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CONTENTS OF AN APPLICATION – AFFIDAVITS

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Affidavits

In application proceedings evidence is given mostly in the form of affidavits. In exceptional circumstances evidence will be given orally. The affidavits must provide all the evidence the court needs to make a just and reasonable finding in the matter.

The ordinary rule is that three sets of affidavits are allowed:

  • Founding (aka supporting) affidavits
  • Answering (aka opposing) affidavits
  • Replying affidavits

The court may in its discretion permit the filing of further affidavits[1], but only if special circumstances warrant it or if the court considers such a course advisable.[2]

Founding affidavit

The Applicant’s affidavit containing the evidence upon which such Applicant relies for the relief claimed. It must contain the following information:

  • the deponent’s authority
  • description of the parties
  • locus standi
  • jurisdiction of the court
  • the evidence supporting each material fact upon which the Applicant    relies

Opposing/answering affidavit

The Respondent’s affidavit in answer to the Applicant’s founding affidavit – see par. 7 below.

 Replying affidavit

 

The Applicant’s reply to the opposing/answering affidavit of the Respondent- see par. 8 below.

 

 Contents of affidavits

All the mentioned affidavits should contain the following:

  • The case heading.
  • The title of the document, e.g.

“FOUNDING AFFIDAVIT OF JOE SOAP”

“APPLICANT’S FOUNDING AFFIDAVIT”

“REPLYING AFFIDAVIT OF JANE DOE”

“RESPONDENT’S OPPOSING AFFIDAVIT”, etc.

  • The commencement, e.g. “I, Joe Soap, state under oath:” or “I, Jane Doe, do solemnly and sincerely affirm:”.
  • The address and occupation of the deponent together with such additional detail as may be relevant, e.g. the deponent is the Applicant or Respondent in the matter.
  • A statement that the deponent has personal knowledge of the facts deposed to in the affidavit.
  • Where reference is made to documentary evidence relevant copies thereof must be attached as annexures.
  • The deponent’s account of the relevant facts and events. Only admissible evidence is allowed.
  • The deponent’s signature.
  • An attestation clause duly completed by the commissioner of oaths before whom the affidavit was sworn or affirmed.

[1] Uniform Rule 6(5)(e); Magistrates’ Court Rule 55(1)(i).

[2] Standard Bank of SA Ltd v Sewpersadh 2005 (4) SA 148 (C) at 154.

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APPLICATION (MOTION) PROCEEDINGS

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INTRODUCTION

Where no real and substantial dispute of fact exists, and the dispute is one of law, it is brought before the court for decision by way of application (motion) proceedings.[1] Action proceedings are used when a real and substantial dispute of fact needs to be decided by a court of law.

Applications and actions mainly differ in the way the evidence is presented to court. In an action the evidence is presented by way of oral evidence. In an application the evidence is presented by way of affidavits.

All applications must be brought on notice of motion supported by an affidavit as to the facts upon which the Applicant relies for relief.[2] Applications are brought in one of two ways:

  • On notice to the registrar/clerk of the court and any other person affected by the application.[3]
  • On notice to the registrar/clerk of the court only, where no other person is affected. This is also referred to as an ex parte application.

[1] Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1161.

[2] Uniform Rule 6(1); Magistrates’ Court Rule 55(1)(a).

[3] Uniform Rule 6(2); Magistrates’ Court Rule 55(1)(b).

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CONTENTS OF AN APPLICATION- NOTICE OF MOTION

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Form and contents of an application

Every application must be brought on notice of motion supported by a founding affidavit as to the facts upon which the Applicant relies for relief.[1]

Notice of motion

The notice of motion must be addressed to –

  • the person/s against whom relief is claimed, and
  • any person/s whom it is necessary to give notice of the application, and
  • the registrar / clerk of the court.[2]

In High Court matters the notice of motion must be in accordance with Form 2(a) of the First Schedule of the Uniform Rules[3], and in Magistrates’ Court matters it must be in accordance with Form 1A of Annexure 1 of the Magistrates’ Court Rules[4]. True copies of the notice, and all annexures thereto must be served upon every party to whom notice thereof is to be given. [5]

In a notice of motion the Applicant must-

  • appoint an address within 15 kilometres of the office of the registrar/clerk of the court, at which Applicant will accept notice and service of all documents in such proceedings;
  • state the Applicant’s postal, facsimile or electronic mail addresses where available; and
  • set forth a day, not less than five days after service thereof on the Respondent, on or before which such Respondent is required to notify the Applicant, in writing, whether Respondent intends to oppose such application, and must further state that if no such notification is given the application will be set down for hearing on a stated day, not being less than 10 days after service on the said Respondent of the said notice.[6]

[1] Uniform Rule 6(1); Magistrates’ Court Rule 55(1)(a).

[2] Uniform Rule 6(2); Magistrates’ Court Rule 55(1)(b)&(c).

[3] See Annex 1.

[4] See Annex 2.

[5] Uniform Rule 6(5)(a); Magistrates’ Court Rule 55(1)(d)(i)&(ii).

[6] Uniform Rule 6(5)(b)(1),(ii)&(iii) – except for applications brought under subrule 6(12) and Rule 43, the days between 21 December and 7 January, both inclusive, shall not be counted in the time allowed for delivery of the notice of intention to oppose or delivery of any affidavit; Magistrates’ Court Rule 55(1)(e)(i),(ii)&(iii).