0% found this document useful (0 votes)
57 views334 pagesCivil Procedure
The document outlines court procedures, focusing on pleadings, application, and action procedures in both the High Court and Magistrates' Courts. It details the purpose of pleadings, the drafting process, and the types of applications, including substantive and incidental applications, as well as the Plascon-Evans rule regarding material disputes of fact. The document serves as a comprehensive guide for legal practitioners on the procedural aspects of court cases.
Uploaded by
Lukhanyo NdaleniCopyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF or read online on Scribd
0% found this document useful (0 votes)
57 views334 pagesCivil Procedure
The document outlines court procedures, focusing on pleadings, application, and action procedures in both the High Court and Magistrates' Courts. It details the purpose of pleadings, the drafting process, and the types of applications, including substantive and incidental applications, as well as the Plascon-Evans rule regarding material disputes of fact. The document serves as a comprehensive guide for legal practitioners on the procedural aspects of court cases.
Uploaded by
Lukhanyo NdaleniCopyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF or read online on Scribd
/ 334
Court Procedures
(Paper 1)
TABLE OF CONTENTS
Author's & presenter’s page
Chapter 1 ~ Pleadings generally
Chapter 2 — Application procedure in the High Court
Chapter 3 — Action procedure in the High Court
Chapter 4 ~ Capita selecta in the High Court
Chapter 5 — Application procedure in the Magistrates ‘Courts
Chapter 6 ~ Action procedure in the Magistrates ‘Courts
Chapter 7 — Capita selecta in the Magistrates ‘Courts
Chapter 8 — Criminal Procedure
Chapter 9 — Motor vehicle accidents
Issue 5 — January 2022 Gawie le Roux Institute of Law |
Published by
Gawie le Roux Practical Legal Training (Pty) Ltd |
registration number 2005/007909/07
trading as the Gawie le Roux Institute of Law
451 Flinders Lane, Lynnwood, Pretoria
P 0 Box 74047, Lynnwood Ridge, 0040
‘
Telephone: (012) 361-1715,
Facsimile: (012) 361-1108
Email: [email protected] C
Website: www.gawieleroux.co.za
4* edition June 2019
2” edition February 2020
3” edition January 2021
4 edition dune 2021
5" edition January 2022
Set up on personal computer by the Gawie le Roux Institute of Law and photocopied
by Kitskopie, Pretoria. Chapter 1
PLEADINGS GENERALLY |
Introduction fo pleadings
2 Purpose and function of pleadings 2 |
3 Drafting of pleadings 2
4 Action proceedings 3 |
5 Application proceedings 4
6 Incidental or interlocutory application proceedings 4
7 Substantive application 5
8 Final relief and the Plascon-Evans rule 5
9 Types of processes 6
10 Notice of motion 7
11 Urgent applications 8
Rule nisi
1 Introduction to pleadings'
1.1 Inthe High Court proceedings are commenced either by way of action or by
application
© Inaction proceedings, pleadings are delivered; while
© in application proceedings the parties deliver affidavits,
1.2 Interlocutory or incidental applications can arise in both actions and applications. |
The parties will then, in most instances, exchange affidavits.
* Peter van Blerk Legal Drafting - Civil Proceedings Juta 2” ed 2017 5-6,
HH [Vanuary 2023) [Issue 5} Chapter 4-2 Gawie le Roux Institute of Law
4.3. There is one form of action which is a quas/ exception to this: provisional sentence
proceedings under rule 8 of the Uniform Rules of Court. The initial stages of
provisional sentence proceedings are similar to an action but thereafter, the
defendant answers the plaintiff's summons with an affidavit or affidavits, to which
the plaintiff replies, also by affidavit. This procedure is, at this stage, in many
respects similar to an application.
|
|
|
|
1.4 Chapters 2 to 4 deal with the procedures in the High Court, whereas chapters 5 to 7
deal with the procedures in the Magistrates’ Court.
4.5. In chapter 2 attention is given to the application procedure in the High Court; in
chapter 3 attention is given to the action procedure in the High Court; and in chapter
4 procedures relating to both application and action in the High Court are discussed.
1.6 Much of what appears in these chapters can be applied to magistrates’ court
pleadings. The now limited differences between the requirements in these two
courts are highlighted in Chapters 5 to 7, which chapters focus on the procedures in
the Magistrates’ Court.
2 Purpose and function of pleadings
2.1 There are three reasons why pleadings are required
1) for the parties to be informed of the issues in dispute between them so that
they may prepare for trial;
2) for the court to be informed of the issues so that it may know of the limits of
the dispute before it; and
3) sothet the ‘on record lest one or the other parties seek to
reopen the same dispute after they have already been determined?
3 Drafting of pleadings
To achieve the objectives in paragraph 2 above, the pleadings must be prepared
with as much precision as possible.”
Rule 18(4) of the Uniform Rules of Court provides that:
2 king v King 1971 (2) SA 630 (0) at 635A-H as cited in Van Blerk above on 6,
3 King v King 1974 (2) SA 630 (0) at 635A-H as cited in Van Blerk above on 6.
Tssue 5) (Wanuary 2022]
TT leadings thapter 4
very pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, defence or answer to any
pleading, as the case may be, with sufficient particularity to enable the opposite
party to reply thereto.”
Rule 18(3) provides that:
“Every pleading shall be divided into paragraphs (including sub-paragraphs)
which shall be consecutively numbered and shall, as nearly as possible, each
contain a distinct averment.”
