How to find a divorce lawyer in Cape Town, South Africa

Signing of pleadings and summons

It is very important when a divorce summons or pleading is drafted that it is correctly signed.

Rule 18(1) of the Uniform Rules of Court prescribes that: "A combined summons, and every other pleading except a summons, shall be signed by both an advocate and an attorney or, in the case of an attorney who, under s 4(2) of the Rights of Appearance in Courts Act [Act 62 of 1995], has the right of appearance in the Supreme Court, only by such attorney or, if a party sues or defends personally by that party".

Recent case law dealing with this is that of Absa Bank Ltd v Barinor New Business Venture (Pty)Ltd 2011 (6) SA 225 (WCC). In this case the plaintiff applied for summary judgment against the defendant. In the opposing papers the defendant alleged that the combined summons was factually defective as it did not comply with Rule 18(1) of the Uniform Rules of Court.

In the above case the combined summons was signed by an attorney with the Right of Appearance in Court Act (the Act), but who had not been enrolled by the registrar of the present court (The Western Cape High Court) in terms of section 20(3) of the Attorneys Act 53 of 1979, as an attorney.

The court held that an attorney enrolled and with right of appearance registered at High Court A needed to be enrolled at High Court B to practice there, and so to sign a combined summons there. The attorney's right of appearance need not however be registered at High Court B for him to appear there.

In the present case, because the attorney who signed the pleadings was not enrolled in the Western Cape High Court, the point in limine was upheld and the application for summary judgment dismissed. This was the correct decision in my opinion.

When your attorney drafts your divorce combined summons in the High Court you must make sure therefore that on your Particulars of Claim attached to the summons there are two places for signature of your attorney.

The Particulars of Claim should end off like this:

_______________________
PETER MICHAEL BAKER
(Attorney who has the right of appearance in
terms of Section 4(2) of the Rights of
appearance in Court Act, 62 of 1995, as
amended)

PETER M. BAKER & ASSOCIATES
Per:

Plaintiff's Attorneys
13th Floor, Constitution House
124 Adderley Street
CAPE TOWN
Ref. PM BAKER/LDC

Here the attorney would need to sign in both places. It is important to have an attorney who not only knows the divorce law but who also understands the court rules and gets each and every technical aspect of the drafting of the pleadings correct.

As the recent cases show the courts do not allow any defects in pleadings. The last thing you need is a summons to be defective due to non-compliance with the court rules.


Related Articles

Sheriff letter for divorce summons (combined summons)

The final order of divorce

Cape High Court divorces

Roles of attorneys and advocates in divorce cases

Divorce and the "Particulars of Claim"


HOMEPAGE

married overseas annulmentreasons for divorce