8

The Application Procedure

8.1 Introduction
Application proceedings, also known as motion proceedings, are characterised by the
exchange of affidavits. The party bringing the application is known as the applicant
and the party opposing the application, if any, is known as the respondent. The appli-
cant commences proceedings by issuing a notice of motion, which serves to advise
the respondent of the applicant’s claim and the relief which the applicant seeks,1 after
which the application itself is served on the respondent (if there is a respondent).2 The
notice of motion is usually accompanied by a founding affidavit.3 Sometimes one or
more supporting affidavits and relevant documentation are attached to the affidavit.
The respondent who wants to oppose the application must deliver an opposing affi-
davit (also referred to as an answering affidavit) together with any supporting affidavits
and relevant documentation, in which the respondent answers the allegations of fact
contained in the founding affidavit. If necessary, the applicant may then deliver a
replying affidavit in order to address and respond to allegations contained in the
answering affidavit. In application proceedings, with the exception of certain proceed-
ings such as applications for summary judgment or applications in terms of HCR 43,
there are usually three sets of affidavits exchanged,4 namely:
(a) the founding (or initial) affidavit;
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1 An application can commence in various ways. Usually an application commences when it is

issued by the registrar or clerk. See BHP Billiton Energy Coal South Africa Ltd v Minister of Mineral
Resources and Others 2011 (2) SA 536 (GNP) para. 24. See also the drafting of applications in
the electronic Precedents Pack.
2 In BHP Billiton Energy Coal South Africa Ltd v Minister of Mineral Resources and Others 2011 (2)
SA 536 (GNP) para. 25 it was confirmed that the application could be served on the respondent’s
attorney. See also ch. 11 on the serving of applications and summonses etc.
3 The necessary allegations on which an applicant relies must appear in the founding affidavit. See
Betlane v Shelly Court CC 2011 (1) SA 388 (CC) para. 29; National Council of Societies for the
Prevention of Cruelty to Animals v Openshaw 2008 (5) SA 339 (SCA) paras 29–30; Brayton Carls-
wald (Pty) Ltd v Brews 2017 (5) SA 498 (SCA) para. 29.
4 In Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2)
SA 184 (SCA) the court confirmed that the affidavits contain and constitute the pleadings as well
as the evidence. See also Absa Bank Ltd v Kernsig 17 (Pty) Ltd 2011 (4) SA 492 (SCA) at 499A–
D; MEC for Health, Gauteng v 3P Consulting (Pty) Ltd 2012 (2) SA 542 (SCA) at 550G–551C;
Foize Africa (Pty) Ltd v Foize Beheer BV 2013 (3) SA 91 (SCA) at 102G–H; Molusi v Voges NO
2016 (3) SA 370 (CC) at 381F–H; Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA
613 (CC) at 625I–J; Mostert v FirstRand Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA)
para. 13; National Credit Regulator v Lewis Stores (Pty) Ltd 2020 (2) SA 390 (SCA) para. 29. See
further ch. 9 on pleadings.

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(b) the opposing (or answering) affidavit;

(c) the replying affidavit.
The affidavits together with the annexed documentation, set out the facts and evi-
dence on which the parties’ claim or defence is based. The application procedure
culminates in the hearing of the matter in motion court. On the date of hearing, the
parties’ legal representatives argue on the papers. This means that as a general rule,
oral (viva voce) evidence is not heard and the arguments of the legal representatives
are limited to legal submissions and submissions based on the allegations contained
in the affidavits.5 However, there are exceptional circumstances, in both the High Court
and the Magistrates’ Courts, where the matter will be referred for the hearing of oral
evidence. The circumstances in which this may occur in the Magistrates’ Courts are
more limited than in the High Court.

8.2 Types of application

There are three general types of application, namely:
(a) ex parte applications;
(b) applications with notice to the other party (bilateral applications);
(c) interlocutory or interim applications.
Subject to the applicable rules of court, these types of application may be brought in
both the High Court and the Magistrates’ Courts. For example, a final interdict is usual-
ly brought by way of a bilateral application and an interim interdict based on urgency
by way of an ex parte application (see annexure 3). The Magistrates’ Courts rules are
more prescriptive than the High Court rules. A brief explanation of each of these types
of application and the circumstances in which they may be brought, is provided here.

8.2.1 Ex parte applications

An ex parte application is an application where no notice is given to another party (if
any) and the applicant is the only party before the court. The applicant addresses the
application directly to the registrar or the clerk, who must be given prior notice of the
proposed application. Since no respondent need be cited an ex parte application is
also termed a unilateral application.

8.2.2 Bilateral applications

This type of application is brought when it is clear from the outset that another person’s
rights will be affected and that such person must receive prior notice of the proceed-
ings. Furthermore, the nature of the matter is such that prior notice to the other party
will not defeat the object of the application. The application is directed to the registrar
(or the clerk) as well as the respondent, and both are informed of the proceedings.

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5 See National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) in which it was ex-
plained that motion proceedings deal with the resolution of legal issues based on common-cause
facts and that such proceedings can only in exceptional circumstances be used to resolve factual
disputes.

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8.2.3 Interlocutory or interim applications

An interlocutory application is a provisional or temporary application that is brought in
order to obtain ancillary relief incidental to certain main proceedings pending between
the parties. Essentially it is an intervening step that may be taken after the com-
mencement of an action or motion proceeding and decides a procedural point. Where
the respondent is obliged to take a procedural step or to conform with a procedural
rule and does not do so, the applicant may by means of an interlocutory application
force the respondent to take such a step or to conform with such a rule. Examples of
interlocutory applications are:
(a) an interim application whereby a party is compelled to furnish security for costs;
(b) an application to strike out or to set aside an irregular step.6
The applicant may also bring an interlocutory application in which he or she seeks a
court order compelling the respondent to comply with the rules relating to the delivery
of documents, that is, an application to compel discovery.

8.2.4 A step by step comparison of the two principal types of application

8.3 The form of the proceedings

As was indicated in paragraph 8.1, an application will generally consist of a notice of
motion and one or more supporting affidavits. In certain interlocutory applications,
however, it is not necessary for the notice of motion to be supported by an affidavit, for
example some applications to compel in the Magistrates’ Courts.

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6 See ch. 14 paras 14.4, 14.5.

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 Fundamental Principles of Civil Procedure

8.3.1 Notice of motion

The notice of motion serves to inform the court and the respondent, where applicable,
that a specific type of application will be made on a specified date, at a specified time,
at a specified court, and that the legal relief mentioned therein will be requested. The
form of the notice of motion will depend on the type of application brought. In the High
Court, the prescribed forms are Form 2 (also known as the short form of notice of
motion) and Form 2(a) (also known as the long form of notice of motion). Form 2 is
used in those instances where the application is brought on an ex parte basis, and
only the registrar gets prior notice of the application. Interlocutory applications are also
in the form of Form 2. Form 2(a) is used for bilateral applications, where it is necessary
for both the registrar and the respondent to be given prior notice of the application. In
the Magistrates’ Court, Form 1 is the short notice of motion form and Form 1A the long
notice of motion form prescribed for application procedures in the Magistrates’ Courts.

8.3.2 Affidavit (see annexure 4)

In instances where the notice of motion has to be supported by an affidavit, the pur-
pose of such affidavit is to record certain facts under oath or affirmation, which the
court will then consider in determining whether or not to grant the application. There is
no standard prescribed form for the affidavit, and the form of the affidavit may vary
widely depending on the nature of the specific application. So, for example, the sup-
porting affidavit in an application for voluntary surrender of an insolvent estate will
differ significantly from the supporting affidavit in an application for attachment of
property ad fundandam jurisdictionem of a foreign peregrinus defendant. It must be
noted that MCR 63(1) requires that all documents filed with the court, except exhibits
or facsimiles thereof, be ‘clearly and legibly printed or typewritten in permanent black
or blue-black ink on one side only of paper of good quality and of A4 standard size’. In
terms of MCR 63(2) affidavits must be subdivided into concise, consecutively num-
bered paragraphs.
Nevertheless, there are certain basic principles that apply to all affidavits regardless of
the type of application. Generally, the following information should appear in all sup-
porting affidavits:
(a) the names and addresses of the applicant and respondent (if applicable);
(b) the fact that the applicant has locus standi;7
(c) the fact that the court has jurisdiction;8
(d) the material facts on which the claim is based (facta probanda) as well as the
evidence that the deponent wishes to place before the court (facta probantia);9

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7 Kommissaris van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051 (SCA) at 1057G–H.
8 See Ex parte Kaiser 1902 TH 165; Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
and Others 1974 (4) SA 362 (T) at 368, facts to establish locus standi and jurisdiction should be in
the founding affidavit and not in a replying affidavit.
9 See Sebenza Forwarding and Shipping Consultancy (Pty) Ltd v Petroleum Oil and Gas Corpor-
ation of SA (Pty) Ltd t/a Petro SA and Another 2006 (2) SA 52 (C) at 58G–H; Minister of Land
Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184 (SCA). See
also National Council of Societies for the Prevention of Cruelty to Animals v Openshaw 2008 (5)
continued on next page

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(e) a request to the court to grant the relief as prayed for in the notice of motion.
Where the applicant refers to documentary evidence in the supporting affidavit, such
documents must be attached to the affidavit. The conclusion to be drawn from such
attached documents must be covered in the affidavits.10 Where the applicant refers in
the supporting affidavit to communications or actions by other persons, such reference
must be affirmed by obtaining affirming or confirmatory affidavits from the said per-
sons and attaching it to the supporting affidavit. The attachment of confirmatory affida-
vits is necessary in order to comply with the evidentiary rule against hearsay evidence.
Only admissible evidence should be contained in the affidavit.
In the current circumstances in which the court’s physical and personnel resources
are limited there is a tendency towards expediency in court proceedings and the
courts have warned against the use of ‘unnecessary prolix and repetitive material in
court papers’.11 Practitioners are therefore advised to keep their affidavits clear and
concise and in proper order to avoid the court’s disapproval or face a possible
adverse costs order.

