MAGISTRATES' COURTS: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Increased Jurisdiction Order

Magistrates' Grade II (Increased Powers of Punishment) Order

Rules of the Magistrates' Courts

INCREASED JURISDICTION ORDER

(under section 60(6))

(19th November 1976)

ARRANGEMENT OF PARAGRAPHS

   PARAGRAPH

   1.   Citation

   2.   Increased jurisdiction

G.N. 444, 1976

1.   Citation

   This Order may be cited as the Increased Jurisdiction Order.

2.   Increased jurisdiction

   Chief Magistrates, Senior Magistrates and Magistrates Grade I shall have power to try all offences contrary to the Penal Code, other than offences contrary to sections 34 to 38, 42, 53, 62 to 65, 200, 202, 208, 217 to 219, 222 and 224, and attempts to commit such offences.

MAGISTRATES' GRADE II (INCREASED POWERS OF PUNISHMENT) ORDER

(under section 61(6))

(29th September, 1993)

ARRANGEMENT OF REGULATIONS

   1.   Citation

   2.   Increased powers of punishment

S.I. 99, 1993.

1.   Citation

   This Order may be cited as the Magistrates' Grade II (Increased Powers of Punishment) Order.

2.   Increased powers of punishment

   Magistrates Grade II are hereby authorised to award sentences of imprisonment up to and including 5 years or to impose fines up to and including P10,000, or both.

RULES OF THE MAGISTRATES' COURTS

(under section 68)

(4th March, 2011)

ARRANGEMENT OF ORDERS

   ORDER

PART I
CIVIL PROCEDURE RULES

   1.   Citation, Application and Interpretation

   2.   Messenger of the Court or Other Person Effecting Service

   3.   Clerk of the Court

   4.   Representation of Parties

   5.   Poor Litigants

   6.   Service of Process, Notices and Documents

   7.   Edictal Citation

   8.   Substituted Service

   9.   Summons Commencing Action

   10.   Counter-Claims

   11.   Appearance to Defend

   12.   Judgment by Consent and Default Judgment

   13.   Assessment of Damages

   14.   Payment into Court

   15.   Exceptions, Applications to Strike Out and Special Defences

   16.   Summary Judgment

   17.   Plea

   18.   Reply to Plea

   19.   Discovery, Inspection and Production

   20.   Medical Examinations

   21.   Things in general

   22.   Expert Testimony

   23.   Admissions

   24.   Setdown

   25.   Trial

   26.   Withdrawal and Settlement

   27.   Dismissal for Want of Prosecution

   28.   Record of Proceedings

   29.   Applications and Petitions

   30.   Arrests, Interdicts, Attachments, and Mandamenten van Spolie

   31.   Subpoenas

   32.   Interest

   33.   Execution

   34.   Interpleader

   35.   Civil Imprisonment

   36.   Garnishee Proceedings

   37.   Rescission and Variation of Judgments and Orders

   38.   Civil Appeals

   39.   Assessors

   40.   Costs

   41.   Taxation of Costs

   42.   Review on Taxation

   43.   Court Fees

   44.   Messenger Fees

   45.   Case Management: Allocation of Cases and Case Management Conferences

   46.   General

   47.   Tariff of Allowances Payable to Witnesses in Civil Proceedings in the Magistrates' Courts

PART II
CRIMINAL PROCEDURE RULES

   48.   Criminal Case Record

   49.   Assignment of Criminal Cases

   50.   Criminal Applications

   51.   Arraignment Procedure

   52.   Plea of Guilty

   53.   Procuring Evidence for Trial

   54.   Trial Procedure

   55.   Hostile Witnesses

   56.   Production and Proof of Previous Convictions

   57.   Address by the Parties on Sentencing

   58.   Private Prosecutions

      Schedule 1

      Schedule 2

      

S.I. 107, 1970,
S.I. 64, 1971,
S.I. 79, 1971,
S.I. 117, 1971,
S.I. 130, 1982,
S.I. 46, 1986,
S.I. 8, 1991,
S.I. 13, 2011.

PART I
CIVIL PROCEDURE RULES

ORDER 1
CITATION, APPLICATION AND INTERPRETATION

   1. These Rules may be cited as the Rules of the Magistrates' Courts.

   2. (1) Order 17 and 25 of these Rules shall be applicable only if-

   (a)   the plaintiff does not apply for summary judgment;

   (b)   the plaintiff, having applied for summary judgment, has his application dismissed; or

   (c)   an order is made giving the defendant leave to defend.

   (2) The forms contained in Schedule 1 to these Rules may, where applicable, be used with such variations as the circumstances may require, but non-compliance with this rule shall not in itself be a ground for exception or defence.

   (3) All process of the court for service or execution, and all documents or copies to be filed of record, shall be on A4 paper of good quality.

   (4) All process of the court shall bear the name and address of the party suing out.(5) The clerk of the court shall, before issuing any process which is not substantially in the form required by these Rules, refer it to the magistrate who may direct him either to issue or to refuse to issue the process.

   (6) The provisions of subrule (5) shall not apply to-

   (a)   any matter which the opposite party may except under these Rules; or

   (b)   endorsements of particulars of claim under Order 9 otherwise than as to costs, fees and charges.

   3. (1) In these Rules, unless the context otherwise requires-

   "clerk of the court" includes any assistant clerk and any person appointed to act as such clerk or assistant;

   "commissioner" means a commissioner of interrogatories;

   "company" means an incorporated or registered company in terms of the Companies Act;

   "copy" means a true and correct copy endorsed by the clerk of the court;

   "court house" means the building in which the magistrate's court is usually held;

   "default judgment" means a judgment entered or given in the absence of pleadings or appearance by the party against whom it is made in terms of Order 12 of these Rules;

   "deliver", except in Order 6, means to file the original with the clerk of the court and to serve a copy on the opposite party;

   "delivery" means filing and serving;

   "endorse" means to sign and date stamp;

   "filing" means filing with the clerk of the court;

   "give security" means to give security to the satisfaction of the clerk of the court, by-

   (a)   payment into court of the amount in question; or

   (b)   giving of a security bond by a party either with someone as his surety who is approved by the clerk of the court, or by two or more persons who are so approved;

   "Guardian's Fund" means the fund established under section 101 of the Administration of Estates Act;

   "judgment" includes any decision, decree, determination, finding, sentence or order of the court;

   "Messenger of the Court" includes a court bailiff, a deputy sheriff and any person specially approved of by the court to effect any particular service;

   "money" includes all coined money, whether current in Botswana or not, and all banknotes, bank-drafts, cheques, orders, warrants or authorities for the payment of money;

   "notice" means notice in writing;

   "owner" when used with reference to property or acts, includes corporations of all kinds and any other associations of persons capable of owning or holding property; they also, when relating to Government property, include the President;

   "party" means any person who is a party to the proceedings;

   "pending matter" means a matter in which a summons has been issued and which has not been withdrawn, discontinued or dismissed and in which judgment has not been given;

   "place of security" means the place appointed by the magistrate for the safekeeping of money, securities or other articles of value;

   "plaintiff", "defendant", "applicant", "respondent" and "party" include, for the purpose of service, notice, appearance, endorsement, signature and payment of moneys out of court, or out of the hands of the messenger, the attorney appearing for any such party and the mayor, chairman, town clerk, secretary or similar officer of any local authority or similar body nominated by it for the purpose;

   "property" includes everything animate or inanimate, corporeal or incorporeal, capable of being the subject of ownership;

   "Registrar" means the Registrar of the High Court and includes a Deputy Registrar or a Senior Assistant Registrar performing the duties of the Registrar; and

   "valuable security" includes any document which is the property of any person and which is the evidence of the ownership of any property, or of the right to recover or receive any property.

   (2) Where anything is required by these Rules to be done within a particular number of days or hours, a Saturday, Sunday or public holiday shall not be counted as part of that period.

   (3) Computation of time shall commence from the time of service for anything that requires filing and service under these Rules.

   (4) All distances shall be calculated over the shortest route reasonably available in the circumstances.

ORDER 2
MESSENGER OF THE COURT OR OTHER PERSON EFFECTING SERVICE

   1. Every messenger who is not an officer within the Public Service Act shall give security to the satisfaction of the Registrar for the due fulfilment of his duties and for the due and punctual disposal of all moneys which shall come into his hands by virtue of his office.

   2. (1) Except as otherwise provided in the Act or these Rules, the process of the court shall be served or executed, as the case may be, through the messenger.

   (2) Service or execution of process of the court shall be effected without any avoidable delay by a messenger or other person effecting service.

   (3) The messenger shall, where there is resistance to the due service or execution of the process of the court or where resistance is reasonably anticipated, have power to call upon any member of the Botswana Police Service for assistance.

   3. (1) A messenger or any other person effecting service shall endorse on or annex to all process entrusted to him for service or execution, a return showing the date and the manner of service and the result of execution; and shall immediately return the said process to the clerk of the court.

   (2) A messenger or any other person effecting service shall, as soon as is practicable after service, file with the clerk of the court a return or affidavit of service stating that-

   (a)   service has been duly effected and the date, time and place of such service; or

   (b)   he has been unable to effect service and specify the reason for such inability.

