REQUIREMENTS FOR DIFFERENT SPECIES OF APPLICATIONS

APPLICATION FOR RECESSION

Rescission of Default Judgment
1. In terms of order 30 rule 1(1) of the MCCR, 2019 any party whom a default
judgment is given may, not later than one month after he or she has knowledge
thereof, apply to the court to rescind or vary such judgment.
2. It is further provided for in subrule (2) that any application in terms of subrule
(1) shall be on affidavit stating shortly the reasons why the applicant did not appear
or file his or her plea and grounds of defence to the action or proceedings in which
the judgment was given or of objection to the judgment.
3. It is trite to note that s ubrule (3) set out the pre-condition for hearing of such
application. The rule provides that no application in terms of subrule (1) shall be set
down for hearing, save where leave has been given to defend as a pauper under
order 5, until the applicant has paid into court, to abide the directions of the court, the
taxed amount of the costs awarded against him or her under such judgement and
the sum prescribed as security for the application.
4. An applicant for rescission of default must show good cause and prove that
at no time did he or she renounced his or her defence, and has a serious intention of
proceeding with the case. In order to show good cause, an applicant must give a
reasonable explanation for the default, the application must be made bona fide and
must show that a bona fide defence to the plaintiff’s claim.
5. Subrule (4) provides that unless the applicant proves to the contrary, it shall
be presumed that he or she had knowledge of such judgment within two days after
the date thereof,
6. Order 30 Rule 2(1) states that on hearing an application in terms of rule 1
and being satisfied that (a) the applicant was not in wilful default and (b) there is
good prospect that the proffered ground of defence or the proffered objection may
succeed in reversing the judgment, the court may (c) rescind or vary the judgment in
question and(d) give such directions and extensions of time as necessary for the
further conduct of the action of application.
7. Rule 2(2) further provides that the court may also make such order as it thinks
just in regard to moneys paid into court by the applicant. In the event that the
application is dismissed Order 30 rule 2(3) provides clearly that the default judgment
shall became the final judgment.
8. Further, rule 3 provides that rules contained in this order apply mutatis
mutandis to any judgment which may under section 39 of the Magistrates Court
Act be rescinded, varied or corrected by the court. Section 39 of the Act provides
that in civil cases the court may rescind or vary any judgment which was granted by
it in the absence of the party against whom it was granted, rescind or vary any
judgment granted by it which was void ab origine or was obtained by fraud or by
mistake common to the parties and correct patent errors in any judgment in respect
of which no appeal is pending.
9. The rules also provide relief to such persons who were not part of the
proceedings but affected by the judgment to apply for rescission for such.
10. Rule 4(1) in particular provides that any judgment of the court may, on the
application of any person affected thereby who was not a party to the action or
matter, made within seven days after he or she has knowledge thereof, be so
rescinded, varied or corrected by the court.

In Hutchison and Anor NNO v Logan the court held that the factors that a court
take into account in determining whether an applicant for rescission of a
default judgment has discharged the onus of proving good and sufficient
cause are,
 the reasonableness of the explanation,
 the bona fides of the application and the bona fide of the defences on the
merits of the case and the applicant’s prospects of success.
Where the default was wilful, the indulgence of rescission will not be granted. The
court held further that, a wilful default occurs when a party, with the full knowledge of
the service or set-down of the matter, and of the risk attendant upon default, freely
takes a decision to restrain from appearing. The wilfulness of a default is seldom
clear-cut. There is almost always an element of negligence and the question arises
whether it was such gross negligence as to amount to wilfulness. The expression
relates to that extreme circumstance where the applicant knowingly and deliberately
refrained from opposing the relief sought. However, even in a case of wilful default, if
a satisfactory explanation can be given for acquiescence in the judgment and other
circumstances including the merits of the defence, justify such a conclusion, good
and sufficient cause may be established.
Judgment By Consent
A judgment by consent entered erroneously by a legal practitioner may be rescinded
upon the application made by the affected party. In terms of Order 30 Rule 3 of the
MCCR, 2019 (Application or Order to rescission of other Judgments), the rule
contained in this order, as the apply to application for an order of rescission of
default judgment shall mutatis mutandis apply to any judgment including judgment by
consent. What is required to be shown for a consent judgment to be set aside
has been set out in case law.
 In the case of Washaya v Washaya it was held that a judgment by consent to
have any validity, the essential ingredient of consent must be present and
the court must be satisfied as to the presence of consent.
 Further, a party seeking to set aside a judgment by consent is not required to
prove anything other than that he did not in fact consent.
 He needs to not show “good and sufficient cause” for rescission.
 Where, however, the court is satisfied that a legal practitioner has the
authority of his client to consent to judgment, the client shall bound by such
consent and the court will visit on the client a heavy onus before rescinding
the judgment.

