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Surely a fundamental of [Western] law is that the defendant must be
given full knowledge of the charge against him, in order to be able to
prepare his defence. So facts which are continually changing. eg. his
age must be considered as frozen at some time: the date of cause of
action.
The conflation of principles relevant to a debtor resulting from a single
[or finnished] transaction, to those of a running-account debtor
[eg. where there are continual but variable monthly charges] leads
to false conclusions.
Facts:-
A captive client [supplier not subject to discipline of competition]
in protest against the supplier's repeated false billing, informed
the supplier that he was with-holding payment until the repeated
error [blame the computer <programmer>] was fixed, or the
matter escalated to a court hearing.
The above is not essential to the logic of the argument and question;
but is given for those who need a real life context.
At date A the supplier gave written notice that:
"unless you pay $123 within 2 weeks we will take legal action".
At this date the debtor calculated that his debt was in fact $100.
By the time the summons to court was served [which the debtor
missed, but which is irrelevant to the logic of the argument] the
debtor's calculations showed that he owed $150, i.e. more than
the claim as per the demand and the summons: both for $123.
After the default judgment it was asserted that the defendant
would not have had a defense, since his own calculations showed
that at the time of summons issue he owed $150, i.e. more than
the claim of $123.
At the time of summons issue the false billing showed $180 owing.
As from the date A: of written notice; the billings showed
2 separate opening entries:
* BALANCE BROUGHT FORWARD = $xyz
* HANDOVER BAL BROUGHT FORWARD. = $123
The defendant maintains that this is unambigious confirmation
that the 'HANDOVER' claim of $123 is what the action is about,
and that other amounts owing since the date A are a separate
issue.
Additionally the defendant asserts that the logic of single transaction
debtors, where the summons may be ammended to SETTLE the dispute
is not applicable because:
1. the summons was NOT ammended,
2. the situation is one where the practical expediency of "settling"
is not possible, since the defendant is a property owner [captive
client] to the municipal services. Ie. the relationship has no forseeable
termination or settlement date. I.e. all that is possible is to determine
the situation of the accounts at a specific fixed date.
What needs to be 'settled' is the procedure for calculating the accounts.
The amount owing will continually vary, but the procedure which
causes the false billing CAN be SETTLED.
3. Since the legislation doesn't allow the property to be transfered
eg. by a sale; until the municipal accounts are settled [to a specific
date] there is no need to contrive: "determine the outstanding balance
in order to close the matter, before the debtor runs away", as
might be the case for a 'terminting/single transaction'.
Is the amount owed after the "hand over" validly includable in
determining if the debtor admitted owing more than the claim
FOR THE PURPOSE OF THE ACTION ?
Or is it true to say:
the plantiff must assert facts as being valid at a specific time,
and how the facts/conditions may change before or after the date of
cause of action, belongs to another matter ?
Or neither ?
Thanks for any answers, possibly also posted to:
easlab AT absamail . co . za
== Chris Glur.
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