KENYA LAWS ONLINE: Kenya civil procedure law: Litigation

Once the pre-litigation issues have been settled, the formal litigation process begins. This stage involves or requires or mandates

the exchange of documents;
time limits;
compliance with court rules and procedures; and, finally,
the trial or hearing.

Actions

Pleadings

What follows is a series of documentary exchanges (called pleadings) between the parties. This is akin to a conversation on paper, in that each party sets out respectively the basis of his complaint and the basis of his defence. The procedure is strictly regulated by the rules of court, not least with respect to the time limits that have to be observed. Failure to comply with the rules of court can be fatal for a case. The defendant, for example, is given ten days within which to lodge his appearance to defend (known as a notice of intention to defend, which indicates that he disputes a claim in the summons), failing which the plaintiff (the party bringing the action) can take judgment.
Usually the process commences with either a summons (in the case of action proceedings) or a notice of motion (in the case of application proceedings).

Summons

A summons has been defined under Kenya law as "a court process in which the defendant is called upon to enter appearance to defend the action within a stipulated time and to answer the claim of the plaintiff, and in which he is warned of the consequences of failure to do so."
There are three types of summons under Kenya law:

a simple or ordinary summons;
a combined summons; and
a provisional sentence summons.

A simple summons is a document which contains the basis (the particulars of the claim) for the plaintiff's action in the body of the summons. The simple summons is the High Court equivalent of the ordinary summons in the Magistrate's Court. A combined summons, on the other hand, has a more detailed and separate document containing the particulars of claim and is annexed to the summons. As a general rule, the simple summons is used where the claim is for a debt or a liquidated demand. There are certain matters for which a combined summons is prescribed: for example, in divorce matters. In the High Court, however, it is customary only to use a simple summons when one is certain that it is appropriate to do so.
A provisional sentence summons is one whereby a creditor in possession of a liquid document may sue speedily. If the debtor cannot dispute the validity of the liquid document, a provisional judgment will be entered against him. Only once he has paid the judgment debt as security will the debtor be able to enter into the merits of the case. In a recent Constitutional Court decision, it was held that various aspects of the provisional summons procedure were inconsistent with the Constitution.
The summons consists of the following:

time limits;
a warning;
a form of consent to judgment;
a form of appearance to defend;
the address at which plaintiff will receive service of all process;
a signature;
citations of parties;
averment of jurisdiction;
particulars of Claim; and
a prayer.

The summons is usually signed by an attorney, or by the plaintiff personally if he is not represented. Once it has been drafted, it must be issued by the clerk of the court or the registrar, who places a stamp on the document and gives it a case number.

Particulars of claim

The rules of court prescribe both the form of the particulars as well as the content. It is only from the particulars that one can see the basis of the action as well as the relief sought. The particulars of claim, then, sets out the facts that give rise to the claim as well as what the plaintiff wants the court to decide.
In a simple summons, the particulars appear in abbreviated form, often in one line.
It must contain the following:

a heading;
a statement of the facts on which the claim is based;
jurisdiction;
a cause of action; and
a prayer.

There are specific rules regarding certain categories of cases, namely

damages;
contractual matters; and
matrimonial matters.

Failure to comply with these rules will result in the pleading's being irregular.

Service of the summons

Once the summons has been issued by the registrar or clerk of the court, it may be served. Service of court process is undertaken by the sheriff. In practice, the attorney takes the original summons with any annexures, together with one copy for the defendant (or as many copies as there are defendants) to the sheriff. The court clerk will deliver the document to the defendant. There are prescribed forms of service that are permitted by law. The following general terms apply to the service of documents:

Service must be effected by the specific sheriff appointed to operate in that particular jurisdiction.
Service may not be effected on a Sunday or a public holiday (with some exceptions).
Service must be effected without undue delay.
Any person obstructing the sheriff in the carrying out of his duties is guilty of an offence.

On arrival at the defendant's house, the clerk hands to the defendant a copy of the process and is required to show him the original and to explain the meaning of the document. The defendant will often sign on the back page of the process to acknowledge receipt thereof. The clerk is required then to submit to the attorney a return of service (if he is successful) or a return of non-service (if he is unsuccessful).
The methods of service include

personal Service;
service upon an agent;
service on another at the residence or place of business of the defendant;
service at the defendant's place of employment;
service at the defendant's domicilium citandi et executandi;
service by affixing; and
service via registered post (which applies only to the Magistrate's Court).

