I received summons for an out standing l...

Asked by Danford Damba on 14-09-2023 08:39:45
Question posted in the General Law category relating to Gauteng

I received summons for an out standing loan on 10 June 2021

I filed the intention to defend within the 10 days

Because we started engaging withthe plaintiff i did not file my answering affidavit.

In August 2023 i recieved a application for default judgement from the plaintiff based on the fact that i did not respond to the 10 June 2021 summons. 

My question is can the plaintiff apply for a default judgement if they did not serve me with a notice of bar first ? 

Message from the Lawyer

Posted by Att. Patrick on 14-09-2023 09:42:36

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. 

Whenever a defendant (like yourself) is in default of the delivery of a notice of intention to defend or of a plea, the plaintiff may apply for judgment by default.

The plaintiff sets down the application for default judgment for hearing upon at least five days’ notice of his intention to apply for default judgment to the party in default, provided that no notice of set down need be given to any party in default of delivery of notice of intention to defend.

However, you did deliver your notice of intention to defend.

As such notice of the hearing must be given to you because you defaulted in delivering your plea. <-- This notice which is given, is the notice of bar.

In your case, the plaintiff should have given you notice before applying for default judgment against you because you did deliver a notice to defend but you failed to deliver your plea. 

Message from the client

Thank you. So in this case where
1. I served notice to defend on time against the plaintiff.
2. I was served with application for default judgement without being served with the notice to bar

What is my defence ?
Is it 1. I prepare a special plea asking for the court to dismiss plaintiff's application as it is irregular before court. If so which clause do I use?
or 2. Should I include this irregularity under my bona fide defence section on my answering affidavit which I am preparing.?

Message from the Lawyer

Posted by Att. Patrick on 14-09-2023 10:19:23

You wouldn't file a special plea in relation to the application for default judgment. 

What you should do is to file an answering affidavit (in the application for default judgment) and explain your defence to the claim (i.e. your defence on the merits) and then you must ALSO say that the plaintiff has not complied with the rules for an application for default judgment in that it didn't comply with Rule 31(5) which requires a notice of bar be delivered. 

Answer Accepted

This answer was accepted on 14-09-2023 10:27:16

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