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Rules of the Superior Courts

Order: 13

Default of appearance

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No13-S.I. No. 248 Of 2005: Rules Of The Superior Courts (Personal Injuries) 2005
No13-S.I. No. 14 Of 2007: Rules Of The Superior Courts (Statutory Applications And Appeals) 2007
No13-S.I. No. 31 Of 2008: Rules Of The Superior Courts (Cape Town Convention) 2008


1. Where no appearance has been entered to a summons for a defendant who is an infant or a person of unsound mind not so found by inquisition, the plaintiff shall, before taking any further step in the proceeding against the defendant, apply to the Master for an order that some proper person be assigned guardian of such defendant by whom he may appear and defend the proceeding. But no such order shall be made unless it appears on the hearing of such application that the summons was duly served, and that notice of such application was, after the expiration of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing the application, served upon or left at the dwellinghouse of the person with whom or under whose care such defendant was at the time of serving such summons and also (in the case of such defendant being an infant not residing with or under the care of his father or guardian) served upon or left at the dwellinghouse of the father or guardian, if any, of such infant, unless the Master at the time of hearing such application shall dispense with such last mentioned service.

2. Where any defendant fails to appear to a summons, and the plaintiff is desirous of proceeding upon default of appearance under any of the following rules of this Order or Order 37, rule 12, he shall, before taking such proceeding upon default, file an affidavit of service of the summons or notice in lieu of service, as the case may be.

3. Where an originating summons (whether plenary or summary) is indorsed with a claim for a liquidated demand, and the defendant fails, or all the defendants, if more than one, fail to appear thereto, the plaintiff may enter final judgement in the Central Office for such sum as is mentioned in the affidavit required by rule 18 not exceeding the sum indorsed on the summons, together with interest (if any) to the date of the judgement and costs. Provided that in proceedings by a money-lender, or the personal representative or representatives of a money-lender, or an assignee, for the recovery of money lent by the money-lender, or the enforcement of any agreement or security relating to any such money, judgement shall not be entered in default of appearance unless the leave of the Master or the Court as the case may be, has been obtained in accordance with the provisions of rule 14. Provided also that in actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement (as defined by the Hire-Purchase Act, 1946) or any contract of guarantee relating to such an agreement, judgement shall not be entered in default of appearance unless the leave of the Master or the Court, as the case may be, has been obtained in accordance with the provisions of rule 15.

4. In case no appearance has been entered in a proceeding for the recovery of land within the time limited for appearance, or if an appearance be entered but the defence be limited to part of or to an undivided share in the land only, the plaintiff shall, subject to the provisions of rule 5, be at liberty, whether claims in respect of mesne profits, arrears of rent, or double rent, or damages for breach of contract, or wrong or injury to the premises claimed, have or have not been indorsed on the summons, to enter judgement in the Central Office that the person whose title is asserted in the summons shall recover possession of the land, or of the part or undivided share thereof to which the defence does not apply. Such judgement shall not contain any award of costs, but same shall be without prejudice to the plaintiff's right to have the costs taxed by the proper officer, and to proceed by action for recovery of such mesne profits, arrears of rent or double rent, damages, and costs, or any of them. Provided that if the proceeding be for recovery of land for non-payment of rent, no judgement shall be entered under this rule until an affidavit has been filed made by the landlord, his agent, receiver, or clerk, stating that there was at the commencement of the proceeding at least one year's rent due over and above all just and fair allowances.

5. In case no appearance has been entered in a proceeding for the recovery of land within the time limited for appearance, or if an appearance be entered but the defence be limited to part of or to an undivided share in the land only, the plaintiff, in lieu of proceeding under rule 4, shall, as to the claim for recovery of such land or such part or undivided share thereof, as the case may be, and the claim (if any) in respect of mesne profits, arrears of rent, or double rent, or damages for breach of contract, or wrong or injury to the premises claimed, be at liberty (in the case of a proceeding commenced by plenary summons) to proceed under rule 6 or (in the case of a proceeding commenced by summary summons) to set the summons down for hearing on such day as the Master may fix, and in such latter case, such judgement may be given, on the hearing of the summons, as the Master, in a case within his jurisdiction, or the Court may consider the plaintiff to be entitled to.

6. In case of default of appearance by any defendant (other than such defendant as is in rule 1 mentioned) to a plenary summons, the plaintiff shall, except in the case of a claim otherwise provided for in any of the preceding rules of this Order, deliver a statement of claim by filing the same in the Central Office and thereupon may apply to the Court for judgement in the proceeding in default of appearance, and (if necessary) ascertainment of any damages to which the plaintiff may be entitled, with a jury in case any party is entitled to a jury and requires such, but otherwise without a jury, and in the latter case the Court may fix the amount of such damages itself on evidence by affidavit or otherwise, or may refer the matter to the Master to determine.7. Where a summons is indorsed with a claim for the delivery of specific goods, either alone or with any other claim, and the defendant fails to appear, the plaintiff may, if he require the specific delivery of such goods, apply to the Court for an order for judgement for the return of the goods detained without giving the defendant the option of retaining such goods upon paying the value thereof and for the ascertainment, in such manner as the Court may direct, of the goods in respect of the non-delivery of which the plaintiff is entitled to recover and which remain undelivered, and, upon the same being so ascertained an order of delivery may issue for the same.