Default judgment

Once the summons, with all annexures, has been served on the defendant, and the required time period for a response has lapsed without such a response, a party can apply for judgment. This is judgment on the basis that the defendant is in default. Default judgment under Kenya law is entered or given in the absence of the party against whom it is made. It frequently occurs when a defendant has failed to file his notice of intention to defend, but it can also be entered against the plaintiff. In terms of the rules, default judgment is granted in the following circumstances:

when there is a failure to deliver a notice of intention to defend at all;
when there is a failure to deliver a notice of intention to defend timeously;
when the notice of intention to defend, although delivered, is defective; and
when there is a failure to deliver a plea timeously or at all.

The consequences of each depend on which of the above circumstances applies:

In the case of a failure to deliver a notice of intention to defend at all, the plaintiff will only be granted his request for default judgment where the summons is in order and there has been proper service.
A late notice of intention to defend will still be effective provided that it is sent before default judgment has been granted. If the notice is sent before judgment is granted, but after request for default judgment has been lodged, the plaintiff is entitled to costs.
As regards delivery of a defective notice of intention to defend, the plaintiff is required to give the defendant a chance to rectify the defect within five days, failing which default judgment will not be granted.
As for failure to deliver a plea timeously or at all, there are several circumstances under which a defendant can be in default of a plea. The plaintiff can afford the defendant a chance to do so by delivering a notice calling on the defendant to file his plea; otherwise he will be barred. This document is called a notice of bar.

A request for default judgment under Kenya law must be in writing and lodged with the clerk or registrar of the court. The request is sent to the registrar. If the defendant has not filed an appearance to defend, there is no need to send a copy of this request to the defendant. A request thus consists of the following documents:

a request for default judgment;
the original summons; and
a return of service.

The request must set out that the papers are in order as well as the grounds on which the request is being brought.
Ordinarily a default judgment may be granted administratively. This means the clerk or registrar is permitted to grant the judgment, provided that the papers are in order. In matters where the claim is not for a debt or a liquidated demand, default judgment can only be obtained after either giving oral evidence before court or providing same by way of affidavit. When faced with a request, a magistrate or clerk can do one of the following:

grant judgment;
refuse judgment;
call for evidence;
make any other order as he deems fit.

Notice of intention to defend

If the defendant decides to oppose the action as set out in the summons, he is required to deliver a notice setting out his intention within ten days of receipt of the summons (or twenty days in the case of the state).
The document sets out the defendant's intention to defend the action, as well as the address at which he will receive all further documents in the proceedings. The appearance should indicate the physical, postal, email and fax number of the defendant, provided that the physical address is within fifteen kilometres and eight kilometres of the court house. The document must be signed by the defendant or his legal representative. The notice should also indicate the manner in which the defendant prefers all further pleadings and documents to be exchanged.
The notice is delivered to the plaintiff by either physically delivering it to his address, or via registered mail. There is no requirement to send the document through the sheriff. The word "deliver" entails that a copy of the document is served on the opposite party and the original filed with the clerk of the court. In the event of a notice to defend being filed, a plaintiff may, under certain circumstances, file an application for summary judgment.

Declaration

Should a plaintiff elect to issue a simple summons or ordinary summons ,and the defendant decides to defend the matter by filing his notice of intention to defend, the plaintiff is then obliged to file a declaration.
The declaration is similar to the particulars of claim filed in a combined summons and must therefore contain all the essential averments of the cause of action. It will set out in detail the nature of the claim, the conclusions of law that the plaintiff is entitled to make from the facts, and a prayer setting out the relief to be claimed. If the plaintiff's claim consists of a number of claims, each claim should be dealt with separately in the details referred to above.

Defence

Where a defendant is faced with a summons, he has two choices under Kenya law—either

to defend on a substantive basis by raising an objection to the merits of the case; or
to defend on a technical basis by objecting to the form and manner of the summons.

Where a defence is on the merits, the defendant files a plea; where the defence is on a technicality, the defendant either files an exception or an application to strike out.

Application to strike out

The second ground under Kenya law on which an objection can be levelled against a summons is the application to strike out. A defendant can raise this defence on three grounds:

The pleading contained averments that were mutually inconsistent and had not been made in the alternative.
The pleading contained averments that were argumentative, irrelevant and superfluous in nature.
The pleading contained contradictory matter.

An application to strike out to be brought on the following grounds under Kenya law :

The pleading contains statements that are scandalous, vexatious or irrelevant.
The applicant will be prejudiced in the conduct of his claim or defence if the offending statements are not struck out.

