When do summons lapse

This purpose would apply to both undefended and defended cases. There is no difference in principle between a plaintiff who issues a summons and then sits back and does nothing and one who after service of summons and entry of appearance to defend or, as in the present instance, after receipt of a request for particulars acts likewise.

In either instance he is being supine, and in both instances his inactivity is worthy of censure. The purpose of the Rule is best served if it applies to both situations. It is true that where there has been an appearance to defend followed by a request for further particulars and nothing further, the actual period of inactivity before the twelve month period from the date of service expires is correspondingly shortened. But the vigilant plaintiff can 15 guard against, and avoid, any pitfalls created by the Rule.

The fact that a defendant who has entered an appearance to defend and requested further particulars, or filed a plea, can utilise the Rules to compel a plaintiff to respond and take further steps in the prosecution of the action does not alter the plaintiff's position. It may suit a defendant, for tactical or other reasons, simply to sit back and do nothing. But the Rule is not designed to penalise a defendant for inaction or a failure to take steps to bring a matter to finality.

The most that can be said is that the Rule probably has greater application in undefended matters than in defended matters. It does not follow that it should not apply to both. And it is a far cry from concluding that it can only apply to undefended actions. It was also argued that if the Rule were to be interpreted to apply to defended actions it would give rise to a number of anomalies. Some 16 of these so-called anomalies are alluded to in the judgments referred to in the Langenhoven case.

Others were raised in argument. Anomalies one way or another are an inevitable consequence of most statutory provisions. The fertile mind will always be quick to find them. In dealing with anomalies one must draw a distinction between far-fetched anomalies and those that are ordinary and predictable Aetna Insurance Co v Minister of Justice 3 SA A at B - D.

I do not propose to deal with the various anomalies that have been suggested. Suffice it to say that they strike me as being more apparent than real, do not lead to an absurdity it not having been suggested that they did and, more importantly, arise from situations which can be guarded against, forestalled or avoided by 17 a vigilant plaintiff who, after all, is in a position largely to control the litigation process and determine his own destiny.

In the result there is no reason, or no sufficient reason, to depart from the literal interpretation of Rule I am accordingly of the view that it applies to both defended and undefended actions as found by the Court a quo as well as the courts in the Sibiya and Langenhoven cases.

As it was common cause that the appellant had taken no further steps in the prosecution of the action after service of summons it is not necessary to consider the meaning of that phrase in Rule What it clearly does not require of a plaintiff is that he should bring his action to finality within twelve months of the service of summons.

It would seem that all that is required of a plaintiff is that he should within that period advance the proceedings one stage nearer completion, thereby 18 evincing his intention of pursuing the matter further.

In view of the consequences that flow from non-compliance with Rule 10 it may require a restrictive interpretation in this respect. A step, rather than steps, in advancing the proceedings is probably all that is required to preclude the potentially harmful operation of Rule 10 cf Kagan and Co v Gunter's Store 2 SA O at C - D.

I express no firm view on the matter. This brings me to the next issue which is whether the provisions of Rule 60 5 can be invoked in order to revive the appellant's lapsed summons. This also involves a determination of the rule-maker's intent. Rule 60 5 provides: " 5 Subject to the provisions of rule 17 l b , any time limit prescribed by these rules, except the period prescribed in rule 51 3 and 6 , may at any time, whether before or after the expiry of the period limited, be extended- 19 a by the written consent of the opposite party; and b if such consent is refused, then by the court on application and on such terms as to costs and otherwise as may be just.

They are not germane to the present enquiry. The issue referred to resolves itself into a question of what the meaning is of the word "lapse" and whether the twelve month period referred to in Rule 10 is a "time limit prescribed by these rules" capable of extension.

In delivering the judgment of the Court Thirion J at 20 I referred to the observations of Selke J in Dawood v Abdoola and Another 2 SA N at that the more usual meaning of the verb "to lapse", in the parlance of the law, is "to fall or pass away finally". The meaning given by Webster's Dictionary to 'lapse' when used in this sense is 'to become ineffectual or void'.

If the Writ is served out of jurisdiction, the defendant has 21 days after service of the Writ to enter an appearance in the action.

