COMBINED SUMMONS

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) CASE NO: /20__ In the matter between: JOHN LAWYER (Plaintiff) and JANE LAWYER (Defendant) __________________________________ TO THE SHERIFF/DEPUTY: INFORM JANE LAWYER, an adult female employed as a lawyer (hereinafter referred to as the Defendant) whose home and work address is 1 Lawyer Road, Cape Town, Western Cape THAT JOHN LAWYER, an adult male, employed as a lawyer (hereinafter referred to as the Plaintiff) whose home and work address is 2 Lawyer Road, Cape Town, Western Cape, hereby institutes action against him/her in which action the Plaintiff claims the relief on the grounds set out in the Particulars of Claim annexed hereto; INFORM the Defendant further that if he/she disputes the claim and wishes to defend the action he/she shall:-

within 10 (TEN) days of the service upon him/her of this summons file with the Registrar of this Court a notice of his/her intention to defend and serve a copy thereof on the Plaintiff’s Attorneys, which notice shall give an address referred to in rule 19(3) for the service upon the Defendant of all notices and pleadings in the action;
thereafter and within 20 (TWENTY) Court days after filing and serving the notice of intention to defend as aforesaid, file with the Registrar and serve upon the Plaintiff’s Attorneys a plea or exception with or without a claim in reconvention;

INFORM the Defendant further that if he/she fails to file and serve notice as aforesaid judgment as claimed may be given against him/her without further notice to him/her or if, having filed and served such notice, he/she fails to plead, except, or to counterclaim, judgment may be given against him/her; INFORM the Defendant also that if he/she does not intend to defend the action, he/she may give written notice to that effect to the Plaintiff’s Attorneys and the Registrar and the action may then, at the written request of the Plaintiff’s Attorneys, be forthwith set down by the Registrar for hearing; And immediately thereafter serve on the Defendant a copy of this Summons and return the same to the Registrar with whatever you have done thereupon. DATED AT CAPE TOWN THIS DAY OF 202__. ……………………………………………………………… REGISTRAR OF THE HIGH COURT JOHN LAWYER _____________________ Per.: John Lawyer (Plaintiff in person) 2 Lawyer Road Cape Town, 8001 Email: [email protected] Tel: 021 000000 To: THE HONOURABLE REGISTRAR OF THE WESTERN CAPE HIGH COURT HIGH COURT CAPE TOWN And to: JANE LAWYER (Defendant) 2 Lawyer Road CAPE TOWN ____________________O0O___________________

PLAINTIFF’S PARTICULARS OF CLAIM

The Plaintiff and the Defendant are as described on the face of the Summons.
The Defendant and the Plaintiff are domiciled within the area of jurisdiction of this Honourable Court.
On 01 January 20___, at Cape Town, Western Cape, the Parties were married to each other In Community of Property and Profit or loss. The marriage still so subsists.
Kindly find attached a copy of their marriage certificate marked “A”.
There are no minor children born from the marriage.
Plaintiff avers that by virtue of the following facts and circumstances the marriage relationship between the Parties has broken down irretrievably and that there is no reasonable prospect for the restoration thereof in that:
- There is no love and affection; and
- The Plaintiff no longer wish to be married to the Defendant.

WHEREFORE PLAINTIFF PRAYS FOR:

A Decree of Divorce;
Equal Division of the Joint Estate;
Costs, only in the event this action is defended; and
Further and / or alternative relief.

DATE AT CAPE TOWN ON THIS ____ DAY OF _________ 2021. I AM MY OWN LAYWYER _____________________ Per.: John Lawyer (Plaintiff in person) 2 Lawyer Road Cape Town, 8001 Email: [email protected] Tel: 021 000000 To: THE HONOURABLE REGISTRAR OF THE WESTERN CAPE HIGH COURT HIGH COURT CAPE TOWN And to: JANE LAWYER (Defendant) 2 Lawyer Road CAPE TOWN _____________________O0O___________________ Best Divorce Lawyer Cape Town Western Cape - Summons and Particulars of Claim

Posted on 11 February 2025 by Telelaw

COMBINED SUMMONS

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: /20__

In the matter between:

JOHN LAWYER (Plaintiff)

and

JANE LAWYER (Defendant)

__________________________________

TO THE SHERIFF/DEPUTY:

INFORM

JANE LAWYER, an adult female employed as a lawyer (hereinafter referred to as the Defendant) whose home and work address is 1 Lawyer Road, Cape Town, Western Cape

THAT

JOHN LAWYER, an adult male, employed as a lawyer (hereinafter referred to as the Plaintiff) whose home and work address is 2 Lawyer Road, Cape Town, Western Cape, hereby institutes action against him/her in which action the Plaintiff claims the relief on the grounds set out in the Particulars of Claim annexed hereto;

