What is an application to compel and when would you use one?
Are you going through a hostile divorce and your spouse’s attorneys are not being completely transparent in the discovery phase? Do you think your employment has been wrongfully terminated but your employer is withholding documents you need to make your case? In these…and many other…cases, you might need to file an application to compel (also called a motion to compel in some jurisdictions). In South African legal proceedings, an application to compel is a powerful tool used to ensure the disclosure of relevant information by a party refusing and/or failing to do so. What exactly is it and when is it used?
What is an application to compel?
An application to compel is a formal application made to court to ensure the opposing party provides certain information, documents or answers during the discovery phase of a matter. The discovery phase is the stage during proceedings where parties provide evidence to substantiate their claims. The application to compel is typically used when one party believes the other is withholding details essential to the case.
The legal basis for an application to compel is rooted in the rules and procedures of the court, as well as in the principles of fairness and justice. The court will balance the need for full disclosure with the right to privacy and the avoidance of unnecessary delays.
When is it used?
This application comes into play when there is a dispute over the exchange of information in a legal matter. If one party feels the other is not being transparent or cooperative in providing necessary documents or details, they can file an application to compel. A common scenario involving the procedure is divorce. It is not unusual for the higher-earning spouse to try to disguise assets or avoid revealing all sources of income, in order to reduce their maintenance liability. Other examples include commercial law, where a business may be uncooperative in producing relevant contracts or financial records in the course of legal action. In a personal injury lawsuit, it may be used when a defendant is reluctant to provide medical records requested. In employment law, an employer may refuse to share personnel records or evidence of discrimination in a wrongful termination case. Wherever there is a failure to comply with discovery requests, an appilcation to compel may be employed to ensure full disclosure.
Key components of an application to compel
Like any legal procedure, there is a process to follow.
- Affidavit
The party seeking to compel information must draft a sworn statement (affidavit) outlining the specific details they are requesting and explaining why this information is essential to the case and/or is required by law.
- Notice
The opposing party is formally notified about the application and is given an opportunity to respond.
- Court appearance
Applications to compel are generally done ex parte (only requiring the applicant to be present at court). However, both parties may need to appear in court, where the judge will consider the arguments and determine whether the application to compel is justified.
Consequences of non-compliance
If the court grants the application to compel and the opposing party fails to comply, there could be legal consequences, such as dismissal of the opposing party’s defence, or the court may allow for default judgment. A default judgment is a ruling that is entered against a party who has failed to take a required action, in this case complying with the application to compel. This means the court may decide the case in favour of the party who filed the application due to the opposing party’s non-compliance with the order.
We can help
SD Law is a firm of experienced attorneys based in Cape Town, with offices in Johannesburg and Durban. If you think information is being kept from you in a legal matter, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.
Further reading:
Simon Dippenaar
https://www.sdlaw.co.zaCape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.
View more posts from this authorThe information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.