Application Priceedings Flashcards
How are Application Proceedings commenced?
By way of a notice of motion supported by an affidavit (Founding Affidavit)
What should a notice of motion generally contain?
It should set out the relief sought and give directions to the respondent as to when and where the application is to be heard and what he should do to oppose it.
What is the purpose of the affidavit which accompanies the notice of motion?
It is a sworn statement by which Evidence upon which the relief is sought is presented to the court
It takes the place both of pleadings and evidence in an action
What is the minimum that must be contained in the founding affidavit
At a minimum it must contain sufficient facts to support the cause of action (grounds for the application)
It must provide sufficient detail having regard to the nature of the proceedings and the circumstances to enable the court to make an assessment of the case
Documents may be attached as evidence
What form notice of motion take in a substantive application
In a substantive application a notice of motion must be as near as can be to form 2.
Explain what is meant by notice of intention to oppose
The notice of motion must require that the respondent if it wishes to oppose the relief sought to give a notice of intention to oppose by a specific date
This date may not be less than five court days from the service of notice of motion
After delivering its notice of intention to oppose the respondent must then deliver an answering affidavit with in 15 court days of the notice of intention to oppose
What form Must notice of motion take in cases of incidental applications
Incidental applications require the notice of motion to be a short form the notices not invite the delivery of the notice of intention to oppose but simply in roles the matter on the next appropriate motion day
Should the respondent wish to oppose it can do so by delivering an answering affidavit
Explain what is meant by urgent application and the prayers that must be contained there in
An urgent application are used in matters of urgency and these applications non-compliance with the rules governing instances of time limits for service can on good grounds be condoned by the court
In an urgent application one is required to justify the urgency and to seek a specific relief that the quote is permitted to grant
In addition to the above a specific prayer must be included request in that the court permit The application to be heard under the rules relating to urgency it is practised that this be the first pair in the notice of motion
Explain what is meant by Rule nisi
This is an order calling upon the respondent or other party to show cause on a specific future date why an order in specific terms should not be made
This may be granted together with some form of interim relief operating part of the order ultimately sort pending The determination of the rule nisi
Give an example of when a rule nisi is required
In the case of the Sequestration Of an individual
In terms of section 10 as read with section 12 of the insolvency act a court in the first instance must grant a provisional Sequestration Order which on the return day it is empowered to grant a final order
