Applications

Question 1

What are the types of application procedures?

Answer 1

1. On notice
2. Ex parte
3. Interlocutory

Question 2

What are interlocutory applications?

Answer 2

“An application that is incidental to the main dispute, aimed at securing procedural or temporary relief in the course of litigation.”

Question 3

An example of an interlocutory application?

Answer 3

Rule 35(7)- application to compel the opposing side to discover or an application to strike out.

Question 4

What is an urgent application?

Answer 4

An urgent application allows a party to depart from the usual court procedures and time periods, provided they can show that the matter is so urgent that waiting would cause irreparable harm or render the relief ineffective.

Question 4

What evidence is inadmissible in affidavits?

Answer 4

1. Hearsay
2. Privileged communications
3. Matters excluded by the rules of court
4. Matter excluded by the use of inherent jurisdiction

Question 5

What matters are excluded by the rules of court?

Answer 5

1. Scandalous, vexatious or irrelevant.
2. Inadmissible new matter

Question 6

What is a scandalous matter?

Answer 6

Allegations that may or may not be relevant, but are worded in such a way as to be abusive or defamatory.

Question 7

What is vexatious matter?

Answer 7

Allegations that may or may not be relevant, but are worded in such a way as to convey an intention to harass or annoy.

Question 8

What is an irrelevant matter?

Answer 8

Allegations that do not apply to the matter in hand and do not contribute to the making of a decision in the matter.

Question 9

What is inadmissible new matter?

Answer 9

New information or issues that have not been included in the founding affidavit may not be raised in a replying affidavit.

Question 10

What are the steps in an on-notice application?

Answer 10

1. NOM
2. Founding and supporting affidavits
3. Service
4. Notice of Intention to Oppose
5. Answering affidavit
6. Replying affidavit
7. Further affidavits ( oral application must be made, granted only if special circumstances exist)
8. Set down
9. Hearing
10. Optional further steps- counter applications and joinder applications.

Question 11

What happens at the hearing for an ex parte application?

Answer 11

1. Court may grant order prayed if it is satisfied that the rights others will not be affected and that the papers are in order
2. If rights affect others, a rule nisi with temporary relief will be granted.

Question 12

What happens if a real dispute of fact is apparent on the papers?

Answer 12

1. Decide matter on the affidavits alone
2. Refer matter to oral evidence
3. Refer the matter to trial
4. Dismiss the matter with costs

Question 13

When may the court decide the matter on the affidavits alone?

Answer 13

If the parties do not request the court to refer the matter for oral evidence or trial, matter will dealt on the basis of undisputed facts.

Question 14

When may the court refer the matter to oral evidence?

Answer 14

Where the disputed facts are restricted to a narrow range of issues and are comparatively simple.

Question 15

When may the court refer a matter to trial?

Answer 15

If the disputed facts cover a broad range of issues or are relatively complicated.

Question 16

When may the court dismiss the matter with costs?

Answer 16

If a real dispute of fact should have been foreseen by the applicant.

1. If matter is dismissed because the plaintiff failed to make out his case, order = to a final judgment in favour of the respondent
2. If matter is dismissed because of the existence of a factual dispute, order does not operate as a final judgment.

Question 17

When must a counter-application be made?

Answer 17

When the respondent seeks relief beyond the dismissal of the applicant’s application.

Question 18

In what circumstances may an ex parte application be brought in the HC?

Answer 18

1. When the applicant is the only person interested
2. When the relief sought is a preliminary step in the proceedings
3. When the nature of the relief sought is such that giving notice may defeat the purpose of the application
4. When immediate relief is essential because the harm is imminent
5. Where the application is usually brought ex parte ito established court practices
6. Where the identity of the respondent is not readily ascertainable.

Question 19

In what circumstances may an ex parte application be brought in the MC?

Answer 19

1. The giving of notice would defeat the purpose of the application
2. Degree of urgency is so great that the dispensing of notice is justified.

Question 20

What are the requirements for ex parte applications?

Answer 20

1. Utmost good faith- open and honest with court and reveal all relevant facts.
   2.They have to provide a specified return date on which cause must be shown why the order should not be confirmed and a copy of the ex parte order and supporting affidavits must be served on the respondent.

Question 21

What does an ex parte NOM for the HC include?

Answer 21

An automatic notice of set-down.

Question 22

What is a rule nisi?

Answer 22

A court order calling upon named respondents, other interested parties, a specified class of persons to give reasons, on a date set by the court, why the order sought by the applicant should not be made a final order.

Question 23

What is a summary judgment?

Answer 23

A summary judgment is a final judgment granted to a plaintiff in an application where the defendant’s defence is shown to be bogus or merely a delaying tactic.

