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ACTION/trial PROCEEDINGS

The parties in action proceedings are called the: Plaintiff (party who institutes the claim) and; Defendant (the party against whom claim is sought to be enforced).

Summons: Read: See: Rule 17 and Rule 18 of the High Court Rules Form 9 and Form 10 of the Annexures to the High Court Rules

What is a summons? A summons is a form of process sued out through the office of the Registrar and addressed to the sheriff, directing him to inform the defendant of the nature of the claim which the Plaintiff has against him and of the steps which the defendant may take should he desire to resist the plaintiffs claim, failing which judgment will be taken against him.1

There are two forms of Summons: Simple summons Combined Summons

The form of each type of summons differs, but the material distinction between the two is based upon the nature of the claim.

Simple Summons (Form 9) Used when the claim is for a debt or liquidated demand. a debt or liquidated demand is defined as:
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Herbstein and Van Winsen (3ed) 132

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A claim the amount of which is easily ascertainable, although not necessarily by precise mathematical calculation.2

Examples of a debt or liquidated demand would include a claim for the balance of a purchase price of goods sold and delivered, ejectment3, services rendered.

Combined summons (Form 10) Used when the claim is unliquidated. Used when the claim affects the status of parties, or for damages arising out of debt or breach of contract and the quantum thereof must be determined. Combined Summons is defined as: a Summons with a statement of claim annexed thereto in terms of Rule 17 (2)4

Rule 17 (2)

In every case where the claim is not for a debt or liquidated demand there shall be annexed to the summons a statement of the material facts relied

upon by the plaintiff in support of his or her claim, which statement shall inter alia comply with rules 18and 20.

Rule 17 (2) quoted above refers to combined Summons. A combined summons therefore consists of a Summons to which is attached a Particulars of claim.

Rule 17 (4) Every summons shall set forth (a) the name (including where possible the first name or initials) by which the defendant is
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SA Fire and accident Insurance company Ltd v Hickman 1955 2 SA 131 Hosten et.al Introduction to South African Law 1995 1155 4 Rule 1 of the High Court Rules

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known to the plaintiff, his or her residence or place of business and, where known, his or her occupation and, if he or she is sued in any representative capacity, such capacity,

Rule 18 rules relating to pleadings Each pleading shall contain: (1) A combined summons, and every other pleading except a summons, shall be signed by an advocate and/or an attorney, or if a party sues or defends personally, by such party. (2) The title of the action describing the parties thereto and the number assigned thereto by the registrar, shall appear at the head of each pleading, provided that where the parties are numerous or the title lengthy and abbreviation is reasonably possible, it shall be so abbreviated. (3) Every pleading shall be divided into paragraphs (including sub-paragraphs) which shall be consecutively numbered and shall, as nearly as possible, each contain a distinct averment. (4) Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his or her claim, defence or answer to any pleading, as the case may be, with sufficient particularity
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to enable the opposite party to reply thereto.

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Claim based on contract: Rule 18 (6) A party who in his or her pleading relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of the part relied on in the pleading shall be annexed to the pleading.

Damages other than personal injury Rule 18 (10) A plaintiff suing for damages shall set them out in such a manner as will enable the defendant reasonably to assess the quantum thereof

Damages where claim is for personal injury Rule 18 (10) A plaintiff suing for damages for personal injury shall specify the nature and extent of the injuries, and the nature, effects and duration of the disability alleged to give rise to such damages, and shall as far as practicable state separately what amount, if any, is claimed for (a) medical costs and hospital and other similar expenses; (b) pain and suffering; (c) disability in respect of
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(i) the earning of income (stating the earnings lost to date and the estimated future loss); (ii) the enjoyment of amenities of life (giving particulars).

Constructive desertion: Party relying on constructive desertion must set out the particulars thereof.

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EXAMPLE OF DAMAGES CLAIM AGAINST POLICE

PARTICULARS OF CLAIM
1. The PLAINTIFF is JOHN CANE, an adult male person, employed as a teacher at Bright Heal Primary School, No. 15 Blue Street, Block B, Rehoboth and residing at Erf 25, Amber Street, Rehoboth, Republic of Namibia.

2.