APPLICATION FOR EXECUTION PENDING APPEAL

APPLICATION FOR REVIEW AND OTHER APPLICATIONS

SUMMONS EXCEPTIONS AND SPECIAL PLEAS

A. SUMMONS

Introduction

(a) Summons are a mode of commencing civil proceedings under action

procedure.

Purpose
(b) The purpose of a summons commencing action is to inform the defendant that
they are being sued or are required to appear in court to respond to a claim by
the Plaintiff. It is an official notice of a lawsuit.

(c) It is important in as much as it accords the defendant notice and opportunity

to respondent and defend claim being made against them. Summons prevent
the judgment from being sought and entered against the defendant in their
absence or without their side of the story being heard.

This is works hand in hand with the audi alterm partem rule (hear the other
side)

2. Types of Summons

(a) Ordinary summons

An ordinary summons contains the basis (the particulars of the claim) for the
plaintiff's action in the body of the summons. As a general rule, the simple
summons is used where the claim is for a debt or a liquidated demand.

(b) Combined summons

A combined summons, has a more detailed and separate document containing

the particulars of claim and is annexed to the summons.

3. Form and Content of a Summons

(a) The format is contained in Order 1 Rule (4) (1) of the Magistrates Court
(Civil) Rules, 2019 in Form CIV 4.

(b) Calls upon defendant to enter appearance to defend – Order 8 Rule 1 (1)
of the Magistrates Court (Civil) Rules, 2019.

(c) Description of defendant – Order 8 Rule 4 of the Magistrates Court

(Civil) Rules, 2019.

(d) Address for service and postal address – Order 8 Rule 2 (2) and (3) of
the Magistrates Court (Civil) Rules, 2019.

(e) Particulars of claim – Order 8 Rule 3 of the Magistrates Court (Civil)

Rules, 2019.
4. Rules

(a) Dies induciae

In terms of Order 8 Rule 1 (2) of the Magistrate Court (Civil) Rules, 2019
the defendant is called upon to enter an appearance shall be not less than—
(a) seven days if the defendant does reside; (b) fourteen days if the
defendant does not reside;”
Within the jurisdiction
(b) Order 8 Rule 2 (1) of the Magistrates Court (Civil) Rules, 2019

The particulars of the claim shall appear on the face of the summons and
shall be signed by any such person as is mentioned in Order 4. (in person/
legal practitioner/officer in the case local authority or company/member/ any
other person authorized by law Order 4)

(c) Order 8 (2) of the Magistrates Court (Civil) Rules, 2019 provides for
the following that Summons shall give:

 address for service which shall be within a radius of 15km of the court-
house from which it is to be issued;
 The postal address of the plaintiff, and
 The facsimile or electronic mail of the plaintiff or such other person as
is mentioned in Order 4 who signed the summons

(d) Summons are issued by the Clerk of court in terms of Order 8 Rule
1(3) of the Magistrates Court (Civil) Rules, 2019
 Allocation of a case number Order 3 Rule 1(1) of the
Magistrates Court (Civil) Rules, 2019
 Signing
 Stamping with the official stamp

(e) Service of Summons

Wattle Company (Pvt) Ltd v Inducom (Pvt) Ltd 1993 (2) ZLR 108 (H)
clearly sets out the importance of serving summons in the required manner as
set out in the rules Order 7 of the Magistrates Court (Civil) Rules, 2019
 Messenger of court may call upon any police officer to assist
him or her if he or she meets with resistance in serving process
– (Order 2 Rule 2)
 Police officer must assist if so requested
 Manner of service. see Order 7 Rule 5 of the Magistrates Court
(Civil) Rules, 2019
  Process in relation to a claim for an order affecting the liberty of
the person shall be served by delivery of a copy thereof to that
person personally
(f) Citation

The parties s should be cited accurately. Order 8 Rule 4 of the Magistrates

Court (Civil) Rules, 2019.