4 Action proceedings
felion proceediigs ctarted by tte totaling of Sumcons
4.1.1 An action is commenced by the issue and service of a summons . In the case of a
claim for a(debt or a liquidated demand)a simple summons may be issued,
‘<-- whereas in all other cases the plaintiff is obliged to issue a. combined summons..
which fs required to have annexed to it a statement of the material facts relied upon,
by the plaintiff — known as particulars of claim,
¢ Asimple summons contains only a brief description of the cause of action.
ining a statement
of the material facts relied upon, known as a.declaration, For all practical
Purposes, as far as the preparation of pleadings is concerned, the plaintif’s
and are subject to the same principles. For the sake of convenience,
reference will be made to particulars of claim to cover both these types of
(> documents.
© The defendant is required to respond to the particulars of claim by means of
Aplea. The defendant may simultaneously deliver a claim in reconvention,
(often referced to as a counterclaim), in which the defendant.makes aclaim,
against the plaintiff. Such a counterclaim is nol required to relate to the.claim..
linst the defendant. The pleadings for the claim in reconvention then
follow the same course as those in the claim in convention, the inital action
instituted by the plaintiff“
+ Van Blerk above 5-6.
— anary 202) A Tissue 5]
|
| Chapter 1-4 Roux Institute of
5 Appl
ition proceedings
5.1 An application comprises a_notice of motion supported by. an affidavit or
affidavits. The notice of motion sets out the relief that the applicant seeks as well
as giving directions a. the respondent.as to.wheo.and.where.the application is to be
heard and what it should do to oppose if it wishes to.do so. The affidavit isin the
form of a. sworn. statement by which the evidence upon, which the relief is. sought is
presented to the court,’
5.2 The affidavit atlachad to the notice of motion - often referred to as a founding _
_affidavit - takes the place both of pleadings and evidence in an action. As a_
‘minimum it must contain sufficient facts to support ‘a cause of action’ or, more
correctly, the grounds of the application. However, since its role is also to provide
evidence to the court, it must in addition provide sufficient detail, having regard to the.
nature of the proceedings and the circumstances, to enable the court to make an
assessment of the case. Documents may, and indeed offen are, attached to the
affidavit as part of the evidence.*
6 Incidental or interlocutory application proceedings
61 Incidental or interlocutory application proceedings can also be brought by any of,
the parties jn the course of pending litigation, whether it be an action or an
application. Such incidental or interlocutory applications are those contemplated in
by rule 6(11), which describes them as “.. interlocutory or other applications
incidental to pending proceedings ...”. One can seek interim or interlocutory (as
‘opposed to final) relief by way of a substantive application pending the outcome of (
proceedings. Accordingly, to avoid confusion, the term incidental application (and
not interlocutory application) is used to refer to applications under rule 6(11).”
6.2 Examples thereof would be an application under rule 30 ~
6.2.1 to set aside an irregular step or proceeding;
6.2.2 an application fo compel a reply to particulars;
6.2.3 an application to compel discovery,
6.2.4 an application under rule 33(4) for a separation of issues; or
5 Above 67.
£ Above,
7 Above.
Tissue 5] Wanuary 2022]
eee UU UU ad EERE RRERERREEneeeeememe! ins ral ter1-5
6.2.5 after judgment, an application for leave fo appeal or leave to execute
pending an appeal-*
7 Substantive application
7.1 Asubstantive application would, for example, be
7.1.1 an application to sequestrate a debtor's estate;
7.1.2 to remove a restriction ina title condition;
7.1.3 fora money judgment, or
7.1.4 for an interdict, including a temporary interdict pending the outcome of an
action to be instituted or already instituted.®
8 Final relief and the Plascon-Evans rule
8.1 Toillustrate what is meant by a material dispute of fact, consider the following
example:
A who resides in Pretoria sells his house to B who was at that stage resident in Cape
‘Town. A arranged for the contract that was signed by B to be couriered back to him
in Pretoria whereafter he (A) signed it. B thereafter took occupation of the house in
Pretoria but failed to pay the deposit of R500,000.00. In terms of the Agreement, |
Should B fail to comply with the terms of the Sale Agreement, the full purchase price |
fall due and payable forthwith; alternatively the agreement may be summarily
terminated. When A demanded payment of the full purchase price, B countered by |
Pointing out that he thought he was renting the property and that his signature on the |
‘Sale Agreement was a forgery. |
A brought an Application in the High Court seeking an order to compel B to pay the
full purchase price and in the alternative, termination of the Sale Agreement. In the
Founding Affidavit relies on the provisions of the Sale Agreement and the fact that
he (A), performed fully in terms thereof. In the Answering Affidavit, B points out that
his signature on the Sale Agreement was a forgery and he (b) attaches a report by a
handwriting expert that supports that contention. In reply, A states that he was told
that B has a habit of tricking unsuspecting sellers into parting with the possession of
their properties and he attaches a confirmatory affidavit from a third party who states |
that B ‘pulled the same fast one on hin’, |
Above.
% Above 67-68,
Wanuary 2022] Tissue 5} |
SS ter 1-6 ja wie
82 The court will under the above circumstances have to apply what has now become
known as the Plascon-Evans rule. This rule was stated as follows by the Appellate
Division (the predecessor of the Supreme Court of Appeal) in Plascon-Evans Paints |
Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
“....where in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order....may be granted if those facts averred in the
applicant's affidavits which have been admitted by the respondent, together
with the facts alleged by the respondent, justify such an order.”
