An application to set aside irregular proceedings in South Africa is a legal process whereby a complainant or defendant can ask the court to cancel or undo an action that was taken by another party in the case that was not in accordance with the rules of the court.
Example of irregular court proceedings
Let’s say you are suing someone for damages after they hit your car in an accident. The other party has filed their answering affidavit, which is their response to your lawsuit. However, they filed the affidavit one day late. This is an irregular step, because the rules of court require that affidavits be filed on time.
You can apply to the court to set aside the irregular step. To do this, you must give the other party written notice of the irregularity and an opportunity to remove the cause of complaint within 10 days. If the other party does not remove the cause of complaint within 10 days, you can then file an application to set aside the irregular step within 15 days after the expiry of the second period.
In your application, you must explain why the irregular step was prejudicial to you. In this case, the irregular step was prejudicial to you because it prevented you from fully responding to the other party’s case.
The court will consider your application and may set aside the irregular step if it finds that the requirements have been met and that the irregular step was prejudicial to you.
Here is a table summarising the steps involved in an application to set aside irregular proceedings:
The requirements for an application to set aside irregular proceedings are as follows:
- The applicant must be a party to the case or law-suite in question.
- The irregular step must have been taken by another party to the lawsuit.
- The applicant must not have taken any further steps in the proceedings after becoming aware of the irregularity.
- The applicant must have, within 10 days of becoming aware of the irregular step, given the other party/parties written notice of the irregularity and an opportunity to remove the cause of complaint within 10 days.
- The application must be made within 15 days after the expiry of the second period.
The application must be made in writing and filed with the court.
The application must set out the following information:
- The names of the parties to the lawsuit.
- The details of the irregular step that was taken.
- The date on which the applicant became aware of the irregularity.
- The date on which the applicant gave the other party/parties written notice of the irregularity.
- The reasons why the applicant believes that the irregular step should be set aside.
The court will consider the application and may set aside the irregular step if it finds that the requirements have been met and that the irregular step was prejudicial to the applicant.
Here are some additional things to keep in mind when making an application to set aside irregular proceedings:
- The court may grant the application even if the applicant did not strictly comply with all of the requirements, if it finds that the applicant acted reasonably and that the non-compliance was not prejudicial to the other party/parties.
- The court may also refuse the application if it finds that the applicant has delayed in making the application or that the applicant is not acting in good faith.
If you are considering making an application to set aside irregular proceedings, it is important to speak to an attorney to discuss your specific circumstances.
