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Actions Flashcards

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Civil Procedure 1L flashcards
1
Q

What are the four stages of an action?

A
  1. Pleadings
  2. Pre-trial
  3. Trial
  4. Judgment
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2
Q

What is the pleadings stage?

A

Stage during which the parties define the issues that are in dispute between them.

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3
Q

What is the pre-trial stage?

A

A stage that begins when the pleadings close, it includes preparing for trial i.e. set-down, discovery, issuing subpoenas and organising a pre-trial conference.

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4
Q

What are the two most important documents in action proceedings?

A
  1. POC
  2. Plea
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5
Q

What is a POC?

A

Document in which the plaintiff sets out the details of his claim.

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6
Q

What is a plea?

A

Document in which the defendant sets out his defence to the claim.

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7
Q

What are the five basic steps involved in pleadings?

A
  1. Summons and POC
  2. NOI to Defend
  3. Plea
  4. Replication
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8
Q

What is a summons?

A

A written judicial demand issued by a registrar or a clerk which orders the sheriff to command the defendant to enter an appearance to defend by a fixed day, in order to answer the claim made by the plaintiff.

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9
Q

What are the elements of a summons?

A
  1. Citation of the parties
  2. Warning to defendant
  3. Dies induciae
  4. Address for service
  5. POC
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10
Q

What is a dies induciae?

A

The limited period of time given to the defendant during which he must enter an appearance to defend or take some other specified action, failing which default judgment may be taken against him.

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11
Q

What are the five elements of a POC?

A
  1. Citation of parties
  2. Locus standi
  3. Jurisdiction
  4. Cause of action
  5. Prayer
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12
Q

What are the three kinds of summons?

A
  1. Combined
  2. Simple
  3. Provisional sentence
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13
Q

Why is the combined summons the most important form of summons?

A

It may be used for any kind of claim.

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14
Q

When is a combined summons mandatory?

A

Unliquidated claim

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15
Q

What is a simple summons?

A

Summons that does not have a separate POC attached to it, the POC are included in abbreviated form, in the body of the simple summons itself.

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16
Q

In what cases is a simple summons mandatory?

A
  1. Liquidated claims
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17
Q

What follows a simple summons?

A

Declaration.

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18
Q

What is a declaration?

A

A document like the POC attached to a combined summons.

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19
Q

What are the formalities required in a simple and combined summons?

A
  1. Simple summons must be signed by the attorney who acts for the plaintiff
  2. Combined summons by both attorney and advocate who act for the plaintiff.
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20
Q

What is a provisional sentence summons?

A

Summons used for special cases where the plaintiff’s claim is found on a liquid document.

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21
Q

What is the dies induciae of a summons?

A

10 days.

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22
Q

What is the dies induciae of a combined summons?

A

20 days.

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23
Q

What is a NOI to Defend?

A

A notice that informs the plaintiff and the court that the defendant intends to defend the action and appoints an address for service on the defendant of further documents in the action.

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24
Q

What is the effect of a NOI to Defend?

A

Places defendant’s attorneys on record.

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25
Q

Which days are not counted when determining dies induciae?

A

Days between Dec 16 and Jan 15.

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26
Q

What is a plea?

A

Defendant’s reply to the plaintiff’s POC and contains the defendant’s defence to the plaintiff’s claim.

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27
Q

What are the two main kinds of plea?

A
  1. Plea on the merits
  2. Special plea
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28
Q

What is a plea on the merits?

A

Plea that deals with the substance of the plaintiff’s claim, it attacks the validity of the cause of actions wrt the facts of the case.

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29
Q

What is a special plea?

A

A legal objection to some aspect of the plaintiff’s claim which tries to knock out the plaintiff’s case before the merits of the plaintiff’s case are even considered.

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30
Q

When does the 20 court-day time limit not apply?

A

If the defendant decides to except to the plaintiff’s POC or declaration or to make an application to strike out allegations contained therein.

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31
Q

How can the defendant respond in his plea?

A
  1. Admit
  2. Deny
  3. Confess and avoid
  4. Not admit and indicate to what extent the allegation is not admitted and put the plaintiff to the proof of particular fact.
  5. Counterclaim
  6. Plead in the alternative
  7. Plea of tender
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32
Q

What is to ‘confess and avoid’?