Applied to the example above, the Respondent (B) admitted the existence of the
Sale Agreement but denies that he signed it. The B's denial together with what is
alleged by A in Reply (that it was a fraudulent scheme perpetrated by B), would
clearly not justify the granting of final relief to A (that is, an order that B pay the full
purchase price).
|
|
8.3. With this, you should also remember that a Court will not consider the probabilities of
the version of either A or B. If there is a material dispute of fact (such as in the
example above), the Court will dismiss the Application with costs (which means that
A.will have to pay B's legal costs); in the alternative and, only if A should ask the
Court to do so, the Court wil:
i) Refer the matter to trial; alternatively
ji) Refer a specitic issue (in this case possibly, whether B's signature was in fact. |
forged)
84 ‘The risk that A would run should the Court decide on one of the above options, is
that it may order A to pay B's legal costs up to that point in time. The Court may be
inclined to do just that because when he decided to make use of Application
procedure, he knew thai 8 would deny the authenticity of his (B's) signature «
8&5 The Plascon-Evans rule apply when a party seeks final relief in Motion proceedings.
The rule does not apply when a party seeks interim relief.
9 Types of processes
9.1. In civil procedure there are two types of processes that can be followed, namely an
action procedure or an application procedure. In the absence of any of these
procedures being mandatory i.e. prescribed by law the type of procedure that should
be followed will depend on whether or not there is a substantial factual dispute
between the parties.
92 A ssubstantial factual dispute is where a matter cannot be argued purely based on
Tissue 5] [anuary 2022}
LCN ALE ELS TCT LTT ings gen Chapter 1-7
pleadings and where additional oral evidence is required to determine which version
of the parties is the more likely (true) version.
|
|
9.3 In such a case the procedure that must be used is the action procedure, as the |
action procedure allows for oral evidence to be heard and is designed for matters |
where there is a substantial factual dispute. |
9.4 An application, on the other hand, is used when there is not a substantial factual |
dispute. This means that there is no need for the court to hear oral evidence but is
argued on the pleadings alone. An application procedure can never be used where
damages are claimed or in a divorce matter.
9.5 Another factor that may be considered in application procedure is the urgency of the
‘matter. In such instances urgent applications may be used, In these applications
the non-compliance to the rules governing for instance time limits or service of
the application can on good grounds be condoned by the Court.
9.6 Instances where the application procedure is mandatory.
9.6.1 The application procedure is mandatory in the following instances:
* To ask for leave to appeal |
+ Review
* Rule 43 applications for interim relief
+ Rescission of Judgments
+ Interlocutory Applications
* Consolidation of Actions
+ Joinder of parties
+ Third Party procedures
|
|
|
9.6.2. Instances where the action procedure is mandatory
+ Personal injury claims
+ Motor vehicle accident claims
+ Divorce matters
10 Notices of motion
10.1 The notice of motion in a substantive application, other than an urgent or ex
parte application, must be as near as can be accordance with form 2 of the First
[issue 6) Chapter 1-8 Gawie le Roux Institute of Law
10.2
10.3
1
12
wo
2
8
‘Schedule to the rules. The form of the notice of motion requires the respondent, if it
wishes to oppose the relief, to give a notice of intention to oppose by a specific
date, which is to be not less than five days form the service of the notice of motion,
and then to deliver its answering affidavits within 15 court days of the notice to
‘oppose.
In the case of an incidental application a ‘short form’ of notice of motion is all that
Is required. That notice does not invite the delivery of a notice of intention to oppose
but simply enrols the matters on the next appropriate motion day. If the respondent
should elect to oppose the matter, it can do by be delivering an answering
affidavit.”"
The long form of notice of motion in ordinary substantive applications is to be found
in the Rules of Court. There is no form for the short form of notice of motion.
Urgent applications
In an urgent application one is required not only to justify the urgency but also to
seek specifically relief that the court permit the application to be heard under the
rules relating to urgency. The practice is that this prayer is the first of the prayers
in the notice of motion.”*
Rule nisi
The rule nisiis an order calling upon the respondent or any other party to show
cause on a specified future date why an order in specific terms should not be made. r
The rule nisi can be granted together with some form of interim relief operating part
of the order ultimately sought pending the determination of the rule nisi. A typical
instance in which a rule nisi is granted, coupled with an order that takes immediate
effect, isin the case of the sequestration of an individual. In terms of s 10 as read
with 5 12 of the Insolvency Act a court is required in the first instance to grant a
provisional sequestration order which, on the return day (the day on which parties
Above 68.
Above.
Above.
Above 69.
Tissue 5} Wanuary 2022}
|
| in Mt hapter 4
are required to show cause that a rule nisi should not be granted) it is empowered to
grant a final order.
|
|
|
* Above.