The aim of the application is to delete the offending portions of the pleading.
The form of the notice of application to strike out is very similar to the notice of exception. The notice points out the grounds on which the application is being made as well the exact section or sections of the pleading against which the application is being brought. The application is then heard in the same way as the exception.

Plea

One way of defending oneself against a claim is to give one's own version of events. This is under Kenya law called the plea. It is the document in which the defendant answers the allegations raised by the plaintiff.
The plea is generally delivered within twenty days after delivery of the notice of intention to defend. It is also delivered in other circumstances.
When drafting a plea a party must answer every material allegation. Where a party does not deal directly with an allegation, it will be deemed to be admitted. In the plea, a party must

admit the allegations;
deny the allegations; or
confess and avoid the allegations.

The plea is contained in one document.

Special plea

Where a party wishes to raise some technical defect about the summons, this is done by filing either an exception or an application to strike out. These defects are those which are apparent on the face of the pleading. A party may, however, wish to raise an objection based on a defect that does not appear from the face of the pleadings, in which case he will raise a special plea.
A special plea may be raised on the following listed grounds:

prescription;
lack of jurisdiction;
lis pendens;
locus standi;
res judicata;
settlement;
arbitration;
costs in a previous suit between the same parties still outstanding; and
non-joinder and misjoinder.

Where a party tails to raise the above issues, the court assumes that the party condones the other party's failures in those respects.
The plea (usually referred to as the plea over the merits) and the special plea appear in the same document. Although a successful special plea has the effect of dismissing the action, it is not frequently set down before the trial. On the trial date, the court will simply deal with the special plea before it proceeds to the plea on the merits.

Counterclaim

In a plea, a party simply answers the allegations raised by the plaintiff. It frequently occurs, however, that the defendant has a counterclaim. The rules provide that a party may file a counterclaim against the plaintiff. A counterclaim is often called a claim in reconvention. The same rules apply as those in the claim in convention. The plea and counterclaim are set out in the same document or in two separate documents, filed and served at the same time.

Replication and the plea in reconvention

After a defendant has filed a plea, the plaintiff may file a replication (or reply) if he wishes to plead new facts in answer to a defendant's plea. If the plaintiff merely denies everything stated by the defendant in his plea, no reply is necessary.
If a defendant filed a claim in reconvention (called a counterclaim), the plaintiff will be obliged to file a plea to such a counterclaim, which is similar to the defendant's plea to the claim in convention (the plaintiff's claim).

Close of pleadings

The close of proceedings under Kenya law is called litis contestatio, and it means that the litigants have reached finality in regard to all the allegations of fact forming the basis of the claim and defence. Once the pleadings are closed, a plaintiff or defendant may apply for a trial date.

Pre-trial pleadings

Various documents are exchanged before the matter is ready to proceed to trial. The three most important under Kenya law are

the discovery of documents;
the pre-trial conference; and
further particulars for the purpose of the trial.

In the discovery of documents,both plaintiff and defendant will normally provide each other with a request to discover. It requests either party to discover—that is, set out in a list—all the documents, correspondence, etc., which they have available, and to make these items available to the other party. A party receiving such a request must respond by filing a discovery affidavitwithin a certain period. On receipt thereof, the receiving party may request copies of any or all documents listed therein.
The purpose of discovery is to ensure that an opponent is not caught by surprise at trial. Any document not discovered may normally not be used at trial unless by consent or on application to court.
While the issues will have been resolved, to a large extent, prior to the close of pleadings, it may be possible to reach consensus on some further issues that were placed in dispute before the close of pleadings or were not dealt with in the pleadings. This is normally done at a pre trial conference.
List of issues that should be raised at the conference:

the date, place and duration of the conference;
any prejudice;
the settlement proposals;
any aspect to be referred to mediation, etc.;
transfer to another court;
issues in terms of rule 33(4);
admissions;
duty to begin;
agreement regarding producing proof by affidavit;
who is responsible for the copy and preparation of documents; and
documents to be utilised as evidence without duty to prove.

Although it is generally thought to be advisable that all these aspects be covered in a pre-trial conference in the magistrate's court, the rule does not specify this.
The pre-trial conference is normally attended by the parties' legal representatives. In some courts, the registrar will refuse to award a trial date until the pre-trial conference has been held. While many legal representatives do not take this rule seriously, and merely go through the formalities so as to move to the trial date, this is not recommended.

Variation and rescission of judgment

Normally, once the court has given a final order or judgment, the matter is closed. The original court may not revisit the matter; it is functus officio. Under certain exceptional circumstances, however, a court may alter or cancel its judgment.

