Notice of Motion – Long Form – Magistrates’ Court – Form 1A of Annexure 1 of the Magistrates’ Court Rules – Magistrates’ Court Rule 55(1)
Every application must be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief. The notice of motion must be addressed to the party or parties against whom relief is claimed and to the registrar or clerk of the court. Where it is necessary or proper to give any person notice of an application, the notice of motion must also be addressed to and served on such person.
The notice of motion in every application other than interlocutory and other applications incidental to pending proceedings or one brought ex parte must correspond substantially with Form 1A of Annexure 1.
Copies of the notice and all annexures thereto must be served upon every party to whom notice is to be given.
In a notice of motion the applicant must-
– appoint a physical address, which address must, in places where there are three or more attorneys or firms of attorneys practising independently of one another, be within 15 kilometres of the office of the registrar or clerk of court, at which notice and service of all documents in such proceedings will be accepted;
– state the applicant’s postal, facsimile or electronic mail addresses where available; and
– set forth a day, not less than five days after service thereof on the respondent, on or before which such respondent is required to notify the applicant, in writing, whether he or she intends to oppose such application, and state that if no such notification is given the application will be set down for hearing on a stated day, not being less than 10 days after service on the respondent of the notice.
If the respondent does not, on or before the day mentioned for that purpose in a notice of motion, notify the applicant of his or her intention to oppose, the applicant may place the matter on the roll for hearing by giving the registrar or clerk of the court notice of set down five days before the day upon which the application is to be heard.
Any party opposing the grant of an order sought in a notice of motion must-
– within the time stated in the notice, give applicant notice, in writing, that he or she intends to oppose the application, and in such notice appoint an address, which address must, in places where there are three or more attorneys or firms of attorneys practising independently of one another, be within 15 kilometres of the office of the registrar or clerk of the court, at which he or she will accept notice and service of all documents, as well as such party’s postal, facsimile or electronic mail addresses where available;
– within 10 days of notifying the applicant of his or her intention to oppose the application, deliver his or her answering affidavit, if any, together with any relevant documents; and
– where it intends to raise questions of law only, deliver notice of intention to do so, within the time stated above, setting forth such question.
After receipt of a notice of intention to oppose, the applicant must lodge forthwith with the registrar or clerk of the court the original notice of motion plus annexures thereto and, where applicable, the return of service.
Within 10 days of the service upon him or her of the affidavit and documents, the applicant may deliver a replying affidavit.
The court may in its discretion permit the filing of further affidavits.
Where no answering affidavit, or notice of intention to oppose, is delivered within the required period, the applicant may within five days of the expiry thereof apply to the registrar or clerk of the court to allocate a date for the hearing of the application.
Where an answering affidavit is delivered the applicant may apply for an allocation of the date for the hearing of the application within five days of the delivery of his or her replying affidavit or, if no replying affidavit is delivered, within five days of the expiry of the period for delivering same, and where such notice is delivered the applicant may apply for such allocation within five days after delivery of such notice.
If the applicant fails so to apply for allocation within the appropriate period , the respondent may do so immediately upon the expiry thereof.
Notice in writing of the date allocated by the registrar or clerk of the court must be delivered by applicant or respondent, as the case may be, to the opposite party not less than 10 days before the date allocated for the hearing.
Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as it deems fit with a view to ensuring 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 and to that end may order any deponent to appear personally or grant leave for that person or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.
To view the rule go to Department of Justice – Magistrates’ Court Rules
For more go to the South African Legal Information Institute (SAFLII)