   (3) The return of service shall be as near as possible to Form 8 in Schedule 1.

   (4) The affidavit under subrule (2) shall be as near as possible to Form 9 set out in Schedule 1.

ORDER 3
THE CLERK OF THE COURT

   1. (1) The clerk of the court shall keep a book to be called the Civil Record Book and shall enter in it the following particulars-

   (a)   the number of the matter;

   (b)   the names of the parties and their attorneys, if any;

   (c)   the cause of the action;

   (d)   the date of issue of summons;

   (e)   the dates of entry of appearance and of filing subsequent pleadings;

   (f)   the date or dates of hearing, if any;

   (g)   the date and the terms of any judgment and whether by default, consent or after trial; and

   (h)   any remarks required by these Rules or by the special circumstances of the matter.

   (2) In addition to the Civil Record Book, the clerk of the court shall, where applicable, keep these particulars in electronic form through the Court Record Management System which shall be updated as soon as entry has been made in the Civil Record Book.

   2. (1) The clerk of the court shall number a summons or an application not relating to a pending matter with a consecutive number, station code and the year.

   (2) The clerk of the court shall enter the action or application in the Civil Record Book under that number and, where applicable, in electronic form.

   (3) Every document served or delivered afterwards in the action or application, or in any subsequent case in continuation of any such application, shall be marked with such number and the magistrate's reference by the party delivering it and shall not be received by the clerk of the court until so marked.

   3. (1) All documents delivered to the clerk of the court to be filed of record and all recordings of the proceedings, pre-trial conferences and minutes of judicial case management made by the court shall be filed of record under the number of the respective action or application.

   (2) Any person entitled to such records may apply to the clerk of the court for copies of such records upon payment of the prescribed fees.

   4. (1) It shall also be the duty of the clerk of the court-

   (a)   to sign and issue all such process of the court as may be sued out;

   (b)   to notify the plaintiff immediately by post or otherwise that the defendant has-

      (i)   consented to judgment; or

      (ii)   made payment into court of the amount claimed or any part thereof before entry of appearance to defend;

   (c)   to assist in drafting any process of court upon request by any party;

   (d)   to note on the notice of attachment all costs incurred by the judgment creditor;

   (e)   to collect all court fees and fines imposed by the court which shall be paid by him directly to the Government Revenue Collector; and

   (f)   to receive and deposit all payments made into court in terms of Order 14 to the Government Revenue Collector.

   (2) The Clerk of the Court shall notify the plaintiff of a consent to judgment under subrule (1) in a form as near as possible to Form 10 set out in Schedule 1.

   5. Any act required to be done by the clerk of the court may be done by a magistrate except that a magistrate shall in no case draft any affidavit, pleadings or process for any party or receive revenue.

ORDER 4
REPRESENTATION OF PARTIES

   1. (1) A party may institute or defend any legal proceedings either in person or by a legal practitioner.

   (2) A local authority, company or other incorporated body may institute proceedings through an officer nominated by it for that purpose.

   (3) A partnership or group of persons associated for a common purpose may institute proceedings through a member nominated by it for that purpose.

   (4) Any person acting under subrule (1), (2) or (3) shall not be entitled to recover any costs unless such person is a legal practitioner.

   2. (1) A legal practitioner shall not appear or lodge any court proceedings for a party unless he has filed a power of attorney with the clerk of the court.

   (2) Notwithstanding subrule (1), a power of attorney shall not be filed by the Attorney General, the Director of Public Prosecutions or any counsel acting for the Attorney General or the Director of Public Prosecutions in any matter in which the Attorney General or the Director of Public Prosecutions is acting in his capacity as such for or on behalf of the government of Botswana or for a Government Department.

   3. Any person appearing for a company, incorporated body, local authority, voluntary association or institution shall file a resolution with the clerk of the court authorising him to appear for such party.

   4. (1) The court may stay an action on application by an executor, trustee, guardian or other competent person where a party has become incompetent to continue an action.

   (2) The action shall be stayed until an executor, trustee, guardian or other competent person has been appointed in his place, or until the incompetence of that party ceases to exist.

   (3) If a party dies while an action is ongoing, the court may, on application, order that the executor, trustee, guardian or other competent person substitute the party who is dead.

ORDER 5
POOR LITIGANTS

   1. (1) Any person who desires to sue or defend as a poor litigant may apply to the court in writing for leave to sue or defend as a poor litigant.

   (2) The application shall set out fully the grounds of action or of defence on which the applicant intends to rely and particulars of his means.

   2. The court may upon an application under rule 1 (1)-

   (a)   examine the applicant on oath as to whether he has a prima facie right of action or defence, and as to his means;

   (b)   require the applicant to call further evidence as to his means and whether he has a prima facie right of action or defence, as the case may be;

   3. If the court is satisfied that the applicant has a prima facie right of action or of defence, and is not possessed of means sufficient to enable him to pay the court fees and the charges of the messenger or other person effecting service, the court may order-

   (a)   that the process of the court shall be issued and be served free of charge for the applicant;

   (b)   that an attorney be appointed to act for such applicant; or

   (c)   that the clerk of the court shall, without charge, draft process, affidavits, notices and other documents as may be required to comply with these Rules.

   4. (1) If the poor litigant succeeds and is awarded costs against his opponent, he shall, subject to taxation, be entitled to include and recover in such costs his attorney's costs and also the fees and charges so remitted.

   (2) If the poor litigant recovers either the principal debt, interest or costs, he shall first pay and make good, pro rata, all such costs, fees and charges.

   (3) If the poor litigant does not succeed or does not recover upon a judgment in his favour, no fees shall be taken from him by the attorney so appointed to act for him.

ORDER 6
SERVICE OF PROCESS, NOTICES AND DOCUMENTS

   1. (1) Service of any process, notice or other document of which service is required shall be effected by any adult person who has no personal interest in the cause and is able to explain its nature and contents.

   (2) Notwithstanding subrule (1), service of an interdict, warrant of arrest, warrant of committal or warrant of attachment of persons or property or of any process, notice or other document affecting the liberty of the respondent shall be effected only by a messenger.

   (3) Any process, notice or other document to be served shall comprise of the original of the process, notice or other document together with as many copies as there are persons to be served.

   2. Process, notices or other documents shall not be served on a Sunday or a public holiday, except an interdict, warrant of arrest, warrant of committal and a warrant of attachment of persons or property which may be executed on any day, at any time and at any place.

   3. (1) Where the application to the court is for an order affecting the liberty of the respondent, the process shall be served by delivery of a copy to the respondent personally, unless the court shall, for good cause shown, give leave for such process to be served in some other specified manner.

   (2) All other process shall, subject to the provisions of this Order, be served upon the person affected by delivery of a copy in one or other of the following manners-

   (a)   to the said person personally or to his duly authorized agent;

   (b)   at his residence or place of business to some person apparently not less than 16 years of age and apparently residing at or employed there;

   (c)   at his place of employment to some person apparently not less than 16 years of age and apparently employed with or by the person to be served;

   (d)   if the person to be served has chosen an address for service, at the address so chosen; or

   (e)   by registered post, where the plaintiff has given written instructions to that effect.

   (3) A document in any legal proceedings shall be served on a company as follows-

   (a)   by delivery to a person named as a Director of the company on the Register of Companies;

   (b)   by delivery to an employee of the company at the company's head office or principal place of business;

   (c)   by leaving it at the company's registered office or address for service;

   (d)   by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings; or

   (e)   in accordance with any agreement made with the company.

   (4) Where service has been effected in the manner prescribed by paragraph (b), (c), (d) or (e) of subrule (2), the court or clerk of the court may, if there is reason to doubt that the process served has come to the actual knowledge of the person to be served, and in the absence of satisfactory evidence, treat such service as invalid.

   (5) The messenger or other person effecting service shall show to the person upon whom process is served the original of the process except where service has been effected by post, in which case the original may be inspected in the record of proceedings.

   4. (1) Where the person to be served keeps his residence or place of business closed, and thus prevents the messenger or other person effecting service from serving the process, it shall be sufficient service to affix a copy of the process to the outer or principal door of such residence or place of business.

   (2) Where the messenger or other person effecting service is unable, after diligent search, to find at the residence or the address for service of the person to be served either that person or such other person as is described in rule 3 (2) (b), it shall be sufficient service to affix a copy of the process to the outer or principal door of such residence or place of business.

   5. (1) Service of process in an action where no relief, other than costs is claimed except an order for ejectment from certain premises or a judgment for rent, may be made by affixing a copy of the process to the outer or principal door or on some other conspicuous part of the premises in question if it cannot be effected in the manner prescribed in rule 3.

   (2) Service of an interpleader summons where a claim is made to any property attached in execution under process of the court may be made on the party to be served or upon the attorney of record.

   6. Where two or more persons are to be served with the same process, service shall be effected upon each, except-

   (a)   in the case of a partnership, when service may be effected by delivery at the office or place of business of such partnership, or if there is no office or place of business, then by service on any member of the partnership in any of the manners stated under rule 3 or 4;

   (b)   persons sued in their capacity as trustees of an insolvent estate, liquidators of a company, executors, curators or guardians, where service may be effected by delivery to any one of them in any of the manners already stated under rule 3;

   (c)   syndicate, unincorporated company, club, society, church, public institution or public body, where service may be effected by delivery at the local office or place of business of such body or, if there is no office or place of business, on the chairman, secretary or similar officer in any of the manners already stated under rule 3 or 4.