8.4 Applications in the High Court

8.4.1 The general rule12
The question of whether a party should proceed by way of the application procedure,
or alternatively, by way of the action procedure was dealt with in the locus classicus
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd.13 In Room Hire it was de-
cided as a general rule that the choice between the application and action procedure
depends on whether a bona fide material dispute of fact should have been anticipated
by the party launching the proceedings. When such a dispute is anticipated, a trial
action should be instituted, otherwise motion proceedings are permissible in order to
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SA 339 (SCA) at 349A–B; Atlantis Property Holdings CC v Atlantis Exel Service Station CC 2019
(5) SA 443 (GP) at 458E, the applicant must set out pertinent facts to support the relief sought and
also to inform the respondent of the case he or she is expected to meet. But note that an appel-
lant may in principle not make a case on appeal that was not pleaded on the original papers (at
349B–C). See also Molusi v Voges NO [2015] 3 All SA 131 (SCA) paras 20 and 39 and the cases
referred to there, reversed on appeal (on another point) in Molusi v Voges NO 2016 (3) SA 370
(CC).
10 Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA
184 (SCA) para. 43; National Credit Regulator v Lewis Stores (Pty) Ltd 2020 (2) SA 390 (SCA)
para. 29. See also Molusi v Voges NO [2015] 3 All SA 131 (SCA) paras 20 and 39. E.g. see
annexure 4 for an example of a founding affidavit.
11 Venmop 275 (Pty) Ltd and Another v Cleverlad Projects (Pty) Ltd and Another 2016 (1) SA 78 (GJ)
paras 7–16 and the cases referred to there.
12 Van Loggerenberg DE and Bertelsmann E (Contributor) Erasmus Superior Court Practice 2nd edn
(Juta, 2015) (Erasmus) at D1-42–D1-92; Cilliers AC, Loots C and Nel HC Herbstein & Van Winsen:
The Civil Practice of the High Courts & the Supreme Court of Appeal of South Africa 5th edn (Juta
& Co, 2017) (Herbstein & Van Winsen) Vol. I ch. 14. Neukircher B, Fourie HR, Haupt LC High
Court Motion Procedure: A Practical Guide (2012)
13 1949 (3) SA 1155 (T). See also Member of the Executive Council for Finance and Economic
Development, KwaZulu-Natal v Masifundisane Training and Development College CC [2015] JOL
33658 (SCA) at para. 10. See also Herbstein & Van Winsen Vol. I at 292–300.

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avoid the delay and expense involved in a trial action. From this general rule, it follows
that motion proceedings should not be instituted in:
(a) claims for unliquidated damages;
(b) matters in which it is anticipated that a material dispute of fact will arise, unless
the application procedure is specifically authorised for that kind of claim;14
(c) claims for divorce.15
Notwithstanding the rule regarding anticipated disputes of fact, there are certain types
of proceedings in which application proceedings should always be used. Insolvency
proceedings are one example. It has also been held that where a party seeks urgent
relief, the application procedure is always appropriate, at least to obtain temporary
relief, regardless of an anticipated dispute of fact.16 It is also important to note that
frequently legislation lays down that a party may apply to court for relief of a particular
type. While the court may then be approached on notice of motion, despite the fore-
seeability of a dispute of fact, statutory provisions of this nature will not be interpreted
as rendering application proceedings peremptory in every case, sometimes proceed-
ings by way of action will be permitted instead.17

8.4.2 Disputes of fact

According to the Room Hire case, a dispute of fact may arise where the respondent:
(a) denies all the material allegations made by the various deponents on behalf of the
applicant and furnishes positive evidence by deponents or witnesses to the con-
trary;
(b) admits the allegations (evidence) in the applicant’s founding or supporting affi-
davit, but raises other facts which in turn are denied by the applicant;
(c) concedes that he or she has no knowledge of the main facts alleged by the appli-
cant, but denies same and orders applicant to the proof thereof. The respondent
must also furnish evidence, or undertakes to furnish evidence, to show that the
applicant and the applicant’s deponents are prejudiced and not credible, or
otherwise unreliable, and that certain facts on which the applicant and the depo-
nents rely in order to prove the main facts are also unreliable;
(d) states that he or she can lead no evidence himself or herself or by others to dis-
pute the truth of the applicant’s statements, which are peculiarly within the appli-
cant’s knowledge, but he or she puts the applicant to the proof thereof by oral
evidence subject to cross-examination. (Note this is not a genuine dispute of fact,
but the dispute must be put before a trial.)

8.4.3 Resolving a dispute of fact

HCR 6(5)(g) provides that where an application cannot properly be decided on affi-
davit, a motion court may dismiss the application or make such an order as it deems fit
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14 Moleah v University of the Transkei and Others 1998 (2) SA 522 (Tk).
15 See Ex parte Inkley and Inkley 1995 (3) SA 528 (C).
16 See Dunlop South Africa Ltd v Metal and Allied Workers Union and Another 1985 (1) SA 177 (D).
17 See Food and Nutritional Products (Pty) Ltd v Neumann 1986 (3) SA 464 (W); Adfin (Pty) Ltd v
Durable Engineering Works (Pty) Ltd 1991 (2) SA 366 (C).

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with a view of ensuring a just and expeditious decision. In particular, the court may
direct that oral evidence be heard on specified issues with a view to resolving any
dispute of fact and to that end may order any deponent to appear personally or grant
leave for the deponent or any other person to be subpoenaed to appear and be exam-
ined and cross-examined as a witness, or it may refer the matter to trial with appropri-
ate directions as to pleadings or definition of issues. Therefore, if a material factual
dispute arises during application proceedings that cannot be resolved on the papers,
the court has a discretion to proceed as set out below.18 In Lombaard v Droprop CC
and Others,19 the court reiterated that an order to refer a matter for oral evidence
presupposes a genuine dispute of fact. A basis for such a dispute must be estab-
lished timeously, however, and the dispute will not be entertained if, for instance, it is
raised for the first time on appeal. According to Plascon-Evans Paints v Van Riebeeck
Paints,20 where a respondent denies a fact (raised by the applicant) that does not raise
a real, genuine or bona fide dispute, the court may decide the fact in the applicant’s
favour without calling for oral evidence, when convinced of the applicant’s credibility
(referred to as the Plascon-Evans rule).

8.4.3.1 Dismissal of the application

If it appears that the applicant must reasonably have foreseen that a material dispute
of fact will arise at the time the application is brought, but the applicant nevertheless
proceeds by way of application, the court may dismiss the application with costs. This
is perhaps the most drastic course of action open to the court. However, even in such
a circumstance the court is not obliged to dismiss the application. It has a discretion to
decide on one of the other steps mentioned below and, in addition, penalise the appli-
cant with a costs order.21

8.4.3.2 Presentation of oral evidence

In terms of HCR 6(5)(g), the court may order that oral evidence be heard to decide a
specific factual dispute.22 This procedure is applicable only where the dispute is of

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18 See Miloc Financial Solutions (Pty) Ltd v Logistic Technologies (Pty) Ltd and Others 2008 (4) SA
325 (SCA) with regard to the discretion of the court. A word of caution was raised in Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another 2011 (1) SA 8 (SCA) para. 20
regarding conflicting affidavits, a court must always be cautious about deciding probabilities in
the face of conflicts of fact in affidavits’.
19 2010 (5) SA 1 (SCA) paras 24 and 26.
20 1984 (3) SA 623 (A) at 643E–635C. Cf. Mahala v Nkombombini 2006 (5) SA 524 (SE) para. 9
where a departure from the Plascon rules was considered on the facts and the court accepted
that too strict an approach may sometimes cause hardship for the applicant. See also Thint (Pty)
Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions
2009 (1) SA 1 (CC) para. 8; Hassan v Berrange NO 2012 (6) SA 329 (SCA) para. 27; Media 24
Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA) para. 37.
In Airports Company South Africa Soc Ltd v Airports Bookshops (Pty) Ltd t/a Exclusive Books
[2016] 4 All SA 665 (SCA) para. 5 the court stated that the basis of the averments made by the
applicant must be accepted if these are not disputed by the respondent, and the version of the
respondent is not implausible or far-fetched.
21 See Pressma Services (Pty) Ltd v Schuttler 1990 (2) SA 411 (C) at 419E.
22 When such an issue arises the court must first determine whether there is indeed a real dispute of
fact. See Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA);
continued on next page

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 Fundamental Principles of Civil Procedure

limited scope and not where it is extensive and complicated. The court will also not
allow oral evidence to help a party establish a defence that has not been made out in
that party’s affidavit.23 If the court is of the opinion that it is proper to hear oral evidence
in terms of HCR 6(5)(g), the court may determine which persons to call as witnesses
and may also determine the issues in respect of which oral evidence must be present-
ed. Apart from calling the deponents of the affidavits to give oral evidence, the court
may also order that any other person be called as a witness.
If a party to an application wants to present oral evidence to the court, the court’s
leave must be obtained in order to do so. The party must make such a request either
at the beginning of the case or after presenting the case on the papers.24 It is therefore
open to a party to request that if the principal argument based on the affidavits fails,
the application should not be dismissed, but should be referred to viva voce evi-
dence.25 In Khumalo v Director-General of Co-operation and Development,26 a number
of important points were made regarding the interpretation of HCR 6(5)(g) and the
referral of a matter to oral evidence. First, oral evidence in one form or another should
be allowed if there are reasonable grounds for doubting the correctness of the allega-
tions concerned. Secondly, the court has a discretionary power to order the cross-
examination of a deponent, and this discretion is not limited to cases in which a dis-
pute of fact is shown to exist.27 It has also been held that a court will be more inclined
to allow an applicant to adduce oral evidence and to cross-examine the deponents of

