In terms rule Uniform Rule 41A2a states ...

Asked by Danford Damba on 31-08-2023 13:51:07
Question posted in the General Law category relating to Gauteng

In terms rule Uniform Rule 41A(2)(a) states that:

“In every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation.”

I need help with the following 

I recieved summons  of claim due to defaulting  on the 28 of May 2021.The summons had notice opposing referral for mediation attched. Reason given was that the defendant was in default and therefore unable to fulfill their obligations under their agreement and therefore the plaintiff can not be expected to bear the mediation costs alone.On the 1st of August 2023 i received an Application for default Judgment in terms of Rule 31 (5) and 46A . The default judgement is based on the premises that i was already served summons referred to in item 2, which i received in 2021.The default judgment application has no document mentioning whether the plaintiff agrees or opposes mediation Can under Uniform Rule 41A complete Form 27 and ask for mediation. My circumstances have changed and afforded a chance i can pay my bond as well propose a monthly payments to settle my arrears. 

Further information relating to Question:

Correction:There is no default judgement, There is an application for default judgement which i have filed a notice to oppose on time. Now i need help to understand if can propose mediation without compromising my case or should i proceed with the affidavit with my grounds for defence of which i got some assistance earlier

Message from the Lawyer

Posted by Att. Patrick on 31-08-2023 17:13:50

The default judgment application is an interlocutory application and therefore does not need to attach a second mediation notice. 

You can DEFINITELY still file a mediation notice saying that you suggest that the matter be referred to mediation if you want, without compromising your defence. 

You should however, in addition, oppose the application for default judgment, and you should deliver your plea in due course. 

Message from the client

Will delivering my defense not take away.the possibility of mediation as form 27 is supposed to be before the defense plea? My 15 days laps tomorrow. So should i deliver both at the same time?

Message from the Lawyer

Posted by Att. Patrick on 31-08-2023 20:18:25

Yes, you should deliver both at the same time. 

The mediation notice is delivered on a without prejudice basis, while the plea is "on the record"

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