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CIV 3701 Civil Procedure B-final EXAM-notes | 2021
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CIV 3701 Civil Procedure B-final EXAM-notes | 2021
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CIVIL PROCEDURE BAPPLICATIONS
Application proceedings, also known as motion proceedings, are based upon the exchange of affidavits
and are thus intended to be disposed of without viva voce evidence
The party bringing the application is known as the applicant and the party opposing the application, if
any, is known as the respondent
The applicant commences proceedings by issuing a notice of motion, which serves to advise the
respondent of the applicant’s claim and the relief which the applicant seeks
The notice of motion is usually accompanied by a founding affidavit, (a written statement under oath)
and sometimes one or more supporting affidavits or relevant documentation are attached to the
affidavit
The respondent who wants to oppose the application must deliver an opposing affidavit (or answering
affidavit) in which he answers the allegations of fact contained in the founding affidavit
If necessary, the applicant may then deliver a replying affidavit in order to address and respond to any
allegations contained in the answering affidavit
• Preliminary questions: is application the right procedure? Which court?
• Summons - action; notice of motion – application
When to use them
• When the law requires it
• No material dispute of fact - Room Hire v Jeppe Street
• Mag court: can only bring cases allowed for in the MC -
examples
o To appoint a curator ad litem
o For rescission or variation of a judgment
o For separation of trials
o For removal of a case to the HC
Dispute of fact
General rule that applicant should not anticipate material dispute of fact (Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd):
• When such a dispute is anticipated, a trial action should be instituted;
• Otherwise motion proceedings are permissible in order to avoid the delay and expense involved in a
trial action
From this general rule, it follows that motion proceedings should not be instituted in:
o Claims for unliquidated claims
o Matters in which it is anticipated that a material dispute of fact will arise
o Claims for divorce
Notwithstanding the rule regarding anticipated disputes of fact, there are certain types of proceeding in
which application proceedings should always be used, i.e.:
o Insolvency proceedings
o Where a party seeks urgent relief
o Where legislation dictates so
Room Hire v Jeppe Street Mansions
A person who chooses to proceed by motion runs the risk that a dispute of fact may be shown to exist. The
Court then has a discretion as to the future course of the proceedings. It may call viva voce evidence
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, under rule 9, or if that is not suitable it may send the parties to trial, or it may dismiss the application with
costs.
In answering whether there is a real dispute of fact, bare denial not enough to prove dispute .’. 3 principles:
(a) when the respondent denies all the material allegations made and produces evidence to the
contrary, by witnesses or affidavit.
(b) respondent may admit the applicant's affidavit evidence but allege other facts which the applicant
disputes.
(c) respondent may concede that he has no knowledge of the main facts stated by the applicant, putting
applicant to prove them, but absence of any positive evidence possessed by a respondent directly
contradicting applicant's main allegations does not render a case such as this free of a real dispute of
fact.
Held: There was a dispute of fact and the case was sent back to the court a quo to deal with it in one of the
3 ways (1) dismissal of application, (2) sending the case to trial or (3) ordering oral evidence under Rule 9.
THREE TYPES OF APPLICATIONS
1. On notice applications
• notice given to parties
• Just because notice of the application is given to the opposing party, does not mean the application will
be opposed in court
• The majority of 'on notice' applications heard in the HC are unopposed, because the respondent, for
whatever reason, decides not to instruct counsel to oppose the order which is being sought against
him/her/it
2. Interlocutory applications
• Do not initiate proceedings; incidental to already pending proceedings (achieve objectives during
existing proceedings
• Example: applications to compel discovery of documents/ interim relief in matrimonial matters
• Distinguished from normal applications:
• 'On notice' applications: notice of motion and supporting affidavits, served on respondent by the
sheriff
• Some interlocutory applications can be made from the bar – eg. without any papers
• Example: application for leave to appeal at the end of a criminal trial (s.316(4)(b) CPA)
3. Ex parte applications
Relationship between ex parte and urgent applications
Not the same, but frequently coincide
Without notice
Urgent applications
HC Rule 6(12); MC Rule 55(5) but rare in the MC
When application not able to comply with court rules relating to service and notice periods
Applicant must inform court of:
o Reasons for application's urgency and why cannot wait to get relief by way of normal
application
Applicant cannot create own urgency
Frequently, but not necessarily, ex parte ‘.’ here there is a respondent and urgent application may
affect rights of another, but notice to respondent may frustrate relief
HC Rule 6(12)(c): urgent application (not rule nisi) order granted in absence of respondent - can set
down matter for reconsideration
o whereas rule nisi an interim order that lasts only for specified time and both parties inevitably
return to settle the matter
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, Breaches audi alteram partem .’. respondent must give reason why it should not have been granted
in their absence, after set down for reconsideration
o applicant still able to serve replying affidavit (Industrial Development Corporation of SA v
