Thread by @LawyeredSouth

DRAFTING A SIMPLE SUMMONS (MAGISTRATE'S COURT)

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1/ In terms of Rule 5(2)(b) of the Magistrates’ Courts Rules, the simple summons may be issued where the claim is founded on a debt or liquidated demand.

2/ The format of the simple summons in the Magistrate’s Court and the High Court differs ever so slightly, however, I would prefer to go through each one separately.

3/ The heading:

First things first, make 100% sure that the court out of which you are proceeding has jurisdiction. If you are unsure about jurisdiction, check out the above video.

Next, let’s draft the summons heading. I like to use Arial 12 font with 1.5cm line spacing.

4/ First, make sure the Court’s citation is correct. In our example, we will be proceeding out of the Roodepoort Magistrate’s Court.

Make provision for the case number at the top right-hand side of your summons, under the Court’s citation.

5/ We now need to identify the parties. Remember, there can be several plaintiffs and/or defendants, but in our example, we will only have one of each. If there are several, they will be cited as First Plaintiff, Second Plaintiff, First Defendant, Second Defendant etc.

6/ The plaintiff will obviously be your client. After the phrase “In the matter between:” insert the plaintiff’s full names and ID number if they are a natural person, and registration number if they are a company.

7/ If any party is acting in a nominated or other capacity, for example, a trustee, put the letters “NO” after their name. Take note that the parties will not always have a registration or ID number.

8/ For example, they could have a passport number, or a license number depending on the citizenship of the person or nature of the entity.

Put “Plaintiff” to the right of the plaintiff’s details.

9/ Below “and” insert the defendant’s details. Include the relevant number of the defendant, whether it be ID, registration, passport etc.

10/ Take note that inserting the parties’ numbers (ID or otherwise) is not strictly necessary, however, you may encounter difficulties blacklisting the defendant with the relevant credit bureaus in instances where the relevant no. is omitted. If you have the info on hand, use it.

11/ Insert a line across the page. You now have your heading. In our example, both the plaintiff and the defendant are natural persons.

Your heading will look similar to the following:

12/ The instruction to the sheriff:

Essentially, a summons is an instruction to the sheriff having jurisdiction. Therefore, below the horizontal line, type “To the Sheriff or his/her Deputy:”

13/ What do we need the sheriff to do? Well, we need the sheriff to inform the defendant of certain particulars in the summons after which we need him to serve a copy thereof on them. Right, so go ahead and instruct the sheriff to “INFORM:”

14/ Next, we need to tell the sheriff who he is informing. I like to give the sheriff more as opposed to less information on the defendant. When I say “more”, I don’t mean that you must tell the sheriff who the defendant’s uncle is.

15/ The MC Rules set out what needs to be included in the defendant’s citation, namely:

the surname and first names or initials of the defendant by which the defendant is known to the plaintiff;...

16/ the defendant's residence or place of business and, where known, the defendant's occupation and employment address; and
if the defendant is sued in any representative capacity, such capacity.

17/ Okay, so in our example, the sheriff is to inform:

“DORIAN GRAY (Identity Number: 660120 5552 080)” – surname and first names. I included the ID no for extra measure.
“…a major male teacher…” – occupation. I also add the def’s gender and the fact that they are a major.

18/ “…whose full and further particulars are to the Plaintiff unknown…” – I always include such a sentence just to let the court know that I have included all the information I have on the defendant in the citation.

19/ “…with employment address at HAPPY FEET SCHOOLS, 123 CLIP ROAD, JOHANNESBURG, GAUTENG, 2194…” – employment address.
“…and residential address at MONTBLANC, 125 CLIP ROAD, JOHANNESBURG, GAUTENG, 2194…” – residential address.

20/ “…being addresses within the jurisdiction of the above Honourable Court (“the Defendant”).”

You will note that we have indicated that the aforementioned addresses fall within the jurisdiction of the court.

21/ Jurisdiction can be confirmed elsewhere in the summons in a separate paragraph, but when the court has jurisdiction based on the residence of the defendant, we like to include it in the defendant’s citation. In a combined summons, you'll only confirm jurisdiction in the POC.

22/ If you want to confirm jurisdiction in a separate paragraph, simply do so before you set out the particulars of your claim (which we will get to). It is important to note the following MC rules when it comes to confirming a court’s jurisdiction in a simple summons:

23/ Where the defendant is cited under the jurisdiction conferred upon the court by section 28(1)(d) of the Act, contain an averment that the whole cause of action arose within the district or region, and set out the particulars in support of such averment;

24/ Where the defendant is cited under the jurisdiction conferred upon the court by section 28(1)(g) of the Act, contain an averment that the property concerned is situated within the district or region; and

25/ Show any abandonment of part of the claim under section 38 of the Act and any set-off under section 39 of the Act.

If there is more than one defendant, you will cite the first def, and then simply cite the second def in the same manner and so on. It will look as follows:

26/ You then need to indicate to the sheriff who has instituted the action. In terms of the MC rules, when citing the plaintiff, you must include the following information, insofar as the information is available to you:

27/ The full names, gender (if the plaintiff is a natural person) and occupation and the residence or place of business of the plaintiff, and if the plaintiff sues in a representative capacity, such capacity.

The citation of the plaintiff in our example will look as follows:

28/ If there is more than one plaintiff you will just do the same thing you do if there are two defendants, except it would be in respect of the plaintiff. Simply put, you will instruct the sheriff to inform the defendant that X (full citation) AND Y (full citation)…

29/ The next step is to set out the particulars of the plaintiff’s claim in concise terms. In our example, let’s say the plaintiff’s claim is for R50,000.00 for services rendered and despite demand the defendant has failed and/or refused to make payment.

30/ You will start by stating: “hereby institutes action against the Defendant, in which action the Plaintiff’s claim is for…” Now we need to briefly discuss the plaintiff’s claim.

We need to mention the following to ensure the claim makes sense:

31/ Payment in the amount of R50,000.00;
For services rendered by the plaintiff which services were requested by the defendant;
That the defendant, notwithstanding demand, fails and/or refuses to pay.

32/ We must then annex a copy of the letter of demand and an invoice/statement reflecting the amount due as “A” and “B”. You do not need to attach every document in your possession to the simple summons.

33/ If you receive a notice of intention to defend after the sheriff has served the summons, you will need to deliver a declaration, which will set out your claim in much greater detail and to which the relevant annexures will be attached.

34/ The paragraph setting out the particulars of your client’s claim should look as follows:

35/ Note the amended MCR 5 provides that where the COA is based on a contract, the plaintiff shall indicate whether the contract is in writing or oral, when, where and by whom it was concluded, and if the contract is in writing a copy/part relied on shall be annexed.

36/ For interest’s sake, such a paragraph would look as follows:

37/ What’s also important is to double check whether any of the following MC rules are applicable to your summons and to comply with said rules:

38/ Where the plaintiff issues a simple summons in respect of claim regulated by legislation the summons may contain a bare allegation of compliance with the legislation, but the declaration, if any, must allege full particulars of such compliance;

39/ A summons for rent under section 31 of the Act shall be in the form prescribed in Annexure 1, Form 3 to the MCR;
This is known as a rent interdict summons, which we will discuss in a future episode.

40/ Where the plaintiff sues as cessionary the plaintiff shall indicate the name, address and description of the cedent at the date of cession as well as the date of the cession.

41/ These rules are simple, so just do what they say, and you will be fine.

So, we have now set out the brief particulars of our claim. Next, we need to insert the relief sought. This will be done in our next thread so stay tuned!

*not legal advice.