CIVIL PROCEDURE

(LEC 411E)
Lecturer: Mr Sibulelo Seti

CHOICE OF PROCEEDINGS
Action Or Application?
Introduction

 The party suing is dominus litis as he chooses the form of procedure to be used.
 Mainly, there are two (2) forms of proceedings, namely: Action or Trial Proceedings and Application
or Motion Proceedings.
 A third and further form of proceedings is the Provisional Sentence. Provisional Sentence is a special
hybrid procedure comprised of features of both action and application proceedings.
 The learned authors of Hebstein and Van Winsen ‘The Civil Practice of the High Courts of South Africa’
5 ed (1) 2009 at page 288 states that: “Having decided which division of the High Court has jurisdiction,
a legal practitioner must determine the form in which the proceedings should be brought. The two
fundamental [main] forms of procedure in the High Courts are applications and trial action.”
Introduction

 The decision to proceed by way of application instead of an action has been utilised more
frequently due to its many benefits, including the fact that it is less expensive and more
favourable in obtaining an expeditious order.
 Application proceedings are regulated by Uniform Rule 6 in the High Court and Magistrate’s
Courts Rule 55 in the Magistrate’s Courts. On the other hand, Provisional Sentence is
regulated by Uniform Rule 8.
 After establishing that a client has a valid claim and “having decided which division of the
High Court has jurisdiction, a legal practitioner must determine the form in which the
proceedings should be brought.”
 In other words, it is incumbent upon a legal representative of a party suing (as dominus litis)
to choose the appropriate way in which proceedings are going to be instituted. That is the
type of proceedings: Is it Application or Action proceedings?
Differences between action & application proceedings

Action / Trial Proceedings Application / Motion Proceedings

 Commence by way of Summons  Commence by way of Notice of Motion

 Parties are referred to as Plaintiff(s) & Defendant (s)  Parties are referred to as Applicant(s) &
Respondent(s)
 Evidence – oral or viva voce
 Evidence – through affidavits
 Characterised by clear separation between pleadings
& evidence (trial) stages of the proceedings –  No clear separation between pleadings and evidence
separated by pre-trial processes or stage
 Proceedings take place before Motion Court
 Proceedings take place before Trial Court
Differences between action & application proceedings

Stages:
Trial / Action Proceedings Motion / Application Proceedings
 Exchange of Court Papers (Pleading) Stage  Exchange of Court Papers (Notices & Affidavits) Stage
 Summons & POC;  NOM & Founding Affidavit (Applicant);
 Plea;  Answering / Opposing Affidavit
 Replication; (Respondent);
 Pre-Trial Stage (Processes such as Discovery, etc.)  Replying Affidavit (Applicant)
 Hearing (Trial) Stage  Hearing Stage
 Oral Evidence (Examination-in-chief, Cross-  Argument
examination & Re-examination)  Judgment stage
 Argument
 Judgment Stage
Principles guiding choice of proceedings

 Leading case Room Hire Co (Pty) Ltd / Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T)
(Room-Hire).
 Among the other things, in Room-Hire, it was decided, as a general rule, that the choice between the
procedures depends on whether a bona fide material dispute of fact should have been anticipated by
the party launching the proceedings. When such a dispute is anticipated, a trial action should be
instituted.
 More in particular, the court at page 1161 per Murray AJP stated that:
“…There are certain types of proceeding (e.g., in connection with insolvency) in which
by Statute motion proceedings are specially authorised or directed... There are on the other
hand certain classes of case (the instances given…are matrimonial causes and illiquid claims for
damages) in which motion proceedings are not permissible at all. But between these two
extremes there is an area in which…according to recognised practice a choice between motion
proceedings and trial action is given according to whether there is or is not an absence of a
real dispute between the parties on any material question of fact.”
Principles guiding choice of proceedings

 Generally, there are three (3) principles that should guide the practitioners choice of form of
proceedings and these principles are clearly enunciated in Room Hire case, as follows:
 First, there are certain types of proceedings in which motion proceedings are specially authorised
or directed by statute. Examples of cases falling into this category are: Insolvency matters
(application for liquidation, sequestration, rehabilitation, etc.);
 Second, on the other hand there is a certain class of cases in which motion proceedings are not
permissible at all. Examples of matters falling in this class are: divorce or matrimonial causes and
illiquid claims for damages; and,
 Lastly, action proceedings should be used where there is a potential for real dispute of facts.
Principles guiding choice of proceedings

 The guidelines set out in Room Hire are general rules.

