Civil Procedure (Nelson Mandela University) PDF

CIVIL PROCEDURE APPLICATIONS – ON NOTICE & EX PARTE P190-203  STEPS (all opposed applications) 1. Notice of Motion + Founding Affidavit 2. MUST consider Mediation proceedings… see pp190-191 3. Loading… Notice of Opposition 4....

CIVIL PROCEDURE APPLICATIONS – ON NOTICE & EX PARTE P190-203  STEPS (all opposed applications) 1. Notice of Motion + Founding Affidavit 2. MUST consider Mediation proceedings… see pp190-191 3. Loading… Notice of Opposition 4. Answering Affidavit 5. Replying Affidavit 6. Hearing ON NOTICE APPLICATIONS When to bring? Every interested person to be cited as Respondent (or Applicant) Notice of Motion Addressed to Respondent + Registrar Loading… Ask for order – clear terms - Costs and “further and/or alternative relief” - Address for service - Service address within 15km of registrar’s office - Correspondent, if further than 15km…see example p 192 - Applicable to both High Court and Magistrates’ Court motions  Founding and supporting affidavits - Founding affidavit contains main evidence… - Supporting affidavits by witnesses - All facta probanda to be addressed - All evidence to be included – “annexures” - All affidavits and evidence attached to NOM - Affidavits duly signed before Commissioner of Oaths  Service - Original + (at least) 2 copies issued by Clerk/Registrar - Served by Sheriff - Original + remaining copies returned to attorney - Attorney file original on court file and keeps copies [NOTE: Sheriff does not file original on court file, as stated on p193 – attorney for Applicant will do that)  Notice of Opposition High Court - Done by Respondent - HCR 6(5)(b) – at least 5 day after service - Two weeks if outside JD of court, less than 150 km from court - One month if more than 150 km from court - These periods in ACT – calendar days… - 15 days if against Minister, Deputy Minister, Premier, etc – HCR 6(13) - Date for hearing: HCR 6(5)(b) – not less than 10 days - Loading… after service of NOM Notice of Set Down…  Magistrates’ Court - Opposition as with HC - Notice of Opposition – time stipulated in NOM - Place on court roll, giving (at least) 5 days’ notice  Answering affidavit - By Respondent - Within 15 days of NOO (HC) - Within 10 days of NOO (MC) Replying affidavit - By Applicant - Within 10 days after answering affidavit - Rebut answering affidavit, BUT no new matter  Set down - Notice of Set Down - Heads of argument… Hearing 1. Order as prayed for… 2. Ex parte – rule nisi + return date…  3. Matter referred to trial…: Pleadings Time periods Define trial issues 4. Dismiss with costs – Plaintiff failed to make out case – final judgment 5. No order… EX PARTE APPLICATIONS When brought? see p200-201 Notice of Motion – see p 201-202  Rule Nisi – p 202 - Final order, where no other rights affected - Rule nisi… - Temporary relief, if necessary… - Return date may be anticipated… GOOD FAITH (UBERRIMAE FIDES) Applicable to on notice and ex parte applications All facts to be revealed by Applicant Matter decided on papers; therefore, mandela.ac.za