CHAPTER 3

CONSULTATION, LEGAL REPRESENTATION

LETTER OF DEMAND, PRESCRIPTION
 TAKING INSTRUCTIONS - INITIAL CONSULTATION (para 3.1)

1. Whether the attorney may act on behalf of the client;

 Time schedules,
 Prospects of success,
 Ethical considerations - conflict of interests, etc,
 Possible settlement.

2. The cost implications of the litigation;

 Financial aspects – amount of initial deposit,
 Payment of fees & other costs,
 Deposits into trust account,
 Client’s bank account number.

3. The facts-in-issue – a chronology of the facts in dispute;

 Check for prescription.

4. Whether to proceed by action or application;

 Determine jurisdiction (see chp 4-6).

5. Establish the attorney’s mandate;

 Power of attorney – where necessary,
 Notice as attorney of record – when acting for the defendant.

6. Whether to appoint an advocate in the matter;

 Counsel’s costs.
 ADMINISTRATIVE ARRANGEMENTS
(HCR 7 & 16; MCR 52)

Open physical or electronic file on behalf of the client and include:

• Chronological record of all pleadings & no­tices
• All relevant dates – return dates, prescription dates & hearing/trial dates
• HCR 7 - legal representation without the need to file a power of attorney:
 except - appeal on behalf of the client.
• HCR 16, the attorney acting on behalf of a party must notify the opposing party
of his/her name & address within 15 km of nearest court building

CORRESPONDENCE
• Writing of letters – crucial in practice,
• Acknowledgement of receipt of letters,
 Plaintiff’s attorney may need to deliver:
 Common law letter of demand
 Statutory letter of demand
 Defendant’s attorney will need to deliver:
 Attorney of record – where attorney represents the defendant

ETHICAL DUTIES OF ATTORNEY

• See annexure 1 (at back of textbook)
ADMINISTRATIVE DETAILS – CLIENT FILE – physical front cover
ADMINISTRATIVE DETAILS – CLIENT FILE – inside cover – record of legal
steps taken on behalf of client – billable hours
INITIAL CONSULTATION (chp 3)
 Power of attorney
 Prescription
 Letter of demand

JURISDICTION (chp 4-6)

 High Crt
 Mag Crt
 Small Claims Crt (!!!!)

PARTIES (chp 7)
 Locus Standi
 Joinder of parties
 Citation of parties

ACTION OR APPLICATION (ch 8-10)

 Combined/Simple summons
 Notice of motion + affidavit

SERVICE OF PROCESS (ch 11)

 Sheriff’s Act of 1986
 Ordinary
 Substitute/edictal citation
 Action Application
Para
3.3 1 Parties are referred to as “plaintiff” and Parties are referred to as “applicant” and
“defendant”. “respondent”.
2 An action is based on a real and material An application is based on a factual dis-
factual dispute. pute of such a nature that it may be
easily dealt with on affidavit or on paper.
An application may also be used for dis-
putes of law.
3 Commences with the issuing of a Commences with the issuing of a notice
summons by the plaintiff. of motion and supporting founding
affidavit by the applicant.
4 Further pleadings are exchanged by the Further affidavits are exchanged, namely:
parties, namely:  the opposing affidavit;
 defendant’s plea and counterclaim;  the replying affidavit (if applicable).
 plaintiff’s replication to defendant’s
plea;
 plaintiff’s plea to defendant’s counter-
claim.
5 After the exchange of pleadings, a stage There is no written “preparation for trial”
called “preparation for trial” follows. Cer- stage.
tain preparatory steps are then taken, that
is, discovery, expert notices, medical
examinations, pre-trial conference, etc.
6 The action procedure ends in the trial The motion procedure ends in the motion
court, where mainly oral evidence by the court. In principle, no oral evidence is
parties and their witnesses is presented. presented and the parties do not testify.
The case is argued by legal represen-
tatives on the papers before the court.
 LETTER OF DEMAND – five points (para 3.4)

1. A clear reference that the attorney is acting on behalf of the client;

2. A clear explanation of the reason for the demand, based on the client’s
version of the alleged facts-in-issue (mentioning relevant dates &
amounts);

3. A clear indication of what conduct is expected from the person

receiving the letter of demand such as:
 payment of a specific amount,
 delivery of an item, or
 refraining from certain conduct;

4. An indication of the time period (if applicable) within which to comply with
the demand;
5. An explanation of the consequences of a failure to comply with the
demand (setting out any cost implications).
 WHEN IS A COMMON LAW LETTER OF DEMAND REQUIRED

• When a contract contains a clause stating that an amount is payable

on demand, a failure to pay the amount does not constitute a cause of
action. A letter of demand to pay is therefore necessary to complete the
cause of action

• When the cause of action is based on a breach of contract & the

terms of the contract require a letter of demand. The cause of action
will only be complete when a party gives notice of an intention to sue for
breach.

• When a creditor intends to cancel an agreement and the original

agreement contains no right to an automatic cancellation

• When no date for performance has been agreed upon, a letter of

demand is used to place a debtor in mora.

• If a party wishes to claim in mora interest, the party will have to send a letter of
demand to the opposing party thereby placing the opposing party in mora.
Interest will then be levied on the expiration of the date for payment as
stated in the letter of demand.
 STATUTORY LETTER OF DEMAND

• S 29 of the Small Claims Court Act requires delivery of a letter of

demand to the defendant before legal action may be taken.

• S 96 of the Customs and Excise Act requires a written notice of an

intention to sue to be delivered one month before legal action is
instituted.

• The Institution of Legal Proceedings against Certain Organs of

State Act. When suing an organ of State for damages the plaintiff must
give 6 months’ notice of intended legal proceedings.