[anuary 2025] Tissue 5) Chapter 2
APPLICATION PROCEDURE
in the
HIGH COURT
o
1 Introduction
2 General principles 3 |
2.1. Distinguishing characteristics 3 i
2.2 Interlocutory applications 4 {
2.3 Urgent appiications 4 |
24 Ex parte applications v on notice applications 5 t
3 Notice of motion - general principles 5
4 Affidavits - general principles 6 |
4.1 Form and contents of affidavits 6 |
4.2 Contents of founding and supporting affidavits 7 |
5 Nine steps in the application procedure 8
5.1. Step 1: The applicant's notice of motion 8 |
5.2. Step 2: The applicant's founding and supporting |
affidavits 8 |
5.3 Step 3: Service of the application papers 9 i
5.4 Step 4: Respondent's notice of intention to oppose 9 |
5.5 Step 5: Respondent's answering affidavits 10 |
5.6 Step 6: Applicant's replying affidavits 40 |
5.7 Step 7: Further affidavits 10 {
5.8 Step 8: Setting the matter down for hearing 11 |
5.9 Step &: The hearing 1" |
6 Ex parte applications "1 |
6.1 Ex parte applications in the High Court "1
62 Ex parte applications in the Magistrates’ Court 12
7 Preparing ex parte application papers 12
7.1 High Court: notice of motion 12
7.2. Magistrates! Court: notice of motion 12
pT
January 2 [Issue 5]
| hapter 2-2 wie fe tute
Page |
|
8 The court's options: final orders and rules nisi 7 |
|
9 Responses to defective pleadings and noncompliance |
with the rules 19
9.1 Introduction 19
9.2 Exception 19
10 Shortcut judgments 24 |
40.1 Introduction 21
10.2 Default judgment 22
40.3 Rescission of judament 25
40.4 Summary judgment 26
11 interlocutory applications 29 ;
12 Interpleader proceedings 20
13 Voluntary surrender 32
14 Rule 43 Application 36
Tissue 5] [January 2022] Cour Chapter 2
1 Introduction
1.1 Peté and Others describe the application procedure as follows:
“The application procedure is one of two main. ways in, which. you may
approach a court.of first instance for.relief. Unlike the,action procedure (in
which oral.evidence is given by witnesses at.a trial), apy
on.the.papers placed before the court. All the evidence a party wishes to
Put forward in support of a claim must be included in.his application papers,’
i
|
|
|
|
1.2 In practical terms, High Court application papers consist of -
‘© annotice.of motion (i.e, a notice that an application is to be made to court),
together with;
‘© anaaffidavit, which is known as a founding affidavit. All the legal elements
of the applicant's case must be contained in the founding affidavit
‘The application procedure is specifically designed to deal with matters which are.
‘capable of being decided by-a.court.on the papers before it?
2 General principles
(2.1 Distinguishing characteristics”
‘The normal procedure involved in bringing an application before court entails giving.
notice to-your opponent. These applications are called on notice applications or
jormal. 2
|
|
|
‘Sometimes, however, applications are brought without giving notice to the other side.
at all ~ these are called exparte’applications, Ex parte applications are often,
brought on an urgent basis, which may result in noncompliatiéé with, certain rules:of
court. Such applications are known as‘uraent ex narte’applicationis *
Finally, note that certain types of applications are brought to achieve certain.
objectives. during existing application‘or action'proceedings'~ these are called |
interlocutory ‘applications:® |
* Peté S, Hulme D, Du Plessis M, Palmer R, Sibanda O & Palmer T, Civil Procedure - A Practical Guide,
Oxford University Pres, SA, 3 ed, 2017, 153.
2 above.
So called specifically In Peté & Others, above 155.
* Above.
Above.
Danuary 2022} Tissue 6] Chapter 2-4 tute of |
Hee does not iritile of Start egal
2.2 Interlocutory applications - incidental from Pending acon “or ” applet
Interloculory preceeding dy not BiSteedipg costings bot
2.2.1 "interlocutory applications do. not initiate, proceedings, but are incidental to feout! bom
proceedings that are already pending, Let us assume that you are suing by way of cn
action, and are busy with the pre-trial procedure. You request the other side to
discover {i diSclosé all relevant documents) in terms of High Court rule 36(1), but geo
they fail,to deliver their discovery affidavit within the required period of 20 days. In
terms of rule 35(7), you may now make application to court to compel the opposing
This application will be an interlocutory application because it “pplication
te proceedings, but is part of proceedings that are already pending,"* ‘© compel
= dictinguished from normal! notice oppo . PRemms t
Interlocutory.applications may be distinguished from onnotice or nonmlat, \civceer
applications, which.are not incidental to. other proceedings, but stand on their o\
as the main legal vehicle for obtaining relief in a particular matter. in that
.. Onnotice‘applications consist of a notice.of motion together.with ~does net |
supporting affidavits which must be served on the respondent by the hat baal
sheriff, while; PrPceeatngs
© ex,parte applications may be brought (subject to various requirements in rule ~ bul
6 of the High Court Rules and rule 85 of the Magistrates’ court rules) without t0"e4®
: on is
prior notice to. your opponent? on
Exomple
2.2.3 Ses paragraph 11 below for a few exampies of inieriocuiory appilcations.
2.3. ‘Urgent applications
‘An urgent application is just like any other application but, because it is urgent, it
may.not be possible for the applicant to comply strictly with the rules of court relating
to service and notice periods. The applicant must inform the court fully of the
reasons why the application is urgent, and why he cannot wait in order to obtain
relief by making the application in the normal way.*
ation
¢ Urgent Fle The other epplcatons but are URGENT nd as
Fesull may nek — compky with court rules in ferm of
Service and rotice peri
+ Applicant oust inform court of recseas Why appleattbn is urgent and
eee hy they” eannct avait 8 oblain relief
® above. y
ve hah o normd —appheation.
