relief sought in the notice of motion, under the guise of an unhelpful explanation of “the purpose of the application”, as well

as a number of
argumentative comments on rule 53 and the case that was being made under the Act. In argument I put to Mr Berlowitz, who appeared for
Cleverlad, that, stripped of its argumentative matter, the answering affidavit would be reduced to approximately a quarter of its size. Mr
Berlowitz conceded the unnecessary expanse but offered his estimate of one­third of non­argumentative matter.
[16] A statement appeared in the introductory paragraphs of the answering affidavit made by Cleverlad’s director, that where he made legal
submissions, he did so on the strength of legal advice having been obtained by him on behalf of Cleverlad from its legal representatives in
the application. A statement of such nature in motion proceedings has become increasingly popular in practice in the last few years. Its

RS 22, 2023, D1 Rule 6­14

purpose is to disclaim responsibility of the deponent for later argumentative matter which serves to inflate the papers and of which the
deponent has no comprehension. However impressive this might be to a lay client in justifying a legal representative’s fee for voluminous
affiavits, I find this practice disturbing in at least four respects. First, by their very nature these submissions have neither evidential content
nor probative value; as argumentative matter they have no place in affidavits. It is not for nothing that rule 6(1) of the Uniform Rules of
Court provides for an application to be supported by an affidavit “as to the facts”. Secondly, the argumentative submissions that follow are
expressly admitted hearsay and, as such, inadmissible. Thirdly, the submissions amount to legal opinions on matters upon which the court is
required to decide. Even expert legal opinion on matters of domestic law is neither necessary nor admissible (South Atlantic Islands
Development Corporation Ltd v Buchan 1971 (1) SA 234 (C) at 237C–F; and Prophet v National Director of Public Prosecutions 2007 (6) SA 169
(CC) (2006 (2) SACR 525; 2007 (2) BCLR 140; [2006] ZACC 17) para 43). Lastly, there is the aspect of professional legal privilege. It is well
established that a communication made in confidence between a client, or an agent for that purpose, and a legal professional in such
professional capacity, for the giving or receiving of legal advice, attracts professional legal privilege unless the purpose of the advice is to
facilitate the commission of a crime or fraud (see generally Three Rivers District Council and Others v Bank of England (No 6) [2004] UKHL 48
([2004] 3 WLR 1274; [2005] 1 AC 610); and Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of
Public Prosecutions and Others 2009 (1) SA 1 (CC) (2008 (2) SACR 421; 2008 (12) BCLR 1197; [2008] ZACC 13) paras 183–185). However,
the privilege may be waived. In this sense, it is not only a waiver in the contractual sense of a decision to abandon a right with full
knowledge thereof (Laws v Rutherfurd 1924 AD C 261 at 263). It is rather an imputed waiver by implication; one which arises from the
element of publication of the privileged content, or part thereof, which can serve as a ground for the inference of an intention no longer to
keep the content secret (Ex parte Minister van Justisie: In re S v Wagner 1965 (4) SA 507 (A) at 514D). A waiver by implication is concerned
not so much with an ascertainment of the subjective implied intention of the party relinquishing the privilege, but fairness and consistency. It
is where the conduct in disclosing part of a confidential communication touches a point that fairness and consistency require disclosure of
the whole, irrespective of whether or not there was an intention to have this result (Wigmore On Evidence 3 ed vol 8, para 2327;
Kommissaris van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051 (SCA) at 1061B–C). This test of imputed or implied waiver is well
illustrated in the context of the litigation privilege in Competition Commission of South Africa v Arcelormittal South Africa Ltd and Others 2013
(5) SA 538 (SCA) ([2013] ZASCA 84) paras 33–34 and 37. Although the mere disclosure of the fact of a privileged communication, or its
existence, is not sufficient to justify an imputed waiver of its contents, where its substance is disclosed to secure an advantage in
proceedings, the High Court of Australia has found that this will reach the point that fairness and consistency require disclosure of the whole
of the communication and a concomitant loss of privilege (Mann v Carnell (1999) 201 CLR 1; Osland v Secretary to the Department of Justice
(2008) 234 CLR 275). Where parties in motion proceedings disclose the substance of otherwise privileged legal advice from their legal
representatives, in the form of submissions to advance their case, it is difficult to comprehend that fairness and consistency would not
permit them to “cherry pick” those parts of the advice that they received without being required to disclose the whole of the advice.’

RS 25, 2024, D1 Rule 6­15

The procedure of adducing evidence by way of hearsay evidence in the main affidavit, supported by so­called ‘confirmatory affidavits’ by
the witnesses who should have provided the necessary details, but who merely sought to confirm what was said in the main affidavit
‘insofar as reference [has been] made to me’, was criticized by the Supreme Court of Appeal and described as a ‘slovenly practice’. 8 1
See further the notes to rule 6(15) below.
The rule is that the necessary allegations upon which the applicant relies must appear in the founding affidavit, 8 2 as the applicant will
not generally be allowed to supplement the founding affidavit by adducing supporting facts in a replying affidavit. 8 3 See further the notes
to subrule (5)(e) s v ‘Deliver a replying affidavit’ below.

RS 25, 2024, D1 Rule 6­16

In Booth and Others NNO v Minister of Local Government, Environmental Affairs and Development Planning 8 4 a submission made on
behalf of the respondent that a contention made on behalf of the applicant was not open to him on the papers as the point had not been
taken in the founding affidavit or even in the replying affidavit, was upheld, the court adding that the point was not even mentioned in the
heads of argument filed on behalf of the applicant. 8 5
The source of the deponent’s information must be given. In the case where the application is brought personally, there is an initial
assumption in most cases that the facts are within the applicant’s knowledge, while the converse is true where it is brought in a
representative capacity. In the latter case the affidavit usually contains a statement that the facts are within the deponent’s
knowledge, 8 6 but such a statement is not essential 8 7 nor is it conclusive. 8 8 Each case has to be decided on its own facts and
circumstances. Thus, in FirstRand Bank Ltd v Kruger 8 9 the key issue in an unopposed application, brought on long­form notice of motion,
by a financial institution as credit provider against a defaulting credit receiver in relation to a credit agreement entered between the
parties and subject to the National Credit Act 34 of 2005 (‘the NCA’), was whether the deponent to the founding affidavit had set out
enough facts to demonstrate personal knowledge. The only basis upon which the deponent was claiming personal knowledge was by virtue
of the position he held as commercial recoveries manager of the applicant; not that he had been involved in any attempt to recover the
alleged debt or that he had accessed any of the bank’s records. Information obtained from other individuals and on which he relied

RS 25, 2024, D1 Rule 6­17

was not confirmed by affidavits attested to by those persons. It was found 9 0 that ‘the deponent, while having the trappings of authority
in the department, does not claim to have been personally involved in the process of recovering the debt, let alone having personally
accessed the bank’s records, accounts or other relevant documents . . . the deponent left it unclear as to what he personally did and
what information was provided to him by others or from where they in turn might have sourced it’. After addressing the impact of s 3(1) of
the Law of Evidence Amendment Act 45 of 1988 in regard to the admissibility of hearsay evidence, and finding of assistance a body of
case law dealing with applications for summary judgment, 9 1 the court concluded: 9 2
‘Under the exceptions to the hearsay rule the inherent difficulties of producing every individual who dealt with the credit receiver and made
each entry reflected in the account in question would in my view, together with the other factors already mentioned regarding probity and
reliability, entitle an applicant credit grantor seeking judgment in an unopposed matter to rely on —
(a) the evidence of a person who exercises custody and control of the documents in issue to introduce them into evidence through
the founding affidavit provided such allegation is made, or appears from the contents of the affidavit as a whole, and provided the
agreements are attached and are alleged to be true copies. This would usually be a bank manager or an official holding the
position of a recoveries manager;
(b) the evidence of a person who has personal knowledge of the current status of the credit receiver’s account by reason of having
access to the account and being involved in the present management of the account or collection process, in respect of the
allegations contained in the founding affidavit regarding the current outstanding balance. This would be subject to the terms of the
agreement which may permit a certificate of indebtedness to constitute prima facie proof, provided it is signed by a designated
official at the financial institution and provided further that the court is otherwise satisfied that such person would, in the ordinary
course, have personally accessed the records, accounts and other relevant records of the respondent and provided the certificate
is otherwise reliable. See generally Saldulker JA in Rees 9 3 para 14; Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at
424E–F; and Wallis J (at the time) in Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC and Another 2010 (5) SA 112
(KZP) para 13, approving the requirement in Standard Bank of SA Ltd v Secatsa Investments (Pty) Ltd and Others 1999 (4) SA 229
(C) at 235A — that the deponent at least has personal knowledge of certain of the relevant facts;
(c) the evidence of a person who positively attests that notice was properly sent to the respondent under either s 129(1) or s
86(10) of the NCA.’
If an affidavit sets out facts based on hearsay information, the deponent must state that the allegations of fact are true to the best of
his information, knowledge and belief and state the basis of his knowledge or belief; 9 4 and failure to state the source of the information or
grounds of belief in the original affidavit is an irregularity that cannot be cured by stating them in a replying affidavit. 9 5 It does not follow,
however,

RS 25, 2024, D1 Rule 6­18

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The admission of hearsay evidence is governed by s 3 of the Law of Evidence Amendment Act 45 of 1988 which gives the court a wide
 If an affidavit sets out facts based on hearsay information, the deponent must state that the allegations of fact are true to the best of
his information, knowledge and belief and state the basis of his knowledge or belief; 9 4 and failure to state the source of the information or
grounds of belief in the original affidavit is an irregularity that cannot be cured by stating them in a replying affidavit. 9 5 It does not follow,
however,

RS 25, 2024, D1 Rule 6­18

that the court is obliged to accept such hearsay evidence, even if the source and the grounds for the belief are furnished. 96

The admission of hearsay evidence is governed by s 3 of the Law of Evidence Amendment Act 45 of 1988 which gives the court a wide
discretion whether or not to admit hearsay evidence. 9 7 As to hearsay matter in affidavits in urgent applications, see also the notes to
subrule (12)(a) s v ‘Urgent applications’ below.
Secondary evidence as to documents is inadmissible. 98

While it is not necessary to annex the original documentary evidence to affidavits filed in the office of the registrar in motion
proceedings, the originals must be available for inspection in court when the matter is called, not only at the request of the other side,
but also when required by the court. 9 9
It is not open to an applicant or a respondent to merely annex to his affidavit documentation and to request the court to have regard
to it. What is required is the identification of the portions thereof on which reliance is placed and an indication of the case which is sought
to be made out on the strength thereof. 100 It cannot be expected of a party

RS 25, 2024, D1 Rule 6­19

to trawl through lengthy annexures to the opponent’s affidavit and to speculate on the relevance of facts contained in such
annexures. 101 Trial by ambush cannot be permitted. 102 It is also improper for an applicant simply to attach a lengthy document to his
affidavit and then proceed to quote therefrom without any indication as to which paragraphs are indeed being quoted. 103 It cannot be
expected of the court, in preparation for the case, to struggle through what is often a quagmire of fine print to check whether the quotes
are in fact correct. 104
An inordinate delay in filing an answering affidavit, the regurgitation of statutory provisions without much attempt to explain how these
impact on the case, and the annexing of documents to the affidavit without properly identifying those portions on which reliance would be
placed are considerations justifying a costs order against an organ of state. 105
The affidavits should not unnecessarily burden the record of the application proceedings. They should therefore (a) promote orderly ventilation
of the real issues; (b) not contain irrelevancies; and (c) not be unnecessary prolix. 106
In Hlazi v Buffalo City Metro Municipality 107 the court, referring to Patmore v Patmore 108 and Visser v Visser, 109 stated:

RS 25, 2024, D1 Rule 6­20

‘[77] An affidavit containing unnecessary evidence has been held to constitute sufficient grounds to disallow costs to a successful party. Inordinate
prolixity in affidavits has been met with displeasure by the courts and rightly so.’
In terms of rule 67A(2)(c) the court may, in considering all relevant factors when awarding costs, have regard to unnecessary or prolix drafting
and unnecessary annexures.
An applicant is entitled to make any legal contention which is open to him on the facts even though it was not specifically raised or relied on
in the affidavits supporting the application. 110 This principle is subject to the proviso that its application should not be unfair to the
respondents. 111 This element is often subsumed under the further requirement that the principle can be applied only if all the relevant facts are
before the court. 112
Subrule (2): ‘Necessary or proper to give any person notice of such application.’ Notice of an application must, for example, be given to
the Master where it is necessary for him to report in applications for voluntary surrender, sequestration, rehabilitation and other matters under
the Insolvency Act 24 of 1936; 113 in applications for the winding­up of companies; 114 in applications for the winding­up of close
corporations; 115 and in applications affecting deceased estates or the property of minors or other persons under legal
disability. 116 Amendments to