High Court

The High Courts have authority at common law to "supplement, clarify or correct" their own judgments. This would seem to overlap with their inherent jurisdiction to regulate their own proceedings in the interests of justice. Using this power, they have varied their judgments

to include accessory or consequential matters that the court overlooked or failed to grant;
to clarify obscurities or ambiguities or uncertainties in the judgment (although it may not in so doing alter the substance of the judgment or the material findings or outcome of the case);
to correct clerical or arithmetical or other errors; and
to correct, alter or supplement a costs order.

Default judgment may be rescinded in the High Court in the following ways:

in terms of the common law in the case of

fraud;
justus error;
the discovery of new documents; and
default judgment (if sufficient cause is shown);

Magistrate's Court

The "rescission" of a judgment is the expression ‘setting aside’ of a judgment is, however, often encountered as a synonym and is well established in practice. Rescission of a judgment is in issue not only in cases in which default judgment has been granted, but also in cases in which application is made for the rescission of a summary judgment, as well as in cases in which judgment has been granted in the absence of a defendant where the defendant has not supplied further particulars requested of him.
The court may, on application, rescind or vary

any judgment it has granted in the absence of the person against whom it was granted;
any judgment it has granted which was void ab initio or obtained by fraud or mistake common to the parties; and
any judgment in respect of which no appeal lies.

While it may not do any of the above in the absence of an application from any person affected by the judgment, it may, mero motu, correct patent errors in any judgment in respect of which no appeal is pending. If a plaintiff in whose favour a default judgment has been granted has agreed in writing that the judgment be rescinded or varied, a court must rescind or vary such judgment on application by any person affected by it.
It does not matter, therefore, whether a default judgment has been obtained as a result of the failure of the defendant to enter appearance to defend, or as a result of the failure of the defendant to plead.
Apart from applications for the rescission of default judgments, the procedure by means of which a party will make an application for the rescission or variation of a judgment, which requires that such applications be

brought on notice to all parties; and
supported by an affidavit or affidavits setting out the grounds on which the applicant seeks rescission or variation.

If the rescission or variation is sought on the ground that the judgment is void ab origine, or was obtained by fraud or mistake, rule 49(8) provides that the application must be served and filed within one year after the applicant first had knowledge of such voidness, fraud or mistake.
The most common type of application for rescission, however, is an application for rescission of a default judgment.
In terms of rule 49(1), a party seeking to rescind or vary a default judgment has twenty court days, from the date on which the judgment came to his knowledge, to serve and file the application for rescission. Rule 49(2) provides that an applicant is presumed to have had knowledge of the default judgment ten days after the date on which it was granted, unless the applicant proves otherwise. This sub-rule places an onus on the applicant to rebut the presumption and to prove that he has brought the application within the twenty-day period.
Notice of the application must be given to all parties to the proceedings. The defendant is required to show good cause why the judgment should be rescinded; alternatively, the court must be satisfied that there is good reason to do so. The court has a discretion in this regard.
The application may be made by any party, or any person affected thereby. The applicant is not necessarily the defendant in default. It may be, for instance, that there has been non-joinder. A person may seek to set aside the judgment because he is materially affected by it.
The rule appears to lay down two different but related grounds upon which a court may grant rescission. The first is "upon good cause shown;" the second is "if it is satisfied that there is good reason to do so."

Good cause

"Good cause" has never been properly defined, but it incorporates both an investigation into the existence of a prima facie defence, and whether or not the defendant was in wilful default. In the cases on the previous rule, "good cause" was held to include

a reasonable explanation for the default;
the existence of a bona fide defence; and
evidence that the application is made bona fide.

The first two of these requirements are set out in the new rule 49(3), which provides that the application must be supported by an affidavit setting out the reasons for the defendant’s absence or default, and the grounds of the defendant’s defence to the claim. It has been argued that "the previous case law still applies in regard to this sub-rule, since 'good cause' would only be shown if the explanation was reasonable, and the defence bona fide."
The requirement of absence of wilful default has become more problematic.
Rescission may not be granted under the Kenya law if the defendant

is in wilful default; and
cannot show a prima facie defence.

This means that, to show good cause, the defendant in his affidavit must explain the reasons for his absence or default and show the existence of a prima facie defence as well as satisfy the court that his default was not wilful.

