Civil Procedure: Action v Application Flashcards
To understand the applicability, form and procedure for action and application proceedings in the HC and MC (61 cards)
1
Q
What are the two forms of proceedings in civil procedure?
A
- Application proceedings
- Action proceedings
2
Q
What are the parties called in application and action proceedings?
A
- Application proceedings: Applicant and Respondent
- Action proceedings: Plaintiff and Defendant
3
Q
Name 6 Characteristics of action proceedings
A
- Clear separation between pleadings stage and trial and evidence stage.
- Pleadings set out only material facts on which party relies.
- Pleadings do not disclose evidence and are not affirmed under oath nor signed by the party personally.
- Once pleadings close, the case is set down for trial and evidence is provided through oral testimony of witnesses, etc.
- Applicable when there is a real dispute of fact. (Substantial dispute of fact).
- Also known as summons proceedings.
4
Q
When it there a real dispute of facts? Cite source.
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 oral evidence”.
Source:
Watermeyer CJ in Peterson v Cuthbert 1945
5
Q
6 Characteristics of application proceedings:
A
- No separation between pleadings and evidence stage.
- Entire procedure is paper-based and there is no oral evidence.
- Applications are also known as motions.
- Applications include evidence in the form of averments in affidavits with(or without) annexures.
- The affidavit (with any annexures) are attached to the notice of motion and sumbitted to court.
- Applications can be opposed or unopposed.
6
Q
What type of court hears action proceedings?
A
Trial courts.
Trial courts consist of a raised bench where the judge or magistrate sits, tables in front of this bench where the legal representatives sit as well as a witness box and public seating.
Trial courts and action procceedings are the “typical” court set up.
7
Q
What type of court hears application (motion) proceedings?
A
Motion court.
Motion court has a number of half-moon shaped tables in front of the bench to accommodate many legal practitioners who usually appear on any given day.
8
Q
Action or application?
2 General questions.
A
1. Does any law or statute prescribe or proscribe the use of a specific procedure?
- Action only: Divorce or unliquidated claims (damages)
- Application only: Liquidations, sequestrations
2. Is there a real dispute of fact?
- Yes: Action
- No: Application
9
Q
What type of documents are exchanged in action and application proceedings?
A
Actions: Pleadings
Applications: Affidavits
10
Q
What types of applications are available?
Name four.
A
1. On notice applications (notice given to opponent)
2. Ex parte applications (no notice given, can be urgent or not).
3. Interlocutory applications (can arise during action)
4. Urgent applications
11
Q
What are interlocutory or incidental applications as defined by the HC rules?
State rule.
A
Rule 6(11):
“interlocutory or other applications incidental to pending proceedings”.
HC Rule 6: Applications
Rule 6(11): Interlocutory applications
12
Q
Name 4 characteristics of interlocutory / incidental applications
A
- They are incidental to proceedings that are already pending, they do not initiate proceedings.
- Interlocutory applications fall under the existing case number of the main case.
- They can arise during action or application proceedings.
- Affidavits are exchanged.
13
Q
State 5 examples of interlocutory proceedings
A
- To set aside an irregular step or proceeding i.t.o Rule 30(1)
- To compel a reply to particulars
- To compel discovery
- Application for a separation of issues i.t.o Rule 33(4)
- After judgment, application for leave to appeal or leave to execute pending an appeal.
14
Q
Must an interlocutory application be brought on notice or can it be brought ex parte?
A
In the MC:
Interlocutory applications MUST be brought on notice i.t.o rule 55(4)(a)
In the HC:
Interlocutory applications MAY be brought on notice i.t.o Rule6(11)
15
Q
Which rules are relaxed/condoned in urgent applications?
Name 3
A
1. Time periods: Service and notice periods
2. Evidence: Applicants in urgent matters may rely on hearsay provided that:
- the applicant states his source and
- affirms under oath that he believes the information to be true and the full reasons for his belief.
3. Location: In certain urgent matters application will have to be made orally to a judge or magistrate after hours or at a venue outside the court.