RS 25, 2024, D1 Rule 6­21

the Insolvency Act 24 of 1936 and the Companies Act 61 of 1973 117 also require that notice of an application for sequestration or winding­up,
as the case may be, must be given to every registered trade union, the employees, the South African Revenue Service 118 and the debtor or
the company concerned. See further subrules (9) and (10) of this rule above and the notes to subrule (9) s v ‘A copy of every application . . .
must . . . be submitted to the Master’ below.
In addition it may be necessary or proper to give a person notice of an application, even if no relief is claimed against such person, if the
relief claimed is of such a nature that the rights or interests of the person may be affected by any order the court may make pursuant to the
application. 119 The principles relating to joinder apply in such cases. 120
Subrule (4)(a): ‘Every application brought ex parte.’ The phrase ex parte in this subrule contemplates the situation in which an application
is brought without notice to anyone, either because no relief of a final nature is sought against any person, or because it is not necessary to
give notice to the respondent. 121
An ex parte application is used: 122

(i) when the applicant is the only person who is interested in the relief which is being claimed; 123

(ii) where the relief sought is a preliminary step in the proceedings, e g applications to sue by edictal citation, for substituted service, to
attach to found or confirm jurisdiction;
(iii) where the nature of the relief sought is such that the giving of notice may defeat the purpose of the application, e g an Anton Piller­type
order; 124

RS 25, 2024, D1 Rule 6­22

(iv) where immediate relief, even though it may be temporary in nature, is essential because harm is imminent. In such cases the applicant will
often seek a rule nisi, the application then being in the nature of an ex parte application in terms of this subrule; 125
(v) where certain kinds of applications are customarily brought ex parte. In this regard the local practice of the various divisions of the High
Court differ. Thus, for example, applications for provisional sequestration and winding­up are brought ex parte in the Free State Division of
the High Court, Bloemfontein 126 and in the KwaZulu­Natal Division of the High Court, Pietermaritzburg and Durban; 127 in the Gauteng
Division of the High Court, Pretoria, such applications, unless based upon a nulla bona return, are not brought ex parte. 128
An applicant in an ex parte application must set forth concisely the nature and extent of the claim, the grounds upon which it is based and
upon which the court has jurisdiction to entertain the claim. 129
It has been held 130 that an ex parte application is not the appropriate procedure for the provisional winding­up of a body corporate
established in terms of the Sectional Titles Act 95 of 1986. In such instance there are numerous interested parties who in the ordinary course
would have been entitled to receive notice of the intended application. 131
As a general principle, an interdict to restrain or forbid an intended publication by a journalist must be brought on appropriate notice to the
journalist and not ex parte. 132

RS 25, 2024, D1 Rule 6­22A

Good faith is a sine qua non in ex parte applications. 133 It extends also to legal representatives. 134

If any material facts are not disclosed, whether they be wilfully suppressed or negligently omitted, 135 the court may on that ground alone
dismiss an ex parte application. 136 The court will also not hold itself bound by any order obtained under the consequent misapprehension of the
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true position. 137 Among the factors which the court will take into account in the exercise of its true 138 discretion to grant or deny relief to a
litigant who has been remiss in his duty to disclose, are: 139 the extent to which the rule has been breached; the reasons for the
 RS 25, 2024, D1 Rule 6­22A

Good faith is a sine qua non in ex parte applications. 133 It extends also to legal representatives. 134

If any material facts are not disclosed, whether they be wilfully suppressed or negligently omitted, 135 the court may on that ground alone
dismiss an ex parte application. 136 The court will also not hold itself bound by any order obtained under the consequent misapprehension of the
true position. 137 Among the factors which the court will take into account in the exercise of its true 138 discretion to grant or deny relief to a
litigant who has been remiss in his duty to disclose, are: 139 the extent to which the rule has been breached; the reasons for the

RS 25, 2024, D1 Rule 6­22B

non­disclosure; 140the extent to which the first court might have been influenced by proper disclosure; the consequences, from the point of
doing justice between the parties, of denying relief to the applicant on the ex parte order; and the interest of innocent third parties such as
minor children, for whom protection was sought in the ex parte application. 141 The test is objective. 142
Even though partially successful an applicant may be ordered to pay the costs of the application if he has negligently failed to disclose
material facts. 143 In Schlesinger v Schlesinger 144 an order obtained ex parte was set aside with costs on the scale as between attorney and
client against the original applicant for displaying a reckless disregard of a litigant’s duty to a court in making a full and frank disclosure of all
known facts that might influence the court in reaching a just conclusion. If the failure to disclose is the fault of the attorney acting for a party,
he may be ordered to pay the costs de bonis propriis. 145
After a rule nisi has been discharged by default of appearance by the applicant, the court or a judge may revive the rule and direct that the
rule so revived need not be served again. 146
On the return date of an opposed rule nisi, the court must decide what relief has to be granted based on the evidence adduced by the
parties. Obviously, the evidence is the legally relevant evidence. It is well established that a court should not pronounce upon issues that it is
not called upon to pronounce and that are not properly and fully argued. So much the more when no relief is claimed concerning such issue. It
would be imprudent and inappropriate for a court do to so. 147 It is also well established that because in motion proceedings the papers stand
as the pleadings and evidence, the relevance of the evidence offered is dependent on its cogent connection with the relief being sought as
defined in the notice of motion. 148 According to the circumstances, the court should then either discharge the rule, confirm it, vary it or make
such order thereon as shall seem just to the court. 149
Subrule (4)(a)(i): ‘Supported by an affidavit.’ This subrule, read with subrule (1), makes it clear that every ex parte application must be
supported by an affidavit. See further the notes to subrule (1) s v ‘Supported by an affidavit’ and the notes to subrule (4)(a) s v ‘Every
application brought ex parte’ above.
Subrule (4)(a)(iii): ‘Set forth the form of the order sought . . . as near as may be in accordance with Form 2 of the First Schedule.’
The relief claimed must be adequately set out in the notice of motion. In practice a prayer for ‘further and/or alternative relief’ is usually
included. In Hirschowitz v Hirschowitz 150 Vieyra J held 151 that the ‘prayer for alternative relief is to my mind,

RS 25, 2024, D1 Rule 6­22C

in modern practice, redundant and mere verbiage. Whatever the court can validly be asked to order on papers as framed, can still be asked
without its presence. It does not enlarge in any way “the terms of the express claim”’. In Chao v Gomes 152 Lamont J held that despite the fact
that the prayer for further and/or alternative relief has been held to be mere surplusage, ‘a prayer containing the words and seeking relief in
accordance with them is invariably inserted in every civil process issued as if some magic attached to the words’. 153 The effect of the prayer is
not unlimited. 154 The established position is that:
(a) the prayer can be invoked to justify an order in terms other than that set out in the notice of motion where that order is clearly indicated
in the founding (and other) affidavits and is established by satisfactory evidence on the papers; 155
(b) relief under the prayer cannot be granted if it is substantially different from that specifically claimed, unless the basis therefor has been
fully canvassed, and the party against whom such relief is to be granted has been fully apprised that relief in this particular form is being
sought and has had the fullest opportunity of dealing with the claim for the relief being pressed. 156
In appropriate circumstances the use of a wrong form may be condoned. See the notes to subrule (5)(a) below.

RS 24, 2024, D1 Rule 6­23

Subrule (4)(a): Proviso.

(a) In terms of paragraph (i) of the proviso an ex parte application brought as an urgent application must indicate the basis on which the
application is deemed to be urgent. The application must also indicate the provisions of any law relied upon by the applicant. In terms of
paragraph (iii) of the proviso the provisions of rule 6(12) relating to urgent applications may be applied in so far as is necessary. Rule 6(12)
(b) provides that, apart from setting forth explicitly the circumstances which render the application urgent, the reasons why the applicant
claims that it could not be afforded substantial redress at a hearing in due course must be set forth in the affidavit supporting the
application. The latter requirement is not a requirement under paragraph (i) of the proviso but, having regard to paragraph (iii) of the
proviso and rule 6(12)(b), should, if necessary, be dealt with by an applicant bringing an ex parte application as an urgent one. See also
the notes to subrule (12)(a) s v ‘May dispense with the forms and service provided for in these rules’ below.
(b) In terms of paragraph (ii) of the proviso the application may be brought before a judge in chambers. This is an exception to the general
principle that proceedings in any superior court have to be carried on in open court. 157 It is submitted that this provision should be
applied with restraint and, as a general rule, be reserved for special cases as directed by the judge dealing with the urgent court roll.
(c) As pointed out under (a) above, the provisions of rule 6(12) relating to urgent applications may be applied in so far as is necessary in
terms of paragraph (iii) of the proviso. Rule 6(12)(b) is dealt with in (a) above. Rule 6(12)(a) provides that in urgent applications the court
or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and
in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as it deems fit. Thus,
the court (or judge in chambers) hearing an ex parte application brought as an urgent one may apply rule 6(12)(a) in so far as is
necessary. See further the notes to subrule (12)(a) s v ‘May dispense with the forms and service provided for in these rules’ below.
Should the occasion arise, rule 6(12)(c), which provides that a person against whom an order was granted in such person’s absence in an
urgent application may by notice set down the matter for reconsideration of the order, could be applied in so far as is necessary.

RS 24, 2024, D1 Rule 6­24

Subrule (4)(b)(i): ‘Any person having an interest which may be affected.’ There is nothing inherently wrong or contrary to public policy in
an interested party opposing an ex parte application which has come to his notice fortuitously or by informal notice. This subrule provides for
this very contingency. 158
Subrule (4)(b)(ii): ‘The court hearing the matter may . . . .’ This subrule deals with the powers of the court hearing an ex parte
application, including an ex parte application which is brought as an urgent one, under circumstances where an application to oppose the
application has been made in terms of subrule (4)(b)(i). As to the filing of further affidavits, see the notes to subrule (5)(e) s v ‘May in its
discretion permit the filing of further affidavits’ below.
Subrule (5)(a): ‘As near as may be in accordance with Form 2(a) of the First Schedule.’ The provisions of this subrule are
peremptory 159 but in appropriate circumstances the use of a wrong form may be condoned. The use of Form 2 in circumstances where Form
2(a) is appropriate, will not necessarily result in the notice of motion being a nullity which cannot be condoned. 160
An urgent application is an application in terms of the subrule and Form 2(a) must be used with such adaptation as may be required by the
circumstances of the case. 161 If a matter is ​sufficiently urgent complete deviation from the form may be justified. 162
‘Shall be served upon every party.’ Service of any document initiating application proceedings must in terms of rule 4(1) be effected by the
sheriff. Service by the sheriff is not necessary in interlocutory applications where there is already an attorney of record for the respondent. 163
Subrule
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the subrule for acceptance of notices by and service of documents on the applicant is the one appointed by it within 25 kilometers of the office
of the registrar. In addition, subrule (5)(b)(ii) requires the applicant to state its postal or facsimile addresses, where available. The subrule, and
 circumstances of the case. 161 If a matter is ​sufficiently urgent complete deviation from the form may be justified. 162

‘Shall be served upon every party.’ Service of any document initiating application proceedings must in terms of rule 4(1) be effected by the
sheriff. Service by the sheriff is not necessary in interlocutory applications where there is already an attorney of record for the respondent. 163
Subrule (5)(b)(i): ‘An electronic mail address, if available.’ If an electronic mail address is not available the only other address allowed by
the subrule for acceptance of notices by and service of documents on the applicant is the one appointed by it within 25 kilometers of the office
of the registrar. In addition, subrule (5)(b)(ii) requires the applicant to state its postal or facsimile addresses, where available. The subrule, and
subrule (5)(b)(ii), must be read together with rule 4A above, which provides, amongst other things, that service may be effected:
(a) by hand at the physical address for service provided, or
(b) by registered post to the postal address provided, or
(c) by facsimile or electronic mail to the respective addresses provided.
Subrule (5)(b)(iii): ‘Set forth a day, not less than 10 days.’ The period of 10 days in regard to the notification of intention to oppose the
application applies regardless of whether the notice of motion is served within or outside the jurisdiction of the court in which it was
issued. 164 The days are court days and must be calculated in terms of the definition of ‘court day’ in rule 1. Subrule (13) provides that in
applications against the State, etc, the dies allowed must be at least 15 days unless the court has specially authorized a shorter period.
Depending on the circumstances, a failure to state a date by when the notice of intention to oppose the application has to be delivered can
be condoned, even in the absence of an application for condonation. 165

RS 24, 2024, D1 Rule 6­25

Failure to allow for the dies prescribed by the rules may be condoned 166 and in urgent applications the court may in terms of rule 6(12)
dispense with the time periods prescribed in the rules.
The provisions regarding dies contained in this subrule do not apply to an application for a rule nisi since such an application (even on notice)
is in the nature of an ex parte application in terms of rule 6(4). 167
‘Will be set down for hearing on a stated day.’ This subrule ensures that a respondent is given notice of when the application will be heard.
Requiring notice of a stated day is not a formalistic application of procedural rules. The subrule, whilst procedural in nature, protects a
fundamental principle of fairness — that generally a person be afforded an opportunity to be heard before a court grants any relief against
it. 168 An omission to set out a stated day is fatal to the application. 169 A subsequent notice of set down cannot cure the defect. 170 A
sensible order is to postpone the application in order for the applicant to comply with the subrule. 171
‘Provided that.’ In terms of the first proviso to this subrule the days between 21 December and 7 January, both inclusive, shall not be counted
in the time allowed for the delivery of a notice of intention to oppose or of any affidavit. 172 In terms of the second proviso to this subrule the
first proviso does not apply to urgent applications brought under rule 6(12) and applications brought under rule 43.
Subrule (5)(d)(i): ‘An electronic mail address, if available.’ If an electronic mail address is not available the only other address allowed by
the subrule for acceptance of notices by and service of documents on the person who intends to oppose the application is the one appointed
by such person within 25 kilometers of the office of the registrar. The subrule, however, in addition, requires the person who intends to oppose
the application to state such person’s postal or facsimile addresses, where available. The subrule must be read together with rule 4A above,
which provides, amongst other things, that service may be effected:
(a) by hand at the physical address for service provided, or
(b) by registered post to the postal address provided, or
(c) by facsimile or electronic mail to the respective addresses provided.

