There are basically two types of legal processes to obtain legal relief in South Africa. These processes are commonly referred to as actions and applications.
Legal Action is when one party sues another party for something. Money, divorce, delivery of goods, enforcement of a contract, etc.
An Application is when one party applies to the court for some relief, not necessarily against another party.
The most prominent difference between an action and application is whether a material factual dispute is foreseen. When the legal battle will involve more than one version of material “facts”, a material factual dispute will arise and, in most instances, an action will be the correct procedure to follow. A typical example is where one party sues the other party for a defective item bought and the party being sued disputes that the item is defective.
An application procedure will suffice in instances where the law prescribes that the application procedure must be followed (for example the liquidation of a company) or where the factual dispute is not material and the correct version can be proved by way of one or more affidavits.
Attorneys do not expect of clients to know which procedure to follow. It is the duty of the attorney to decide which process is the correct procedure. It is, however, the client’s duty to disclose all material facts to the attorney (good and bad) before any legal proceedings are instituted, to enable the attorney to decide on the best process to follow.
Legal actions are in most instances more expensive and time-consuming than applications and our attorneys always strive to select the most cost-effective and efficient process.