FORMS OF PROCEEDINGS

INTRODUCTION

The party suing is dominus litis as he is responsible for the choice of the form of
proceedings to be used. Mainly, there are two (2) forms of proceedings, namely:
Action or Trial Proceedings and Application or Motion Proceedings. A third and
further form of proceedings is the Provisional Sentence. Provisional Sentence is a
special hybrid procedure comprised of features of both action and application
proceedings.

The learned authors of Hebstein and Van Winsen ‘The Civil Practice of the High
Courts of South Africa’ 5 ed (1) 2009 at page 288 states that:

“Having decided which division of the High Court has jurisdiction, a legal
practitioner must determine the form in which the proceedings should be
brought. The two fundamental [main] forms of procedure in the High Courts
are applications and trial action.”

The decision to proceed by way of application instead of an action has been utilised
more frequently due to its many benefits, including the fact that it is less expensive
and more favourable in obtaining an expeditious order. Application proceedings are
regulated by Uniform Rule 6 in the High Court and Magistrate’s Courts Rule 55 in the
Magistrate’s Courts. On the other hand, Provisional Sentence is regulated by
Uniform Rule 8. And due to the nature of the provisional sentence relief, it is rarely
used in practice.

After establishing that a client has a valid claim and “having decided which division of
the High Court has jurisdiction, a legal practitioner must determine the form in which
the proceedings should be brought.”1 In other words, it is incumbent upon a legal
representative of a party suing (as dominus litis) to choose the appropriate way in
which proceedings are going to be instituted. That is the type of proceedings: Is it
Application or Action proceedings?

1
DIFFERENCES BETWEEN ACTION & APPLICATION PROCEEDINGS

Action / Trial Proceedings Application / Motion Proceedings

 Commence by way of Summons
 Parties are referred to as Plaintiff(s)
& Defendant (s)
 Evidence – oral or viva voce
 Characterised by clear separation
between pleadings & evidence (trial)
stages of the proceedings –
separated by pre-trial processes or
stage
 Proceedings take place before Trial
Court
 Commence by way of Notice of
Motion;
 Parties are referred to as
Applicant(s) & Respondent(s);
 Evidence – through affidavits;
 No clear separation between
pleadings and evidence;
 Proceedings take place before
Motion Court

STAGES
Trial / Action Proceedings Motion / Application Proceedings

 Exchange of Court Papers (Pleading)  Exchange of Court Papers (Notices

Stage & Affidavits) Stage
 Summons & POC;  NOM & Founding Affidavit
 Plea; (Applicant);
 Replication;  Answering / Opposing Affidavit
 Pre-Trial Stage (Processes such as (Respondent);
Discovery, etc.)  Replying Affidavit (Applicant)
 Hearing (Trial) Stage  Hearing Stage: Argument
 Oral Evidence (Examination-in-  Judgment stage
chief, Cross-examination & Re-
examination)
 Argument
 Judgment Stage

PRINCIPLES GUIDING CHOICE OF PROCEEDINGS

Leading case Room Hire Co (Pty) Ltd / Jeppe Street Mansions (Pty) Ltd 1949 (3) SA
1155 (T) (Room-Hire). Among the other things, in Room-Hire, it was decided, as a
general rule, that the choice between the procedures depends on whether a bona
fide material dispute of fact should have been anticipated by the party launching the
proceedings. When such a dispute is anticipated, a trial action should be instituted.
More in particular, the court at page 1161 per Murray AJP stated that:
 “…There are certain types of proceeding (e.g., in connection with insolvency)
in which by Statute motion proceedings are specially authorised or directed...
There are on the other hand certain classes of case (the instances given…are
matrimonial causes and illiquid claims for damages) in which motion
proceedings are not permissible at all. But between these two extremes
there is an area in which…according to recognized practice a choice between
motion proceedings and trial action is given according to whether there is or is
not an absence of a real dispute between the parties on any material question
of fact.”

Generally, there are three (3) principles that should guide the practitioners choice of
form of proceedings and these principles are clearly enunciated in Room Hire case,
as follows:

 First, there are certain types of proceedings in which motion proceedings are
specially authorised or directed by statute. Examples of cases falling into this
category are: Insolvency matters (application for liquidation, sequestration,
rehabilitation, etc.);

 Second, on the other hand there is a certain class of cases in which motion
proceedings are not permissible at all. Examples of matters falling in this class
are: divorce or matrimonial causes and illiquid claims for damages; and,

 Lastly, action proceedings should be used where there is a potential for real
dispute of facts.

The guidelines set out in Room Hire are general rules. There are special
circumstances that may justify usage of application proceedings even where there is
a potential real dispute of facts. Examples – where interim and urgent reliefs are
sought. These special circumstances are recognized by our courts and the Rules
Regulating Conduct of Proceedings in Court. In National Director of Public
Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para [26] the SCA stated that:

“Motion proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts. Unless the
circumstances are special they cannot be used to resolve factual issues
because they are not designed to determine probabilities.”
Uniform Court Rules make provision for urgent matters to be instituted by way of
applications and there is no similar rule relating to action proceedings. In particular,
Uniform Rule 6(12) (a) provides that:

“In urgent applications the court or a judge may dispense with the forms and
service provided for in these Rules and may dispose of such matter at such
time and place and in such manner and in accordance with such procedure
(which shall as far as practicable be in terms of these Rules) as to it seems
meet.”