• S 129 – 130 of the National Credit Act provides for debt enforcement
and requires that a number of preliminary notices and other procedures
be carried out prior to debt enforcement.

• The Prevention of Illegal Eviction from and Unlawful Occupation of

Land Act makes provision for a prescribed procedure that must be
followed by an applicant.
 EXAMPLE 1 - LETTER OF DEMAND – (BREACH OF CONTRACT)
INSERT: DATE, METHOD OF DELIVERY, YOUR CONTACT DETAILS AND REFERENCES
Sir/Madam
LETTER OF DEMAND
1. We act on behalf of our client XXXX;
2. Our client has instructed us that on the [date] a contract of sale for the purchase of a lawnmower was
entered into between our client (the seller) and you the buyer.
3. In terms of clause 2 of the contract and on the [date] our client delivered the lawnmower to you at
your residential address [xxxx]. In terms of clause 3 the full purchase price of R [xxxx] was to be paid
over to our client by you after the delivery of the lawnmower to you by means of an electronic transfer
to our client’s bank account on the [date].
4. You have failed to make payment on the date stipulated in clause 3 and despite two separate phone
calls to you by our client on the [date] and [date] the payment amount R[xxx] remains outstanding.
5. Accordingly you have a further 7(seven) calendar days from the date of receipt of this letter in which to
make payment.
6. If you fail to respond to this letter or fail to make payment within the 7 calendar days, our client has
instructed us, amongst other remedies available, to issue summons against you & obtain a judgment
for the entire payment plus interest at the rate of 10% per annum from the date of breach of the
contract until date of final payment.
7. We await your urgent reply herein.
Yours faithfully
xxxxx
XYZ Attorneys
 EXAMPLE 2 - LETTER OF FINAL DEMAND: (Credit Agreement)
INSERT: DATE, METHOD OF DELIVERY, YOUR CONTACT DETAILS AND REFERENCES
Sir/Madam

NOTICE OF DEFAULT IN TERMS OF SECTION 129(1) OF THE NATIONAL CREDIT ACT NO 34 OF 2005

We, the Wits Law Clinic, act on behalf of XXXXXX;

Our client informs us that you entered into a credit contractual agreement with our client on the 19 June 2019.

The material, alternatively tacit, alternatively implied terms of the credit agreement are as follows:
1. XXXX would loan you a cash amount of RZZZZZZ;
2. You would pay the loan back in instalments of RZZZZZZ per month for a period of 12 months beginning September 2019
and;
3. Interest would be charged at a rate of 10 % per annum.

We confirm that you are in default in terms of the agreement. The amount of RZZZZZ plus interest at the rate of 10% per
annum is due and payable and has not yet been paid.

Please take note that you may refer the agreement to a debt counsellor, alternative dispute resolution agent, consumer-court or
bank ombudsman, in terms of s 129 of the above mentioned Act, with the intent to resolve any dispute under the agreement or
develop & agree on a plan to bring the payments, plus interest under the agreement up to date.

Should you fail to respond to this notice within 10 (ten) business days from delivery hereof by either rejecting the aforesaid
proposal or by failing to respond to this notice at all and should you remain in default with your obligations as aforesaid for a
period of 20 (twenty) days since your default commenced, the credit agreement may be cancelled and our client will proceed
with legal steps to enforce the agreement and recover the outstanding amount of the loan plus interest at 10% from the date of
default to the date of final payment.

We await your urgent reply herein.

Yours faithfully
XXXXX
WITS LAW CLINIC
EXAMPLE - (DEFENDANT’S attorney of record notice)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: 003/2023
In the matter between:
CCCCC PLAINTIFF
and
VVVVV DEFENDANT

NOTICE OF ENTRY AS ATTORNEY OF RECORD

TAKE NOTICE that XXXXXXX herewith enters as Attorney of record on behalf of the Defendant and that the
Defendant will accept service of all notices, pleadings and documents in this matter at the following address:
420 ZZZZ Street,
Braamfontein, Johannesburg
2000

DATED AT JOHANNESBURG ON THIS __________ DAY OF _________ 2023.

TO: REGISTRAR OF HIGH COURT

TO: PLAINTIFF’S ATTORNEYS

EXAMPLE (notice of withdrawal as DEFENDANT’S attorney of record)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NUMBER:003/2023
In the matter between:
CCCCC
PLAINTIFF
and
VVVVV DEFENDANT

NOTICE OF WITHDRAWAL AS ATTORNEY OF RECORD

TAKE NOTICE that XXXX herewith withdraws as Attorney of record on behalf of the Defendant because
the Defendant has repeatedly failed to provide instructions for proceeding with the above-mentioned
matter.

TAKE FURTHER NOTICE that the last known address of the Defendant is 123 UU Street, Hatfield, Pretoria,
Gauteng.

DATED AT JOHANNESBURG ON THIS __________ DAY OF_____________ 2023.

TO: REGISTRAR OF HIGH COURT

 EXTINCTIVE PRESCRIPTION (para 3.5)
Section 11 of the Prescription Act 69 of 1969

• Thirty years in respect of:

 a debt secured by a mortgage bond;
 a judgment debt;
 any debt in respect of tax levied in terms of any statute;
 any debt owing to the State regarding the prospecting for and mining of min­
erals or other substances

• Fifteen years in respect of a debt owing to the State arising from a loan of money
or the sale or lease of land

• Six years in respect of a debt arising from:

 a bill of exchange or any other negotiable instrument (for example, a cheque
or promissory note); or
 a notarial contract

• Three years in respect of any other delictual or contractual debt, unless

specifically provided for by statute
• The Road Accident Fund Act 56 of 1996 – 3 years
• Apportionment of Damages Act 34 of 1956 – 12 months
• The prescriptive time periods are calculated according to calendar days.