RS 24, 2024, D1 Rule 6­26

Subrule (5)(d)(ii): ‘Within fifteen days of notifying the applicant of intention to oppose the application.’ Form 2(a) has been
amended 173 and the wording has been brought into line with that of the subrule. 174
If an answering affidavit is not delivered within the stipulated fifteen­day period, the applicant may within five days after the expiry of such
period apply to the registrar, in terms of rule 6(5)(f)(i), to allocate a date for the hearing of the application.
As a general rule, if an answering affidavit is delivered out of time, an extension of time or condonation should be sought 175 unless there is
an agreement between the parties. 176 This subrule, however, does not state that an answering affidavit which is delivered late is pro non
scripto without an application for an extension of time or for condonation. 177 If no prejudice is caused to any party and it is in the interests of
justice that the answering affidavit be taken into account, as would, for example, be the case where the applicant does not object to the
answering affidavit in terms of rule 30 and delivers a replying affidavit, the court should allow the affidavit in order to decide the case
unfettered by technicalities. 178
Notice of mediation. A respondent must, when delivering a notice of intention to oppose an application, or at any time thereafter, but not later
than the delivery of answering affidavit, serve on each applicant or the applicant’s attorneys, a notice indicating whether such respondent
agrees to or opposes referral of the dispute to mediation. 179 The notice must be substantially in accordance with Form 27 of the First Schedule
and must clearly and concisely indicate the reasons for the respondent’s belief that the dispute is or is not capable of being mediated. 180 The
notice must not be filed with the registrar. 181 See further the provisions of rule 41A below.
‘Deliver such person’s answering affidavit.’ In terms of rule 1 ‘deliver’ means to ‘serve copies on all parties and file the original with the
registrar’.
The requirements for a respondent’s answering affidavit, which deals with the allegations contained in the applicant’s founding affidavit, are
the same as for that of the applicant. If the respondent’s affidavit in answer to the applicant’s founding affidavit fails to admit or deny, or
confess and avoid, allegations in the applicant’s affidavit, the court will, for the purposes of the application, accept the applicant’s allegations
as correct. 182

RS 25, 2024, D1 Rule 6­27

An affidavit is not a pleading. A respondent cannot content himself in his answering affidavit with bare or unsubstantiated denials 183 unless,
of course, there is no other way open to the respondent and nothing more can be expected of him. 184 A statement of lack of knowledge
coupled with a challenge to the applicant to prove part of his case does not amount to a denial of the averments by the applicant. 185 If the
respondent in such a case requires oral evidence he can apply in terms of subrule (5)(g) to cross­examine witnesses. 186 It is permissible for a
respondent, without advancing evidence of facts under oath, to seek to impugn the veracity of the applicant’s affidavits by examining their
inherent validity or probity in all the proved circumstances. 187 The respondent must, however, eschew ‘indignant argument and expostulation’ in
his answering affidavit. 188
Subrule (5)(d)(iii): ‘Intends to raise any question of law only.’ A respondent should, generally, file his answering affidavit on the merits at
the same time as he takes a preliminary objection on a point of law. 189 Should the respondent choose not to file an answering affidavit in
response to the applicant’s allegations but to take a legal point only, the court is faced with two unsatisfactory alternatives should the
objection fail. The first is to hear the case without giving the respondent an opportunity to file an answering affidavit on the merits, something
the court would be ‘most reluctant’ to do. The second is to grant a postponement to enable the respondent to prepare and file an answering
affidavit, a course which gives rise to an undue protraction of the proceedings and a piecemeal handling of the matter. 190 It has been
suggested 191 that a respondent should be given the opportunity to file an answering affidavit where the court is satisfied that the respondent
was not acting mala fide, where an adequate explanation for the failure to file an affidavit on the merits is given, where justice demands that
the respondent should have further time for the purpose of presenting his case and where the disadvantages to the applicant of a
postponement can be compensated by an appropriate order as to costs.

RS 25, 2024, D1 Rule 6­28

192
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If the respondent relies exclusively on the notice in terms of this subrule, the allegations in the founding affidavit must be taken as
 the respondent should have further time for the purpose of presenting his case and where the disadvantages to the applicant of a
postponement can be compensated by an appropriate order as to costs.

RS 25, 2024, D1 Rule 6­28

A notice in terms of this subrule is not a pleading and cannot be excepted to under rule 23. 192

If the respondent relies exclusively on the notice in terms of this subrule, the allegations in the founding affidavit must be taken as
established facts by the court. 193 The court should not be led astray by the arguments contained in the respondent’s notice in terms of rule
6(5)(d)(ii), and should not accept it uncritically. The court’s central role in the identification of issues is important. It is only after careful
thought has been given to a matter that the true issue for determination can be properly identified. That task should never be left solely to the
parties or their legal representatives. 194
A respondent who files an affidavit on the merits is entitled to make any legal contention open to him on the facts as they appear on the
affidavits, 195 and notice of such legal contention need not be given in terms of the subrule, provided that the raising of the legal contention is
not, in the circumstances, unfair to the applicant. 196 There are a number of cases that recognize the right of a respondent, in spite of having
filed an answering affidavit, to raise an objection in limine that the founding affidavit does not make out a prima facie case for the relief
claimed. 197 In most cases it is suggested that the approach to be adopted by the court in determining the validity of the point in limine is
similar to that adopted in deciding an exception to a pleading in that (a) the founding affidavits alone fall to be considered; and (b) the
averments in those affidavits must be accepted as being true. 198 There is, however, one important difference: unlike pleading, an affidavit
contains evidence and not only allegations of fact, and what might be sufficient in a summons may be insufficient in a founding affidavit. 199 It
has accordingly been suggested that the analogy with the exception procedure may be inappropriate and that the comparison should rather be
with an application for absolution from the instance in a trial action. 200 In Louis Pasteur Holdings (Pty) Ltd v Absa Bank Ltd 201 the Supreme
Court of Appeal held that rule 33(4) does not apply to applications but that the High Court may deal with separate issues in applications in
limine and that it may, in its inherent jurisdiction, apply to them a procedure similar to the one in rule 33(4). This must, however, be done with
circumspection. 202
Subrule (5)(e): ‘Within 10 days . . . deliver a replying affidavit.’ For the late delivery of a replying affidavit, see the notes to rule 6(5)(d)(ii)
s v ‘‘Within fifteen days of notifying the applicant of intention to oppose the application’ above in regard to the late delivery of an answering
affidavit, which apply mutatis mutandis to the late delivery of a replying affidavit.

RS 25, 2024, D1 Rule 6­29

In terms of rule 1 ‘deliver’ means to ‘serve copies on all parties and file the original with the registrar’.
All the necessary allegations upon which the applicant relies must appear in his founding affidavit, as he will not generally be allowed to
supplement the affidavit by adducing supporting facts in a replying affidavit. 203 This is, however, not an absolute rule for the court has a
discretion, which must be exercised judicially, to allow new matter in a replying affidavit in exceptional circumstances, giving the respondent the
opportunity to deal with it in a second set of answering affidavits. 204 In the exercise of this discretion a court should in particular have regard
to: (i) whether all the facts necessary to determine the new matter raised in the replying affidavit were placed before the court; (ii) whether
the determination of the new matter will prejudice the respondent in a manner that could not be put right by orders in respect of postponement
and costs; (iii) whether the new matter was known to the applicant when the application was launched; and (iv) whether the disallowance of
the new matter will result in unnecessary waste of costs. 205 Thus, a distinction must be drawn between a case in which the new material is
first brought to light by the applicant who knew of it at the time

RS 25, 2024, D1 Rule 6­30

when his founding affidavit was prepared and a case in which facts alleged in the respondent’s answering affidavit reveal the existence or
possible existence of a further ground for relief sought by the applicant. In the latter type of case the court would obviously more readily allow
an applicant in his replying affidavit to utilize and enlarge upon what has been revealed by the respondent and to set up such additional ground
for relief as might arise therefrom. 206 The court will, however, not allow the introduction of new matter if the new matter sought to be
introduced amounts to an abandonment of the existing claim and the substitution therefor of a fresh and completely different claim based on a
different cause of action. 207 Nor will the court permit an applicant to make a case in reply when no case at all was made out in the original
application. 208
The right to personal freedom is so fundamental that a detainee should be allowed to seek in motion proceedings an order for his release
based on a founding affidavit in which he alleges that he is being held by the respondent, notwithstanding (and by means of exception to) the
general requirement that an applicant must disclose his complete case in the founding affidavit and the restriction on the number of sets of
affidavits usually accepted in motion proceedings. 209
An applicant is entitled to introduce further corroborating facts by means of a replying affidavit should the contents of the answering
affidavit call for such facts. 210
A replying affidavit should not be unnecessarily prolix or repetitive. Thus, in Minister of Environmental Affairs and Tourism v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd 211 Schutz JA said:
‘There is one other matter that I am compelled to mention — replying affidavits. In the great majority of cases the replying affidavit should be by
far the shortest. But in practice it is very often by far the longest — and the most valueless. It was so in these reviews. The respondents, who
were the applicants below, filed replying affidavits of inordinate length. Being forced to wade through their almost endless repetition when the
pleading of the case is all but over brings about irritation, not persuasion. It is time that the courts declare war on unnecessarily prolix replying
affidavits and upon those who inflate them.’
In Van Zyl v Government of the Republic of South Africa 212 Harms ADP, after quoting Schutz JA, said:
‘A reply in this form is an abuse of the court process and instead of wasting judicial time in analysing it sentence by sentence and paragraph by
paragraph such affidavits should not only give rise to adverse costs orders but should be struck out as a whole . . . mero motu . . .’
Rule 67A(2)(c) provides that in considering all relevant factors when awarding costs, the court may have regard to unnecessary or prolix
drafting and unnecessary annexures.

RS 25, 2024, D1 Rule 6­31

‘May in its discretion permit the filing of further affidavits.’ There are normally three sets of affidavits in motion proceedings. 213 The court
will exercise its discretion in permitting the filing of further affidavits against the backdrop of the fundamental consideration that a matter should
be adjudicated upon all the facts relevant to the issues in dispute. 214 It is for the court to exercise the discretion. The registrar is not
empowered to exercise it and a party cannot take it upon himself to simply file further affidavits without first having obtained the leave of the
court to do so. 215 It has been held 216 that where further affidavits are filed without the leave of the court, the court can regard such
affidavits as pro non scripto. While the general rules regarding the number of sets and proper sequence of affidavits should ordinarily be
observed, some flexibility must necessarily also be permitted. 217 It is only in exceptional circumstances that a fourth set of affidavits will be
received. 218 Special circumstances may exist where something unexpected or new emerged from the applicant’s replying affidavit. 219
It is essentially a question of fairness to both sides as to whether or not further sets of affidavits should be permitted. 220 There should in
each case be a proper and satisfactory explanation, which negatives mala fides or culpable remissness, as to why the facts or information had
not been put before the court at an earlier stage, 221 and the court must be satisfied that no

RS 25, 2024, D1 Rule 6­32

prejudice is caused by the filing of the additional affidavits which cannot be remedied by an appropriate order as to costs. 222 The tactic of
holding back on evidence in the hope that the other side will first commit itself to an untruthful version which can be resoundingly demolished in
further affidavits has attracted the opprobrium of the court in Nick’s Fishmonger Holdings (Pty) Ltd v Fish Diner In Bryanston CC. 223
The factors that the court will consider are the following:
(a) The reason why the evidence was not produced timeously.
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(b) The degree of materiality of the evidence.
 prejudice is caused by the filing of the additional affidavits which cannot be remedied by an appropriate order as to costs. The tactic of
holding back on evidence in the hope that the other side will first commit itself to an untruthful version which can be resoundingly demolished in
further affidavits has attracted the opprobrium of the court in Nick’s Fishmonger Holdings (Pty) Ltd v Fish Diner In Bryanston CC. 223
The factors that the court will consider are the following:
(a) The reason why the evidence was not produced timeously.
(b) The degree of materiality of the evidence.
(c) The possibility that it may have been shaped to ‘relieve the pinch of the shoe’.
(d) The balance of prejudice to the applicant if the application is refused and the prejudice to the respondent if it is granted.
(e) The stage which the particular litigation has reached. Where judgment has been reserved after all the evidence has been heard and,
before judgment is delivered, an applicant applies for leave to place further evidence before the court, it may well be that he will have a
greater burden because of factors such as the increased possibility of prejudice to the respondent, the need for finality, and the
undesirability of a reconsideration of the whole case, and perhaps also the convenience of the court.
(f) The ‘healing balm’ of an appropriate order as to costs.
(g) The general need for finality in judicial proceedings.
(h) The appropriateness, or otherwise, in all the circumstances, of visiting the fault of the attorney upon the head of his client. 224