16
Q
What is a certificate of urgency and when is it required?
A
What is it?
A certificate of urgency is a short document in which an advocate certifies that he/she has considered the merits of the matter and it appears to be urgent.
When is it required?
In any urgent application in Kwazulu-Natal, as well as other divisions. Good practice to add to notice of motion.
17
Q
What must be stated in the notice of motion in urgent applications?
4 Main prayers
A
The first prayer seeks specifically:
- that the court permit the application to be heard under the rules relating to urgency
The notice of motion must also contain:
- Full reasons justifying the urgency
- Full reasons why an immediate order is the only relief
- Relief claimed
18
Q
Which rules allow for application proceedings in the HC and MC respectively?
A
Rule 6 HCR and rule 55 MCR
(substantially the same in its formulation)
19
Q
Which HC forms are used for application proceedings?
Ex parte and On Notice
respectively
A
Ex parte:
Form 2 of the First Schedule
On notice:
Form 2(a) of the First Schedule
The former (ex parte) is a short-form and the latter (on notice) is a long-form version of the same form.
20
Q
Which MC forms provide for application proceedings?
Ex parte and On Notice
respectively
A
Ex parte:
Form 1 of Annexure 1
On notice:
Form 1A of Annexure 1
21
Q
Which sections allow for the amendment of the notice of motion, pleadings or other documents (except an affidavit or sworn statement)?
State HC and MC rules respectively.
A
HC amendments:
Rule 28
MC amendments:
Rule 55A
22
Q
When will an amendment to the pleadings or other documents generally be allowed?
A
When it is bona fida and will not cause an injustice to the other side which cannot be remedied by an appropriate order for costs.
23
Q
Why can’t an affidavit or sworn statement be amended according to the same procedure and how is it to be done?
A
An affidavit or sworn statement was sworn to be true and its integrity and that of the deponent falls into question when it has to be amended.
An incorrect affidavit or sworn statement can only be amended by seeking leave of court to submit a further affidavit to explain the correct facts and why the previous affidavit was incorrect.
24
Q
Name 5 types of application proceedings
A
- To sequestrate a debtor’s estate
- To liquidate a company
- To remove a restriction in a title condition
- A money judgment (undisputed debt)
- An interdict, including a temporary interdict pending the outcome of an action to be instituted or already instituted.
25
9 Instances where the **application** procedure is mandatory
1. To ask for leave to appeal
2. Review
3. Rule 43 applications for interim relief
4. Rescission of judgments
5. Interlocutory applications
6. Consolidation of actions
7. Joinder of parties
8. Interdicts
9. Third Party procedures
26
3 Instances where **action** procedure is mandatory
1. Divorce matters
2. Personal Injury claims
3. Motor vehicle accident claims
27
Name 9 documents involved in **application** proceedings and 2 possible documents that may be included
1. Notice of motion
2. Founding affidavit
3. Supporting affidavits
4. Annexures
5. Notice of opposition (provided by respondent)
6. Answering affidavit (provided by respondent)
7. Replying affidavit (provided by applicant)
8. Further affidavits upon application to court
9. Notice of set down (provided by applicant)
Other possibilities:
Counterclaim or claim in reconvention where respondent's answering affidavit serves as his founding affidavit and applicant's replying affidavit serves as answering affidavit to respondent's counterclaim or claim in reconvention. Best practice: Respondent to draft separate notice of motion and founding affidavit.
28
State the 10 procedural steps for **_On Notice Applications_**
**1.** Draft the **notice of motion** in accordance with the applicable Form:
* _On notice in the HC:_ Form 2(a) of 1st Schedule
* _On notice in MC:_ Form 1A of Annexure 1
**2.** Draft the founding affidavit, any supporting affidavits and annexures and attach them to the notice of motion.
**3**. Deliver the original and at least two copies of the notice of motion and affidavits to the registrar (or clerk) of court to be *issued* (case nr and date stamp given) and ***served*** by the sheriff on each respondent. Return of service provided by sheriff.