Good reason

The second possibility is that the applicant may show that there is "good reason" to rescind the judgment. The court may rescind the judgment, that is, "if it is satisfied that there is good reason to do so." Paterson writes that,
while this requirement overlaps with that of 'good cause,' it should be given an independent meaning. It is submitted that the ‘good reason’ relates to a wider discretion than that contained in good cause relating to the general equities of the situation.
The prejudice to both parties will be considered together with all the other factors set out above.
Although "good reason" appears to set a lower standard than the requirements of good cause, it has been held that it does not so much lower the requirements for the applicant as extend the discretion of the magistrate. Where the applicant fails to show good cause, the magistrate may nevertheless grant rescission mero motu, in the interests of justice, if exceptional circumstances warrant it.
A magistrate has a discretion in the case of rescission, and is not obliged to grant it. The defendant's bona fides, whether or not the default was wilful, and the existence of a prima facie defence are all taken into account in exercising that discretion, the most important aspect being that of the existence of a prima fade defence.

Situations

Four different situations may arise under Kenya law:

The defendant is bringing the application to rescind the default judgment and wants to defend the matter. This is the most common situation. It may occur, for instance, that for some reason, the defendant did not receive the summons. The next thing he knew the sheriff was at his door telling him that judgment had been taken against him. He consults an attorney, telling him that he has a good defence to the matter and would definitely have entered an appearance to defend if he had known about the summons. In this case the application must be supported by an affidavit, in which must be set out the reasons for the defendant's absence or default. This is where the defendant deals with the aspect of wilful default. The defendant sets out facts to show why he is in default, and must show that the default was not wilful. If any of the three elements discussed previously are absent, the defendant cannot beheld to be in wilful default. The onus of proving wilfulness is on the respondent in the application. The affidavit must also set out the grounds of the defendant's defence to the claim. This is perhaps the most important part of the affidavit. The defendant must set forth allegations of fact which give rise to a defence. He need not deal fully with the merits, but sufficient facts must be alleged to show that a prima facie case exists.
The defendant is bringing the application to rescind the default judgment, but does not wish to defend the proceedings. This happens where the defendant would have been happy to pay if he had known about he summons. As soon as he finds out about the judgment he makes arrangements to pay, but by that time he already has a judgment against his name. He now wants to remove the judgment. There is no need to show good cause in this situation, but the defendant must satisfy the court that he was not in wilful default, and that the judgment was satisfied or arrangements were made to satisfy the judgment within a reasonable time after it came to his knowledge.
The plaintiff agrees in writing that the default judgment be rescinded or varied. This will usually be the case where the defendant has paid off the judgment debt and now wants the judgment rescinded so that he can take his name off the list of judgment debtors that credit bureaus might have. As long as a debtor’s name appears on the list, he will find it difficult to obtain credit. Either the plaintiff, the defendant or any other person affected by such judgment may make the request for rescission or variation.

Summary of rescission of default judgment

In the High Court, the defendant, seeking rescission of a default judgment,

must not be in wilful default; and
must have a bona fide defence with a prima facie prospect of success.

In the Magistrate's Court, rescission of a default judgment will be granted

if there is good reason; or
on good cause shown.

It is important to note that rescission is not available in respect of provisional sentences or summary judgments.

Applications

Application proceedings, also known as motion proceedings under Kenya law, are based on the exchange of affidavits, and are therefore intended to be disposed of without viva voce evidence.
The party bringing the application is known as the applicant; the party opposing the application, if any, is known as the respondent.
The applicant commences proceedings by issuing a notice of motion, which serves to advise the respondent of the applicant’s claim and the relief which the applicant seeks.
The notice of motion is usually accompanied by a founding affidavit (a written statement under oath). Sometimes one or more supporting affidavits or relevant documentation are attached to the affidavit.
The respondent who wishes to oppose the application must deliver an opposing affidavit (or answering affidavit) in which he answers the allegations of fact contained in the founding affidavit.
If necessary, the applicant may then deliver a replying affidavit, in order to address and respond to any allegations contained in the opposing affidavit.
The affidavits, together with the annexed documentation, set out the facts and evidence on which the parties’ respective claims or defences are based. The application procedure culminates in the hearing of the matter in motion court.
On the date of the hearing, the parties’ legal representatives argue “on the papers,” meaning that oral evidence is not heard; the arguments are limited to legal submissions. Exceptional circumstances exist, however, where the matter will be referred for the hearing of oral evidence.
Magistrates’ Courts practice does not provide for a general application procedure; it recognises only specific instances in which applications may be brought. In the High Court, however, the application procedure is widely used.

Form

An application under Kenya law will generally consist of

a notice of motion; and
one or more supporting affidavits.

