Summary
Summary Chapter 14
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Detailed summary of chapter 14 from the fundamental principles of civil procedure textbook
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CHAPTER 14 – INTERIMPROCEDURES
Introduction
TYPES OF INTERIM PROCEDURES:
3 Main interim procedures:
Exception
Application to strike out
An irregular step – application to set aside
An Exception
WHAT:
An exception:
= Legal objection to the CONTENT of the opponent’s
pleading as a WHOLE
Thus it goes to the root of the pleading as a whole
The pleading is not legally valid
Attacks a fatal flaw in the opponents pleading
Applies ONLY to PLEADINGS
Not affidavits
Thus only applicable in the ACTION procedure
TERMINOLOGY:
Excipiable:
Refers to the pleading against which an exception
may be validly taken
Excipient:
Refers to the party taking the exception
Except:
, The party taking the exception, the excipiable,
‘excepts’ to the opposing party’s pleading
Respondent:
Refers to the opposing party against whose pleading
the exception is taken
Upholds:
The exception is granted
Ie: the excipient’s application succeeds
DETAILS:
Regulated by HCR 23(1) and MCR 19(1) – rules are
aligned
An exception = a PLEADING itself
Must comply with requirements for a pleading HCR
18 and MCR 6
Exception procedure may be used where:
The pleading is incapable, on reasonable
interpretation, of revealing a cause of action or
defence as recognised by law
Ie: pleading is not legally valid
Since an exception is a legal objection to a formal and
material defect which applies EX FACIE the pleading – no
facts outside the pleadings may be raised
Ie: no extrinsic evidence is needed
So.. the notice of exception may not contain any
additional averments – and no evidence may be
adduced at the hearing
For the purpose of deciding upon the exception – the
court will assume the truthfulness of the facts
contained in the pleading
Exception VS Special Plea:
Exception = a legal objection to a formal and
material defect which applies ex facie the pleading
Special plea = eg: lack of locus standi – if extrinsic
evidence is required OR if the defect does not apply
ex facie the pleading
UPHOLDING vs REFUSING APPLICATION FOR EXCEPTION:
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