Letter of demand – The plaintiff’s lawyer writes a letter to the defendant. This letter says what the plaintiff wants, and gives the defendant a certain number of days to do it. It is a warning that you plan to take the other person to court, for example, the plaintiff requests R1000 that you owe him and he demands that you pay within 10 days. If the defendant fails to pay within the prescribed period as set out in the letter of demand, then the plaintiff will issue a summons.

Issuing a summons – If there is no reply to the letter of demand, the attorney draws up and issues a summons. The summons is a document stamped by the court, setting out the details of the plaintiff’s claim. It also tells the defendant to tell the court within 5 days whether the case will be defended. The defendant can answer the summons in one of these ways:

• Admit to owing the money and pay immediately, or
• Try to settle the case by reaching an agreement with the other side after discussing it with the plaintiff’s attorney, or
• Defend the claim in which case the form called a Notice of Intention to Defend which is at the back of the summons must be completed and returned to the court.

In all cases it is very important not to IGNORE the summons or to wait until after the return date has expired. If the defendant doesn’t tell the court that the case will be defended, in other words if the defendant does nothing about the summons, then judgment will be given in favour of the plaintiff. This type of judgment is called a default judgment.

Default Judgement

If the court gives the default judgment, the plaintiff can claim against the defendant’s property with a Warrant of Execution. The Sheriff of the Court will take some of the defendant’s possessions and sell them to get money to pay the plaintiff.

The Defence

If the defendant wants to defend the case in court, then he or she must fill in a form called a Notice of Intention to Defend which is a form at the back of

the summons. It gives the reasons why the defendant does not want to pay what the plaintiff claims in the summons. The form must be stamped at the court.

Then a copy is given to the plaintiff’s attorney.

Pleadings

The legal documents in a civil claim are called pleadings. These pleadings are difficult to understand, so it is a good idea to get an attorney to defend a civil claim. The attorneys from both sides set out the legal facts in the pleadings. Pleadings are drafted according to the rules of the court. The attorneys send all the information to each other.

At any time during the pleadings (or even during the trial), the plaintiff

and defendant can decide to settle the case. In other words, they can reach an agreement on their own, without the magistrate or judge having to decide the case. The aim of settling a case is usually to save both sides time and money. If the case is not settled this way, then it will go to court.

The Trial

At the trial the plaintiff’s attorney and the defendant’s attorney each present their side of the case. This is done by giving evidence, and calling witnesses. As in criminal cases, witnesses can be cross-examined and re-examined. When the attorneys decide they have led enough evidence, they close their client’s cases. Each attorney tries to persuade the court that his or her client should win.

Judgement

The magistrate or judge decides which side is right and gives a judgment in favour of that side.

Review or Appeal

The plaintiff or defendant can apply for an appeal or a review, if he or she is not satisfied with the outcome of the case or with the way the proceedings were conducted. (See Trials, appeals and reviews)