1.
Application procedure:
1.1. Intro
1.1.1. Known as motion proceedings and based on exchange of affidavits.
1.1.2. Party bringing application=applicant.
1.1.3. Party opposing application=respondent.
1.1.4. Issue/service of application:
1.1.4.1. The applicant commences the proceedings by issuing notice of
motion, which serves to advise the respondent of the applicants claim
and relief which the applicant seeks after which the application is
served on the respondent.
1.1.4.2. NOM=Usually accompanied by founding affidavit served on the
respondent.
1.1.4.3. Sometimes one or more supporting affidavits and relevant
documentation are attached to the affidavit.
1.1.5. Delivery of notice of intention to oppose (5 days) + answering/opposing
affidavit=15 days
1.1.5.1. Respondent who wants to oppose=must deliver an opposing affidavit
= which Answering affidavit together with any supporting affidavits
and relevant documentation in which the respondent answers
allegations of fact contained in the founding affidavit.
1.1.6. Delivery of replying affidavit (10 days)
1.1.6.1. If necessary the applicant may then deliver a replying affidavit in
order to address and respond to any allegations contained in the
answering affidavit.
1.1.7. Close + set down
1.1.8. Motion hearing order
1.1.9. There are three sets of affidavits exchanged (HCR 43):
1.1.9.1. Founding or initial
1.1.9.2. Opposing
1.1.9.3. Replying
1.1.10. The application procedure culminates in the hearing of the matter in motion
court. On the date of the hearing, the party’s legal representatives argue on
the papers. General rule=oral evidence is not heard and the arguments of
legal representatives are limited to legal submissions and submissions based
on allegations contained in the affidavits. However, there are exceptional
circumstances where the matter will be referred for the hearing of oral
evidence.
1.1.11. Distinguishing actions from applications:
1.1.11.1. General rule:
1.1.11.1.1. The choice between an action or an application procedure
depends on whether a bonda fide material dispute of fact is
anticipated by party initiating proceedings.
1.1.11.2. Material bona fide dispute of fact: by way of action
1.1.11.2.1. All patrimonial delictual damages (unliquidated damages)
1.1.11.2.1.1. Personal injury claims
1.1.11.2.1.2. MV claims
1.1.11.2.1.3. Non-patrimonial damages
1.1.11.2.1.4. Divorce proceedings
1.1.11.3. Certain types of proceedings: by way of application
1.1.11.3.1. Statue requires
1.1.11.3.2. Urgent relief is required
1.1.11.3.3. Types of claims
1.1.11.3.3.1. Insolvency
1.1.11.3.3.2. Interdicts
1.1.11.3.3.3. Joinder of parties
1.1.11.3.3.4. 3rd party joinder
1.1.11.3.3.5. Rescission of judgments
1.1.11.3.3.6. Reviews
1.1.12. Resolving a dispute of fact (HCR 6(5)(g)
1.1.12.1. Where a material dispute of fact has arisen during an application
proceeding, a court may:
1.1.12.1.1. Allow oral evidence to be heard:
1.1.12.1.1.1. Permit cross-examination at its discretion
1.1.12.1.1.2. Where factual dispute is of limited scope
1.1.12.1.1.3. But may not allow a party to establish a defense
through oral evidence where such defense is not set
out in the party’s affidavit.
1.1.12.1.2. Refer the matter to trial:
1.1.12.1.2.1. Where the factual dispute is material and complicated.
1.1.12.1.2.2. Order that the applicants founding affidavit serve as a
particulars of claim
1.1.12.1.2.3. Respondents opposing affidavit as a plea.
1.1.12.1.3. Dismiss the application with costs.
1.1.12.2. The plascon-Evans paints v Van Riebeeck paints rule:
1.1.12.2.1. When the respondent’s denial of a fact alleged by the applicant
does not raise a real, genuine or bona dispute of fact.
1.1.12.2.2. And where the court is satisfied as to the inherent credibility of
the applicant’s averments:
1.1.12.2.2.1. The court may decide the disputed fact in the
applicants favor, without hearing oral evidence.
1.1.12.2.3. Relief to the applicant will only be granted if the facts stated by
the respondent, together with the admitted facts in the
applicant’s affidavits to justify the order.
1.1.12.2.3.1. Exceptions to the rule: where the respondent’s denial
does not raise a bona fide dispute of fact
1.1.12.2.3.2. Where the respondent’s denial is far-fetched.
1.1.13. Affidavit (application)
1.1.13.1. Citation: Applicant/respondent
1.1.13.2. Averring facts defining claim and relief
1.1.13.3. May include evidence
1.1.13.4. May include points of law
1.1.13.5. Signed/sworn to by maker (deponent)
1.1.13.6. Attested to by commissioner of oaths
1.1.13.7. Specific mistakes in original affidavit corrected by further
supplementary affidavit.
1.2. Types of application:
1.2.1. Ex parte
1.2.1.1. No notice is given to the party (if any) against whom or which legal
relief is being sought and the applicant is the only party before the
court.
