Fibrespinners successfully excepted to the claim on the grounds that the averments in the particulars were insufficient to sustain the cause of action.
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The bank had to show that its applications were a justifiable limitation of that right. Because the summonses lacked such averments, they could not sustain an order of execution.
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On 5 April 2010, Justice S. Muralidhar dismissed the petition, stating that allegations of violence and harassment were "vague averments" and that there as an "absence of any specific instances of any such attacks."Delhi High Court Dismisses Dorjee Shugden Devotees’ Charges 2010-04-10, retrieved 2010-04-29.
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As the affidavits filed were not lengthy, contained all the necessary averments and defined the issues with sufficient clarity, the court held that it would be pointless to order pleadings to be filed. Accordingly, and to save time and further expense, and as the particular circumstances of the case dictated such a course, it was found to be more appropriate to order that the affidavits stand as pleadings which were closed. The court ordered accordingly.
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John Julius Norwich, A History of Venice, First Vintage Books Edition May 1986, p. 104 Despite Genoese averments that Venice had nothing to do with the attack, the Byzantine Emperor Manuel I Komnenos (r. 1143–1180) used the attack on the settlement as a pretext to imprison all Venetian citizens and confiscate all Venetian property within the Byzantine Empire. The kastellion and the Jewish quarter were seized and destroyed in 1203 by the Catholic crusaders during the Fourth Crusade, shortly before the sack of Constantinople.
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I say I > "generally" because factual averments seldom stand apart from a broader > matrix of circumstances all of which needs to be borne in mind when arriving > at a decision. A litigant may not necessarily recognise or understand the > nuances of a bare or general denial as against a real attempt to grapple > with all relevant factual allegations made by the other party. But when he > signs the answering affidavit, he commits himself to its contents, > inadequate as they may be, and will only in exceptional circumstances be > permitted to disavow them.Para 13.
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The bond curtails the right of property at its root, penetrating the rights of ownership, for the bondholder's rights are fused into the title itself. Relying on Jaftha v Schoeman,2005 (2) SA 140 (CC). the court held that, since the mortgaged property was residential, the onus was on the bank to show that execution was permissible in terms of the Constitution: There should have been averments to the effect that the facts disclosed were sufficient to justify execution in terms of the right of access to adequate housing.s 26(1).
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Once the case was at issue, the defendant could reopen the pleadings in order to plead a newly discovered defense (and start the whole sequence again) by filing a plea puis darrein. The result of all this complexity was that to ascertain what was "at issue" in a case, a stranger to the case (i.e., such as a newly appointed judge) would have to sift through a huge pile of pleadings to figure out what had happened to the original averments of the complaint and whether there was anything left to be actually adjudicated by the court.
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At the hearing, the plaintiff and the defendant, or their legal representatives, adduce arguments before a motion court. These arguments are based on the allegations and averments raised in the summons, the defendant's opposing affidavit and the plaintiff's replying affidavit. The plaintiff delivers to the court the original liquid document on which the action is based and moves for judgment on it. The plaintiff's onus of proving the authenticity of the defendant's signature may be decided on the papers alone, or the court may allow the plaintiff to discharge the onus by calling for oral evidence.
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Should a plaintiff elect to issue a simple summons (HC) or ordinary summons (MC), and the defendant decides to defend the matter by filing his notice of intention to defend, the plaintiff is then obliged to file a declaration. The declaration is similar to the particulars of claim filed in a combined summons and must therefore contain all the essential averments of the cause of action. It will set out in detail the nature of the claim, the conclusions of law that the plaintiff is entitled to make from the facts, and a prayer setting out the relief to be claimed.Rule 15(2).
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The first and second respondents (as applicants) sought an order in a Local Division against the appellants (as respondents) declaring that their purported dismissal from the employ of the Transvaal Provincial Administration had been unlawful. The respondents' foundational allegation—that they were afforded no hearing—formed no part of the grounds upon which they obtained relief in the court a quo. That court, having regard to the averments made by the appellants (together with such facts as were common cause), held that, although the respondents had indeed been given a hearing, it had not been one which complied with the requirements of the audi rule.
