On the 21st of November 2019 my wife and...

Asked by RVBuson on 03-10-2021 10:48:45
Question posted in the Landlord Tenant Law category relating to Western Cape

On the 21st of November 2019 my wife and I appeared in court as defendants.

The plaintiff's attorneys applied for and was granted a sine die postponement because they had made a mistake in the Summons and needed time to correct it.

So far we have not received the amended summons.

What can we do to get the magistrate to set a new trial date?

Answer to the Question

Posted by Att. Patrick on 03-10-2021 13:11:14

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

I assume that you were appearing in the Magistrates Court, because you ask how you can get the "magistrate" to set a allocate a new date.

I the trial was postponed sine dies, that means that it is simply postponed and the parties will need to apply for a new trial date - like you've said. 

From the postponement, the plaintiff will have 10 court days to file a notice of intention to amend it's summons, and you will then have 10 court days to object to the proposed amendment - if you wish.

If you don't wish to object, then the plaintiff will have a further 10 days to file the amended summons.

You will then have 10 days to file an amended plea - if you wish.

Only then will pleadings be closed, once again, and only then can the plaintiff (or you) apply for a new trial date through the office of the clerk of the court.  The clerk will assign a trial date, and then you will receive a notice of set down.

In short, you'll need to wait the approximate 30 court days (set out above) before you can apply, but this assumes that they will amend their summons timeously, and that you won't object, and that you won't necessarily need to amend your plea - which you might need to do! 

Att. Patrick

Answer Accepted

This answer was accepted on 07-10-2021 09:46:04

Information provided by client

I repeat, on the 21st of November 2019 Plaintiff attorney was granted a sine die postponement to amend the summons. Nearly two years later he has not yet done so! what can I do to bring this matter to an end? The plaintiff is just waiting for me to die. I am 77 years old

Answer to the Question

Posted by Att. Patrick on 04-10-2021 15:57:15

With respect, you never told me that it was 2 years later. 

If you are not happy to let the whole summons wait until the plaintiff decides to move it forwards, then you can apply to court for a trial date. Then, at the trial, you need to say "I do not agree on any further postponement!"

What you can also do is to write to the plaintiff's attorney and demand that they file their notice to amend, failing which you will apply for a trial date yourself.

Really, your only option is to apply for the trial date yourself.

Most defendants in your situation would, in my experience, do nothing and just let the litigation peter out...

Information provided by client

How do I apply for a trial date? Do I go and see a magistrate? Or do I ask the clerk of the court to put the case on the roll and on that date I ask the Magistrate to set the trial date without notifying the Plaintiff's attorney? Or do I ask the Clerk of the court for a trial date?

Answer to the Question

Posted by Att. Patrick on 06-10-2021 09:49:46

You need to go see the clerk of the court and ask the clerk to assign you a trial date. The clerk sometimes has the Magistrates' trial roll calendar with him, but sometimes the clerk might have to get the date from the magistrate.

Once the clerk gives you a date, you would then need to serve a notice of set down on the plaintiff's attorney. But you can only do that once you've got a date. 

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