If the court is satisfied on these points it will generally incline towards allowing the affidavits to be filed. 225

If an affidavit is tendered both late and out of its ordinary sequence, the party tendering it is seeking, not a right, but an indulgence from
the court. Such party must then explain why it is out of time and satisfy the court that in all the circumstances of the case it should be
received. 226
Although it is the accepted modus operandi for parties formally to seek to amplify their affidavits by the filing of further affidavits, there is
some indirect authority that where the parties rely on a statement of agreed issues, they may amplify those issues by way of a separate
agreement instead of filing further affidavits. 227

RS 25, 2024, D1 Rule 6­33

Subrule (5)(f)(i): ‘Within five days of the expiry thereof apply to the registrar.’ If neither an answering affidavit nor a notice referring a
question of law to be raised has been filed, an applicant may in terms of this subrule apply to the registrar to allocate a date for hearing of the
application. An applicant is not entitled to place a matter on the unopposed roll for hearing unless the registrar has on application to him in
terms of the subrule, allocated a date for the hearing of the application. 228 An applicant’s right to set the matter down is not limited to the
five­day period laid down in the subrule. An applicant is entitled to apply to the registrar for a date of hearing on the unopposed roll even after
expiry of the five­day period. 229
Subrule (5)(f)(ii): ‘Apply to the registrar to allocate a date for the hearing of the appli​cation.’ A litigant is not entitled to place a matter
on the opposed roll for hearing unless the registrar has on application to him in terms of the subrule, allocated a date for the hearing of the
application. 230
The applicant is dominus litis and, in selecting a date, need not consult the respondent. 231

Subrule (5)(g): ‘Where an application cannot properly be decided on affidavit.’ ‘Motion proceedings, unless concerned with interim relief,
are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine probabilities’. 232 It is well established that if the material facts are in dispute and
there is no request for the hearing of oral evidence, a final order will only be granted on notice of motion if the facts as stated by the
respondent together with the facts alleged by the applicant that are admitted by the respondent, justify such an order 233 unless, of course,
the court is satisfied that the respondent’s

RS 25, 2024, D1 Rule 6­34

version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is so far­fetched or so clearly untenable or so palpably
implausible as to warrant its rejection merely on the papers. 234
If in such a case the court is satisfied as to the inherent credibility 235 of the applicant’s factual averment, it may proceed on the basis of
the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief
sought. 236

RS 25, 2024, D1 Rule 6­35

The subrule is of wide import and empowers the court, where an application cannot properly be decided on affidavit, to make such order as it
deems fit with a view to ensuring a just and expeditious decision. 237 As a general rule an application for the hearing of oral evidence must be
made in limine and not once it becomes clear that the applicant is failing to convince the court on the papers or on appeal. 238 The
circumstances must be exceptional before a court will permit an applicant to apply in the alternative for the matter to be referred to evidence
should the main argument fail. 239 It is undesirable that a court mero motu orders a referral to oral evidence. 240
The ambit of the subrule is not restricted to cases where oral evidence is called for to resolve disputes of fact. 241 Thus, the subrule also
applies in the case of unopposed motions where ex hypothesi there can be no dispute of fact. The court is, for example, entitled in an
unopposed application for the variation of a custody order to invoke the rule and call for viva voce evidence. 242 A party will, however, not be
allowed to lead oral evidence to make out a case which is not already made out in his affidavits. 243
If a party to an application requires the evidence of a person who is unwilling or unavailable to make an affidavit, the court may be
approached under this subrule for leave to ​subpoena such a person for the purpose of giving viva voce evidence. 244 The court will, however,
refuse such an application where evidence is requested to be given in circumstances which amounted to a fishing expedition. 245
A party who is obliged by law to bring proceedings by way of notice of motion and who seeks to discharge an onus of proof which rests upon
him by asking for an opportunity to adduce oral evidence or to cross­examine deponents to answering affidavits, should not be lightly deprived
of that opportunity. 246

RS 25, 2024, D1 Rule 6­36

If the respondent in his answering affidavit states that he can lead no evidence to dispute the truth of the applicant’s statements and puts
the applicant to the proof thereof, the cross­examination of witnesses may properly be ordered in terms of the subrule. 247
If a respondent made averments which, if proved, would constitute a defence to the applicant’s claim, but is unable to produce an affidavit
containing allegations which prima facie establish that defence, the respondent is entitled to invoke this subrule. 248 It would, however, be
essential in such a situation for the deponent to the respondent’s answering affidavit to:
(a) set out the import of the evidence which is proposed to be elicited (by way of cross­examination of the applicant’s deponents or other
witnesses);
(b) explain why the evidence is not available;
(c) most importantly, satisfy the court that there are reasonable grounds for believing that the defence would be established. 249

The Supreme Court of Appeal has cautioned that a court should be astute to prevent an abuse of its process in such a situation by an
unscrupulous litigant intent only on delay or a litigant intent on a fishing expedition to ascertain whether there might be a defence without there
being any credible reason to believe that there is one. 250
In general terms it can be said that oral evidence in terms of the subrule should be allowed if there are reasonable grounds for doubting the
correctness of the allegations made by the applicant. 251 In reaching a conclusion in this regard, facts peculiarly within the knowledge of the
applicant which cannot for that reason be directly contradicted or refuted by the other party are to be carefully scrutinized. 252
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the nature thereof, will often be the determining consideration in deciding whether viva voce evidence should be ordered. 253
 being any credible reason to believe that there is one. 250

In general terms it can be said that oral evidence in terms of the subrule should be allowed if there are reasonable grounds for doubting the
correctness of the allegations made by the applicant. 251 In reaching a conclusion in this regard, facts peculiarly within the knowledge of the
applicant which cannot for that reason be directly contradicted or refuted by the other party are to be carefully scrutinized. 252
The aforegoing does not, however, detract from the fact that in practice the presence of a dispute of fact in an opposed application, and
the nature thereof, will often be the determining consideration in deciding whether viva voce evidence should be ordered. 253

RS 25, 2024, D1 Rule 6­37

The ‘principal ways’ in which a dispute of fact may arise are set out as follows in Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd: 254
(i) When the respondent denies all the material allegations made by the various deponents on the applicant’s behalf, and produces or will
produce, positive evidence by deponents or witnesses to the contrary. He may have witnesses who are not presently available or who,
though adverse to making an affidavit, would give evidence viva voce if subpoenaed.
(ii) When the respondent admits the applicant’s affidavit evidence but alleges other facts which the applicant disputes.
(iii) When the respondent concedes that he has no knowledge of the main facts stated by the applicant, but denies them, putting the
applicant to the proof and himself gives or proposes to give evidence to show that the applicants and his deponents are biased and
untruthful or otherwise unreliable, and that certain facts upon which the applicant relies to prove the main facts are untrue. The absence
of any positive evidence possessed by a respondent directly contradicting the applicant’s main allegations does not render the matter free
of a real dispute of fact.
In resolving to refer a matter to evidence a court has a wide discretion. 255 In every case the court must examine an alleged dispute of fact
and see whether in truth there is a real 256 dispute

RS 25, 2024, D1 Rule 6­38

of fact which cannot be satisfactorily determined without the aid of oral evidence; if this is not done a respondent might be able to raise
fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant. 257 The test is a stringent one that is not
easily satisfied. 258 Vague and insubstantial allegations are insufficient to raise the kind of dispute of fact that should be referred for oral
evidence. 259 If a respondent genuinely intends to raise a serious matter such as corruption as an issue, it must be based on fact not rumour,
innuendo or inference based only on speculation. 260 A finding of fraud should not be made on the basis of untested allegations in motion
proceedings if the allegations of fraud are denied on grounds that could not be described as far­fetched or untenable. 261
262
A bare denial of the applicant’s allegations in his affidavits will not in general be sufficient to generate a genuine or real dispute of fact. It
has been said that the court must take ‘a robust, common­sense approach’ to a dispute on motion and not hesitate to decide an issue

RS 25, 2024, D1 Rule 6­39

on affidavit merely because it may be difficult to do so. 263

This approach must, however, be adopted with caution and the court should not be
tempted to settle disputes of fact solely on the probabilities emerging from the affidavits without giving due consideration to the

RS 25, 2024, D1 Rule 6­40

advantages of viva voce evidence. 264

As a general rule, decisions of fact cannot properly be founded on a consideration of the probabilities unless the court is satisfied that there
is no real and genuine dispute on the facts in question, or that the one party’s allegations are so far­fetched or so clearly untenable or so
palpably implausible as to warrant their rejection merely on the papers, 265 or that viva voce evidence would not disturb the balance of
probabilities appearing from the affidavits. 266 This rule

RS 25, 2024, D1 Rule 6­41

applies not only to disputes of fact, but also to cases where an applicant seeks to obtain final relief on the basis of the undisputed facts
together with the facts contained in the respondent’s affidavits. 267 In the latter regard it has become known as the ‘Plascon Evans rule’,
referred to by the Constitutional Court in Democratic Alliance (as Third Intervening Party): In re Electoral Commission of South Africa v Minister
of Co­operative Governance and Traditional Affairs (African National Congress and others as Intervening Parties and Council for the
Advancement of the South African Constitution and others as amici curiae) 268 as follows: 269
‘The Plascon­Evans rule is that an application for final relief must be decided on the facts stated by the respondent, together with those which the
applicant states and which the respondent cannot deny, or of which its denials plainly lack credence and can be rejected outright on the papers.’
It has been held 270 that a court should, in deciding disputed facts in application proceedings, always be cautious about deciding probabilities in
the face of conflicts of facts in the affidavits. This is so because affidavits are settled by legal advisers with varying degrees of experience, skill
and diligence, and a litigant should not pay the price for an adviser’s shortcomings.
Judgment on the credibility of the deponent, absent direct and obvious contradictions, should be left open. Nevertheless, the courts have
recognized reasons to take a stronger line to avoid injustice: 271 Mere assertions of witnesses do not of themselves need to be believed and
testimony which is contrary to all reasonable probabilities or conceded facts (i e testimony which no sensible man can believe) goes for nothing,
while the evidence of a single witness to a fact, there being nothing to throw discredit on it, cannot be disregarded.
‘The court may dismiss the application.’ The court will dismiss an application if the applicant should have realized when launching his
application that a serious dispute of fact, incapable of resolution on the papers, was bound to develop. 272 A party who is obliged by law to

RS 25, 2024, D1 Rule 6­42

bring proceedings by way of notice of motion, in the event of a conflict of fact arising on the papers which can be resolved only by oral
evidence, cannot be penalized on the basis that he should have anticipated the conflicts and proceeded in another way. 273 The court should
dismiss the application where there are fundamental disputes of fact on the papers and the applicant failed to make out a case for the relief
claimed. 274
It does not necessarily follow that because a dispute of fact is reasonably foreseeable that an application will always be dismissed with
costs. There may be circumstances present that will persuade a court to order the parties to go to trial together with an order that the costs
of the application be costs in the cause or that the costs stand over for determination at the trial. 275
A dismissal in terms of this subrule does not preclude a litigant from proceeding by way of action, and thus does not finally dispose of a
matter. 276
For a discussion of the question how rule 6(5)(g) operates in the context of a review application brought in terms of rule 53, see the notes
to that rule s v ‘Shall be by way of notice of motion’ below.
‘Or make such an order as it deems fit.’ If the facts are in dispute, the court has a discretion as to the future course of the proceedings. It
may dismiss the application with costs or order the parties to go to trial or order oral evidence in terms of the rules. 277 The three alternatives
are set out in the subrule as possible courses which the court may adopt. 278
‘With a view to ensuring a just and expeditious decision.’ In the exercise of its discretion under the subrule, the court should have regard
to the fact that ‘maklike en spoedige beslegting van ’n feitegeskil . . . gewoonlik as vereiste gestel (word) wanneer daar oorweeg word of daar
gebruik gemaak moet word van mondelinge getuienis by mosie­verrigtinge’. 279
‘In particular, but without affecting the generality of the aforegoing, it may direct.’ If there is a factual dispute, the function of the court
is to select the most suitable method of employing viva voce evidence for the determination of the dispute. 280 The subrule sets out three

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different courses which the court may adopt, but it is in explicit terms made clear that the discretion of the court is not thereby restricted.
 gebruik gemaak moet word van mondelinge getuienis by mosie­verrigtinge’. 279

‘In particular, but without affecting the generality of the aforegoing, it may direct.’ If there is a factual dispute, the function of the court
is to select the most suitable method of employing viva voce evidence for the determination of the dispute. 280 The subrule sets out three

