Understanding Ex Parte Applications in South African Courts

by | Jan 10, 2024 | Civil Litigation and Alternative Dispute Resolution

Introduction

In the realm of legal proceedings in South African courts, ex parte applications play a crucial role in seeking relief without involving the opposing party during the initial stages. This article aims to shed light on the circumstances under which ex parte applications are permissible, the procedural nuances in both the High Court and Regional/District Magistrates’ Courts, and the overarching principle of utmost good faith that applicants must adhere to.

Circumstances Permitting Ex Parte Applications

Ex parte applications are permissible under various circumstances, highlighting situations where immediate relief is essential or providing notice may defeat the purpose of the application. Some instances include:

  1. Single-Party Interest: When the applicant is the sole party interested in the relief claimed, such as applications for admission as a sworn translator.
  2. Preliminary Steps: When the relief sought is a preliminary step in the proceedings, like an application for substituted service or attaching a person or property to establish or confirm jurisdiction.
  3. Nature of Relief: When the nature of the relief sought makes giving notice impractical, such as freezing someone’s bank account to prevent dissipation of funds.
  4. Imminent Harm: In situations where immediate relief is essential due to imminent harm, as seen in urgent applications for temporary interdicts.
  5. Established Court Practices: Applications such as provisional sequestration and liquidation, which are traditionally brought ex parte in some divisions.
  6. Uncertain Respondent Identity: When the identity of the respondent is not readily ascertainable, as seen in applications affecting a broad group, like occupants of informal settlements.

Ex Parte Applications in Regional and District Magistrates’ Courts

In Regional and District Magistrates’ Courts, ex parte applications are subject to specific rules. These applications can be brought only when giving notice would defeat the purpose or when the degree of urgency justifies dispensing with notice. The application must provide a specified return date, and a copy of the ex parte order and supporting affidavits must be served on the respondent.

Notice of Motion in High Court and Magistrates’ Courts

In the High Court, a specific format, outlined in Form 2, dictates the notice of motion in ex parte applications. It includes details about the applicant, the application’s date and time, the requested court order, and the supporting affidavit. The notice of set-down is automatically included in ex parte applications.

Regional and District Magistrates’ Courts do not have a prescribed form for ex parte applications but follow the format outlined in High Court Rules Form 2.

Final Orders and Rules Nisi

In the High Court, a final order may be granted if the court is satisfied that no other person’s rights will be affected. However, if the application may impact others, a rule nisi is issued, calling on respondents to show cause on a specified date why the order should not be made final. Regional and District Magistrates’ Courts issue interim ex parte orders, and a rule nisi is peremptory.

Intervention in Ex Parte Applications

In the High Court, any person with an interest in an ex parte application can apply to the court for permission to intervene. This involves filing a notice of motion and supporting affidavit, with notice given to the applicant. Magistrates’ Courts require notice to be given to any person not party to the proceedings if it is deemed necessary or proper.

The Requirement of Utmost Good Faith

Applicants in ex parte applications have a duty to be completely transparent and honest with the court. Any breach of this duty could lead to the dismissal of the application or adverse cost orders, emphasising the importance of maintaining utmost good faith throughout the process.

Conclusion

Understanding the intricacies of ex parte applications in South African courts is crucial for legal practitioners navigating the complexities of obtaining relief without the opposing party’s involvement. Adhering to the prescribed procedures and principles of utmost good faith ensures a fair and just legal process. Contact an attorney at SchoemanLaw for your legal needs.