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National Scrap Metal (Cape Town) (Pty) Ltd v Murray and Roberts Ltd 2012 (5) SA 300 (SCA) pa-
ra. 17; PMG Motors Kyalami (Pty) Ltd (in liquidation) and Another v Firstrand Bank Ltd, Wesbank
Division [2015] 1 All SA 437 (SCA) para. 23. A bare denial of the applicant’s allegations in the
founding affidavit will not in general suffice to generate a genuine or real dispute of fact, accord-
ing to Minister of Environmental Affairs v Recycling and Economic Development Initiative of South
Africa NPC 2018 (3) SA 604 (WCC) para. 13.
23 Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA
184 (SCA) para. 56.
24 See Administrator, Transvaal and Others v Theletsane and Others 1991 (2) SA 192 (A) at 200B–D
where it was observed that the recent tendency of the courts seems to be to allow counsel for the
applicant, as a general rule, to present a case on the basis that the applicant is entitled to the relief
on the papers, but to apply in the alternative for the matter to be referred to evidence if the main
argument should fail.
25 See also Abaany Property Investments Ltd v Fatima Ayob and Sons Ltd 1994 (2) SA 342 (T) at
345B–346H. When a judge decides that no proper decision on the matter may be made on the
affidavits and, in exercising a discretion in terms of HCR 6(5)(g), the judge postpones the applica-
tion to a future date for the hearing of oral evidence, and it happens that the matter comes before a
different judge, it is permissible for a party to make an application to the new judge for the matter
to be decided solely on the papers without the hearing of oral evidence. In this circumstance it is
legally competent for the judge to depart from the order made by the previous judge and to de-
cide the matter solely on the affidavits and without hearing oral evidence. However, such a step
should not be taken lightly, as held in Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A) at
262G–263I.
26 1991 (1) SA 158 (A) at 167G–168A.
27 In doing so the court confirmed the decision in Moosa Bros and Sons (Pty) Ltd v Rajah 1975 (4)
SA 87 (D). A court may order viva voce evidence even in the absence of a dispute where the
allegations of a party seems to be erroneous or false: Manuel v Sahara Computers (Pty) Ltd 2020
(2) SA 269 (GP) paras 88, 97, 100.

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the answering affidavits where the applicant is obliged to proceed by way of applica-
tion, although not every request will be granted as a matter of course.28

8.4.3.3 Referral to trial

If the factual dispute is extensive or complicated, the court may refer the matter to trial.
The result is that the application is converted into a trial action where oral evidence
may be led. The court may give such direction regarding the pleadings and the deter-
mination of the issues as it deems proper. For example, the court may order that the
notice of motion serve as a summons and that other pleadings be delivered. However,
if the issues can be determined with the help of the documents already before the
court, the court may refer the matter to trial without ordering the parties to deliver fur-
ther pleadings.
Where an application is referred to trial, a decision must be reached as to the alloca-
tion of the costs of the application. The court may order the applicant to pay the costs
if it is shown that the applicant should reasonably have foreseen that a substantial
factual dispute would arise. If such a dispute could not reasonably have been antici-
pated, the court may order the costs of the application to be costs in the cause, or
alternatively order the issue of costs to stand over for determination at the trial.

8.4.4 General requirements of HCR 6

HCR 6(1) provides that, except where proceedings by way of petition are prescribed
by law, every application in the High Court must be brought on notice of motion, sup-
ported by an affidavit containing the facts on which the applicant relies for relief.29 It
also provides in HCR 6(2) that where relief is claimed against any person, or where it is
necessary or proper to give any person notice of such application, the notice of motion
must be addressed to both the registrar and such person. Where no relief is claimed
against another person, or where it is unnecessary or improper to give any person
notice of the application (that is, in an ex parte application), the notice of motion must
be addressed to the registrar only.30

8.4.5 Ex parte applications

An ex parte application or a unilateral application is an application where the applicant
is the only party before the court. It follows that when only one person is before the
court as a litigant, the application procedure is always appropriate, as the possibility of
a dispute of fact does not exist.
The ex parte application may be used:
(a) when the applicant is the only person with an interest in the case, for example,
where application is made for the voluntary surrender of an insolvent estate or for
admission as an attorney or advocate;31

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28 See AECI Ltd v Strand Municipality 1991 (4) SA 688 (C) at 698I–699A.
29 HCR 6(1).
30 HCR 6(2).
31 Other examples include applications by a minor to be declared a major, applications for post-
nuptial registration of an antenuptial contract, applications concerning the alienation of a minor’s
property and applications for rehabilitation of an insolvent.

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(b) when the application is merely a preliminary step in the matter, for example, where
application is made to sue by means of substituted service;
(c) when urgent or immediate relief is required and notice to the respondent and the
delay occasioned by such notice will result in prejudice to the applicant,32 for
example, where the applicant applies to attach a vehicle (in the other party’s pos-
session) that the other party plans to remove from the country.
In accordance with the audi alteram partem principle and as a general rule, justice
and fairness demand that the court should not make an order against any person
unless the affected person has received prior notice of the legal relief sought. Ex parte
applications represent a departure from this rule, at least in the case of an ex parte
application in which the applicant seeks relief against another party. The courts will
therefore examine any such application very carefully so that the interests of persons
affected can be properly safeguarded. Furthermore, there are two important principles
that apply to ex parte applications in order to ensure fairness to the party against
whom relief is sought:
(a) Firstly, in ex parte applications the applicant is obliged to observe the utmost good
faith in placing all material facts before the court. If the court makes an order pur-
suant to an ex parte application and it subsequently transpires that material facts,
which might have influenced the decision of the court, were not disclosed by the
applicant, the court has the discretion to set the order aside on the grounds of non-
disclosure. This applies irrespective of whether the failure to disclose was wilful,
mala fide or negligent.33
(b) Secondly, if another person’s interests stand to be affected by an order in an ex
parte application, the court will not grant a final order without giving the respond-
ent the opportunity to present a defence. The court will merely grant a provisional
order with a return date, known as a rule nisi.34 After the order has been provision-
ally granted, it is then served on the respondent. The rule nisi calls upon the re-
spondent to appear before the court on a certain date to furnish reasons why the
provisional order should not be confirmed and made final. The respondent must
then deliver an answering affidavit, unless the respondent relies solely on a point

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32 E.g. see annexure 18 at the back of this book for an Anton Piller type application.
33 See De Jager v Heilbron 1947 (2) SA 415 (W); Power NO v Bieber 1955 (1) SA 490 (W); Wilkie’s
Continental Circus v De Raedt’s Circus 1958 (2) SA 598 (SWA); Schlesinger v Schlesinger 1979
(4) SA 342 (W); Hall v Heyns 1991 (1) SA 381 (C) at 397B–C; Trakman NO v Livshitz 1995 (1) SA
282 (A); National Director of Public Prosecutions v Basson 2002 (1) SA 419 (SCA) para. 21. A sim-
ilar, albeit slightly less onerous, duty is placed on parties in opposed applications. However,
where there has been material non-disclosure or dishonesty in opposed applications, the court
will generally show its disapproval with an adverse order as to costs. See Trakman NO v Livshitz
1995 (1) SA 282 (A) at 288F–H. In exercising its discretion to set aside an order on the basis of
non-disclosure, the court will have regard to the extent of the non-disclosure, the reasons for non-
disclosure and the consequences of setting the provisional order aside: Phillips and Others v
National Director of Public Prosecutions 2003 (6) SA 447 (SCA) para. 29. See also Minister of
Environmental Affairs v Recycling and Economic Development Initiative of South Africa NPC 2018
(3) SA 604 (WCC) paras 45–52 for a useful summary of the principles relating to good faith in ex
parte applications.
34 See Scott v Hough 2007 (3) SA 425 (O).

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of law. The audi alteram partem rule is therefore complied with by affording the
affected party the opportunity to state a case on the return day.35
The requirements for an ex parte application are described in HCR 6(4).

8.4.5.1 Notice of motion in ex parte applications

The prescribed form for the notice of motion in ex parte applications is Form 2 of the
First Schedule (the short form).36 In accordance with Form 2, read with HCR 6(4)(a),
the notice of motion in an ex parte application should satisfy the following require-
ments:
(a) It must be addressed directly to the registrar.
(b) It must indicate in which division of the High Court the matter is being brought.
(c) It must identify the applicant.
(d) It must notify the registrar that on a certain date and at a certain time an applica-
tion will be made to a specific division of the High Court for relief as set out in the
notice of motion.
(e) The order sought by the applicant must be set out in the form of prayers and item-
ised in the notice of motion.37
(f) It must confirm that the application is supported by a founding affidavit and it must
indicate the name of the deponent of the affidavit.
(g) It must require the registrar to enrol the matter for hearing.
(h) It must be signed and dated by the applicant (if he or she is unrepresented) or his
or her attorney.

