Magistrates' Courts Act, 1944 (Act No. 32 of 1944)RegulationsRules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa55. Applications |
(1)
| (a) | Every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief. |
| (b) | The notice of motion must be addressed to the party or parties against whom relief is claimed and to the registrar or clerk of the court. |
| (c) | Where it is necessary or proper to give any person notice of an application, the notice of motion must also be addressed to such person and served on such person. |
| (d) | The notice of motion in every application other than one brought ex parte shall be similar to Form 1A of Annexure 1 and copies of the notice, and all annexures thereto, shall be served upon every party to whom notice thereof is to be given. |
| (e) | In a notice of motion the applicant shall— |
| (i) | appoint a physical address within 15 kilometres of the office of the registrar or clerk of court, at which notice and service of all documents in such proceedings will be accepted; |
| (ii) | state the applicant’s postal, facsimile or electronic mail addresses where available; and |
| (iii) | set forth a day, not less than 5 days after service thereof on the respondent, on or before which such respondent is required to notify the applicant, in writing, whether he or she intends to oppose such application, and 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 respondent of the notice. |
| (f) | If the respondent does not, on or before the day mentioned for that purpose in a notice of motion, notify the applicant of his or her intention to oppose, the applicant may place the matter on the roll for hearing by giving the registrar or clerk of the court notice of set down 5 days before the day upon which the application is to be heard. |
| (g) | Any party opposing the grant of an order sought in a notice of motion shall— |
| (i) | within the time stated in the notice, give applicant notice, in writing, that he or she intends to oppose the application, and in such notice appoint an address within 15 kilometres of the office of the registrar or clerk of the court, at which he or she will accept notice and service of all documents, as well as such party’s postal, facsimile or electronic mail addresses where available; |
| (ii) | within 10 days of notifying the applicant of his or her intention to oppose the application, deliver his or her answering affidavit, if any, together with any relevant documents; and |
| (iii) | where it intends to raise questions of law only, deliver notice of intention to do so, within the time stated in subparagraph (ii), setting forth such question. |
| (h) | Within 10 days of the service upon him or her of the affidavit and documents referred to in paragraph (g)(ii), the applicant may deliver a replying affidavit. |
| (i) | The court may in its discretion permit the filing of further affidavits. |
| (j) |
| (i) | Where no answering affidavit, or notice in terms of paragraph (g)(iii), is delivered within the period referred to in paragraph (g)(ii) the applicant may within 5 days of the expiry thereof apply to the registrar or clerk of the court to allocate a date for the hearing of the application. |
| (ii) | Where an answering affidavit is delivered the applicant may apply for an allocation of the date for the hearing of the application within 5 days of the delivery of his or her replying affidavit or, if no replying affidavit is delivered, within 5 days of the expiry of the period referred to in paragraph (h) and where such notice is delivered the applicant may apply for such allocation within 5 days after delivery of such notice. |
| (iii) | If the applicant fails so to apply within the appropriate period provided for in subparagraph (ii), the respondent may do so immediately upon the expiry thereof. |
| (iv) | Notice in writing of the date allocated by the registrar or clerk of the court shall be delivered by applicant or respondent, as the case may be, to the opposite party not less than 10 days before the date allocated for the hearing. |
| (k) |
| (i) | Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as it deems fit with a view to ensuring a just and expeditious decision. |
| (ii) | The court may in particular, but without affecting the generality of subparagraph (i) direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for that person or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise. |
(2)
| (a) | Any party to any application proceedings may bring a counter-application or may join any party to the same extent as would be competent if the party wishing to bring such counter-application or join such party were a defendant in an action and the other parties to the application were parties to such action. |
| (b) | The periods prescribed with regard to applications shall apply mutatis mutandis to counter-applications: Provided that the court may on good cause shown postpone the hearing of the application. |
(3)
| (a) | No application in which relief is claimed against another party shall be considered ex parte unless the court is satisfied that— |
| (i) | the giving of notice to the party against whom the order is claimed would defeat the purpose of the application; or |
| (ii) | the degree of urgency is so great that it justifies dispensing with notice. |
| (b) | The notice of motion in every application brought ex parte shall be similar to Form 1 of Annexure 1. |
| (c) | Any order made against a party on an ex parte basis shall be of an interim nature and shall call upon the party against whom it is made to appear before the court on a specified return date to show cause why the order should not be confirmed. |
| (d) | Any person against whom an order is granted ex parte may anticipate the return day upon delivery of not less than 24 hours notice. |
| (e) | A copy of any order made ex parte and of the affidavit, if any, on which it was made shall be served on the respondent thereto. |
| (f) | Where cause is shown against any order made ex parte against a party the court may order the applicant or respondent or the deponent to any affidavit on which it was made to attend for examination or cross-examination. |
| (g) | Any order made ex parte may be confirmed, discharged or varied by the court on cause shown by any person affected thereby and on such terms as to costs as the court may deem fit. |
| (h) | Ex parte applications may be heard in chambers. |
(4)
| (a) | Interlocutory and other applications incidental to pending proceedings must be brought on notice, supported by affidavits if facts need to be placed before the court, and set down with appropriate notice. |
| (b) | Applications to the court for authority to institute proceedings or directions as to procedure or service of documents may be made ex parte where the giving of notice of such application is not appropriate or not necessary. |
(5)
| (a) | A court, if satisfied that a matter is urgent, may make an order dispensing with the forms and service provided for in these rules and may dispose of the matter at such time and place and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as the court deems appropriate. |
| (b) | An application brought as a matter of urgency must be supported by an affidavit which sets out explicitly the circumstances which the applicant avers render the matter urgent and the reasons why the applicant claims that he or she could not be accorded substantial redress at a hearing in due course. |
| (c) | A person against whom an order was granted in his or her absence in an urgent application may by notice set down the matter for reconsideration of the order. |
| (6) | In any application against any Minister, Deputy Minister, Provincial Premier, officer or servant of the State, in his or her capacity as such, the State or the administration of any province, the respective periods referred to in subrule (1)(e), or for the return of a rule nisi, shall not be less than 15 days after the service of the notice of motion, or the rule nisi, as the case may be, unless the court has specially authorised a shorter period. |
| (7) | The court, after hearing an application, whether brought ex parte or otherwise, may make no order thereon (save as to costs if any) but grant leave to the applicant to renew the application on the same papers supplemented by such further affidavits as the case may require. |
(8)
| (a) | The minutes of any order required for service or execution shall be drawn up by the party entitled thereto and shall be approved and signed by the registrar or clerk of the court. |
| (b) | The copies of the minutes referred to in paragraph (a) for record and service shall be made by the party indicated in that paragraph and the copy for record shall be signed by the registrar or clerk of the court. |
| (c) | Rules 41 and 42 shall, in so far as it may be necessary in the execution of an order under this rule, mutatis mutandis apply to such execution. |
(9)
| (a) | The court may on application order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant, with an appropriate order as to costs, including costs as between attorney and client. |
| (b) | The court shall not grant an application referred to in paragraph (a) unless it is satisfied that the applicant will be prejudiced in his or her case if it be not granted. |