Judgment in Default of Appearance If the defendant fails to enter an appearance within the time specified in the Writ, the plaintiff may enter judgment against him. This may be either a final judgment or an interlocutory judgment, depending on the nature of the claim. The defendant may apply to the Court by summons to set aside or vary the judgment.

Pleadings serve to crystallise the positions of the parties for the trial so that parties may prepare for the trial accordingly and not be taken by surprise. This saves time and expense as the trial will not be unnecessarily lengthened by matters that are not in dispute. There are no pleadings in actions commenced by Originating Summons. A statement of claim may be endorsed on the Writ and served together with the Writ. Where a Writ does not have an endorsed statement of claim, the Statement of Claim must be filed and served on the defendant within 14 days of the defendant entering an appearance in the action.

Defence or Defence and Counterclaim Where the defendant has entered an appearance and intends to defend an action, he is required to file and serve his Defence 14 days after the time limited for entering an appearance or after the service on him of the Statement of Claim, whichever is later.

If a defendant alleges that he has any claim or is entitled to any relief or remedy against the plaintiff, he may file and serve a counterclaim in the same action brought by the plaintiff.

Judgment in Default of Service of Defence Where the defendant has been served with the writ and has entered an appearance but has not served a Defence, the plaintiff may apply to the Court to enter judgment against the defendant.

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EU Regulatory. Financial Markets and Products. Fraud and Investigations. Injury Claims. Inquiries and Inquests. This means that pleadings will be exchanged and the matter may go to trial. A special summons is used for cases that involve pure issues of law or very specific issues of fact. For example, a special summons will be issued to commence a claim relating to the administration of the estate of a deceased person.

Like summary proceedings, this is a fast-track procedure where the judge decides the case by reading affidavits submitted by both sides. A personal injuries summons is used for cases where the plaintiff claims that they have been injured due to acts or omissions of a defendant.

Before issuing a personal injuries summons, you must first apply to the Personal Injuries Assessment Board. You should also issue a letter of claim to the defendant within 2 months of becoming aware of the injuries. Content of an originating summons All originating summonses must contain the following information: A title — the plaintiff's name and the defendant's name make up the title of the proceedings.

The type of the summons, for example, plenary summons. A description of the parties — the summons must state the surname, first name, the residence or place of business and the occupation of the plaintiff.

It must also state the name and address of the defendant or their solicitor, if known. An indorsement of claim — this is the part of the summons that sets out what the plaintiff claims they are entitled to. The level of detail necessary in this section depends on the type of summons. If the summons is a plenary summons, it is only necessary to give the defendant information about the general nature of the plaintiff's claim — more detail will be provided in the statement of claim that follows.

If the summons is a summary summons or a special summons, much more detail must be given about the nature, extent and grounds of the plaintiff's claim against the defendant.

It should clearly set out the allegations that are being made by the plaintiff and the amount that the plaintiff claims they are entitled to. Serving an originating summons To serve an originating summons, a copy of the summons can be handed to the defendant and they must be shown the original.

Entering an appearance When a defendant receives a plenary or a summary summons they should enter an appearance within 8 days. Memorandum of appearance The short form must contain the following information: The date The name of the defendant's solicitor. If the defendant does not have a solicitor, it must state that the defendant defends in person.

The form must also give the solicitor's address. If the defendant does not have a solicitor, it must state an address where documents can be left for them. Statement of claim If the case has been commenced by a plenary summons and the defendant has entered an appearance, then the next step is for the plaintiff to serve a statement of claim on the defendant.

Content of statement of claim The statement of claim must contain the following information: The title and record number — the plaintiff's name and the defendant's name make up the title of the proceedings. A description of the parties — the statement of claim must state the surname, first name, the residence or place of business and the occupation of the plaintiff and the defendant. The statement of claim must state the nature, extent and grounds of the plaintiff's claim against the defendant.

It should clearly set out the allegations that are being made by the plaintiff and the damage that the plaintiff suffered. It should also state what the plaintiff is seeking from the court. The statement of claim must be dated and signed by the plaintiff or their solicitor.