7 Above.
* Above,
Tissue 5} (Wanuary 2022}
LA TELNAES NRCC SEE LST A tigh Chapter 2
2.4 tEX parte’applications von notice ‘applications
2.4.1 “In.general, if you. want to make an application to.court that might affect the interests.
of someonevelse, you.must give, notice to that person that you are. going to make the
application, Obviously, the reason for this is to give that person-a.chance.to put his
‘side of the'story before the court (audi alteram partem): As a result, most |
al ions are. on notice, |
|
2.4.2 In some.cases, however, no.one else may have an interest in the application, or
there may be some compelling reason why it is undesirable or. impossible to give
Notice of the application to the respondent. These applications brought without.
notice are known as.ex parte applications.””
2.4.3 The rules of the High court provide for a short-form and long-form notice of motion:
Form :2.- the short-form for an ex-parte application; and
© Forn'2(a) - the long-form for an on-notice application;
‘Whether a long-form or a short-form notice is to be used, depends on whether the
application is brought ex parte or on notice.
‘parte ‘pplication’
brought without notice to anyone except. the
Registrar of the High Court, either because no relief is sought against any person,
otitis not necessary to give notice to the respondent,
3 Notice ‘of motion — general principles:
3.1 Peté and Others describe the notice of motion as follows:
“When lawyers talk about bringing a notice of motion’, they mean that they
are ‘making an application’ to court. A notice of motion is therefore:a notice
that a motion (in other word, an application) is going to be made to court,
The party.ringing the application.is, known as the applicantand the.party,
against whom the application is brought is known as the respondent:
‘A notice of motion performs the same function for an application that a
‘summons does for an action, i.e. it calls upon the respondent to come to |
court to answer the applicant's claim.”"" |
‘Above 157.
%° March 2019 question 6.1 as part of a 6 mark question; August 2015 question 3.3 as part of a 11 mark
question
* Above.
|
[Wanuary 2022] [Issue 5] |
SSeS SSeS Chapter 2-6. Gawie le Roux Institute of Law
3.2 Inthe High Court, the notice of motion contains several items of information,
3.2.1. Firstly, the identities and addresses of the applicant and the respondent are
set out.
3.2.2 Secondly, it gives the respondent certain, time.fimits.within.which.to.act. In
the notice, the, applicant states a date — which may not be less than five days
after service of the notice on the respondent ~ on or before which the
respondent is required to notify the applicant in writing that he intends to
oppose the application.
3.2.3. Furthermore, it wams the respondent that if he does not give notice of his
intention to, oppose, the matter will.be set down for: hearing on a day not.
less than 10.days after service on.the respondent of the notice of motion.
3.2.4. Finally, it informs the respondent of the relief or remedy sought by the
applicant (i.e. the order sought by the applicant).
4 Affidavits - general principles ‘
4.1 :Form and content of affidavits”
4.1.1 “In applications procedure, the notice of motion will be supported by the founding ©
affidavit as well as any supporting affidavits that are necessary. An affidavit is a
statement made under affirmation or oath (aiso called a sworn statement), which
is signed and affirmed, or sworn to, by the person making the statement (known as
the deponent) before a commissioner of oaths:
The oath or affirmation is administered because the information contained in an
affidavit constitutes evidence. In the same way a witness taking the witness stand in
action proceedings has to take the oath or affirmation before giving evidence, a i
deponent testifying on paper has to take the oath or affirmation to give the written |
statement the status of testimony."
4.1.2. “An.affidavit should be drafted in the first person (ie. fromthe ‘deponent's point of
view); and, while formal and temperate, it should not'be burdened with légalese:
‘Once an affidavit is deposed to, a deponent cannot,'amend’ it using the rules of court
~rather, he must seek the Jeave of the.court to submit a further affidavit to, explain,
and correct the, incorrect statement in the earlier affidavit."
4.1.3 As far as the formalities relating to affidavits are concemed, an affidavit will usually
Above 158.
Above.
[Issue 5] [January 2022),
| A AAALAC R LL ELL EE ic jure - Hit rt japter 2-7
start as follows:
‘Ithe undersigned, Joseph Ray Soap, identity number 720211 5102 08 9, state
Under oath as follows: [statement follows...
Immediately after this, the following paragraph usually appears:
‘Save as indicated otherwise, the facts deposed to are within my personal
knowledge’.
4.1.4 The affidavit is divided into numbered paragraphs, each of which containing a
separate averment (or allegation). Where, for some reason, it is more convenient
to make more than one averment in a paragraph, the paragraph should be divided
into numbered subparagraphs. The idea is to make the deponent's allegations easy
to follow.
4.2 sContents of founding and:supporting affidavits’
4.2.1. The contents of founding and supporting affidavits are the following:"*
Locus stanai The first substantive paragraph of the founding affidavit
Usually contains the full name and address of the applicant, and the second
Paragraph contains the same information in respect of the respondent,
the legal capacity of the applicani musi aiso be shown. itis
always necessary for the directors of a company to obtain a company
resolution approving the legal action before suing, and it is good practice to
refer to the resolution in affidavits, and to attach it as an annexure.
{8 Jurisdiction: The founding affidavit must contain sufficient facts to establish
the court’s jurisdiction, for instance, that the respondent lives within the
jurisdiction of the court, or that the cause of action has arisen within its
Jurisdiction. These facts need to be alleged expressly if they emerge from the
facts as contained in the founding affidavit. |
# Urgency: If the application is an urgent application, the founding affidavit |
must set out the grounds of urgency in accordance with Magistrates’ Courts. j
rule §5(5), oF rule 16(12)(b) of the High Court Rules.
