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Civil Procedure > Actions or applications? > Flashcards

Actions or applications? Flashcards

1
Q

What are the characteristics of action proceedings?

A
  1. Clear separation between the pleading stage and the trial and evidence stage.
  2. Oral evidence.
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2
Q

What are the characteristics of application proceedings?

A
  1. The entire procedure is paper-based
  2. No separation between the pleadings stage and evidence stage.
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3
Q

In what court are action proceedings heard?

A

Trial court.

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4
Q

In what court are application proceedings heard?

A

Motion court.

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5
Q

What for is an application procedure reserved?

A

Matters in which the court is able to reach decision on the documents put before it, without having to sit through a trial in which witnesses give evidence and are cross-examined.

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6
Q

What is the leading case on type of proceedings?

A

Room Hire v Jeppe Street Mansions.

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7
Q

According to Room Hire v Jeppe Street, what are three possible situations that exist?

A
  1. There are certain types of proceedings that must be brought by way of application.
  2. There are certain types of matters which the court is prohibited by statute from deciding on application.
  3. A grey area between application and applications, test is whether there is any real dispute between the parties on any material question of fact.
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8
Q

According to the Room Hire case what are the different ways in which a dispute of fact may arise?

A
  1. When the respondent denies all the material allegations made by the various deponents on the applicant’s behalf, and produces or will produce, positive evidence by deponents or witnesses to the contrary (two differing versions)
  2. Respondent admits the applicant’s affidavit evidence but allege other facts which throw a different light on the applicant’s allegations, which fact the applicant disputes.
  3. Respondent concedes that they have no knowledge of the main facts stated by the applicant, but may deny them, putting applicant to the proof and themselves giving or proposing to give evidence to show that the applicant and his deponents are biased and untruthful or otherwise unreliable, and that certain facts upon which applicant and his deponents rely to prove the main facts are untrue.
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9
Q

When will a dispute of fact not arise?

A

Where there is a bare denial of the allegations in the applicant’s affidavits.

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10
Q

What did Wightman v Headfour hold regarding a dispute of fact?

A

A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed.

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11
Q

What are the two stages to an action?

A
  1. Pleadings
  2. Trial and evidence
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12
Q

What are pleadings?

A

Written statements exchanged between parties setting out material facts on which the claim/defense is based and not signed by the plaintiff nor affirmed under oath.

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13
Q

What did the court hold in Peterson v Cuthbert?

A

In every case the court must examine the alleged dispute of fact and see whether in truth there is a real issue of fact which cannot be satisfactorily determined without the aid of evidence.

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14
Q

Which documents are first issued in an application?

A
  1. Notice of motion
  2. Supporting affidavit
  3. Opposing affidavit
  4. Replying affidavit
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15
Q

Which documents are first issued in an action?

A
  1. Summons
  2. Plea (Defendant)
  3. Counterclaim (Defendant)
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16
Q

What are the stages in the application process?

A
  1. Notice of Motion + founding affidavit (other affidavits)
  2. Issue and service of documents via sheriff
  3. Notice of intention to defend
  4. Answering affidavit
  5. Replying affidavit
  6. Notice of set down and HOAs
  7. Practice directives
  8. Hearing
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17
Q

What happens if there is no dispute of fact in the hearing?

A

An order is granted.

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18
Q

What happens if there is a dispute of fact in the hearing?

A
  1. Decide matter on affidavits
  2. Refer for oral evidence
  3. Refer to trial
  4. Dismiss application with costs.
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19
Q

What are summons and POC?

A

A written judicial demand that gives details of the plaintiff’s actions and is issued by the registrar/clerk and sent to the sheriff for service.

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20
Q

What does summons do?

A
  1. Authorises the sheriff to command the defendant to enter an appearance to defend by a certain date in order to answer the plaintiff’s claim.
  2. Warns that failure to defend the action will result in default judgment being taken
  3. Warnns that if the defendant wishes to defend the matter they must give an address within 8km/15km of the court for the service of documents.
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21
Q

What are combined summons?

A
  1. Summons + POC.
  2. Can be used for any type of action but is mandatory for illiquid claims and divorce.
22
Q

What is a POC?

A

Document that contains material facts on which the claim is based.

23
Q

What are simple summons?

A

A document that does not have a separate POC and can only be used for debt or liquidated demand, SP, cancellation of a sale and ejectment, interdict, delivery of property, amount due on overdrawn account.

24
Q

What are the stages of an action?

