Although everyone has heard of the phrase “I’m going to sue you!” – is this applicable in every dispute? There are two available routes which could be taken by someone intending to institute proceedings against another, namely; action – or motion proceedings.
For more information as to what the action procedure involves, please refer to our article titled “what are action proceedings?”.
Motion proceedings are instituted by way of issuing a notice of motion, together with a Founding Affidavit accompanying the aforesaid motion. The Founding affidavit sets out the Applicant’s case and/or cause, which provides the Court with a thorough background of facts, which need to be taken into account when the Court decides whether to grant the order, or not. (The reason – and/or basis upon which you are relying in order to obtain a specific order against another).
For example; when applying for a Protection Order against someone, motion proceedings are used. In the Founding affidavit you are required to furnish all relevant information and supporting evidence in order to provide the Court with “the full picture”, in order to obtain an order as sought after – should the Court find the behavior of the Respondent in accordance with the definition of harassment.
In a Notice of Motion, the Applicant must set forth a day, not being less than 5 (five) days after service thereof on the Respondent, on or before which such Respondent is required to notify the Applicant, in writing, whether the 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 (ten) days after service on the said Respondent of the said notice.
After the notice of motion and founding affidavit had been finalized by the Applicant, same will be issued by the applicable Court and thereafter submitted at the sheriff of the court for service thereof upon the Respondent.
If the Respondent intends to oppose the application, an Answering affidavit will have to be filed by the Respondent within 15 (fifteen) days after service after the abovementioned notice to oppose had been filed and served by the Respondent. The Answering affidavit sets out the Respondent’s defense to the application which was brought by the Applicant.
If the Respondent had filed the aforementioned notice together with the answering affidavit, the matter will proceed on an ‘opposed” basis, where after the Applicant would be placed in a position to file another affidavit (Replying Affidavit) wherein he/she responds to the allegations made by the Respondent.
Motions are decided based on the documents submitted to the court, and the court generally does not permit the introduction of new evidence or witness testimony that is not included in the submitted papers. However, there are some exceptions to this rule. The court will review the case based on the submitted documents and issue a decision accordingly.
JW Wessels and Partners Incorporated
Kindly be advised that we assist with the drafting and issuing of application proceedings in the High Courts, District Magistrates’ Courts and the Regional Divisions of the Magistrates’ Courts, amongst a wide array of other professional legal services, in ensuring that the statutory requirements of application proceedings are complied with. Should you have any additional questions, please do not hesitate to contact us for more information.
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