APPLICATION (MOTION) PROCEEDINGS

Most proceedings have 3 Affidavits:

Applicant starts proceedings 1) Founding
Notice of Motion (Claim & Relief)
Founding Affidavit ] 2) Answering
3) Replying

• Takes place in Motion Court Except:

• Applications for Summary Judgement
• Argued by Legal Served on Respondent • Applications i.t.o HC Rule 43
Representatives based on
documents To oppose application:
Answering Affidavit
• Very rarely oral (viva voce) 3 Types:
evidence heard 1) Ex parte
Applicant answers/responds
2) Bi-lateral
Replying Affidavit
3) Interlocutory
APPLICATION (MOTION) PROCEEDINGS Date
Time
Notice of Motion (Claim & Relief)
Court
Relief sought

HIGH COURT 2 Forms of Notice of Motion: MAGISTRATES COURT

Form 2 (short form) 1) Short Form Form 1 (short form)
Form 2a (long form) 2) Long Form Form 1A (long form)

Form 2 – Ex-parte & Interlocutory

Form 2a – Bilateral
 Notice of Motion (Claim & Relief)
Magistrates Court Rule 63(1)
1) Generally NoM supported by
Affidavits. ALL documents submitted to court
MUST
2) Interlocutory – affidavits unnecessary 1) Be clearly and legibly printed
2) Typed
3) Permanent black ink
WHAT TO PUT INTO AN AFFIDAVIT: 4) One-sided paper
5) A4 & good quality paper
A) Name, gender, address, occupation of
parties Magistrates Court Rule 63(2)
B) Whether applicant has locus standi
C) Whether court has jurisdiction Affidavits must be:
D) Material facts 1) Concise
E) Evidence 2) Consecutively # paragraphs
F) Request to Court to grant relief as
prayed for
APPLICATION (MOTION) PROCEEDINGS
How to decide:

Is there a material dispute of FACT?

YES NO

Action proceedings Application proceedings

• Claims for unliquidated amount • Insolvency
• Claims with anticipated material dispute of • Urgent relief
fact
• Divorce • Other
APPLICATION (MOTION) PROCEEDINGS
What happens if a material dispute of FACT arises during application proceedings?

High Court Rule 6(5)(g)

“Where an application cannot properly be decided on affidavit the court may dismiss the application
or make such order as to it seems meet with a view to ensuring a just and expeditious decision.”

The court may allow oral evidence to be heard with a view to resolving a dispute or fact. Therefore the court can
order that any deponent of an affidavit appear personally or they can be subpoenaed and be examined / cross
examined.

The motion court can also refer the matter to trial.

APPLICATION (MOTION) PROCEEDINGS

What happens if I foresee a material

dispute of FACT and still continue
with application proceedings?

You could land up with a Cost Order against you!!!

APPLICATION (MOTION) PROCEEDINGS

Instances where the dispute of FACT is limited / not complicated

Motion court may allow oral (viva voce) evidence.

The parties can’t introduce new facts / a new defence not set out in their affidavits.

The court determines who must present oral evidence.

If the parties want someone to testify they must obtain leave from the court.
 Instances where the dispute of FACT is complicated

Court refers matter to trial. Court could order further pleadings,

or not.

Application convert to Action. Oral evidence is led.

Court gives determination of New Judge could decide to hear

proceedings – may order that matter on affidavit alone.
Notice of Motion serves as
Summons.

A decision must be taken regarding costs.

APPLICATION (MOTION) PROCEEDINGS
Ex parte (Unilateral) Applications
No notice to other party. One party is before the court (dispute
of fact won’t exist).

Application direct to Registrar/Clerk of Court.

Where applicant is only person with interest in the case e.g.

Attorney’s application to be admitted; insolvent estate.

To sue by substituted service (an alternate method of service e.g.

publication in newspaper).

When urgent relief is required and a delay would prejudice the

Applicant e.g. Anton Piller.
 APPLICATION (MOTION) PROCEEDINGS
Ex parte (Unilateral) Applications
What happens if the Judge rules the other party should be present?

Good faith
Court DOESN’T grant final order. RULE NISI
Provisional order with a return date.
Order served on Respondent to
Gives Respondent opportunity to appear on a specific date and state
present a defence – audi alterum why provisional order shouldn’t be
partem rule. made final. Respondent will complete
an Answering Affidavit.

Court can set an order aside on grounds of non-disclosure.

 APPLICATION (MOTION) PROCEEDINGS
High Court Rule: Ex parte Applications

HC Rule 6(4)a

HC Rule 6(4)b
 Bilateral Applications Form 2a
HC Rule 6(5)
Applications (more than one party – application to Registrar / CoC as well as
Respondent.

Applicant appoints an address within 8kms of the court.

Applicant stipulate a date not less than 5 days after service in which
Respondent is to notify Applicant if he intends to oppose.

If no such notice is received, hearing to be set down not less than 10 days
after service.
Dates exclude the first day but include the last day on which NoM served.

Superior Courts Act S24(a) & (b)

If the parties serving application are outside the area of the courts jurisdiction,
dates are adjusted to a longer time period.
APPLICATION (MOTION) PROCEEDINGS
Bilateral Applications
What happens if I am bringing an Application against the State?

Section 4 of Interpretation Act

 APPLICATION (MOTION) PROCEEDINGS
Bilateral Applications
Cool, I have received your Notice of Motion, now what?