   7. (1) Service of a subpoena requiring the attendance of a witness may be effected in any of the manners specified in rule 3 or 4, at a reasonable time before attendance is required.

   (2) Service of any notice, request, statement or other document which is not process of the court may be effected by delivery by hand at the address given for service, or by facsimile or electronic mail address as given in the summons or appearance to defend, or by sending it by registered post to the postal address given.

   (3) An address for service, postal address, facsimile or electronic mail address given may be changed by delivery of notice of a new address or facsimile, and such service may be effected at the new address.

   (4) Service by registered post under this Order shall be deemed to have been effected on the fourth day after the postmarked date on the receipt for registration where the recipient is within a radius of a 100km from the court issuing the process; or, on the seventh day after the postmarked date on the receipt for registration where the recipient is outside the radius of 100km.

   8. Where the court is satisfied that service cannot be effected in any manner prescribed in these Rules and the matter is within its jurisdiction, it may make an order allowing service to be effected in any manner that it may prescribe.

   9. (1) Where the service to be effected is that of-

   (a)   a summons for civil imprisonment;

   (b)   an order made ex parte which calls upon the respondent to show cause at a time stated or limited in the order;

   (c)   an interpleader summons; or

   (d)   notice to a judgment debtor under Order 36, service shall be effected at least three days plus one additional day for each 10km distance of the place of service from the office of the clerk of the court not exceeding 21 days in total before the time stated or limited for the appearance of the party served.

   (2) Except as otherwise provided, notice of application to the court shall be served at least three days before the time appointed for the hearing of the application.

   10. (1) Where a party has requested to be served by registered post other than under rule 7, service shall be effected by the messenger or other person placing a copy in an envelope, addressing and posting it by prepaid registered letter to the address of the party to be served.

   (2) The messenger or other person effecting service by registered post shall make an application to the Post Office requiring to be furnished with an acknowledgement of receipt form by the addressee as provided in the Post Office (Postal and Franking) Regulations.

   (3) An acknowledgement of receipt form duly completed shall be sufficient acknowledgement of receipt for the purposes of service; and if no such form is received, the messenger or other person effecting service shall State that fact in his return or affidavit of service.

   (4) The registered letter shall have on the envelope a handwritten or typed notice as follows-

   "This letter must not be re-addressed. If delivery is not effected before ....................20...................... it must be delivered to the messenger of the ................... Magistrates' Court by ...........................(or other person effecting service) at ........................................... (address of person effecting service).

   11. All process shall be valid throughout Botswana.

   12. Service shall be proved in one of the following manners-

   (a)   where service has been effected by the Messenger of the Court, by the return of service of such Messenger of the Court;

   (b)   where service has not been effected by the Messenger of the Court, by an affidavit of the person who effected service, or in the case of service on the Attorney General or a member of his staff, the Government of Botswana, on any Minister, or any other officer of such Government in his capacity as such, by the production of a signed receipt.

   13. Nothing in these Rules shall authorize the service of any summons or process outside Botswana without the leave of a magistrate.

ORDER 7
EDICTAL CITATION

   1. Except with leave of the court, no process whereby proceedings are instituted shall be served outside Botswana.

   2. If process whereby proceedings are instituted is to be served outside Botswana, the person desiring to obtain leave to effect service may apply for such leave to a magistrate.

   3. (1) Any person desiring to obtain leave to serve outside Botswana shall make an application to the court setting out concisely-

   (a)   the nature and extent of his claim;

   (b)   the grounds upon which it is based;

   (c)   the grounds upon which the court has jurisdiction to entertain the claim; and,

   (d)   the manner of service which the court is asked to authorize.

   (2) If the manner of service is other than personal service, the application shall further state the last known whereabouts of the person to be served and the inquiries made to ascertain his present whereabouts.

   4. (1) Upon receipt of an application under rule 3 the court may-

   (a)   make an order as to the manner of service;

   (b)   order the time within which notice of intention to defend is to be given; or

   (c)   order any other step that is to be taken by the person to be served.

   (2) Where service by publication is ordered, it shall be in accordance with Form 5 set out in Schedule 1 and signed by the clerk of the court.

   5. Any person desiring to obtain leave to effect service outside Botswana of any process whereby proceedings are instituted in Botswana may request such leave at any hearing at which the court is dealing with the matter, and the court may act upon such information as may be given and may make such order as it may deem fit.

   6. Service of any process or of any document in a foreign country shall be effected by any person authorized under the law of that country to serve therein.

   7. Service of any process or document in a foreign country shall be proved by a certificate of the person effecting service in which he identifies himself, states that he is authorized under the law of the country to serve process or document therein, and that the process or document in question has been served as required by the law of that country, and sets forth the manner and the date of such service.

ORDER 8
SUBSTITUTED SERVICE

   1. If service of process whereby proceedings are instituted cannot be effected in any of the manners prescribed in Order 6, the person desiring to obtain leave to effect service by substituted service may apply for such leave to a magistrate.

   2. (1) Any person desiring to obtain leave to effect service by substituted service shall make an application to the court setting out concisely-

   (a)   the nature and extent of his claim;

   (b)   the grounds upon which it is based;

   (c)   the grounds upon which the court has jurisdiction to entertain the claim; and,

   (d)   the manner of service which the court is asked to authorize.

   (2) If the manner of service is other than personal service, the applicant shall further state the last known whereabouts of the person to be served and the inquiries made to ascertain his present whereabouts.

   3. Upon receipt of an application under rule 2 the court may-

   (a)   make an order as to the manner of service;

   (b)   order the time within which notice of intention to defend is to be given; or

   (c)   order any other step that is to be taken by the person to be served.

   4. Where service by publication is ordered, it shall be in accordance with Form 6 set out in Schedule 1 and signed by the clerk of the court.

   5. (1) Any person desiring to obtain leave to effect service by substitution may-

   (a)   make an application for such in terms of rule 1; or,

   (b)   request such leave at any hearing at which the court is dealing with the matter, in which event, no papers need be filed in support of such request.

   (2) Subject to paragraph (b) of subrule (1), the court may act upon such information as may be given from the bar.

   (3) The court may require any other information and make such order as it deems fit.

ORDER 9
SUMMONS COMMENCING ACTION

   1. (1) Process of the court for commencing an action shall be by summons calling upon the defendant to-

   (a)   enter an appearance within-

      (i)   seven days after service if the defendant is served within a radius of a 100km from the office of the clerk of the court; or

      (ii)   21 days after service if the defendant is outside a radius of a 100km of the office of the clerk of the court; and

   (b)   answer the claim of the plaintiff, with a warning to the defendant of the consequences of failure to answer.

   (2) The summons shall be endorsed and issued by the clerk of the court.

   2. (1) The summons shall, before issue, contain-

   (a)   particulars of claim, and where applicable, all other supporting documents;

   (b)   consent to judgment;

   (c)   appearance to defend.

   (2) The originating summons shall-

   (a)   be signed by the plaintiff or his attorney of record;

   (b)   bear the full address where the plaintiff will accept service of process in the action; and

   (c)   bear the postal address of the plaintiff or his attorney.

   3. (1) The particulars of claim shall show-

   (a)   the nature and amount of the claim;

   (b)   the rate of interest and the amount claimed up to the date of the summons; and

   (c)   the amount which, if the action is undefended, is claimed for attorney's costs and court fees.

   (2) The messenger or other person effecting service shall indicate the amount of his charges on the summons on service.

   (3) The particulars shall also show-

   (a)   any abandonment of part of the claim as provided under section 24 of the Act;

   (b)   any amount admitted as due to the defendant as provided under section 25 of the Act; or

   (c)   any set-off as provided under section 28 of the Act.

   (4) The notice of abandonment in subrule (3) (a) shall be as near as possible to Form 46 set out in Schedule 1.

   (5) Where the summons contains more than one claim, the particulars of each claim and the relief sought in respect of each claim shall be stated separately.

   (6) Where the particulars contain more than 100 words, they may be contained in an annexure served with the summons and the annexure shall be taken to be part of the summons.

   (7) The clerk of the court may refuse to issue a summons in which an excessive amount is claimed for attorney's costs or court fees.

   4. The summons shall also show-

   (a)   the full names of the defendant as known to the plaintiff, the defendant's sex, residence or place of business and, where known, his occupation and, if the defendant is sued in a representative capacity, the capacity in which he is sued;

   (b)   the full names, sex, occupation and residence or place of business of the plaintiff;

   (c)   where the plaintiff sues as cessionary, the name, address and description of the cedent at the date of the cession and the date of the cession;

   (d)   where the plaintiff sues in a representative capacity, the capacity in which he sues; and

   (e)   where the plaintiff sues upon an instrument which was necessary to be presented, the fact and date of presentment of the instrument.

   5. A summons may contain more than one claim, either alternatively or otherwise, but claims which are not expressed to be alternative shall not be mutually inconsistent or be based on an inconsistent averment of fact.