Sooliman)
HC division Rules of Practice (not the same as the rules of Court) for urgent applications differ
Ex parte applications
The order requested does not affect another person’s rights
The applicant is the only interested party to proceedings (ie. non-adversarial matter)
o eg. rehabilitated insolvent
No ex parte applications allowed against the State - s 35 General Law Amendment Act of 1955
o Hence, even if the application is urgent, notice must be given to the State, State employees,
provincial governments and their employees
o Although one can shorten the time period
NOTICE OF MOTION
• Bringing notice to parties and court (Registrar or opponent) that you're going to make an application for
an order
• Applicant and respondent
• Served on parties and Registrar of Deeds/Master - Rule 6(9)
In the HC ‘on notice’ – Form 2(a)
• Applicant's and respondent's identity and address
• Give respondent time limit
• Warn respondent – if no notice of intention to oppose within 10 days after service, matter will be set
down as unopposed
• Exception – state department oppose within 15 days (Rule 6(13))
• Informs respondent of relief/remedy sought by applicant
In the HC ex parte - Form 2
• Applicant's identity and address
• Informs Registrar of HC of the relief sought
Exceptions to Form 2 and 2(a)
• Rule 43 application: notice of motion must follow the format specified in Form 17 - precursor to a
divorce
• Applications for restitution of conjugal rights: the notice of motion must follow the format specified in
Form 17A
AFFIDAVITS
• NoM has to be supported by a founding affidavit, and if necessary, supporting affidavits
• Affidavit = a statement under affirmation/oath (sworn statement) that is signed by the person making the
statement (deponent) before a commissioner of oaths; stating why they are entitled to the relief asked for
Form and content
• Founding affidavit contains the main evidence in support of notice of motion (if no time to draft
affidavit, submit Notice of intention to oppose and affidavits later)
• Supporting affidavits: affidavits of witnesses who provide further evidence in support of the
applicant's version
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, • Confirming affidavit: affidavits of witness agreeing with another deponent's version
Founding affidavit
1. Establish legal capacity and jurisdiction
2. pre-empt allegations of hearsay (standard clause according to personal knowledge)
3. establish locus standi and jurisdiction over cause of action or over respondent
• Founding and supporting affidavits must cover all legal elements on which applicant relied, and
evidence of the supporting elements
o If further details need to be added to affidavit, either get permission in Judge’s chambers or
file supplementary affidavit (if respondent argues irregular - counter that respondent won’t
suffer prejudiceed and that it is in the interests of justice)
• Must state the source of the applicant/deponent's information; this is so even if the allegation
concerned is confined to an assertion of belief
o See: Mears v African Platinum Mines Ltd and Others (1) 1922 WLD 48 at 55; Grant-Dalton v
Win and Others 1923 WLD at 187
Mears v African Platinum Mines Ltd and Others (1) 1922 WLD 48 at 55
“Hearsay evidence, evidence of information and belief, is admitted in interlocutory applications, I do not
know that any rule has been laid down in these Courts as to the limitation of this admission. In the English
Courts such allegations are provided for by Rule of Court Order 38, Rule 3. But even there the allegation is
confined to an assertion of information and belief and the source of information and ground of belief must
be given. In the case of an urgent application the party cannot be expected to set forth his evidence on
affidavit. The Court does not admit as evidence that which is not evidence, but in order to prevent
irremediable injury, keep matters in status quo and do justice on an interlocutory application, the Court will
act on information and belief.”
Grant-Dalton v Win and Others 1923 WLD
Court will not admit statements of belief and information in interlocutory applications, unless grounds on
which they are made are set out
Founding and supporting affidavits must be attached to NoM
Affidavits define issues and place evidence before court, using primary and secondary facts
o Swissborough Diamond Mines v Government RSA 1999 (2) SA 279 (W) at 323-324
Relevant docs should be attached to their respective affidavits as annexures (using initials before
annexure numbers)
Rules of practice
o Do not commission own client's affidavits - Rule 15(e) of EC Rules of Practice, and in other
HC Rules
o Authority to depose to affidavit often challenged by desperate council, if sworn on behalf of
company
Therefore, explain why they are able to depose to truth and resolution attached to
confer authority to depose thereto o/b company
according to case law, no need for authority to depose; rather authority to initiate
proceedings:
Ganes & another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) para 19
“[19] There is no merit in the contention that Oosthuizen AJ erred in finding that the proceedings were
duly authorised. In the founding affidavit filed on behalf of the respondent Hanke said that he was duly
authorised to depose to the affidavit. In his answering affidavit the first appellant stated that he had no
knowledge as to whether Hanke was duly authorised to depose to the founding affidavit on behalf of the
respondent, that he did not admit that Hanke was so authorised and that he put the respondent to the proof
thereof. In my view it is irrelevant whether Hanke had been authorised to depose to the founding affidavit.
The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to
depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be
authorised. In the present case the proceedings were instituted and prosecuted by a firm of attorneys
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