8. Where an originating summons (whether plenary or summary) is indorsed with a claim for a liquidated demand and there are several defendants, of whom one or more appear, to the summons, and another or others of them fail to appear, the plaintiff may enter final judgement as in rule 3 mentioned against such as have not appeared, and may issue execution upon such judgement, without prejudice to his right to proceed against such of the defendants as have appeared.

9. Where there are several defendants to such a plenary summons as is mentioned in rule 6 and one or more of such defendants appear to such summons, and another or others of them fail to appear, the plaintiff may proceed under the said rule against the defendant or defendants so failing to appear and the application for judgement thereunder shall be heard and the damages (if any) to which the plaintiff may be entitled ascertained, as against such defendant or defendants, at the same time as the trial of the proceeding or issue therein against the other defendant or defendants, unless the Court shall otherwise direct.

10. Where a plenary summons is indorsed with a claim for a liquidated demand together with another claim or other claims and any defendant fails to appear thereto, the plaintiff may enter final judgement for the liquidated demand, together with interest (if any) and costs as provided in the preceding rules of this Order, against the defendant or defendants failing to appear and may proceed, as to the other claim or claims, as provided in such of the said rules as may be applicable.

11. Where final judgement is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the Court to set aside or vary such judgement upon such terms as may be just.

12. Where an originating summons is indorsed with a claim on any bond, covenant, or agreement within the Common Law Procedure Amendment Act (Ireland), 1853, section 145, and the defendant fails to appear thereto, no statement of claim shall be delivered and the plaintiff may, without any suggestion of breaches, apply by motion to the Court for leave to enter judgement for such sum as may seem just, and on such application the Court may order judgement to be entered accordingly or may direct such inquiry, or trial of issues, as may appear to be necessary for the ascertainment of the plaintiff's demand, and if the sum ascertained to be due does not amount to the sum mentioned in such bond, covenant, or agreement, the plaintiff, his executors or administrators, may in the event of any subsequent breach, from time to time, apply to the Court, and the Court may thereupon so far as the sum mentioned in such bond, covenant, or agreement, or the remainder thereof, will reach, make such further order or direct such further inquiry or trial to the effect aforesaid, as may be just.

13. In any case in which the plaintiff is not entitled to enter final judgement in the Central Office under any of the preceding rules of this Order, and in which the defendant fails, or all the defendants if more than one, fail to appear, but in which, by reason of payment, satisfaction, abatement of nuisance, or for any other reason, it is unnecessary for the plaintiff to proceed, he may by leave of the Master, to be obtained by motion on notice, enter judgement for costs. Provided that such notice shall be filed and shall be served in the manner in which service of the summons has been effected, or in such other manner as the Master may direct.

14. (1) In proceedings brought by a moneylender or the personal representative or representatives of a moneylender or an assignee for the recovery of money lent by the moneylender or the enforcement of any agreement or security relating to any such money, an application for leave to enter judgement in default of appearance shall be made by notice returnable before the Master not less than four clear days after service of the notice.

(2) Such notice shall not be issued until the time limited for entering an appearance has expired and a proper affidavit of service of the summons has been filed. The notice may be served personally or by registered post, addressed to the defendant at his last known place of address.

(3) At the hearing of the application, whether the defendant appears or not, the Master or the Court, as the case may be—

      (a) may exercise the powers of the Court under the Moneylenders Act, 1900 section 1 (1), as amended by the Moneylenders Act, 1933, section 17, and

      (b) if satisfied by affidavit or otherwise that the notice has been duly served, may give leave to enter final judgement for the whole or part of the claim, and

      (c) as regards any part of the claim as to which leave to enter final judgement is refused, may give any such directions or make any such order as might have been given or made upon the hearing of the summons or of a motion for judgement, as the case might be, if the defendant had entered an appearance, upon such terms as to notice to the defendant and otherwise as may be thought just.

15. In actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement or any contract of guarantee relating to such an agreement, an application for leave to enter judgement in default of appearance shall be made in the same manner as is prescribed in paragraphs (1) and (2) of rule 14, and judgement shall not be entered until an affidavit shall have been filed stating that the requirements specified in section 3 or section 4 (as the case may be) of the Hire Purchase Act, 1946, as amended by sections 21 and 22 of the Hire Purchase Act, 1960, have been complied with.

16. In any case coming before him under any of the preceding rules of this Order, the Master may, in lieu of giving or refusing leave to enter judgement, place the summons in the Court list for hearing.

17. In all proceedings not by the rules of this Order otherwise specially provided for, in case the party served with the summons does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service and, where appropriate, of a statement of claim, the proceeding may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 37.

18. Before judgement by default shall be entered for any liquidated demand under this Order an affidavit shall be filed specifying the sum then actually due.

19. If, in any case in which a plaintiff is entitled to enter final judgement in the Central Office under any of the preceding rules of this Order, the plaintiff claims interest on the whole or any part of the sum of money for which he is entitled to enter such judgement between the date on which the cause of action accrued and the date of judgement under section 22 of the Courts Act, 1981, the plaintiff may apply to the Court ex parte for an order for judgement inclusive of such interest. The said application shall be supported by an affidavit sworn by the plaintiff or some other person who can positively swear to the facts specifying the sum then actually due and the facts relied on in support of the claim for interest.