APPLICATION (MOTION) PROCEEDINGS
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).