A

Confess such fact but avoid the legal implication the plaintiff would like the court to draw from that fact.

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33
Q

What is the effect of admission of facts?

A
  1. The facts become common cause and the plaintiff need not prove them by leading evidence at the trial
  2. Any fact that may be implied from the facts that have been admitted is also deemed to have been admitted, unless specifically denied.
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34
Q

What is the effect of denial of facts?

A

Facts which are denied are placed in issue and must be proved at the trial.

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35
Q

What is denial of fact?

A

The denial must not be bare it must answer the point of substance.

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36
Q

What is a plea of confession and avoidance?

A

A plea in which the defendant admits a particular averment in the plaintiff’s POC but then sets out new facts which, if proved, would justify or excuse the defendant’s admitted conduct.

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37
Q

What happens if the plea does not deny or admit allegations of fact?

A

The allegations of fact shall be deemed to be admitted.

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38
Q

What are the consequences of not observing the rules when drafting pleas?

A

Set aside as an irregular step.

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39
Q

What is a special plea?

A

A plea which raises a special defence and is directed at an underlying legal problem in the plaintiff’s case, rather than at the merits of the case.

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40
Q

What is the effect of a special plea?

A

It either destroys or postpones the operation of the plaintiff’s cause of action.

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41
Q

What is a dilatory special plea?

A

Special pleas which postpone the operation of the plaintiff’s cause of action.

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42
Q

What are special pleas in abatement?

A

Special pleas which destroy the plaintiff’s cause of action.

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43
Q

What are the kinds of dilatory special pleas?

A
  1. Special plea of arbitration
  2. Special plea of lis pendens
  3. Special plea of premature summons
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44
Q

What is a special plea of lis pendens?

A

A special plea raised in order to stay a particular action on the grounds that another action is already pending between the same parties based on the same cause of action in respect of the same subject matter.

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45
Q

What are the forms of special pleas in abatement?

A
  1. Special plea of prescription
  2. Special plea of misjoinder or non-joinder
  3. Special plea of res judicata
  4. Special plea to jurisdiction
  5. Special plea of non locus standi in iudicio
46
Q

What is a special plea of misjoinder?

A

A plea raised where a party who should not have been joined to an action, has been joined.

47
Q

What is a special plea of non-joinder?

A

A plea raised where a party who should have been joined in an action, has not been joined to the action.

48
Q

What is a special plea of res judicata?

A

A plea raised if the defendant is able to show that the point in dispute has been adjudicated upon already between the parties.

49
Q

What is a counterclaim?

A

A claim brought by the defendant against the plaintiff.

50
Q

What is the plaintiff’s claim in a counterclaim?

A

Claim in convention.

51
Q

What is the defendant’s counterclaim known as?

A

Claim in reconvention.

52
Q

Can a summary judgment be obtained in respect of a counterclaim?

A

No.

53
Q

What is a replication?

A

A response to a plea.

54
Q

When is a replication necessary?

A

If the defendant has raised new averments in his plea, which the plaintiff cannot allow to go unchallenged.

55
Q

What is litis contestatio?

A

To close the pleadings and freeze the plaintiff’s rights at that moment.

56
Q

What did the court hold in Nkala v Harmony Gold Mining?

A
  1. The common law has to be developed to allow for the claim for general damages to be transmissible to the estate or executor of a deceased mineworker, even though the stage of litis contestatio had not been reached at the time of his death.
  2. Development applies to the case where the defendant has died pre-litis contestatito .
  3. Development applies to all claims
  4. Plaintiff who had commenced suing for general damages but who has died before their claim has reached the stage of litis contestatio will be entitled to continue with such action regardless of their death
  5. Such action shall be for the benefit of the estate of the person.
57
Q

What are the instances in which pleadings shall be considered closed?

A
  1. If either party has joined issue without alleging any new matter; and without adding any further pleading
  2. If the last day allowed for filing a replication or subsequent pleading has elapsed and it has not been filed
  3. If the parties agree in writing that the pleadings are closed and such agreement is filed with the registrar
  4. If the parties are unable to agree as to the close of pleadings, and the court, upon the application of a party, declares them closed.
58
Q

What are the procedures that may be used to attack different types of defective pleadings?