**4.** The respondent must deliver his **notice of opposition.** The court allows at least 5 court days after receipt of the service papers and before expiry of the date indicated on the notice of motion.
**5.** The respondent must deliver his **answering affidavit** and any supporting affidavits and annexures within *15 court* *days* after his notice of opposition (HC) or within *10 court days* (MC).
**6.** The applicant may deliver a **replying affidavit within 10 days** after the respondent's answering affidavit has been served on the applicant.
**7.** Further affidavits may only be exchanged after application has been made to court.
**8.** The **notice of set** down must be delivered by applicant within 5 days after delivery of the replying affidavit or after expiry of the time allowed for delivering an answering affidavit.
**9.** The application is **adjudicated** based on the papers.
**10.** Counter applications and joinder applications may follow.
29
_ON NOTICE APPLICATIONS_
State the time periods for delivery of the following documents:
1. **Respondent's notice of opposition**
2. **Respondent's answering affidavit**
3. **Applicant's replying affidavit**
**1.** **_Respondent's notice of intention to oppose:_**
* **HC:** Allowed at least **5 court days** after receipt of the application papers i.t.o HC Rule6(5)(c)
* **MC:** With the time stipulated on the notice of motion i.t.o MC rule 55(1)g)
_DISTANCE EXCEPTIONS!_
* **2 weeks** to deliver notice of opposition if served outside the jurisdiction of the division of issue BUT within 150km of the court (calender days).
* **1 month** to deliver notice of opposition if served outside the jurisdiction of the division of issue and it is more than 150km from the court (calender days).
**2. _Respondent's answering affidavit:_**
* _HC:_ Within 15 court days after delivery of opposition notice
* _MC:_ Within 10 court days after delivery of opposition notice
**3. _Applicant's replying affidavit:_**
* Within 10 court days after delivery of the respondent's answering affidavit.
* **10 court days** for MC and HC
30
Explain the procedure for setting down a trial date
**1. _Where no answering affidavit is delivered:_**
Applicant may apply for set down within 5 days after expiry of the time period for filing an answering affidavit.
* 15 Days in HC
* 10 Days in MC
**2. _Where an answering affidavit is delivered_:**
Applicant may apply for set down within 5 days after delivering his replying affidavit, or if not given, within 5 days after expiry of the time period allocated therefore (10 days in HC and MC).
**RESPONDENT** may immediate apply for set down if applicant fails to give notice of set down as prescribed.
**_GENERAL RULE:_**
**Notice of set down within 5 days of expiry of last applicable time period**
**_EX PARTE_:** Notice of set down is included in the notice of motion. Only with ex parte because it is not opposed and no answering affidavit is required.
31
State 7 instances where an **ex parte application** may be brought in the **HC**
1. Applicant is the **only person interested in the relief** claimed.
* Admission as a sworn translator
2. The relief claimed is a **preliminary step** in the proceedings.
* Application to sue by edictal citation
* Application for substituted service
* Application for attachment of property to found or confirm jurisdiction
3. Giving notice may **defeat the purpose** of the application.
* Application to freeze bank account
4. **Harm is imminent**
* Urgent application for a temporary intedict
5. Ex parte application is the **prescribed procedure** by law or practice.
* Application for admission as an attorney
* Applications for provisional sequestration and liquidation
6. **Identity of respondent** is not readily ascertainable.
* Application affects a group of people (inhabitants of township), some kind of notice is still generally required.
7. A **nulla bona return** is relied upon in the case of an application for sequestration and no notice of the application is given to respondent.
32
State 2 requirements for ex parte applications in the MC where relief is claimed against another person and the applicable rule
**_Rule 55(3):_**
1. Giving notice to the person against whom relief is claimed will **defeat the purpose of the application**
2. The **degree of urgency** is so great that it justifies dispensing with the notice requirements.
33
State 3 additional requirements/elements for ex parte applications against another person
1. The application **must state a return date** on which cause must be shown why the order should not be confirmed.
2. Ex parte **orders and affidavits must be served** on the respondent.
3. Ex parte applications may be **heard in chambers.**
34
What must be included in the **notice of motion** in an ***ex p******arte*** application?