INFORM the Defendant further that if he/she disputes the claim and wishes to defend the action he/she shall:-

within 10 (TEN) days of the service upon him/her of this summons file with the Registrar of this Court a notice of his/her intention to defend and serve a copy thereof on the Plaintiff’s Attorneys, which notice shall give an address referred to in rule 19(3) for the service upon the Defendant of all notices and pleadings in the action;
thereafter and within 20 (TWENTY) Court days after filing and serving the notice of intention to defend as aforesaid, file with the Registrar and serve upon the Plaintiff’s Attorneys a plea or exception with or without a claim in reconvention;

INFORM the Defendant also that if he/she does not intend to defend the action, he/she may give written notice to that effect to the Plaintiff’s Attorneys and the Registrar and the action may then, at the written request of the Plaintiff’s Attorneys, be forthwith set down by the Registrar for hearing;

And immediately thereafter serve on the Defendant a copy of this Summons and return the same to the Registrar with whatever you have done thereupon.

DATED AT CAPE TOWN THIS DAY OF 202__.

………………………………………………………………

REGISTRAR OF THE HIGH COURT

JOHN LAWYER

_____________________

Per.: John Lawyer

(Plaintiff in person)

2 Lawyer Road

Cape Town, 8001

Email: [email protected]

Tel: 021 000000

To: THE HONOURABLE REGISTRAR OF THE WESTERN CAPE HIGH COURT

HIGH COURT

CAPE TOWN

And to: JANE LAWYER

(Defendant)

2 Lawyer Road

CAPE TOWN

____________________O0O___________________

PLAINTIFF’S PARTICULARS OF CLAIM

The Plaintiff and the Defendant are as described on the face of the Summons.
The Defendant and the Plaintiff are domiciled within the area of jurisdiction of this Honourable Court.
On 01 January 20___, at Cape Town, Western Cape, the Parties were married to each other In Community of Property and Profit or loss. The marriage still so subsists.
Kindly find attached a copy of their marriage certificate marked “A”.
There are no minor children born from the marriage.
Plaintiff avers that by virtue of the following facts and circumstances the marriage relationship between the Parties has broken down irretrievably and that there is no reasonable prospect for the restoration thereof in that:
- There is no love and affection; and
- The Plaintiff no longer wish to be married to the Defendant.

WHEREFORE PLAINTIFF PRAYS FOR:

A Decree of Divorce;
Equal Division of the Joint Estate;
Costs, only in the event this action is defended; and
Further and / or alternative relief.

DATE AT CAPE TOWN ON THIS ____ DAY OF _________ 2021.

I AM MY OWN LAYWYER

_____________________

Per.: John Lawyer

(Plaintiff in person)

2 Lawyer Road

Cape Town, 8001

Email: [email protected]

Tel: 021 000000

To: THE HONOURABLE REGISTRAR OF THE WESTERN CAPE HIGH COURT

HIGH COURT

CAPE TOWN

And to: JANE LAWYER

(Defendant)

2 Lawyer Road

CAPE TOWN

_____________________O0O___________________

Best Divorce Lawyer Cape Town Western Cape - Summons and Particulars of Claim

Children born out of wedlock – The issue of whose surname the minor child should have
Children born out of wedlock – let us have a look at the law when it comes to their surname, and changes to it. In the ideal world, a couple falls in love, gets married, and then bring a child into this world. However, since the beginning of time, this was not always the case. History has many stories of children who were born out of wedlock. This is more prevalent this modern day as many couples decide to start a family, without nuptials. Then there is the other extreme where a child is conceived through a brief encounter and then the parties continue with their own paths in life. The law and society also treat children born out of wedlock differently. This has changed to an extent where neutral terms are being used. Words like “illegitimate” and so on are used to refer to such innocent children whose fate was laid down by their parents. The law and society were so extreme, that even children born from religious marriages, which were not recognised as valid civil marriages were also referred to as “illegitimate”. It is however still shocking that the South African law we refer to later, still uses the term “illegitimate child”. Nonetheless, a beautiful innocent child is born, and then the issue of whose surname he or she should have has arisen. This is what this article addresses. Whose surname should a child born out of wedlock have, according to the law? And further, can such a surname be legally changed later?