(g) What are Particulars of Claim?

These provide for all the necessary details that form the very basis of the
claim. Order 8 Rule 3 of the Magistrates Court (Civil) Rules, 2019 a
summons shall give particulars of claim which shall contain the following:
i.The nature and amount of the claim
ii.The rate of interest and the amount thereof claimed up to the date of
the summons and
iii.Whether or not costs will be claimed if the action is undefended
iv.Any abandonment of part of the claim and
v.Any set off
vi.Where the summons contains more than one claim, the particulars of
each claim and relief sought in respect of each claim shall be stated
separately
vii.Where the particulars of claim contain more than one hundred words,
they may be contained in an annexure served with the summons
(which annexure shall be part of the summons.
B. EXCEPTIONS

1. Definition

An exception is a technical objection to the pleading on the grounds that it

is bad in law either for want of disclosing a cause of action or failure to
disclose a defence.
2. Purpose

The aim of an exception is to compel an amendment with a view to ensure

that the pleading reflects the cause of action or to dispose of the claim or
defence.

3. When can exception be made?

 In Ritenote Printers (Pvt) Ltd and Another v Adam and Co (Pvt) Ltd
and Others 2014 (1) ZLR 160 (H) the court held that an exception can
only be properly filed before the excipient pleads to the merits of the
matter. It is an alternative to pleading to the merits. Once the excipient
pleads to the merits before filing an exception, he or she is in fact telling
the other party that its declaration disclose a cause of action and is neither
vague nor embarrassing. After the defendant has pleaded, it becomes
difficult to ask the plaintiff to remove the vague and embarrassing
averments. It also becomes difficult to except to the cause of action.

(a) Defendant shall deliver particulars of exception to summons within

7 days after entry of appearance pursuant to Order 14 Rule 1(1) of
the Magistrates Court (Civil) Rules, 2019.

(b) Plaintiff may within 7 days of the delivery of the defendant’s plea or
further particulars and with or before delivering a reply deliver
particulars of exception to the plea pursuant to Order 16 Rule 9 (1)
of the Magistrates Court (Civil) Rules, 2019.

4. Grounds for exceptions to a Summons

A defendant may except to summons on the grounds set out in Order 14

Rule 2 of the Magistrates Court (Civil) Rules, 2019, which provide as
follows:
(a) that it does not disclose a cause of action.
(b) that it is vague and embarrassing
(c) that it does comply with the requirements of Order 8 (summons for
commencing proceedings)
(d) for want of proper service.
(e) the copy served upon the defendant differs materially from the
original one.

5. Grounds for exception to Plea

A Plaintiff may except to a plea on one or more of the grounds in Order 16 Rule 9
(2) of the Magistrates Court (Civil) Rules, 2019 which provides as follows:
(a) that it does not disclose a defence to the plaintiffs claim.
(b) that it is vague and embarrassing.
 (c) that it does not comply with Order 16.
Making a claim or defence which is not acceptable at law or omission of an essential
element of a cause of action or defence was held to be a ground of exception in A
Lane v Eagle Holdings (Pvt) Ltd SC 126-85.
In Salzmann v Holmes 1914 AD 152 the pleading being vague and embarrassing to
the extent that the excepting party does not know the case he or she has to answer
was held to be a ground of exception provided that the vagueness and
embarrassment must go to the root of the claim or defence otherwise the party must
seek further particulars or apply to strike out.
6. Salient Points and jurisprudence

(a) Exceptions to summons can be heard together with application for summary
judgement or set down separately if there is no application for summary jv
udgment Order 14 Rule 7 of the Magistrates Court (Civil) Rules, 2019.