RS 25, 2024, D1 Rule 6­43

281
different courses which the court may adopt, but it is in explicit terms made clear that the discretion of the court is not thereby restricted.
‘Oral evidence be heard on specified issues with a view to resolving any dispute of fact.’ The court will adopt this course where the
factual dispute is within a narrow compass and can be expeditiously disposed of. 282 The dispute of fact must be one between the parties and
not a dispute between one of the parties and his agent or representatives. 283 An order to refer a matter to oral evidence presupposes a
genuine dispute of fact. If an applicant chooses not to respond to the factual allegations put forward in the answering affidavit he does so at
his peril and runs the risk of the application to refer the matter to oral evidence being refused. 284
In exercising its discretion under the subrule, the court will to a large extent be guided by the prospects of viva voce evidence tipping the
balance in favour of the applicant. If on the affidavits the probabilities are evenly balanced, the court would be more inclined to allow the
hearing of oral evidence than if the balance were against the applicant. The more the scales are depressed against the applicant, the less likely
the court will be to exercise its discretion in favour of the applicant. Only in rare cases will the court order the hearing of oral evidence where
the preponderance of probability on the affidavits favour the respondent. 285
If a disputed application is settled on a basis which disposes of the merits except in so far as costs is concerned, the court should not hear
evidence to decide the disputed facts in order to decide who is liable for costs, but the court must, with the material at its disposal, make a
proper allocation of costs. 286
Since the hearing of oral evidence is intended to be on specified issues only, it is desirable that the court states in its order which issues will
be determined by the hearing of oral evidence and defines who may or must be called as witnesses. 287 The court must be on its guard not to
formulate its order in such a way that the hearing of oral evidence is, perhaps unintentionally, converted into a trial. 288 The fact that the court
orders oral evidence does not enlarge the scope of the inquiry, 289 but the ambit of the inquiry may be extended by the terms of reference and,
in special circumstances, also by the judge presiding at the hearing. 290

RS 25, 2024, D1 Rule 6­44

As a general rule an application to refer a matter to evidence must be made at the outset and not after argument on the merits, 291 but the
rule is not an inflexible one and a party is entitled to persist in his application without being precluded, when a dispute becomes apparent and
incapable of resolution on the papers, from asking for evidence viva voce. 292
A referral to oral evidence (or trial) is not merely there for the taking. A case ought to be made out for such a referral and a satisfactory
explanation ought to be provided as to why the applicant did not institute action instead of motion proceedings and whether the applicant did
not foresee the possibility of dispute of fact not capable of resolution on paper. 293
At the hearing of oral evidence the affidavits stand as evidence, save to the extent that they deal with disputes of fact. Once the disputes
have been resolved by oral evidence, the case is decided on the basis of that finding together with the affidavit evidence that is not in
dispute. 294 If there is a dispute, the oral evidence must prevail. 295 This differs from a referral to trial. 296 As to the latter, see the notes s v
‘Refer the matter to trial’ below.
If an order has been made referring an application for the hearing of oral evidence, it is open to the court, when the matter comes before it
for the hearing of such oral evidence, to hold that it is unnecessary to hear oral evidence and to decide the matter on the papers. 297 The
court will not lightly adopt such a course, but will do so where it is clear that the hearing of oral evidence will not affect the outcome of the
claim for substantive relief and will only lead to unnecessary delay and unnecessary costs being incurred. 298 The court to which the matter has
been referred for oral evidence does not, however, have the power to require the parties to address it on a number of legal points that it had
raised mero motu, and then decide the matter on those points without hearing oral evidence. In Fischer v Ramahlele 299 Theron JA stated:

RS 25, 2024, D1 Rule 6­45

‘[13] Turning then to the nature of civil litigation in our adversarial system, it is for the parties, either in the pleadings or affidavits (which serve the
function of both pleadings and evidence), to set out and define the nature of their dispute, and it is for the court to adjudicate upon those issues.
That is so even where the dispute involves an issue pertaining to the basic human rights guaranteed by our Constitution, for “(i)t is impermissible
for a party to rely on a constitutional complaint that was not pleaded”. There are cases where the parties may expand those issues by the way in
which they conduct the proceedings. There may also be instances where the court may mero motu raise a question of law that emerges fully from
the evidence and is necessary for the decision of the case. That is subject to the proviso that no prejudice will be caused to any party by its being
decided. Beyond that it is for the parties to identify the dispute and for the court to determine that dispute and that dispute alone.
[14] It is not for the court to raise new issues not traversed in the pleadings or affidavits, however interesting or important they may seem to it,
and to insist that the parties deal with them. The parties may have their own reasons for not raising those issues. A court may sometimes
suggest a line of argument or an approach to a case that has not previously occurred to the parties. However, it is then for the parties to
determine whether they wish to adopt the new point. They may choose not to do so because of its implications for the further conduct of the
proceedings, such as an adjournment or the need to amend pleadings or call additional evidence. They may feel that their case is sufficiently
strong as it stands to require no supplementation. They may simply wish the issues already identified to be determined because they are relevant
to future matters and the relationship between the parties. That is for them to decide and not the court. If they wish to stand by the issues they
have formulated, the court may not raise new ones or compel them to deal with matters other than those they have formulated in the pleadings
or affidavits.’
If the application is referred to oral evidence it can be justifiably expected of the respondent, if he has any confidence in his own version, to
reiterate that version in oral evidence and to submit that version to be tested by cross­examination. If there is a strong prima facie case in
favour of the applicant at the close of his case, the court is entitled to draw an adverse inference against the respondent should he fail to
testify in support of the allegation in his opposing affidavit that the applicant has no case whatsoever. 300
301
An order referring an application for the hearing of oral evidence is not appealable under s 16 of the Superior Courts Act 10 of 2013.
‘Order any deponent to appear personally or grant leave for him or any other person to be subpoenaed.’ The court in its order must set
out who may or must be called as witnesses and the parties are not entitled at will to subpoena witnesses they wish to call. 302 If a party is
desirous of calling a witness who has not made an affidavit, special leave has to be obtained from the judge and the name of the witness must
be included in the order. 303

RS 25, 2024, D1 Rule 6­46

This subrule provides the only manner in which the attendance of a witness may be secured in relation to an application. It does not permit a
party to an application on his own authority to cause the registrar to subpoena a witness to appear at the hearing of an application. Such
authority vests only in the court and it must grant leave for a person to be subpoenaed. 304
‘Refer the matter to trial.’ The court will refer a matter to trial if the dispute of fact is incapable of resolution on the papers and too wide­
ranging for resolution by way of referral to oral evidence. 305 In such instance it is essential that the issues be defined. 306 It is an alternative
procedure to dismissal of the application in such circumstances, and is appropriate where the applicant when launching his application could not
reasonably have foreseen that a serious dispute of fact, incapable of resolution on the papers, was bound to develop. 307
The question whether the court has the power to order a referral to trial mero motu has been described as one ‘not free from difficulty’ by
the Supreme Court of Appeal and has not yet been decided by that court. 308 At the trial a witness who gives evidence must do so in the
ordinary way. The witness should not be allowed to read from his affidavit in the motion proceedings. Such affidavits may be used for cross­
examination and as proof of admissions therein contained, but (save to the extent that they contain admissions) they have no ​probative value
and, in the absence of agreement, they do not stand as the witness’s evidence­in­chief, or supplement it. If, by agreement, the affidavits are
to be treated as such, it is unnecessary and a waste of time and costs for them to be read into the record. In this regard a referral to trial is
different to a referral to oral evidence. In the latter case the affidavits stand as evidence, save to the extent that they deal with disputes of
fact. Once the disputes have been resolved by oral evidence, the case is decided on the basis of that finding together with the affidavit
evidence that is not (Pty)
in dispute. 309
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If the court orders that a case brought to court on application should go to trial, the ordinary course is to make the costs of the application
 and, in the absence of agreement, they do not stand as the witness’s evidence­in­chief, or supplement it. If, by agreement, the affidavits are
to be treated as such, it is unnecessary and a waste of time and costs for them to be read into the record. In this regard a referral to trial is
different to a referral to oral evidence. In the latter case the affidavits stand as evidence, save to the extent that they deal with disputes of
fact. Once the disputes have been resolved by oral evidence, the case is decided on the basis of that finding together with the affidavit
evidence that is not in dispute. 309
If the court orders that a case brought to court on application should go to trial, the ordinary course is to make the costs of the application
abide the result of the action: or, at least, to give the party who has been ordered to pay the costs leave to reclaim them in the action. It is
only in exceptional circumstances that the court, in the exercise of its discretion, departs from this rule. 310
An occasion where costs will not be made costs in the cause is that where the applicant should have known that the proceedings brought by
him would be abortive: in such case he will be ordered to pay them himself. 311 If, on the other hand, it cannot be said that the

RS 25, 2024, D1 Rule 6­47

application would clearly be abortive, he will be ordered to pay the costs, even if the application is one to obtain a final order on motion. 312

If the respondent knows that a disputed issue of fact is involved but chooses to embark upon the merits and by so doing adds to the costs,
he may well be ordered (semble) to bear not merely a portion of his own costs, but to pay part of the costs of the applicant, if the court were
to order the matter to go to trial. 313
‘Directions as to pleadings or definition of issues, or otherwise.’ In case of referral to trial the court usually orders that the notice of
motion shall stand as a simple summons, the answering affidavit as a notice of intention to defend, that a declaration shall be delivered within a
fixed time and that the Uniform Rules dealing with further pleadings, discovery and the conduct of trials shall thereafter apply. 314
Subrule (6): ‘Make no order . . . but grant leave . . . to renew the application on the same papers.’ If no order is made on an application
or leave is granted to apply again on the same papers, the order is the equivalent of an order of absolution from the instance. 315 Dismissal or
refusal of an application amounts to a decision in favour of the respondent. 316 If an application is dismissed by reason of some procedural
defect, such as the existence of an irresoluble factual dispute, the order does not operate as a judgment for the respondent. 317 An order of
absolution is ordinarily not decisive of the issue raised; it decides nothing for or against either party. 318
Subrule (7)(a): ‘Bring a counter­application.’ Counter­applications are subject to the general principles applicable to applications. 319 Thus,
the court will dismiss a counter­application if the respondent when launching his counter­application was aware of a then existing and
irresoluble dispute of fact. 320
The notice of counter­application need not be in the form of a notice of motion but the respondent must set out the relief claimed in the
counter­application. 321
There is no bar in law or in the rules to a litigant endeavouring to obtain a remedy in a counter­application that is more expansive than, or
even unrelated to, relief sought in the main application. 322

RS 25, 2024, D1 Rule 6­48

A counter­application need not be served by the sheriff since there is already an attorney of record for the applicant (respondent in
reconvention) 323 and a notice of motion would seem to be unnecessary. 324
As a general rule (but the court has a discretion to depart from the rule) an application and a counter­application should be adjudicated pari
passu and if the application is unopposed, judgment thereon should be suspended pending finalization of an unliquidated counter­application. 325
Subrule (7)(b): ‘Postpone the hearing of the application.’ The principles applicable to an application for the grant of a postponement of an
application are the same as those that apply to trials. 326 See, in this regard, the excursus to rule 41 s v ‘Postponement’ below.
Subrule (8): ‘An order is granted ex parte.’ The provisions of this subrule only apply where an order has been granted against a person ex
parte and where a return day has been fixed. The subrule comes to the aid of a person who has been taken by surprise by an order granted ex
parte. The subrule does not apply where the return day of a rule nisi obtained ex parte has been extended with the knowledge or in the
presence of the persons affected thereby. 327 Subrule (12)(c) deals with a somewhat different situation and allows a person against whom an
order was granted in his absence in an urgent application to set the matter down on notice for reconsideration of the order.
‘May anticipate the return day.’ The rules do not provide substantively for the granting of a rule nisi by the court. The practice of doing so is,
nevertheless, firmly embedded in our procedural law. 328 This is recognized by implication in this subrule and in subrule (13) of this

RS 25, 2024, D1 Rule 6­49

rule. 329 The procedure of a rule nisi is usually resorted to in matters of urgency and where the applicant seeks interim relief in order adequately
to protect his immediate interests. 330 The procedure must be considered in conjunction with the provisions of subrule (12). 331 See further the
notes to subrule (12) below.
A return day may be anticipated under the subrule even if the order granted ex parte does not explicitly provide for the anticipation of the
return day. 332
Procedure by way of rule nisi in review proceedings is considered in the notes to rule 53(1) s v ‘All proceedings . . . shall be by way of notice
of motion’ below.
Rule 27(4) provides for the revival of a rule nisi which has been discharged by default of appearance. A rule nisi which had lapsed because of
the fulfilment of a resolutive condition cannot be revived in terms of rule 27(4). 333 See further the notes to rule 27(4) s v ‘A rule nisi has been
discharged by default of appearance’ below.
An opposed rule nisi which is returnable on the first day of a continuous opposed motion court roll that endures from 10:00 am on a Monday
of a particular week until 16:00 pm on the Friday of that week, and has been properly enrolled, does not lapse if it is only heard by the court, in
the administration of its roll, on another day during that week. 334
An application to anticipate the return day of a sequestration order for the purpose of discharging the order of provisional sequestration
should comply with the requirements of s 11(3) of the Insolvency Act 24 of 1936. 335
Subrule (9): ‘A copy of every application . . . shall . . . be submitted to the Master.’ The object of this subrule is to avoid applications
being enrolled only to be postponed so that the court may have the advantage of the Master’s assistance, and not to force an applicant to
obtain the Master’s advice in order to learn whether or not he has a case. The subrule does not operate