REAL DISPUTE OF FACTS

In the case of Room Hire the court said a dispute of fact may arise under the
following circumstances:

 When the respondent denies all the material allegations made by the applicant
and produces or will produce positive evidence by deponents or witnesses to
the contrary. (In other words, there are two differing versions);
 The defendant may admit the averments made in the applicant’s affidavit but
allege further facts which throw a different light on the applicant’s allegation,
which facts the applicant disputes. (This is like ‘confess and avoid’).
 The respondent may concede that he has no knowledge of the main facts
stated by the applicant, but deny them, putting the applicant to proof and
himself giving or proposing to give evidence to show that the applicant is
biased and untruthful or otherwise unreliable, and that certain facts upon which
applicant relies to prove the main facts are untrue.

Unfounded denials without a genuine dispute of facts should not be countenanced.

The court must determine application or motion proceedings if allegations or denials
of the respondent are so far-fetched and clearly untenable that the court is justified in
rejecting them merely on papers. The approach, as set out in National Scrap Metal
(Cape Town) (Pty) Ltd & another v Murray & Roberts Ltd & others 2012 (5) SA 300
(SCA) para 21 is that:

“[a]n attempt to evaluate the competing versions of either side is thus both
inadvisable and unnecessary as the issue is not which version is the more
 probable but whether that of the appellants is so far-fetched and improbable
that it can be rejected without evidence‟.

In Peterson v Curthbert & Co 1954 AD the court stated that in determining a real
dispute of fact, the court must:

“examine the alleged dispute of fact and see whether in truth there is a real
issue of fact which cannot be satisfactory determined without the aid of oral
evidence.”

Bare denial does not give rise to a dispute of facts. (Wightman t/a W Construction v
Headfour (Pty) Ltd and Another 2008 SA 371 (SCA) para 13.) In dealing with bare
denial courts must adopt a robust and common sense approach and decide the
matter on the papers. In Soffiantini v Mould 1956 (4) SA 150 (E) the court stated
that:

“If by a mere denial in general terms a respondent can defeat or delay an

applicant who comes to court on motion, then motion proceedings are
worthless, for respondent can always defeat or delay a petitioner by such a
device. It is necessary to make a robust, common sense approach to a
dispute on motion as otherwise the effective functioning of the court can be
hamstrung and circumvented by the most simple and blatant stratagem. The
court must not hesitate to decide an issue on affidavit merely because it may
be difficult to do so. Justice can be defeated or seriously impeded and
delayed by an over-fastidious approach to a dispute raised in affidavits.”

If there is a genuine dispute of facts the court must apply what is called Plascon-
Evans Test / Rule. Plascon-Evans Rule / Test was formulated by the Supreme Court
of Apeal in the case of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (2) All SA 366 (A) where Corbett JA stated, at page 368, that:

“It is correct that, where in proceedings on notice of motion disputes of fact

have arisen on the affidavits, a final order, whether it be an interdict or some
other form of relief, may be granted if those facts averred in the applicant’s
affidavits which have been admitted by the respondent, together with the facts
alleged by the respondent, justify such an order.”
Where it is clear that facts, though not formally admitted, cannot be denied, they
must be regarded as admitted. (Stellenbosch Farmers' Winery Ltd v Stellenvale
Winery (Pty) Ltd 1957 (4) SA 234 (C) at p 235 E-G). Close examination of the test
reveals that the following different sets of facts:

 First set: facts averred in the applicant’s affidavits which have been admitted by
the respondent. (Common cause facts)
 Second set: facts stated by the applicant, though not formally admitted by the
respondent, cannot be denied, such facts must be regarded as admitted.
 Third set: facts that are denied by the respondent. If it is bare denial or a far-
fetched one, the court will still reject them.

In making its assessment as to whether it should grant the order or not, the court will
take these facts together and on that basis determine whether the applicant has
made a proper case or not? In other words, the applicant has successfully proven its
case in accordance with the required standard, i.e. on balance of probabilities (if that
is the required standard).That means, the court will be justified to grant the order
sought and it will be granted accordingly. If the applicant has not made a proper case
(i.e. the applicant has not proven its case in accordance with the required standard),
the application will be dismissed.

An excellent application of Plascon-Evans rule is illustrated by the Supreme Court of

Appeal in National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA),
the court re-stated the principles embodied in the “Plascon-Evans” rule at Par [26] as
follows:

“It is well established under the Plascon–Evans rule that where in motion
proceedings disputes of fact arise on the affidavits, a final order can be
granted only if the facts averred in the applicant’s (Mr Zuma’s) affidavits,
which have been admitted by the respondent (the NDPP), together with the
facts alleged by the latter, justify such order. It may be different if the
respondent’s version consists of bald or uncreditworthy denials, raises
fictitious disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified in rejecting them merely on the papers.
 The court below did not have regard to these propositions and instead
decided the case on probabilities without rejecting the NDPP’S version.”

Plascon-Evans test establishes the general rule. There are recognised exceptions
such as where the allegations or denials of the respondent are so far-fetched clearly
untenable that the court is justified in rejecting them merely on papers.

COURT ORDERS
As indicated above, if the proper case has been made the order relief sought will be
granted, or if a proper case has not been made, the application will be dismissed
accordingly. When there is a dispute of facts, the court has a discretion in terms of
the orders it may grant. In exercising its discretion, the court may grant the following
orders:

 Dismiss the application with costs;

 Order that oral evidence be heard in terms of the rules of court
 Order the parties to go to trial.