Plea
The defendant’s plea is his answer to the plaintiff’s claim and sets out his defence on the merits of the claim. A such it is delivered in response to a declaration, a combined summons, an intendit, a provisional sentence summons or the affidavit which accompanies a writ of arrest.
The plea is a pleading and must comply with the specific and general rules relating to pleadings.
Where a defendant has delivered notice of intention to defend, he shall within 20 days after the service upon him/her of a declaration or within 20 days after delivery of such notice in respect of a combined summons, deliver a plea with or without a claim in reconvention, or an exception with or without application to strike out.
Contents of the plea
In his plea the defendant must either
– admit, or
– deny, or
– confess and avoid all the material facts alleged in the combined summons or declaration,
– or state which of the said facts are not admitted and to what extent, and he must clearly and concisely state all material facts upon which he relies.
If an allegation in the particulars of claim is not stated to be admitted or denied, it shall be deemed to be admitted. If any explanation or qualification of any denial is necessary, it must be stated in the plea.
The plea is concluded with a prayer for relief.
Admissions
The admission or deemed admission of a fact is conclusive, rendering it unnecessary for the other party to adduce evidence to prove the admitted fact, and incompetent for the party making it to adduce evidence to contradict it. As such the fact is eliminated as an issue in the action.
Once made, an admission can only be withdrawn by an amendment to the plea. Should the plaintiff refuse to agree to such amendment the defendant will have to approach the court for leave to withdraw the admission. The court will only grant such leave in the absence of prejudice or if the admission was made in error, and will require a satisfactory explanation of the circumstances under which the admission was made and the reason for wishing to withdraw it.
Denials
When the defendant denies an allegation in the particulars of claim that allegation is in issue between the parties and the plaintiff bears the onus of proving that the allegation is true. As such it is not necessary to add to the denial that ‘the plaintiff is put to the proof thereof’.
The style for a denial differs from that for an admission because the defendant is required to deal with individual allegations rather than whole paragraphs. It is thus permissible for the defendant to deny each and every allegation in a pleading, so long as there is no ambiguity in the denial. To be unambiguous the denial must be specific, unconditional and not leave the plaintiff in any doubt that it constitutes a denial.
Confession and avoidance
This could be termed as a ‘yes, but’ defence and it means that the defendant admits the particular allegation but has an answer to it justifying his admitted conduct or providing a legal excuse for it. This sets up other facts that, if it is proven, will have the effect of the defendant avoiding the legal consequences of the allegations in the particulars of claim.
An allegation is not admitted
When an alleged fact is beyond the defendant’s knowledge and he simply does not know whether it is true or false, the defendant must plea that the allegation is not admitted.
A denial is in itself a positive statement and the defendant will be prejudiced if he denies the allegation and it later turns out to be false.
Prayer
The prayer in the plea is subject to the same general principles as a plea in the declaration / particulars of claim.
If the plea has no prayer it may be excepted to on the ground that it is vague and embarrassing. It is also an irregular proceeding.
The defendant usually asks for ‘judgment in favour of the defendant’ and it will only be granted if the court is satisfied that that the probabilities favour the defendant. This settles the matter once and for all and the plaintiff cannot reinstitute proceedings against the defendant on the same cause of action. If the plaintiff does, he may be met with a special plea of res judicata.
If the court cannot decide which version is more probable it will grant ‘absolution from the instance’. The plaintiff may reinstitute proceedings against the defendant and rely on the same cause of action provided the claim has not become prescribed.
Special pleas
A special plea does not raise a defence on the merits of the case but sets up some special defence which has the objective either to –
– delay the proceedings (dilatory plea); or
– object to the jurisdiction of the court (declinatory plea); or
– quash the action altogether (peremptory plea).
The pleading is given the heading ‘Special Plea’ and the grounds to be relied upon is set out in the body of the plea.
There are essential differences between a special plea and an exception. Exception is appropriate when the defect in the particulars of claim appears ex facie (on the face thereof). The excipient cannot introduce new facts or evidence of the defect. Special plea is appropriate when it is necessary to place facts before the court to show that there is a defect in the particulars of claim. The defendant can introduce new facts or evidence of the defect. Exceptions are dealt with in detail later.
Special pleas are also distinguished from objections. Objections are taken by way of application before the trial.
The following are some special pleas that can be raised:
- Prescription: a peremptory plea that renders the claim permanently unenforceable.
- Jurisdiction: a declinatory plea that quashes the action as far as the court is concerned, but the merits of the case may be tried by another court (with jurisdiction).
- Lis pendens: a dilatory plea that delays the proceedings. Where a defendant contends that a suit between the parties on the same cause of action is pending in another court.
- Locus standi: a peremptory plea that quashes the action altogether. A person wishing to institute or defend legal proceedings must have a direct and substantial interest in the right which is the subject matter of the litigation and the outcome of such litigation. This may also be dealt with on exception.
- res judicata: a peremptory plea that quashes the action altogether. It is raised as defence to a claim that was already disposed of by a judgment in a prior action between the same parties concerning the same subject matter and the same cause of action.
- Non-joinder or misjoinder: a dilatory plea that delays the proceedings. If evidence is required that another person should have been joined as plaintiff or defendant, or some party who has been joined ought not have been. If the non-joinder or misjoinder is apparent ex facie the pleadings the objection may be taken by way of exception.
- Arbitration: a dilatory plea that delays the proceedings. When arbitration is a condition in the terms of a contract. The defendant must state that he agreeable to the dispute being referred to arbitration. A matter can be brought on application in terms of the Arbitration Act.
This list of special pleas is not exhaustive but are most commonly raised.
For more go to Notes on action (trial) proceedings