RS 25, 2024, D1 Rule 6­50

when the Master’s involvement is neither legally necessary nor of assistance to the court. The subrule strikes at the lodging and enrolment of
an application and non­compliance therewith does not result in the voidness of the affidavits or of service. 336 The subrule does not apply to an
application for relief of a temporary nature. 337
An application for the appointment of a curator ad litem to a person, as a preliminary to the appointment of a curator bonis, is not submitted
to the Master for report. In terms of rule 57(6) the applicant is obliged, after receipt of the report of the curator ad litem, to submit the report
and copies of all the documents which had been filed in the application to the Master for consideration and report to the court.
See further the notes to subrule (2) s v ‘Necessary or proper to give any person notice of such application’ above.
Subrule (11): ‘Applications incidental to pending proceedings.’ An application is incidental to pending proceedings if it is subordinate or
accessory to while at the same time being distinct from the main proceedings. 338 A legal issue should be decided at the interlocutory stage of
proceedings only if it would result in the final disposal of either the matter as a whole or a particular aspect thereof. 339
Matters in which an order, judgment or direction is sought from a judge sitting otherwise than in open court may, in certain divisions, be
340
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 Subrule (11): ‘Applications incidental to pending proceedings.’ An application is incidental to pending proceedings if it is subordinate or
accessory to while at the same time being distinct from the main proceedings. 338 A legal issue should be decided at the interlocutory stage of
proceedings only if it would result in the final disposal of either the matter as a whole or a particular aspect thereof. 339
Matters in which an order, judgment or direction is sought from a judge sitting otherwise than in open court may, in certain divisions, be
brought through the Chamber Book. For example, rule 17(d) of the Joint Rules of Practice for the High Courts of the Eastern Cape, 340 inter alia,
provides that the Chamber Book may be used in matters in which an order or direction is sought from a judge and may be granted otherwise
than in open court as provided in the Uniform Rules of Court. See also Practice Direction 22 of the Practice Directions of the North West Division
of the High Court, Mahikeng 341 and paragraph 37 of the Consolidated Practice Notes of the Western Cape Division of the High Court, Cape
Town. 342
‘May be brought on notice.’ ‘Notice’ in this subrule does not mean notice of motion. 343 Interlocutory and other applications incidental to
pending proceedings need not be served by the sheriff: service may be effected upon the attorney of record of the respondent by the party
initiating the proceedings. 344
The provisions of the rules relating to the time for filing answering and replying affidavits do not apply to interlocutory
applications. 345 Further affidavits in interlocutory applications must be filed within a reasonable time; prima facie in the absence of special
circumstances, this would not be longer than the times prescribed in terms of rule 6(5). 346

RS 25, 2024, D1 Rule 6­51

A court dealing with an interlocutory proceeding, especially one involving significant issues of considerable complexity, will only decide such
issues where it is strictly necessary to do so and where the issues have been fully and precisely determined in the papers between the
parties. 347
An application to strike out matter from an affidavit can be brought as an interlocutory application in terms of subrule (11). 348

Subrule (12)(a): ‘Urgent applications.’ ‘Urgency’ in urgent applications involves mainly the abridgment of times prescribed by the rules and,
secondarily, the departure from established filing and sitting times of the court. 349
The proviso to subrule (4)(a) deals with ex parte applications which are brought as urgent applications. In terms of paragraph (iii) of the
proviso subrule (12) may be applied in so far as is necessary. See further the notes to subrule (4)(a) s v ‘Proviso’ above.
The first proviso to subrule (5)(b)(iii) of rule 6, in terms of which the days between 21 December and 7 January, both inclusive, shall not be
counted in the time allowed for the delivery of a notice of intention to oppose or of any affidavit for purposes of that subrule, does not apply to
applications under subrule (12). 350
In urgent applications the applicant must show that he will not otherwise be afforded substantial redress at a hearing in due course. 351

Urgency does not relate only to some threat to life or liberty; the urgency of commercial interests may justify the invocation of the subrule
no less than any other interests. 352 It has

RS 25, 2024, D1 Rule 6­52

been held, on the one hand, that a matter is urgent because of the imminence and depth of harm that the applicant will suffer if relief is not
given, not because of the category of right the applicant asserts. In other words, urgency (except where a statute provides for inherent
urgency) is determined not by the nature of the claim brought, but by the circumstances in which the applicant seeks its adjudication. There is,
accordingly, no class of proceeding that enjoys inherent preference. 353 On the other hand, it has been held that there is an element of
urgency in contempt proceedings. 354 So too in matters involving the interest of the public, especially where members of the public entrust legal
practitioners with their financial matters. 355 It is submitted that whatever the correct view might be, and regardless of the nature of the relief
sought, it is peremptory that an applicant set out explicitly the circumstances on which he relies to render the matter urgent and the reason
why he claims that he cannot be afforded substantial relief at a hearing in due course. 356

RS 25, 2024, D1 Rule 6­53

The application must be brought as soon as possible; cogent reasons must be advanced to the court for any delay in bringing the
application. 357
It is well established that an applicant cannot create its own urgency by simply waiting until the normal rules can no longer be
applied. 358 Where an applicant first seeks compliance from the respondent before lodging the application it cannot be said that the applicant
had been dilatory in bringing the application or that urgency was self­created. 359
There are degrees of urgency and it is well established that applicants in urgent applications must give proper consideration to the degree of
urgency and tailor the notice of motion to that degree of urgency. 360 In the Western Cape Division of the High Court, Cape Town, a semi­
urgent roll is operated alongside the ordinary (i e continuous) roll and opposed matters which are not of extreme urgency but are nevertheless
too urgent to await hearing in the ordinary course on the continuous roll are placed on the semi­urgent roll. 361 In the Gauteng Division of the
High Court the divergence arising from different degrees of urgency is dealt with by different times of set down. 362

RS 25, 2024, D1 Rule 6­54

The degree of relaxation of the rules and of the ordinary practice of the court depends upon the degree of urgency of a case. 363 The
degree of urgency and the relaxation of the rules should not be greater than the exigencies of the case demand. 364 Cases of extreme urgency
may be proceeded with at once, even if that be at night or during a weekend. 365 Some cases are so urgent that no time is available to prepare
any documents, in which case viva voce evidence may be heard. In such cases the evidence is normally recorded and transcribed and a copy of
the transcription served on the respondent either together with the order or subsequently.
In South African Airways Soc v BDFM Publishers (Pty) Ltd 366 Sutherland J expressed strong views on the ineffective service of an urgent
application and laid down the procedure to be followed by an attorney in an urgent application on less than 24 hours’ notice: 367
‘[22] The principle of audi alterem partem is sacrosanct in the South African legal system. Although, like all other constitutional values, it is not
absolute and must be flexible enough to prevent inadvertent harm, the only times that a court will consider a matter behind a litigant’s back are in
exceptional circumstances. The phrase “exceptional circumstances” has regrettably, through overuse and the habits of hyperbole, lost much of its
impact. To do that phrase justice it must mean “very rarely” — only if a countervailing interest is so compelling that a compromise is sensible, and
then a compromise that is parsimonious in the deviation allowed. The law on the procedure is well established.
[23] In this case the purported service was, de facto, no service at all. The order was taken ex parte, and the service was a farce. The single
paragraph in the founding affidavit which stated that service had been performed by email was true only in the meanest possible way.
[24] The nature of the relief sought is not such that an ex parte order could ever have been justified. Doubtless, SAA appreciated this obvious fact
that service was necessary. However, what it and its legal representatives did, pursuant to a responsibility to achieve effective service in order to
respect the principle of audi alterem partem, was not simply clumsy, but unprofessional. When a litigant contemplates any application in which it is
thought necessary to truncate the times for service in the rules of court, care must be taken to use all reasonable steps to mitigate such
truncation. In a matter in which less than a day’s notice is thought to be justifiable, the would­be applicant’s attorney must take all reasonable
steps to ameliorate the effect thereof on the would­be respondent. The taking of all reasonable steps is not a collegial courtesy, it is a mandatory
professional responsibility that is central to the condonation necessary to truncate the times for service. When there is the prospect of a hearing
before a judge after business hours

RS 25, 2024, D1 Rule 6­54A

and, even more so, when there is the prospect of the hearing taking place elsewhere than in a courthouse, the duty to take reasonable steps is
ever more important and imperative.
[25] In this case, without any forewarning, on at most 30 minutes notice, the application was emailed at 22h00, a time at which it is unreasonable
to have expected that the email would at once be read. The phone calls from SAA, 30 minutes later, reached one out of the three persons to
whom the papers had been sent, who was fortuitously awake to receive it. The notice omitted to state the venue for the hearing. In any event,
by then it was too late to offer even token opposition. None of this could not have been appreciated by SAA.
[26] In my view it is incumbent on the attorney of any person who contemplates an urgent application on less than 24 hours’ notice, to undertake
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actions in fulfilment of the duty to ensure effective service:
[26.1] Once the respondents are properly identified, the names and contact details, ie phone, cell, email, fax and physical addresses of
 [25] In this case, without any forewarning, on at most 30 minutes notice, the application was emailed at 22h00, a time at which it is unreasonable
to have expected that the email would at once be read. The phone calls from SAA, 30 minutes later, reached one out of the three persons to
whom the papers had been sent, who was fortuitously awake to receive it. The notice omitted to state the venue for the hearing. In any event,
by then it was too late to offer even token opposition. None of this could not have been appreciated by SAA.
[26] In my view it is incumbent on the attorney of any person who contemplates an urgent application on less than 24 hours’ notice, to undertake
the following default actions in fulfilment of the duty to ensure effective service:
[26.1] Once the respondents are properly identified, the names and contact details, ie phone, cell, email, fax and physical addresses of
persons who have the authority to address the application must be ascertained. Obviously, if the issue has already been the
subject of debate between the parties and an attorney has already been retained by a respondent, such attorney’s contact details
will top the list.
[26.2] At the earliest moment after deciding to bring an urgent application, contact must be made to demand compliance with the relief
to be sought and to alert one or more of such persons of the intention to bring an application, stating where it is likely to be heard,
when it is likely to be served, and the identity of the judge on urgent duty. Agreement should be reached about who should receive
service on behalf of the respondent by email or fax, or other method.
[26.3] Next, the urgent judge shall be alerted, and a report made, whether or not the respondents have been alerted.
[26.4] When the papers are ready for service, direct contact shall again be made with the persons dealing with the matter on behalf of
the respondent. Where delays occur, the respondents must be kept informed by interim calls to report progress.
[26.5] Sufficient time must be allowed for the respondents to read and digest the papers. It is appropriate to send a notice of motion in
advance of the founding papers to give the respondents a chance to formulate a view about the relief being sought.
[26.6] When the papers are about to be served electronically or otherwise, the urgent judge should be consulted about when and
where the hearing will occur, if at all, and how much notice must be given, in the context of earlier alerts to the respondents.
[26.7] Once served in any manner other than by personal physical delivery, the attorney must immediately call the respondent’s
representatives directly to confirm actual receipt of all the papers.’
A respondent faced with an urgent application, in order to avoid the risk of judgment being given against it by default, is obliged provisionally to
accept the rules set by applicant and then, when the application is heard, make its objections thereto, if any. 368
In Optimum Coal Terminal (Pty) Limited v Richards Bay Coal Terminal (Pty) Limited 369 it was held 370 that while access to the courts is
guaranteed to all to have their disputes adjudicated, courts are not to be abused by litigants with a deluge of papers at short notice, only for
the legal representatives to conclude amongst themselves that it would not be possible for the court to hear the matter on the allocated date
when it was originally set down. Litigants are to be mindful

RS 23, 2024, D1 Rule 6­55

of the case load of judges, particularly where it is expected that apart from other matters on the motion court roll, attention should also be
given to reading several thousand pages at short notice. Convenience to the court and the judges presiding is an important consideration when
deciding to launch urgent litigation of this nature. The failure to do so, is tantamount to an abuse of the court process.
In Economic Freedom Fighters v Chairperson of the Powers and Privileges Committee NO 371 the application was struck from the roll by the
majority of the full court under circumstances where:
(a) the timelines set by the applicant, extending over public holidays and long weekends, for answering affidavits, etc were truncated to the
extreme;
(b) the parties subsequently agreed to different timelines that were confirmed in a court order;
(c) the run up to the date for hearing caused a flurry of activity, particularly with constituting a bench;
(d) the court order was not complied with in various respects, without condonation being sought;
(e) the Practice Directives of the court were not complied with without condonation being sought;
(f) the matter was, accordingly, not ripe for hearing on the date of hearing.
In striking the application from the roll with costs, the majority stated (footnote between [ ]):
‘[18] The applicants are dominus litis. They chose to approach court on an urgent basis, which they were entitled to do. It would have been clear
from the outset, given the time of year and the particular circumstances that the respondents are mostly of an institutional nature, Parliament had
already risen for the year. The court was in recess on the date that they unilaterally chose, meaning there were only two judges on duty.
Managing the hearing of a matter like this, launched during the court recess and set down to be heard during court recess becomes an almost
impossible task. The judiciary has an obligation to perform their duties and functions for all the parties involved in litigation to have a fair hearing.
This includes proper preparation and reading of all the necessary papers.
[19] An applicant who applies for the date for a matter that they foresee will be opposed, as in the instant matter, must ensure that the timelines
they set are not only reasonable in the particular circumstances but that it can be accommodated on the court roll and that the matter will be ripe
for hearing on the date so chosen or agreed. The agreed order of this court dated 17 January 2024 included the possibility of approaching the
Acting Judge President for special allocation, which eventually happened in this matter.
[20] The applicants in this matter had the obligation to ensure that the matter was ripe for hearing. No reasons were given for the midnight filing
of the heads of argument on the Friday preceding the Monday hearing which clearly left no time for the respondents to file their heads of
argument. Not only were the applicants forewarned of the effect of late filing of heads of argument but also the requirement to apply for
condonation for the non­compliance with a court order.
[21] I can put it no better than Gilbert AJ in Chonqin Gingxing Industries SA (Pty) Limited v Ye and Others [2021 (3) SA 189 (GJ) at paras 25–27.]:
“[25] Having so applied for the opposed date, the applicant represented that the matter was ripe for hearing. As discussed above, the
whole purpose of the procedures