   6. (1) Any two or more persons claiming or being sued as co-partners may sue or be sued in the name of the firm of which such persons were co-partners at the time of the accruing of the cause of action; and, in any such case, any party may, by notice require from the party so suing or being sued, a statement of the names and places of residence of the persons who were at the time of the accruing of the cause of action co-partners in that firm.

   (2) A party receiving a notice under subrule (1) shall, within five days after receipt, deliver statement required.

   (3) When the names of the partners are so declared, the action shall proceed in the same manner and the same consequences and shall, in all respects, follow as if the parties had been named in the summons; but all the proceedings shall nevertheless continue in the name of the firm.

   (4) Any person carrying on business in a name or style other than his own name may sue or be sued in such name or style as if it were a firm name; and so far as the nature of the case will permit all the provisions of this rule relating to proceedings against firms shall apply.

   (5) The provisions of this rule shall also apply with the necessary modifications to an unincorporated company, syndicate or association.

   (6) The court may, where an action has been instituted by or against a firm, a person carrying on business in a name or style other than his own name or by an unincorporated company, syndicate or association, in the name of the firm or in such name or style or in the name of the company, syndicate or association, as the case may be, on the application of the other party to the action made at any time either before or after judgment, on notice to a person alleged to be a partner in such firm or the person so carrying on business, or a member of such company, syndicate or association, declare such person to be a partner, the person so carrying on business or a member, as the case may be.

   (7) Subrule (3) shall apply to a declaration made under subrule (6) as if the name of such person had been declared in a statement delivered under subrule (2).

   7. (1) The plaintiff may, subject to this rule and before service, amend or alter a summons.

   (2) Any alteration or amendment of a summons before service, and whether before or after issue, shall, before the summons is served, be initialled by the clerk of the court in the original summons, and, until so initialled, such alterations and amendments shall have no effect.

   (3) An originating summons may, after service, be amended with the leave of the court-

   (a)   on application on notice; or

   (b)   at the hearing, subject to such order as to adjournment and costs as shall be just; and the court shall take into consideration whether adequate prior notice of intention to apply for such amendment has been served upon the party affected.

ORDER 10
COUNTER-CLAIMS

   1. (1) In counter-claims it shall not be necessary to enter an appearance to defend.

   (2) All times which, in the case of an originating claim run from the date of appearance shall, in the case of a counter-claim, run from the date of delivery of the claim.

   2. A counter-claim shall be made within seven days of filing of a notice if appearance to defend by delivery of a plea or a statement in writing giving such particulars of the counter-claim as are required for originating claims.

   3. (1) A defendant may set up by a counter-claim any right or claim to any amount against the plaintiff-

   (a)   whether liquid or illiquid; or

   (b)   whether or not it arises out of or is connected with the subject matter of the originating claim.

   (2) A claim under subrule (1) (b) shall, if it is within the jurisdiction of the court, have the same effect as a cross action, so as to enable the court to pronounce a final judgment in the same action, both on the originating claim and on the counter claim.

   (3) A defendant delivering a counter-claim may, by notice delivered with the counter-claim or within two days after the delivery of the counter-claim, apply to the court to pronounce that the counter-claim exceeds its jurisdiction and to stay the action as provided under section 29 of the Act.

   (4) Where the court either on its own motion or on objection by the plaintiff has pronounced that the counter-claim exceeds its jurisdiction, the defendant may immediately or by notice delivered within two days after the pronouncement, apply for stay of the proceedings.

   (5) If an application for stay is not made as provided under subrule (3) or (4), or, having been made, is dismissed, the court shall on the application of the plaintiff or otherwise of its own motion dismiss the counter-claim pronounced to have exceeded its jurisdiction, unless the defendant abandons part of the claim to bring it within the jurisdiction of the court as provided under section 24 of the Act.

   4. Where the originating and the counter-claim proceed to trial under Order 25, each action may be tried separately, but judgment shall be given for both at the same time.

   5. A defendant shall not make a counter-claim in a counter-claim of the plaintiff.

   6. Where an originating claim is withdrawn, stayed, discontinued or dismissed, it shall be competent to proceed separately with the counter-claim, if any.

ORDER 11
APPEARANCE TO DEFEND

   1. (1) A defendant intending to defend an action shall, within the period limited by the summons, enter an appearance to defend by delivery of a notice that he intends to defend.

   (2) In an action against the Government an appearance to defend may be entered at any time within 21 days after service of the summons.

   (3) Notwithstanding the provisions of subrules (1) and (2), an appearance to defend, even though entered after the expiry of the period mentioned in the summons, or the period specified under subrule (2), shall be effective where-

   (a)   a request for default judgment has not yet been filed; or

   (b)   the request for default judgment and the appearance to defend are filed on the same day.

   (4) Where the appearance to defend and the request for default judgment are filed on the same day, the plaintiff shall be entitled to costs of the request for default judgment as if the matter had been an undefended action.

   2. The notice of appearance to defend shall be signed by the defendant or his legal representative, and shall state the full address for service as well as the postal address of the person who has so signed, unless the addresses are the same.

   3. The clerk of the court shall, at the request of an illiterate defendant who has not employed an attorney, enter an appearance for him.

   4. The entry of an appearance shall be without prejudice to any objection or exception which the defendant may have.

ORDER 12
JUDGMENT BY CONSENT AND DEFAULT JUDGMENT

   1. (1) A defendant may, before entry of appearance to defend, consent to judgment by-

   (a)   signing the form of consent contained in the original summons;

   (b)   lodging with the clerk of the court a consent in a form similar to that in the original summons duly signed by him and by two witnesses whose addresses are also given; or

   (c)   lodging with the clerk of the court the copy of the summons served upon him with the form of consent contained in the summons duly signed by him.

   (2) Where a defendant consents to judgment before service it shall not be necessary to serve the summons upon him and he shall not be liable to pay fees for service.

   (3) A defendant who consents to judgment before the expiration of the time limited for appearance shall not be liable to pay judgment charges.

   (4) A defendant may, after entry of appearance, consent to judgment by delivering a consent signed by him or by his attorney in a form similar to that contained in the summons.

   (5) If the amount for which consent is given is less than the amount claimed in the summons, the defendant may enter an appearance to defend or may continue his defence for the balance of the claim.

   (6) Notwithstanding a judgment upon consent in subrule (5), the action may proceed as to the balance, and it shall in that event be in all subsequent respects an action for such balance.

   2. (1) A magistrate may order that any consent to judgment be heard in open court and the court may-

   (a)   call upon the plaintiff to produce evidence to satisfy the court that the consent has been signed by the defendant and is a consent to the judgment sought;

   (b)   enter judgment in terms of the defendant's consent;

   (c)   enter judgment in terms of the plaintiff's request or for as much of the claim as has been established to its satisfaction.

   (2) Where one or more of several defendants in an action consent to judgment, judgment may be entered against the defendant or defendants who have consented to judgment and the plaintiff may proceed on such judgment without prejudice to his right to continue the action against the other defendant or defendants.

   3. (1) If the defendant fails to enter appearance to defend within the period limited by the summons and has not consented to judgment, the plaintiff may lodge with the clerk of the court a written request for default judgment against the defendant for-

   (a)   any sum not exceeding the sum claimed in the summons;

   (b)   costs of the action;

   (c)   interest from the date of the summons to the date of judgment at the rate specified in the summons or, if no rate is specified, at the rate of 10 per cent per annum; or

   (d)   for other relief claimed in the summons.

   (2) The written request for default judgment under subrule (1) shall be as near as possible to Form 11 under Schedule 1.

   4. (1) When the defendant has failed to enter appearance to defend or when the defendant has consented to judgment the clerk of the court shall place the request for default judgment or the consent to judgment before a magistrate who may, subject to subrule (2) and rules 5 and 6 summarily grant judgment in terms of the plaintiff's request or of the defendant's consent, as the case may be.

   (2) If it appears to the magistrate that the defendant intends to defend the action but that his entry of appearance is defective in respect that the notice-

   (a)   has not been properly delivered;

   (b)   has not been properly signed;

   (c)   has not set out the postal address of the person signing it or an address for service as prescribed under Order 11 rule 2; or

   (d)   exhibits any two or more of such defects or any other defect of form, he shall not grant judgment against the defendant and the matter shall proceed to the initial case management conference.

   5. Judgment in default of appearance to defend shall not be entered in an action, in which the summons has been served by registered post unless there has been filed a return or affidavit of service by the messenger or the person effecting service and an original or copy of the acknowledgement of receipt form by the addressee.

   6. (1) The court shall grant interim judgment pending the assessment of damages in a request for judgment on a claim for unliquidated damages under this rule.

   (2) The plaintiff shall furnish the court with evidence either oral or by affidavit stating the nature and extent of the damages suffered by him and the court shall assess the amount recoverable as damages and enter judgment for the plaintiff.

   7. A magistrate may order that a request for default judgment be heard in open court and the court may-

   (a)   call upon the plaintiff to produce such evidence either written or oral in support of his claim as it may deem necessary;

   (b)   enter judgment in terms of the plaintiff's request or for as much of the claim as has been established to its satisfaction;

   (c)   refuse judgment; or

   (d)   make such other order as may be just.

