It can be a daunting and fearful experience when the Sheriff of the Court arrives at your door to serve you with legal papers, even worse if you just find them lying in your garden, in your post box, stuffed in your gate or lying at the foot of your home / office door. Questions that easily come to mind: what are you being sued for? How long do you have to defend yourself? What are you going to do?

First things first, don’t panic. It is not the end of the world. You have options. This article deals with what to do when faced with a summons or application. 

As a quick point of departure:

1. If you receive a summons, it will say summons and may have a “particulars of claim” attached to it which sets out the cause of action against you. This means an “action” has been launched against you, it is anticipated that there will be “disputes of fact” between the parties and if the matter cannot be resolved amicably could ultimately culminate in a trial.
2. If you receive a “Notice of Motion”, accompanied by a “Founding Affidavit”, you have received an application, generally the other side does not anticipate that there will be disputes of fact between the parties and (if this is correct) the matter will be argued “on the papers”. In other words, a trial won’t be held but oral argument made before a judge.

There are various caveats to the above summary, but generally this is the position.

When faced with a summons, in terms of the Rules of Court, if you intend to defend the matter, you will have 10 days within which to enter a “Notice of Intention to Defend”.

When faced with an application, you will also have 10 days within which to oppose the matter and enter a “Notice of Intention to Oppose”, in accordance with the Rules of Court.

Irrespective of whether you are faced with a summons or an application the first thing you need to do is ascertain when the document was received, this is particularly so if you were not present when the document was served on you. Remember in many instances, you do not need to be present to have a summons or application served on you. The Rules of Court make provision for many different types of service, so ignoring service because you were not present when it took place may not help you, in fact it may be seriously to your determinant.

Once you’ve figured out when service took place, you need to consider when your notice to defend / oppose will be due (if you want to defend / oppose the matter). The 10 days that you will have to defend / oppose the matter starts to run from the day after service took place and it excludes weekends and public holidays.

Whether you have a defense to the matter or not you should contact an attorney immediately. They can assist you to defend / oppose the matter, hopefully amicably settle the dispute, alternative correctly plead your defense / opposition to the matter. A failure to defend / oppose any matter will likely result in default judgement or an unopposed order being granted against you, all of which can possibly be avoided if you act sensibly and timeously.

If you are faced with service of a summons or application and need assistance understanding your rights, don’t hesitate to contact Jennifer Woker in our Johannesburg Litigation Department on 011 290 2540 / woker@wylie.co.za A solution can always be found (albeit you might not like that solution!)