Slide 8- Applications Flashcards
What do application papers consist of?
- Notice of Motion/application(Used when informing your opposing party about intention to lodge an application to the court)
- Founding Affidavit
- Supporting Affidavit
- Annexures (used when evidence is brought forth)
What are the different types of applications?
- Interlocutory Application (they are not used to initiate proceedings, they are incidental to the pending proceedings, these are usually used to apply for summary judgement/compel to discover
- Urgent application, these do not comply with the strict rules of the court due to their nature
- Ex Parte Application
- On Notice Applications
What is a Certificate of Urgency?
a short document in which an advocate certifies that he has carefully considered the merits of the case and that it appears to be urgent. If a matter is not urgent, the advocate may be required to pay costs de bonis propiis
Why do we use on notice applications?
These are used if you want to make an application to court that might affect the interests of another person, you must give them notice of such an application. This is to give them an opportunity to to prepare for court (audi alteram partem/natural justice)
Briefly discuss ex parte applications
These are used when no one has interest in the matter or it is undesirable or impossible to give notice to the respondent.
What are the contents of a notice of motion?
- Identities and addresses of both applicant and respondent.
- Gives respondent certain time limits within which to respond
- Consequences if no response is received
- Informs of relief or remedy sought by the applicant.
What are the contents in the founding affidavit?
- Locus Standi– Contains full names and addresses of both parties and should contain that applicant has locus standi to bring the application
- Legal Capacity– legal capacity of the applicant must be shown and state in what capacity you are acting in
- Jurisdiction–must contain full facts to establish jurisdiction of court.
- Urgency– the founding affidavit must set out grounds of urgency in accordance with Rule 55 of MCA or Rule 6 of HC
- Grounds for relief–Sufficient facts must be set out to disclose and prove a cause of action.
if a founding affidavit fails to disclose and prove such facts, the matter will be dismissed on the basis that grounds were not disclosed, thus no reflief can be granted.
What evidence is INADMISSIBLE in an affidavit?
- Hearsay evidence (will usually be permitted in urgent application, temporarily)- these are facts in which the deponent has stated in the affidavit but they do not have first hand knowledge to.
- Privileged communications, these include statements made without prejudice, communication between attorney and client, spousal privilege.
- Matters excluded by rules of the court :scandalous (worded in an abusive/defamatory manner), vexatious (worded in a way that intends to harass or annoy), irrelevant (they do not apply to the matter at hand an dhave no contribution to the decision) , inadmissible new matter (this means that information that was not included in founding affidavit should not be included or raised in replying affidavit)
- matters excluded by use of inherent jurisdiction: irrelevant credibility attacks, argumentative matter.
How do you strike out inadmissible evidence?
the other party may make an application to the court to strike out portions of the affidavit being objected to. The court will only grant such an application if it is satisfied that the applicant will be prejudiced if application to strike out is not granted.
What is the process for application on notice?
- Notice of motion
- Application’s founding and supporting affidavits
- Service
- Respondent’s notice to oppose
- Respondent’s answering affidavits
- Applicant’s replying affidavits
- Further affidavits
- Setting matter down for hearing
- The hearing
What are the possible court orders that may be granted if real dispute of fact has arisen?
- Court may decide on the affidavit alone.
- The court may refer aspects of the matter for oral evidence.
- The court may refer the matter to trial.
- Dismiss with costs.
What is an answering/ Replying affidavit?
This is where the respondent deals with the allegations in the founding affidavit, by responding to each paragraph. Respondent may deliver this within 15 Court days after the delivery of notice of opposition.
In the case of the applicant, he may deliver a replying affidavit in 10 days after the respondent’s answering affidavit. The purpose is to rebut averments made in the answering affidavit.
Name instances where further affidavits will be allowed by the court?
- When evidence has been brought to the attention of parties at a later stage.
- When the court requests for them.
- When it would prejudice the respondent further if such application is not granted.
- When a anew matter or something unexpected has come us in the answering affidavits.
When may Ex Parte applications be brought?
- When the applicant is the only interested party in the relief claimed.
- Relief claimed is a preliminary step in the proceedings. (An application to attach person/property to establish jurisdiction).
- Nature of relief is such that sending notice will defeat the purpose of the application. (Application to freeze someone’s bank account)
- Immediate relief is needed because harm is imminent. (urgent application for temporary interdict).
- Where established court practice dictates an ex-parte. (application for the appointment of a curator are brought ex parte)
- Where the identity of the respondent(s) are not readily ascertainable.
What is a Rule Nisi and in which instances would a court issue one?
This is a court order calling upon named respondents and interested parties to give reasons on a date set by the court, why the applicant’s sought relief should not be made a final order. The court may also grant a rule nisi along with a temporary/ interim relief.