Issues in relation to a surname of minor children born out of wedlock

This article deals with two issues in relation to a surname of a child born out of wedlock. The first is whose surname a child born out of wedlock should have according to the law? This is an important issue. There are a few scenarios that come to play. One where the parties lived together and planned on having the child and intend to marry or live together indefinitely. In such a case, maybe the child should have the father’s surname. Then there is the other situation, where the mother and the father of the child had a short intimate relationship, and he wants the child to have his surname. This could be complicated as he may never form part of the child’s life but wants the child to have his surname. This we refer to as an ego or vanity reason. And the second issue this article deals with is what the law says regarding a change to the surname of a child born out of wedlock. This is also an important issue as, sometimes, the father of a child born out of wedlock is the one who cares for the child and invests most of his life in the child. Situations can arise where it would be expedient for him to have primary care over the child and for the child to have his surname. We will look at this issue in more detail below. Now let us look at the law.

Births and Deaths Registration Act 51 of 1992

When it comes to issues of name, surname, details of the father on the birth certificate and so on, we refer to the Births and Deaths Registration Act 51 of 1992. What this Act says, is that within 7 (seven) days of the birth of the child born out of wedlock, or any child for that matter, notice of his or her birth must be given to the Department of Home Affairs in the prescribed manner. It further says that if the parents are married, then the child would have the father’s surname. However, that is not the case for children born out of wedlock as you will see later. The Births and Deaths Registration Act 51 of 1992 unfortunately still uses the term “illegitimate child”. But let’s have a look at it anyway.

Section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 of the Births and Deaths Registration Act 51 of 1992 is entitled “Notice of birth of illegitimate child”. It states the following: “10. (1) Notice of birth of an illegitimate child shall be given – (a) under the surname of the mother; or (b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged. (2) Notwithstanding the provisions of subsection (1), the notice of birth may be given under the surname of the mother if the person mentioned in subsection 5 (1 )(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.”

Explanation of section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 says that if the child was born out of wedlock, he or she should have the surname of the mother. However, if both the mother and father agree, then the child can have the surname of the father. Now, this is what the law says, and what would probably happen in life should the mother and father be on good terms when the child’s name is registered. However, what can the father do if later he wants the child to have his surname? In that case, we have to look at a different section of the Births and Deaths Registration Act 51 of 1992. And that is section 25 of the Act.

Section 25 of the Births and Deaths Registration Act 51 of 1992

Section 25 of the Births and Deaths Registration Act 51 of 1992 deals with the alteration of the surname of a minor. Unfortunately, in that section, the word “illegitimate minor” is still used. The sections state the following: “25. (1) When- (a) the birth of any illegitimate minor has been registered and the mother of that minor marries any person other than the natural father of the minor; (b) the father of any minor is deceased or his parents’ marriage has been dissolved and his mother remarries or his mother as a widow or divorcee resumes a surname which she bore at any prior time; (c) the birth of any illegitimate minor has been registered under the surname of his natural father; or (d) a minor is in the care of a guardian, his mother or his guardian, as the case may be, may apply to the Director-General for the alteration of his surname to the surname of his mother, or the surname which his mother has resumed, or the surname of his guardian, as the case may be, and the Director-General may alter the registration of birth of that minor accordingly in the prescribed manner: Provided that the man who married the mother of a minor mentioned in paragraph (a) or (b), shall grant written consent for the alteration. (2) Any parent or any guardian of a minor whose birth has been included under a specific surname in the population register, may on the strength of a reason not mentioned in subsection (1), apply to the Director-General for the alteration of the surname of the minor under which his birth was registered, and the Director-General may, on submission of a good and sufficient reason given for the contemplated alteration of the surname, alter the said original surname accordingly in the prescribed manner. (3) For the purposes of this section “guardian” includes any person who has in law or in fact the custody or control of a minor.”

Explanation of Section 25(1) of the Births and Deaths Registration Act 51 of 1992

Section 25 (1) provides for the situation where the minor can have his or her surname change. Most of the reasons mentioned sound logical. However, what happens in the case of a father wanting to change the child’s surname to his surname and the child was born out of wedlock? Well, in that case, section 25 (2) comes with an answer.

Section 25 (2) of the Births and Deaths Registration Act 51 of 1992

According to section 25(2), the father of the illegitimate child can make an application to the Director-General of the Department of Home Affairs for the change of the minor child’s surname born out of wedlock. However, if the mother is still alive, both parents must consent to the application. If, however, the mother does not consent to it, the father would have to make an application to the High Court to dispense with the mother’s consent and for the Director-General to apply their mind without the consent of the mother.

Court Application in relation to a surname of a child born out of wedlock

Should there be an application to Court, as just mentioned, the Court would have to look at what is in the best interests of the minor child. Various factors would be looked at. It is however suggested that ego reasons should not be the justification for making the application. In other words, the father wants the child to have his surname solely due to him being the father, even though the mother cares for the minor child.

Posted on 11 February 2025 by Telelaw