More Tribulations than Trials?

Two significant amendments to the Uniform Rules of Court that were published on 31 May 2019 have come into operation on 1 July 2019. The amendments to the procedure of applying for summary judgment in terms of Rule 32, and the introduction of Rule 37A regarding judicial case management respectively are likely to affect all attorneys frequenting the High Courts of South Africa.

 

Amended Rule 32 summary judgment

The summary judgment procedure is designed to assist a plaintiff to obtain speedy judgment in claims based on certain causes of action. The granting of this remedy is extraordinary and based upon the supposition that the plaintiff’s claim is sound and the defendant’s defence is bad in law. The procedure was seemingly introduced in South Africa on the basis of its use in England and Scotland.

Prior to the amendment, the summary judgment procedure allowed for an application to be brought after a notice of intention to defend was delivered. This was found to be unsatisfactory in that the procedure was open to abuse by certain plaintiffs who were able to obtain a tactical advantage by binding the defendant to a version on oath. On the other hand, some plaintiffs were unable to obtain speedy relief due to an inability to unveil fictitious defences and it appeared that the burden of proof in a summary judgment application had shifted to the defendant, which was unfair and led to many constitutional challenges.

Pursuant to investigations by the Superior Court Task Team of the Rules Board for Courts of Law, it was suggested that the most suitable way of addressing these issues would be to require the affidavit in support of summary judgment to be filed at a time when the defendant’s defence is clear as set out in a plea. Jurisdictions like the United Kingdom, Canada, Australia and the U.S.A. have already implemented a similar procedure. 

In terms of the amended Rule 32, a plaintiff may now only apply for summary judgment after the defendant has delivered a plea. In addition, the plaintiff is obliged to not only verify the cause of action and confirm the amount claimed, if any, but he must now also: 1) identify any point of law relied upon and the facts upon which the plaintiff’s claim is based; and 2) explain briefly why the defence pleaded does not raise any issue for trial. It is suggested that this will dispel the notion that plaintiffs depose to standard form affidavits alleging that defendants have no real defence and places an additional burden on such plaintiffs to identify any point of law relied upon and explain why the defence does not raise any triable issues.

The new procedure will surely increase the workload of judges and costs for parties. Its’ constitutionality is also in question as legal writers suggest that it does not seem appropriate for a defendant’s defence to be tested in an opposed motion court instead of in the normal course of a trial.

Introduction of Rule 37A

Rule 37A introduced a judicial case management system to promote the effective disposal of defended actions and is partially a codification of the certification process that was introduced by Chief Justice Mogoeng Mogoeng in 2012.

Pursuant to the amendment, a Practice Directive was published by Judge President Mlambo on 5 July 2019 (“the Practice Directive”) to regulate case management, trial allocation, and enrolment of matters at the Johannesburg and Pretoria High Courts. In terms of the Practice Directive, read with Rule 37A, a plaintiff is now required at the time of issuing of summons to present to the registrar in the prescribed form a statement indicating which category the matter falls into as well as the details of a contact person including his/her email address to whom all communications will be sent. Upon filing the return of service of the summons, the plaintiff must now also indicate the date upon which the notice of intention to defend is due or the due date of the plea, where a notice of intention to defend has already been delivered.

In order to be allocated a trial date, one must obtain a certificate of trial readiness and in this regard, a statement signed by an attorney must be filed:

  • confirming that pleadings have closed,
  • an indexed and paginated pleadings bundle has been filed as well as a bundle of documents has been prepared,
  • discovery is complete,
  • expert witness reports have been be filed, bearing in mind the quirky amendment in Rule 36(9A) which provides that the parties must endeavour to have a single joint expert,
  • joint minutes of expert reports have been filed and comply with the directives, and
  • no interlocutory applications are outstanding or anticipated.

A copy of a signed pretrial minute, which is to be held 30 days before application for trial date, must also be provided as well as a Practice Note setting out the following:

  • the undisputed issues that do not require evidence,
  • the disputed issues that require evidence setting out :
  • the exact nature of dispute of fact or law, and
  • the exact contention of each issue.

Attorneys who misrepresent, either intentionally or negligently, that they have complied with the above requirements will automatically invalidate the certificate of trial readiness and such attorney will be referred to the Deputy Judge President and the Legal Practice Council for investigation.

Whilst the idea behind the issuing of the practice directive was to alleviate congested trial rolls and to streamline the finalisation of cases, lawyers who have been waiting for years to get a court date would now be prejudiced and forced to endure a further waiting period before appearing in court. Some of the legal fraternity argue that the forfeiture of trial dates allocated after March 2020 borders on denial of access to justice and are aching to challenge the practice directive’s constitutionality. It will certainly have a catastrophic effect on the public who wish to bring their cases before the courts.

However, all is not lost - the Practice Directive also allows for speedy resolution of interlocutory applications which are to be set down on the trial interlocutory court roll and heard on any day between Monday and Thursday. These applications are set down on notice with a guideline that affidavits will be not more than 5 pages long. To expedite matters, once an Order is granted the Court Order will be made available by the Registrar immediately or sent via email as soon as possible.

Interestingly, Practice Notes and Heads of Argument may also now be served and filed via email provided they are in PDF format and a proof of delivery is submitted. The Court appears to be moving away from archaic methods for delivery of documents and seems to be adopting a more technologically savvy procedure. This seems to be the first step in overhauling the court process to finally allow for a procedure that is electronic based. In an effort to curb a flood of cases that appear on the court roll, a law firm will now only be allowed to issue a maximum of five court processes per day. Whether this provision can actually be deemed fair is worth watching out for.

Finally, the Practice Directive uses the threat of a simmering punitive cost order that may include disallowing a legal practitioner from charging fees to a litigant and serves as a warning of the severity of non-compliance.

The article was written by Jesicca Rajpal and Muhammed Moti.

(Rajpal is a senior associate in dispute resolution and Moti a candidate attorney, Fasken)