In South African civil procedure, the distinction between application and action procedures is fundamental. Here’s a detailed explanation of the differences:
Action Procedure
- Nature of the Dispute:
- Factual Disputes: Action procedures are used when there are substantial disputes of fact that need to be resolved through oral evidence and cross-examination.
- Initiation:
- Summons: The process is initiated by issuing a summons. The plaintiff (the party bringing the action) serves the summons on the defendant (the party being sued)3.
- Stages:
- Pleadings: The parties exchange pleadings, which include the plaintiff’s particulars of claim, the defendant’s plea, and any subsequent replies or counterclaims.
- Discovery: Both parties disclose documents relevant to the case.
- Trial: The case proceeds to trial, where evidence is presented orally, witnesses are examined and cross-examined, and the judge decides based on the evidence presented.
- Duration:
- Longer Process: Action procedures typically take longer to resolve due to the need for a trial and the various stages involved.
Application Procedure
- Nature of the Dispute:
- Legal or Minimal Factual Disputes: Application procedures are used when the dispute is primarily legal or when the facts are not in significant dispute and can be resolved on the papers (affidavits) alone.
- Initiation:
- Notice of Motion: The process is initiated by a notice of motion supported by affidavits. The applicant (the party bringing the application) serves these documents on the respondent (the party being sued).
- Stages:
- Affidavits: The parties exchange affidavits, which include the founding affidavit (by the applicant), the answering affidavit (by the respondent), and the replying affidavit (by the applicant)3.
- Hearing: The case is heard in motion court, where the judge reviews the affidavits and hears legal arguments from both parties. There is generally no oral evidence or cross-examination3.
- Duration:
- Quicker Resolution: Application procedures are usually quicker than action procedures because they do not involve a trial and are resolved based on written submissions.
Summary
| Aspect | Action Procedure | Application Procedure |
| Nature of Dispute | Substantial factual disputes | Legal disputes or minimal factual disputes |
| Initiation | Summons | Notice of Motion and Affidavits |
| Stages | Pleadings, Discovery, Trial | Affidavits, Hearing |
| Duration | Longer | Quicker |
| Example | Starting a matter where money is owed for goods sold and delivered or a divorce matter | Ex Parte ApplicationsApplication for substituted service |
Understanding these differences is crucial for legal practitioners to choose the appropriate procedure based on the nature of the dispute and the desired outcome.
You can find more information at the following links: SAFLII and Gittins Attorneys.