8.4.5.2 Enrolment
HCR 6(4)(a) provides that ex parte applications must be enrolled with the registrar
before noon but on one court day preceding the day on which it will be heard.

8.4.5.3 Opposing an ex parte application

HCR 6(4)(b) provides that a person who has an interest, which may be affected by a
decision on an application being brought ex parte, may deliver notice of an application
for leave to oppose. Such application must be supported by an affidavit setting out the
nature of the interest and the grounds on which the person wishes to be heard. The
registrar must then set such application down for hearing to be heard simultaneously
with the ex parte application. At the hearing, the court may then grant or dismiss either
or both applications or postpone the applications upon such conditions regarding the
filing of further affidavits as it deems fit.38 Where an affected party does not apply for
leave to oppose prior to the granting of an ex parte application, a provisional order

________________________

35 See, however, HCR 6(8), which provides that any person against whom an order is granted ex
parte may anticipate the return day upon delivery of not less than 24 hours’ notice.
36 HCR 6(4)(a).
37 It is correct practice to set out these details in the notice of motion rather than to simply state in
the notice that the relief sought is that referred to elsewhere in the papers. See HCR 6(4)(a).
38 HCR 6(4)(c).

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 Fundamental Principles of Civil Procedure

with a return date will be granted. The respondent will then be served with the provi-
sional order and must indicate to the court on the return date, by means of an oppos-
ing affidavit, why the provisional order should not be made final. If the respondent
successfully opposes the provisional order, it will be discharged. If the respondent is
unable to oppose it successfully, the provisional order will be confirmed. A person
against whom an ex parte order is granted, may anticipate the return date with 24
hours’ notice.39
It is possible that the court may, after hearing an ex parte application, refuse an order
except with regard to costs, but grant the applicant leave to renew the application on
the same papers, supplemented by such further affidavits as may be necessary. In
application proceedings it is also possible for a party to bring a counter-application or
to join a party to the same extent as would be competent, if the party wishing to bring
such counter-application or join such party were a defendant in an application and the
other parties to the application were parties to such action.40

8.4.6 Bilateral applications

HCR 6(2) provides that when relief is claimed against a person or where it is neces-
sary to give a person notice of such application, the notice of motion must be ad-
dressed to both the registrar and such other person. This type of application will be a
substantive application, which will give the respondent an opportunity to answer the
allegations made by the applicant. It is important to bear in mind that the respondent
may, as part of a defence, raise a dispute of fact. The application is issued by the
registrar and served by the sheriff.
HCR 6(5) sets out the requirements relating to bilateral applications.

8.4.6.1 Notice of motion in bilateral applications

The prescribed form for the notice of motion in bilateral applications is Form 2(a) of the
First Schedule (the long form).41 In accordance with Form 2(a) read with HCR 6(5)(b)
and (d), the notice of motion should:
(a) be addressed to the registrar and the respondent;
(b) indicate in which division of the High Court the matter is being brought;
(c) identify the parties to the application;
(d) notify the registrar and respondent that an application will be made on a certain
date and at a certain time to a specific division of the High Court for the relief set
out in the notice of motion;
(e) reflect the order sought by the applicant set out in the form of prayers and these
must be itemised;42

________________________

39 HCR 6(8).
40 HCR 6(7) provides that in such cases HCR 10, dealing with joinder of parties, applies mutatis
mutandis.
41 HCR 6(5)(a).
42 It is correct practice to set out these details in the notice of motion rather than to simply state in
the notice that the relief sought is that referred to elsewhere in the papers. See also the opening
words of HCR 6(5)(d), which refer to ‘the grant of an order sought in the notice of motion’.

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(f) indicate that the application is supported by a founding affidavit and indicate the
name of the deponent;
(g) indicate that the applicant has appointed an address within 15 kilometres of the
office of the registrar at which the applicant will accept notices and service of all
processes in the proceedings;
(h) inform the respondent that in order to oppose the application, a notification must
be made to the applicant’s attorney in writing before a certain date, which must
not be less than five days after service of the application on the respondent;
(i) be served together with a notice indicating the applicant’s agreement or opposi-
tion to a referral of the dispute to mediation.43 In terms of HCR 41A(2)(c), the no-
tice must substantially correspond with Form 27 of the First Schedule and
concisely indicate the reasons for the applicant’s belief that the dispute is or is not
capable of being mediated44 (see annexure 6);
(j) inform the respondent that within 15 days after giving notice of the intention to
oppose, an answering affidavit must be filed;
(k) inform the respondent to appoint an address within 15 kilometres of the office of
the registrar at which the respondent will accept notices and service of all pro-
cesses in the proceedings;
(l) state that if no notice of intention to oppose is delivered by the respondent, the
application will be set down for hearing on a specific date and at a specific time,
which shall be not less than ten days after service of the application on the re-
spondent;
(m) be signed and dated by the applicant (if unrepresented) or by his or her attorney.
The time periods stipulated in the rules of court must be calculated exclusive of the
first day (the date on which the notice of motion is served on the respondent) and
inclusive of the last day.45 There are circumstances where the time period allowed by
HCR 6(5)(b) with regard to the entry of an appearance to defend, will not apply and
where a longer period is provided for. This will be the case where the papers launch-
ing the application are served outside the court’s area of jurisdiction. In this circum-
stance section 24(a) and (b) of the Superior Courts Act will apply, unless the applica-
tion is brought on an urgent basis.46 Where an application is made against the State, at
least 15 court days must be allowed after the service of the notice of motion, unless
the court has authorised a shorter period.47

8.4.6.2 Unopposed enrolment

If the respondent does not notify the applicant of the intention to oppose within the
time specified in the notice of motion, the applicant may place the matter on the roll for
hearing by delivering to the registrar a notice of set-down before noon on the second

________________________

43 HCR 41A(2)(a).
44 For an analysis of the court-annexed mediation process see ch. 15.10.
45 Interpretation Act 33 of 1957 s 4.
46 See Turquoise River Incorporated v McMenamin 1992 (3) SA 653 (D) at 656E–657D.
47 HCR 6(13).

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 Fundamental Principles of Civil Procedure

court day before the day that the application will be heard.48 The notice of set-down is
a formal document requesting the registrar to place the matter on the motion roll for
hearing.49

8.4.6.3 Opposing a bilateral application (see annexure 5)

The respondent proposing to oppose the application must:
(a) give the applicant written notice, within the time period stated in the notice of
motion, of the intention to oppose the application, indicating an address within 15
kilometres of the office of the registrar at which all notices and service of all docu-
ments relating to the proceedings will be accepted;50
(b) deliver an answering affidavit within 15 days of notifying the applicant of the inten-
tion to oppose the application together with any relevant documents;51
(c) deliver notice of the intention to raise a point of law, if this is the only intention,
within the time period provided for in (b), and in the notice set out the point of law
raised;52
(d) when delivering a notice of intention to oppose an application, or at any time
thereafter, but not later than when delivering an answering affidavit, the respond-
ent must serve on the applicant, or the attorney of the applicant, a notice indi-
cating whether such a respondent agrees to referral of the dispute to mediation,
or whether the respondent opposes it.53 Form 27 of the First Schedule must be
used and it must indicate the reasons for the respondent’s belief that the dispute
is capable of being mediated or not.54
The respondent, in the answering affidavit, must respond to all the allegations of fact
contained in the applicant’s founding affidavits and set out any additional facts that will
make up the respondent’s defence. Where the respondent wishes to take a legal point
only, and chooses not to file an opposing affidavit, the allegations contained in the
applicant’s founding affidavit will be accepted as correct.55 It has been held that where
a respondent wishes to raise a preliminary issue as well as a defence on the merits,
these must be raised at the same time.56 In trial actions this is known as pleading over.
Therefore, the respondent may not postpone the filing of an affidavit dealing with the
merits until the court has made a determination on the preliminary issue.

________________________

48 HCR 6(5)(c).
49 Although the court begins at 10h00, it is not certain at the time of set-down what position the matter
will occupy on the motion roll. Therefore, the notice of motion and the notice of set-down will state
that the matter is set down for hearing ‘at 10:00 or as soon thereafter as counsel may be heard’.
50 HCR 6(5)(d)(i). The notice of intention to oppose is a formal document addressed to the applicant
and the registrar simply advising that the respondent will oppose the application, and it does not
address the merits of the matter. See annexure 5 for an example of an opposing affidavit.
51 HCR 6(5)(d)(ii).
52 HCR 6(5)(d)(iii).
53 HCR 41A(2)(b) and see further ch. 15.10 re the mediation procedure.
54 HCR 41A(2)(c). For an analysis of the mediation process see ch. 15.10.
55 See Ebrahim v Georgoulas 1992 (2) SA 151 (B).
56 See Standard Bank of South Africa Ltd v RTS Techniques and Planning (Pty) Ltd and Others 1992
(1) SA 432 (T).

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8.4.6.4 Replying affidavit

The applicant may deliver a replying affidavit within ten days of receiving service of the
respondent’s answering affidavit. There is no obligation on the applicant to file a reply-
ing affidavit, and this should be done only when the applicant wishes to place a further
explanation or further evidence before the court. Because there is no obligation to file
a replying affidavit, the applicant will be taken to have denied all the allegations made
in the answering affidavit in so far as they are inconsistent with the allegations con-
tained in the applicant’s founding affidavit. It follows that even where the applicant
does file a replying affidavit, any allegation contained in the answering affidavit which
is not dealt with in the replying affidavit will be deemed to have been denied. It is clear
that there must be a good reason to file a replying affidavit. In Van Zyl and Others v
Government of the Republic of South Africa and Others57 the court criticised the filing
of lengthy replications that amount to a repetition of already stated facts.
It is not permissible for the applicant to raise a cause of action for the first time in the
replying affidavit.58 Furthermore, the applicant may not seek to base a case on allega-
tions contained in the respondent’s answering affidavit where that case has not, in
some way, been foreshadowed in the founding affidavit.59 In trial actions this is known
as a departure.