Notice of motion

Affidavit

The purpose of an affidavit under Kenya law is to record certain facts under oath, which the court will then consider in determining whether or not to grant the application.
There is no standard form prescribed for the affidavit. Its contents will vary widely, depending on the nature of the specific application.
There are certain basic principles which apply to all affidavits. The following information should appear in all supporting affidavits:

the names and addresses of the applicant and the respondent;
the fact that the applicant has locus standi;
the fact that the court has jurisdiction;
the material facts on which the claim is based (facta probanda), as well as the evidence which the deponent wishes to place before the court (facta probantia); and
a request to the court to grant the relief as prayed for in the notice of motion.

The affidavit is framed in the first person. The deponent will generally state that its contents are true.
If the applicant refers to documentary evidence in the supporting affidavit, such documents must be attached to the affidavit. Being a document containing evidence, the substantive law of evidence applies as much to an affidavit as to viva voce evidence.^[137]
Where the applicant refers in the supporting affidavit to communications by other persons, such reference must be affirmed by obtaining confirmatory affidavits from the said persons, and attaching it to the supporting affidavit. Such attachment is necessary in order to comply with the evidentiary rule against hearsay. Only admissible evidence should be contained in the affidavit.

High Court

General rule

In any claim, the decision to be made up front is whether to proceed by way of action or application procedure. 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; otherwise motion proceedings are permissible in order to avoid the delay and expense involved in trials.
It follows, from this general rule, that motion proceedings should not be instituted in respect of

unliquidated claims;
matters in which it is anticipated that a material dispute of fact will arise; or
claims for divorce.

Notwithstanding the rule regarding anticipated disputes of fact, there are certain types of proceeding in which applications should always be used:

insolvency proceedings;
where a party seeks urgent relief; or
where legislation so dictates.

Between these two extremes, the party suing has the choice between an action and an application; his only limitation in regard to an application is the anticipation of a real dispute on any material question of fact.
This principle is valid only for an application for final relief (such as an application for the payment of money, or for the vindication of an article) or for a final interdict.
The party suing (the applicant) is dominus litis; he chooses the procedure to be used. It must be appreciated that it is inherently unfair on the respondent to be brought to court in an application

where there are disputes of fact;
when he has the prospect of a final judgment being granted against him; and
when he does not have the opportunity of giving viva voce evidence before a judge who is trained in the art of evaluating that evidence and observing his demeanour.

Disputes of fact

According to the Room Hire case, a dispute of fact might arise in the following situations:

where the respondent denies all the material allegations made by the various deponents on behalf of the applicant, and furnishes positive evidence by deponents or witnesses to the contrary;
"confession and avoidance," where the respondent admits the allegations (or evidence) in the applicant’s founding or supporting affidavit, but raises other facts which in turn are denied by the applicant;
where the respondent concedes that he has no knowledge of the main facts alleged by the applicant, but denies them and orders the applicant to the proof thereof, and furnishes (or undertakes to furnish) evidence to indicate that the applicant or the applicant’s deponents are prejudiced, incredible or otherwise unreliable, and that certain facts upon which the applicant or the deponents rely to prove the main facts are also unreliable; or
where the respondent states that he can lead no evidence himself, or by others, to dispute the truth of the applicant’s allegations, but puts the applicant to the proof thereof by oral evidence subject to cross-examination.

Resolving a dispute of fact

Bearing in mind the disadvantage to which the respondent is put in an application for final relief, a court is not permitted, where there are genuine disputes of fact on material issues, to decide the matter on a mere balance of probabilities, as would be done in an action. The test is more stringent: The applicant will only succeed if the facts as stated by the respondent, together with those facts in the applicant’s affidavit which have been admitted by the respondent, justify the order sought. The matter is therefore decided essentially on the respondent’s version.
A court will not permit a respondent to defeat the applicant’s application by a mere denial in general terms. In suitable cases, it will adopt a “robust, common sense approach” to disputes of fact. Where, however, the court is unable to decide the application on the papers, generally there are three avenues open to it:

Where an application cannot properly be decided on affidavit, a motion court may dismiss the application or make such an order as is necessary to ensure a just and expeditious decision.
The court may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact. To that end, it may order any deponent to appear personally, or grant leave for the deponent or any witness.
It may refer the matter to trial with appropriate directions as to pleadings or the definition of issues.

Dismissal of the application

If it appears that the applicant must reasonably have foreseen that a material dispute of fact would arise at the time the application was brought, but the applicant nevertheless proceeded by way of application, the court may dismiss the application with costs. This is perhaps the most drastic course of action open to the court.
Even in such a circumstance, the court is not obliged to dismiss the application. It has a discretion to decide on one of the other steps mentioned below, and in addition to penalise the applicant with a costs order.