   8. When one or more of several defendants in an action fail to enter appearance, judgment may be entered against the defendant or defendants who are in default and the plaintiff may proceed on such judgment without prejudice to his right to continue the action against the other defendant or defendants.

   9. Particulars of all judgments granted under this rule shall be recorded in the Civil Record Book and where applicable in electronic form.

ORDER 13
ASSESSMENT OF DAMAGES

   1. Where judgment is given for damages, the damages shall be assessed by the magistrate or, if so ordered by the magistrate, by the clerk of the court.

   2. Where judgment in default of appearance is sought under Order 12 rule 6 (1) for unliquidated damages or for the value of goods, the application may be made ex parte and shall be accompanied by evidence on affidavit establishing and justifying the damages or value, as the case may be, for which judgment is sought.

   3. In considering an application under rule 2, the magistrate, or the clerk of the court if so ordered by the Magistrate, may-

   (a)   grant an order for such damages or value as he considers proved on affidavit; or

   (b)   call for additional evidence, either oral or further on affidavit before he grants the order.

   4. When an order is granted by the clerk of the court under rule 3-

   (a)   the plaintiff may, within 14 days, of the making of the order apply ex parte to the magistrate for reassessment of the damages assessed by the clerk of the court; or

   (b)   the defendant may, within 14 days of becoming aware of the judgment, apply on motion to the magistrate for reassessment of the damages assessed by the clerk of the court, failing either of which, the judgment granted by the clerk of the court shall become final.

   5. The attendance of witnesses and the production of documents before the magistrate or clerk of the court may be compelled by subpoena and the provisions of Order 25 as to proceedings at a trial shall, apply with any necessary modifications.

   6. Where any judgment as is referred to in rule 2 is given in default of appearance or in default of defence, and the action proceeds against other defendants, the damages under the judgment shall be assessed at the trial unless the magistrate otherwise orders.

ORDER 14
PAYMENT INTO COURT

   1. (1) A defendant may, at any time, pay into court unconditionally the amount claimed in the summons and all further proceedings in the action shall cease, except for the recovery of any costs not included in the payment.

   (2) A defendant paying money into court after entry of appearance shall, at the same time deliver a notice stating that the amount is paid unconditionally.

   (3) A plaintiff may, within 10 days of notice of such payment into court accept the amount paid and further proceedings shall cease except for the recovery of costs not included in the payment.

   2. (1) A defendant may, without prejudice, pay any amount into court by way of offer in settlement of the plaintiff's claim.

   (2) A defendant paying money into court after appearance has been entered shall at the same time deliver a notice in a form as near as possible to Form 12 set out in Schedule 1 stating that the amount paid is an offer of settlement.

   (3) A plaintiff may, within 10 days of notice of such payment into court, accept the amount paid and the proceedings shall cease.

   3. (1) The clerk of the court shall cause to be paid out to the plaintiff any money paid into court under rules 1 and 2.

   (2) A plaintiff entitled to payment under subrule (1) shall be entitled to recover from the defendant the costs incurred by him up to the time of payment into court, together with costs of obtaining payment.

   (3) Where the defendant has made payment in offer of settlement and states in his notice that the amount paid is inclusive of costs, the plaintiff shall be entitled to receive those costs as if ordered by the court.

   4. Where the matter goes for trial on the basis that the plaintiff refused an offer for settlement and the court subsequently finds that the plaintiff is not entitled to more than what he is offered, it shall-

   (a)   grant judgment in favour of the plaintiff with costs incurred before the offer for settlement was made;

   (b)   grant the defendant costs incurred after the offer for settlement.

   5. A defendant admitting part of the plaintiff's claim shall, on the day of filing his plea to the balance pay into court the amount so admitted.

   6. Where the claim is for damages or compensation, the amount of a tender or payment into court shall not be disclosed to the court or in the pleadings until after judgment on the claim has been given.

   7. The order for costs shall be made only after disclosure of the amount tendered or paid into court and the court, in awarding costs, shall proceed as provided under rule 4.

ORDER 15
EXCEPTIONS, APPLICATIONS TO STRIKE OUT AND SPECIAL DEFENCES

   1. (1) A defendant shall, at the time of entry of appearance, deliver particulars of any exception to the summons.

   (2) Where the particulars of the exception have been delivered, the magistrate shall deal with such exception in terms of rule 3 (3).

   (3) A defendant failing to deliver particulars within the period stated in the summons may not raise any exception without leave of the court, which shall only be granted on application and by notice to the plaintiff.

   2. (1) The only exceptions which may be taken by the defendant are that-

   (a)   the summons does not disclose a cause of action;

   (b)   the summons is vague and embarrassing;

   (c)   the summons does not comply with the requirements of Order 9;

   (d)   the copy of the summons served upon the defendant differs materially from the original.

   (2) Any other defence shall be raised by means of a plea.

   (3) Where more than one claim is made in a summons, exception may be taken to any of such claims.

   3. (1) The defendant shall, prior to taking the exception, deliver a notice giving the plaintiff five days within which to remove the cause of complaint.

   (2) A defendant raising an exception to the summons shall apply to the court for directions, setting out clearly and concisely the ground upon which the exception is founded.

   (3) The court may at the initial case management conference-

   (a)   dismiss the exception and make an order as to the filing of subsequent pleadings;

   (b)   uphold the exception, and-

      (i)   dismiss the action;

      (ii)   allow such amendment as may be necessary to remove the cause of complaint in which event the subsequent pleadings shall be filed and delivered in terms of paragraph (a); or

   (c)   make such other order as it deems just to ensure the expeditious disposal of the case.

   4. (1) A defendant may apply to strike out any two or more claims in a summons which, not being in the alternative are-

   (a)   mutually inconsistent;

   (b)   based on inconsistent averments of fact; or

   (c)   argumentative, irrelevant, superfluous or contradictory.

   (2) The provisions of rule 1 shall apply, with the necessary modifications, to the delivery of particulars of a motion under subrule (1).

   5. (1) Where the defendant has delivered particulars of an exception or an application to strike out before the hearing of any application for summary judgment, the applications shall be heard at the same time.

   (2) If an application for summary judgment is not made, then the provisions of rule 3 (3) shall apply with the necessary modification.

   (3) Evidence may be called by either party to support or to repel an exception that the summons does not comply with the requirements of Order 9.

   (4) In sustaining any dilatory plea, the court may order the proceedings to be stayed and if thereafter the ground of stay is removed it may, on application, discharge the stay.

ORDER 16
SUMMARY JUDGMENT

   1. (1) Where a defendant has entered an appearance to defend, the plaintiff in the originating claim may apply to the court for summary judgment if the claim is only-

   (a)   on a liquid document;

   (b)   for a liquidated amount in money;

   (c)   for the delivery of specified movable property;

   (d)   for ejectment; or

   (e)   for any two or more such matters as are described in paragraph (a), (b), (c) or (d); in addition to costs.

   (2) Such an application shall be filed within three days after entry of appearance to defend and shall be as near as possible to Form 14 set out in Schedule 1.

   (3) The application shall be accompanied by-

   (a)   a Notice of Set down;

   (b)   in the case of an illiquid claim, a copy of an affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no bona fide defence to the action and that appearance has been entered solely for the purpose of delay; or

   (c)   in the case of a liquid claim, a copy of the liquid document on which the claim is founded, and the application and notice of set down shall be served on the defendant not less than three days before the date set for hearing.

   (4) The affidavit in subrule 3 (b) shall be in a form as near as possible to Form 15 set out in Schedule 1.

   2. (1) At least a day before the date set for the hearing of an application for summary judgment, the defendant may, in order to stop the summary judgment application-

   (a)   pay into court to abide the result of the action the sum sued for, together with such sums for costs as the court may determine; or

   (b)   give security to satisfy any judgment which may be given against him in the action.

   (2) At least a day before the date set for the hearing of an application for summary judgment, the defendant may deliver an affidavit to satisfy the court that he has a bona fide defence to the action or bona fide counterclaim against the plaintiff.

   (3) The affidavit may, by leave of the court, be supplemented by oral evidence.

   (4) The affidavit and evidence referred to under subrule (2) and (3) shall fully disclose the nature and grounds of the defence or counterclaim.

   (5) At the hearing of an application for summary judgment the plaintiff shall not adduce any other evidence other than by the affidavit already filed or the liquid document sued upon.

   (6) Where the court has allowed oral evidence, any person testifying shall not be cross-examined by the plaintiff, but may, after examination by the defendant be examined by the court.

   3. (1) If the defendant does not pay into court or find security or satisfy the court, summary judgment may be entered for the plaintiff.

   (2) If the defendant pays into court or finds security or satisfies the court, the court shall give leave to defend, and the action shall proceed to trial.

   4. Where leave to defend has been granted by the court, and the matter goes for trial, the evidence given at a summary judgment application shall not be admissible unless by consent of the parties.

   5. If, on the hearing of an application for summary judgment, it appears to the court that a defendant is entitled to leave to defend and another defendant is not entitled, or that a defendant is entitled to leave to defend as to only part of the claim, the court may-

   (a)   give leave to defend to a defendant so entitled and enter judgment against a defendant not so entitled;

   (b)   give leave to defend as to such part of the claim and enter judgment against the defendant as to the balance of the claim; or

   (c)   make both orders in terms of paragraphs (a) and (b).

