To Inform or Not to Inform – That Is The Ex Parte Question

I read the recent decision of Hlabang Trading Enterprise, and thought to share some insights. From the outset, I give credit to Spartan Case Law for their regular updates which assist legal practitioners to an enormous extent by keeping up to date with interesting cases pertaining to the areas of law they practice in.

Ex parte applications are under certain circumstances permissible, specifically where immediate relief is essential or where the providing notice to the other party may defeat the purposes of the application. Applicants in ex parte applications have a duty under all circumstances to be transparent and honest with the Court – if a party acts in breach of this duty, it may lead to the dismissal of the application, an adverse cost order, or an adverse cost order. Therefore, good faith is of tantamount importance.

When is an ex parte application permissible? Examples vary and include where an applicant is the only party interested in the relief, where the relief is a preliminary step in proceedings (i.e. substituted service), where the nature of the relief makes giving notice impractical (for example freezing of an individual’s bank account) where there is imminent harm or where the identity of the respondent is not readily ascertainable (for example an application that effects a large group of people).

Any party with an interest in an ex parte application can apply to Court for permission to intervene – that this would involve bringing a formal application with a supporting affidavit.

In the Hlabang Trading matter, an ex parte order was granted against Caterpillar Financial Services (Pty) Ltd in favour of Caterpillar “Catfin” on 10 June 2025 for repossession of three heavy industrial yellow plant vehicles, owned and financed by CATFIN and delivered and used by Hlabang, in terms of an instalment sale agreement. Instead of enrolling reconsideration of the order by intervening in the ex parte application, Hablang launched a fresh and independent urgent application. In the application it sought the reconsideration of the ex parte order, but and also substantive relief in the form of the return of the repossessed machines.

The court held that Hlabang’s application was determined to be urgent, and that the ex parte order was set aside. In coming to the conclusion of this order, the Court warned that he urges Catfin, and its attorney “… to approach future applications for repossession on a more circumspect basis and to bring them on an ex parte basis only when there are facts peculiar to the debtor in question that truly warrant dispensing with notice to them…”  and if the practice is to threaten Court proceedings only then to go ex parte, there will always be a problem  – the Court made a punitive cost order against Catfin.

Ex parte applications, by its very nature, are complex and should not be used frivolously by any party. From the Hlabang case, it is very evident that a court can intervene at a later stage, either by way of an intervening application, alternatively, by way of an urgent application, to set aside the ex parte order.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.