What is the difference between an action and an application?
Firstly the difference lies in the fact that the law specifically states which proceedings may be brought by way of action or application. For example an application for registration as a legal practitioner is by way of application whereas a lawsuit for damages or divorce is expressly restricted to action by our law.
The second difference is that where the law is silent on whether one should proceed by way of application or action, one should look at whether a material dispute of fact is likely to arise. Where there are material disputes of fact , one should proceed by way of action so that these disputes can be resolved at a trial. Where there is a settled position as to what the facts are , one should proceed by way of application for the court to adjudicate on the dispute of law.
If one proceeds using the wrong procedure the court can
√dismiss the lawsuit with costs
√order that the matter be referred to trial
What is a trial within a trial ?
This is an aspect in the law of evidence . A case in point whereby such a scenario may arise is during a criminal trial whereby an accused person may argue that his warned and cautioned statement was obtained by the police under duress. The court will thus conduct a "trial within a trial" ,that is , an inquiry to find out if the accused's arguments are correct and to find out if the evidence is thus admissible .
What are the requirements for an interdict ?
Firstly an interdict is an order that prohibits somebody from doing something unlawful
There are two types of interdicts : final and temporary
Requirements for a temporary interdict : lessons drawn from setlogelo v setlogelo 1914 AD 221 (for a summary of the case follow this link manswers-su-5-property-law - WordPress.com)
√applicant must prove a prima facie right
√a reasonable apprehension of irreparable harm
√there must be no other remedy available to the applicant
√the balance of convenience
Requirements for a final interdict
√a clear right
√ reasonable apprehension of irreparable harm
√no other remedy available
What are the requirements for spoliation : lessons drawn from the Nino Bonino v De Lange case
√peaceful and undistributed possession
√wrongful or unlawful possession
The rationale for spoliation is that no person should take the law into his own hands and should not unlawfully dispossess another of peaceful and undisturbed possession even if the thing belongs to you.
Xoxo
Many more tricky law questions and answers coming up
Ms Vee