The DEFENDANT is THE MINISTER OF SAFETY AND SECURITYcited in his capacity as head of the Namibian Police c/o The Government Attorneys, 2nd Floor, Sanlam Building, Independence Avenue, Windhoek, Republic of Namibia. On or about the 15th day of November 2002 at the Rehoboth Police Station, Plaintiff was arrested without a warrant by members of the Namibian Police, to wit: Crainshaw. Sergeant J Ridiculous and Constable R

3.

4.

Thereafter the Plaintiff was detained at the Rehoboth Police Station for a period of four hours at the insistence of the aforesaid policemen and various other policemen whose names and ranks are unknown to the Plaintiff.

5.

At all material times hereto, the said policemen were acting within the course and scope of their employment as policemen with the Namibian Police.

6.

While being detained at the Rehoboth Police Station, the Plaintiff informed Sergeant J Ridiculous and Constable R Crainshaw that his motor vehicle

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was parked close by and requested them to bring his motor vehicle to the Police Station as there were some valuable items in his car.

7.

The Police officers refused, and upon the release of the Plaintiff, Plaintiff found that his vehicle was stolen. The vehicle was recovered by the

Plaintiff, but none of the items in the vehicle was ever recovered.

8.

As a result of the aforegoing, Plaintiff suffered damages in the amount of N$ 62 070.00, which is calculated as follows:

8.1

N$ 50 000.00 being damages for contumelia, deprivation of freedom and discomfort suffered by the Plaintiff; N$ 5 800.00 in respect of cash stolen from the Plaintiffs vehicle; N$ 900.00 in respect of a grinder stolen from the Plaintiffs vehicle; N$ 700.00 in respect of a grill stolen from the Plaintiffs vehicle; N$ 2 500.00 in respect of a video camera stolen from the Plaintiffs vehicle; N$ 170.00 in respect of a lasso stolen from the Plaintiffs vehicle; and N$ 500.00 in respect of ration for the Plaintiffs farm workers stolen from his vehicle.

8.2 8.3 8.4 8.5

8.6

8.7

9.

Proper notice of the proceedings has been given to the Defendant in terms of Section 39(1) of Act 19 of 1990, as amended.

10.

Notwithstanding due and proper demand the Defendant has failed, neglected and/or refused to pay the said amount or any part thereof to Plaintiff.

WHEREFORE PLAINTIFF CLAIMS:

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1.

Payment of the amount of N$ 62 070.00.

2.

Interest at 20% per annum on the aforesaid amount a temporemorae.

3.

Costs of suit.

4.

Further and/or alternative relief.

DATED at WINDHOEK this 7th day of MAY 2010.

____________________ KANIITA PARTNERS PER: J KAINIITA 66 BISMARCK STREET WINDHOEK

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COMBINED

SUMMONS

IN THE HIGH COURT OF NAMIBIA

CASE NO. I _______________

In the matter between: ABC BANK LIMITED and DANIE BLOU CONSTRUCTION CC DANIE BLOU ============================== First Defendant Second Defendant Plaintiff

To the Sheriff or his Deputy:

INFORM

1.

DANIE BLOU CONSTRUCTION CC, a Close Corporation, duly registered and incorporated in terms of the Close Corporations Act 26 of 1988, having its registered address situated at no.15 Fortune Street, Pioneerspark, Windhoek, Republic of Namibia. (Hereinafter called the First Defendant)

2.

DANIE BLOU, an adult male person whose chosen domiciliumcitandietexecutandi is situated at no. 20 Gray Street, Dorado Park, Windhoek, Republic of Namibia. (Hereinafter called the Second Defendant)

that

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11 ABC BANK LIMITED, an incorporated and registered commercial bank duly incorporated and registered as such in accordance with the company laws applicable in the Republic of Namibia having its registered offices and/or principal place of business at 2nd Floor, ABC Bank Centre, no. 20 Independence Avenue, Post Street Mall, Windhoek, Republic of Namibia.