a. Exception to a plea may be set down by either party. Order 16 Rule 15 of the
Magistrates Court (Civil) Rules, 2019.

b. In terms of Order 14 Rule 2 (2) of the Magistrates Court (Civil) Rules,

2019 the court shall not uphold any exception unless it is satisfied that the
defendant would be prejudiced in the conduct of his or her defence if the
summons were allowed to stand.

c. In terms of Order 14 Rule 2 (3) of the Magistrates Court (Civil) Rules, 2019
a Defendant raising an exception that the summons does not comply with the
requirements of Order 8 shall set out particulars of the alleged non-
compliance. The court shall not again uphold an exception that the summons
is vague and embarrassing unless the defendant has, prior to taking
exception, by delivering of a letter in accordance with rule 4 given the plaintiff
an opportunity of removing the cause of the complaint.

d. It is important to note that it is not permissible to except to one claim

without excepting to the main claim.

e. In the case of Gweru Tourism Promotions (Pvt) Ltd v Sadler and Another
2011 (2) ZLR 265 (H) the court held that a defendant is entitled to except to
any set of facts together with the relief claimed in respect thereof as being bad
in law. What the defendant cannot do is to except to a declaration on the
 basis that it does not support one of several claims arising out of the cause of
action. An exception taken in this form serves no purpose. An exception is
taken in order to avoid the leading of unnecessary evidence. In casu, the
exception would not dispose of the main claim viz the return of the property
claimed by the plaintiff. The exception was not well taken and would be
dismissed.

f. In CMED (Pvt) Ltd v First Oil Company and Others 2013 (2) ZLR 737 (H),
the High Court held that a defendant before excepting to a pleading, may
state by letter to another party the nature of his complaint and call upon the
other party to amend his pleadings so as to remove his cause of complaint. It
is not necessary to request further particulars before an exception may be
filed. The court held further that the object of an exception is not to embarrass
one’s opponent or to take advantage of the technical flaw, but to dispose of
the of the case or a portion thereof in an expeditious manner or to protect
oneself against an embarrassment which is so serious as to merit the costs
even of an exception. The purpose of an exception is to raise a substantive
question of law which may have the effect of settling the dispute between the
parties. An excipient who alleges that a summons does not disclose a cause
of action must establish that, upon any construction of the particulars of claim,
no cause of action is disclosed. The court thus, upheld the exception.

g. In Matewa v ZETDC 2013 (2) ZLR 263 (H), the High Court held that the
determination of whether a claim is excipitible or not cannot be premised on
proof of an averment. Proof relates to evidence which is the province of a trial
and not an exception. The essence of any claim is located in the pleadings,
whose function is to inform the parties of the points of issue between them, to
enable them to know in advance what cases they have to meet, to assist the
court defines the limits of the action and to place the issue on record. To that
extent, pleadings are required to be drawn in summary form, must be brief
and concise and must state only relevant facts and not evidence. It is the duty
of the court, when an exception is taken to a pleading first to see if there is a
point of law to be decided which will dispose of the case in the whole or in
part. If there is not, then it must see if there is any embarrassment, which is
 real and cannot be met by the supply of particulars. Unless the excipient can
satisfy the court that there is such a point of law or such real embarrassment,
then the exception should be dismissed. A pleading is only excipiable on the
grounds that it does not disclose a cause of action if no possible evidence led
to the pleading can disclose such cause of action.

C. SPECIAL PLEAS

1. Definition

This is a defence alleging some extraneous matter as a special or technical

defence.

2. Purposes

The purposes of special plea is;

(a) To delay proceedings (dilatory/plea in abetment)

(b) To quash proceedings (declinatory/ plea in bar)

3. Examples of Special Pleas.

(a) Declinator
i. lack of jurisdiction.
ii. Res judicata. Mvaami (Pvt) Ltd V Standard Finance Ltd 1976
(2) RLR; Kawondera v Mandebvu SC 12-06.
(b) Dilatory
i. Lis Alibi Pendens.
An action on the same cause of action is pending elsewhere. When
two courts are hearing the same dispute they can reach inconsistent
decisions.
ii. Lack of locus standi in judicio. The lack of legal standing to
institute proceedings Edward v Woodnutt NO 1968 (4) SA 184 (R)
4. Procedure

(a) A Special Plea should be delivered within the same time frame as an
ordinary plea.

