STUDY UNIT
1
TYPES OF PROCEEDINGS
APPLICATION PROCEEDINGS SUMMONS
PROCEEDINGS
NOTICE OF MOTION SUMMONS
FORMAL DOCUMENTS:
FORMAL DOCUMENTS: PLEADINGS AND
PROCESS DOCUMENTS PROCESSES
There are two ways in which a litigant may approach the court, namely by
means of an application or by means of a summons.
Consequently, one speaks of application (or motion) proceedings and
summons (also called action) proceedings.
In the case of application proceedings, all applications are
directed to the court by means of notice of motion
In the case of summons proceedings, the court is approached by
means of a summons.
1. THE MAXIM AUDI ALTERAM PARTEM
Literally translated, the maxim means ‘‘hear the other side’’.
When applied to the sphere of civil procedure, it means that every person is
entitled to be heard before an order or judgment is granted against him or her.
This explains why our courts meticulously enforce the requirement that an opponent should be notified
timeously of the steps to be taken against him or her, and that he or she should be given an opportunity of
replying to the case stated against him or her, and of placing his or her own defence before the court.
This also partly explains why pleadings and process documents are used: each party knows exactly what the
basis of the opposing party’s claim is and will therefore know how to reply to it.
Hence this prevents any party from being caught unprepared during the trial.
, 2. THE DISTINCTION BETWEEN SUMMONS PROCEEDINGS AND
APPLICATION PROCEEDINGS
Summons proceedings
Are characterised by a clear distinction between the pleading stage and
the trial stage.
2.1 The pleading stage
In illiquid summons proceedings, the pleadings consist of printed or
written statements which are made and which are exchanged by the
parties to an action.
The material facts upon which the parties respectively rely in order to
establish their claims or defences must be concisely set out therein
The facts are set out in summary form.
(In practice, this really means that conclusions of fact are pleaded.)
One of the functions of pleadings in an illiquid action is to formulate and
crystallise the nature and extent of the factual dispute between the parties, and
not to set out the full body of facts on either side.
The pleadings consist of ‘‘printed or written statements’’. (Except where
a party is appearing in person, he or she does not draft or sign the pleadings; this is
done by the legal representative.)
2.2 The trial stage
Once the process of pleading has been completed, the action is set down
for trial.
At the trial
Witnesses who appear in person
Give evidence viva voce (orally)
who hand in documents or other real
evidence
To prove by such evidence the basic facts
formulated in the pleadings.
These witnesses are;
Examined in chief, are
Cross examined and
Re-examined
After all the evidence has been led, argument is addressed to the court on
the pleadings and on the evidence, and judgment is then delivered.
, Application proceedings
There is no such distinction between the pleading stage and the trial
stage.
We do not speak of pleadings in the case of the application:
The equivalent documents in the last-mentioned procedure are called
‘‘processes’’.
[These processes contain not only the formulation of the factual dispute, but also the
evidence which the different parties offer as proof of their respective factual
allegations.]
These processes are drafted in the form of affidavits.
The processes not only consist of the applicant’s affidavit, but also of the
supporting affidavits of the witnesses.
Not only the claims or defences of the respective parties are formulated in these
documents, but also all the evidence in the possession of such parties.
When the case comes before the court, the claim, defence and supporting
evidence are all in the court’s possession.
Consequently, the hearing of the application consists exclusively of the
arguments of the legal representatives of the respective parties.
In exceptional cases (see hereunder), viva voce evidence may be heard.
If the application is not opposed, the facts, as set out in the documents, are
accepted.
The only question which must be answered is whether a case can be
made for granting the requested order (e.g. that the company be liquidated
or that X be admitted as an attorney).
3. The identification of the applicable form of proceedings
, In some circumstances, using the wrong form of proceedings may have
cost implications for the party who institutes the proceedings.
There has been an increase in the use of application proceedings in
respect of proceedings, which were normally instituted by means of
summons proceedings, and that the courts are extending this practice
rather than limiting it.
(Abaany Property Investments Ltd v Fatima Ayob & Sons Ltd
1994 2 SA 342 (T) 343J)
The main reason for this phenomenon is application proceedings are much
faster and are therefore far cheaper than summons proceedings.
Application proceedings are not permissible in all circumstances and the
courts often have to decide on this issue
Determining which form of proceedings should be used can only be
established by means of a process of elimination
The following questions must be asked:
(1) Does legislation, or the Uniform Rules of Court, prescribe whether the
application procedure must be used?
Examples include;
Applications for liquidation of companies (s 81 of the
Companies Act of 2008) and for sequestration of estates, as
well as the revision thereof (Rule 53 of the Uniform Rules of
Court),
Applications in respect of marital matters (Rule 43 of the
Uniform Rules of Court),
Applications for the appointment of curator’s ad litem (Rule
57 of the Uniform Rules of Court)
(2) Is it compulsory to use summons proceedings?
Examples of instances where it is compulsory include;
Divorce proceedings and
unliquidated claims for damages,
Compensation or enrichment.
(3) Does the matter fall neither within the ambit of (1) nor (2) above?
For purposes of this discussion, this third category, namely cases where
application proceedings are neither prescribed nor forbidden, is the
most important.
