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Changes to court rules and directives

On 3 June 2022, changes to the Magistrate’s Court, High Court and the Supreme Court of Appeal (“SCA”) rules were published in the Government Gazette. These changes take effect from 8 July 2022.

Magistrate’s Court rules

Rule 43 of the Magistrate’s Court rules has been amended to make provision for a warrant of execution against immovable property to set out the title deed number, the erf number or sectional title unit number and exclusive use area to enable the Registrar of Deeds to identify the immovable property and record the attachment as an interdict against the property. There has also been an increase in the tariff of costs that are recoverable in terms of the Magistrate’s Court rules.

High Court rules

Rule 6 of the High Court rules has been amended so that a respondent in an application will, after the changed rule takes effect, have 10 days within which to deliver a notice of intention to oppose.

Rule 30A of the High Court rules has been amended to also make provision for a party’s failure to comply with an order or direction made by a court.

A new Rule 37B has been inserted. It provides that if an application in writing has not been made to the registrar by any party to a case within 24 months of the date of issue of the summons, for the set down of the matter for trial or if after the expiry of the period of 24 months, the matter is not ready for referral by the registrar to judicial case management, the registrar should, after giving the parties 30 days’ written notice and subject to Rule 37B(2), remove the file from the administrative record of pending matters and archive the file.

Rule 37B(2) allows a party to apply, to a judge in chambers, for an extension of time within which to render the matter ready for an application to be made for the set down of the matter for trial. A judge, to whom an extension of time application has been made, may grant the extension subject to such terms and conditions for the further conduct of the matter as that judge deems fit. The order for an extension of time should incorporate a timetable for the further conduct of the matter and include a date by which an application should be made, in writing to the registrar, for the set down of the matter for trial.

There are also amendments to rules dealing with legal assistance to indigent persons and an increase to the tariff of costs that may be recoverable in terms of the High Court rules.

Rule 37 of the High Court rules has been amplified by making provision for indicating whether any agreement was reached in regard to referring an issue or issues to a referee for investigation.

A new Rule 38A has been inserted to allow a court in civil proceedings to refer a matter to a referee to investigate and report thereon to a court, with the consent of the parties.

Supreme Court of Appeal rules

The SCA rule relating to legal assistance to indigent persons has been amplified. The tariff of fees that may be recovered in terms of the rules have also been increased.

Revised Commercial Court directives

The Deputy Judge President of the Johannesburg High Court has published revised Commercial Court practice directives, which came into effect on 1 June 2022. The Commercial Court aims to promote the efficient conduct of litigation and to resolve disputes quickly, cheaply, fairly and with legal acuity. A Commercial Court case may be an action or an application (including urgent applications).

The criteria for what types of matters constitute a Commercial Court case and which serve as a guideline for the declaration of a case as a Commercial Court case, include claims relating to:

  • the export or import of goods;
  • the carriage of goods by land, sea, air or pipeline;
  • the exportation of oil and gas reserves, or other natural resources that do not involve administrative law;
  • insurance and re-insurance;
  • banking and financial services;
  • the operation of markets and exchanges;
  • the purchase and sale of commodities;
  • medical scheme matters;
  • commercial matters arising out of business rescue and insolvency cases;
  • all commercial matters arising out of the Companies Act, 2008 and its interpretation;
  • arbitration;
  • delictual cases that take place in a commercial context (for example, unlawful competition cases);
  • appropriate contractual matters; and
  • intellectual property cases.

The above examples are not a closed list and any substantial case that has as its foundation a broadly commercial transaction or commercial relationship can be certified as a Commercial Court case.

An application for a matter to be allocated as a Commercial Court case is made by delivering a letter to the deputy judge president. This letter must include:

  1. a broad and uncontroversial description of the case;
  2. why the case should be allocated as a Commercial Court case (in this regard, information about the complexity or novelty of the law involved, complexity of the facts, the value at stake is ZAR25-million or more and whether there is any public interest in relation to the matter is considered).

The counterparty may, within five days after receiving the letter to the judge president requesting that the case be allocated as a Commercial Court case, make representations in regard to the request to allocate the matter as a Commercial Court case.

The judge president or deputy judge president would determine whether the case should be allocated as a Commercial Court case and should inform the parties in writing of the outcome of the application to allocate the case as a Commercial Court case.

All proceedings in the Commercial Court are subject to management by the court. If one or more parties conduct themselves in a dilatory manner and thus contrary to the spirit of the Commercial Court system, the judge assigned to manage the matter may cancel the certification of the matter as a Commercial Court case.

Once a judge is allocated to a Commercial Court case, a first case management conference must be held at a date and time determined by the judge. At the first case management conference, the following matters must be canvassed:

  • a general sense of what the matter is about;
  • what needs to be done to bring the matter to trial;
  • a timetable for getting the matter expeditiously to trial;
  • a potential trial date;
  • the number of witnesses likely to be called, including expert witnesses;
  • the probable length of the trial; and
  • selecting an appropriate electronic means for communications and exchange and filing of documents.

A second case management conference must be held and the parties would present an agreed list of triable issues or, absent agreement, each party’s identification of the triable issues. All interlocutory issues should be dealt with at the second case management conference.

Dates for the filing of witness statements would be fixed at the second case management conference and such witness statements would generally constitute the evidence in chief of the particular witness.

No general discovery is required in Commercial Court cases but at the second case management conference, the judge may allow for the targeted disclosure of documents. A request for disclosure must be made concerning specified documents or classes of documents that are relevant to the dispute. Any enforcement applications relating to the disclosure of documents would be determined by the case management judge or judges in good time to permit for the orderly preparation for trial.

A bundle of essential documents to be used at the trial must be compiled and agreed upon by the parties and unless otherwise specifically decided by the judge, the documents would be admitted, without the necessity for formal proof.

For applications designated as Commercial Court cases, a case management conference must also be held before the judge allocated to case manage the matter.

At such a case management conference, the following must be dealt with:

  • a timetable for the filing of affidavits or further affidavits;
  • a date for the filing of heads of argument;
  • a date for the hearing; and
  • the length of the hearing.

In relation to urgent applications, depending on the degree of urgency alleged by the applicant, the applicant ought to make a written or telephonic request that the matter is allocated as an urgent Commercial Court matter and that a judge is urgently allocated to hear the matter. The allocated judge would issue directives in respect of the filing of papers on a truncated basis, appropriate to the degree of urgency contended for by the applicant.

Special Interlocutory Court

On 7 June 2022, a revised Chapter 8, to provide clarity on the scope of the special interlocutory court, was published by the Johannesburg High Court and this revised chapter comes into effect on 17 June 2022.

Opposed or unopposed interlocutory applications could be placed on the roll of the special interlocutory court.

If a party, other than the Road Accident Fund, fails to comply with an order served on that party and a rule of court provides that such non-compliance may entitle an aggrieved party to apply to strike out the claim or defence, such application to strike out should be enrolled in the special interlocutory court.

Aslam Moosajee

Dispute Resolution | Executive

amoosajee@ENSafrica.com

 

Vishana Makan

Dispute Resolution | Associate

vmakan@ENSafrica.com