(b) Set down for hearing pursuant to Order 16 Rule 9 of the Magistrates
Court (Civil) Rules, 2019.
5. The difference between a special plea and an exception

(a) The defence raised by Special Plea may be established by evidence

outside the summons while on exception the defence raised must
appear ex facie the summons, accordingly no extrinsic evidence is
allowed.

(b) In the words of INNES CJ in Brown v Vlok 1925 AD 56 at 58:

“…. a plea in bar is one which, apart from the merits, raises some
special defence, not apparent ex facie the declaration – for in that case
it would be taken by way of exception – which either destroys or
postpones the operation of the cause of action.”

(c) The same approach is adopted and elaborated by Herbstein & van
Winsen as follows:

“The essential difference between a special plea and an exception

is that in the case of the latter the excipient is confined to the four
corners of the declaration. The defence he raises on exception
must appear from the declaration itself; he must accept as true
the allegations contained in it and he may not introduce any fresh
matter. Special pleas, on the other hand, do not appear ex facie
the declaration. If they did, then the exception procedure would
have to be followed. Special pleas have to be established by the
introduction of fresh facts from outside the circumference of the
declaration, and those facts have to be established by evidence in
the usual way. Thus, as a general rule, the exception procedure is
appropriate when the defect appears ex facie the pleading,
whereas a special plea is appropriate when it is necessary to
place facts before the court to show that there is a defect. The
defence of prescription appears to be an exception to this rule,
 for it has been held that that defence should be raised by way of
special plea even when it appears ex facie the plaintiff’s
particulars of claim that the claim has prescribed, apparently
because the plaintiff may wish to replicate a defence to the claim
of prescription, for example an interruption.”1

KEY REQUIREMENTS FOR SUMMONS

Lower Courts
The summons should include the following:
a. The particulars of claims and must be signed -Order 8, Rule 2(1).
b. Order 8 Rule 2(1)(2) - requirement of address for service and postal address.
An address for service which shall be within a radius of 15 kilometers of the court or
house from which it is to be issued. In addition, if available, the facsimile or
electronic .
c. The particulars of claim-Order 8 Rule 3(1). The claim shall show:
 The nature and amount of the claim
 The amount claimed up to the date of the summons and the rate of
interest.
 Whether or not the costs will be claimed if the action is undefended
 Any abondoment of part of the claim.
 Any set-off.
d. The relief sought-Order 8 Rule 3(3).
e. Particulars of Plantiff-Order 8 Rule 4(c).
f. Particulars of defendant as they are known to the Plantiff-Order 8 Rule 4(a).

CAUSE OF ACTION
A set of facts that the plaintiff will use as a basis of bringing a lawsuit. Put simply, it is
an inquiry into substantive law to assist in the determination of the appropriate civil
procedure to be followed.
EXAMPLES OF CAUSES OF ACTION
Mostly, a bulk of lawsuits falls under the law of delict, law of contract and some are
statutory in nature. The following are typical examples:
a. Injury to person including psychological harm, for example, where a person is
injured in a motor vehicle accident.
b. Damage to property, for example where defendant starts a fire on his land
and the fire spreads to plaintiff’s land and causes damage to his property.
1
The Civil Practice of the Supreme Court of South Africa (4 ed) (Juta & Co) 471-472
c. Harm to economic interests, for example where A defrauds B and causes
financial loss. In Industrial Equity v Walker 1996(1) ZLR 269 (H) . In this case, D was
guilty of fraud when he had sold shares sent to him in error. D knew he had no right
to the shares to do so.
d. Loss of support, for example a young child is left without support when her
parents are killed in a vehicle accident.
e. Harm to reputation, for example where a newspaper publishes an article
about Y in which it alleges, he has engaged in corruption.
f. Harm to dignity, for example D makes sexual advances to P, a woman.
g. Invasion of privacy, for example, B a policeman enters C’s house to carry out
a search of the premises without a warrant and there was no lawful justification for
him to carry out the search.
i. X the car dealer fails to deliver a car purchased by Y.

