delivery of a copy of the document to a responsible employee of such corporation or company, at the registered office or principle place of business, or by attaching a copy of the document to the principal door of such office;
  • Agent: By delivery of a copy of the document to any agent properly authorized to accept service on behalf of the person on whom service must be effected;
  • Local authority or statutory body: By delivery of a copy of the document to the town clerk / assistant town clerk / mayor / sectretary / similar official / member of the board / committee of such body;
  • Against the state: Service on the Premier, Minister or Deputy Minister shall be effected at the office of the State Attorney.

6. What is a warrant?

A warrant (also called a writ) is a document which is issued by the relevant court that instructs the sheriff to carry out a court order.  There are different kinds of warrants:

  • Warrant of execution of movable property:  When a debtor owes a creditor money and the court granted judgment in the creditor’s favour, the creditor’s attorneys may draft such a document.  This document authorises and instructs the sheriff to attach (or attach and remove) sufficient assets of the debtor to cover the amount due (this will include legal costs and interest) as per the court order.
  • Warrant of execution of immovable property:  This document is similar to the abovementioned, but can only be issued by court if the creditor can prove that the debtor does not have enough movable assets to cover the outstanding debt, legal costs and interest as per the court order.
  • Warrant of ejectment:  When a debtor is a tenant being in arrears with rental money, the landlord may apply to court for a warrant of ejectment, which will direct the debtor to vacate the property.
  • Warrant of delivery:  When a party is in possession of an article, such as a motor vehicle which is still owned by a bank in terms of a credit agreement, the bank may apply to court for a warrant of delivery of the motor vehicle where the debtor is in arrears with respect to the instalments.
  • Warrant of arrest:   This type of warrant will be issued by court on application by a party for the arrest of a person, where the debtor failed to appear in court or failed to act in accordance with a previous court order.

7. What is an emoluments attachment order?

This is a court order where the debtor’s employer is ordered to deduct a specific amount from the debtor’s salary every month and to pay it over to the creditor.  The employer may deduct 5% from each payment for its expenses.  Only a court that has jurisdiction over the employer may issue such an order.