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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15597
Experience:  L.LB (UOVS)
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I am in a process of a divorce. The summons were served more

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I am in a process of a divorce. The summons were served more than a year ago. My husband never responded until now when we were about to set the matter down. What should I expect? What about the time he was given to respond?
Submitted: 4 years ago.
Category: South Africa Law
Expert:  WCLawyer replied 4 years ago.
Good day.

In other words, he did not defend the matter?
Customer: replied 4 years ago.
He did not defend the matter all along. The 30 days to file notice to defend and defent the matter expired a year ago. His lawyers say they will find papers to defend the matter. We have not received the papers yet. The summons include the forfeiture clause.
Expert:  WCLawyer replied 4 years ago.
Which court did you use? High Court or Regional Court?
Customer: replied 4 years ago.
High court
Customer: replied 4 years ago.

We used the high court.

Expert:  WCLawyer replied 4 years ago.
Just to confirm. Summons was issued and served. No court pleadings has been received by your husband ever since?
Customer: replied 4 years ago.
Please explain what you mean by "court pleadings". Summons were issued and served. He did not file to defend the matter, the family advocate got involved and did an investigation and issued a report. Then the matter was about to be set down when his lawyers came to say the matter will be defended. We still have not received the papers from his lawyers.
Expert:  WCLawyer replied 4 years ago.

Are you represented?

Customer: replied 4 years ago.
Yes I am
Expert:  WCLawyer replied 4 years ago.
Then why aren't your attorneys setting the matter down again?
Customer: replied 4 years ago.
I am not sure? They told me that they need to give him a five days notice that the matter will be set down then if he doesn't respond then proceed to set it down. What will happen if and when his lawyers file papers to defend? Will the court consider the fact that he responds more than a year later?
Expert:  WCLawyer replied 4 years ago.

That sounds like a Notice of Bar, which would suggest that he entered an appearance to defend. A notice of bar is a notice to call upon him to plea.

 

If he has entered an appearance to defend, it would mean that the matter will now proceed to trial, unless you are able to settle the matter.

 

The court does not care when a notice of intention has been filed, only that it is done before the court makes a default judgment.

Customer: replied 4 years ago.
Who gives a notice of bar?
Expert:  WCLawyer replied 4 years ago.
Normally the Plaintiff, to force the Defendant to plead. A Defendant will file it if he has lodged a counter claim and the Plaintiff has not pleaded yet.
Customer: replied 4 years ago.
This means that he would first need to file his defence, then I need to respond before he can file it as the defendant
Expert:  WCLawyer replied 4 years ago.

If by defence you mean "plea", then yes. However, if he has filed a notice of intention to defend, but he did not follow it up with a plea within 20 days, you will file a notice of bar and if he does not file a plea within 5 days of receiving the notice of bar, he will be barred from doing so, which means you can set it down. If, however, he does file a plea, then there is a couple more processes to go through before you can set it down.

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