ORDER 17
PLEA

   1. (1) Subject to subrules (2) and (3), the defendant shall, within seven days after entry of appearance, deliver a statement in writing to be called a plea.

   (2) Where-

   (a)   documents or further particulars have been delivered;

   (b)   an order is made for the dismissal of an exception or application to strike out; or

   (c)   an amendment of the summons is allowed by the court at the hearing of an exception or application, a plea shall be filed within the periods specified in a schedule by the magistrate at an initial case management conference.

   (3) Where-

   (a)   an application for summary judgment is dismissed; or

   (b)   an order giving leave to defend is granted, a plea shall be filed within the periods given by the magistrate in the judgment.

   2. If the defendant is the Government, a plea shall be delivered within 14 days after entry of appearance.

   3. The plea shall be dated and signed by the defendant or his attorney.

   4. The defendant in his plea shall either admit, deny, confess and avoid or state that he has no knowledge of all the material facts alleged in the particulars to the originating or counter-claim and shall clearly and concisely state the nature of his defence and all the material facts on which it is based.

   5. (1) Every allegation in the particulars to the originating or counter-claim shall be dealt with by the defendant specifically.

   (2) Every allegation not so dealt with shall be taken to be admitted.

   (3) Every allegation of fact by the plaintiff which is inconsistent with the plea shall be presumed to be denied.

   6. (1) For the purposes of this rule "defendant" includes a person upon whom a summons has been served and who alleges that he is not the defendant cited in the summons and enters appearance to defend on that ground.

   (2) The court may on the hearing of any such defence order costs to be paid to or by such person as if he were a party to the action.

   (3) If such a defence is sustained the court, instead of dismissing the summons, may, if moved by the plaintiff, allow any necessary amendment and order that it be served upon the real defendant.

   7. Where a tender is pleaded as to part of the amount claimed, the plea shall specify those parts of the plaintiff's claim to which the tender relates.

   8. (1) A plea of tender shall not be admissible unless the amount of the alleged tender is paid into court on the delivery of the plea, if not already paid to the plaintiff.

   (2) The amount referred to under subrule (1) shall be paid out to the plaintiff only on the order of the court or upon the written consent of the parties.

   9. A tender after the commencement of the action shall include an undertaking to pay the plaintiff's costs up to the date of the tender.

   10. (1) Where payment into court is alleged in the plea, the particulars of the plea shall show whether the payment is unconditional, by way of settlement or by way of tender.

   (2) If the nature of the payment is not specified it shall be deemed to be by way of tender after commencement of the action.

   11. Any defence which can be adjudicated upon without the necessity of going into the main case may be addressed at the initial case management conference.

   12. (1) A plaintiff may, within seven days of delivery of the plea or further particulars and with or before delivering a reply, deliver particulars of an exception to the plea.

   (2) The plaintiff raising an exception to the plea shall clearly and concisely state the grounds upon which it is founded.

   13. A plaintiff may except to the plea on the ground that-

   (a)   it does not disclose a defence to the plaintiff's claim; or

   (b)   it is vague and embarrassing.

   14. (1) The court shall not uphold any exception unless it is satisfied that the plaintiff would be prejudiced in the conduct of his case if the plea were allowed to stand.

   (2) The court shall not hear an exception that the plea is vague and embarrassing unless the plaintiff has, prior to taking the exception, delivered a notice giving the defendant an opportunity of removing the cause of the complaint.

   15. Where particulars have been delivered by the defendant in terms of a schedule made by the magistrate at the initial case management conference, they shall be deemed to be included in the plea.

   16. The provisions of rule 12 shall apply with necessary modification to the delivery of particulars of an application to strike out.

   17. An exception to or application to strike out matter from a plea may be set down for hearing by the court at an initial case management conference.

   18. If such an exception or application is sustained and no application for amendment is made or, having been made is refused, the court may, if the plea discloses no defence, give judgment for the plaintiff.

ORDER 18
REPLY TO PLEA

   1. The plaintiff may, within seven days after the filing and service of the plea or further information in respect of the plea, deliver a statement in writing to be called a reply.

   2. The rules applicable to the plea shall, with the necessary modifications, apply to the reply.

   3. Where the plaintiff does not deliver a reply within seven days of receipt of the plea, he shall be taken to have denied all the allegations of fact contained in the plea.

   4. The pleadings shall be deemed to be closed where-

   (a)   the reply has been delivered;

   (b)   where no reply is delivered after the expiry of seven days.

ORDER 19
DISCOVERY, INSPECTION AND PRODUCTION

   1. (1) The court may, at a case management conference, make an order directing the parties to make discovery of the documents, plans, diagrams, models or photographs which are or have been in their possession or control relating to the action which they intend to use, which tend to prove or disprove their cases.

   (2) Where the court makes an order for discovery, the parties shall list the documents, plans, diagrams, models or photographs in their possession or control.

   (3) The court shall, in the same order, specify the period within which the lists shall be delivered.

   (4) If privilege is claimed for any of the documents, plans, diagrams, models or photographs listed, such documents, plans, diagrams, models or photographs shall be separately listed and the ground on which privilege is claimed in respect of each shall be set out.

   (5) A book, document, plan, diagram, model or photograph not so disclosed may not be used for any purpose on the trial of the action by the party in whose possession or control it is in without the leave of the court in terms as to adjournment and costs as may be just, but the other party may call for and use such book, document, plan, diagram, model or photograph in the cross- examination of a witness.

   2. Upon delivery of the lists the parties shall inspect and exchange copies of all books, documents, plans, diagrams, models or photographs disclosed in the lists.

   3. (1) A party may make an application, by notice to the other party and a third party for an order for the production of books, documents, plans, diagrams, models or photographs in the possession and control of the third party for inspection.

   (2) A notice for the production of books, documents, plans, diagrams, models or photographs for inspection under subrule (1) shall be in a form as near as possible to form 16 set out in Schedule 1.

   (3) The court may grant or refuse the application as it deems just and equitable.

   4. (1) Where a party having been given a chance to discover, inspect or produce books, documents, plans, diagrams, models or photographs and does not object to their production in evidence, such books, documents, plans, diagrams, models or photographs shall be received in evidence upon their mere production without further proof.

   (2) If the party objects to such books, documents, plans, diagrams, models or photographs such books, documents, plans, diagrams, models or photographs may be proved at the hearing of the action.

   5. (1) A party may, by notice, require the other party and a third party to produce books, documents, plans, diagrams, models or photographs in the possession and control at trial.

   (2) A notice for the production of books, documents, plans, diagrams, models or photographs shall be in a form as near as possible to Form 18 set out in Schedule 1.

ORDER 20
MEDICAL EXAMINATIONS

   1. (1) Any party to proceedings in which damages or compensation in respect of alleged bodily injury is claimed may require a party claiming such damages or compensation whose state of health is relevant to the determination of such damages or compensation to submit to an examination by one or more duly registered medical practitioners.

   (2) Any party requiring another party to submit to such examination shall give a notice specifying-

   (a)   the nature of the examination required;

   (b)   the medical practitioner or medical practitioners by whom it will be conducted;

   (c)   the place, time and the date of the examination;

   (d)   a requirement for the other party to submit to the examination at such place, date and time; and

   (e)   that the other party may have his medical practitioner present at the examination.

   (3) The date for the examination shall not be less than 14 days from the date of receipt of such notice.

   (4) The notice shall be accompanied by a remittance in respect of the reasonable expense to be incurred by the other party in attending the examination.

   (5) The amount of the expense incurred shall be tendered on the same scale as for a witness in a civil suit.

   (6) The amount of the expense shall also include-

   (a)   if such other party is physically incapable of proceeding on his own to attend the examination, the cost of his travelling by motor vehicle and, where required, the reasonable cost of a person attending upon him; or

   (b)   an amount not exceeding his salary, wage or other remuneration per day which he will actually forfeit where such other party will actually forfeit any salary, wage or other remuneration during the period of his absence from work.

   (7) Any amount paid by a party in terms of subrules (5) and (6) shall be costs in the cause, unless the court otherwise directs.

   2. (1) Any party receiving a notice referred to under rule 1 (2) shall, within three days of receipt of the notice, notify the other party in writing of the nature and grounds of any objections which he may have in relation to-

   (a)   the nature of the proposed examination;

   (b)   the medical practitioner or medical practitioners by whom the examination is to be conducted;

   (c)   the place, date or time of the examination; or

   (d)   the amount of the expenses tendered to him.

   (2) Where the party receiving the notice under rule 1 (2) objects to-

   (a)   the place, date or time of the examination, he shall suggest an alternative place, date or time for the examination;

   (b)   the amount of the expenses tendered, furnish particulars of such increased amount as he may require.

   (3) If the party receiving the notice under rule 1 (2) does not deliver any objection within three days, he shall be deemed to have agreed to the examination on the terms set by the party giving the notice.

   (4) If the party receiving the objection is of the opinion that the objection or any part of it is not well founded, he may apply to the court to determine the conditions upon which the examination, if any, is to be conducted.

