MOTION PROCEEDINGS

Types of application
Types of application

 On notice Applications

 Ex-parte applications

 Sustantive applications

 Interlocutory application

 Urgent applications
Ex-parte application

 An ex parte application is an application in which notice was in fact not given to the person
against whom some relief, in his or her absence, was sought.
 In terms of Rule 6(4)(a) application may be brought ex parte.
“Every application brought ex parte (whether by way of petition or upon notice to the registrar
supported by an affidavit as aforesaid) shall be filed with the registrar and set down, before noon on
the court day but one preceding the day upon which it is to be heard. If brought upon notice to the
registrar, such notice shall set forth the form of order sought, specify the affidavit filed in support
thereof, request him to place the matter on the roll for hearing, and be as near as may be in
accordance with Form 2 of the First Schedule.”
Ex parte application - when permitted

When permitted
 An applicant may apply for relief by way of an ex parte application under the following
circumstances:
1. if the relief sought affects the rights of the applicant only and not those of anyone else;
2. if the relief sought is preliminary to the main proceedings and is necessary to bring other interested
parties before court. Examples are applications for edictal citation, substituted service, arrests to
found or confirm jurisdiction, removal of restrictive conditions and the like;
3. if the nature of the relief sought is such that notice to the respondent may render the relief
nugatory. A typical example is the Anton Piller type application; 
4. if, due to the urgency of the matter, notice cannot be given to the respondent, for instance, if the
harm is imminent;
5. if the identity of the respondent or respondents is not readily ascertainable (in which event the relief
sought will be for a rule nisi with directions on how to serve the rule nisi).
Ex parte application - form

 As a general rule, an ex parte application is addressed to the registrar only since there is no
cited respondent (at least when the proceedings are initiated).
 The notice of motion must be in accordance with Form 2 (the “short form”), which does not
call upon other parties to join issue with the applicant.
 The fact that the notice of motion is not addressed to other parties does not mean that other
parties should not be given notice of the application.
 The notice of motion must be accompanied by an affidavit in support of the relief sought and
in which the facts upon which the applicant relies are set out.
Ex parte application - consequences

 An ex parte application by its very nature places only one side of a case before the court and
requires the utmost good faith on the part of the applicant.
 Failure to make full disclosure of all known material facts (ie, facts that might reasonably
influence a court to come to a decision) may lead a court to refuse the application or to set
aside the rule nisi on that ground alone, quite apart from considerations of willfulness or
mala fides.
 This approach should apply equally to relief obtained on facts that are incorrect either
because they have been misstated or inaccurately set out in the application for the order or
because they have not been sufficiently investigated.
Ex parte application - consequences

 If an application is brought ex parte, the court may refuse to entertain the application or it
may issue a rule nisi (with or without interim effect) if the possibility exists that parties who
may have an interest were not joined or given notice.
 An ex parte order may be set aside on notice (ie, not on notice of motion) or the return day of
a rule nisi may be anticipated.
 The court then redetermines the matter. This it may do with reference not only to the matter
that was before it when the order was granted, but it may take into account all the relevant
and permissible facts that are before it at that stage.
 An interested party may also apply to intervene in the proceedings.
 Cases

• Schlesinger v Schlesinger 1979(4) SA 342(W)

• Logie v Priest 1926 AD 312 at 323
• Power N O v Bieber & Ors 1955(1) SA 490 (W) at 503-4
• Ex Parte Satbel 1984(4) SA 347 (W)
• Ex Parte Hay Management Consultants (Pty) Ltd 2000(3)  SA  501  (W)  Toto v
Special Investigating Unit & Others 2001(1) SA 673 (E) at 683A-I 
Applications on notice

Uniform Rule 6(5)(a)

Applications on notice

 Uniform Rule 6(5)(a) provides that:

“Every application other than one brought ex parte shall be brought on notice of motion as
near as may be in accordance with Form 2(a) of the First Schedule and true copies of the
notice, and all annexures thereto, shall be served upon every party to whom notice thereof
is to be given.”
Applications on notice

 All applications other than those brought ex parte must be brought on notice of motion as
near as possible in accordance with the prescribed form. The form must be as near as may
be in accordance with Form 2(a) of the First Schedule.

 This form makes provision for the appointment of an address at which the applicant will
receive notice and service of documents in the application.