RS 23, 2024, D1 Rule 6­56

is to ensure that as far as practically possible a matter is ripe for hearing before becoming deserving of allocation on the busy opposed
motion court roll.
[26] Having made that representation, the applicant must, insofar as practically feasible, ensure that the application remains ripe for
hearing. Should the application become no longer ripe for hearing, then the application should be removed from the roll. Understandably
there may be instances where recalcitrant respondents may conduct themselves, with varying degrees of ingenuity, in an attempt to render
an allocated matter no longer ripe for hearing and so seek to avoid a hearing. The court will be alive to these attempts, but where the
applicant itself take steps that render its own matter no longer ready for hearing, it can hardly complain that its opposed application is
struck from the roll.
[27] This is such an instance”
[22] The respondents were clearly prejudiced by the conduct of the applicants but more importantly, the court is prejudiced despite our best
efforts and literally having to disadvantage other litigants in an attempt to accommodate the matter. All litigants before the courts have equal
rights of access and, by accommodating this matter, other litigants had to be prejudiced. Courts must ensure that the integrity and efficient use of
the judicial resources is protected. As pointed out above by allowing litigants to ignore court orders that they’ve agreed to without a proper
explanation, will bring the administration of justice into disrepute.’
In urgent matters the court is entitled to admit hearsay evidence in an affidavit provided the source of the information and the grounds for
belief in its truth are stated. 372 The type of case in which such evidence is accepted, if these prerequisites are complied with, is one in which
it is necessary to restrain immediate injury and to keep matters in status quo. 373 In Secretary, Judicial Commission of Inquiry into Allegations
of State Capture v Zuma 374 hearsay evidence presented by the applicant consisting of a series of public statements concerning the
Constitutional Court’s authority purportedly made by Mr Zuma was, although being prejudicial to Mr Zuma’s case, admitted as evidence in the
public interest in an urgent application to declare him in contempt of court under circumstances where he did not oppose the application and
made no attempt to distance himself from the statements. 375
In an urgent application which involves large and complex issues, it would be impracticable to require each and every person with knowledge
of a fact to make an affidavit. Thus, in Lagoon Beach Hotel (Pty) Ltd v Lehane NO 376 the Supreme Court of Appeal stated: 377
‘That there is a great deal of hearsay in the first respondent’s papers is clear enough. In the circumstances of the matter, that is understandable.
As Lehane says, he “came to Mr Dunne’s affairs as a stranger”, and during the course of carrying out his duties as official assignee, he came into
possession of documents and records relevant to Mr Dunne’s affairs which, in turn, led him to conclude inter alia that Mr Dunne had retained the
true
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RS 23, 2024, D1 Rule 6­57
 376 377
of a fact to make an affidavit. Thus, in Lagoon Beach Hotel (Pty) Ltd v Lehane NO the Supreme Court of Appeal stated:
‘That there is a great deal of hearsay in the first respondent’s papers is clear enough. In the circumstances of the matter, that is understandable.
As Lehane says, he “came to Mr Dunne’s affairs as a stranger”, and during the course of carrying out his duties as official assignee, he came into
possession of documents and records relevant to Mr Dunne’s affairs which, in turn, led him to conclude inter alia that Mr Dunne had retained the
true

RS 23, 2024, D1 Rule 6­57

ownership of the shares in Mavior and that his disposition of such shares and his loan accounts to Mrs Dunne constituted an invalid stratagem to
place assets beyond the reach of creditors. In his approach to court Lehane made documents in his possession available to support certain
statements made by him. Some of them included judgments of the Irish courts, which relate to certain of the facts established in those
proceedings, as well as financial statements of companies, correspondence and statements made by others and official records of government
bodies, and the like. In a case such as this, in which the first respondent is in a position akin to that of a trustee in an insolvency in this country,
the comment in Registrar of Insurance v Johannesburg Insurance Co Ltd (1) 1962 (4) SA 546 (W) at 547E–F, that “(i)f all the people who know about
every small fact which makes up this complex case should have to make affidavits, the matter would become quite impracticable. In a case like
that a court will relax its rules for the sake of facilitating litigation and in the interests of justice”, becomes pertinent. It is also necessary to state
that Lehane could not swear positively to the facts, but was only called on to justify his suspicions.’
It does not follow that the court is obliged to accept such hearsay evidence, even if the source and the grounds for belief are
furnished. 378 Though this rule antedates the Law of Evidence Amendment Act 45 of 1988, its flexibility is in consonance with the wide
discretion which s 3 of the Act gives the court in regard to the admission of hearsay evidence. See further the notes s v ‘The facts upon which
the applicant relies for relief’ to subrule (1) above.
In Lagoon Beach Hotel (Pty) Ltd v Lehane NO 379 it was held 380 that in an application which is moved as one of urgency, courts are
commonly sympathetic to an applicant and often allow papers to be amplified in reply, subject of course to the right of a respondent to file
further answering papers.
If the application lacks the requisite element or degree of urgency, the court can, for that reason, decline to exercise its powers under this
subrule. The matter is then not properly on the roll. It is well established that the appropriate order under such circumstances is to strike the
application from the roll. 381 That enables the applicant to set the matter down again on proper notice and compliance with the rules. 382 Any
amendment to the original notice of

RS 23, 2024, D1 Rule 6­58

motion must be done in accordance with the provisions of rule 28. 383

If a matter has been set down for hearing on the basis that it is urgent, but the urgency thereafter falls away, and the parties only persist
with the issue of costs, the matter should be postponed to a date on the normal roll. 384
It is well established that in pronouncing on the issue of urgency, the court exercises a wide discretion. 385

Rule 67A(4)(a) provides that a costs order may upon application by any party indicate which portions of the proceedings are deemed urgent.
See further the notes to rule 67A(4) below.
‘The court or a judge.’ As to the meaning of the words ‘court’ and ‘judge’, see rule 1 above.
‘May dispense with the forms and service provided for in these rules.’ Although the court may in terms of this subrule dispense with the
forms and service provided for in the rules, the court is enjoined by the subrule to dispose of an urgent application by procedures which are as
far as practicable in terms of the rules. That obligation must be reflected in the attitude of the court about which deviations it will tolerate in a
specific case. 386 It has been held that the rules of service could be relaxed in urgent cases for interim relief involving respondents who resided
outside the area of jurisdiction of a court. 387
An urgent application is an application in terms of rule 6(5) and the provisions of the subrule apply to such applications subject to the
qualification that an applicant may, to the extent that is necessary in the particular circumstances, deviate from the rules without asking prior
permission of the court. 388 The applicant must, of course, ask that his non­compliance​ with the rules be condoned. 389 If the applicant
requires the operation of any other rules to be dispensed with, such as rules relating to the service of any order made, he should in his
application make out a case for dispensing with them. 390
In terms of rule 6(5)(a) an application must be in a form as near as may be in accordance with Form 2(a). The mere existence of some
urgency does not justify an applicant not using Form 2(a), but the applicant may deviate from the form to the extent justified by the exigencies
of the circumstances by, for example, using shortened time periods, advance nomination of a date of hearing, omitting notice to the registrar
and adaptation of the wording. 391 It is not

RS 25, 2024, D1 Rule 6­59

a requisite of the rules that a notice of motion (and, a fortiori, an urgent application) be issued by the registrar or delivered to him before it
may be served upon the respondent. 392
There must be a marked degree of urgency before it will be justifiable not to use Form 2(a). There may, for example, be factors present
which justify dispensing with all notice to the respondent. 393 In such cases the use of Form 2 may suffice. 394
In appropriate circumstances a rule nisi may be sought by way of urgent application. 395 In such cases an applicant would be entitled in one
document to give two notices for the two sets of relief which are being sought: (i) a notice along ex parte lines (Form 2) for the immediate
relief which will be sought without notice or on shorter notice than the main relief; and (ii) a notice along the lines of Form 2(a) for the relief
which will be sought at a later stage. The relief under (i) will be relief pending the relief to which (ii) refers, i e relief pending the main
hearing. 396
An urgent application for a rule nisi operating as an interim interdict against the State, any Minister, Provincial Premier or any other officer of
the State or province in his capacity as such, must be served at least 72 hours, or such lesser period as the court may in all the circumstances
of the case consider reasonable, before the time mentioned in the application for the hearing of the application. 397

RS 25, 2024, D1 Rule 6­60

If a case has lost its urgency as a result of an interim arrangement between the parties, the case will not be enrolled otherwise than in
accordance with the rules. 398
In appropriate circumstances an applicant is entitled, under this subrule, to move the court, in camera, and without notice to the
respondent, for an Anton Piller order. See further the notes s v ‘Search and Seizure: Orders for the Preservation of Evidence (Anton Piller
Orders)’ in Part D8 below.
Subrule (12)(b): ‘In every affidavit.’ Pursuant to its substitution with effect from 8 July 2022, 399 the subrule no longer makes reference to a
petition filed in support of an application. Proceedings by way of petition were abolished with effect from 1 July 1976 by the Petition
Proceedings Replacement Act 35 of 1976 which provides that any reference in any law to the institution of application proceedings in any court
by petition, shall be construed as a reference to the institution of such proceedings by notice of motion in terms of the rules of court.
‘Shall set forth explicitly the circumstances which it is averred render the matter urgent and the reasons why . . . applicant could not
be afforded substantial redress at a hearing in due course.’ The applicant must in his founding affidavit set out explicitly the circumstances
on which he relies to render the matter urgent and the reason why he claims that he cannot be afforded substantial relief at a hearing in due
course. 400 The applicant needs to justify why the matter is so urgent as to warrant other litigants being shifted further down the queue. 401
Subrule (12)(c): ‘Against whom an order was granted in his absence.’ While subrule (8) allows a person against whom an order has been
granted ex parte to anticipate the return day upon notice, this subrule allows a person against whom an order was granted in his absence in an
urgent application to set the matter down on notice for reconsideration. The absence of the aggrieved party has been termed the ‘underlying
pivot’ to which the exercise of the power under the subrule is coupled. 402 Absence does not extend to wilful absence. 403
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 Subrule (12)(c): ‘Against whom an order was granted in his absence.’ While subrule (8) allows a person against whom an order has been
granted ex parte to anticipate the return day upon notice, this subrule allows a person against whom an order was granted in his absence in an
urgent application to set the matter down on notice for reconsideration. The absence of the aggrieved party has been termed the ‘underlying
pivot’ to which the exercise of the power under the subrule is coupled. 402 Absence does not extend to wilful absence. 403
‘By notice.’ This subrule does not provide for the words ‘supported by such affidavits as the case may require’ as in rule 6(11) and has been
held 404 to mean that it does not require that the

RS 25, 2024, D1 Rule 6­61

notice referred to therein should be accompanied by affidavits. If, however, the aggrieved party does file an affidavit then the other party has
an opportunity to file a replying affidavit which is subject to the general rules and practice about not introducing new matter illegitimately. 405
The subrule merely provides a method for setting the matter down for reconsideration of the order as opposed to subrule 6(11) which
provides for a method of notifying the opposing party of the bringing of interlocutory and other applications incidental to pending
proceedings. 406
In The Fonarun Naree: Afgri Grain Marketing (Pty) Ltd v Trustees, Copenship Bulkers A/S (In Liquidation) 407 the Supreme Court of Appeal
summarized the position in regard to this subrule as follows (footnotes omitted):
‘[12] Rule 6(12)(c) does not prescribe how an application for reconsideration is to be pursued. The absence of prescription was intentional, and
the procedure will vary, depending upon the basis on which the party applying for reconsideration seeks relief against the order granted ex parte
and in its absence. A party wishing to have the order set aside on the ground that the papers did not make a case for that relief, may deliver a
notice to this effect and set the matter down, for argument and reconsideration, on those papers. It may do the same if it merely wishes certain
provisions in the order to be amended, or qualified, or supplemented. The matter is then argued on the original papers. It is not open to the
original applicant, save possibly in the most exceptional circumstances, or where the need to do this has been foreshadowed in the original
founding affidavit, to bolster its original application by filing a supplementary founding affidavit.
[13] The party seeking reconsideration is not confined to this route. It may file an answering affidavit, either traversing the entire case against it,
or restricted to certain issues relevant to the reconsideration. In many instances such an affidavit will be desirable. Even if an affidavit is filed,
however, it does not preclude the party seeking reconsideration arguing at the outset, on the basis of the application papers alone, that the
applicant has not made out a case for relief. That is a well­established entitlement in application proceedings and there is no reason why it should
not be adopted in reconsideration applications.
[14] If an affidavit is filed in support of the application for reconsideration, then the party that obtained the order is entitled to deliver a reply
thereto, subject to the usual limitations applicable to replying affidavits. When that is done, and the party seeking reconsideration does not argue
a preliminary point at the outset that the founding affidavit did not make out a case for relief, the case must be argued on all the factual material
before the judge dealing with the reconsideration proceedings. That material may be significantly more extensive and the nature of the issues
may have changed as a result of the execution of the original ex parte order.’
‘Set the matter down for reconsideration of the order.’ The dominant purpose of the subrule is to afford an aggrieved party a mechanism
designed to redress imbalances in, and injustices and oppression flowing from an order granted as a matter of urgency in his absence. 408 The

