There are two ways of litigating in the High Court; by summons
or by application.
If the summons route is chosen, pleadings are filed. These are
documents that set out the plaintiff's claim in particulars of
claim, and the defence in a plea. What they must contain is
prescribed by the Rules of Court. Eventually, after the pleadings
have all been filed (closed), the matter will be heard in court and
the parties will have to lead evidence to support what is alleged
in the pleadings. In some divisions of the High Court the hearing
will probably take place only years after close of pleadings.
In an application the claim and the defence are set out in
affidavits. Generally three sets are filed; the founding affidavit
by the applicant, the answering affidavit by the respondent and a
replying affidavit by the applicant. The permission of the court is
needed for filing of more affidavits. Only in very few cases is
evidence led in applications. Affidavits must contain facts on
which legal arguments by both parties will be based. Drafting
affidavits is a complicated procedure and requires a good knowledge
of the law relating to the issues. The affidavits must be attached
to a notice of motion that must record the relief that the
If a court finds that an applicant has not proved its claim it
may dismiss the application. If there are issues to be clarified
the court may order it to go to trial where evidence will be led,
or refer only specific issues to evidence. If there is a dispute
that cannot be resolved on the papers and the court finds that the
applicant should have known of it before commencing the
proceedings, the application will usually be dismissed with the
applicant to pay costs.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Generally, Garnishee proceedings is done in two different stages. The first stage is for the garnishee order nisi, while the second stage is for the garnishee order absolute.
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