NOTICE OF APPEARANCE TO DEFEND

Order 10- Magistrates Court(Civil) Rules, 2019
This is a notice issued by the defendant giving a response to the summons
issued.After service of the summons by the messenger of court. A defendant
intending to defend must file notice with statutory time frames as provided for under
O 10 Rule 1(1) as follows:
 7 days after service of summons if the defendant resides within the jurisdiction
of the court from which the summons were issued.
 14 days outside jurisdiction of the court.
 Within the period limited by the summons, whichever is the longer, enter an
appearance to defend by delivery of a memorandum in writing that he oe she
intends to defend.
CONTENTS OF NOTICE OF INTENTION TO DEFEND
The notice of intention to defend must contain a clear statement of the defendant’s
intention to defend the action. In terms of order 10 rule 3(1), a memorandum referred
to in rule 1 shall:
 Be signed by the defendant and
 Give an address for service within a radius of 15km of the court or house
from which the summons are issued.
 Give the postal address of the defendant and
 Facsimile or electronic mail address (if available) of the defendant or any
other person acting on behalf of the defendant.
In terms of O10 rule 4, the entry of an appearance shall be without prejudice to any
exception which the defendant may have. Thus, the defendant may counterclaim
even when he or she entered an appearance to defend.
DEFECTIVE NOTICE OF APPEARANCE TO DEFEND
Notice of intention to defend may be irregular or defective if:
 It does not indicate the case number.
 It is not properly served as required.
 It does not contain the postal address of the person who signed it or an
address for service as required
 It is entered on behalf of a company but the company resolution authorising
the notice is invalid
 It was properly set out originally but the legal practitioner who acted on behalf
of the defendant and whose address for service ceases to act for the
defendant
EFFECTS OF FILING A DEFECTIVE NOTICE OF INTENTION
Should the notice of intention be defective in respect of certain above said defects,
the plaintiff will not immediately be entitled to default judgment but must first provide
the defendant with written notice of the defect and give the defendant an opportunity
to remedy the defect within specified period. If the defendant subsequently fails to
correct the defect, the plaintiff may proceed with the application for default judgment
based on a default of due and proper entry of appearance.
EFFECTS OF FAILURE TO FILE A NOTICE OF APPEARANCE TO DEFEND
Order 11 Rule 2
Any party that fails to deliver a plea when required to do so will be in default. The
aggrieved party may , apply for a judgment to be granted against the defaulting
party. The rationale behind applying for a default judgment against the defaulting
party is simply to spare the aggrieved party the trouble of begging for the defaulting
party’s plea. The aggrieved party is saved having to unnecessarily go through the
rest of the litigation process. Order 11 rule 2 provides that where the defendant has
failed to enter an appearance to defend and has not consented to judgment, the
plaintiff may lodge with the clerk of court a written request to have judgment entered,
with costs against such defendant.

