High Court Practice Flashcards
What is an Anton Pillar?
It is an application brought on an urgent basis and without notice to the opposing party when the applicant has a reasonable belief that the opposing party is in possession of vital evidence and that there are real/well-founded apprehension that such opponent intends to destroy or dispose of the evidence before discovery/trial.
The applicant brings the application before the court for an order permitting them to obtain the evidence.
Applicant must prove that they have:
1) prima facie case
2) evidence that party in possession of evidence which they might destroy/dispose so as to defeat the ends of justice
3) the specific documents sought which may be destroyed
NOT TO BE USED AS A FORM OF EARLY DISCOVERY AS IN VIZIYA case
What is a spoliation application?
It is an application that provides relief to people who have been deprived of their goods without due legal process having been followed.
- such person can regain possession of the dispossessed goods using the spoliation application.
Must prove:
- had undisturbed and peaceful possession of goods
- allege and prove unlawful deprivation of goods
What are the two types of interpleaders?
The first type takes place in respect of property attached in execution where the sheriff has attached the property of a judgment debtor and another person claims ownership of that property.
The second type relates to adverse claims being made by two or more persons against the applicant in respect of money.
The process is as follows:
1) the applicant will deliver an interpleader notice to the relevant claimants, delivers the interpleader to court and pays the money to the registrar of the court who will hold it until conflicting claims decided.
When will the court grant absolution from the instance?
Either at the end of the plaintiff’s case or at the end of the whole case, dismissing the plaintiff’s claim. It has the effect of leaving both parties in the same place and does not amount to res judicata. Plaintiff entitled to bring fresh case once more evidence obtained.
When do you raise an exception?
It is raised when the excipient alleges that a pleading against which he excepts is inherently defective and is a legal objection.
The legal objection to a pleading is that it is not legally valid as it stands for its intended purpose.
the grounds on which to except are as follows:
1) vague and embarassing
2) particulars do not disclose a COA/defence
- It must be raised within the period allowed for the filing of any subsequent pleading.
- before the exception is raised on the ground that it is vague or embarrassing, the excipient should by notice w/in 10 days of the pleading, afford opposing party opportunity to remove COC
What is the difference between appeal and review?
Appeal:
- must be noted within period prescribed in terms of the rules
- Appellant bound by the record
- court bound to the merits of the matter before concluding if the decision of the court a quo was right
- Application for leave to appeal or notice of appeal automatically suspends the operation of the court a quo’s decision until appeal decided
- Court determining appeal’s decision overturns decision of court a quo and declares its own decisions to be the decision of the court a quo
Review:
- must be brought within a reasonable period (not fixed)
- applicant not bound by the record
- merits not entertained, merely looks at the manner in which the decisions was reached
- does not necessarily suspend the decision under review
- May set aside decision of court a quo but it does not substitute that decision with its own. Orders the applicant to refer matter back to court de novo for a hearing de novo
Discuss how to go about amending a pleading.
- Deliver notice of intention to amend pleading stating the particular amendments. Such notice must further state that any objections to the amendment should be delivered within 10 days of notice failing which amendment will be deemed to not be objected to.
- If objection delivered within 10 days, must clearly state the grounds on which such objection is founded. Party amending may within 10 days of receipt of objection apply to court on notice for leave to amend and set matter down for hearing. Unless court directs otherwise, amending party must effect amendments by delivering pages in amended form within 10 days.
- If no objection delivered within 10 days, the party to whom the notice was sent will be deemed to have agreed to the amendment. On expiry of the 10 day period for the objection, effect the amendment.
List the different types of special pleas
- Special Plea in abatement (quashes claim altogether):
- Prescription: where the claim has prescribed
- Res judicata: where the same cause between the same parties has been previously tried
- Absence of jurisdiction: where the court does not have jurisdiction to hear the matter
- Absence of Locus standi: where plaintiff doesn’t have sufficient legal capacity in the proceedings - Dilatory Special Plea (does not abate the claim, only delays proceedings):
- Arbitration:
- Misjoinder or non Joinder
- Lis pendens
What is the difference between a special plea in abatement and a dilatory special plea?
A special plea in abatement destroys the cause of action an quashes the claim made.
A dilatory special plea postpones the the operation of the plaintiff’s cause of action.
Who can raise a special plea?
The defendant can raise the special plea against the plaintiff’s plea.
What is the difference between a special plea and an exception?
A special plea raises a special defence and is directed at an underlying legal problem. The special plea is procedural in character and either destroys or postpones the operation of the cause of action. It is not an objection to the merits of the case.
An exception is raised when there is a legal objection to the merits of the claim. The objection raised against the pleading is that the pleading as it stands is not legally valid for its purpose.
What is a Summary Judgment?
It is a procedure that allows the plaintiff to obtain judgment against a defendant summarily without the matter proceeding to trial. It is applicable where a defendant has entered a defence and the plaintiff has a reasonable belief that the defence entered is not a bona fide defence.
It may be raised for following claims:
1) based on liquid document
2) liquidated demand
3) delivery of specified movable property
4) ejectment
What amendment was made in respect of Summary Judgments and what gap has it created in the law?
Previously, a Plaintiff could apply for summary judgment after receipt of the notice of intention to defend. An amendment prescribes that application for summary judgment can only be made after the defendant has filed a plea.
The issue this may present, which was ventilated in the Belrex v Barday case in 2021, is that subsequent to the delivery of the summary judgment, the defendant is entitled to amend their plea. The amendment does not preclude the defendant from amending its plea even after summary judgment has been applied for.
This creates a lacunae in the law and an opportunity for defendants to use this tool to frustrate the plaintiff in their application for summary judgment.
What are the timelines in a Summary Judgment application
1) Application for summary judgment - 15 days after Defendant’s plea
2) Opposing Affidavit - 5 days before hearing
3) Hearing
What is a Default judgment, who can use it and when?
- A default judgment is a judgment entered against a defendant who has failed to defend a claim brought against them. It can be used by the plaintiff.
- There are four instances in which default judgment may be entered:
1) D has not served NOITD/ failed to do so timeously
2) D has served NOITD but has not delivered their Plea