8.4.6.5 Further affidavits

HCR 6(5)(e) provides that the court may allow the filing of further affidavits as it deems
fit. This is the exception rather than the rule, and the party wishing to file further affi-
davits must obtain leave of the court before doing so.60 The court will incline towards
allowing the filing of further affidavits provided that there is a proper and satisfactory
explanation as to why the evidence was not placed before the court earlier. The court

________________________

57 2008 (3) SA 294 (SCA). See also Venmop 275 (Pty) Ltd and Another v Cleverlad Projects (Pty) Ltd
and Another 2016 (1) SA 78 (GJ).
58 Tumisi and Others v African National Congress 1997 (2) SA 741 (O). See Mostert v FirstRand
Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA) para. 13 where a court’s discretion to allow
a new matter in a replying affidavit is explained as follows: ‘as a respondent has the right to know
what case he or she has to meet and to respond thereto, the general rule is that an applicant will
not be permitted to make or supplement his or her case in the replying affidavit. This, however, is
not an absolute rule. A court may in the exercise of its discretion in exceptional cases allow new
matter in a replying affidavit.’ See also Shephard v Tuckers Land and Development Corporation
(Pty) Ltd (1) 1978 (1) SA 173 (W) at 177G–178A; Finishing Touch 163 (Pty) Ltd v BHP Billiton
Energy Coal South Africa Ltd and Others 2013 (2) SA 204 (SCA) para. 26, ’in the exercise of this
discretion a court should have regard to: (i) whether all the facts necessary to determine the new
matter raised in the replying affidavit were placed before the court; (ii) whether the determination
of the new matter will prejudice the respondent in a manner that could not be put right by orders
in respect of postponement and costs; (iii) whether the new matter was known to the applicant
when the application was launched; and (iv) whether the disallowance of the new matter will result
in unnecessary waste of costs.’
59 Administrator, Transvaal and Others v Theletsane and Others 1991 (2) SA 192 (A) at 199B.
60 James Brown and Hamer (Pty) Ltd v Simmons NO 1963 (4) SA 656 (A) at 660D–H; Hano Trading
CC v JR 209 Investments (Pty) Ltd and Another 2013 (1) SA 161 (SCA) paras 11, 14. See also
Kasiyamhuru v Minister of Home Affairs and Others 1999 (1) SA 643 (W); Broodie NO v Maposa
2018 (3) SA 129 (WCC) para. 27.

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 Fundamental Principles of Civil Procedure

must be satisfied that no prejudice will be caused (to the opposing party) that cannot
be remedied by an appropriate costs order. A satisfactory explanation is one which
negates mala fides or culpable negligence.61

8.4.6.6 Opposed enrolment

If no answering affidavit or notice that a point in law will be raised is delivered within
the prescribed time period, the applicant may, within five days of such expiry, apply to
the registrar to allocate a date for the hearing of the matter.62
However, if an answering affidavit is filed, the applicant may apply for a date for the
hearing of the matter:63
(a) within five days after the delivery of the replying affidavit; or
(b) if there is no replying affidavit, within five days after expiry of the ten days for filing
of the replying affidavit; or
(c) if the respondent delivers a notice of an intention to raise a question of law, the
applicant may apply for the hearing of the matter within five days after the delivery
of such notice.64
If the applicant fails to request a date within the five-day period specified above, the
respondent may do so immediately upon the expiry of the five-day period. Written
notice of the allocated date must then be given by the applicant or respondent, as the
case may be, to the opposing party.65 In practice the matter is set down by a party
delivering a notice of set-down to the registrar and the opposing party before noon of
the second court day prior to the day on which the application will be heard.

8.4.7 Interlocutory applications

HCR 6(11) provides that interlocutory applications (that is, interim applications) and
other applications incidental to pending proceedings may be brought on notice sup-
ported by such affidavits as the case may warrant.66 Interim or interlocutory applica-
tions are set down at the time assigned by the registrar or as directed by a judge.
There is no prescribed form for the notice of motion in interlocutory applications. In
practice the same form as with the ex parte application (that is, Form 2 of the First
Schedule) is used, except that in these applications the respondent is cited.
Unlike the provisions regulating ex parte and bilateral applications, HCR 6(11) makes
no provision for time limits with regard to the bringing of interlocutory applications. The

________________________

61 Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) at 604.
62 HCR 6(5)(f).
63 HCR 6(5)(f).
64 HCR 6(5)(f).
65 HCR 6(5)(f).
66 See Selepe v Santam Insurance Co Ltd 1977 (2) SA 1025 (D) at 1028F–H, when an interlocutory
matter can be decided without affidavits, this is an appropriate course to take and one which sen-
sibly conserves costs. However, certain interlocutory matters should be supported by affidavit.
E.g., in an application for leave to amend a pleading, an amendment cannot be granted for the
mere asking, some explanation must be offered therefor. See Commercial Union Assurance Co
Ltd v Waymark NO 1995 (2) SA 73 (Tk) at 77, such explanation will be contained in an affidavit.

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applicant is therefore free, as far as the rules of court are concerned, to allow any
period as is deemed necessary between delivery of the application and the hearing
thereof, subject, of course, to the risk of a postponement in the event of the defend-
ant’s having inadequate opportunity to oppose the application.67 Therefore, the appli-
cant must allow a reasonable time for the filing of affidavits, and it is clear that a
reasonable time would certainly not be longer than the time prescribed in terms of
HCR 6(5)(e), except under special circumstances.68

8.4.8 Urgent applications

8.4.8.1 General
In certain circumstances a party may need to obtain relief on an urgent basis, and
proper compliance with the rules and time limits may not be possible. Consequently,
HCR 6(12) provides that the court or a judge may dispense with the forms and service
provided for in the rules. The rule further provides that the court or a judge may dis-
pose of a matter at a time and place and in a manner and in accordance with a pro-
cedure that is as far as practicable in terms of the rules, as it deems fit. It is important
to note that when a matter is urgent, it will always be appropriate to proceed by way of
application, at least to obtain temporary relief, even though a dispute of fact is antici-
pated.69
The leading case on the question of how and when an urgent application may be
brought is Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture
Manufacturers).70 The requirement in HCR 6(12)(a) that the procedure for an urgent
application must, as far as is practicable, comply with the rules was highlighted. It was
held that HCR 6(12) does not permit practitioners to select any day of the week and
any time of the day (or night) to demand a hearing.71 Urgency primarily involves the
abridgement of time periods prescribed by the rules and, secondarily, the departure
from established filing and sitting times of the court.72 The court held that the following
factors, listed in ascending order of urgency, must be borne in mind:73
(a) When the matter is too urgent for the respondent to be allowed the usual ten court
days prescribed by HCR 6(5)(b) from the date of the service of notice of the
application to the date of the hearing, the ten-day period may be ignored, but the
application must still be set down for hearing on a motion day and the papers
must still be filed with the registrar of the court early enough for the matter to come
on to the following week’s motion roll.
(b) Only if the matter is so urgent that the applicant cannot set the matter down for
hearing on the court’s weekly motion day and give the registrar the prescribed

________________________

67 SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O) at 332B–C.

68 Gisman Mining and Engineering Co (Pty) Ltd (in liquidation) v LTA Earthworks (Pty) Ltd 1977 (4)
SA 25 (W) at 27H–28.
69 See Dunlop South Africa Ltd v Metal and Allied Workers Union and Another 1985 (1) SA 177 (D).
70 1977 (4) SA 135 (W).
71 Ibid. at 136G.
72 Ibid. at 136J.
73 Ibid. at 136J–137E.

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 Fundamental Principles of Civil Procedure

period of notice of the hearing, may the applicant set the matter down for hearing
on the next motion day while giving the registrar a shorter period of notice.
(c) Only if the urgency is such that the applicant dare not wait even for the next
motion day, may the matter be set down for hearing on the next court day at the
normal time of 10h00, or for the same day if the court has not yet adjourned.
(d) Once the court has adjourned for the day, only if the applicant cannot possibly
wait for the hearing until the next court day at the normal time when the court sits,
may the matter be set down forthwith for hearing at any reasonably convenient
time, in consultation with the registrar, even if that is at night or during a weekend.
If necessary, even the submission of written documents may be dispensed with.
The court explained that practitioners should carefully analyse the facts of each case
to determine, for the purposes of setting the case down for hearing, whether a greater
or lesser degree of relaxation of the rules is required. The degree of relaxation should
not be greater than what the exigency of the case demands and must be commensu-
rate therewith. An applicant must make out a case in the founding affidavit to justify the
particular extent of the departure from the norm.74
It is important to note that the rule allows a deviation not only in respect of the time
periods but also in respect of other rules, such as the rules relating to the service of
affidavits and the manner in which service is to be effected. However, in either event,
the applicant must make out a case for such deviation in the affidavit, as discussed in
paragraph 8.4.8.3. However, in South African Airways Soc v BDFM Publishers (Pty)
Ltd,75 the court made it clear that the general rule in such applications remains that the
respondent be informed of the application according to constitutional values and the
audi alteram partem rule; deviation should only be considered in exceptional cases.

