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Summary Chapter 8
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Detailed summary of chapter 8 from the fundamental principles of civil procedure textbook
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CHAPTER 8 – APPLICATIONPROCEDURE
Introduction
GENERAL:
Application proceedings are also referred to as
‘motion proceedings’
Applicant commences proceedings by issuing a
notice of motion:
∙ Notice of motion is usually accompanied by a
founding affidavit
∙ Sometimes supporting affidavits and other
documentation are attached to the founding
affidavit
Respondent who wishes to oppose the application
issues an opposing/answering affidavit
∙ Sometimes supporting affidavits and other
documentation are attached to the
opposing/answering affidavit
∙ Respondent answers any allegations in against
him as stated in the founding affidavit
If necessary, applicant can issue another affidavit
responding to any allegations contained in the
opposing/answering affidavit, ie: the replying
affidavit
Affidavit = a oral/written statement made under oath
in the presence of a commissioner of oaths
∙ Person who gives the affidavit = deponent
∙ Commissioner administers the oath and attests
that the statements was made under oath
Normally in application proceedings, 3 types of
affidavits are exchanged (except in applications for
, summary judgment and applications in terms of HCR
43):
∙ Founding affidavit
∙ Opposing/ answering affidavit
∙ Replying affidavit
All these affidavits, together with their supporting
documents, set out the facts and evidence upon
which the parties’ claim or defence is based
Filing of further affidavits:
∙ Only allowed in exceptional circumstances
∙ Court may allow or disallow the filing as it deems
fit [HCR 6(5)(e)]
∙ Party must apply for leave from the court to file
further affidavits AND
- Party must give a proper explanation as to why
evidence was not placed before court earlier
AND
- Court must be satisfied that no prejudice will
be caused to any of the parties that cannot be
remedied by an appropriate cost order
Application procedure culminates the hearing of the
matter in motion court:
∙ On the date of the hearing – the legal
representatives of the parties argue the case on
the papers
∙ As a general rule, oral evidence is not heard
(except in exceptional circumstances)
∙ Arguments of legal reps are limited to legal
submissions and submissions based on the
allegations contained in the affidavits
Types of Applications
3 GENERAL TYPES OF APPLICATIONS:
Ex Parte applications
Bilateral applications
Interlocutory (interim) applications
EX PARTE APPLICATIONS:
, = A unilateral application where no notice is given to
another party against whom or which legal relief is
being sought
∙ Applicant is the only party before the court
An application will be ex parte when:
∙ No relief is claimed against another party OR
∙ It is improper or unnecessary to give any person
notice of the application
Applicant addresses the application directly to the
registrar or clerk of the court
∙ Registrar/ clerk must have been given prior
notice of the proposed application
BILATERAL APPLICATIONS:
This application is brought when it is clear from the
outset that another person’s rights will be affected
(this other person must receive prior notice of the
proceedings)
Applicant addresses the application to the registrar/
clerk of the court AND the respondent
∙ Both the registrar/clerk and the respondent must
be informed of the proceedings
INTERLOCUTORY APPLICATIONS:
= A provisional or temporary application which is
brought in order to obtain ancillary relief incidental
to main proceedings pending between the parties
∙ Essentially = an intervening step which may be
taken after action/ application proceedings have
commenced
Decides a procedural point
∙ Ie: where a respondent is obliged to take/
conform with a procedural step/ rule and does
not do so – the applicant may force the
respondent to do so by means of an interlocutory
application
∙ Examples
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