{ Grounds for relief: The founding and supporting affidavits will set out the |
grounds upon which the relief is claimed. in other words, sufficient facts must |
be set out to disclose and prove a cause of action. This comes from the j
* Above.
above 159.
*8 Above 160-161.
[|
Wanuary 2022] Tissue 5} Chapter 2-8 Gawie le Roux Institute of Law
substantive law (e.g. elements of a delict). The founding affidavit in an
application matter combines both pleadings (which set out the cause of
action) and evidence (which prove the cause of action).
4.2.2 |f the founding-and supporting affidavits fail to disclose a cause:of action, the
respondent is entitled to approach the court to dismiss the application on the basis
that it.discloses no, grounds on which the relief may be granted (in other words, the
respondent has no case to meet).”
5 Nine steps in the application procedure
‘What follows below are the steps (in sequence) that must be followed in preparing,
serving, responding to, and hearing an on notice application. (Note that rule 55 of
the Magistrates’ Court Rules provides similar detailed procedural guidance to rule 6
of the High court Rules.)
5.1 Step 1: The applicant's notice of motion
High Court: notice of motion - High Court Rules Form 2(a) sets out the details
which must be contained in a notice of motion in an on notice High Court application
Magistrates’ Court: notice of motion - Magistrates’ Courts Rules Form 1A of
‘Annexure 1 sets out the details that must be contained in a notice of motion in a
Regional or District Magistrates’ Court matter.
5.2 Step 2: The applicant's founding and supporting affidavits
5.2.1. The main evictenes in support of the notice of motion will be contained in an affidavit
by the applicant called the founding affidavit. If there are other witnesses who
‘support the applicant's version, their affidavits are called supporting affidavits.
‘Sometimes, a witness may make an affidavit merely agreeing with the version of
another deponent - this kind of supporting affidavit is also called a confirming
affidavit.”
5.22 The founding and supporting affidavits must cover all the elements of the area of
law on which the applicant is relying, and must also contain all the evidence
supporting these elements. Relevant documents (e.g., copies of invoices) may also
7 Above.
* Above 166.
{Issue 5] [anuary 2022}
A . lication Procedure ~ art Chapter 2-9
be attached to the affidavits as annexures. ®
5.2.3. Once all the founding and supporting affidavits have been drafted, they must be
5.3
5.4
5.4.1
5.4.2
5.43
a
2
attached to the notice of motion and sent to the sheriff for service.”
Step 3: Service of the application papers
Once the notice of motion and affidavits have been drafted, they must be served on
the respondent(s) by the sheriff.*"
Step 4: Respondent's notice of intention to oppose
High Court procedure
if the respondent intends to oppose the application, he must file a notice of
opposition. This notice states that the respondent intends to oppose the application,
and sets out an address at which the respondent will accept service of documents in
the matter.”
In terms of High Court rule 6(5)(b), the respondent must be allowed at least five
days after he receives the application papers to deliver his notice opposition to the
applicant, Because this time period is stipulated in the High Court Rules, the days
referred to are court days, and must be calculated as such.*
Hf the notice of motion is served on the respondent at a place outside the
jurisdiction of the division of issue, the respondent is allowed more than five days
within which to deliver his/her notice of opposition.
© Aperiod of two weeks is allowed if the place of service is Jess than 150k,
from the court; and
© one month is allowed if, in addition to being outside the jurisdiction of the
division that issued the notice of motion, it is more than 150km from the court
(Because these {wo time periods are stipulated in the Superior Courts Act 10
of 2013, the days referred to are calendar days, and must be calculated as
Above.
Above.
Above.
Above.
‘Above 167.
fama 20g) Tissue 6] Chapter 2-1 Gai
such.)
5.4.4 Interms of Form 2(a) the respondent is informed that if he does not deliver a notice
of opposition, the application will be set down for hearing by the court on a stipulated
day. In terms of High court rule 6(5)(b), the date of the hearing may not be less
than 10 court days after the service of the notice of motion on the applicant. Note
that even though the notice of motion states a date for the hearing, the applicant will
nevertheless have to set the matter down for the hearing. The applicant does this by
delivering a notice of set down to the registrar.*
5.5 Step 5: Respondent's answering affidavits
“if the respondent, in a High Court matter, delivers a notice of opposition in time, he i
must deliver his answering affidavit within 15 court days (10 court days in
Regional and District Magistrates’ Courts matters) of the delivery of the notice of
opposition. The answering affidavit should be supported, insofar as may be
necessary, by other affidavits deposed to by witnesses who have direct knowledge of
the events. In his answering affidavit, the respondent must deal paragraph by
paragraph with the allegations and evidence contained in the applicant's affidavits,
and state which of the allegations he admits and which he denies. He must also set
out his version of the relevant facts.”
a
®
‘The applicant may deliver a replying affidavit within 10 days after the respondent's
answering affidavit has been served upon him. In the replying affidavit, the applicant
deals paragraph by paragraph, insofar as may be necessary, with the allegations and
evidence set out in the respondent's answering affidavit. The purpose of the replying
affidavit is to rebut any averments made in the answering affidavit.
5.7 Step 7: Further affidavits
After receipt of the applicant's replying affidavit, further affidavits by either of the |
parties are permitted only at the discretion of the court. i
Above.
Above.
© Above.
