Choice of procedure in civil litigation
Mervyn Dendy
This step-by-step practice note is only a guideline and is not intended to be a comprehensive treatment of the subject.
Having determined in which court civil proceedings should be instituted on behalf of a client, the practitioner must next decide what form the proceedings should take.
The choice of procedure will, in the first instance, be dictated by the choice of forum, since the rules involving the selection of procedure differ depending on the court in which the litigation is launched.
Three types of procedure now exist in the High Courts and the magistrates’ courts:
• provisional-sentence proceedings;
• trial actions; and
• application proceedings (also known as motion proceedings).
The choice between procedure by way of trial action and application (motion) proceedings
In all cases other than those in which the plaintiff sues on the basis of a liquid document, the practitioner who initiates High Court proceedings on behalf of a client will have to choose between procedure by way of trial action and procedure on application.
The choice is regulated by rules which were laid down in the famous case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 3 SA 1155 (T) at1161–1163. For purposes of choosing between trial actions and motion proceedings, five categories of case must be distinguished:
1. Cases in which, by statute, motion proceedings are specially authorised or directed, or in which trial actions are by statute rendered compulsory. In such cases, the type of procedure laid down in the statute must, of course, be followed. For example, s 346 of the Companies Act 61 of 1973 provides for the winding-up of a company to take place pursuant to an application to court. Proceedings for the winding-up of a company are therefore motion proceedings (PM Meskin Henochsberg on the Companies Act I 5 ed (Butterworths: Durban, 1994) by Jennifer A Kunst et al 712), and the procedure by way of trial action may not be used in order to secure an order for the winding-up of a company.
Conversely, where a High Court is asked to grant an order of divorce, the proceedings must be instituted by means of trial action (Ex parte Inkley and Inkley 1995 3 SA 528 (C) at 530H–531D). This is because s 11 of the Divorce Act 70 of 1979 provides that the procedure applicable with reference to a divorce action shall be the procedure prescribed from time to time by rules of court, and uniform r 1 defines an action (insofar as it is relevant to divorce proceedings) as ‘a proceeding commenced by summons’. Parties wishing to secure an order of divorce, it was held in Inkley, may therefore not jointly bring an ex parte application for a decree of divorce.
2. Cases involving illiquid (unliquidated) claims for damages. (An illiquid claim for damages is one in which the amount claimed has not been agreed upon between the parties prior to institution of action and is, in addition, not capable of speedy and prompt ascertainment.) Here, procedure by way of trial action is compulsory. A High Court will not entertain a claim for unliquidated damages on motion.
3. Cases in which urgent relief is sought. Here a litigant who wishes to institute proceedings must do so by launching an urgent application, since no mechanism exists in trial-action proceedings for the granting of urgent relief to the plaintiff. (A party who seeks relief which is normally obtainable only
by way of trial action may not, however, circumvent the trial-action procedure altogether merely on the basis that relief is required as a matter of urgency.
What will happen in such cases is that the court hearing an urgent application will be prepared to grant no more than interim (temporary) relief, to operate only until such time as a trial action aimed at securing permanent relief has been disposed of. The plaintiff will then have to launch an urgent application as well as a trial action. If a trial action has not already been instituted by the time when the court considers the urgent application, the court will direct the applicant to institute action within a time specified by the court, failing which the interim relief granted on an urgent basis will lapse.)
4. Cases in which no relief is sought against any other person. Here, the procedure to be followed will always take the form of motion proceedings — more specifically, an ex parte application. There will then be no respondent before the court, and the only party will be the applicant (or, perhaps, two or more co-applicants). Examples would be an application for admission as an attorney or an advocate, or an application by a married couple for authorisation by the court to execute and register postnuptially a notarial contract having the effect of an antenuptial contract in terms of s 88 of the
Deeds Registries Act 47 of 1937.
5. Cases falling outside the above categories, in which a choice between procedure by way of trial action and motion proceedings is available. Whether procedure by way of trial action or on motion should be used in this middle category depends on whether or not a material dispute of fact exists or is
likely to arise in the litigation between the parties.
If a material dispute of fact exists, then the party instituting the litigation should proceed by way of
trial action. This is because it is only in trial actions that the parties and/or their witnesses need appear in person in court in order to give (oral) evidence.
Where a material dispute of fact exists, it will be essential for the court to determine which party’s version of the facts is the true one, since that will affect the question of who wins and who loses the action.
Where the dispute of fact is material (ie crucial to the outcome of the case), a finding on the material facts of the dispute cannot properly be made unless the court has had the opportunity of observing the demeanour of the parties and/or their witnesses in the witness-box, in particular under cross-examination. This is not possible in application proceedings, where all of the evidence is placed before the court in the form of affidavits (ie sworn, written statements) and the parties and/or their
witnesses need not appear in person in court at all.
If, on the other hand, there is no material dispute of fact (ie there is either no factual dispute at all between the parties, or any factual dispute which may exist is irrelevant to the outcome of the litigation), no reason exists why the matter should not be determined on motion (which is
invariably a cheaper and quicker procedure than that by way of trial action):
‘Where no real dispute of fact exists, there is no reason for the incurrence of the delay and
expense involved in a trial action and motion proceedings are generally recognised as
permissible’ (per Murray AJP in the Room Hire case (above) at 1162).
The ways in which a material dispute of fact may arise
In the Room Hire case the court specified three ways in which a material dispute of fact may arise in application proceedings:
• The respondent may deny material allegations made by the applicant and/or the deponents on the applicant’s behalf, and produce evidence by the deponents to the contrary.
• The respondent may plead new allegations (not canvassed in the founding affidavit of the applicant) in confession and avoidance of the claim of the applicant, and those allegations may be disputed by the applicant.
• The respondent may concede that he has no knowledge of material facts averred by the applicant but may deny them, putting the applicant to the proof of them, and himself giving evidence to show that the applicant and/or the applicant’s deponents is/are untruthful or otherwise unreliable, and that certain facts (facta probantia) on which the applicant relies in order to prove the main facts (facta
probanda) are untrue.
The powers of the court in the event of a material dispute of fact being found to exist in application proceedings
Where, in application proceedings, a material dispute of fact is found to exist and the court accordingly cannot resolve the matter on the affidavits before it, the court may in terms of uniform r 6(5)(g) take one of three possible courses of action:
1. The court may refer the matter for the hearing of oral evidence on certain specified issues. This will occur where the applicant cannot be blamed for failing to anticipate that a material dispute of fact would develop, and the oral evidence which is necessary is confined to particular issues falling within a relatively narrow ambit.
The court may refer the matter to trial. This will be done 2. where the applicantcannot be blamed for failing to anticipate that a material dispute of fact woulddevelop, and it is undesirable to restrict the ambit of the evidence to be led orally.
3. The court may dismiss the application altogether, with costs. This will be donewhen the applicant should have realised prior to launching proceedings thata serious dispute of fact was bound to arise. A party who realises or ought torealise when launching motion proceedings that a material dispute of fact willoccur therefore proceeds at his peril.
Mervyn Dendy BCom LLB (Witwatersrand) is an attorney practising for his own
account in Johannesburg.