Application Proceedings Flashcards
1
Q
What are the two types of application proceedings ?
A
- Ex-Parte Application.
2. Applicant v Respondent
2
Q
- Ex-Parte Application
A
- this occurs when only one party has an interest in pursuing a case thus the notice of motion wont be served to another person.
- also common when applying for a declaratory order.
3
Q
What is the ‘Rule Nisi’
A
- when other parties are affected by the ‘ex-parte application’ then the court may grant it subject to return.
- the application is only conditional.
- the court will notify the parties that are affected asking if they have a reason as to why the order should not be made final.
- if the reason is not convincing or sufficient then the order will be made final.
- if the reasons are convincing then the rule is satisfied and the proceedings move forward.
4
Q
- Applicant v Respondent
A
- when another party does take an interest in pursuing the case, which is normally the respondent, then a notice of motion is served.
5
Q
2.1 Applicant v Respondent: Stages of proceedings
A
- Founding Affidavit
- Answering affidavit
- Replying Affidavit
- Hearing
- Execution, Appeal or Review
6
Q
- Founding Affidavit
A
- The affidavit that is attached to the Notice of Motion by the applicant.
- it sets out the facts of the case.
- the applicants witness affidavit is also attached to the NOM and the NOM is filed with the Registrar of the HC or the clerk of the Magistrate Court.
7
Q
- Answering Affidavit
A
- The sheriff will then serve the NOM and the affidavit to the respondent.
- the respondent can respond to the affidavit with a answering affidavit stating his version of effects.
- The respondents witnesses’ affidavit may also be attached to the affidavit.
8
Q
- Replying Affidavit
A
-The applicant can respond to the answering affidavit with a replying affidavit.
9
Q
- Hearing
A
- the case is placed on a court role and a date and time are set for the hearing.
- the court is in possession of the parties documents.
- there is no need for oral evidence as there are no fundamental differences.
- The proceedings are heard on paper and replace the pleading and the oral evidence.
- the legal council will then argue their cases.
- if there exists a fundamental difference, the court may allow oral evidence.
- After the hearing the closing argument, a judgment will be may which means the application is either granted or dismissed.
- if granted then a court order will be made and the respondent must comply with it.
10
Q
5.Execution, Appeal or Review
A
- If the respondent does not comply with the court order, then execution takes place.
- appeal or review is also an option.