Tissue 5] [January 2022)
TS | lure court Chapter 2-11
5.8 Step 8: Setting the matter down for hearing
The application must be set down for hearing by the delivery of a notice of set down.
5.9 Step 9: The hearing
The matter will be heard before the court on the date on which it has been set down. i
6 &x'parte applications: es
6.1 :Ex parte’applications in the High’Gourt:
Ex parte applications may be brought in the following circumstances;””
¢ 1. When the applicant is the only person interested in the relief
2, When the relief sought is @ preliminary step in the proceedings, for example:
© _ anvapplication to sue by edictal citation;
© atvapplivation for substituted service; or
© af'application to attach a person or property in order to found or
confirm jurisdiction |
3. When the nature of the relief sought is such that giving notice may defeat
the purpose of the application, for,example, an application to,freeze,
someone's. bank:account: |
4, When immediate relief is essential because the harm is imminent, for
‘example, an urgent application for a temporary interdict,
5. Where the application is usually brought ex parte in terms of established
court practices. For example:
© applications for provisional’sequestration-and liquidation‘are
brought ex parte in some divisions.
(Harms' civil Procedure in the Superior Courts however expresses
the view that these practices should not to be followed unless special
circumstances exist.)
6. Where the identity of the respondent is not readily ascertainable,
{
|
|
|
juestion® ~ List any (6) circumstances where ft
utilized.
7 peté& others above 172,
March 2019 question 6.2 as part of an 6 mark question. |
SEeeeeeeeeee amuany Stee) eee ere eee creer eee ae Tissue 6]
SSeS SSeS Chapter 2 - 12 Gawie le Roux Institute of Law |
Answer -
i) Where an order is sought that does not affect another person and the
applicant is the only interested party to the proceedings.
i) Where notice of the application to the other party will frustrate the request
for relief
ii) Where a nulla bona return is relied upon in the case of an application for
sequestration and no notice of the application is given to the respondent.
I'v) Where preliminary relief is essential and there is no time to give notice
and where the Respondent will be given notice once the urgent relief is
granted before any final relief is granted
v) _Incertain very specific circumstances where it is not possible to give
notice to the other side and / or for a preliminary step in proceedings, for
‘example leave to sue by way of edictal citation.
|
|
|
|
6.2 :Ex-parte applications in the Magistrates’ Courts
Magistrates’ Courts rule 55(3) provides that ex parte applications may be brought
where the following requirements are satisfied:
1. The giving of notice would defeat the purpose of the application; or
2. The degree of urgency is so, great that the dispensing of notice is justified,
_
7.1 High Court: notice of motion
7.1.1. High Court Form 2 sets out the basic format for the notice of motion in an ex parte
application in the High Court. It requires the following information to be included in
the notice of motion: 7
1. Who the applicant is.
2. The date and time when the application will be made.
3. What order the court will be asked to make.
4, That the application is supported by an affidavit or affidavits attached to
the notice of motion; and
5. Thename and address of the applicant's attorney.
7.1.2. The form also contains an instruction to the registrar to set the matter down on the
roll for hearing. In other words, a notice of set-down is incorporated into the
notice of motion. This automatic notice of set-down is only possible in ex parte
applications. With an on notice application, the date of the hearing will depend upon
whether or not the respondent opposes the matter, and the notice of set-down can
nn
Tissue 5] Wanuary 2022)
LLC LL LE Application Procedure - High Court Chapter 2-13
only be delivered to him after that.”
7.2 Magistrates’ Courts: notice of motion
The Magistrates’ Courts Rules do not prescribe a particular form for ex parte
ions and the format of the High Court Rules Form 2 should be followed.”
¢ receive instructions from your elient, Alice Jones, tolaunch an
«urgent-application for the sequestration of the.estate-of Darryl Black, a factory
owner married in community of property to:Ann Black. Darryl Black employs a
umber of workers who all belong to Hakuna Matata Trade Union. Draft the
notice of motion to give effect to your instructions. (12)
\ Answer - See Annexure 2A
ofsueston 2 (similar question, but another way of asking the same) - Your client
obtained judgment by default for R5 000 000 against Mr Thabo Khumalo, trading
as Thabo's Furnishers. The subsequent writ of execution elicited a nulla bona
return, You learn that Khumalo is disposing of assets, has failed to pay the
salaries of his employees, has not renewed the lease for the premises from which
‘Thabo's Fumishers trade and that he has bought a one-way flight ticket to
Australia. You are instructed to launch an application on 2 urgent basis for the
sequestration of Khumalo's estate.
Bearing the above facts in mind draft the notice of motion. You may omit the
heading. (10)
Question 3°- You receive instructions from your client, Peter Brown, a creditor
of John Smith to launch an urgent application for the sequestration of the estate |
of John Smith, a factory owner married in community of property to Beryl Smith. |
‘Smith employs 20 registered members of a registered trade union in his factory.
After considering all the facts you are satisfied that good cause exists to launch
® — peté & Others above 173. |
2 Above 174. |
3 August 2013 question 5 for 12 marks. i
February 2012 question 6 for 10 marks.
8
February 2009 question 6 for 13 marks.
ee
Tanuary 2022) Tissue 5] o
ra
Tissue 5}
-
Draft the notice of motion to give effect to your instructions.
‘Answer - See Annexure 2A. However, paragraph 4 thereof can also read as
follows: (13)
4 That this order be served by
4.1. the Sheriff of this honourable court on the respondents personally
(4)! on all the registered trade unions representing the
‘employees of the respondents (4) / and the South African
Revenue Services (%) as prescribed in the Insolvency Act.
