Civil Procedure 371 semester 2: lecture notes and drafting

CHAPTER 8: APPLICATIONS

- Also known as motion proceedings
- Characterised by the exchange of affidavits
- For the parties there is an applicant and a respondent
- Applicant commences proceedings by issuing a notice of motion
(advises respondent of claim and legal relief sought)
- Accompanied by founding affidavit (sets out the facts and evidence)
- Respondent delivers motion of intention to oppose
- Respondent delivers opposing / answering affidavit plus supporting
affidavits and relevant documents
- Applicant may then deliver a replying affidavit (to reply to
allegations contained in answering affidavit
- Hearing of matter then in motion court – legal representatives argue
on the papers
- General rule – no viva voce (oral) evidence is heard – arguments
based on legal submissions and submissions based on allegations
contained in affidavits, subject to certain exceptions

Types of applications:

- Majority of applications brought on notice

- Audi alteram partem – always give opposing party opportunity to
present their case by way of notice

 Ex parte
- No notice is given to the other party (if any)
- Applicant only party before court (thus also termed unilateral
application)
- Applicant addresses the application directly to registrar or clerk
- 2 circumstances don’t give notice to other party:
1. applicant only party whose rights affected (e.g admission as
attorney)
2. if giving notice will defeat purpose of application (seizing
something in possession of respondent – could destroy)

,  Bilateral

- Another person’s rights will be affected, and this person must
receive prior notice of the proceedings

- Prior notice will not defeat object of the application

- Application is directed to respondent and registrar / clerk (both
informed of proceedings)

 Interlocutory / interim

- Interim or temporary application brought in order to obtain ancillary
relief incidental to main proceedings pending between the parties

- Brought in between the institution and conclusion of legal
proceedings

- Applicant can use an interlocutory application to force respondent to
conform with rules or take steps they are required to

- E.g compel discovery (force respondent to comply with rules
relating to delivery of documents - have to release contract for you
to consider it) or an application to strike out or set aside an irregular
step

- Is an application for substituted service an interlocutory application?
Courts have treated it inconsistently

- Application for certification for class action? Also no straightforward
answer



Bilateral process

1. applicants notice of motion and founding affidavit
2. served by sheriff
3. respondents notice of intention to oppose
4. respondent’s answering/ opposing affidavit

, 5. applicants replying affidavit
6. further affidavits if necessary and court consents
7. notice of set down
8. hearing

Ex parte process

1. applicants notice of motion and founding affidavit = supporting
documentation and affidavits
2. application addressed to registrar
3. initial hearing, rule nisi and temporary order (rule nisi calls on
another party to appear at final hearing on return date to defend
against the order)
4. final hearing
5. temporary order made final or final order is refused

interal relief: return date to determine final relief (court deems necessary
to give respondent proper opportunity to present their side of the case in
final hearing) either to confirm interal relief or confirm applicants claim

Notice of motion

- Informs court and respondent (where applicable) that specific type
of application will be made on specified date at specified time at
specified court and the legal relief mentioned therein is going to be
requested

- Form of NOM will depend on the type of application brought

- 2 types: short and long form

- In the HC: form 2 (short form) and form 2(a) (long form)

- Short form – used when the application is brought on an ex parte
basis or is interlocutory

- Long form – used for bilateral applications

- In MC form 1 (short) and form 1A is the long notice of motion form

, Affidavit

- supports the notice of motion

- Records facts under oath or affirmation, which the court will then
consider when deciding whether to grant an application

- Under oath = commissioner of oaths

- No specific form; varies depending on type of application

- Certain basic principles that all applications must address:

 Names and addresses of applicant and respondent – details of
parties always in founding affidavit.

 Fact that applicant has locus standi

 Fact that court has jurisdiction

 Material facts on which claim is based (facta probanda)

 Evidence which deponent wishes to place before the court (facta
probantia)

 Request to grant relief as prayed for in notice of motion

- Where affidavit refers to documentary evidence, such documents
must be attached to the affidavit

- Where reference to communications from other individuals, such
communications must be confirmed through confirmatory affidavits
by such person(s), in order to comply with evidentiary rules against
hearsay evidence.

- If no confirmatory affidavits it amounts to hearsay (hearsay
evidence = less weight attached to it, as it is provided by a person
who was not directly a party to an aspect to which that evidence
relates - not a party to which the conduct relates. May not be
included in affidavit evidence but there are exceptions = urgent
application and applicant could not have an affidavit deposed to,