RS 25, 2024, D1 Rule 6­62

rationale is to address the actual or potential prejudice because of an absence of audi alteram partem when the order was made. 409 It has
been held that an application for reconsideration is not urgent for the purposes of rule 6(12) simply because an order was granted in the urgent
court. This means that, in the absence of demonstrable prejudice in the time between when an application may be heard before an urgent court
and in the ordinary course, a party seeking a reconsideration must set out the prejudice that will ensue. The threshold is the same whether in
an application for reconsideration or when approaching the court under rule 6(12)(a). In both instances, the parties seeking relief must set out
in clear terms facts duly supported that will pass the threshold of ‘absence of substantive relief’ if the matter is not heard before the urgent
court. 410
Reconsideration of the order, which may be either interim or final in its operation, may involve deletion of the order, either in whole or in part,
or amendment of the order or additions thereto. 411
A court that reconsiders any order in terms of this subrule should do so with the benefit not only of argument on behalf of the party absent
during the granting of the original order but also with the benefit of the facts contained in affidavits filed by all the parties. 412 The result of
this is that the reconsideration needs to be done on the basis of a set of circumstances quite

RS 25, 2024, D1 Rule 6­63

different from that under which the original ex parte order was obtained. 413 The consequences of this are twofold. First, the issues are to be
reconsidered in the light of the fact that both sides of the story are now before the court. Secondly, the execution of the original order may
have had the effect that those issues are not exactly the same as the issues the court had to deal with in the original application. 414
It has been held 415 that the subrule is wide enough to permit the reconsideration of an order granted ex parte, such as an Anton Piller order,
on the basis of a set of circumstances quite different from those under which the original order had been obtained. In these circumstances the
order will be reconsidered in the light of the execution of the previous order, the variation of such order and further affidavits filed by the
parties.
Under the subrule, the court has a wide discretion and the factors which may determine whether an order falls to be reconsidered, include
the reasons for the absence, the nature of the order granted and the period during which it has remained operative. Other factors to be taken
into consideration will be whether an imbalance, oppression or injustice has resulted, and, if so, the nature and extent thereof, and whether
alternative remedies are available. The convenience of the parties is another factor to be taken into consideration. 416 The aggrieved party,
seeking to invoke the provisions of the subrule, ought in his affidavit to detail the form of reconsideration required and the circumstances upon
which it is based. 417

RS 25, 2024, D1 Rule 6­64

Where the court reconsiders an Anton Piller­type order in terms of this subrule and it appears that the application was an abuse of the
process of court, the court may in its discretion order the applicant to pay costs on an attorney and own client scale. 418 For the approach on
the reconsideration of an Anton Piller order, see further the notes s v ‘Discretion’ in Part D8 below.
Subrule (15): ‘May on application order to be struck out.’ This subrule regulates the striking out of matter from an affidavit as opposed to
an application to strike out an entire claim that is vexatious. In the latter instance, the court enjoys at common law an inherent power to strike
out claims that are vexatious by which is meant ‘frivolous, improper, instituted without sufficient ground, to serve solely as an annoyance to the
defendant’. 419 As a complement to the common law, the Vexatious Proceedings Act 3 of 1956 provides the court with a mechanism for
preventing the institution of vexatious legal proceedings. 420
The application must be on notice in terms of subrule (11). 421 The application must clearly indicate the passages to which objection is taken
and set out the grounds of objection shortly. 422
The application should be set down for hearing at the same time as the hearing of the main application. 423 Since an application to strike out
objectionable matter in affidavits is dealt with only at the hearing of the main application, a party must in his opposing affidavits deal

RS 25, 2024, D1 Rule 6­65

with the allegations sought to be struck out. By doing so he does not waive his right to object to the offending allegations in the affidavits. 424

The use of the word ‘may’ indicates that the court has a discretion in an application to strike out matter from an affidavit. 425

426
‘Any matter which is scandalous, vexatious or irrelevant.’ The meaning of these terms has been stated as follows:
(a) Scandalous matter — allegations which may or may not be relevant but which are so worded as to be abusive or defamatory.
(b) Vexatious matter — allegations which may or may not be relevant but are so worded as to convey an intention to harass or annoy.
(c) Juta
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such matter. 427
 The use of the word ‘may’ indicates that the court has a discretion in an application to strike out matter from an affidavit. 425

426
‘Any matter which is scandalous, vexatious or irrelevant.’ The meaning of these terms has been stated as follows:
(a) Scandalous matter — allegations which may or may not be relevant but which are so worded as to be abusive or defamatory.
(b) Vexatious matter — allegations which may or may not be relevant but are so worded as to convey an intention to harass or annoy.
(c) Irrelevant matter — allegations which do not apply to the matter in hand and do not contribute in one way or the other to a decision of
such matter. 427
The subrule is not exhaustive of the grounds upon which an application to strike out matter from an affidavit may be brought. 428 The following
can be struck out:

RS 25, 2024, D1 Rule 6­66

(a) Inadmissible evidence — e g privileged communications 429 and hearsay evidence, 430 unless, in the latter case, supported by an affidavit
or affirmation ‘of information and belief’. Inadmissible evidence appearing in affidavits may be struck out without invoking rule 6(12) and
notice of such an application to strike out may be given in terms of rule 6(11). 431 Such an application is in essence an objection against
the admission of evidence which is only made at the hearing of the main application. 432 Hearsay statements in affidavits can, therefore,
be struck out irrespective of whether or not there is prejudice. 433
(b) Argument. 434
435
(c) Attacks on credibility.
(d) New matter (if the affidavit in question is a replying affidavit). 436

‘An appropriate order as to costs including costs as between attorney and client.’ The court has a wide discretion to make an appropriate
costs order, including an order for costs on the basis as between attorney and client, depending on the facts and circumstances of the
matter. 437
‘The applicant will be prejudiced in his case.’ Two requirements must be satisfied before an application to strike out matter from any affidavit
can succeed: first, the matter sought to be struck out must indeed be scandalous, vexatious or irrelevant; secondly, the court must be
satisfied that if such matter is not struck out the parties seeking such relief would be prejudiced. 438 The procedure for striking out was not
intended to be utilized to make technical

RS 25, 2024, D1 Rule 6­67

439
objections which merely increase costs. The word ‘case’ in the subrule should not be interpreted narrowly so as to enable a party freely to
make irrelevant allegations which could only be struck out upon proof of prejudice in respect of the relief sought. 440 Scandalous or irrelevant
matter may be defamatory of the other party and the retention of such matter will therefore be prejudicial to such party. 441
Costs of applications. The general rules applicable to costs apply also to awards of costs in application proceedings. See, in general, Part
D5 below.
There is no principle that a costs order cannot be made against a respondent in an unopposed matter. While there might be sound policy
considerations why, for example, the respondent in a review application (such as a public body, a magistrate, a master of the High Court or an
arbitrator) would not be required to pay the costs of an application, save in the event of opposition, the same considerations do not apply to
applications for relief against ordinary commercial entities. 442

1 For proposed amendments to rule 6, see Price ‘Civil court rules — open to abuse?’ 2013 (August) De Rebus 29–31.
2 This paragraph was referred to with approval in Inzalo Enterprise Management Systems (Pty) Ltd v Mantsopa Local Municipality (unreported, FB case no
3832/2023 dated 22 November 2023) at paragraph [17].
3 See, in general, Volume 3, Parts F–N.
4 Subrule (2).
5 Subrules (2) and (4)(a).
6 Subrule (11).
7 See the proviso to subrule (4)(a) and, further, the notes to subrule (11) s v ‘May be brought on notice’ below.
8 See the notes to subrule (12) below.
9 Subrule (12)(a).
1 0 Subrule (12)(a).
1 1 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd 2013 (2) SA 204 (SCA) at 211B–C, overruling BHP Billiton Energy Coal South Africa Ltd
v Minister of Mineral Resources 2011 (2) SA 536 (GNP) at 541I–542D on this point.
1 2 2016 (1) SA 78 (GJ).
1 3 At 85D–F.
1 4 Theron and Another NNO v Loubser NO 2014 (3) SA 323 (SCA) at paragraph [26]; Tau v Mashaba 2020 (5) SA 135 (SCA) at paragraph [15].
1 5 Ex parte Satbel (Edms) Bpk: In re Meyer v Satbel (Edms) Bpk 1984 (4) SA 347 (W) at 362G.
1 6 Ex parte Hay Management Consultants (Pty) Ltd 2000 (3) SA 501 (W) at 506B–507B; Ulde v Minister of Home Affairs 2008 (6) SA 483 (W) at 495F–496H.
1 7 2014 (3) SA 265 (GP).
1 8 At 289E–290A.
1 9 Reymond v Abdulnabi 1985 (3) SA 348 (W) at 349E; Brian Kahn Inc v Samsudin 2012 (3) SA 310 (GSJ) at 313A–B and the cases there referred to.
2 0 Brian Kahn Inc v Samsudin 2012 (3) SA 310 (GSJ) at 313B–C.
2 1 Brian Kahn Inc v Samsudin 2012 (3) SA 310 (GSJ) at 313C.
2 2 Brian Kahn Inc v Samsudin 2012 (3) SA 310 (GSJ) at 313B–C.
2 3 Afriforum NPC v Nelson Mandela Foundation Trust 2023 (4) SA 1 (SCA) at paragraphs [70]–[71]; Road Accident Fund v MKM obo KM 2023 (4) SA 516 (SCA) at
paragraph [55]; Minister of Communications and Digital Technologies v South African Post Office SOC Ltd (unreported, GP case no 2023­051134 dated 10 July
2023) at paragraph [7]; and see Road Accident Fund v Taylor and Related Matters 2023 (5) SA 147 (SCA) at paragraphs [30]–[31]; Kouga Local Municipality v St
Francis Bay (Ward 12) Concerned Residents Association 2024 (4) SA 70 (SCA) at paragraph [15].
2 4 Persadh v General Motors South Africa (Pty) Ltd 2006 (1) SA 455 (SE) at 459E–G. The principles are discussed in the excursus to rule 41 s v ‘Postponement’
below.
2 5 Purchase v Purchase 1960 (3) SA 383 (N) at 385A; African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 563D–H; Sparks v
Sparks 1998 (4) SA 714 (W) at 721F; Bouwer v City of Johannesburg (unreported, LAC case no JA64/06 dated 23 December 2008) at paragraphs [17]–[45]; but
see Vena v Vena 2010 (2) SA 248 (ECP) at 253A–I where it was held that the dismissal of an application under certain cirumstances amounts to absolution from
the instance.
2 6 2016 (3) SA 417 (GJ).
2 7 At 425A–B, with reference to Ex parte Van Loggerenberg 1951 (1) SA 771 (T) at 772A–D; Ex parte Inkley and Inkley 1995 (3) SA 528 (C) and Williams v
Tunstall 1949 (3) SA 835 (T).
2 8 1949 (3) SA 1155 (T).
2 9 Unreported, SCA case no 139/2020 dated 23 June 2021.
3 0 At paragraph [26].
3 1 At paragraph [27]. See also Koko v Tanton (unreported, GJ case no 2021/2212 dated 7 September 2021) at paragraphs [41]–[42].
3 2 [2021] 4 All SA 652 (SCA).
3 3 At paragraph [21].
3 4 2025 (1) SA 117 (SCA).
3 5 The Supreme Court of Appeal disagreed with the decision of the High Court in Ramos v Independent Media (Pty) Ltd (unreported, GJ case no 01144/21 dated
28 May 2021) and held that motion proceedings were unsuited to deal with defamatory allegations as was done in that case (at paragraphs [24]–[26]).
3 6 Hadiaris v Freeman & Freeman 1948 (3) SA 720 (W) at 724.
3 7 Hadiaris v Freeman & Freeman 1948 (3) SA 720 (W) at 727.
3 8 2024 (4) SA 240 (KZP).
3 9 1948 (3) SA 720 (W).
4 0 At paragraphs [67]–[69].
4 1 GN R2133 in GG 46475 of 3 June 2022.
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