(hereinafter called the Plaintiff),

hereby institutes action against DANIE BLOU CONSTRUCTION CC (First Defendant) and DANIE BLOU (Second Defendant) in which action the Plaintiff claims the relief and on the grounds set out in the particulars annexed hereto.:

INFORM the Defendants further that if Defendants dispute the claim and wishes to defend the action, the Defendants shall-

a)

Within 10 days of the service upon the Defendants of this Summons, file with the Registrar of this Court at WINDHOEK Notice of Defendants intention to defend and serve a copy thereof on the Attorneys of the Plaintiff, which notice shall give an address (not being a post office or poste restante) referred to in Rule 19(3) for the service upon the Defendants of all notices and documents in the action.

b)

Thereafter and within twenty days after filing and serving notice of intention to defend as aforesaid, file with the Registrar and serve upon the Plaintiff a Plea, Exception, Notice to Strike Out, with or without a Counter-Claim.

INFORM the Defendants further that if the Defendants fail to file and serve notice as aforesaid, Judgment as claimed may be given against the Defendants without further notice to the Defendants, or if having filed and served such notice, the Defendants fail to plead, except, make application to strike out or counter-claim, Judgment may be given against the Defendants.

AND immediately thereafter serve on the Defendants a copy of this Summons and return the same to the Registrar with whatsoever you have done thereupon.

DATED at WINDHOEK this

day of

2011. Page 11

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_____________________________ REGISTRAR OF THE HIGH COURT

__________________________ KANIITA& PARTNERS PER: J KANIITA LEGAL PRACTITIONER FOR PLAINTIFF 66 BISMARCK STREET WINDHOEK

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EXAMPLE OF BREACH OF CONTRACT

PARTICULARS OF CLAIM

3.

The Plaintiff is ABC BANK LIMITED,an incorporated and registered commercial bank duly incorporated and registered as such in accordance with the company laws applicable to the Republic of Namibia having its registered offices and/or principal place of business at 1st Floor, ABC Bank Centre, c/o Werner List Street and Post Street Mall, Windhoek, Namibia.

4.

The First Defendant is GRAY INVESTMENTS FORTY SIX CC a close corporation duly registered and incorporated as such in terms of the a Close Corporation Act 26 of 1988, having its registered address situated atNo. 128 Sea Street, Walvis Bay, Republic of Namibia

5.

The Second Defendant is PATRICK GREENan adult male person whose chosen domicilium citandi et executandi is No. 10, Bay Street, Walvis Bay, Republic of Namibia.

6.

The Third Defendant is LO RAINE BLUEan adult female person whose chosendomiciliumcitandi et executandi is No. 4, Short Street, Walvis Bay, Republic of Namibia.

7.

The Fourth Defendant is COENRAAD JOHANNES BLUEan adult male person whose chosendomiciliumcitandi et executandi is Street, Walvis Bay, Republic of Namibia. No. 4 Short

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8.

The First Defendant is indebted to the Plaintiff in the amount of N$204 934.81 in respect of monies lent and advanced during or about 19th June 2008 by the Plaintiff to the First Defendant at the latters special instance and request, which amount is now due, owing and payable, but which First Defendant, notwithstanding Plaintiffs proper demand thereto, refuses and/ or neglects to pay.

9.

The Second Defendant, Third Defendant and Fourth Defendant executed a Deed of Suretyship on the 19th of June 2008 at Walvis Bay in favour of the Plaintiff and bound themselves without limit as sureties and co-prinicipal debtors with the First Defendant for and in respect of the First Defendants aforesaid liability.

10.

A copy of the Deed of Suretyship is annexed hereto, marked A and should be read as if specifically incorporated herein.

11.

The parties expressly consented that any costs of recovery in terms of the said Deed of Suretyship shall be on the attorney and client scale, including collection commission.

WHEREFORE PLAINTIFF CLAIMS AGAINST THE FIRST DEFENDANT AND THE SECOND DEFENDANT, THIRD DEFENDANT AND FOURTH

DEFENDANT, JOINTLY AND SEVERALLY, THE ONE PAYING THE OTHER TO BE ABSOLVED AS FOLLOWS: (a) (b) Payment in the amount of N$204 934.81; Interest on the aforesaid amount at the rate of 11.25% per annum as from 26 February 2010 until date of final payment; (c) Costs on an attorney own client scale;
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(d)

Further and/or alternative relief.

Dated at WINDHOEK this 6TH day of APRIL 2010. _______________________ KANIITA& PARTNERS PER: J KANIITA 66 BISMARCK STREET WINDHOEK

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EXAMPLE OF AN ORAL AGREEMENT

1. The PLAINTIFF is JOHN CANE, an adult male person, employed as a teacher at Bright Heal Primary School, No. 15 Blue Street, Block B, Rehoboth and residing at Erf 25, Amber Street, Rehoboth, Republic of Namibia.

