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Ask Shaie Zindel Your Own Question
Shaie Zindel
Shaie Zindel, Attorney
Category: South Africa Law
Satisfied Customers: 1247
Experience:  All areas of commercial and contract Law - specialist in property advice.
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I am being sued where in

Customer Question

Hello
I am being sued for payment for services where in fact a verbal agreement had been made prior to accepting services that such would be rendered free of charge. Services were offered by a family friend (who is no longer considered such, following this situation), but the civil action has been put in motion by this person's employer. Unfortunately, the person who offered free services initially has decided to comply with the employer's action instead of acting for the truth. The no-charge agreement can be confirmed by several witnesses who were present during discussions.
The combined summons includes a copy of a tax invoice which the plaintiff alleges was delivered to me ~18 months ago. An invoice *was* sent to me around that time, which I refused to pay, but the invoice that the plaintiff has now submitted to court and referred to in the particulars as evidence of this claim is in fact a modified version of the invoice which was originally sent to me; it has been significantly inflated, with new items added to the bill. I have the original invoice and can prove its date. I hold the plaintiff's claim for payment to be entirely illegitimate and feel that I am being subjected to harassment/exploitation/intimidation (by way of litigious
behaviour)/etc in order to procure money from me. I have already submitted notification of intention to defend and must deliver pleadings within the next few days. Given that it can be proven that the particulars of claim rely on details of annexed documents which have been manipulated after the fact to further prejudice me, and aside from the fact that it is actually the alleged contract that is in dispute, what is the best response to submit to court? I would imagine that initiating litigation based on falsified/modified documents, and including these in summons, constitutes perjury. Is there not an exception or alternative response available to me so as to alert the court immediately of the misrepresentation and have the matter resolved as swiftly as possible (preferably, permanently dismissed), where the court will acknowledge that the claim is based on willfully fabricated documents and the plaintiff will stand to face prosecution as a consequence? The action is with the Magistrate Court.
Thanks for your time.
Submitted: 1 year ago.
Category: South Africa Law
Expert:  Shaie Zindel replied 1 year ago.
Good Evening and thank you for your question. You are on the right track but achieving an exception is no easy assignment. You see you can launch an exception under limited circumstances and the Plaintiff lying is not one of them. Our legal system operates on the basis that he who alleges must prove and based on the evidence you have 1. The independent witnesses and 2. The previous version of the invoice I dot see how this Plaintiff will overcome the onus on him and prove that which he has alleged. The downside is that you will in all likelihood have to go through the entire trial in order to reach this point as there is no "Summary Judgment" in the Rules of Court for the Defendant, only for the Plaintiff after Notice to Defend has been delivered. What I would suggest is that you put some documents together made up of the original invoice and affidavits by the witnesses who will all confirm that the agreement reached was opposite to what is being alleged. Let an independent "mediator" type person take the Plaintiff through the matters raised and hopefully the Plaintiff will see the light and throw in the towel. Place it formally on record that if the Plaintiff persists in this vexatious litigation even after having been warned against it that you will use this as a basis to get a punitive order for costs against the Plaintiff and its office bearers. I hope this answers your question? Please let me know if I can assist you further and please remember to rate my service so far. Regards
Customer: replied 1 year ago.
Thanks for the response. I've been doing quite a bit of reading into SA Magistrate Court procedure, very difficult to find remedies for defendants in this sort of situation. Is an application an option in MC? As in, applying for an interdict or something? Is there a person AT the court who I can present this to before taking the next step?I have considered allowing the matter to proceed directly to trial, but that would then mean revealing the issue of the manipulated invoice in my pleadings. Can I simply deny receiving the submitted invoice, without needing to give an argument or reveal having evidence? If I state that their invoice differs from the one sent, I expect they will ask me to produce the original (can they?) and then either use it to amend the summons, or withdraw the matter and initiate a new action with the original invoice. The whole pleadings thing is crazy; how can I respond to each of the particulars relating to a bill when everything is based on the false assertion of a contract existing at all??
Expert:  Shaie Zindel replied 1 year ago.
Hi again! Unfortunately the MC has no such procedure - an application can't help because there will be a dispute of fact which will require evidence at a trial which can't be lead in an application which is only considered on affidavit. You don't have to prove your defense in your pleadings - the Plaintiff has to prove its case - you don't have to help the Plaintiff. So you basically just deny every element of the claim and force them to prove it. Another issue to consider is that later in the case you will have to discover your invoice so they will get to see it eventually. More importantly the case doesn't rest only on an invoice so even if the invoice is wrong doesn't stop their claim it just makes it more difficult for them. I see their biggest problem is defeating your witnesses who will all say the agreement between you and the representative of the Plaintiff was that there would be no charge.
Customer: replied 1 year ago.
Hi Shaie
Thanks for your responses, they have been very clear and useful. Unfortunately, I don't have time nor do I know anyone confident enough to act as "mediator" like you suggested. So, I'm left to do this all myself and in the writing. Some further questions re the pleadings:
1) The particulars of claim state that an invoice was sent to me, which I cannot deny but plaintiff goes on to refer to the inflated amount and has included the 'second' invoice as an annexure. As I understand it, I must deny that the annexed invoice is a bona fide copy or it will be assumed that I admit its accuracy, and if I avoid bringing the issue up pre-trial then I can't present it at trial. Difficult to admit receiving an invoice and then deny receiving the invoice without appearing contradictory.
2) I don't want to enter a counterclaim. Can I indicate *within the plea document* that I feel the action is vexatious and accuse the plaintiff of having entered altered documents, and also that I intend to take action if the plaintiff persists? Or are these matters best raised in a separate letter delivered along with the pleadings?
3) Is it possible for me to submit the pleadings I've drawn up (with personal details removed) to you here, just to look over and make sure I've not done something wrong/stupid?
Thanks
Expert:  Shaie Zindel replied 1 year ago.
Hi Again - to answer your questions in order:
1. You should admit receiving the invoice but deny that it is the correct invoice. You must furthermore deny that the Plaintiff was entitled to send you an invoice as there was no agreement in that regard.
2. The complaint and letter you talk about is not necessary for the purposes of pleading and therefore is best left for a separate letter and argument at the trial.
3. We are not allowed to render specific legal advise and therefore I cannot comment on specific pleadings - I really must encourage you to see professional assistance before you file anything.
I hope I have assisted and urge you to rate my service. Regards
Customer: replied 1 year ago.
Hi again. Okay, I have found an attorney who is looking over my pleadings. Thanks for your input. I have one last question: if the plaintiff withdraws the matter, is that final or can they bring the claim against me again in future with different particulars or in some other form of action?
Expert:  Shaie Zindel replied 1 year ago.
Normally when they withdraw the matter they can re launch same in the future. They will obviously have to pay your costs though. If they keep re-launching and withdrawing you can apply to bar them from action on the basis that they are being vexatious. How about a nice rating???