8.4.8.2 Notice of motion

The rules do not specifically describe what form should be used for the notice of
motion in urgent applications. However, it has been held that when notice of the appli-
cation is given to a respondent, the applicant should use a Form 2(a) notice of motion
adjusted to reflect the shortened time periods and other changes that may be warrant-
ed by the degree of urgency alleged.76 Where the applicant is able to satisfy the court
that a matter is urgent, the applicant has the right to revise the rules applicable to the
particular matter and the time limits to be met. The applicant may, in the notice of
motion, nominate a date for the hearing and may stipulate time limits for the delivery of
opposing affidavits.77

8.4.8.3 The need to make out a case of urgency

In every affidavit filed in support of an urgent application, the applicant must clearly
and specifically describe the circumstances which render the matter urgent and the

________________________

74 Ibid. at 137F.
75 2016 (2) SA 561 (GJ) at 571C–537B. See also Erasmus at D1-85 for the modus operandi in
instances where an urgent application is contemplated on less than 24 hours’ notice.
76 See Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 (W).
77 See Venture Capital Ltd v Mauerberger 1991 (1) SA 96 (W) at 98H where the court refers to
Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773
(A), particularly at 782B–E.

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reasons why the applicant would not be afforded substantial redress at a hearing in
due course.78 It is therefore necessary for the applicant to set out detailed reasons for
proceeding by way of urgency. The importance of this stipulation cannot be overstated
and, if the court is not satisfied with the explanation as to urgency set out in the affida-
vit, the application will be dismissed.79
Whether a matter is urgent will also depend on the nature of the right which is being
threatened. A threat to the life or liberty of an individual will usually be regarded as a
valid ground for urgency.80 Whether a threat to a commercial interest, for example the
potential loss of profits, will constitute a valid ground of urgency is less clear, although
in Twentieth Century Fox Film Corporation v Anthony Black Films (Pty) Ltd,81 the court
had little difficulty in finding that the threat to a commercial interest may in certain cir-
cumstances justify the invocation of HCR 6(12) no less than any other interest.

8.4.8.4 Enrolment
It is important to note that a person against whom an order is granted in his or her
absence as a result of an urgent application may, by notice, set down the matter for
reconsideration of the order.82

8.4.8.5 Hearsay evidence in urgent applications

As a general rule of the law of evidence, no hearsay evidence is admissible either in
trial actions or in application proceedings.83 It is for this reason often necessary for
confirmatory affidavits to be delivered with the main affidavit. The deponent of the
confirmatory affidavit must declare to having read the main affidavit and must confirm
that it is correct in so far as it pertains to him or her. A confirmatory affidavit of this
nature would therefore ‘cure’ the hearsay nature of the evidence contained in the main
affidavit and render it admissible. However, in urgent matters there may not always be
time to obtain confirmatory affidavits. It has therefore been held that this rule may be
relaxed to a certain degree, where an application is brought by way of urgency, pro-
vided that the deponent to the main affidavit reveals the source of the information
contained in the affidavit, indicates a belief in the truthfulness of the information
and furnishes grounds for such a belief.84 In Lagoon Beach Hotel (Pty) Ltd v Lehane

________________________

78 HCR 6(12)(b).
79 Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4)
SA 135 (W) at 137F. See also Salt v Smith 1991 (2) SA 186 (Nm); Ntozini and Others v African
National Congress and Others (18798/2018) [2018] ZAGPJHC 415 (25 June 2018) where the
court dismissed the application on the basis that the urgency was self-created.
80 Katofa v Administrator-General for South West Africa 1985 (4) SA 211 (SWA) at 2151–J.
81 1982 (3) SA 582 (W) at 586F–G. For a contrary view see IL & B Marcow Caterers (Pty) Ltd v
Greatermans SA Ltd; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd 1981 (4) SA 108 (C).
82 HCR 6(12)(c).
83 See Bellengere A, Theophilopoulos C and Palmer R (eds.) The Law of Evidence in South Africa:
Basic Principles (Oxford University Press, 2019) ch. 25. See also Passenger Rail Agency of South
Africa v Swifambo Rail Agency (Pty) Ltd 2017 (6) SA 223 (GJ) at paras 20–25 regarding the
court’s discretion to accept hearsay evidence.
84 The relaxation of the hearsay evidence rule in the circumstances set out above is in accordance
with s 3(1) of the Law of Evidence Amendment Act 45 of 1988, which provides that hearsay evi-
dence may be admissible in a number of specified circumstances, e.g., in the interests of justice.
continued on next page

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 Fundamental Principles of Civil Procedure

NO85 the court adopted the approach that in complicated cases affidavits of every
person involved will not be required since it would be impracticable.

8.5 Applications in Magistrates’ Courts

8.5.1 General
The decision to proceed by way of trial action or by way of application in the High
Court depends on whether a bona fide material dispute of fact is anticipated. If no
material dispute of fact is anticipated, it is safe to proceed by way of application. This
general rule is based on the common law and it is underpinned by considerations of
convenience and practicality. The position is somewhat different in the Magistrates’
Courts primarily because they are creatures of statute. A Magistrates’ Court has juris-
diction to entertain only such matters which the Magistrates’ Courts Act empowers it to
decide on and then only if they are brought to court in the prescribed manner.86 MCR
2(1) defines the term ‘apply’ as meaning ‘apply on motion’ and states that ‘application’
has a corresponding meaning. The Magistrates’ Courts Act generally refers to actions
rather than applications, and this has been interpreted by the courts to mean that the

________________________

See also Lehane NO v Lagoon Beach Hotel (Pty) Ltd 2015 (4) SA 72 (WCC) at 79F–G, overturned
on appeal but not on this point: Lagoon Beach Hotel (Pty) Ltd v Lehane NO 2016 (3) SA 143
(SCA). See further Erasmus at D1-86 fn 1.
85 Lehane NO v Lagoon Beach Hotel (Pty) Ltd above at 150H–151D.
86 Jordan v Penmill Investments CC 1991 (2) SA 430 (E) at 435E. See also Mokoena v Minister of
Law and Order 1991 (3) SA 187 (T) at 194H–195A.

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application procedure is the exception rather than the norm. In In re Pennington Health
Committee87 it was argued that the legislature drew a clear distinction between actions
and applications. Procedure by way of application is recognised, but the intention
appears to have been to confer jurisdiction generally in actions in the narrow sense,
while authorising application proceedings only in specific cases.
Therefore, unlike the position in the High Court, a litigant may proceed by way of appli-
cation only when such a procedure is specifically permitted by the Magistrates’ Courts
Act or by another piece of legislation88 or by the Magistrates’ Courts rules.
The general procedure to be used in application procedures is prescribed in MCR 55,
but this general procedure must be read with specific sections or rules that prescribe
applications in particular instances. The types of order that may be sought on applica-
tion in Magistrates’ Courts are listed below.89

Section Order sought

13(2), 13A(3) Review of refusal to do any act by clerk of court or registrar
29(1)(fA) Liquidation of a close corporation
90
30 Interdicts
30bis Attachment to found or confirm jurisdiction
31(4) Rescission of an automatic rent interdict
32(1) Attachment of property as security for rent
32(2) Rescission of an attachment over property as security for rent
34 Appointment of an assessor
35 Transfer of action or proceedings to another magistrates’ court
36 Rescission of judgment
41 Application by defendant for separate trials where plaintiffs have been
joined
continued

________________________

87 1980 (4) SA 243 (N) at 247H.

88 See e.g. the Close Corporations Act, which permits the winding-up of close corporations by the
Magistrates’ Courts.
89 Van Loggerenberg DE Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South
Africa 10th edn (Juta & Co, 2012) (Jones & Buckle) Vol. II at 55-2–55-3. The original list appeared
in a previous update of Jones & Buckle. The authors have supplemented the original list in light of
the 2010 amendments to the Magistrates’ Courts rules and subsequent amendments.
90 Although s 30 of the Magistrates’ Courts Act also refers to arrest, this type of order has been
excluded from the table because the arrest procedure has been declared unconstitutional. See
Bid Industrial Holdings (Pty) Ltd v Strang 2008 (3) SA 355 (SCA); Malachi v Cape Dance Acade-
my International (Pty) Ltd 2010 (6) SA 1 (CC).

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 Fundamental Principles of Civil Procedure

Section Order sought

42 Application by defendants for separate trial where the plaintiff sued the
defendants jointly
47(2), (3) Stay dismiss etc. counterclaim that exceeds the jurisdiction of the Mag-
istrates’ Court in instances where the defendant failed to institute an
action in terms of section 47
50 Removal of case to a division of the High Court
52(1) For the approval of interrogatories
63 For the revival of superannuated judgment
72(1) For the attachment of debts (garnishee order)
73(1) For suspension of execution of a debt
74(1) For administration order (Form 44 read with Form 45)
111(3) For correction of misnomer

Rule Order sought

10 Edictal citation and substituted service (Form 4)
13(3)(d) Consent to use of facsimiles or to electronic use for exchange or service
14(1) Summary judgment (Form 7 and Form 8)
17(4) Application regarding claim in reconvention that may extinguish claim in
convention
18(5)(d) Cost order following tender or offer
18A(1), (9) Interim payments
19(2), (4) Striking out
20(2), (5), (7) Aspects of counterclaim and stay of action under section 47 (when
counterclaim exceeds jurisdiction)
21A(d) Close of pleadings
23(8), (14) Application for inspection or discovery and applicability to applications
24(3)(c), (7)(b) Conditions of medical examination, and dispute regarding submission of
a thing for inspection or examination
27(3), (6)–(10) Applications relating to withdrawal, dismissal and settlement
28(1), (2), (4), (5) Intervention, joinder, separation of causes and consolidation of actions
28A(9) Separation of trial or issues in third-party joinder
30(11) To amend record
continued

