South African Law. François Smuts

in nature and are not very common.

      One also needs to know what a counter application is. In many cases, an application for certain legal relief is brought. The respondent then usually answers by not only denying that the applicant is entitled to the order that he is asking for from the court, but also requesting that another court order be given.

      Here is an example to explain this. Neighbour A trespasses on Neighbour B’s land by opening his gate and using his path to the sea. Neighbour B brings an application against Neighbour A on account of trespassing and asks that Neighbour A be ordered not to trespass on his property. Neighbour A answers that he has been using the path to the sea for more than thirty years and therefore has acquired a right of way to the path. He therefore denies that Neighbour B is entitled to the order that he wants, because he, Neighbour A, has acquired the right to use the path. He then goes further and brings a counter application for an order declaring that he is entitled to a servitude over the path to the sea.

      Actions and applications sometimes go hand in hand and this can happen in one of two ways:

       Applications in actions. Sometimes in the course of an action, one of the parties does something unexpected, or a party cannot wait until the conclusion of the case before the court helps him, because it may already be too late by then. In such a case an interim or interlocutory application is brought for what is termed interim relief. For example, a plaintiff asks for the discovery of further documents and the defendant simply does not give them to the plaintiff. The plaintiff can then bring an application compelling the defendant to hand over the documents. If such an order is granted and the defendant still does not hand over such documents, the plaintiff can win the entire case simply on the grounds of the defendant not doing what he was supposed to do.

       Another scenario is where a plaintiff institutes action against a defendant, but the defendant is sitting with a large number of documents that the plaintiff is sure the defendant will destroy if he hears about this action against him. The plaintiff can then bring an application to preserve those documents for the purpose of the trial.

       Actions from applications. Sometimes an applicant brings an application that he thinks will be reasonably simple – there is not much in dispute about the facts. However, when the respondent answers, it appears that there are in fact many things he wants to dispute. In such circumstances, the applicant can request that the application be converted to a trial, so that the evidence can be properly heard in court and decided upon.

      The example of the path to the sea will again assist in illustrating this. If Neighbour B does not have the same perspective of the path to the sea as Neighbour A and he has evidence that the path is not being used in the way that Neighbour A alleges, the case can be referred for evidence. The procedure from then on in such a case is very much like that in an action.