   3. Any party to proceedings in which damages or compensation in respect of alleged bodily injury is claimed may by notice, at any time after the examination, require any party claiming such damages or compensation to make available to the other party within 10 days any medical report, hospital record, X-ray photograph, or other documentary information of a like nature relevant to the assessment of such damages or compensation.

   4. (1) If the party refuses or objects to submit to a medical examination or to release a medical report, hospital record, X-ray photograph or other documentary information, the other party may make a verbal application at a case management conference for an order.

   (2) If it appears from any medical examination carried out either by agreement between the parties or in pursuance of any notice given in terms of this Order, or any determination made by the court that any further medical examination by any other medical practitioner is necessary or desirable for the purpose of obtaining full information on matters relevant to the assessment of such damages or compensation, any party may require a second and final examination in accordance with the provisions of this Order.

   5. Any party requesting a medical examination shall-

   (a)   cause the person making the medical examination to give a full report in writing of the results of such medical examination and the opinions that he formed as a result;

   (b)   after receipt of the report and on request, furnish any party with a certified copy of that report; and

   (c)   bear the expense of the medical examination.

ORDER 21
THINGS IN GENERAL

   1. (1) Where the state or condition of a thing of any nature, whether movable or immovable is relevant to the decision of any matter at issue in any action, any party may at any stage not later than 10 days before the hearing, give notice requiring the other party to make the thing or its fair sample available for inspection or examination.

   (2) A notice for inspection under subrule (1) shall be in a form as near as possible to Form 17 set out in Schedule 1.

   (3) The party requested to submit the thing for inspection or examination may require the party so requesting to specify the nature of the inspection or examination for which such thing is to be submitted, and shall not be bound to submit the thing if he will be materially prejudiced by reason of the effect of the inspection or examination upon such thing.

   (4) In the event of a dispute whether the thing should be submitted for inspection or examination, a party may make a verbal application at a case management conference for an order for such inspection or examination.

   2. Any party requesting an inspection or examination of a thing shall-

   (a)   cause the person making the inspection or examination to give a full report in writing of the results of the inspection or examination, and the opinions that he formed as a result;

   (b)   after receipt of the report and upon request, furnish any party with a certified copy of the report; and

   (c)   bear the expense of the inspection or examination and the expense shall form part of the party's costs.

   3. (1) A party may, by notice, require the other party and a third party to produce any thing in the possession and control at trial.

   (2) A notice for the production of books, documents, plans, diagrams, models or photographs shall be in a form as near as possible to Form 19 set out in Schedule 1.

ORDER 22
EXPERT TESTIMONY

   1. (1) The court shall, at a case management conference, give directions as to the calling of expert testimony.

   (2) The directions shall include-

   (a)   the time within which documents relating to expert testimony shall be delivered;

   (b)   the time within which the summary of such expert testimony shall be delivered.

   2. (1) Where a party having been given a chance to discover, inspect or produce an expert opinion or summary does not object to the opinion or summary's admission in evidence, such opinion or summary shall be received in evidence upon its mere production without further proof.

   (2) If the party objects to an expert opinion or summary, the opinion or summary shall be proved at the hearing of the action.

ORDER 23
ADMISSIONS

   1. (1) Any party to an action may, before or during trial, admit-

   (a)   the truth of the whole or any part of the action or application of any other party;

   (b)   any document; or

   (c)   any specific fact or facts.

   (2) The admissions shall, if made before trial, be by way of application on three days notice to the other party and, if made during trial, be verbal.

ORDER 24
SETDOWN

   1. The date or dates of hearing of a trial or an opposed motion or petition shall be set by the magistrate at a case management conference.

   2. The clerk of the court shall, not later than five days after the set down, give not less than 14 days' notice to all parties to the proceedings of the dates of hearing.

   3. The issuance of such notice shall also operate to set down for trial any counter-claim made by the defendant.

   4. Notwithstanding the provisions of this Order, any party to contested proceedings may, for good cause, apply to the magistrate on notice to all the parties, for a date or dates for hearing and the magistrate may, on such application, fix a date or dates of hearing with the consent of all the parties having regard to the convenience of the court.

ORDER 25
TRIAL

   1. The trial of an action shall take place at the courthouse from which the summons was issued, unless the court otherwise orders.

   2. (1) If there is no appearance by or for the defendant when a case is called for trial, the plaintiff may prove his claim so far as the burden of proof lies upon him and judgment shall be given accordingly in so far as he has discharged such burden.

   (2) If the defendant appears and the plaintiff or his counsel fails to appear, the defendant shall be entitled to an order dismissing the plaintiff's claim with costs but may lead evidence with a view to satisfying the magistrate that final judgment should be granted in his favour, and the magistrate, if so satisfied, may grant such judgment.

   (3) If, when a trial is called, there is no appearance for either party, the magistrate shall, unless he sees good reason to the contrary, strike the cause out of the roll.

   (4) The provisions of this Rule shall apply to any person making any claim whether by way of counter-claim or third party claim.

   3. Any judgment which is not final obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the magistrate, upon such terms as the magistrate may deem fit.

   4. A witness who is not a party to the action may be ordered by the court-

   (a)   to leave the courtroom until his evidence is required or after his evidence has been given; or

   (b)   to remain in the courtroom after his evidence has been given until the trial is terminated or adjourned.

   5. The court may, before proceeding to hear evidence, require the parties to give a brief summary of their cases and the issues to be proved.

   6. (1) If-

   (a)   the burden of proof is on the plaintiff, he shall first adduce his evidence; or

   (b)   absolution from the instance is not then decreed, the defendant shall then adduce his evidence.

   (2) Where such burden of proof is on the defendant, the defendant shall first adduce his evidence, and the plaintiff shall thereafter adduce his evidence.

   (3) Where the burden of proving one or more of the issues is on the plaintiff and that of proving others is on the defendant, the plaintiff shall first call his evidence on any issues for which proof is upon him, and may then close his case, and the defendant shall then call his evidence on all the issues for which proof is upon him.

   (4) A third party who is not a party to the originating claim shall be entitled to address the magistrate in opening his case and shall lead his evidence after the evidence of the plaintiff where he is co-plaintiff and after the defendant where he is co-defendant.

   (5) A third party in an inter-pleader claim may lead evidence before or after the evidence of the plaintiff or defendant depending on the issue to be proved.

   (6) Where there is a dispute as to which party shall lead evidence first, the court shall direct which party shall first adduce evidence.

   (7) Either party may, with the leave of the court, adduce further evidence at any time before judgment; but such leave shall not be granted if it appears to the court that such evidence was intentionally withheld out of its proper order.

   (8) After the evidence on behalf of both parties has been completed, the party who first adduced evidence may first address the court and thereafter the other party, and the party who first adduced evidence may reply.

   7. (1) The court may, at any time before judgment, on the application of either party or of its own motion, recall any witness for further examination.

   (2) Any witness may be examined by the court, as well as by the parties.

   8. (1) Where the court has authorized the evidence of any witness to be taken on interrogatories, such interrogatories shall be filed within four days of the order, and cross-interrogatories within four days thereafter.

   (2) The parties or their witnesses may, where the court authorizes, give evidence by video conference.

ORDER 26
WITHDRAWAL AND SETTLEMENT

   1. (1) A plaintiff or applicant desiring to withdraw an action or application against all or any of the parties before or after service of summons shall deliver a notice of withdrawal and may tender costs.

   (2) The notice of withdrawal shall be in a form as near as possible to Form 13 set out in Schedule 1.

   (3) Any party served with a notice of withdrawal may within five days thereafter apply to the court for an order that the party so withdrawing shall pay the applicant's costs of the action or withdrawn application, together with the costs incurred in so applying.

   (4) Where the plaintiff, in the notice of withdrawal, embodies a consent to pay the costs, such consent shall then have the force of an order of court, and the clerk of court shall tax the costs on the request of the defendant.

   (5) Any party may, by delivery of a notice, abandon any specified claim, objection, exception or defence pleaded by him; and such notice shall be taken into consideration in taxing costs.

   2. (1) The parties may, at any time before judgment, file a settlement agreement which may be made an order of the court.

   (2) The court shall, where a settlement agreement is signed by all the parties to the action, make an order that the action has been settled on the terms set out in the settlement agreement, and all further proceedings in the action shall be permanently stayed.

   (3) After a consideration of the settlement agreement the court may-

   (a)   enter judgment as specified in terms of the settlement;

   (b)   amend, set aside the settlement or give such directions for the further prosecution of the action as it may deem fit; or

   (c)   make such order as may be just as to costs.

ORDER 27
DISMISSAL FOR WANT OF PROSECUTION

   1. If a summons in any action has been served and the plaintiff has not, within six months, taken further steps in the prosecution of the action, the clerk of the court shall list the matter before a magistrate on a motion date for dismissal for want of prosecution on that date, and serve notice on all parties to the action.

   2. On the action being called, the magistrate shall dismiss the action with costs, unless sufficient reason is shown to the contrary.

   3. If the magistrate decides not to dismiss the case, he shall impose conditions for the future conduct of the proceedings and give directions for the expeditious disposal of the case.

