CIV3701 Assignment 1
Semester 1
2023 (866064)
, QUESTION 1
(a) Briefly discuss the ex parte application in magistrate’s court. (4)
This application is one in which no notice is given to the person against
whom the relief is sought, prior to the initial hearing.
In order to succeed:
the applicant must show that it is really necessary to bring the application
without notice to the respondent that is he must show some
urgency or some other good reason.
If the application is brought with undue haste and without good
reason, the court will not grant the application and the applicant will
have to bear the costs of the failed application.
The founding affidavit contains the applicant’s reasons for his
application, namely the facts upon which his cause of action is
based and why no notice has been given to the respondent.
Powers of the court: The ex parte application is an exception to the
audi alteram partem rule which literally means ‘hear the other side’.
Thus the court will not issue a final order without this person concerned
being given an opportunity to put his case. After hearing the application,
the court grants a temporary order and determines a return day on which
the respondent must give reasons why the order should not be made final
– rule nisi. The court may, when hearing the application, require the
applicant to provide security for any losses which may be caused.
The court may also require additional evidence it deems relevant.
Discharge of the ex parte order: Any person affected by the order may
apply to court, after at least 12 hours’ prior notice, to have the order
discharged. However, the order is ipso facto discharged upon security
being provided by the respondent for the amount to which the order
relates. In the case of a mandamenten van spolie, the respondent cannot,
by merely providing security, effect the discharge of the order if he is still
in possession of the property to which the order relates.
Semester 1
2023 (866064)
, QUESTION 1
(a) Briefly discuss the ex parte application in magistrate’s court. (4)
This application is one in which no notice is given to the person against
whom the relief is sought, prior to the initial hearing.
In order to succeed:
the applicant must show that it is really necessary to bring the application
without notice to the respondent that is he must show some
urgency or some other good reason.
If the application is brought with undue haste and without good
reason, the court will not grant the application and the applicant will
have to bear the costs of the failed application.
The founding affidavit contains the applicant’s reasons for his
application, namely the facts upon which his cause of action is
based and why no notice has been given to the respondent.
Powers of the court: The ex parte application is an exception to the
audi alteram partem rule which literally means ‘hear the other side’.
Thus the court will not issue a final order without this person concerned
being given an opportunity to put his case. After hearing the application,
the court grants a temporary order and determines a return day on which
the respondent must give reasons why the order should not be made final
– rule nisi. The court may, when hearing the application, require the
applicant to provide security for any losses which may be caused.
The court may also require additional evidence it deems relevant.
Discharge of the ex parte order: Any person affected by the order may
apply to court, after at least 12 hours’ prior notice, to have the order
discharged. However, the order is ipso facto discharged upon security
being provided by the respondent for the amount to which the order
relates. In the case of a mandamenten van spolie, the respondent cannot,
by merely providing security, effect the discharge of the order if he is still
in possession of the property to which the order relates.
