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LETERS OF DEMAND, Magistrates ACT: s56 Must be sent by registered mail -…
LETERS OF DEMAND
Benefits + Purpose
Cost saving: Settling without summons costs.
Cost aversion: avoiding litigation
Designed to place recipient on terms (Mora etc)
Procedure
Include the costs of the demand letter itself.
Identify Plaintiff/Applicant and defendant/respondant
Describe briefly the cause
NEVER SET OUT FACTA PROBANTIA
ELEMENTS OF LIABILITY
Describe the claims
A clause laying out what is demanded: Quantum; allocation of interest; performance; vacation.
Describe consequences of non-compliance
Formalities
Onus on receiver to rebut the presumption of receipt by registered mail.
SAVDEN
File away slip from post office with copy of letter to attach later to summons
Necessary
to establish a cause of action
Common law
Contract: Repudiation/cancellation
Lease
Legislation
General Laws Amendment Act
Interim interdicts against the state. Notice
Customs and excise Act
can only institute 30 days after notice and 1 year after cause and in specified format
Expropriation Act
Institute only after 1 Month's Notice and within 6 months of cause.
Institution of Legal Proceedings Against Certain Organs of State Act
Notice must be given within 6 months from the date the plaintiff comes to know of the identity of the organ of state and the facts giving rise to the action (this is the due date of the debt)
Once notice is given plaintiff must wait 30 days before summons or application
Condonation
Debt not prescribed
good cause for failure by creditor
OoS was not unreasonably prejudiced by the failure
Means of Delivery
Fax; Hand; Registered mail; E-mail. If electronic – also registered and proof of efforts to ensure delivery as well as contact person.
National Credit Act; Alienation of Land Act; Attorney's Act; Public Service Commission Act.
ALL Require demand prior to litigating
Claims for interest
Due and payable (Stipulated or Created – Mora)
liquid or illiquid (ascertainable vs evidence required)
Liquid
From Mora or
mora tempore
decided by court
Illiquid
On demand unless for future in which case from when court decided quantum.
Mora:
NEL V CLOETE
letter demand +
reasonable
period stated therein
Magistrates ACT: s56 Must be sent by registered mail