Ex Parte Applications Flashcards
List the circumstances under which an ex parte application may be brought
When the applicant is the only person interested in the relief claimed
When the relief sought is a preliminary step in proceedings
When the nature of the relief sought as such that giving notice may defeat the purpose of the application
When immediate relief is essential because harm is imminent
With the Application is usually brought ex parte in terms of establish court practices
Win the identity of the respondent is not readily ascertainable
Give three examples of relief which is sort as a preliminary step
An application to Sue by edictal citation
An application for substituted service
An application to attach a person or property in order to found or confirm jurisdiction
Give the requirements under rule 55(3)Of the magistrates court rules that an ex parte application must satisfy
Magistrates court rule 55(3) Provides that an ex parte application maybe brought with the following requirements are satisfied
Giving of notice would defeat the purpose of the application
The degree of urgency is so great that dispensing of notice is justified
List five pieces of information that Must be included in an ex parte notice of motion in the High Court
High court form 2 Includes the following information
Who the applicant is
The date and time when the application will be made
What order the court will be asked to make
That the application is supported by an affidavit attached
The name and address of the applicants attorney
Instruction to the registrar to set the matter down on the roll for hearing
Do you send a notice of sit down in an ex parte application
Know the notice of sitdown is incorporated into the notice of motion this is only possible for export applications
Indicate win a curator ad litem Will be required for a person
This is required to assist a person who is of unsound mind or a minor in legal proceedings
Indicate win a curator bonis Will be required for a person
This will be required for person in respect of whom the court has made an order that the person is of and sound mind and as such is incapable of managing his or her affairs
Which rule would you use to Have a person declared incapable of managing his or her own affairs
Rule 57 provides for an application to be made to court for an order declaring a person to be of and sound mind and therefore incapable of managing his or her own affairs
List the essential averments to be made in support of an application under rule 57
The grounds upon which the applicant claims locus standi
The grounds upon which the court is alleged to have jurisdiction
Full particulars of his means
Information as to the general state of his physical health
The relationship between the patient and the applicant
Affidavits By at least two medical practitioners one of whom has to be a psychiatrist who has conducted recent examinations on the patient
The parties age and sex
Facts and circumstances relied on to show that the patient is of unsound mind and incapable of managing his affairs
The name occupation address of the respective persons suggested for appointment as curator ad litem and subsequently curator bonis
Statements that these persons have been approached and have indicated their ability and willingness to act if so appointed
And affidavit By at least one person to whom the patient is well known and containing such facts and information as of with in the deponents Own knowledge concerning the patient’s mental condition
List seven compulsory steps in terms of the requirements of rule 46 of the uniform rules of the High Court in preparation for the sale in execution
A writ of execution against immovable property must contain the full description of the nature and situation of the property including the address to enable the sheriff to trace
The shares shall make an attachment to be served in terms of the rules on the owner registry of deeds and occupier of the property if the occupier is not the owner
The attorney to advise the sheriff in writing whether he should proceed with the sale in execution
The sheriff ascertains and records bonds or other encumbrances registered Against the property together with the name of the relevant person and notifies the attorney accordingly
If the property is subject to the claim of any preferred creditor the property may not be sold and Liz the attorney for the judgement creditor notify such preferred creditor by registered post of the intended sale and obtains a reserve price for agrees on the sale without a reserve price
If the property is rateable The attorney for the judgement creditor must also by registered post notify the local authority
The sheriff of appoints a day and place for the sale of the property not least than one month after service of the notice of attachment
The attorney in consultation with the sheriff shall prepare a notice of sale and conditions of sale and hand same to the sheriff not less than 20 days prior to the sale
The notice of sale shall be published in the government Gazette and local newspaper
Not less than 10 days prior to the date of sale the sheriff shall forward by registered post the notice of sale to all bondholders
The sheriff shall not later than 10 days prior to the sale six the notice of sale on the noticeboard of the magistrates court
What is a rule nisi
A court order calling upon the named respondents or other interested parties to give reasons i.e. to show calls on a date sit by the “why the order sought by the applicants should not be made a final order
It is a form of relief granted an application proceedings especially urgent applications brought ex parte with the applicant requires interim relief without notice or with limited notice but where the respondent must be given an opportunity of opposing the granting of the final order