Question 24

When will a summary judgment be granted?

Answer 24

Where a court is satisfied that the plaintiff has a very clear case and the defendant fails to establish a bona fide defence.

Question 25

Under what circumstances can a summary judgment be applied for?

Answer 25

1. Based on a liquid document 2. For a liquidated amount in money 3. For delivery of specified movable property 4. For ejectment

Question 26

What are the documents to a summary judgment?

Answer 26

1. Notice of application and a supporting affidavit.

Question 27

What must the supporting affidavit contain?

Answer 27

1. If deponent not plaintiff, then they must state that the facts are within their own personal knowledge 2. Verify cause of action and the amount claimed 2. State that in his opinion there is no bona fide defence to the action 3. State that the Notice of Intention to defend has been delivered solely for the purpose of delay

Question 28

What are the two main options that a defendant has upon receiving the notice of the application for a summary judgment?

Answer 28

1. Give security to the plaintiff to the satisfaction of the registrar for any judgment, including costs, which may be given. 2. Satisfy the court by affidavit, or with the leave of the court, by oral evidence that he has a bona fide defence to action

Question 29

What is the effect of giving security?

Answer 29

The application for summary judgment will be defeated and the action will proceed as normal.

Question 30

What does the defendant need to establish at the summary judgment stage?

Answer 30

A bona fide defence.

Question 31

What is a provisional sentence?

Answer 31

An extraordinary procedure which is available to a creditor (plaintiff) who has liquid documentary proof of his claim against the debtor (defendant).

Question 32

What are the requirements for a provisional sentence?

Answer 32

1. Claim is based on a liquid document 2. Where onus is on plaintff, plaintiff can satisfy the court that the probabilities of success in the principal case are in his favour 3. Where onus is on defendant, he is unable to produce sufficient proof to satisfy the court that the probabilities of success in the principal case are against the plaintiff.

Question 33

What is a liquid document?

Answer 33

1. A written instrument 2. Signed by the defendant/agent 3. Evidencing an acknowledgement of indebtedness 4. Which is unconditional 5. Of a fixed amount in money

Question 34

What is a provisional sentence summons?

Answer 34

A provisional sentence summons is a summons that initiates provisional sentence proceedings, allowing the plaintiff to seek swift judgment based on a liquid document—such as a signed acknowledgment of debt—without first going through ordinary trial procedure.

Question 35

What does a provisional sentence summons do?

Answer 35

1. Informs the defendant of what the plaintiff's claim comprises and attaches a true copy of the liquid document on which the claim is based. 2. Gives defendant two options: give up and pay claim with interest or oppose.

Question 36

What happens if the summons are opposed?

Answer 36

1. Appear in court to deny or admit liability 2. File an affidavit two days before hearing.

Question 37

What are the requirements for the provisional sentence affidavit?

Answer 37

1. Set out defence 2. State whether signature is admitted or denied on liquid document

Question 38

Which issues does the plaintiff bear the burden of proof in a provisional sentence procedure?

Answer 38

1. Authenticity of the defendant's signature 2. Authenticity of defendant's agent's signature 3. Authority of defendant's agent 4. Fulfilment of any relevant simple condition 5. Entitlement of the plaintiff to the claim evidenced by the liquid document

Question 39

What are the consequences of a provisional sentence?

Answer 39

1. If defendant does not do anything about, the provisional sentence will become a final judgment two months after the date on which it was granted 2. If defendant fights case or enters into principal case= pay full amount of the provisional sentence judgment plus taxed costs to plaintiff

Question 40

What happens if defendant pays the money?

Answer 40

He can demand that the plaintiff furnish him with security restituendo.

Question 41

What does Twee Jonge v Land & Agricultural Development deal with?

Answer 41

Developed the common law so that courts will have a discretion to refuse provisional sentence bc it limits right to a fair hearing.

Question 42

What are the requirements for court's discretionary power to refuse provisional sentence?

Answer 42

Where defendant has proven: 1. An inability to satisfy the judgment debt 2. An even balance of prospects of success in the main case on the papers 3. A reasonable prosect that oral evidence may tip the balance of prospective success in his favour

Question 43

What are the possible outcomes in provisional sentence matters?

Answer 43

1. Admission of debt= final judgment 2. Plaintiff does not discharge onus= dismissal, start afresh with normal summons 3. No opposition = provisional sentence granted against defendant 4. defendant opposes, plaintiff discharges onus, but defendant does not discharge onus =provisional sentence granted 5. Both parties discharge = provisional sentence refused, PSS stand as summons, defendant entitled to enter into principal case and file plea within stipulated period,