2.

The DEFENDANT is JOSHUA GREEN t/a Joshua Green Builders an adult male sole proprietor doing business as such at no. 52 Green Street, Windhoek, Republic of Namibia and residing at No. 17 Dream Street, Windhoek, Republic of Namibia. On or about the 2nd day of December 2002 and at Windhoek, the Plaintiff, and the Defendant, both acting personally, entered into an oral agreement. The following were express, alternatively implied, in the further alternative tacit material terms of the oral agreement:

3.

3.1

The Defendant would effect the new addition to the residence of the Plaintiff in terms of his quotation dated 2 December 2002. A copy of the quotation is attached hereto marked annexure A.

3.2

The Plaintiff would pay to the Defendant the amount of N$ 10 000.00 as deposit.

3.3

The Defendant would have completed the construction of the new addition to the residence of the Plaintiff on or before the end of January 2003.

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4.

Plaintiff duly complied with all his obligations in terms of the agreement between the parties and in terms thereof paid N$ 10 000.00 as a deposit to the Defendant on the 23rd day of December 2002.

5.

Defendant breached the agreement with the Plaintiff in that he failed to effect any of the construction work. Due to the Defendants breach of the oral agreement the Plaintiff in entitled to be refunded with the deposits in the amount of N$ 10 000.00, but notwithstanding demand, the Defendant fails and/or refuses to pay this amount to Plaintiff.

6.

WHEREFORE PLAINTIFF CLAIMS:

1.

Payment of the total amount of N$ 10 000.00.

2.

Interest at 20% per annum calculated on the amount of N$ 10 000.00 a tempore moraefrom 24 December 2002 until date of final payment.

3.

Costs of suit.

4.

Further and/or alternative relief.

DATED at WINDHOEK this 18th day of DECEMBER 2003.

____________________ KANIITA& PARTNERS PER: J KANIITA 66 BISMARCK STREET WINDHOEK

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SUMMONS
IN THE HIGH COURT OF NAMIBIA
CASE NO. I 201/2013

In the matter between:

WILKO KRAMER and DORINGO WEBER Defendant

Plaintiff

To the Sheriff or his Deputy:

INFORM DORINGO WEBER, an unemployed adult male person residing at no, 12 Bush Street, Gobabis, Republic of Namibia. (hereinafter called the Defendant) that WILKO KRAMER, an adult male person, residing at Farms Beenbreek No. 76 and Sib No. 69, Windhoek District, Windhoek, Republic of Namibia. (hereinafter called the Plaintiff) hereby institutes action against DORINGO WEBER in which action the Plaintiff claims: (a) Payment in the amount of N$ 84 258.00in respect of goods sold and delivered during or about 20 August 2005 by Plaintiff to Defendant at the latter's special instance and request, which amount is due and payable, but which Defendant, notwithstanding Plaintiff's proper demand thereto, fails and/or refuses to pay; Interest the initial amount due, being N$ 84 258.00 at the legal rate of 20% per annum as from date of service of summons; Costs of the suit;
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(b)

(c)

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(d)

Further and/or alternative relief.

INFORM the Defendant further that if the Defendant disputes the claim and wishes to defend the action, the Defendant shall within 10 (Ten) days of the service upon the Defendant of this Summons file with the Registrar of this Court at WINDHOEK notice of the Defendant's intention to defend and serve a copy thereof on the Attorneys of the Plaintiff which notice shall give an address (not being a post office or poste restante) referred to in Rule 19(3) for the service upon the Defendant of all notices and documents in the action. INFORM the Defendant further that if the Defendant fails to file and serve notice as aforesaid, Judgment as claimed may be given against the Defendant without further notice to the Defendant and immediately thereafter serve on the Defendant a copy of this Summons and return the same to the Registrar with whatsoever you have done thereupon. DATED at WINDHOEK this 14th day of JUNE 2006.

_____________________________ REGISTRAR OF THE HIGH COURT

________________________ ATTORNEY FOR PLAINTIFF KANIITA & PARTNERS 66 BISMARCK STREET WINDHOEK

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