Declaration / Particulars of claim
The declaration / particulars of claim advise the defendant of the relief claimed against him/her and the grounds upon which such relief is claimed. As such it should clearly and concisely state the material facts on which the plaintiff relies for his claim, with enough particularity to enable the defendant to reply (plea) thereto.
Furthermore, it sets forth the conclusions of law which the plaintiff is entitled to deduce from the facts stated therein.
It concludes with a prayer for the appropriate relief which conforms with the cause of action set out in the body of the document.
Contents
The declaration / particulars of claim must contain the following:
- The name and description of the party suing, and the right in which he sues.
Where the plaintiff sues in an official capacity, he must allege facts to find his title to sue in that capacity. If the action is brought by a guardian in his capacity as such, it must be clearly set out.
Where several defendants are being sued it is necessary to indicate whether the alleged liability is joint or several. In such cases the declaration / particulars of claim must clearly set forth the joint act or a continuous and connected series of acts to which the several defendants are parties.
- The name of the defendant and the right in which he is sued.
The right in which the defendant is sued must be clearly indicated, for a defendant cannot be charged with liability on a claim which is not pleaded.
It seems that a defendant may be cited in a representative capacity or alternatively in his personal capacity, but the two capacities must be kept distinct in the declaration / particulars of claim and must not be mixed up in a confusing manner.
The plaintiff must make the necessary averments to show that the defendant has locus standi in judicio.
The title of the action is the name of the plaintiff coupled with that of the defendant. This will appear from the body of the declaration / particulars of claim itself. The heading thereto forms no part of the declaration / particulars of claim and is not the title even though it purports to be so. It is therefore not material that a wrong name may have been used in error in the heading of the declaration / particulars of claim.
- The nature, extent and grounds of the cause of action, complaint or demand, and such conclusions as, according to the form of the particular action, the plaintiff shall by law be entitled to deduce therefrom, and a prayer for the relief claimed.
The cause of action must be clearly set out by averments of the nature, extent and grounds thereof, and therefore it must clearly appear whether the action brought is based on –
– contract;
– delict;
– damages; or
– the negligent discharge of a duty.
Failure to disclose the above is a failure to set forth the grounds of the action and the defendant will take exception thereto.
For more go to Notes on action (trial) proceedings