A
  1. Exception
  2. Application to strike out
59
Q

What are the two main grounds for bringing an exception?

A
  1. Failure to disclose a cause of action or defence
  2. Pleading is drafted in a way that is vague and embarrassing.
60
Q

What is an application to strike out?

A

Application made to strike out parts of a pleading which are offensive in that they contain matter which is scandalous, argumentative, irrelevant.

61
Q

What are the procedures that may be used to respond to breaches of the rules of court?

A
  1. Application to set aside an irregular step
  2. Enforcing compliance and condoning noncompliance with the rules.
62
Q

What is an application to set aside an irregular step?

A

Procedure that addresses technical breaches of the rules.

63
Q

What is the procedure that may be used to cure certain defective pleadings?

A

Amendment/correction of pleadings.

64
Q

What kind of defect is required for an exception?

A

It should be obvious from reading the pleading itself without recourse to external evidence.

65
Q

What is execipiable?

A

A fault in a pleading that is apparent ex facie the pleading.

66
Q

What is an excipient?

A

The party who brings the exception.

67
Q

What is the requirement of an exception?

A

The excipient must be prejudiced if the pleading is allowed to stand.

68
Q

What are the consequences of failing to lodge an exception?

A

Lack of costs order as punitive measure.

69
Q

What are the consequences of a successful exception?

A

Court will grant the opposing party leave to amend the particular pleading bc the action/defence of the other side is not disposed.

70
Q

What are the requirements for an application to strike out?

A
  1. Offending pleading contains statements which are scandalous, vexatious or irrelevant
  2. Applicant will be prejudiced in the conduct of his claim or defence if the offending statements are not struck out.
71
Q

What is the distinction between an exception and an application to strike out?

A
  1. Exception goes to the very heart of the claim or defence
  2. Application to strike out attacks individual allegations which do not comprise an entire claim or defence.
72
Q

When can an application to strike out be delivered?

A

Within the period allowed for filing any subsequent pleading.

73
Q

When is it necessary to deliver the next pleading when an application to strike out is made?

A

Once the application to strike out has been dealt with.

74
Q

What is barring?

A

A procedure that prevents the delivery of any further pleadings in an action by placing them under bar.

75
Q

What forms can barring take?

A
  1. Automatic
  2. Notice of bar
76
Q

What is the effect of automatic barring?

A
  1. Barring that affects only the optional types of pleadings and does not result in a default judgment.
  2. The pleadings are deemed to be closed and the matter may be set down for trial.
77
Q

What is a notice of bar?

A

A bar that calls on the defaulting party to deliver the declaration or plea within five court days after receipt of the notice.

78
Q

What is the effect of non-compliance with a notice of bar?

A

The defaulting party is ipso facto barred from doing so thereafter and the other party may apply for a default judgment against him.

79
Q

In what instances is a notice of bar commonly served?

A

When the defendant has failed to deliver their plea in time.

80
Q

How can a bar be removed?

A
  1. Ask the other party, if they agree then the bar is duly removed.
  2. Apply to court on notice.
81
Q

How can the defaulting party succeed in their application to remove the bar?

A

They will have to show good cause.

82
Q

What are the situations in which the court will tend to grant the application to lift the bar?

A
  1. Reasonable explanation for the delay
  2. Application is bonafide and not made with the object of delaying the opposite party’s claim
  3. No reckless/intentional disregard of the rules of court
  4. Applicant’s action/defence is not ill-founded
  5. Any prejudice caused to the opposite party can be compensated for by an appropriate costs order.
83
Q

What is an alternative defence?

A

Where a defendant has 2 possible defences he can plead both (one in the alternative).

84
Q

What is a tender?

A

When the matter has already been settled.

85
Q

What happens if the counterclaim exceeds the jurisdiction of the District or Regional Magistrates Court?

A

Then the defendant must make an application to Court to:
1. Declare that the counterclaim exceeds the jurisdiction of the District or Regional Court
2. Stay the action ito section 47 of the Magistrates Court Act.

86
Q

What happens if the defendant fails to bring an application to stay the Magistrates Court Proceedings?

A

The Court may dismiss his counterclaim, unless the defendant abandons sufficient of the counterclaim to bring it within the jurisdiction of the MC or RC.

87
Q

What is a replication?

