As litigation attorneys, one of the first substantial decisions to be made when taking on a new litigious instruction, assuming that the client is the party launching the legal proceedings, is inevitably whether the matter should commence via action, in other words via the issuing of summons, or via application, through the delivery of a notice of motion and founding affidavit. This decision, made in consultation with the client, essentially nails the initiating party’s colours to the proverbial mast and will directly dictate the potential outcome and/or relief available to the client as well as the timeframe and cost associated with obtaining this relief.

In order to draw a clear dividing line between the two processes, which division is simultaneously simple and complex, it has been commonly accepted that the core difference between these courses of action is as follows:

  1. Legal proceedings instituted by of an action are brought via the issuing of summons and these proceedings are ultimately decided at trial through the exchange of pleadings and the presentation of both documentary and oral evidence.
  2. Legal proceedings instituted by way of application are brought through the issuing of a notice of motion and founding affidavit and the further exchange of affidavits between the parties leading up to the hearing of the matter in open court. Applications are heard free of oral evidence and the evidence led in such proceedings are restricted to written and/or documentary evidence or submissions contained in the sworn affidavits filed by the parties to the litigation and the attachments to these affidavits.

The decision on which course of action to follow is crucial and a misstep in this initial phase of the case could prove fatal to a client’s prospects of success should the incorrect choice be made.

Generally, seasoned litigants understand not only the technical legal disparities between the two processes outlined above, but also grasp the fundamentally different practical implications of the chosen procedure. Action proceedings, given the lengthy pre-trial procedures laid down by South African court rules and the congestion of most local court rolls, not only take much longer to be heard and decided, but also tend to have a more significant impact on the pockets of the parties involved. Applications on the other hand offer a more expeditious resolution at a reduced cost. The obvious enticement for litigants when considering the above is to prefer proceedings brought on application for these reasons. As with most things, however, this decision carries its own inherent dangers and confirms the adage that ‘every rose has its thorn’.

Actions are the best option in matters where the client, and his/her/its attorneys, believe that a material dispute of fact is present which can only be properly resolved by way of oral evidence. In the event that a litigant elects to proceed via application where a material dispute of fact requiring oral evidence is evident, the presiding judge will effectively be precluded from hearing the matter on application and is obliged to follow one of these options when faced with these circumstances:

  1. To decide the issues ultimately on the respondent’s version in the event that the applicant seeks final relief in terms of the Plascon-Evans rule. In the circumstances where the application seeks interim relief, the court has the discretion to dismiss the application; or
  2. To refer certain aspects or issues in the application to oral evidence in the event that the issues are clear and can be done away with expeditiously via the presentation of oral evidence; or
  3. May refer the matter to trial by ordering that the founding and answering affidavits filed with the court in an application shall serve effectively as an applicant/plaintiff’s declaration and the respondent/defendant’s plea at trial. The court will then determine the process and timelines applicable to enrolling the matter for hearing at trial.

Evidently, a blunder in picking the correct port of call may be ruinous to a party’s prospects in any matter despite the objective strength of a client’s case. As the likelihood exists that a court may rule that an application incorrectly brought must be heard as a trial matter, as per point 3 immediately above, one of the main underlying reasons for proceeding via application, being the cost-effectiveness of this option, would be done away with as the applicant would be responsible not only for his/her/its legal costs in the application but also those of the opposition and the additional expense of moving the matter to trial.

The importance of prudently and properly selecting the appropriate forum for the hearing of any legal dispute clearly entails much more than simply skipping down the path of least resistance.

Please feel free to speak to any of our litigation attorneys for advice regarding the correct forum you may need to utilise.

This article should not be used or relied upon as professional advice and is for information and marketing purposes. Please consult with one of our attorneys should you need legal assistance relating to this area of law.