Presentation of oral evidence

The court may order that oral evidence be heard to decide a specific factual dispute. This procedure is applicable only where the dispute is of limited or narrow scope, not where it is extensive and complicated.
If the court is of the opinion that it is proper to hear oral evidence, the court may determine which persons to call as witnesses; it may also determine the issues in respect of which oral evidence must be presented. Apart from calling the deponents of the affidavits to give oral evidence, the court may also order that any other person be called as a witness.

Referral to trial

If the factual dispute is extensive or complicated, the court may refer the matter to trial. The result is that the application is converted into a trial action, where oral evidence may be led.
The court may give such direction regarding the pleadings and the determination of the issues as it deems proper. For example, the court may order that the notice of motion serve as a summons, and that other pleadings be delivered. The matter will proceed as if it had been started as an action.
The affidavits here will play no role in the ultimate decision, other than perhaps with regard to credibility. The customary order made when referring an application to trial would typically read as follows:

The application is referred to trial.
The notice of motion shall stand as a simple summons.
The notice of intention to oppose shall stand as a notice of intention to defend.
The applicant shall deliver a declaration within twenty days of this order.
Thereafter the rules relating to actions shall apply.
The costs to date shall be reserved for determination by the trial court (or shall be paid by the applicant).

Notice to respondent

It is a fundamental policy that the respondent ought to be afforded the opportunity of placing his version before the court, and of being heard. Therefore, unless there are exceptional circumstances, the notice of motion and the founding affidavit (together with all annexures) must be served on the respondent in the manner provided for in the Rules.
There are exceptions to this general rule.

Exceptions to the general rules

Form of notice of motion

Ex parte applications

An ex parte or unilateral application is an application in which the applicant is the only party before the court. As a rule, in fact, when only one person is before the court as a litigant, the application procedure is always appropriate, as the possibility of a dispute of fact does not exist.
The ex parte application may be used in the following cases:

when the applicant is the only person with an interest in the case (for example, where application is made for the voluntary surrender of an insolvent estate, or for admission as an attorney or advocate);
when the application is merely a preliminary step in the matter (for example, where application is made to sue by means of substituted service); and
where urgent or immediate relief is required, and where notice to the respondent, and the delay which such notice may occasion, would result in prejudice to the applicant (for example, where the applicant applies to attach a vehicle in the other party’s possession which the other party plans to remove from the country).

In accordance with the audi alteram partem principle, and as a general rule, justice and fairness demand that the court should not make an order against any person unless the affected person has received proper notice of the legal relief sought. The ex parte application represents a departure from this rule. The courts will examine such an application very carefully, that the interests of affected persons may be properly safeguarded.
There are two important principles for ensuring fairness to the party against whom relief is sought in terms of an ex parte application:

The applicant is obliged to observe the utmost good faith in placing all material facts before the court. If the court makes an order pursuant to an ex parte application, and it subsequently emerges that material facts, which might have influenced the decision of the court, were not disclosed, the court has the discretion to set the order aside on the grounds of non-disclosure. This applies irrespective of whether the failure to disclose was mala fide or negligent.
If another person’s interests stand to be affected by an order in an ex parte application, the court will not grant a final order without giving the respondent the opportunity to present a defence. The court will merely grant a provisional order with a return date, known as a rule nisi. After the order has been provisionally granted, it is then served on the respondent. The rule nisi calls on the respondent to appear before the court on a certain date to furnish reasons for the provisional order not to be confirmed and made final. The respondent must then deliver an answering affidavit, unless the respondent relies solely on a point of law. The audi alteram partem rule is therefore complied with by affording the affected party the opportunity to state a case on the return day.

Interlocutory applications

Interlocutory applications, and other applications incidental to pending proceedings, are brought on notice, usually supported by an affidavit.
Service of such an application need not be effected by the sheriff; it is usually effected by the attorney’s messenger.
In practice, Form 2 is adapted for this purpose by reflecting on it both the applicant and the respondent, and by addressing it to both the Registrar and the respondent.

Urgent applications

In certain circumstances, a party may need to obtain relief on an urgent basis; proper compliance with the rules and time limits may not be possible. Consequently, HCR 6(12) provides that the court may dispense with the forms and service provided for in the rules, and may dispose of the matter at such a time and place, and in such manner and in accordance with such procedure (which shall, as far as practicable, be in terms of the rules), as it deems fit.
It is important to note that, when a matter is urgent, it will always be appropriate to proceed by way of application, at least to obtain temporary relief—even though a dispute of fact is anticipated.
Practitioners are not allowed to select any day of the week, or any time of the day (or night), to demand a hearing. Urgency involves

primarily, the abridgement of time periods prescribed by the rules; and,
secondarily, the departure from established filing and sitting times of the court.