A

The plaintiff’s response to the defendant’s plea when the defendant has raised new averments which the plaintiff cannot allow to go unchallenged.

88
Q

When must a replication be delivered?

A

Within 15 days of receiving the defendant’s plea or else they will be barred from doing so later.

89
Q

What is an exception?

A

A legal objection to a pleading in that the pleading as it stands is fatally flawed on the face of the document.

90
Q

What is the effect of an exception?

A

It is a knockout punch that is able to bring proceedings to an early end without the need to go to trial.

91
Q

What happens if the exception is successful?

A

The court will grant the opposing party leave to amend the particular pleading, if the amendments are not made, the excipient can apply to court for judgment.

92
Q

What are the grounds on which an exception may be raised?

A
  1. Failure to disclose a cause of action/defence
  2. Vague and embarrassing
93
Q

What is the exception of vague and embarrassing?

A

It prejudices or embarrasses you in responding to them because there is a lack of clarity or ambiguity, serious material facts have been omitted and there are contradictions in the pleadings.

94
Q

What is the procedure after raising the exception of vague and embarrassing?

A
  1. Opposition is given 15 court days to remove the cause for the embarrassment
  2. Opposition can then amend their pleadings
  3. If they fail to take this opportunity, the excipient must deliver their exception within 10 court days.
95
Q

What is the requirement of prejudice in exceptions?

A

Cannot meet the opponent’s case properly.

96
Q

When can amendments be granted?

A

Any time prior to judgment either by consent or by court order.

97
Q

What is the procedure of obtaining an amendment?

A

The party seeking the amendment must serve a notice of intention to amend on all the parties setting out the precise amendments, what is to be deleted or inserted, calling upon them to deliver written objections to the proposed amendments within 10 days, failing which the amendments will be effected.

98
Q

What must an objecting party do?

A

Clearly and concisely state the grounds for the objection.

99
Q

What must the amending party do after receiving the notice of objection?

A

Apply to court within 10 days for leave to amend, which will be an interlocutory hearing.

100
Q

What is an interlocutory application?

A

An urgent request made to court to compel compliance with procedure and time periods in order to secure some end and purpose necessary and essential to the progress of a case.

101
Q

What will the court consider at an interlocutory hearing?

A
  1. Prejudice in granting the amendments
  2. Bona fides of the applicant
102
Q

What are the consequences of failing to lodge an exception?

A

The court may hold that there is no entitlement to costs even if there is success at trial.

103
Q

What are the consequences of a successful exception?

A
  1. Pleading that was the subject of the exception is disposed of
  2. Court will grant opposing party leave to amend the particular pleading
  3. Failure to do so, excipient may apply to court for judgment
  4. Finding at initial hearing of the exception that there is no basis in law for the claim or the defence will result in no amendment of the pleading and matter will end.
104
Q

What is an application to strike out?

A

A procedure that provides for an offending averment to be deleted or erased from the pleading in question

105
Q

What is a ‘step’ in the context of rules?

A

One that advances the proceedings one stage nearer to completion.

106
Q

What is an irregular step?

A

A step that is defective.

107
Q

What is the procedure to set aside an irregular step?

A
  1. The applicant may not himself take a further step in the matter after becoming aware of an irregular step
  2. Within 10 court days of the applicant’s becoming aware of the step, he must send a written notice to the opposing party pointing out the irregularity and give them 10 court days to remove the irregularity
  3. If the opposing does not remove the irregularity within the 10-day period, the applicant musts serve the application papers on the opposing side within 15 court days after the expirty of the 10-day period
  4. At the hearing, the court will make an order as to what is to be done about the irregular proceedings; ito rule 30(3) the court has a wide discretion.
  5. Ito rule 30(4), until a party has compiled with the order of the court in respect of the irregular proceeding, that party may not take any further steps in the matter.
108
Q

What is a condonation?

A

An application on notice to the other parties, supported by an affidavit in which the applicant must show good cause.

109
Q

What constitutes good cause in a condonation?

A

It depends on the circumstances of each case but the court will between the merits of the applicant’s case and the applicant’s default.

110
Q

What is the process of amending pleadings?

A
  1. Notice of intention to amend
  2. Objection to the amendment
  3. Giving effect to the amendment.

civil procedure (14 decks)

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