Application Proceedings Flashcards

1
Q

What are the two types of application proceedings ?

A
  1. Ex-Parte Application.

2. Applicant v Respondent

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2
Q
  1. 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.
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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.
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4
Q
  1. 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.
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5
Q

2.1 Applicant v Respondent: Stages of proceedings

A
  1. Founding Affidavit
  2. Answering affidavit
  3. Replying Affidavit
  4. Hearing
  5. Execution, Appeal or Review
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6
Q
  1. 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.
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7
Q
  1. 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.
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8
Q
  1. Replying Affidavit
A

-The applicant can respond to the answering affidavit with a replying affidavit.

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9
Q
  1. 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.
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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.
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