1
TYPES OF PROCEEDINGS
APPLICATION PROCEEDINGS SUMMONS
PROCEEDINGS
NOTICE OF MOTION SUMMONS
FORMAL DOCUMENTS:
FORMAL DOCUMENTS: PLEADINGS AND
PROCESS DOCUMENTS PROCESSES
There are two ways in which a litigant may approach the court, namely by
means of an application or by means of a summons.
Consequently, one speaks of application (or motion) proceedings and
summons (also called action) proceedings.
In the case of application proceedings, all applications are
directed to the court by means of notice of motion
In the case of summons proceedings, the court is approached by
means of a summons.
1. THE MAXIM AUDI ALTERAM PARTEM
Literally translated, the maxim means ‘‘hear the other side’’.
When applied to the sphere of civil procedure, it means that every person is
entitled to be heard before an order or judgment is granted against him or her.
This explains why our courts meticulously enforce the requirement that an opponent should be notified
timeously of the steps to be taken against him or her, and that he or she should be given an opportunity of
replying to the case stated against him or her, and of placing his or her own defence before the court.
This also partly explains why pleadings and process documents are used: each party knows exactly what the
basis of the opposing party’s claim is and will therefore know how to reply to it.
Hence this prevents any party from being caught unprepared during the trial.
, 2. THE DISTINCTION BETWEEN SUMMONS PROCEEDINGS AND
APPLICATION PROCEEDINGS
Summons proceedings
Are characterised by a clear distinction between the pleading stage and
the trial stage.
2.1 The pleading stage
In illiquid summons proceedings, the pleadings consist of printed or
written statements which are made and which are exchanged by the
parties to an action.
The material facts upon which the parties respectively rely in order to
establish their claims or defences must be concisely set out therein
The facts are set out in summary form.
(In practice, this really means that conclusions of fact are pleaded.)
One of the functions of pleadings in an illiquid action is to formulate and
crystallise the nature and extent of the factual dispute between the parties, and
not to set out the full body of facts on either side.
The pleadings consist of ‘‘printed or written statements’’. (Except where
a party is appearing in person, he or she does not draft or sign the pleadings; this is
done by the legal representative.)
2.2 The trial stage
Once the process of pleading has been completed, the action is set down
for trial.
At the trial
Witnesses who appear in person
Give evidence viva voce (orally)
who hand in documents or other real
evidence
To prove by such evidence the basic facts
formulated in the pleadings.
These witnesses are;
Examined in chief, are
Cross examined and
Re-examined
After all the evidence has been led, argument is addressed to the court on
the pleadings and on the evidence, and judgment is then delivered.
, Application proceedings
There is no such distinction between the pleading stage and the trial
stage.
We do not speak of pleadings in the case of the application:
The equivalent documents in the last-mentioned procedure are called
‘‘processes’’.
[These processes contain not only the formulation of the factual dispute, but also the
evidence which the different parties offer as proof of their respective factual
allegations.]
These processes are drafted in the form of affidavits.
The processes not only consist of the applicant’s affidavit, but also of the
supporting affidavits of the witnesses.
Not only the claims or defences of the respective parties are formulated in these
documents, but also all the evidence in the possession of such parties.
When the case comes before the court, the claim, defence and supporting
evidence are all in the court’s possession.
Consequently, the hearing of the application consists exclusively of the
arguments of the legal representatives of the respective parties.
In exceptional cases (see hereunder), viva voce evidence may be heard.
If the application is not opposed, the facts, as set out in the documents, are
accepted.
The only question which must be answered is whether a case can be
made for granting the requested order (e.g. that the company be liquidated
or that X be admitted as an attorney).
3. The identification of the applicable form of proceedings
, In some circumstances, using the wrong form of proceedings may have
cost implications for the party who institutes the proceedings.
There has been an increase in the use of application proceedings in
respect of proceedings, which were normally instituted by means of
summons proceedings, and that the courts are extending this practice
rather than limiting it.
(Abaany Property Investments Ltd v Fatima Ayob & Sons Ltd
1994 2 SA 342 (T) 343J)
The main reason for this phenomenon is application proceedings are much
faster and are therefore far cheaper than summons proceedings.
Application proceedings are not permissible in all circumstances and the
courts often have to decide on this issue
Determining which form of proceedings should be used can only be
established by means of a process of elimination
The following questions must be asked:
(1) Does legislation, or the Uniform Rules of Court, prescribe whether the
application procedure must be used?
Examples include;
Applications for liquidation of companies (s 81 of the
Companies Act of 2008) and for sequestration of estates, as
well as the revision thereof (Rule 53 of the Uniform Rules of
Court),
Applications in respect of marital matters (Rule 43 of the
Uniform Rules of Court),
Applications for the appointment of curator’s ad litem (Rule
57 of the Uniform Rules of Court)
(2) Is it compulsory to use summons proceedings?
Examples of instances where it is compulsory include;
Divorce proceedings and
unliquidated claims for damages,
Compensation or enrichment.
(3) Does the matter fall neither within the ambit of (1) nor (2) above?
For purposes of this discussion, this third category, namely cases where
application proceedings are neither prescribed nor forbidden, is the
most important.
