Written by: Natasha du Preez
Date: 17 November 2024
Interlocutory Applications in South Africa
In this article, we will explore three of the possible interlocutory applications that can be utilised in litigious proceedings, known as an Application to Compel Discovery, an Application in terms of Rule 43/Rule 58, and an Application for Substituted Service.
Litigation often involves more than just the main court action—there can be critical interim steps and disputes along the way. Interlocutory applications are a prime example, as they allow parties to resolve procedural or urgent matters before the main case concludes. Whether you’re seeking to compel the other side to provide necessary documents, secure interim relief in a divorce, or serve court papers when traditional methods fail, understanding these applications is crucial.
At Burger Huyser Attorneys, we have extensive experience in general litigation and family law, and we’re here to guide you through these interim legal processes with clarity and confidence.
What Are Interlocutory Applications?
Interlocutory applications are requests made to the court during ongoing litigation. Rather than waiting for the final judgment of the main case, these applications address immediate needs and issues, ensuring that the litigation proceeds smoothly or that urgent matters receive timely attention. Key Examples of Interlocutory Applications include:
- Applications to Compel Discovery
- Applications in Terms of Rule 43 / Rule 58
- Applications for Substituted Service
What Is An Application To Compel Discovery, And When Is It Used?
An application to compel discovery is utilised in civil litigation, where one party has not discovered the documentation on which they will be relying in trial within the timeframes provided.
Where a party (plaintiff/defendant) in litigation is called on to discover by the other party (plaintiff/defendant) by way of formal notice, such a party has 20 (twenty) days to discover all documents in their possession. Failure to do so grants the aggrieved party the right to compel them to discover by way of a court order.
An application to compel discovery is beneficial as it seeks to address any undue delay in litigious proceedings and seeks to remedy the conduct of the wrongful party by giving the aggrieved party a right of legal recourse.
Launching an application to compel discovery seeks to address a procedural irregularity, and costs may be sought against the contravening party. The costs sought are not for the entire litigious process, and the applicant will only be able to retrieve the costs and expenses that said party has incurred in launching the interlocutory application.
What Is An Application In Terms Of Rule 43/Rule 58, And When Is It Used?
In the Magistrates Court, this application is referred to as a Rule 58 application, and in the High Court, it is referred to as a Rule 43 application. This application is governed by and falls under different rules for the different courts, but they are identical in the relief sought. This type of interlocutory application is brought in the course of divorce proceedings where one party is in dire need of intervention by the Court on certain aspects of the divorce. A Rule 43 application or Rule 58 application is usually brought on an urgent basis to seek the following:
- Interim maintenance for minor children pending the outcome of the divorce;
- Interim maintenance for a party to the divorce proceedings, pending the outcome of the divorce;
- Interim arrangements about care and guardianship of minor children, pending the outcome of the divorce;
- Interim arrangements of contact with minor children, pending the outcome of the divorce.
This application is beneficial where the divorce proceedings are contentious or where the material disputes are of such a nature that the divorce litigation will continue for an extended period.
For How Long Is An Order In Terms Of Rule 43/Rule 58 Valid?
It is important to mention that any relief granted by the Court in terms of a Rule 43/Rule 58 application will only be enforceable until such time that the divorce has been finalised by a Court of Law. It is further important to mention that where the plaintiff in a divorce action withdraws the divorce action for any reason whatsoever, the order obtained in terms of the above Rules will be null and void and will no longer have any validity or enforceability.
These orders are merely “interim” in nature and cannot be enforceable where the divorce action is no longer pending. Thus, any relief granted in said order will immediately fall away upon the finalisation of the divorce litigation.
What Is An Application For Substituted Service And When Is It Used?
Where a party known as the “plaintiff” wishes to institute litigation against another party, the instituting document known as a summons must be served on the other party known as the “defendant” by a Sheriff of South Africa. In cases where the Sheriff cannot locate the defendant for service to be effected, the litigation process cannot proceed until formal service has been effected.
Where a defendant’s exact location, such as a residential address, employment address, or domicilium, is unknown to the party instituting litigation, but it is a known fact that said party can be located within the borders of the Republic of South Africa, the plaintiff who cannot effect service must launch an application for substituted service.
Substituted service means that the normal rules of service via the Sheriff are dispensed with and that service is allowed to be affected by alternative means, such as:
- Service via electronic mail;
- Service via WhatsApp;
- Service via Facebook Messenger;
- Any other alternative social media platform and/or messaging platform.
It is important to note that in all litigious proceedings, the instituting document must be served personally on a party by way of the Sheriff. Failure to effect formal and proper service may cause a plaintiff’s matter to be dismissed. It may even lead to cost orders against said party, depending on the circumstances in which the service was effected.
How To Ensure Proper Service And Legal Support?
It is prudent to mention that only a court of law may order that documentation be served by way of alternative means (such as social media platforms) if there are proper reasons that justify service to be effected in such a manner.
The party bringing an application for substituted service will have to prove the following grounds in justifying the deviation from formal service, such as:
- That there have been several and/or reasonable attempts made to serve the documentation by way of the Sheriff, which have not been successful;
- That they have attempted to locate the party (Defendant) and ascertain their whereabouts (such as appointing a tracer and/or requesting addresses from family members or friends of the Defendant);
- That the party (defendant) is in fact within the borders of the Republic of South Africa;
Other methods of service can be utilised that will prove successful and/or bring the action to the attention of the defendant. Such as proving the party is active on social media platforms, namely, Facebook, WhatsApp, Instagram, and LinkedIn. Or, showcasing that the party has been engaging in conversations via electronic mail or that the party receives electronic mail sent to them by the plaintiff.
Once the Court is satisfied that the defendant is within the Republic of South Africa and that formal service is not possible for any justifiable reason, the Court may make an order that service be effected using alternative service methods, as provided for and allowed for by the Court.
It is important to note that a party who is instituting litigation may not unilaterally decide to serve documentation on a person in any other manner than service by the Sheriff unless the Court makes an order permitting said service to be effected.
Once an order for substituted service is obtained, the party may serve the documentation on the defendant in the manner allowed by the court order, and once executed, the litigation process shall proceed as if formal service had been executed.
Whether you’re pressing for document disclosure, securing interim measures in a divorce, or struggling to serve legal papers, interlocutory applications can significantly influence the direction and efficiency of your case. Knowing when and how to use these tools can save you time, stress, and resources—and ensure that your rights and interests remain protected throughout the legal process.
Imagine waiting indefinitely for the other side to produce essential documents or feeling anxious about your child’s maintenance while a divorce drags on. Interlocutory applications provide timely solutions to these pressing problems. By leveraging these procedures, you can maintain momentum in your case, safeguard your child’s best interests, and ensure that everyone abides by the rules.
At Burger Huyser Attorneys, we understand the emotional and practical pressures you face during litigation. Our dedicated team can guide you through the intricacies of interlocutory applications—whether it’s compelling discovery, obtaining interim relief for children, or achieving effective substituted service. Contact us today to secure expert legal support and ensure a smoother, more equitable journey through your litigation process.
Contact Burger Huyser Attorneys, and book a consultation.
To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223