Do nothing… Enter Notice of Intention to Oppose

Applicant will apply to Registrar for Notice of Set Down 1) Give Applicant written notice of intention to oppose
(must be done before noon on the 2nd court date before 2) Deliver Answering Affidavit within 15 days
the day the application will be heard). 3) Give notice if s/he wishes to raise a point of law

If you don’t answer the Founding Affidavit, the Applicants version is taken as correct!

The Applicant doesn’t have to complete a Replying Affidavit and if it does so, all allegations in the
Answering Affidavit are denied.
APPLICATION (MOTION) PROCEEDINGS
Interlocutory Applications
HC Rule 6(11)
Form 2
An interlocutory application is an interim application.

Unlike an ex parte application, the Respondent is cited.

There are no time limits laid down to bring an interlocutory application.

The Applicant must allow for a “reasonable” time for filing of affidavits.

A temporary application which forces a respondent to take a step/conform

to a Rule e.g. furnish security for costs; strike out; compel discovery etc.
Application Proceedings SUMMARY

WHAT WHY WHO WHERE HOW

NO MATERIAL DISPUTE OF NOTICE OF

PROCEEDINGS BY AFFIDAVIT APPLICANT /RESPONDENT MOTION COURT
FACT MOTION/AFFIDAVIT

Applicable HC Rules Forms Types

6(5)(g) High Court: Mag Court: 1) Ex parte
6(4)(a) & (b) Form 2 (short gorm( Form 1 (short form) 2) Bi-lateral
6(5)
Form 2a (long form Form 1A (long form) 3) Interlocutory
6(11)
APPLICATION (MOTION) PROCEEDINGS
Urgent Applications

A party may seek relief on an urgent basis.

Proceed by way of application even if there is a material

dispute of fact! Judge may dispense of rules (time, sitting times
of court etc,).
Dispenses with the 10 day period. Must be set down on motion
day to be able to be heard the following week.

Can be set down for the next day BUT only in dire cases of
urgency.

In extremely urgent cases, the matter can be heard on the

same day.
 APPLICATION (MOTION) PROCEEDINGS
Urgent Applications

The Rules allow for deviation not only in time but other areas too e.g. service

The Applicant must make out a case for urgency in their founding affidavit.

Urgent cases can even be heard at night/weekends.

APPLICATION (MOTION) PROCEEDINGS
Urgent Applications
The following factors must be taken into consideration:

The normal 10 days (HC Rule 6(5)(b) notice to Respondent may be

ignored but docs must be filed with Registrar & set down must occur.

The Applicant can give the Registrar a shorter period of notice.

Urgent matters -the matter can be set down for the next court day
OR same day if court hasn’t adjourned.

Sometimes matters are so urgent that they get heard outside of court
hours e.g. after hours / weekends.
APPLICATION (MOTION) PROCEEDINGS
Urgent Applications

Did you know?

In urgent applications even the need for written documents
may be dispensed with!

Legal practitioners should determine the degree of relaxation required on the merits of the case.
The reasons for this departure must be stated in the Founding Affidavit.
 APPLICATION (MOTION) PROCEEDINGS
Urgent Applications

The Rules don’t specify what form of Notice of Motion When the NoM is being served on a Respondent,
should be used. use Form 2(a) however amend this to accommodate
the shortened period of time to reply.
The Applicant can nominate a date for the hearing and
The reasons for urgency MUST be in the affidavit as
time limits for opposing affidavits.
well as why the Applicant could not wait the normal
period.
If the court is not satisfied with the reasons for
urgency, the matter will be dismissed.
APPLICATION (MOTION) PROCEEDINGS What circumstances
would you consider to
Urgent Applications be urgent?

Write your answers down now.

Urgent Applications
An unmarried father had not seen his newly born son and the mother of the child was withholding access
to him.

The father was diagnosed with a terminal illness and had not been given much time to live. His condition
worsened.

All he wanted was to see his son once before he died. This would be a classic example of urgency.

In fact, any case involving a threat to life or liberty are good reasons for urgent applications.
 Urgent
Applications

Do I have any recourse if an

application is granted in my
absence?
Yes. You can, by Notice, set down the matter
for reconsideration.
 Urgent Applications
Hearsay evidence – according to the Law of Evidence, no hearsay evidence is admissible.

Often confirmatory affidavits need to accompany the main affidavit for this reason.

Here the deponent of the confirmatory affidavit declares that they have read the main affidavit
and confirm that in so much as it relates to him/her, the contents are true.

The confirmatory affidavit therefore takes care of any hearsay evidence in the main affidavit.
 Urgent Applications

Ja, I hear you but often in urgent

applications, I don’t have time for
confirmatory affidavits…
What then?

This rule may be relaxed as long as the deponent of the main affidavit reveals the source,
and states why he believes the hearsay is believable.
 Urgent Applications

MAGISTRATES COURT
MC Rule 55(5)(a),(b) & (c)
Court may make an order dispensing of the forms & service of the Rules .

Must contain an Affidavit setting out why the matter is urgent and the reasons
why this matter could not be heard in the normal manner (grounds for urgency).

The court can dismiss the matter if these grounds are not laid out.

Same story as HC if Respondent wants to apply for re-consideration of the order.

THE END