Navigating ex parte applications in South African legal proceedings
30 Nov 2023
In the realm of legal proceedings within South African courts, the utilisation of ex parte applications holds paramount importance, allowing for the pursuit of relief without involving the opposing party during the initial stages. This article aims to delve into the distinctive circumstances permitting ex parte applications, the procedural intricacies applicable in both the High Court and Regional/District Magistrates’ Courts, and the overarching principle of utmost good faith that applicants must observe.
Permissible circumstances for ex parte applications
Ex parte applications find validation in various circumstances, each delineating scenarios where immediate relief is indispensable or where providing notice may compromise the application’s purpose.
Key instances include:
- Singular party interest: Instances where the applicant is the solitary party interested in the relief claimed, such as applications for admission as a sworn translator.
- Preliminary procedural steps: Seeking relief as a preliminary step in legal proceedings, exemplified by applications for substituted service or the attachment of a person or property to establish or confirm jurisdiction.
- Nature of relief sought: Situations where the nature of the relief sought renders providing notice impractical, as seen in freezing someone’s bank account to prevent fund dissipation.
- Imminent harm: Urgent scenarios necessitating immediate relief, such as applications for temporary interdicts when harm is imminent.
- Established court practices: Applications like provisional sequestration and liquidation traditionally brought ex parte in certain divisions, subject to the existence of special circumstances.
- Uncertain respondent identity: Instances where the identity of the respondent could be more readily ascertainable, as witnessed in applications affecting a broad group, such as occupants of informal settlements.
Ex parte applications in Regional and District Magistrates’ Courts
Regional and District Magistrates’ Courts adhere to specific rules governing ex parte applications. Such applications are only admissible when giving notice would defeat the intended purpose or when urgency justifies dispensing with notice. These applications must specify a return date, and the respondent must be served with a copy of the ex parte order and supporting affidavits.
Notice of Motion in High Court and Magistrates’ Courts
Distinct formats guide the notice of motion in ex parte applications. In the High Court, Form 2 dictates the specifics, encompassing details about the applicant, application date and time, the requested court order, and supporting affidavit. Regional and District Magistrates’ Courts follow the format outlined in High Court Rules Form 2.
Final orders and rules nisi: A delicate balance
In the High Court, the grant of a final order hinges on the court’s satisfaction that no other person’s rights will be affected. Conversely, if the application may impact others, the court issues a rule nisi, prompting respondents to show cause on a specified date why the order should not be made final. Regional and District Magistrates’ Courts, however, issue interim ex parte orders with a peremptory rule nisi.
Intervention protocols in ex parte applications
In the High Court, any interested party may seek permission to intervene by filing a notice of motion and supporting affidavit. Notice must be given to the applicant. In Magistrates’ Courts, notice must be given to any non-party if deemed necessary or proper.
Upholding utmost good faith
Applicants in ex parte applications bear the duty of complete transparency and honesty with the court. Breaches of this duty may result in the dismissal of the application or adverse cost orders, underscoring the significance of maintaining utmost good faith throughout the legal process.
Comprehending the nuanced landscape of ex parte applications in South African courts is imperative for legal practitioners navigating the intricacies of securing relief without involving the opposing party initially. Adherence to prescribed procedures and the foundational principle of utmost good faith ensures a just and equitable legal process.
Contact an attorney at SchoemanLaw for your litigious needs.
Written by Johan de Lange, Senior Professional Assistant – Attorney at SchoemanLaw Inc.
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