6 items
**_HC:_**
Form 2 of the First Schedule:
1. **Identity** of applicant
2. **Date and time** when application will be made
3. The **order** requested from court
4. That the application is supported by an **affidavit/s** attached to the Notice of Motion
5. Name and address of **applicant's attorneys**
6. **Notice of set down**, incorporated in notice of motion
**_MC:_**
1. Form 1 of Annexure 1 (or Form 2 of HC rules: same)
2. Same information as above
35
What must be included in the **notice of motion** in **on notice** applications?
**_HC & MC:_**
Form 2(a) of the First Schedule and Form 1 of Annexure 1:
1. **Identities and addresses** of applicant and respondent
2. The **order** sought
3. That **affidavits are attached** in support of the claim
4. The **domicilium citandi et executandi** (service address) of applicant
5. The **time limit** within which to file a notice of intention to oppose which includes the respondent's service address
6. The **application date**, if no notice of opposition is received
36
What is an affidavit and name 4 formal characteristics of affidavits in general?
An affidavit is a **statement made under oath or affirmation** (sworn statement) which is affirmed or sworn to by the deponent before a commissioner of oaths. An oath or affirmation is administered because the information contained in affidavits constitute evidence.
**_4 General Formal Requirements:_**
1. Affidavits are written in the **first person.**
2. Affidavits are divided into **numbered paragraphs** each of which contains a seperate averment (or allegation). Subparagraphs may also be used.
3. Affidavits start with the following statement: "**I the undersigned, John Smith, identity number 987, state under oath as follows..."**
4. The above is immediately followed by the statement: **"Save as indicated otherwise, the facts deposed to are within my personal knowledge."**
37
State **5 averments** that must be included in every founding and supporting **affidavit**
**_1. Locus standi:_**
* Paragraph 1: Full name, occupation, adult status, marital status (women only) and address of the applicant.
* Paragraph 2: The same info of the respondent.
Who are you? What do you do? Where do you live? Are you old enough?
**_2. Legal capacity:_**
The legal capacity of the applicant to bring the application must be confirmed. Directors must attach a company resolution to that effect, or an administrator must attach an appointment letter as a referred to annexure in the the affidavits.
3. Jurisdiction:
Jurisdiction must be confirmed. The respondent lives within the area of the court, the cause of action arose within the area of the court. Does not necessarily have to be expressed in seperate paragraph and may emerge from facts.
4. Urgency:
Grounds for urgency if applicable as required by the rules of court.
5. Relief:
The relief claimed from the court, as well as alternative or other relief.
**IMPORTANT:**
**FOUNDING AFFIDAVIT MUST DISCLOSE FULL _CAUSE OF ACTION_ (ALL LEGAL ELEMENTS OF CLAIM)**
38
What is a curator ad litem and curator bonis?
**_Curator ad litem:_**
* Required to assist a person who is of unsound mind or a minor in legal proceedings.
**_Curator bonis:_**
* Required to assist a person whom the court declared to be of unsound mind and as such, incapable of managing his own affairs.
**_NOTE:_** In terms of Rule 57, a **curator ad litem** application is brought **ex parte** and **precedes** and application for a curator bonis.
39
State the 8 averments that must be included in a **curator ad litem** application?
**Averments** contained in the applicant's founding affidavit as attached to the ex parte notice of motion (Form 2 of 1st Schedule)
**_Averments in affidavit of an application for curator ad litem:_**
1. **Locus standi** of applicant
2. **Jurisdiction** of the court.
3. **Patient's** age, sex, full particulars of means and **information** regarding his general state of physical health
4. **Relationship between applicant and patient** (if any) and the duration and intimacy of the association (if any).
5. **Facts and circumstances** relied upon to show that patient is of unsound mind and incapable of managing their own affairs
6. **Name, occupation and address** of the person/s nominated as a curator ad litem and subsequently curator bonis and a **statement confirming** that these persons have indicated their **ability and willingness to act** if so appointed.