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The words "creditor [...] of the company" in section 424(1) were to be construed as including person in respect of whom there had been an existing indebtedness at the time when the compromise was sanctioned. The court found additionally that, when disputes which had arisen such as would give rise to a variety of wide-ranging and substantial factual enquiries, the procedure under Rule 6(5)(g) of the Uniform Rules of Court was not appropriate. It was more appropriate to order the parties to trial. The affidavits in this case were not lengthy; they contained all the necessary averments and defined the issues with sufficient clarity.
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The respondent's attorneys were Scher Webner & Co, Cape Town, and Lovius, Block, Meltz, Steyn & Yazbek, Bloemfontein. The court found that a qualification was necessary to the general rule regarding final interdicts in motion proceedings. Sometimes the denial by the respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact. If the respondent in such a case has failed to apply for the deponents concerned to be called for cross-examination, and if the court is satisfied as to the inherent credibility of the applicant's averments, the court may decide the disputed fact in the applicant's favour, without hearing oral evidence.
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That morning, the Attorney General, Geoffrey Cox, said there was "no question of this government not obeying the law" with regard to the Act, and that the Government believed what legal obligations the Act contained was an open question. On 7 October 2019, the Cherry/Maugham petition to the Court of Session to force Johnson to comply with the Act was denied. The Outer House of the Court of Session ruled that there was no "reasonable apprehension of a breach of statutory duty" and that, in the light of averments before the Court that the Government would comply with the act, there was no need for a coercive order to enforce compliance. On 9 October, the Inner House of the Court of Session decided that a final ruling on the petition would not be made until 21 Octobertwo days after the deadline in the Act for the Prime Minister to request an extension.
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Hostettler (2010) p. 48 The jury retired, and after half an hour of discussion returned to declare Shipley "guilty of publishing only". After a long and "confounding" debate between Erskine, Buller, and the jury, Buller declared Shipley guilty on all counts.Hostettler (2010) p. 50 Erskine immediately appealed the decision to the Court of King's Bench, where he argued on 8 November that Buller's statement had misdirected the jury, and that as the jury was traditionally not given the right to investigate Shipley's actual guilt, the previous trial was invalid; a jury should be permitted to determine not only whether a statement was published, but whether it was libellous. With the exception of Mr Justice Wiles, the court unanimously declared that Erskine's arguments were incorrect, and that the jury had no such role; accordingly, his appeal was denied. Shipley was, however, later freed when the King's Bench held that the initial indictment had been invalid because "there were no averments to point the application of the paper as a libel on the king and government".
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Instead of piling layers and layers of pleadings and averments on top of each other, a pleading that was attacked by demurrer would either be completely superseded by an amended pleading or would proceed immediately "at issue" as to the validly pleaded parts. This meant that to determine what the parties were currently fighting about, a stranger to a case would no longer have to read the entire case file from scratch, but could (in theory) look only at the most recent version of the complaint filed by the plaintiff, the defendant's most recent answer to that complaint, and any court orders on demurrers to either pleading. Code pleading was criticized because many lawyers felt that it was too difficult to fully research all the facts needed to bring a complaint before one had even initiated the action, and thus meritorious plaintiffs could not bring their complaints in time before the statute of limitations expired. Code pleading has also been criticized as promoting "hypertechnical reading of legal papers".
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This system of pleading was not a bad one if accompanied by the right of either party to demur to his opponent's pleading, i.e. to say, "admitting all your averments of fact to be true, you still have no cause of action", or "defence" (as the case may be). It may be, however, that the authors of the new system were too intent on uniformity when they abolished the common-law pleading, which, shorn of its abuses (as it had been by the Common Law Procedure Acts), was an admirable instrument for defining the issue between the parties though unsuited for the more complicated cases which are tried in chancery, and it might possibly have been better to try the new system in the first instance in the chancery division only. It should be added that the rules contain provisions for actions being tried without pleadings if the defendant does not require a statement of claim, and for the plaintiff in an action of debt obtaining immediate judgment unless the defendant gets leave to defend.
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