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 CHAPTER 8 The Application Procedure

Rule Order sought

31 Adjournment or postponement of action or application
32(3) Stay of action – previously unpaid costs
37(1) Second or further emoluments attachment orders etc.
43(8)(c), (14)(d) Modification of conditions for sale in execution of immovable property,
and review of distribution plan
43A Execution against residential immovable property (Form1B)
45(6) Request to replace director or officer of juristic person in terms of
section 65A(3)
46(1) Emoluments attachment order (Form 38A)
47 For attachment of a debt by garnishee order
49 For rescission or review of judgment or order
52(4) Substitution of an executor, trustee, guardian etc.
53 For leave to sue or defend as pro deo litigant
54(6) Declaring a person a partner etc.
55A read with 55 For leave to amend pleadings
91
56 read with 55 Attachments, interdicts and spoliation orders (see section 30)
57 Attachments to found or confirm jurisdiction (see section 30bis)
58 Maintenance pendente lite, contribution towards costs, interim custody
and access to children
60 Securing compliance with the rules or granting extension of time
periods
60A Irregular step proceedings
62(3) Giving of security

An analysis of the above list reveals that only a limited number of applications may be
brought in the Magistrates’ Courts. Because these courts do not possess the same
kind of inherent discretion as that of the High Court, many types of relief granted by
way of application in the High Court have to be dealt with in the Magistrates’ Courts
either by way of action or not at all.92
It must be noted, however, that the amended Magistrates’ Courts rules of 2010 have,
to some extent, brought MCR 55 in line with HCR 6 in relation to application proce-
dures and, as indicated above in paragraph 8.3.1, the forms also now provide for a

________________________

91 See footnote above regarding arrest.

92 Jones & Buckle Vol. II at 55-4.

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 Fundamental Principles of Civil Procedure

short and a long form of motion. It may well be argued that the new version of MCR 55
is of a more general nature, but it is submitted that when a specific section or rule
prescribes a particular application in a specific instance, the specific provision must
be complied with first.93

8.5.2 General requirements of MCR 55

The general procedure to be followed in applications in the Magistrates’ Courts is set
out in MCR 55.94 The appropriate form of the notice of motion is Form 1 or Form 1A.
One of these forms should be used in all matters except matters for which a different
form is prescribed.95 MCR 55(1)(a) requires that every application be brought on notice
of motion supported by an affidavit as to the facts on which the applicant relies for
relief. It states that ‘[e]very application shall be brought on notice of motion supported
by an affidavit’. Thus it may seem that a supporting affidavit is essential in every in-
stance, but, as explained below, this is not necessarily the case. The rule itself pro-
vides for different types of application and this must be read with other provisions of
the Magistrates’ Courts Act and rules that provide for applications in specific instances
listed in the table above. MCR 63 contains prescriptions regarding the filing and
preparation of documents to be filed with the court, including documents in applica-
tions.

8.5.2.1 Application with notice

(a) Addressee, addresses and time periods
An application with notice must be addressed to the party or parties (the respond-
ent(s)) against whom relief is claimed and to the registrar or clerk of the court.96 When
it is necessary or proper to give a person notice of an application, the notice of motion
must also be addressed to and served on that person. This is the case when it is
expected that the respondent has a right to be informed.97
As indicated above, unless the notice of motion is brought ex parte, it must corre-
spond substantially with Form 1A and copies of it, and all annexures to it, must be
served on every party to whom notice is to be given.98
The applicant must:
(a) indicate a physical address which, in places where three or more attorneys or
firms of attorneys practise independently of one another, must be within 15 kilo-
metres of the office of the registrar or clerk of court and at which notice and ser-
vice of all documents in such proceedings will be accepted;

________________________

93 See the principle in Chelsea Estates and Contractors CC v Speed-O-Rama 1993 (1) SA 198 (E) at
202C which still applies.
94 Jones & Buckle Vol. II at 55-1–55-38.
95 See e.g. Form 1B regarding an application to execute against immovable residential property of
the debtor. See also Jones & Buckle Vol. II at 55-4.
96 MCR 55(1)(b).
97 MCR 55(1)(c).
98 MCR 55(1)(d).

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(b) state the applicant’s postal, facsimile or electronic mail addresses, where they are
available;
(c) indicate a day not less than five days after service of the application on the re-
spondent on or before the day the respondent is required to notify the applicant in
writing whether he or she intends to oppose the application. Also, should no such
notification be given, the application will be set down for hearing on a stated day
not less than ten days after service on the respondent of the notice.99
In an application against a Minister, Deputy Minister, Provincial Premier, Member of
the Executive Council or officer appointed in the public service in such a person’s
official capacity, the respective periods referred to in MCR 55(1)(e) (as set out above
or for the return of a rule nisi) may not be less than 15 days after the service of the
notice of motion or the rule nisi, as the case may be, unless the court has especially
authorised a shorter period.100
(b) Unopposed matter
If the respondent does not notify the applicant, on or before the day mentioned in the
notice of motion, of his or her intention to oppose the matter, the applicant may place
the matter on the roll for hearing by giving the registrar or clerk of the court notice of
set-down five days before the day on which the application is to be heard.101
(c) Opposed matter
Any party who opposes the granting of an order sought by way of a notice of motion
must:
(i) within the time stated in the notice, give applicant notice, in writing, that he or
she intends to oppose the application, and in such notice appoint an address,
which address must, in places where there are three or more attorneys or firms
of attorneys practising independently of one another, be within 15 kilometres of
the office of the registrar or clerk of the court, at which [address] he or she will
accept notice and service of all documents, as well as such party’s postal, fac-
simile or electronic mail addresses where available;
(ii) within 10 days of notifying the applicant of his or her intention to oppose the
application, deliver his or her answering affidavit, if any, together with any rele-
vant documents; and
(iii) where it intends to raise questions of law only, deliver notice of intention to do
102
so, within the time stated in subparagraph (ii), setting forth such question[s].
Within ten days of the service on him or her of the affidavit and documents referred to
in MCR 55(1)(g)(ii), the applicant may deliver a replying affidavit.103 The court has a
discretion to permit the filing of further affidavits.104
In terms of MCR 55(1)(j)(i) and when no answering affidavit or notice in terms of MCR
55(1)(g)(iii) is delivered within the period referred to in MCR 55(1)(g)(ii), the applicant

________________________

99 MCR 55(1)(e).
100 MCR 55(6).
101 MCR 55(1)(f).
102 MCR 55(1)(g).
103 MCR 55(1)(h).
104 MCR 55(1)(i).

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 Fundamental Principles of Civil Procedure

may within five days of the expiry thereof apply to the registrar or clerk of the court to
allocate a date for the hearing of the application.
When an answering affidavit is delivered, MCR 55(1)(j)(ii) entitles the applicant to
apply for an allocation of the date for the hearing of the application within five days of
the delivery of his or her replying affidavit, or, if no replying affidavit is delivered,
within five days of the expiry of the period referred to in MCR 55(1)(h). When notice
is delivered, the applicant may within five days after such delivery apply for alloca-
tion of a date.
When the applicant fails to apply within the appropriate period provided for in
MCR 55(1)(j)(ii), the respondent may in terms of MCR 55(1)(j)(iii) do so immediately
upon the expiry thereof.
Notice in writing of the date allocated by the registrar or clerk of the court must be
delivered by the applicant or respondent, as the case may be, to the opposite party
not less than ten days before the date allocated for the hearing.105
(d) The court’s discretion
In terms of MCR 55(1)(k) the court may:
(i) Where an application cannot properly be decided on affidavit . . . dismiss the
application or make such order as it deems fit with a view to ensuring a just and
expeditious decision.
(ii) . . . in particular, but without affecting the generality of subparagraph (i) direct
that oral evidence be heard on specified issues with a view to resolving any
dispute of fact and to that end may order any deponent to appear personally or
grant leave for that person or any other person to be subpoenaed to appear
and be examined and cross-examined as a witness or it may refer the matter to
trial with appropriate directions as to pleadings or definition of issues, or other-
wise.

(e) Counter-application
MCR 55(2) allows for a counter-application in the following terms:
(a) Any party to any application proceedings may bring a counter-application or may join
any party to the same extent as would be competent if the party wishing to bring such
counter-application or join such party were a defendant in an action and the other par-
ties to the application were parties to such action.
(b) The periods prescribed with regard to applications apply with appropriate changes to
counter-applications: Provided that the court may on good cause shown postpone the
hearing of the application.

8.5.2.2 Ex parte applications

MCR 55(3) regulates ex parte applications. It reads as follows:
(a) No application in which relief is claimed against another party must be considered ex
parte unless the court is satisfied that –
(i) the giving of notice to the party against whom the order is claimed would defeat
the purpose of the application; or
(ii) the degree of urgency is so great that it justifies dispensing with notice.

________________________

105 MCR 55(1)(j)(iv).

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 CHAPTER 8 The Application Procedure

(b) The notice of motion in every application brought ex parte must correspond substantial-
ly to Form 1 of Annexure 1.
(c) Any order made against a party on an ex parte basis must be of an interim nature and
must call upon the party against whom it is made to appear before the court on a speci-
fied return date to show cause why the order should not be confirmed.
(d) Any person against whom an order is granted ex parte may anticipate the return day
upon delivery of not less than 24 hours [sic] notice.
(e) A copy of any order made ex parte and of the affidavit, if any, on which it was made
must be served on the respondent thereto.
(f) Where cause is shown against any order made ex parte against a party the court may
order the applicant or respondent or the deponent to any affidavit on which it was made
to attend court for examination or cross-examination.
(g) Any order made ex parte may be confirmed, discharged or varied by the court on
cause shown by any person affected thereby and on such terms as to costs as the
court may deem fit.
(h) Ex parte applications may be heard in chambers.