REPLICATION
Order 17
It is a pleading by the plaintiff answering the defendant’s plea. Generally, a
replication should be delivered only when it is necessary to answer the defendant’s
plea other than by way of bare denial. When no replication to the plea is delivered,
the plaintiff is deemed to have denied the allegations in the plea (Order17 Rule 3). A
replication to the plea should strictly speaking be delivered only when the plea
contains new allegations and when the plaintiff wishes to admit new allegations
contained in the defendant’s plea, qualify the new allegations made by the defendant
in the plea or introduce new allegations of facts which will nullify the defendant’s
defence. It follows that a replication to the plea will generally be necessary where the
defendant has pleaded in confession and avoidance. The defendant may have
pleaded that his or her agent lacked the authority to enter into the contract and
where the plaintiff wishes to allege that the defendant is estopped from raising that
defence he or she must do so in a replication.
PLEA
Order 16
A plea is a formal response by the defendant to the assertions of the plaintiff in a
civil case. Put simply, a plea is the defendant’s answer to the plaintiff’s claim. In a
plea, the defendant must set out the defence upon which he or she relies. It is the
duty of the defendant to plead in such a manner that the plaintiff will be clearly
informed about the defendant’s case and the nature of the defence. Although it is
correct to say that the delivery of a plea will follow the plaintiff’s particulars of claim or
declaration as the case may be, it is important to bear in mind that there are certain
other steps which may be interposed between the service of the particulars of claim
and the delivery of a plea.
In terms of Order 16 Rule 1(1) the defendant shall within seven days after (a) entry
of appearance; or (b) delivery of documents of particulars in terms of rule 1 or 2 of
order 12 (Further particulars); or (c) if application for summary judgment is made, the
dismissal of such application; or (d) if exception , motion to strike out or special plea
is set down , the dismissal of such exception, motion or special; or (e) the making of
an order giving leave to defend or; any amendment of the summons allowed by the
court at the hearing of such exception, motion or special plea; deliver a statement in
writing to be called a plea.
Order 16 Rule (1) applied on condition that if an appeal is noted against a decision
on an exception or special plea or such proceedings are brought on review, the plea
shall be delivered within such time as is directed by the court of appeal or on the
application by the court. Further the plea shall be dated and signed. NB. The
defendant’s plea must be drafted in such a manner that each allegation contained in
the plaintiff’s particulars is specifically addressed.
CONTENTS OF PLEA
The defendant must answer the plaintiff’s claim by dealing with each and every
allegation in the plaintiff’s particulars of claim in one of the ways recognised by the
rules of pleading. In the case of FPS Ltd v Trident Construction (Pty) Ltd [1989]
ZSAC 28 the court held that, a defendant must give a fair and clear answer to every
point of substance raised by a plaintiff in his declaration or particulars of claim by
frankly admitting or explicitly denying every material matter alleged against him. The
defendant must also clearly and concisely set out in the plea all the material facts on
which he or she intends to rely. In broad terms, a plea may either be a plea on the
merits or a special plea. A plea on the merits attacks the substance of the allegations
made by the plaintiff. For example, in a plaintiff’s claim for damages, the defendant
may deny being negligent or may plead a ground of justification. On the other hand,
a special plea does not address the merits and is either dilatory or declinatory. It is a
legal attack designed to destroy or postpone the plaintiff’s cause of action before the
merits of the plaintiff’s cause of action have even been considered. For example, the
defendant may plead that the plaintiff lacks locus standi in judicio or that the
plaintiff’s cause of action has prescribed.
A PLEA OF TENDER
In terms of Order 16 Rule 5, subject to Order 13 (a) where a tender is pleaded as to
part of the amount claimed, the plea shall specify the items of the plaintiff’s claim to
which the tender relates; (b) a plea of tender shall not be admissible unless the
amount of the alleged tender is paid into court on the delivery of the plea, if not
already paid to the plaintiff, and such amount shall be paid out of the plaintiff only on
the order of the court or upon the written consent of the parties; (c) a tender after
action is brought shall unless such undertaking is expressly disavowed at the time of
such tender, imply an undertaking to pay the plaintiff’s costs up to the date of the
tender, and be valid without a tender or payment into court of the amount at which
such costs may be taxed.
CLOSURE OF PLEADINGS
Order 17
These takes place when both parties have put forward their replies that is plea and
replication or when time for pleadings has expired. According to Stuart Sime(1995)
pleadings are considered closed when either party has joined issue without alleging
any new matter and without adding any further pleading. The last day allowed for
filing a replication or subsequent pleading has elapsed and no further documents
has been filed. The parties may also agree in writing that the pleadings are closed
and this agreement is filed with the clerk of court or the parties are unable to agree
as to the close of pleading and one of the parties successfully applies to the court to
declare them closed. Suffices to note that the formulation of the issues may change
even after closure of pleadings, there reason being that either party may amend its
pleadings at any time prior to judgment. Further, close of pleadings has certain
important consequences, e.g. a claim for general damages arising out of personal
injury is transmissible on the death of the injured person if the death occurs after
pleadings have closed. The parties may also set down the matter for trial and pre‐
trial procedures may commence.