Litigation
At Fourie & Truter we are able to assist clients with litigation matters arising out of the Magistrate’s Court, Regional Court, and High Court.
We are focused on analysing our client’s disputes, with the necessary care, knowledge and skill, in order to detect solutions and solve disputes without proceeding to court. In the event, however, that litigation is unavoidable and inevitable, we strive to ensure that our clients receive the best possible outcomes.
We apply strategic, practical and innovative solutions for the following litigation matters:
Undefended
Combined summons
10 Days
Defendant files notice of intention to defend
Default Judgment
Defendant fails to file Notice to Defend
Defended
Combined summons
10 Days
Defendant files notice of intention to defend
20 Days
Defendant must file Plea and Counterclaim (if any) after Notice of Intention to Defend was filed.
20 Days
Claimant can file Please to Counterclaim if Counterclaim is filed.
Defendant fails to file Plea
Claimant can serve Notice of Bar
5 Days
To file Plea after Notice of Bar was filed.
Failure to file Plea after 5 Days
Notice of Bar - Claimant can apply for Default Judgment
10 Days
Claimant can file Replication to Plea after filing of Plea
15 Days
From delivery of Plea, Claimant can deliver notice for Application for Summary Judgment if plea does not disclose a defence
Action Proceedings
Application Proceedings
Process is commenced by way of combined summons. The combined summons must be served by a sheriff of the court on the defendant.
Issue and serve a notice of motion supported by a founding affidavit. The notice of motion must be served by a sheriff of the court on the respondent.
Within ten days of service of the summons, the defendant must file a notice of intention to defend.
Within five days of service of the notice of motion, the respondent must file a notice to oppose the application.
If the defendant fails to file the notice of intention to defend, the claimant can apply for default judgment.
If the respondent fails to file a notice to oppose within this period, the applicant can place the matter for hearing on the unopposed roll.
Within 20 days of filing of the notice of intention to defend, the defendant must file a plea and counterclaim (if any).
If a notice to oppose is filed, the respondent must file an answering affidavit within 15 court days of the date of filing the notice to oppose.
If a counterclaim is filed, the claimant can file a plea to the counterclaim within 20 days from the date of filing of the counterclaim.
If the respondent fails to file the answering affidavit within the 15-day period, the applicant can place the matter on the roll for hearing.
If the defendant fails to file a plea, the claimant can serve a notice of bar, under which the defendant is afforded a further period of five days to file a plea, failing which the defendant will effectively be barred from filing the plea and the claimant will be able to apply for default judgment.
If an answering affidavit is filed, the applicant can file a replying affidavit within ten days of the filing of the answering affidavit.
After a plea is filed, the claimant can file a replication to the plea within ten days of filing of the plea. A trial date can be applied for at this stage.
Five days thereafter, the applicant can file an application for a hearing date.
When a plea does not disclose a defence and was purely filed to delay the matter, the claimant can deliver a notice of application for summary judgment within 15 days of delivery of the plea, together with an affidavit made by the claimant or any other person who can swear positively to the facts.
If the applicant fails to apply for the hearing date, the respondent can apply for such a date.
Subsequent Stages
The pre-trial processes commence once the above pleadings are exchanged.
These processes commence at the expiry of ten days after the service of the plea.
Any party to the dispute can serve on the other a notice in writing to make discovery on oath, within 20 days of service of such notice, of all documents and recordings relating to the matter in the action that the party will rely on at the trial
If the party requested to discover fails to do so within the 20-day period, the other party can institute proceedings for an order compelling the requested party to comply within a stipulated period, failing which the trial proceedings will proceed without that party relying on any documents or recordings.
Once the documents and/or recordings have been discovered under oath, the requesting party can request that copies be produced within five days from the date of the discovery.
A pre-trial conference must be held by the parties and a pre-trial minute must be filed by no later than six weeks before the hearing date. The purpose of the pre-trial conference is to curtail the duration of the trial, narrow down the issues, and facilitate settlements.
Failure to attend a pre-trial meeting, or failure to promote the effective disposal of the litigation, may lead to an adverse order as to costs, including a special order against the party or his/her legal representative. A judge can call for a pre-trial under the judge’s control. The judge will then give directives on the process to be followed to bring the matter to finality.