Actions and Applications

An action is instituted when there is a material factual dispute and is used in instances where oral evidence would be required. Examples of matters that requires an action to be instituted would be a divorce matter, a matter seeking an order for damages arising out a breach of contract or when a wrong has been done onto another.

The party wronged would then institute an action against the one who wronged him/her. In an action, the parties are called Plaintiff and the Defendant, the Plaintiff being the person initiating the proceedings by having the attorneys draw up summons and same gets served on the Defendant by the Sheriff.

An action concludes with a trial with the presentation of facts and evidence made verbally in court. The court will make a decision based on the oral evidence.

An action may have interlocutory applications during its course. A good example would be during a divorce action, the parties might initiate an interlocutory application for interim relief in a form of a Rule 43 (High Court) or Rule 58 (Magistrate’s Court). The interlocutory application can sometimes be urgent and opposed. If an application is urgent, a date could be given as early as possible, depending on the urgency of the matter.

An application is instituted where there is no material factual dispute between the parties. An application can be used to obtain other remedies such as declaring what the rights or obligations of the parties are in a given situation, issues arising out from estate disputes, possession of control of property, interim relief during an action, etc.

In an application, the parties are called Applicant and Respondent, the Applicant being the person initiating the proceedings with a Notice of Motion.

An application concludes with the presentation of facts and evidence that are in the affidavit being read by a judge before hearing the argument in court on the issues raised in the affidavit whereafter the judge will make a final decision based on the affidavits and documents.

Action proceeding may be heard several years after initiation whereas an application may be heard or are usually heard shortly after initiation.

In instances whereby a party seeks urgent and immediate Relief, he/she would do so by way of an application. A court may, in exceptional circumstances grant an Ex Parte order (without notice) with a Rule Nisi (return date) giving the Respondent an opportunity of opposing the relief sought.