How to defend a summons in the Magistrates Court

This is a do it yourself guide, however, it is recommended that you rather use an attorney if you are not clued up with court rules and uncertain.

As soon as you are served a Summons you must take immediate action. If you do not defend the summons, you can be guaranteed that creditors will take a judgment against your name.

If you are being wrongly accused (like being accused of owing money you don’t owe, for example) and summonsed, then you are entitled to defend the action. This is the process a defended claim follows in the Magistrate’s Court.

If a summons is served on you by the sheriff of the court, and you believe you do not owe the money claimed in the summons, you have ten court days from the date that the sheriff served the document on you, to file and serve a notice of your intention to defend the summons. The summons you received contains such a notice that you need to fill out. Complete that and sign the notice to defend.

Thereafter file a copy with the clerk of the court from which the summons was issued by taking it to the clerk of the court and get proof of receipt. Make sure you have two additional copies, which the clerk of the court must stamp with the official court stamp. After you have filed the notice with the clerk, serve one of the copies on the plaintiff or his attorney as specified on the face of the summons by taking it there and get proof of receipt. Again, make sure the plaintiff or his attorney stamps the copy.

In some circumstances the plaintiff is entitled, after receipt of your notice to defend, to apply for summary judgment against you. Summary judgment is a procedure designed to provide a mechanism through which a plaintiff is entitled to a speedy finalisation of his claim, where it is clear that the defendant simply filed a notice of intention to defend for purposes of gaining some time or to delay payment of the claim.

The defendant may avoid summary judgment being granted by filing an affidavit with the clerk of the court and the plaintiff or his attorney. The affidavit must be signed before a commissioner of oaths and must specify the nature of your defence against the claim. In this affidavit will be all the points of your defense, against the points of the particulars of the claim you received with the summons. You have 20 days from the date when the notice of intention to defend was filed, to file and serve this plea. The plea is the document that sets out the nature of your defence against the claim.

After filing and serving a plea, both plaintiff and defendant will be entitled to demand discovery from each other. Discovery is the process through which the plaintiff and defendant notify each other what documents they intend to use and present as evidence at the trial.

All this then will be considered by the magistrate, to determinate weather you have a legitimate defense, if the magistrate is not convinced you have a legitimate defense, he will then proceed to grant summary judgement against you, if he decides you do have a legitimate defense, the matter will go to trial.

At the trial, the plaintiff usually starts first in presenting the evidence in support of his claim. You will be entitled to cross -examine the plaintiff’s witnesses. Once the plaintiff is finished with his evidence, the defendant may testify and call witnesses on his behalf. The plaintiff also has the right to cross -examine the defendant ‘s witnesses.

After hearing evidence, the presiding magistrate will grant judgment in favour of the plaintiff, dismiss the action or grant an order of absolution from the instance. Absolution from the instance is granted against a plaintiff who fails to present sufficient evidence at the trial to make out a so -called prima facie case against the defendant.

A defendant or plaintiff who believes the magistrate was wrong in reaching the conclusion that he or she reached, may lodge an appeal.

If you are not up to all of the above, rather consult with an attorney to do all this for you.