‘An ex parte application is used: … … when, though persons may be affected by the court’s order, immediate relief (even though it be temporary in nature) is essential because of the danger in delay or because notice may precipitate the very harm the applicant is trying to forestall, for example an application for an interdict or an arrest tamquam suspectus de fuga under the common law.’ Similar commentary is found in ‘Erasmus - Superior Court Practice’ by Farlam, Fichardt & van Loggerenberg : ‘An ex parte application is used: … … were the nature of the relief sought is such that the giving of notice may defeat the purpose of the application, eg an Piller-type order; where immediate relief, even though it may be temporary in nature, is essential because harm is imminent. In such cases the applicant will often seek a rule nisi, the application then being in the nature of an ex parte application in terms of this subrule; where certain kinds of applications are customarily brought ex parte … ‘. [80] It emerges therefore that the applicant’s concerns could have been addressed - meaningfully - just like in the suspectus de fuga cases or in applications for Anton Piller orders - though the bringing of an ex parte application, which the applicant was in any event entitled to do, in terms of Section 51(2) of POCA, and which was also done in this instance. [81] If one then - for purposes of the afresh consideration of all the evidence before the court - considers on what further grounds the initial reasons advanced were amplified in the replying papers nothing really new emerges : it is in reply firstly reiterated that ‘the very purpose of authorizing ex parte proceedings, and of obtaining preservation orders, would be defeated if such applications would not be heard in camera and that, in order to ensure that any court
order issued in this respect would be effective, the proceedings must remain confidential until the court order has been both issued and served on the various persons who must be given notice’ – (this justification does not new ground and is covered by what has been said above in respect of the motivation for excusing an applicant from not having to give notice to a respondent in certain cases); and secondly, the argument was now made that ‘although Section 98(1) of POCA creates a general rule that hearings contemplated in the Act must be open to the public it explicitly excludes ex parte applications from that general rule’; and thirdly, it is stated that ‘because the Constitution authorizes in camera hearings in certain exceptional circumstances the National Assembly has determined, in section 98(1) of the Act, that ex parte proceedings under the Act are one of those exceptional circumstances’; and finally the was made that ‘as the respondent had not challenged the validity of section 98(1) he could not assert that an ex parte hearing in camera was inconsistent with the Constitution and that in any event section 98(1) of the Act authorized the utilization of such procedure’ – (all these grounds have already been held not to be in accord with the correct interpretation to be given to section 98 above). [82] This then to the consideration the central question whether or not the applicant has met the requirements set by section 98 (2) of POCA and the Constitution? [83] In this regard it is firstly of relevance that it is without question that section 98(2)(b) is not of application. [84] Secondly I consider that the requirements set by section 98(2)(a) were also not met as the bringing of this application, without notice to the respondent, already satisfied the interests of justice, which, in this instance, did not also require the exclusion of the public on the facts of this case. [85] In this regard it must also be kept in mind that the respondent was forewarned during the proceedings before the lower court on 28 July 2011 that an application for