Contains ALL prescribed content for Term 3 Semester work, needed for the test on 26/09/2020: Unit 8 - Unit 10 integrated case summaries drafting notes. These notes were compiled using the podcasts, slides, drafting notes & textbook.
Study Unit 8: Action Proceedings compared to Application
Proceedings
Background to forms of litigation:
“The proceedings are considered from the time of commencement of the matter
by way of application or action. The differences and interaction between these two
forms of procedure run like a golden thread through the law of civil procedure.”
Eckard: Principles of Civil Procedure
“The decision whether to proceed by way of action or application is crucial…” Peté
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,8.1 The decision: action or application?
Bring an action OR launch an application
Application procedure for High Court = HCR 6
Application procedure for Regional & District MC = MCR 55 (based on HCR 6)
How to decide?
o Establish: Whether your client has (on the face of it) a legal remedy
o Choose form of remedy: action or application proceedings
Very NB decision
Major consequences if incorrect form chosen
There are major differences in the processes
Actions/ Busses:
o Reason for bus analogy action process, like a bus, is slow, it’s big, always in
the way, can take a lot of people, it can handle a lot of content, it’s slow, & it
stops at a lot of places before it gets to where it needs to be.
Applications/ Race cars:
o Reason for race car analogy application process, like a race car, doesn’t have
a lot of space, can’t fit a lot of content, it’s quick & fast, & gets where it needs to
go ASAP.
8.2 Essential differences between actions & applications
8.2.1 Actions (BUS)
Who:
o Plaintiff & defendant
Characterised by:
o Separation between pleading stage, trial stage, & evidence stage
Process:
(1) Exchanging of pleadings between parties:
Summons & plea
Paper war
Only set out material facts/ COA in the pleadings
Main allegations on which the claim is based are set out by the
plaintiff
The plea is a specific kind of pleading
o Defendant will set out his/her defence
Main allegations on which the defence is based are set out by the
defendant
o Kinds of evidence that will be relied upon is not stated in this
stage
Drafted by legal representatives
o Not affirmed under oath
Can take a lot of time, for instance there may be a need for the
amendment of pleadings
(2) Discovery of evidence/ preparation for trial phase
Making sure evidence lines up correctly before you go to court
Parties try to prove the allegations & responses contained in the pleadings
Once this phase is finalised, then the trial phase will commence
(3) Trial
Done through witnesses or handing in of evidence documents
Oral evidence
3
, Opening statements, closing arguments etc.
Witnesses are examined-in-chief, cross-examined & then re-examined
Court gives judgment
8.2.2 Applications (RACE CAR)
Who:
o Applicant & respondent
Characterised by:
o No separation of pleadings stage & evidence stage
Process:
(1) Notice of motion
Applications also called motion proceedings
Sets out legal remedies you require & the procedure you want to follow in
court
Attached to it, you will have sworn affidavit
(2) Sworn affidavit
Paper-based procedure (typically no witnesses).
Evidence is contained within the sworn affidavit.
When a person signs an affidavit, he/she is swearing that the content is
true & correct. If it is found that the information is false, then that person
could be held liable for perjury/ be prosecuted.
Affidavits contain:
Supporting documents – annexures
Set out issues of fact between parties (same as pleadings in
actions)
Contain evidence which the respective parties need to adduce in
proof of their factual allegations (averments)
Results in court being in possession of pleadings AND evidence
when the matter is set down for hearing
Hearing of an application = legal argument by legal reps of parties
& oral evidence is only allowed in exceptional circumstances
(3) Opposing (not through plea, done through opposing affidavit)
(4) Trial
8.3 Essential differences between trial courts & motion courts
*Why is it NB to distinguish between the two?
Action: trial court
o Raised bench for judge/magistrate
o Tables for plaintiff’s and defendant’s legal representatives
o Witness box
o Can be very quick (day or two) or long (weeks/months)
Application: motion court
o Large number of practioners appear in a motion court
o 2 main types of applications
Opposed applications
Respondent is at court to argue against applicant
Set down for hearing, a few days in advance
May only argue issues in the documents before the court
Resembles the closing argument stage
Unopposed applications
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