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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

28A. Third party procedure

 

(1)        Where a party in any action claims—

(a) as against any other person not a party to the action (in this rule called a 'third party') that such party is entitled, in respect of any relief claimed against him or her, to a contribution or indemnification from such third party; or
(b) any question or issue in the action is substantially the same as a question or issue which has arisen or will arise between such party and the third party, and should properly be determined not only as between any parties to the action but also as between such parties and the third party or between any of them,

such party may issue a third party notice, similar to Form 43 of Annexure 1, which notice shall be served by the sheriff.

 

(2)        

(a) A third party notice shall state the nature and grounds of the claim of the party issuing the same, the question or issue to be determined, and any relief or remedy claimed.
(b) In so far as the statement of the claim in a third party notice and the question or issue are concerned, the rules with regard to pleadings and to summonses shall mutatis mutandis apply.

 

(3)        

(a) A third party notice, accompanied by a copy of all pleadings filed in the action up to the date of service of the notice, shall be served on the third party and a copy of the third party notice, without a copy of the pleadings filed in the action up to the date of service of the notice, shall be filed with the registrar or clerk of the court and served on all other parties before the close of pleadings in the action in connection with which it was issued.
(b) After the close of pleadings, a third party notice may be served only with the leave of the court.

 

(4) If a third party intends to contest the claim set out in the third party notice he or she shall deliver notice of intention to defend, as if to a summons, and immediately upon receipt of such notice, the party who issued the third party notice shall inform all other parties accordingly.

 

(5) A third party shall, after service upon him or her of a third party notice, be a party to the action and, if he or she delivers notice of intention to defend, shall be served with all documents and given notice of all matters as a party.

 

(6)        A third party may—

(a) plead or except to the third party notice as if he or she were a defendant to the action; and
(b) by filing a plea or other proper pleading contest the liability of the party issuing the notice on any ground notwithstanding that such ground has not been raised in the action by such latter party:

Provided however that the third party shall not be entitled to claim in reconvention against any person other than the party issuing the notice save to the extent that he or she would be entitled to do so in terms of rule 20.

 

(7) The rules with regard to the filing of further pleadings shall apply to third parties as follows:
(a) In so far as the third party's plea relates to the claim of the party issuing the notice, the said party shall be regarded as the plaintiff and the third party as the defendant; and
(b) in so far as the third party's plea relates to the plaintiffs claim, the third party shall be regarded as a defendant and the plaintiff shall file pleadings as provided by the said rules.

 

(8)        

(a) Where a party to an action has against any other party (whether either such party became a party by virtue of any counter-claim by any person or by virtue of a third party notice or by any other means) a claim referred to in subrule (1), he or she may issue and serve on such other party a third party notice in accordance with the provisions of this rule.
(b) Save that no further notice of intention to defend shall be necessary, the same procedure shall apply as between the parties to a notice referred to in paragraph (a) and they shall be subject to the same rights and duties as if such other party had been served with a third party notice in terms of subrule (1).

 

(9) Any party who has been joined as such by virtue of a third party notice may at any time make application to the court for the separation of the trial of all or any of the issues arising by virtue of such third party notice and the court may upon such application make such order as it deems fit, including an order for the separate hearing and determination of any issue on condition that its decision on any other issue arising in the action either as between the plaintiff and the defendant or as between any other parties, shall be binding upon the applicant.

 

(10) Where a court makes a decision with regard to the liability of a defendant and any third party defendant and either of such defendants discharges the obligation to the plaintiff of the full amount or more than its fair share of the amount found to be due by it to the plaintiff, any of such defendants who discharges that obligation may execute against the other defendant for the amount which the court has found that defendant to be liable.