   4. The provisions of this Order shall, with the necessary modifications be applicable to Motion Proceedings.

ORDER 28
RECORD OF PROCEEDINGS

      Minutes of court proceedings shall be made of-

   (a)   any judgment given by the court;

   (b)   any viva voce evidence given in court;

   (c)   any objection made to any evidence received or tendered; and

   (d)   the proceedings of the court generally, including the record of any inspection in loco.

   2. The court shall also mark each document put in evidence and note such mark on the record.

   3. The minutes and marks may be made by the clerk of the court or the presiding magistrate, as the case may be.

   4. The magistrate may direct, either generally or specially for the purposes of any particular matter that-

   (a)   the addresses of the parties;

   (b)   any viva voce evidence given during the course of the proceedings;

   (c)   any exception or objection taken during the course of the proceedings;

   (d)   the rulings and judgment of the court; and

   (e)   such other portion of the proceedings as the court may specially indicate, be noted in shorthand and recorded by electronic means.

   5. (1) Every person employed for the taking of shorthand notes or the transcription of notes taken by another person shall be called a 'court reporter' and shall be an officer of the court.

   (2) The court reporter shall, before assuming his duties, take an oath or make an affirmation before a magistrate in a form as near as possible to Form 49 set out in Schedule 1.

   (3) The oath or affirmation shall be administered in the manner prescribed for the taking of an oath or affirmation.

   6. (1) Shorthand notes taken under this Order shall be certified as correct by the court reporter and shall be filed with the record of the case by the clerk of the court.

   (2) Subject to rule 7, no shorthand notes shall be transcribed unless a magistrate so directs.

   (3) The transcript of any shorthand notes shall be certified as correct by the person making it and shall be filed with the record of the case by the clerk of the court.

   7. (1) In any case in which no transcription was ordered in terms of rule 6, any person may, on notice to the clerk of the court, request a transcription of any shorthand notes taken by virtue of a direction given under rule 4 and shall pay a fee to be determined by the Registrar from time to time.

   (2) The original copy of the transcript of any shorthand notes referred to in subrule (1) shall be certified as correct by the person making it and shall be filed with the record of the case by the clerk of the court.

   (3) The person who certifies the record under subrule (2) shall do so in a form as near as possible to Form 20 set out in Schedule 1.

   (4) A sum sufficient to cover the approximate fee payable under subrule (1) shall be deposited with the clerk of the court in advance.

   8. Subject to rule 11, any shorthand notes taken by virtue of a direction made under rule 4, and any transcript of such shorthand notes certified as correct, shall be deemed to be correct and shall form part of the record of the proceedings in question.

   9. All recordings of court proceedings whether taken by shorthand, electronic or other means shall be deemed to be a true and correct record of the proceedings.

   10. Any party may, not later than seven days after having been in receipt of the typed record of the proceedings, apply to the court to correct any errors in the minutes of such proceedings and the court may then correct those errors.

   11. If, before the hearing of the application, all parties affected file a consent to the corrections claimed, no costs of such application shall be allowed, otherwise costs shall be in the discretion of the court.

ORDER 29
APPLICATIONS AND PETITIONS

   1. (1) Except where otherwise provided, an application to the court for an order affecting any other person shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief.

   (2) The notice of motion shall state the terms of the order applied for and shall be accompanied by a draft order.

   (3) Where the application is not opposed, the clerk of the court shall assign a date on which the application shall be heard.

   (4) Where a notice of opposition has been filed, the matter shall be referred to the magistrate for a case management conference.

   (5) Delivery of a notice under subrule (1) and (4) shall be effected, in the case where the Government is the respondent, not less than 14 days, and in any other case not less than three days before the date of hearing.

   2. (1) Except where otherwise provided, an ex parte application shall be made in writing stating shortly the terms of the order applied for and the grounds on which the application is made and shall be signed by the party making the application.

   (2) Such application shall be supported by affidavit.

   (3) An order granted ex parte shall call upon any party affected to appear on a stated date to show cause why the order cannot be made final.

   (4) An order made ex parte shall be in a form as near as possible to Form 21 set out in Schedule 1.

   3. Any person affected by an order granted ex parte may apply to discharge it with costs on not less than 12 hours' notice.

   4. All interlocutory matters may be dealt with upon application, and any application which may be made ex parte may, at the applicant's election, be made on notice.

   5. (1) In urgent applications, the magistrate may dispense with the forms and service provided for in these Rules and may dispose of such matter at such time, place, manner and in accordance with such procedure which shall, as far as practicable, be in terms of these Rules as to him seems just.

   (2) In every affidavit filed in support of an application under subrule (1), the applicant shall set out explicitly-

   (a)   the circumstances which he avers renders the matter urgent; and

   (b)   the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.

   (3) The application shall be accompanied by a certificate signed by the applicant or his attorney certifying that the matter is urgent.

   (4) The magistrate shall not grant the application unless he is satisfied that the applicant will be prejudiced in his case if it is not granted.

ORDER 30
ARRESTS, INTERDICTS, ATTACHMENTS, AND MANDAMENTEN VAN SPOLIE

   1. (1) Except where otherwise provided for in these Rules, every application to the court for an order of arrest, interdict or attachment or for a mandament van spolie under section 18 of the Act, may be made ex parte.

   (2) Every such ex parte application shall be upon affidavit stating shortly the facts upon which the application is made and the nature of the order applied for.

   2. (1) The court may, before granting an order upon such application, require the applicant to give security for any damages which may be caused by such order and may require such additional evidence as it may think fit.

   (2) An order made under subrule (1) shall be in a for as near as possible to Form 22 set out in Schedule 1.

   3. (1) Every order granted ex parte, other than an order for the arrest of any person, shall call upon the respondent to show cause against it at a time stated in the order, which shall not be a time less than the time allowed for appearance in the summons, unless the court gives leave for shorter service.

   (2) The respondent may, after being served with the order, apply to court giving 12 hours' notice to the applicant to have the matter heard on a date earlier than the return date.

   4. (1) A copy of any order granted ex parte and of the affidavit on which it was made shall be served on the respondent.

   (2) Where cause is shown against any such order, the court may order the deponent to any such affidavit to attend for cross-examination.

   (3) Any order granted ex parte may be discharged or varied by the court on cause shown by any person affected and on such terms as to costs as may be just.

   5. (1) An order granted ex parte shall be discharged upon security being given by the respondent for the amount to which the order relates together with costs.

   (2) Such security may be given to abide the results of the action instituted or to be instituted and may be assigned by the respondent to only part of the order and shall in that event operate to discharge the order as to that part only.

   (3) The messenger shall, upon being ordered by the court, release any person arrested upon such person giving security to the satisfaction of the court that he will appear upon the return day of the arrest.

   (4) The security given under subrules (2) and (3) shall be in a form as near as possible to Form 23 set in Schedule 1.

   6. A person entitled to the order shall draw up a draft order which shall be approved by the clerk of the court.

   7. An interdict and a warrant of arrest other than for civil imprisonment may be executed on any day, at any hour, and at any place.

   8. So far as may be necessary to the execution of any warrant, writ or order, the messenger may open any door on any premises or of any piece of furniture, if opening is refused or if there is no person at the premises who represents the person against whom such warrant, writ or order is to be executed, the messenger may, if necessary, use force to that end.

ORDER 31
SUBPOENAS

   1. (1) The process of the court for compelling the attendance of any person to give evidence or to produce any book, paper or document shall be by subpoena issued by the clerk of the court and sued out by the party desiring the attendance of such person.

   (2) In the case of evidence taken on commission, such process shall be sued out by the party desiring the attendance of the witness and shall be issued by the commissioner.

   (3) If any witness has in his possession or control any book, paper or document which the party requiring his attendance desires to be produced in evidence, the subpoena shall specify such book, paper or document and require him to produce it to the magistrate at the trial.

   (4) The subpoena shall be, as nearly as may be in accordance with Form 24 set out in Schedule 1.

   2. (1) If the party suing out the subpoena desires it to be served through the messenger, he shall hand the subpoena to the messenger together with such number of copies as there are witnesses to be subpoenaed.

   (2) The party shall also hand to the messenger such sum of money as he considers that the messenger shall pay or offer to the said witnesses for their conduct money.

   3. The court may set aside service of any subpoena if it appears that the witness served was not given reasonable time to enable him to appear in pursuance of the subpoena.

   4. (1) If any witness who has been duly subpoenaed to give evidence or to produce certain books, papers or documents, as the case may be, fails to abide by the subpoena, he shall be liable to pay a fine or be arrested.

   (2) The court shall issue a warrant for a fine under subrule (1) in a form as near as possible to Form 25 set out in Schedule 1.

   (3) The warrant of apprehension issued shall be in a form as near as possible to Form 26 set out in Schedule 1.

ORDER 32
INTEREST

   1. The court may add in the judgment, interest from the date of issue of the summons to the date of judgment to the amount claimed in the summons at the rate claimed in the summons or, if there is no such rate, then at the rate of 10 per cent per annum where the defendant has not consented to judgment 24 hours before the expiration of the time allowed for appearance to defend.

   2. Every judgment for payment of money shall bear interest from the date of judgment until payment at such rate as may be adjudged or, if there is no such rate, then at the rate of 10 per cent per annum.

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