7. **Affidavit by at least one person to whom the patient is well known** and containing such facts and information as are within the deponent's own knowledge **concerning the patient's mental condition.** Full details of the deponent's personal relationship or interest shall be set forth in his affidavit (ie a friend or relative).
8. **Affidavits by at least two medical practitioners** one of which should be an alienist (psychiatrist) who have recently examined the patient and who confirms their incapacity. No personal relationship or interest should exist.
40
What is the procedure for the appointment of a curator bonis?
1. The appointed **curator ad litem** will investigate the case and will **prepare and file a report** on the matter with the **_registrar_** and furnish the same to the applicant.
2. Upon recepit of the curator ad litem's report the **applicant shall submit this report**, together with the founding affidavit and initial documents, to the **Master** of the court.
3. The **Master shall prepare a report** with comments on the suitability and practical arrangements (ie security) of a curator bonis appointment to the patient and shall furnish this report to the curator ad litem and applicant.
4. After receipt of the Master's report, the **applicant may on notice** to the curator ad litem place the matter on the roll on the same papers (initial application and subsequent reports) for an order declaring the patient to be of unsound mind and as such incapable of managing his affairs and for the appointment of the person suggested as curator.
41
Which documents must be examined in a claim regarding the sale and execution of movable property where it was incorrectly attached?
1. Legal notice in the newspaper to obtain case number and date of sale.
2. Summons and return of service, which should be filed at court.
3. The warrant of execution and notice of attachment.
42
What is a writ or warrant of execution?
A document which entitles the sheriff to execute (attach and sell) the property of the judgment debtor.
43
Provide 16 steps in the process of a writ of execution against immovable property as prescribed by Rule 46
1. Writ against immovable property must contain full description of the **nature, situation, and address** of the property to be traced by the Sheriff.
2. The sheriff shall make an attachment to be served on the **owner, registrar of deeds and occupier** (is occupier is not owner).
3. Attorney must advise sheriff in writing whether to proceed with the sale in execution.
4. Sheriff determines records bonds or other encumbrances (any rights of another) against the property and the names of the relevant persons and notifies the attorney.
5. If property is subject to a claim of a **preferent creditor**, the attorney for judgment must notify that creditor to obtain a reserve price or to agree on the sale without a reserve price.
6. If the property is **rateable,** the attorney must notify the local authority (municipality) by registered post of the intended sale.
7. Sheriff appoints a day and place for the sale of the property that may not be less than 1 month after service of the notice of attachment.
8. Any **sale** in execution shall take place in the **district in which the attached property is situate** and be conducted by the sheriff of such district who first attached the property.
9. The sheriff may by notice served upon any person require him to deliver up to him forthwith all documents in his possession or control relating to the debtor's title to the said property.
10. The execution creditor shall, after consultation with the sheriff conducting the sale, prepare a **notice of sale** containing a short description of the property, its situation and street number, if any, the time and place for the holding of the sale and the fact that the **conditions of sale** may be inspected at the office of the sheriff conducting the sale.
11. The notice of sale shall be published in a **local newspaper and the GG.**
12. Not less than 10 days before the sale, the notice of sale must be served **via post on all bondholders** and affixiated to the **Magistrates' Court notice board**.
13. The execution creditor may appoint an attorney to attend to the transfer of the property when sold in execution.
14. Immovable property attached in execution shall be sold by the sheriff by **public auction**.
15. Neither a sheriff nor any person on behalf of the sheriff shall at any sale in execution purchase any of the property offered for sale either for himself or for any other person.
16. In this rule, the word 'days' shall have the same meaning as '**court days**' as defined in rule 1 of these Rules.
44
What is a **rule *nisi***?
A rule nisi is a court order in application proceedings calling upon named respondents or any other **interested parties to give reasons on a date** set by court, **why the order sought by the applicant should not be made final.**
45
When is a rule nisi commonly granted and provide a specific form of relief commonly granted as a rule nisi order?
