process means that the person against whom a civil judgement for the payment of money has been granted (the execution debtor) is given a period of time in which to pay the money or to make arrangements with the person in whose favour the judgement was granted (the execution creditor – the one claiming the judgement debt). If the money is not paid or if satisfactory arrangements are not made for payment, the sheriff can seize any assets of the execution debtor (called an attachment in execution) and ultimately sell the goods at auction (called a sale in execution).
This is more or less what you need to know about the procedural side of an action.
1.5.1.2 Applications
1.5.1.2.1 The procedural course of an application
The procedure for an application is completely different from that of an action, and in the judgement other terms are used for what happens. Instead of a summons, there is a so-called notice of motion. Like a summons, this sets out what order you are asking the court to make. For example, supposing that you want information from a government department about a tender process in which you participated. You want the information urgently because you want to appeal against the decision to award the tender to one of your competitors. You do not have much time to do so, but the government department refuses to give you the information you want. What do you do? It won’t help to have a summons issued and wait months or even years for a court date. By that time the competitor who was awarded the tender would have already finished the work and been paid for it. Therefore, you launch an application and have it served in the same manner as a summons.
However, there is an important difference between an action and an application. In an application, evidence is given in the form of an affidavit (or affidavits) which is called the founding affidavit, and not orally at a court appearance, as is done in an action. It is customary with an application for no “trial” to take place. Instead the applicant sets out all his evidence in his founding affidavit. In our example, you will litigate against the government department and the other tenderer or tenderers. You (the one bringing the application) are called the applicant; the people against whom you bring the application are called the respondents.
If either of the respondents wants to oppose your application, they have a notice of opposition served. (“Served” means exactly as explained when dealing with actions above.) Instead of a pleading or a plea, they will also file a sworn affidavit (or affidavits), in which their evidence is set out in full. In these affidavits, which are called the answering affidavits or opposing affidavits, the respondent will respond to every statement that you have made in your founding affidavit, paragraph by paragraph, and state whether he agrees with it, if he has knowledge of it at all and whether he perhaps disagrees completely with what you have said. If so, he will say why he disagrees with you and will set out his version of events.
The applicant then has the opportunity to answer to this and he does so by way of a replying affidavit. The replying affidavit looks very much like an answering affidavit and works in exactly the same way. It is also limited to answers to allegations made in the answering affidavit.
With that, the evidence is (usually) complete. Unlike an action, the hearing of an application is relatively straightforward and consists only of arguments by both sides, although such arguments can be extremely complicated.
Before the date of the hearing, the applicant and the respondent exchange heads of argument, consisting of a written summary of the arguments that will be delivered in court. This is why judges often have a good idea of what they are going to decide before the hearing, as all the evidence and legal arguments are already on paper and known to them.
The hearing of an application
When an application is heard, the applicant argues first, followed by the respondent and then finally the applicant answers. The way in which evidence is weighed up in an application is different to that in an action, because in the case of an application the judge has not had the advantage of seeing the witnesses “in action” and has not heard the cross-examination testing the different versions given by the witnesses. The principle is that the evidence on which the applicant and the respondent agree is examined. This evidence is said to be common cause (also the case in actions). Where the evidence of the applicant differs from that of the respondent, the evidence of the respondent is accepted, unless it is so unlikely that it has to be rejected outright. The evidence that is common cause is looked at together with the evidence of the respondent (unless of course it has been rejected, in which case the applicant’s evidence is accepted). Using this evidence, the judge considers whether the applicant has proved his case.
If the applicant has proved his case on a balance of probabilities, the application is granted. If he has not done so, the application is dismissed.
1.5.2 More about actions and applications
There are some aspects of applications that do overlap with actions. For example, expert evidence can be given in both cases and in the course of an application, discovery of specific documents can also be requested. These instances are fairly technical in nature and are not very common.
One also needs to know what a counter application is. In many cases, an application for certain legal relief is brought. The respondent then usually answers by not only denying that the applicant is entitled to the order that he is asking for from the court, but also requesting that another court order be given.
Here is an example to explain this. Neighbour A trespasses on Neighbour B’s land by opening his gate and using his path to the sea. Neighbour B brings an application against Neighbour A on account of trespassing and asks that Neighbour A be ordered not to trespass on his property. Neighbour A answers that he has been using the path to the sea for more than thirty years and therefore has acquired a right of way to the path. He therefore denies that Neighbour B is entitled to the order that he wants, because he, Neighbour A, has acquired the right to use the path. He then goes further and brings a counter application for an order declaring that he is entitled to a servitude over the path to the sea.
Actions and applications sometimes go hand in hand and this can happen in one of two ways:
Applications in actions. Sometimes in the course of an action, one of the parties does something unexpected, or a party cannot wait until the conclusion of the case before the court helps him, because it may already be too late by then. In such a case an interim or interlocutory application is brought for what is termed interim relief. For example, a plaintiff asks for the discovery of further documents and the defendant simply does not give them to the plaintiff. The plaintiff can then bring an application compelling the defendant to hand over the documents. If such an order is granted and the defendant still does not hand over such documents, the plaintiff can win the entire case simply on the grounds of the defendant not doing what he was supposed to do.
Another scenario is where a plaintiff institutes action against a defendant, but the defendant is sitting with a large number of documents that the plaintiff is sure the defendant will destroy if he hears about this action against him. The plaintiff can then bring an application to preserve those documents for the purpose of the trial.
Actions from applications. Sometimes an applicant brings an application that he thinks will be reasonably simple – there is not much in dispute about the facts. However, when the respondent answers, it appears that there are in fact many things he wants to dispute. In such circumstances, the applicant can request that the application be converted to a trial, so that the evidence can be properly heard in court and decided upon.
The example of the path to the sea will again assist in illustrating this. If Neighbour B does not
