In case number 3891/12, the
applicant filed a chamber application for a provisional order against the
respondent. The provisional order was granted and served on the
respondent. Thereafter, the respondent, having not opposed the
confirmation of the provisional order, the applicant proceeded to file a notice
of set down for the hearing and confirmation of the provisional draft order in
court.
Instead of the applicant filing a
proper court application, the application was set down for hearing still in the
form of a chamber application. The Rules for setting down a case as a
court application were not followed.
Order 32 and the Rules therein set
out clearly how a court application is made to a court. A chamber
application is made to a judge in chambers according to Rule 226(1)(b). A
court application is made to a court in accordance with Rule 226(1)(a).
Rule 226(2) provides for a default
judgment to be made as a chamber application. Rule 230 says a court
application shall be made in Form Number 29.
Rule 241 directs that a chamber
application shall be made on Form Number 29B.
It follows that a court application
cannot be made to a court as a chamber application and vice versa. The
correct format should be followed.
For the sake of clarity, a judge may,
at his discretion, direct that a court application be heard by him in chambers
and a chamber application be heard in court if he sees fit. A matter that
starts as a chamber application should wear its correct court application
jacket when it goes to court as it will no longer be a chamber application.
Accordingly, it was not proper to
simply take chamber applications to court and attempt to treat them as court
applications while they are still presenting themselves as chamber
applications, yet the orders sought are court orders to be made in open court. Default
judgments on simple claims are also chamber application as stated
earlier. There is no justification for a default judgment to be set down
in court, although there are specific cases, such as matrimonial cases and
certain claims for damages which are made as court applications.
Accordingly, where a party seeks an
order from a judge in chambers, or a court order from the court, the correct
format should be followed in terms of the above Rules.
The above example applies to the
above cases that were removed from the roll and must now be set down in terms
of the appropriate Rules and format.
I have discussed the above with the other judges
and they concur with the above directive.