1. Urgent ex parte applications
2. Ex parte application
**_Specific order commonly given as rule nisi:_**
* **Interdicts:** Applicant requires interim relief with limited or no notice to respondent, but respondent is entitled to opportunity to oppose.
46
State a typical instance in which a rule nisi is granted, coupled with an order that takes immediate effect?
**Sequestration of an individual**
In terms of section 10 and 12 of the Insolvency Act, a court is required in the first instance to grant a provisional sequestration order which, on the return day (rule nisi) the court is empowered to make the order final.
47
What are defective pleadings?
1. Pleadings that fail to define concisely and accurately the issues in the matter.
2. Pleadings that do not comply with the rules of court.
48
Which 2 procedures may be used to attack the different types of defective pleadings?
1. Exception (usual method of attacking defective pleadings)
2. Application to strike out
49
What are the two main grounds of exception?
1. The pleadings **fails to disclose a cause of action** or defense.
2. The pleading is **vague and embarrassing.**
A case that is subject to an exception is known as an "excipiable" case
50
What is the purpose of an application to strike out?
A procedure used to strike out parts of a pleading which are offensive, scandalous, argumentative, or irrelevant.
51
Is an exception based on a legal or factual objection in the pleadings?
Legal objection
The legal validity of the pleading is attacked.
52
What must be stated in pleadings to avoid an axception?
1. The pleadings must provide all material facts necessary to give rise to an enforceable claim.
2. The cause of action and all elements thereof must be clear.
53
When is a pleading vague and embarrassing?
1. When the vagueness of the pleading is such that it will result in **prejudice** or embarrassment to the opposing side.
2. An exception on the basis of vagueness "strikes at the formulation of the cause of action and not its validity".
54
Name 3 shortcut judgments and when they are available
**_1. Default judgment_**
* **Default of appearance to defend:** No notice of intention to oppose (or defend)
* **Default of appearance at trial:** Party does not show up on date of trial
* **Default of plea**: Defendant/respondent delivers notice of intention to defend/oppose, but fails to deliver subsequent plea. Same for plaintiff. Notice of bar must be given before application for default judgment if notice of opposition has been served.
**_2. Summary judgment_**
* Plaintiff has a very clear case and the defendant fails to establish a bona fida defence.
* Defendant's opposition is only to delay the matter.
* Four instances as prescribed by Rule 32 and rule 14.
**_3. Confession of claim or consent to judgment_**
* Judgment may be taken against a defendant who has consented to judgment being taken against him.
55
In terms of Rule 32 and rule 14, when may a plaintiff apply for **_summary judgment_** together with any claim for interest or costs?
**_If the plaintiff's claim is:_**
1. Based on a liquid document
2. For a liquidated amount in money
3. For the delivery of specified movable property
4. For ejectment
56
Why is summary judgment an extraordinary procedure?
Because it dispenses with the audi alteram partem principle by granting final judgment in defended actions without going to trial.
57
How does a plaintiff apply for summary judgment?
**_By application._**
The **notice of application** must be supported by the plaintiff's founding **affidavit** and any other supporting/confirming affidavits and annexures.
58
What is a liquid document?
1. A **written** instrument signed by the defendant or his agent which contains an **unconditional acknowledgement of indebtedness for a fixed amount in money.**
2. **Examples:** Cheque, mortgage bond, acknowledgement of debt letter.
3. The **provisional sentence judgment** procedure may be used to recover a debt based on a liquid document.
4. Distinguished from a liquidated claim or liquidated demand.
59
What is a liquidated claim/amount?
1. A claim where the amount has been fixed by agreement, an order of court or in another manner.
2. The claim amount is fixed and ascertainable.
60
What is a liquidated demand?
1. A claim for a **fixed, certain or ascertainable amount** of money or thing.
2. **Example:** Claim for the purchase price of goods sold and delivered
3. Plaintiff may sue by way of **simple summons** in HC and MC if claim is based on a liquid demand
61
Explain the concept of barring
