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Magistrates' Courts Act, 1944 (Act No. 32 of 1944)

Regulations

Rules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa

18. Offer to settle

 

(1)        

(a) In any action in which a sum of money is claimed, either alone or with any other relief, the defendant may at any time unconditionally or without prejudice make an offer in writing to settle the plaintiff's claim.
(b) An offer to settle the plaintiff's claim shall be signed either by the defendant himself or herself or by his or her attorney if the latter has been authorised thereto in writing.

 

(2)        

(a) Where the plaintiff claims the performance of some act by the defendant, the defendant may at any time tender, either unconditionally or without prejudice, to perform such act.
(b) in the event of a tender contemplated in paragraph (a) the defendant shall , unless the act must be performed by him or her personally, execute an irrevocable power of attorney authorising the performance of such act which he or she shall deliver to the registrar together with the tender.

 

(3) Any party to an action who may be ordered to contribute towards an amount for which any party to the action may be held liable, or any third party from whom relief is being claimed in terms of rule 28A, may, either unconditionally or without prejudice, by way of an offer of settlement—
(a) make an offer in writing to that other party to contribute either a specific sum or in a specific proportion towards the amount to which the plaintiff may be held entitled in the action; or
(b) give an indemnity in writing to such other party, the conditions of which shall be set out fully in the offer of settlement.

 

(4) One of several defendants, as well as any third party from whom relief is claimed, may, either unconditionally or without prejudice, by way of an offer of settlement make an offer in writing to settle the plaintiff's or defendant's claim or tender to perform any act claimed by the plaintiff or defendant.

 

(5) Notice of any offer or tender in terms of this rule shall be given to all parties to the action and shall state—
(a) whether the same is unconditional or without prejudice as an offer of settlement;
(b) whether it is accompanied by an offer to pay all or only part of the costs of the party to whom the offer or tender is made, and further that it shall be subject to such conditions as may be stated therein;
(c) whether the offer or tender is made by way of settlement of both claim and costs or of the claim only; and
(d) whether the defendant disclaims liability for the payment of costs or for part thereof, in which case the reasons for such disclaimer shall be given, and the action may then be set down on the question of costs alone.

 

(6) A plaintiff or party referred to in subrule (3) may within 15 days after the receipt of the notice referred to in subrule (5), or thereafter with the consent in writing of the defendant or third party or order of court, on such conditions as may be considered to be fair, accept any offer or tender, whereupon the registrar or clerk of the court, having satisfied himself or herself that the requirements of this subrule have been complied with, shall hand over the power of attorney referred to in subrule (2) to the plaintiff or his or her attorney.

 

(7) In the event of a failure to pay or to perform within 10 days after delivery of the notice of acceptance of the offer or tender, the party entitled to payment or performance may, on 5 days' notice in writing to the party who has failed to pay or perform apply through the registrar or clerk of the court to a magistrate for judgment in accordance with the offer or tender as well as for the costs of the application.

 

(8) If notice of the acceptance of the offer or tender in terms of subrule (6) or notice in terms of subrule (7) is required to be given at an address other than that provided in rule 13(3), then it shall be given at an address, which is not a post office box or poste restante, within 15 kilometres of the office of the registrar or clerk of the court at which such notice must be delivered.

 

(9) If an offer or tender accepted in terms of this rule is not stated to be in satisfaction of a plaintiffs claim and costs, the party to whom the offer or tender is made may apply to the court, after notice of not less than 5 days, for an order for costs.

 

(10) No offer or tender in terms of this rule made without prejudice shall be disclosed to the court at any time before judgment has been given, and no reference to such offer or tender shall appear on any file in the office of the registrar or clerk of the court containing the papers in the said case.

 

(11) The fact that an offer or tender referred to in this rule has been made may be brought to the notice of the court after judgment has been given as being relevant to the question of costs.

 

(12) If the court has given judgment on the question of costs in ignorance of an offer or tender in terms of this rule and it is brought to the notice of the registrar or clerk of the court, in writing, within 5 days after the date of judgment, the question of costs shall be considered afresh in the light of the offer or tender: Provided that nothing in this subrule contained shall affect the court's discretion as to an award of costs.

 

(13) Any party who, contrary to this rule, personally or through any person representing him or her, discloses an offer or tender in terms of this rule to the magistrate or the court shall be liable to have costs given against him or her even if he or she is successful in the action.

 

(14) This rule shall apply mutatis mutandis where relief is claimed on motion or claim in reconvention or in terms of rule 28A.