A
  1. LOD
  2. Summons
  3. Notice of Intention to Defend
  4. Plea/Exception/Special Plea/ Counterclaim
  5. Reply to Plea/Plea to Counterclaim
  6. Reply to Counterclaim
  7. Closure of pleadings
  8. Application for Trial
  9. Discovery + request to discover
  10. Prep for trial
  11. Consult witnesses
  12. Pre-trial
  13. Practice notes
  14. Trial
25
Q

What are facta probanda?

A

Facts material to the claim.

26
Q

What are facta probantia?

A

Evidence in support of the claim is only presented at the trial.

27
Q

What happens if you dont comply with the technical requirements of a POC?

A

Pleading will be deemed an irregular step/exception can be taken and claim might be set aside or dismissed if not rectified (HCR 18(12)) (MCR 6(13))

28
Q

When does litigation start?

A

Upon service of legal documents.

29
Q

Which legal rule underpins the service of legal documents?

A

Audi alteram partem.

30
Q

Explain the audi alteram partem rule ito service?

A

The court must be satisfied that the defendant:
1. Has received the documents timeously
2. Is aware that legal proceedings are being brought against him
3. been afforded opportunity to reply to the case.

31
Q

What is a Notice of Intention to Defend?

A

Notice that tells the plaintiff and he court that the defendant wishes to defend the action and appoints a street address within 8km of the HC and within 15km of the MC, for the services of further documents on the defendant and it place the defendant’s attorney on record.

32
Q

What happens if no NOI to Defend is issued after summons?

A

Default judgment.

33
Q

Is a late appearance to defend valid?

A

Yes, provided a default judgment application has not yet been filed.

34
Q

What is a plea?

A

It is a document that gives details of the defendant’s response to the plaintiff’s POC, it deals with the substance of the plaintiff’s claim.

35
Q

What does a plea consist of?

A

Admission, denial, confess and void and no admission.

36
Q

What is a ‘confess and avoid’ response in a plea?

A
  1. The defendant admits a particular averment but then sets out new facts which if proved, would justify or excuse the defendant’s admitted conduct.
  2. Shifts the onus onto the defendant to prove the new facts raised by him.
37
Q

What is a special plea?

A

Legal objection aimed at knocking out the plaintiff’s case before the merits are even considered due to an underlying legal problem in the plaintiff’s case rather than the merits.

38
Q

What is a dilatory special plea?

A

Plea aimed at postponing the operations of the plaintiff’s cause of action.

39
Q

What are examples of dilatory special pleas?

A
  1. Arbitration
  2. Lis pendens
  3. Premature summons.
40
Q

What is a lis pendens?

A

A special plea can be raised to stay a particular action on the grounds that another action is already pending between the same parties, on the same cause of action and in respect of the same subject matter.

41
Q

What is a premature summons plea?

A

A plea raised when a summons is issued before the cause of action is complete.

42
Q

What is a special plea in abatement?

A

Plea aimed at destroying the plaintiff’s cause of action.

43
Q

What are examples of special pleas in abatement?

A
  1. Prescription
  2. Misjoinder
  3. Res judicata
  4. Jurisdiction
  5. Non locus standi in iudicio
44
Q

What is presciption?

A

Every cause of action has to be prosecuted within a certain time period, failing which, it will prescribe and the defendant can no longer be found liable.

45
Q

What is a misjoinder?

A

Plea raised where a party who should not have been joined to an action.

46
Q

What is res judicata?

A

Plea raised where the defendant is able to show that the point in dispute has already been finally adjudicated upon between the parties.

47
Q

What are the circumstances in which a demand must be made?

A
  1. Where statute requires
  2. Where demand must be made to complete a cause of action
48
Q

What are the statutes that require demand to be given prior to the institution of litigation?

A
  1. Institution of Legal proceedings against Certain Organs of State Act
  2. General Law Amendment Act
  3. Customs and Excise Act
  4. NCA
  5. Small Claims Court Act
  6. RAF Act
49
Q

Which provisions of the NCA require notice to be given to a consumer?

A

Sections 129(a) or 86(10).

50
Q

Which section of the Small Claims Court Act require notice?

A

Section 29.

51
Q

What does section 29 of the SCCA hold?

A
  1. LOD must be delivered by the plaintiff to the defendant by hand or registered post before legal action may be taken
  2. A period of 14 days may elapse after receipt of this letter by the defendant before the SCC summons may be issued.

Civil Procedure (8 decks)

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