8.5.2.3 Interlocutory applications

Interlocutory and other applications incidental to pending proceedings, must be
brought on notice corresponding substantially with Form 1C of Annexure 1, and be
supported by affidavits if facts need to be placed before the court, and then set down
with appropriate notice.106 The wording of MCR 55(4)(a) suggests that no supporting
affidavit is required when facts do not have to be placed before the court.

8.5.2.4 Applications to court for authority to institute proceedings

Applications to court for authority to institute proceedings or for directions as to pro-
cedure or service of documents may be made ex parte when the giving of notice of
such application is not appropriate or not necessary.107

8.5.2.5 Urgent applications

Whereas the former rules made no specific provision for urgent applications in Magis-
trates’ Courts, the current MCR 55(5)(a) prescribes that a court ‘may make an order
dispensing with the forms and service provided for in [the] rules and may dispose of
the matter at such time and place and in accordance with such procedure (which
must as far as possible be in terms of these rules) as the court deems appropriate’. In
terms of MCR 55(5)(b), an urgent application must be supported by an affidavit
explaining the urgency by explicitly setting out the circumstances that, the applicant
avers, render the matter urgent and the reasons why the applicant claims that sub-
stantial redress could not be accorded at a hearing in due course.
An applicant must therefore set out the grounds that justify the grant of a provisional
order based on an ex parte or urgent application. The application will be dismissed if
the applicant is unable to persuade the court that the circumstances warrant the
bringing of an urgent application.108 Urgency is undoubtedly a well-recognised ground

________________________

106 MCR 55(4)(a).

107 MCR 55(4)(b).
108 See Office Automation Specialists CC and Another v Lotter 1997 (3) SA 443 (E).

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 Fundamental Principles of Civil Procedure

for bringing an application ex parte. Therefore, when a matter is urgent, it is open to an

applicant to proceed by way of an ex parte application when permitted (for example,
in terms of section 30 or 30bis). In such cases, the rule on hearsay evidence will be
relaxed as it would be in the High Court.
MCR 55(5) states:
(a) A court, if satisfied that a matter is urgent, may make an order dispensing with the forms
and service provided for in these rules and may dispose of the matter at such time and
place and in accordance with such procedure (which must as far as practicable be in
terms of these rules) as the court deems appropriate.
(b) An application brought as a matter of urgency must be supported by an affidavit which
sets out explicitly the circumstances which the applicant avers render the matter urgent
and the reasons why the applicant claims that he or she could not be accorded sub-
stantial redress at a hearing in due course.
(c) A person against whom an order was granted in his or her absence in an urgent appli-
cation may by notice set down the matter for reconsideration of the order.

8.5.2.6 Various aspects

(a) The court’s discretion
After hearing an application, whether brought ex parte or otherwise, the court is enti-
tled to ‘make no order thereon (save as to costs if any) but [may] grant leave to the
applicant to renew the application on the same papers supplemented by such further
affidavits as the case may require’.109

(b) Order required for service

In terms of MCR 55(8):
(a) The minutes of any order required for service or execution must be drawn up by the
party entitled thereto and shall be approved and signed by the registrar or clerk of the
court.
(b) The copies of the minutes referred to in paragraph (a) for record and service must be
made by the party indicated in that paragraph and the copy for record must be signed
by the registrar or clerk of the court.
(c) Rules 41 and 42 shall, in so far as it may be necessary in the execution of an order
under this rule, apply with appropriate changes to such execution.

(c) Striking out

In terms of MCR 55(9):
(a) The court may on application order to be struck out from any affidavit any matter which
is scandalous, vexatious or irrelevant, with an appropriate order as to costs, including
costs as between attorney and client.
(b) The court may not grant an application referred to in paragraph (a) unless it is satisfied
that the applicant will be prejudiced in his or her case if the application is not granted.

________________________

109 MCR 55(7).

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8.5.3 Applications for which a specific form is prescribed

Specific forms are provided for some types of application, namely applications:
(a) to declare immovable property executable in terms of MCR 43A (Form 1B);
(b) for summary judgment, which, although interlocutory in nature, should be in
accordance with Form 7;
(c) for a trial with assessors, which should be in accordance with Form 21;
(d) for amendment of conditions of sale in execution of immovable property (Form
33A);
(e) for administration orders as provided for in section 74(1) of the Magistrates’ Courts
Act, and which should be in accordance with Form 44;110
(f) for relief in terms of MCR 58 (Form 42) and HCR 43 (Form 17).

8.6 A summary of preparation for the hearing and the hearing

of the motion
Although there are some discrepancies between the practices of the various courts,
hearings in motion court matters in both the High Court and Magistrates’ Courts are
essentially similar.
The applicant (in practice, his or her attorney) must see to it that the matter is enrolled
for a specific court day and that the court file is properly indexed and paginated.
It is important that legal representatives prepare themselves well on the facts and legal
issues of every application in order to prepare their arguments for the hearing. In more
complicated matters such arguments will also be recorded in ‘heads of argument’
presented to the court. It is unclear to what extent formal preparation-for-trial proce-
dures like discovery (as discussed in chapter 18) apply to motion proceedings. HCR
35(1) and MCR 23(1) are silent on whether discovery applies to both actions and
applications, but HCR 35(13) and MCR 23(14) do provide that the court may direct the
extent to which discovery applies in application procedures.111
On the day of the hearing, the roll for that particular day will be called. When called,
the parties or their representatives must address the court.
In an unopposed matter the applicant or his or her legal representative will address
the court on the essential facts and legal points in support of the requested order. If it
is satisfied as to the proof of the facta probanda, the court may grant the order.
When the matter is opposed, the applicant will first address the court on the essential
aspects of the application by referring to the facts stated in the affidavits and the
relevant legal principles. The respondent then responds in a similar way but arguing
against the granting of the order. Thereafter the applicant has an opportunity to reply
to the respondent’s stated case. The court’s judgment then follows.

________________________

110 See ch. 23 para. 23.4.

111 See African Bank Ltd v Buffalo City Municipality 2006 (2) SA 130 (Ck) for factors to be considered
when a court exercises its discretion in this regard.

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 Fundamental Principles of Civil Procedure

Should technical issues with the application – such as a party’s lacking locus standi
or the court’s lacking jurisdiction or non-compliance with prescribed formalities – be
alleged, a point in limine may first be argued by the party who raises the point. If the
point in limine stands, it may dispose of the matter or only delay it (that is, be dilatory in
nature).
Parties may prepare their arguments by way of heads of argument which they submit
to the court as well.

8.7 Examples in the electronic Precedents Pack

High Court Relevant text
Precedent
precedent number in textbook
Voluntary surrender of Ch. 8 para. 8.4.1
PP – HC29.1 estate (see also ch. 4 para. 4.7)
Notice of motion for voluntary
PP – HC29.2 surrender of estate
Founding affidavit
Compulsory sequestration of Ch. 8 para. 8.4.1
estate (see also ch. 4 para. 4.7)
PP – HC30.1 Notice of motion for compul-
sory sequestration of estate
PP – HC30.2 Founding affidavit
PP – HC31 Notice of intention to oppose Ch. 8 para. 8.4.6.3(a)
Rehabilitation of insolvent Ch. 8 para. 8.4.1
PP – HC32.1 Notice of motion for
rehabilitation of insolvent
PP – HC32.2 Founding affidavit
Urgent application Ch. 8 para. 8.4.8
PP – HC35.1 Notice of motion for urgent
application
PP – HC35.2 Affidavit for urgent
application
PP – HC36 Founding affidavit for Ch. 8.4 in general
spoliation
Interdict Ch. 8.4
PP – HC37.1 Founding affidavit for
interdict with affidavit as
annexure
PP – HC37.2 Opposing affidavit
PP – HC37.3 Applicant’s heads of
argument
PP – HC37.4 Respondent’s heads of
argument
PP – HC37.5 Practice note: Counsel for
respondent

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 CHAPTER 8 The Application Procedure

Magistrates’ Court Relevant text

Precedent
precedent number in textbook

Application in terms of rule Ch. 8 para. 8.5

23(8) to compel (see also Ch. 14
(see also rule 60(2)) para. 14.6.2.1)
PP – MC14.1 Application in terms of
rule 60(2)
PP – MC14.2 Affidavit to support
application
Application in terms of Ch. 8 para. 8.5
rule 23(8) to dismiss (see also Ch. 14
(see also rule 60(3)) para. 14.6.2.1)
PP – MC15.1 Application in terms of
rule 60(3)
PP – MC15.2 Affidavit to support
application
Application in terms of Ch. 8 para. 8.5
rule 16(4) (see also Ch. 18
PP – MC23.1 Application in terms of para. 18.8.2)
PP – MC23.2 rule 16(4)
Affidavit to support
application
Security for costs Ch. 8 para. 8.5
PP – MC36.1 Request for security for (see also Ch. 15
costs in terms of rule 62(1) paras 15.9.1 and 15.9.4)
PP – MC36.2 Application for security for
costs in terms of rule 62(3)
PP – MC36.3 Affidavit to support
application
PP – MC36.4 Application to dismiss
action in terms of rule
PP – MC36.5 62(4)
Affidavit to support
application

185