 True copies of the notice, and all annexures thereto, shall be served upon every party to
whom notice thereof is to be given.
Applications on notice

 It also informs the respondent of:

1. the time within which notice of opposition should be given and that, failing such notice,
application will be made to court on an unopposed basis on a stated day, not being less
than ten days after service of the notice of motion;

2. the time limit within which his answering affidavit should be delivered together with a
notice calling upon him to appoint an address at which he will accept service of
documents.
Interlocutory applications

Uniform Rule 6(11)

Interlocutory Applications

 Uniform Rule 6(11) provides that:

Notwithstanding the aforegoing sub-rules, interlocutory and other applications incidental to
pending proceedings may be brought on notice supported by such affidavits as the case
may require and set down at a time assigned by the registrar or as directed by a judge.
Interlocutory Applications

 Manerwick describes interlocutory application as follows:

The Motion Court also deals with procedural matters where the intervention of the court is
anticipated from the outset or where it becomes necessary for the proper conduct of the
proceedings. A summary judgment application, for example, anticipates that the court will
be required to make an order, whether the application is to be granted or refused. In other
interlocutory applications the court may make orders with regard to the status quo pending
the resolution of the main proceedings. Applications for extensions of time, to compel
discovery or the delivery of further particulars, are further examples of interlocutory
applications.
Interlocutory applications

 Interlocutory applications and other applications incidental to pending proceedings may be

brought on notice, supported by such affidavits as the case may require.

 ‘Incidental to’ means ‘subordinate or accessory to, while at the same time being distinct from’
the main proceedings and proceedings remain ‘pending’ until their final determination.

 Notice does not mean notice of motion and all that is required is notice to the other side that
an application will be brought on a date assigned by the registrar or directed by a judge.
Interlocutory Applications

 Use of the short form is required by some courts and is always advisable. It need not be
served by the sheriff and can be served on the party’s attorney of record.
 The provisions of rule 6(5)(e) relating to the time within which further affidavits must be filed,
do not apply to interlocutory applications, but the applicant risks a postponement at his
expense if the times allowed by him are too short. In other words, further affidavits must be
filed within a reasonable time and such time will usually be shorter than the time allowed by
rule 6(5)(e).
 Use of the wrong form does not lead to a nullity of the proceedings but they remain irregular
and may be set aside under rule 30.
Urgent applications

Uniform Rule 6(12)

Urgent applications

 Urgent application can be described as motion proceedings where the urgent nature of the
relief sought justifies for the abridgement of time period prescribed by the rules and warrants
departure from established filing and sitting times of the Court.
 The application is interlocutory in nature if the matter is concerned with interim determination
of the issues between the parties before court. This is in contradistinction to main application
or proceedings wherein the rights of the parties concerned are finally decided.
 It is trite that a party seeking relief on urgent basis must follow the prescripts of Rule 6(12) of
the Uniform Rules and the guidelines set out in cases such as Republikeinse Publikasies
(Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk, Luna Meubel Vervaardigers (Edms)
Bpk v Makin and Another (t/a Makins Furniture Manufacturers) and Sikwe v SA Mutual Fire
& General Insurance.
Urgent applications

 Uniform Rule 6(12) provides that:

(a) In urgent applications the court or a judge may dispense with the forms and service provided for in
these rules and may dispose of such matter at such time and place and in such manner and in
accordance with such procedure (which shall as far as practicable be in terms of these rules) as to
it seems meet.
(b) In every affidavit or petition filed in support of any application under paragraph (a) of this sub-rule,
the applicant shall set forth explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not be afforded substantial redress at a hearing in due
course.
(c) A person against whom an order was granted in his absence in an urgent application may by notice
set down the matter for reconsideration of the order.
Urgent applications

 In a case of urgency the court or a judge in chambers may dispense with the forms and
service provided for in the rules and may hear the matter at such time and place and in such
a manner and according to such procedure as the circumstances require.
 The rules must, however, be complied with as far as is practicable, including the use of the
long form, but basic principles, such as jurisdiction or legal standing, cannot thereby be
jettisoned.
 The applicant must apply for an order condoning the non-compliance with the rules.
 The extent of non-compliance depends on the degree of urgency. The rules must be
complied with as far as practical possible under the circumstances and in terms of the
degree of urgency applicable in a particular case.
Urgent applications - degree of urgency

 There are degrees of urgency.

 Some matters may be so urgent as to necessitate an immediate hearing, albeit at night or
during a weekend and may even be so urgent that no time is available to prepare any
documents, in which case viva voce evidence may be heard.
 Others again, whilst they may be such that the time limits imposed by the rules may be
ignored, may not be so urgent as to require a hearing out of normal court hours.
 The applicant must set forth explicitly the circumstances which render the matter urgent,
firstly, and, where necessary, require that the matter be heard outside of a court’s usual
urgent procedures.
Urgent applications - degree of urgency

 In relation to degrees of urgency, Hiemstra stated that:

‘Some matters may be so urgent as to necessitate an immediate hearing, albeit at night or
during a weekend and may even be so urgent that no time is available to prepare any
documents, in which case viva voce evidence may be heard. Others again, whilst they may
be such that the time limits imposed by the rules may be ignored, may not be so urgent as
to require a hearing out of normal court hours.’
 Urgent applications - degree of urgency

