An interlocutory application is an application made during a lawsuit, before trial or final judgment, asking the court to decide a preliminary or procedural issue that affects how the main case proceeds. Common examples are applications to compel discovery, to strike out scandalous pleadings, to amend pleadings, for interim interdicts pending the main action, or for security for costs. Decided on motion rather than at trial, interlocutory applications shape, narrow, and sometimes effectively decide litigation long before a judge hears the main dispute.
This guide explains what counts as interlocutory, the most common types, the procedure, and how they interact with the final trial. The rules governing them are the Uniform Rules of Court for High Court matters and the Magistrate’s Courts Rules.
Interlocutory vs Final Relief
The distinction matters for appeal and cost. An interlocutory order does not finally dispose of the dispute between the parties, while a final order does. Some interlocutory orders, such as interim interdicts, are provisional in form but decisive in effect, and courts guard against using interlocutory procedure to determine the main case prematurely.
The Common Types
| Application | What it decides |
|---|---|
| Compelling discovery | Forcing the other side to disclose documents it is withholding |
| Interim interdict | Freezing conduct, such as transferring assets or using confidential information, until trial |
| Amendment of pleadings | Allowing a party to correct or expand its case |
| Striking out | Removing irrelevant, scandalous, or prejudicial matter from affidavits and pleadings |
| Security for costs | Requiring a party, often a foreign or impecunious one, to deposit security for the other side’s costs |
| Separation of issues | Trying one decisive question first, such as liability, before quantum |
| Default judgment and rescission | Enforcing or undoing judgments granted in a party’s absence |
How the Procedure Runs
- Notice of motion and founding affidavit are served, stating the interim relief sought and the grounds.
- Answering and replying affidavits follow within the rules’ time limits.
- Opposition and set-down: the matter is set down for hearing, often on the urgent roll where delay would defeat the relief.
- Hearing on affidavit: the court decides on the papers, without oral evidence, unless the rules permit oral evidence on disputed facts.
- Order and costs: the court grants, refuses, or varies the interim order, usually with costs, and the main action continues.
Why Interlocutory Work Wins or Loses Cases
Most civil disputes settle on the strength of interlocutory outcomes. A compelled disclosure that produces a damaging document, an interdict that freezes the asset in dispute, or a separation order that forces an early liability ruling, each shifts settlement power dramatically. Cases are frequently won in the interlocutory skirmishes and settled before trial.
Common Mistakes to Avoid
- Using interim relief to litigate the main case. Courts refuse interdicts that require deciding the final dispute.
- Urgency without justification. Manufactured urgency draws punitive costs orders.
- Thin affidavits. Motion proceedings live and die on the papers; evidence not in the affidavits does not exist.
- Ignoring deadlines. Interlocutory timetables are strict, and delay forfeits both urgency and rights.
- Fighting every skirmish. Costs follow the result, and losing interlocutory fights repeatedly erodes both the war chest and the court’s patience.
Get help with litigation strategy. Otrebski Attorneys’ litigation team in Sandton runs interlocutory applications in the High Court and Magistrate’s Courts. Call 060 500 3098 or book an appointment to plan the application properly.
Frequently Asked Questions
What is an interlocutory application in South African law?
It is an application brought during a lawsuit, before final judgment, asking the court to decide a preliminary or procedural issue, such as compelling discovery, an interim interdict, amendments, or security for costs, that affects how the main case proceeds.
What is the difference between interlocutory and final relief?
Interlocutory relief decides an interim or procedural question and leaves the main dispute alive for trial. Final relief disposes of the dispute between the parties. The classification affects appealability and the cost consequences that follow.
What is an example of an interlocutory application?
A classic example is an interim interdict: while a shareholder dispute is pending, one side applies urgently to stop the other from transferring shares out of the company until the trial decides ownership.
Is an interlocutory order appealable?
Not automatically. Appealability depends on whether the order has a definitive effect on a party’s rights. Orders with such effect may be appealed with leave, while purely procedural rulings generally must await the end of the case.
Disclaimer. This article is general information, not legal advice for a specific matter. Consult the Uniform Rules of Court and an admitted attorney about any pending application.