42 byalffixing a copy of the order to a notice board accessible to the
‘employees (14)
Question 4* - What type of proceeding would you advise your client to institute,
in the High Court under the following circumstances? Please motivate your
answer briefly: io)
&41 Your client is.the landlord of certain business. premises within the area of
Jurisdiction of the court where you practice. He, during last year concluded
an-agreement of lease in respect of the said premises, which lease
expired a ago. The tenant has t Vi oc the premises and
your client now requires the premises-in order to give occupation to a new
tenant with which he has concluded an agreement of lease. The
premises still have to be altered in certain respects to suit the
requirements of the new tenant and time is of the essence, otherwise your
iene stands to lose re new tenant. (2)
Uigent oppcatin lor eviction
8.2 ‘Your client, Madame X, the owner of a beauty parlour, wishes to claim
damages from The ‘Moon newspaper by.reason.of a defamatory article
which appeared in the newspaper fourteen days ago. Despite demand,
the newspaper has declined to retract the alticle or to tender an apology)
Combined summons er ligndeded loin
Answer - 8.1 Anurgent application for eviction. (2)
8.2 A combined summons. a)
Question 5 - Your.client instructs you that his 90:year-old-father, has a
substantial assets in the form of investments, a share portfolio and a variety of
February 2009 question 8.
‘August 2007 question 8,
[anuary 2022),
|
| Prox - fer 2-15
movable assets. Unfortunately, due to the onset of Alzheimer's:disease his father:
has during the past few months started to:act very-irresponsibly with regard to his
assets. Your client as well as:his:brothers and sisters are in agreement that their...
father is incapable if martaging his effairs.=> 112)
8.1 What form of relief will you advise your client tes ek?
fin ap ex parle application the apporiment ef aicalor banis / al Heer
|
reference to Rule |
|
8.2 Name any ten requirements for such relief with spec
87 of the Rules of Court (10)
Answer -
8.1 An ex parte application for the appointment of a curator ad litem and
curator bonis. @
82 See Annexure 2B.
Question 6°
5.1 Indicate when a curator ad litem will be required for a person and when a
- curator bonis will be required for a person. (@)
5.2 »Rule’$7 provides for an-application to be.made-to:the Court for.an'order
declaring:a person to be of unsound mind-and therefore incapable of
ng his/her own affairs. List eight of the essential averments to be
made in support of such an application. @)
Answer - |
5.1 Curator ad litent, will be required to assistia:person who.is:of unsound: |
mind or a:minorin legal: proceedings: (1) |
af Curator bonis, will be.required for a persom-‘in:respect of whom the court |
has made.an order. that the person.is of unsound:mind and as such:
incapable of managing-his/her. affairs... 1)
52 Rub 81 Declaraién ct pomin ast boing o sound mind
4) The grounds upon which the applicant claims Jocus'standl
aiiy ‘The grounds upon which the Courtis alleged to have jurisdiction.;.
‘il) Full particularstof his: means:
iv) Information as to the.general'state:of his physical:health:
V) The relationship between the patient-and the applicant;
v) Affidavits by at least two medical practitioners, one of whom shall |
be an alienist who has conducted recent examinations of the
patient
3° March 2019 question 5.
[anuary 2023] Tissue 5)
eee aN TRC RRA Chapter 2 - 16 Gawie le Roux Institute of Law
vil) The parties.age and'sex:
viii) The facts and circumstances relied on to.show that the patient is
‘of unsound.mind and incapable of managing his:affairs: ®
‘Question 7” - You:are:consulted by Mrs.X, a businesswoman who informs you
as follows:
‘She had been overseas for some time and retumed two days ago. Whilst
reading an old newspaper at the hairdressing salon yesterday she saw a notice of
sale and execution in terms whereof certain items of movable property, which she
recognised as hers by the description thereof, had been attached by the Sheriff of
the High Court at the instance of the judgment creditor and that the sale thereof
was scheduled to take place in three days’ time.
|
|
|
|
She has never had any dealings with the judgment creditor and denies any
indebtedness to him whatsoever. She believes that the judgment creditor has
confused her with someone else and or caused her movable property to be
attached for someone else's debt.
Before departing overseas her said property was placed in storage at a local firm |
providing storage facilities and upon making enquiries since reading the notice of t
sale she established that her property had been removed by the Sheriff from its |
piace of storage. |
‘She has not received any summons in respect of the said debt, nor has she
received any previous notice of either the judgment or the intended sale. She
desperately wishes to avoid the sale taking place. 114)
3.1 Which.documents will you have to peruse before you will be in.a position
‘to assist your client? 2%)
3.2 After you have:perused the necessary docuitieits, you are able to bring
an application to the High Court for the necessary relief
3.2.1. Prepare the notice of motion only without the supporting affidavit,
clearly indicating the relief sought and on whom the papers are to
be served. (6%)
3.2.2 Briefly set out the material facts, which you believe, should be set
‘out in the supporting affidavit for the application to be successful6)
Answer - See Annexure 2C
37 August 2012 question 3,
|
—
Tissue 5} [anuary 2022] |
ES TS A a = High C Chapter 2-17
Question 8 - You are acting for the Plaintiff in the matter where you have issued
a warrant of execution against immovable property after the property was
declared executable by the court.