Application notwithstanding existence of factual dispute

Notwithstanding a factual dispute, foreseen or foreseeable, the situation may demand that the applicant be afforded urgent relief in the face of a factual dispute.
For example, an applicant whose life is threatened may approach a court for an interim interdict restraining the respondent from assaulting him, despite the fact that the applicant foresees that the respondent in an answering affidavit will deny having made the threat.
The relief sought in such a case is not final, but merely interim. It may be corrected or reversed at a later stage, and is invariably granted pendente lite. For this reason, the test is not as stringent as when final relief is sought; in fact, it favours the applicant.
There are other examples of applications which do not claim final relief, such as applications for rescission and provisional sentence.
It is not, then, for every case in which a factual dispute arises that motion proceedings are excluded.

Notice and service

Although the general rule requires that notice of an application be given to the respondent, there may be exceptional circumstances where notice will thwart the object of the application.
An applicant may contend, for example, that the respondent is in wrongful possession of the applicant’s motor vehicle, and has threatened to destroy it in the event of the applicant’s proceeding to court for its recovery. In such a case, the applicant would contend that, having received notice of the application, the respondent might very well destroy or dispose of the vehicle without a trace, prior to the applicant’s obtaining an order from the court for the return of the vehicle. The applicant will accordingly seek an order on an interim basis, directing that, pending the determination of the application, the vehicle be preserved.
There are instances, then, where the circumstances may justify the court in dispensing with service.

Appointment of curator

If it is suspected that a person may be of unsound mind, and as such incapable of managing his own affairs, proceedings may be instituted for a declaration by the court to that effect, and for the appointment of curators to his person and property. The court may also on application declare a person to be a prodigal, and appoint a curator to his estate.
There are three main classes or categories of persons who must be assisted by curators ad litem in actions or proceedings brought by or against them:

lunatics (including any persons who, by reason of mental disability or disorder, cannot manage his own affairs);
minors who have no guardians; and
interdicted or declared prodigals.

Persons of unsound mind

Who may institute proceedings?

Proceedings are initiated by application to court by any person (a relative, for example, or a guardian; in certain circumstances, a friend) who has locus standi and an interest in the matter. The State may bring an application for reimbursement of future expenses incurred in the maintenance of a person who is detained in a public asylum.

How proceedings must be initiated

Any person who desires to make an application to the court for an order declaring another person (“the patient”) to be of an unsound mind, and as such incapable of managing his own affairs, and appointing a curator to the person or property of the patient, must in the first instance apply to court for the appointment of a curator ad litem to the patient.
The rule shows clearly that the appointment of such curator is aimed at a declaratory order. It is the request for this order which distinguishes the procedure from that under the common law, where the person concerned suffers from a physical disability only.
An application to court for the appointment of a curator ad litem to a patient must be brought ex parte, and must set forth fully

the grounds on which the applicant claims locus standi to make the application;
the grounds on which the court is alleged to have jurisdiction;
the patient’s age and sex, full particulars of his means, and information as to his general state of physical health;
the relationship (if any) between the patient and the application, and the duration and intimacy of their association (if any);
the facts and circumstances relied upon to show that the patient is of unsound mind and incapable of managing his affairs; and
the name, occupation and address of the respective persons suggested as curators to the patient’s person and/or property, and a statement that these persons have been approached and have intimated that, if appointed, they would be willing to act in those capacities.

The application must, as far as possible, be supported by the following:

There must be an affidavit by at least one person to whom the patient is well-known, containing such facts and information as are within the deponent’s own knowledge concerning the patient’s mental condition. If the deponent is related to the patient or has any personal interest in the terms of any order sought, full details of that relationship or interest must be set forth in the affidavit.
There must be affidavits by at least two medical practitioners, one of whom must be an alienist, who have conducted recent examinations of the patient with a view to ascertaining and reporting on his mental condition. The affidavits must state all the facts observed by their opinions in regard to the nature, extent, and probable duration of any mental disorder or defect so observed, and their reasons for those opinions; and whether or not the patient is in their opinion incapable of managing his affairs. The medical practitioners must, as far as possible, be persons unrelated to the patient, and without any personal interest in the terms of any order sought.