 There are special circumstances that may justify usage of application proceedings even where there is
a potential real dispute of facts. Examples – where interim and urgent reliefs are sought. These
special circumstances are recognized by our courts and the Rules Regulating Conduct of Proceedings
in Court.
 In National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para [26] the SCA
stated that: “Motion proceedings, unless concerned with interim relief, are all about the resolution of
legal issues based on common cause facts. Unless the circumstances are special they cannot be used
to resolve factual issues because they are not designed to determine probabilities.”
 Court Rules make provision for urgent matters to be instituted by way of applications and there is no
similar rule relating to action proceedings. In particular, Uniform Rule 6(12) (a) provides that “In urgent
applications the court or a judge may dispense with the forms and service provided for in these Rules
and may dispose of such matter at such time and place and in such manner and in accordance with
such procedure (which shall as far as practicable be in terms of these Rules) as to it seems meet.”
Real dispute of facts

 In the case of Room Hire the court said a dispute of fact may arise under the following
circumstances:
 When the respondent denies all the material allegations made by the applicant and
produces or will produce positive evidence by deponents or witnesses to the contrary. (In
other words, there are two differing versions);
 The defendant may admit the averments made in the applicant’s affidavit but allege
further facts which throw a different light on the applicant’s allegation, which facts the
applicant disputes. (This is like ‘confess and avoid’).
 The respondent may concede that he has no knowledge of the main facts stated by the
applicant, but deny them, putting the applicant to proof and himself giving or proposing to
give evidence to show that the applicant is biased and untruthful or otherwise unreliable,
and that certain facts upon which applicant relies to prove the main facts are untrue.
Real dispute of facts

 Unfounded denials without a genuine dispute of facts should not be countenanced. The court must
determine application or motion proceedings if allegations or denials of the respondent are so far-
fetched and clearly untenable that the court is justified in rejecting them merely on papers.
 The approach, as set out in National Scrap Metal (Cape Town) (Pty) Ltd & another v Murray &
Roberts Ltd & others 2012 (5) SA 300 (SCA) para 21 is that “[a]n attempt to evaluate the competing
versions of either side is thus both inadvisable and unnecessary as the issue is not which version is the
more probable but whether that of the appellants is so far-fetched and improbable that it can be
rejected without evidence‟.
 In Peterson v Curthbert & Co 1954 AD the court stated that in determining a real dispute of fact, the
court must: “examine the alleged dispute of fact and see whether in truth there is a real issue of fact
which cannot be satisfactory determined without the aid of oral evidence.”
Real dispute of facts

 Bare denial does not give rise to a dispute of facts. (Wightman t/a W Construction v Headfour (Pty)
Ltd and Another 2008 SA 371 (SCA) para 13.)
 In dealing with bare denial courts must adopt a robust and common sense approach and decide the
matter on the papers. In Soffiantini v Mould 1956 (4) SA 150 (E) the court stated that:
“If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to
court on motion, then motion proceedings are worthless, for respondent can always defeat or
delay a petitioner by such a device. It is necessary to make a robust, common sense approach
to a dispute on motion as otherwise the effective functioning of the court can be hamstrung and
circumvented by the most simple and blatant stratagem. The court must not hesitate to
decide an issue on affidavit merely because it may be difficult to do so. Justice can be
defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in
affidavits.”
Real dispute of facts

 If there is a genuine dispute of facts the court must apply what is called Plascon Evans Test / Rule
 Plascon Evans Rule / Test was formulated by the Supreme Court of Apeal in the case of Plascon-
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (2) All SA 366 (A) where Corbett JA stated,
at page 368, that:
“It is correct that, where in proceedings on notice of motion disputes of fact have arisen
on the affidavits, a final order, whether it be an interdict or some other form of relief, 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.”
 Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as
admitted. (Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at
p 235 E-G).
Real dispute of facts

 In National Director of Public Prosecutions v Zuma 2009 (2) SA 277(SCA) the Supreme Court of
Appeal re-stated the principles embodied in the “Plascon-Evans” rule at Par [26] as follows:
“Motion proceedings, unless concerned with interim relief, are all about the resolution of legal
issues based on common cause facts. Unless the circumstances are special they cannot be used to
resolve factual issues because they are not designed to determine probabilities. It is well established
under the Plascon–Evans rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts averred in the applicant’s (Mr Zuma’s) affidavits,
which have been admitted by the respondent (the NDPP), together with the facts alleged by the latter,
justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that
the court is justified in rejecting them merely on the papers.The court below did not have regard
to these propositions and instead decided the case on probabilities without rejecting the NDPP’S
version.”
Court Orders

 The court has got a discretion in terms of the orders it may grant.
 In exercising its discretion the court may grant the following orders:
– Dismiss the application with costs;
– Order that oral evidence be heard in terms of the rules of court; and,
– Order the parties to go to trial.