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Civil procedure Semester 2
3. Litigation phase
Applications – Theo chapter 8
1. General
Application
o E.g. divorcee hears that ex’s pension has been paid out into their bank account and
they want their portion – approach court with an application
Vis a vis actions
o Quick and inexpensive
o Sworn affidavits – court considers affidavits and bases findings hereon
o Determined on documents
o Not suited to a real dispute of fact (because it is based on affidavits)
o Oral arguments based on affidavits
o Order, not judgment = legal remedy by way of application
Parties: applicant and respondent
Format
o Approach court with Notice of Motion and founding affidavit
o Respondent then files Opposing (Answering) affidavit
o Replying affidavit
Powerful weapon if used properly
Distinguish HC and MC
o Always begin with jurisdiction
o Always approach HC with application unless there is a divorce or claim for damages
(must use action)
o Cannot approach MC with an application unless there is a specific provision in the
MCA that provides for it
2. Types of applications
With notice vs ex parte
o With notice = applications involving giving notice to opponent (bilateral application)
o With notice = point of departure
o Ex parte = no notice is given when these applications are brought before the court
(one-sided application)
Interim (interlocutory) vs substantive
o Interim = part of a bigger picture e.g. an action that is busy taking place
o Substantive = taken to court on basis of specific remedy being sought
Opposed vs unopposed – two different court rolls
Urgent
2.1 Ex parte
You have passed your attorneys admittance exam and want to be admitted as an attorney.
You have to approach the court on application to do this. You have to draft the application
yourself, and will have to start by deciding what type of application will be correct = ex parte
i. General nature
General rule: without notice
Definition: from one side (on behalf of one side)
Exception to audi alteram partem rule
1
, Circumstances:
- A only interest
- Preliminary step
E.g. attachment of property for jurisdiction – using this as stepping stone
for a bigger picture, like serving a summons
Look at TB w.r.t. edictal citation, substituted service – here there is a
respondent
- Urgent relief
No time to give respondent notice, or giving notice might bring about the
result you are trying to avoid with the application in the first place
Duty of good faith in ex parte applications, because there is only the applicant,
whom the court chooses to believe
- Court expects to be informed of all relevant facts
- Court will rescind order and order hefty cost order if applicant does not act with
good faith
Intervention: possible for a person to intervene in an ex parte application
Where rights of others are influenced in the HC and in all cases in the MC:
- Court will not grant a final court order, but rather a rule nisi (interim court
order)
- Serve interim court order on respondent; both of you must return to court on
return date
- On this date, court will either make the order final (confirm) or discharge it
- Time period = at least 10 court days
HCR 6(4) = procedure
MCR 55(3) and s 30 and 32
- Procedure + authorizing sections
ii. Form
Notice of motion – see SL
- SCA Form 2 of First Schedule
- MCA Form 1 of Annexure A
- Known as the short form
Sworn affidavit
Concept order
iii. Procedure
Take instructions from client
Research; make sure you have grounds to approach the court
Draft and sign document before a commissioner of oaths
Ex parte application issued by clerk/registrar – they give a case number
Go with application to judge/magistrate in his chambers – tell them its urgent and
get them to look at the documents
If they are happy, they will grant an interim order
Service of this document and execution
Confirm on return date
iv. Opposing
Opposing sworn affidavit – set it out immediately
- Answer allegations in founding affidavit
- File notice of opposition
Anyone who hears about ex parte application can apply for leave to intervene – HCR
6(4)(b)
Respondent can anticipate return date – let applicant know they have chosen a
return date in 24h
2
, - If the person does not want to have to deal with the consequences of the
application for 10 days
Respondent will try to discharge rule nisi on return date
Counter-application
v. Placed on the roll
Request in notice of motion
Indicate when return date will be and ask for matter to be placed on the roll
Practical:
- HC: before 12:00 on the 2nd court day before hearing
- MC: arrange with clerk
2.2 With notice
i. General nature
o General rule: audi alteram partem
o HCR 6(5)(a): other than in the limited cases where it is permissible to bring an
application ex parte, you are obliged to bring the application on notice in the
following cases:
- Seeking final relief against someone: ex parte applications used for
intermediary relief
- Order affects someone’s rights/interests: ex parte usually used when rights
of third parties aren’t affected
o MCR 55 + authorizing provision e.g. rule 14 (application for summary judgement), 49
(apply to court to rescind judgement), 60 (order a person to stick to court rules);
section 29, 32 (allows you to attach certain assets), 74
o HCR 6(11) and MCR 55(4)(a): interlocutory applications must be brought on notice,
supported by affidavits
- Notice ≠ notice of motion, merely means opposing party must be informed
in writing and the notice filed with registrar
ii. Form
o Notice of motion
- SCA Form 2(a) of First Schedule
- MCA Form 1A of Annexure A
- Known as long form
o Attach to sworn affidavit
o Concept order; not as NB as in ex parte application
Test 2 notes cover work up to here
iii. Procedure
o Take instructions
o Research
o Draft and sign
o Issue
o Service
o Receive opposing papers
o Hearing
iv. Opposing
o Notice of opposition: given at least 5 days from when application is received (time
specified in notice of motion)
o Opposing sworn affidavit: within 15 days after filing notice of opposition
- Respond to allegations of fact in founding affidavit
- Must also set out any additional facts which will make up respondent’s
defence
3
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