1.2.1.2. The applicant addresses the application directly to the registrar or the
clerk, who must be given prior notice of the proposed application.
1.2.1.3. Also termed=unilateral application since no respondent is cited.
1.2.2. Bilateral
1.2.2.1. Is brought when it is clear from the outset that another person’s right
will be affected and that such person must receive prior notice of the
proceedings.
1.2.2.2. Nature of the matter is such that prior notice to the other party will
not defeat the object of the application.
1.2.2.3. The application is directed to the registrar as well as the respondent
and both are informed by the proceedings.
1.2.3. Interlocutory or interim proceedings
1.2.3.1. Is a provisional or temporary application which is brought in order to
obtain ancillary relief incidental to certain main proceedings pending
between the parties.
1.2.3.2. It is an intervening step which may be taken after the commencement
of an action or motion proceedings and which decides a procedural
point.
1.2.3.3. Where the respondent is obliged to take a procedural step or
to conform with a procedural rule and does not do so, the
applicant may by means of an interlocutory application force
the respondent to take such a step or to conform with such a
rule.
1.2.3.4. Examples of interlocutory application:
1.2.3.2.1. An interim application whereby a party is compelled to furnish
security for costs
1.2.3.2.2. An application to strike out or to take an irregular step.
1.2.3.2.3. An interlocutory application in which he/she seeks a court order
compelling the respondent to comply with one of the rules
relating to the delivery of documents=compelling discovery.
1.3. Structure of an application:
1.3.1. Notice of motion + Affidavit + documentary evidence +
Verifying/confirmatory affidavits (if any) (where reference in affidavit is made
to communications or actions of other persons).
1.4. Service of application:
1.4.1. Issue (case no) and service by sheriff of application
1.4.2. By substituted service where necessary
1.4.3. Mere delivery of notice to oppose, opposing and replying affidavits between
parties.
1.5. Alternative service:
1.5.1. Where circumstances impossible for sheriffs service
1.5.2. Application may be brought to respondents attention by any reasonable
means.
1.6. Form of proceedings:
1.6.1. Notice of motion:
1.6.1.1. Serves to inform the court and the respondent,
1.6.1.1.1. that a specific type of application will be made on a specified
date, at a specified time at a specified court and
1.6.1.1.2. that the legal relief mentioned therein will be requested.
1.6.1.2. Form depends on type of application brought:
1.6.1.2.1. HC:
1.6.1.2.1.1. Form 2 (short form of notice of motion) =used in those
instances where the application is brought on an ex
parte basis and only the registrar gets prior notice of
the application. Interlocutory are also used.
1.6.1.2.1.2. Form 2A (Long form of notice of motion). =Bilateral
applications where it necessary for both the registrar
and the respondent to give prior notice of the
application.
1.6.1.2.2. MC
1.6.1.2.2.1. Form 1 (short notice of motion)
1.6.1.2.2.2. Form 1A (long notice of motion)
1.6.2. Affidavits
1.6.2.1. Used where NOM has to be supported by an affidavit.
1.6.2.2. Purpose=record certain facts under oath, which the court will then
consider in determining whether or not to grant the application.
1.6.2.3. There is no standard prescribed form for the affidavit and the
contents of the affidavit will vary widely depending on the nature of
the specific application.
1.6.2.4. Structure:
1.6.2.4.1. Heading and citation of parties.
1.6.2.4.2. Factual basis of jurisdiction.
1.6.2.4.3. Division into paragraphs& sub-paragraphs
1.6.2.4.4. Averment of material facts defining claim
1.6.2.4.5. Averment of relevant evidence
1.6.2.4.6. Averment of points of law
1.6.2.4.7. Averment explaining relief sought
1.6.2.4.8. The signature
1.6.2.4.9. Oath by maker deponent
1.6.2.4.10. Certified by commissioner of oaths.
1.6.2.5. Generally, the following information should appear in all supporting
affidavits:
1.6.2.5.1. Names and addresses of the applicant and respondent if
applicable.
1.6.2.5.2. Fact that the court has jurisdiction.
1.6.2.5.3. Material facts upon which the claim is based (facta probanda) as
well as the evidence which the deponent wishes to place before
the court (facta probantia).
1.6.2.5.4. Facts of the relief sought and a request to the court to grant the
relief as prayed for in the NOM.
1.6.2.5.5. Request to the court to grant relief as prayed for in the NOM.
1.6.2.6. If the applicant refers to documentary evidence in the supporting
affidavit, such documents must be attached to the affidavit.
1.6.2.6.1. The conclusion to be drawn from such documents must be
covered in the affidavits.
1.6.2.7. Only admissible evidence should be contained in the affidavit.
1.6.2.8. Where the applicant refers in the affidavit to communications or
actions by other person, such reference must be affirmed by
obtaining verifying/confirmatory affidavits from the said person and
attaching it to the affidavit.
1.6.2.9. The attachment of confirmatory affidavits is necessary in order to
comply with the evidentiary rule against hearsay evidence.
1.6.2.10. Where the applicant fails to include essential averments in the
founding affidavit =these cannot be included in the replying affidavit.
