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Civil Procedure II - Civil proceedings in the High Court
The Conduct of Application Proceedings
Scenario 1: Sandra has passed her attorney’s admission examination and her contract as a candidate attorney expires soon.
She would like to be admitted as an attorney and must approach the court with an application to be admitted. Sandra’s
principal advises her to draw up the application herself, and she must decide which type of application is the correct one.
Activity
Carefully read through the scenario above and then answer the following questions:
(1) Indicate what factors must be considered in determining the correct type of application to be used?
To put it simply, they are determined by the questions you must ask yourself if you find yourself in this kind of situation.
Thus, the first question you must ask is
» are proceedings being instituted or is the application related to existing proceedings? (i.e. proceedings which have already
been instituted)
Logically, the second question which follows is
» whose rights or interests are affected by this application?
_____________________________________________________________________________________________________
(2) In the light of these factors, what type of application must Sandra lodge?
» An ex parte application: the above questions should have indicated that (independent) proceedings will be instituted and
that the interests and rights of no-one other than Sandra will be affected by the application.
» Therefore, she is not obliged to give notice of the application to anyone else.
_____________________________________________________________________________________________________
(3) What documents comprise this application?
Rule 6(1) determines that an application consists of a notice of motion, supported by an affidavit containing the facts on
which the application rests.
You would not have been able to answer this question without looking up this Rule in the Student Handbook. If you are told to
study a particular rule, its content is considered to be part of your study material and you may therefore be examined on it.
Rule 6: Applications
(1) Save where proceedings by way of petition are prescribed by law, every application shall be brought on notice of
motion supported by an affidavit as to the facts upon which the applicant relies for relief.
_____________________________________________________________________________________________________
Scenario 2: On his divorce from his wife, Theresa, Paul was awarded custody of their minor child. As agreed, Theresa takes
the child on holiday, but, at the end of the holiday, she refuses to return the child to Paul. Paul is very worried about the
child’s welfare and school attendance, and approaches the court for an order to have the child removed from Theresa’s
possession and care and to be returned to him. You are the candidate attorney with whom Paul is consulting. Paul wants to
know what legal procedure can be used in these circumstances and also how soon he can expect the relief he seeks.
Activity
Carefully read through the scenario above and then answer the following questions:
(1) Advise Paul on the type of application which must be used in his case?
The ‘ordinary’ application will be used, since Theresa must be given notice of the application in order to have the
opportunity to put her side of the story.
_____________________________________________________________________________________________________
(2) Advise Paul on the steps which must be followed to ensure that the case serves more quickly than usual before the court?
This application can be brought before the court as a matter of urgency in terms of Rule 6(12). The application will be the
same as any other application, except that it will be accompanied by a certificate of urgency, and the notice of
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motion will show that the court is asked for leave to deviate from the prescribed forms of service and that the
application be dealt with as an urgent application.
Example In an abbreviated form, the notice of motion will look like the following:
NOTE: Any additional paragraphs that might be necessary will be added in the same way. In addition to this, the notice
will be signed and will include an indication of the persons on whom it will be served.
Civil proceedings in the High Court
The Conduct of Summons Proceedings
, 3
The Parties to Litigation
Civil Procedure II - Civil proceedings in the High Court
The Conduct of Application Proceedings
Scenario 1: Sandra has passed her attorney’s admission examination and her contract as a candidate attorney expires soon.
She would like to be admitted as an attorney and must approach the court with an application to be admitted. Sandra’s
principal advises her to draw up the application herself, and she must decide which type of application is the correct one.
Activity
Carefully read through the scenario above and then answer the following questions:
(1) Indicate what factors must be considered in determining the correct type of application to be used?
To put it simply, they are determined by the questions you must ask yourself if you find yourself in this kind of situation.
Thus, the first question you must ask is
» are proceedings being instituted or is the application related to existing proceedings? (i.e. proceedings which have already
been instituted)
Logically, the second question which follows is
» whose rights or interests are affected by this application?
_____________________________________________________________________________________________________
(2) In the light of these factors, what type of application must Sandra lodge?
» An ex parte application: the above questions should have indicated that (independent) proceedings will be instituted and
that the interests and rights of no-one other than Sandra will be affected by the application.
» Therefore, she is not obliged to give notice of the application to anyone else.
_____________________________________________________________________________________________________
(3) What documents comprise this application?
Rule 6(1) determines that an application consists of a notice of motion, supported by an affidavit containing the facts on
which the application rests.
You would not have been able to answer this question without looking up this Rule in the Student Handbook. If you are told to
study a particular rule, its content is considered to be part of your study material and you may therefore be examined on it.
Rule 6: Applications
(1) Save where proceedings by way of petition are prescribed by law, every application shall be brought on notice of
motion supported by an affidavit as to the facts upon which the applicant relies for relief.
_____________________________________________________________________________________________________
Scenario 2: On his divorce from his wife, Theresa, Paul was awarded custody of their minor child. As agreed, Theresa takes
the child on holiday, but, at the end of the holiday, she refuses to return the child to Paul. Paul is very worried about the
child’s welfare and school attendance, and approaches the court for an order to have the child removed from Theresa’s
possession and care and to be returned to him. You are the candidate attorney with whom Paul is consulting. Paul wants to
know what legal procedure can be used in these circumstances and also how soon he can expect the relief he seeks.
Activity
Carefully read through the scenario above and then answer the following questions:
(1) Advise Paul on the type of application which must be used in his case?
The ‘ordinary’ application will be used, since Theresa must be given notice of the application in order to have the
opportunity to put her side of the story.
_____________________________________________________________________________________________________
(2) Advise Paul on the steps which must be followed to ensure that the case serves more quickly than usual before the court?
This application can be brought before the court as a matter of urgency in terms of Rule 6(12). The application will be the
same as any other application, except that it will be accompanied by a certificate of urgency, and the notice of
, 2
motion will show that the court is asked for leave to deviate from the prescribed forms of service and that the
application be dealt with as an urgent application.
Example In an abbreviated form, the notice of motion will look like the following:
NOTE: Any additional paragraphs that might be necessary will be added in the same way. In addition to this, the notice
will be signed and will include an indication of the persons on whom it will be served.
Civil proceedings in the High Court
The Conduct of Summons Proceedings
, 3
The Parties to Litigation