 Clearly, there are different categories or degrees of urgency. In this regard, the decisions of
Luna Meubel is instructive. In Luna Meubel the court outlined the degrees of urgency in the
following ascending order:
 First degree, the question is whether there must be a departure at all from the times prescribed in Rule
6(5)(b).
– Usually this involves a departure from the time of 7 (now 10) days which must elapse from the date
of service of the papers until the stated day for hearing.
– Once that is so, this requirement may be ignored and the application may be set down for hearing on
the first available motion day but regard must still be had to the necessity of filing papers with the
Registrar by the preceding Thursday so that it can come onto the following week’s motion roll which
will be prepared by the Motion Court Judge on duty for that week.
 Second degree: Only if the matter is so urgent that the applicant cannot wait for the next motion day,
from the point of view of the obligation to file the papers by the preceding Thursday, can he consider
placing it on the roll for the next Tuesday, without having filed papers by the previous Thursday.
 Urgent applications - degree of urgency

 Third degree, only if the urgency be such that the applicant dare not wait even for the next Tuesday,
may he set the matter down for hearing on the next Court day at the normal time of 10:00 am or for the
same day if the court has not yet adjourned.
 Fourth degree, once the court has dealt with the causes for that day and has adjourned, only if the
applicant cannot possibly wait for the hearing until the next court day at the normal time that the court
sits, may he set the matter down forthwith for hearing at any reasonably convenient time, in consultation
with the Registrar, even that be at night, or during the weekend.
Urgent applications - degree of urgency

 Then having understood the degree of urgency required in a particular case, then the
timeframes need to be truncated in accordance with the degree of deviation demanded by
the circumstance of a particular case.
 In Luna Meubel the court stated further 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 under the
ordinary practice of the Court is required. The degree of relaxation should not be greater than the
exigency of the case demands. It must be commensurate therewith. Mere lip service to the
requirements of Rule 6(12)(b) will not do and an applicant must make out a case in the founding
affidavit to justify the particular extent of the departure from the norm, which is involved in the time and
day for which the matter is set down.’
Urgent applications - degree of urgency

 Uniform Rule 6(12) demands that, among the other things, the applicant incorporates in his
notice of motion a prayer that the court dispense with compliance with the normal rules
relating to form and service of the papers.
 In this regard, the formulation of the notice must be in accordance with the practice
described in Gallagher v Norman's Transport Lines (Pty) Ltd and further incorporate a
truncated timetable for the exchange of papers.
Urgent applications - degree of urgency

 The requested abridgement of the time periods must be clearly set out in the notice of
motion. The applicant is at liberty to formulate his own rules in line with the degree of
urgency demanded by the matter.
 In this regard, the court in Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk stated that:
The applicant is, in a certain sense, taking into account the circumstances of the case permitted to
make his own rules but “as far as practicable” in accordance with the existing rules. Rule 6(12)
therefore makes provision for a process subject to rules different from the usual and when an
applicant appears before a judge in such a procedural manner he must ask the judge to disregard the
rules applicable to ordinary adjudication. He is not obliged to go to the judge first to ask permission to
act by means of extraordinary adjudication because Rule 6(12) expressly provides that the judge may
deal with such a matter when and where he deems fit. If an applicant acts in terms of this rule and
informs the respondent that he regards the application as urgent it follows, in my view, that the
respondent is obliged, in the sense that he runs the risk of an order against him by default, and
entitled to provisionally accept the rules which the applicant has adopted. When the matter comes
before the judge he can object, but in the meantime, he dares not disregard the rules which the
applicant has made for himself.
Urgent applications - grounds of urgency

 The applicant must in the founding affidavit set out the facts and circumstances upon which
he relies to render the matter urgent and the reasons why he cannot obtain substantial
redress at a hearing in due course.
 In certain jurisdictions the practice is that, before the registrar will enrol an urgent application,
a certificate signed by counsel certifying that the matter appears to him to be urgent, must be
filed.
 An applicant, when launching an urgent application, is entitled, as it were, to formulate his
own rules relating to the time allowed for answers and replies and the respondent is obliged
to obey these directions at least until the matter is called, when he may object, and it is then
incumbent upon the applicant to convince the court that the matter is so urgent as to justify
the times fixed by him.
Urgent applications - grounds of urgency

 Urgency may also justify a relaxation of the rules of evidence.

 If reliance is placed on hearsay, the deponent must state the source of his information and
must affirm under oath that he believes the statement to be true and must give reasons for
such belief.
Reconsideration of order

 A person against whom an order was granted in his absence in an urgent application, may
simply by notice set the matter down for reconsideration of the order.
 The reconsideration of the matter can be performed on the basis of a set of circumstances
quite different from that under which the original order was obtained.
 The jurisdictional facts establishing the discretion provided for are (i) the granting of an order
in the absence of the party affected thereby (ii) by way of urgent proceedings as intended
under rule 6(12).
Reconsideration of order

• The court has a wide discretion to redress imbalances and injustices and oppression flowing
from an order granted in urgency and in the absence of the affected party.
• An order under this provision is not the same as the discharge of a rule nisi.