Unit 3B – Research and Writing Skills

Question 1

Application vs Action Procedure

Answer 1

❖ The key difference between application and action proceedings lies in the fact that application proceedings take place exclusively on paper without the need for oral presentations before the court at trial.
❖ These application procedures are usually carried out through the drafting of affidavits.
❖ This is often the case where facts are not disputed.
❖ Where facts are disputed, Action proceedings are required.

Question 2

Describe an application

Answer 2

Applications (or motions) usually consist of a notice of motion and is accompanied by an affidavit.

Question 3

Notice of Motion

Answer 3

❖ It is similar to the summons as it sets out the details of the parties and the relief sought.
❖ The notice of motion does not contain a list of statements relating to the case. Instead, ancillary information is contained in affidavits and accompanying annexures.
❖ Affidavits contain evidentiary matter that is placed before the court on oath and are included as evidence in that manner.
❖ Applications are decided based on the papers submitted and the oral arguments of the legal practitioner or party concerned.

Question 4

What to consider before Drafting an Application

Answer 4

❖ Urgency of the matter
❖ Interim or final relief (Rule Nisi applications)
❖ Documents to be attached (this is done by means of annexures)
❖ Supporting affidavits

Question 5

What happens if you choose
the wrong procedure?

(Application instead of Action)

Answer 5

❖ In terms of Rule 6(5)(g) of the Uniform Rules of Court for the High
Court, the presiding officer has numerous options:
➢ Dismiss the application if the litigant who initiated the proceedings foresaw or ought reasonably to have foreseen, before initiating the proceedings, that a dispute of fact would arise.
➢ Refer the material dispute of fact to oral testimony if it can be disposed of easily and speedily without affecting any other
issues in the case; or
➢ Refer the entire matter for trial and order that the notice of motion stand as a simple summons, that the founding affidavit stand as the plaintiff’s declaration, that the answering affidavit stand as the defendant’s plea and make any other order relating to the conduct of the proceedings as a trial.

Question 6

Types of Applications

Answer 6

❖ Ex Parte
❖ Bilateral
❖ Interim (interlocutory)

Question 7

What does an ex parte application entail?

Answer 7

❖ Usually involves only an applicant. Normally, there is no respondent as the applicant is the only interested party.
❖ The applicant is required to address the application to the
registrar or clerk of the court.

Question 8

Where may an ex parte application be used?

Answer 8

➢ The applicant is the only person with an interest in the case.
➢ The application is a preliminary step in the matter
➢ Urgent relief is sought

Question 9

Bilateral Applications

Answer 9

❖ If the application will affect the rights or interests of another party, notice must be given to that party from the beginning.
❖ The applicant must address the application to the registrar or clerk of the court and the respondent to the case.

Question 10

Interim (Interlocutory) Applications

Answer 10

❖ Interim or interlocutory applications are brought during the course of an existing action or motion.
❖ Interim applications often concern procedural aspects such as discovery, the exchange of documents or exceptions.

Question 11

What is a notice of motion?

Answer 11

The notice of motion is accompanied by an affidavit setting out the merits of the matter and the relief sought.

Question 12

Contents of a Notice of Motion

Answer 12

➢ Heading
➢ Notice of Hearing
➢ Prayers
➢ Procedural Information
➢ Date and Signature
➢ Recipient’s Details

Question 13

What will the Heading entail?

Answer 13

▪ Court’s name
▪ Case number
▪ Names of parties
▪ Nature of application

Question 14

What will the notice of hearing entail?

Answer 14

▪ Details of when the matter will be heard.
▪ This information will be readily available for urgent and ex parte applications.

Question 15

Describe the prayers

Answer 15

▪ Relief sought, itemized separately.

Question 16

What does the procedural info entail?

Answer 16

▪ Name of deponent in support affidavit, the applicant’s chosen address and any other aspects that may be relevant.

Question 17

Explain the date and signature incorporated

Answer 17

▪ Sets out the date that the applicant was signed by either the applicant or the applicant’s legal representative as well as the contract details of this party as a courtesy.

Question 18

Purpose of the affidavit

Answer 18

❖ The affidavits serve a dual purpose.
➢ To define the issues between parties; and
➢ To place essential evidence before the court.

Question 19

Role of the drafter of the affidavit

Answer 19

The drafter of the affidavit must take care when drafting on behalf of a client because contradictory or incorrect statements dilute
credibility of the deponent and amount to perjury.

Question 20

Contents of an Affidavit

Answer 20

❖ An affidavit may contain primary and secondary facts.
➢ Primary = Allegations that are capable of being used for drawing inferences about the existence or non-existence of other facts.
➢ Secondary = Are the deponent’s own conclusions.

Question 21

Describe the Start of an Affidavit

Answer 21

❖ The affidavit starts as follows:
➢ I, the undersigned, KHANYISILE FLORINA GRAHAM, do hereby make oath and state…

Question 22

The Contents of an Affidavit

Answer 22

❖ Names and descriptions of the applicant and respondent
❖ Facts that set out the locus standi of the applicant
❖ Facts that set out the court’s jurisdiction
❖ The material facts upon which the claim or opposition is based
❖ Correct reference to annexures that are attached
❖ Conclusion of law
❖ A prayer for relief
❖ The oath

Question 23

Additional Consideration to an affidavit

Answer 23

❖ Opposed applications may consist of up to three affidavits:
➢ Founding Affidavit
➢ Answering Affidavit
➢ Replying Affidavit