Notice of Discontinuance (Form 125)

Chapter 12 Part 1 of the Uniform Civil Rules 2020 (SA) sets out when an applicant can end their own action. An applicant may file Form 125 without leave if the originating process has not been served and no other party has an address for service (r 141.2(1)(a)), or, for a claim, at any time before it is entered or listed for trial (r 141.3). Where the other side agrees, the parties use Form 126 Notice of and Consent to Discontinuance instead (r 141.2(1)(b)). In other cases leave is needed (r 141.4), and some applicants, such as a litigation guardian or a representative party, always need leave (r 141.1(1)). The rules also fix who pays costs, which is often the deciding factor.

When you need it

• You have filed but not yet served the claim or originating application, and no other party has given an address for service (r 141.2(1)(a)).
• You want to drop a claim before it is entered or listed for trial and accept the costs consequence in r 141.3(2).
• The court has granted leave to discontinue; the notice must then be filed within 14 days after leave is granted (r 141.4(3)).
• You are discontinuing against some respondents only. The form lets you name which parties discontinue against which parties.

1. 1

   Complete the heading

   Delete all but the correct court, add Court of Appeal, minor civil or the list name if applicable, list the parties with their party numbers, and give the case number.

2. 2

   Fill in the lodging party

   Give the full name of the party filing the notice and any law firm and solicitor acting for them.

3. 3

   Say who is discontinuing against whom

   List by party title and name the parties who are discontinuing, and the parties against whom the proceeding is discontinued. The form discontinues the proceeding wholly against those parties.

4. 4

   Tick the type of proceeding

   Mark claim, originating application, counterclaim, third party claim, contribution notice, appeal, cross appeal, notice of alternative contention, or other (specify). Only one notice is needed for the proceeding being ended.

• File the notice in the existing case through the CourtSA portal or at the registry.
• Serve a copy on each other party with an address for service as soon as practicable after filing (r 141.1(2)).
• Costs: if you discontinue before service or by consent under r 141.2, each party bears their own costs unless they agree otherwise. If you discontinue a claim without consent under r 141.3, you must pay the respondent's costs up to service of the notice on the standard basis.
• A respondent or interested party may, within 21 days after service of a notice under r 141.3, apply to set the discontinuance aside for special reasons (r 141.3(3), (4)).

• If the other side will agree, ask them to sign Form 126 Notice of and Consent to Discontinuance. Under r 141.2(2) each party then bears their own costs unless you agree otherwise, which avoids the costs order that comes with r 141.3.
• Once a claim is entered or listed for trial, or for an originating application that has been served, you generally need consent or leave. Apply for leave by interlocutory application and supporting affidavit (r 141.4(1)).
• Check whether r 141.1(1) applies: a co-applicant with a joint interest who does not join in, a litigation guardian, a partnership or association, or a representative party cannot discontinue without leave.