Page 10 - Litigating in the Land Claims Court: Training Manual

LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL 22 2 2 2 By referral referral by by by the the Director-General of an an LTA claim or or by by by referral referral by by by the the Chief Land Claims Commissioner in restitution claims
22 3 Appeal or or or review of a a a a a a a Magistrates’ Court decision decision or or or an arbitrator’s decision decision under either the the LTA or ESTA 23 We deal in in this section with actions and applications that occur in in a a a a a a a a a variety of contexts under all three statutes 24 Referrals are are covered covered in Part IV when when we address LTA land claims
Appeals and and reviews are are covered covered when when we address evictions in Part V Applications
25 In application proceedings5 the the applicant issues the the notice of motion6 and founding affidavit Applications
are employed for matters where there should not not be be a a a a a a factual dispute and witnesses will not not be be required to testify Ordinarily they are are used for review applications or or or declarators where the the issues are are primarily legal Urgent matters are ordinarily brought by application 26 Where there is is a a a a a a a dispute of of fact in in an application it will generally be decided in in favour of of the the respondent Disputed land claims
will will ordinarily be be be brought as action proceedings because there will will be be be a a a a a a a a a factual dispute 27 The application application may be brought as normal or or urgent application application depending on on on the the nature and urgency of the the application i) Procedure in the normal application 28 The procedure for a a a a a a normal application is similar to that followed in the High Court 28 1 The notice of motion7 and and founding affidavit are issued and and served on on on the the respondents in in the the normal course 28 2 2 The respondent is is given ten days8 to to oppose the application and fifteen days days to to file his/her answering affidavit 9
5 See Rule Rule 33 of of the the Rules of of the the LCC and Schedule 1 1 Form 1 1 6 The format of of of the the Notice Notice of of of Motion Motion is slightly different from the the High Court Notice Notice of of of Motion Motion 7 In the the the the the the the Notice of of Motion the the the the the the the Applicant Applicant has to to state that: “You must (a) reach the the the the the the the Registrar and and the the the the the the the Applicant Applicant no no later than 10 days days days days days after you you receive this document document in in in in in in counting the the the the the the the the the the the the days days days days days do do do not include Saturdays Sundays and and and public holidays (b) contain an an an an an an an address address address address for for delivery to to to you you you of of of of further documents in in in in in in the the the the the the the the the the the the case: The address address address address must be the the the the the the the the address address address address of of of your attorney or or or or or a a a a a a a a a a a a a a a a a a a a a physical address address address address within 8 kilometres of of of the the the the the the the the LCC or or or or or the the the the the the the the magistrates court for for the the the the the the the the district where the the the the the the the the above land is situated ”
8 The “days” in in the the the LCC are are “court days” days” which means that Saturdays and Sundays as as well as as public holidays are are excluded in in the the the calculation of the the the period 9
In terms of of of of Rule Rule 25(3) of of of of the the the the Rules of of of of the the the the LCC it it it is is is is is not not compulsory for the the the the Respondent to to to to file his/her his/her his/her answering answering affidavit affidavit after filing his/her his/her his/her Notice Notice Notice Notice to to to to Participate until he/she receives the the the the Notice Notice Notice calling him/her to to to deliver his/her his/her answering answering affidavit affidavit The Notice Notice Notice to to to Deliver is is is is not not a a a a a a a a a a Notice Notice Notice of of of of Bar PAGE 10 PAGE