On-line version ISSN 1466-3597
De Jure (Pretoria) vol.45 n.2 Pretoria 2012
Houston, ons het 'n probleem! Gapings, glipsies en goggas in onlangse wysigings aan die siviele prosesreg in landdroshowe
David HulmeI; Stephen PetéII
IBA, LLB, LLM; Senior Lecturer of Law, School of Law, Howard College, University of KwaZulu-Natal; Attorney of the High Court of South Africa
IIBA, LLB, LLM, MPhil; Associate Professor of Law, School of Law, Howard College, University of KwaZulu-Natal; Attorney of the High Court of South Africa
Die tempo van verandering op die gebied van siviele prosesreg het onlangs toegeneem. Grootskaalse verandering gaan egter dikwels gepaard met verwarring en ontwrigting. Merkwaardige veranderinge aan die struktuur en funksionering van die land se landdroshowe het onlangs 'n reeks "gapings, glipsies en goggas" tot gevolg gehad. Die aard en omvang van hierdie "gapings, glipsies en goggas" dui op 'n kommerwekkende ontwikkeling, naamlik dat onvoldoende sorg en aandag geskenk blyk te word gedurende die proses van wetsontwerp en opstel van regulasies. Indien dit nie aangespreek word nie, mag die verskeie probleme waarop hierdie artikel dui, selfs die toekomstige vlot transformasie van die Suid-Afrikaanse regstelsel verhinder.
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1 Significant changes in this area of the law during the early years following the demise of apartheid included: the revamping of the s 65 debt collection procedure in the wake of the decision of the Constitutional Court in Coetzee v Government of the Republic of South Africa; Matiso v Commanding Officer, Port Elizabeth Prison 1995 4 SA 631 (CC); the scrapping and reconfiguration of notice and prescription periods required for taking legal proceedings against certain state bodies, following cases such as Mohlomi v Minister of Defence 1997 1 SA 124 (CC) and Moise v Greater Germiston Transitional Local Council 2001 4 SA 491 (CC), as well as the enactment of The Institution of Legal Proceedings Against Certain Organs of the State Act 40 of 2002; the broader approach of the courts to locus standi when enforcing the Bill of Rights (and as set out in s 38 of the Constitution) in cases such as Coetzee v Comitis 2001 1 SA 1254 (C) and Independent Electoral Commission v Langeberg Municipality 2001 3 SA 925 (CC) par 15.
2 The changes were brought about in terms of the Renaming of High Courts Act 30 of 2008, and took effect from 2009-03-01.
3 B 7-2011 : An explanatory summary of the Bill was published in GG 33216, 2010-05-21.
4 B 6-2011: Particulars of the proposed amendments were published in GG 33216, 2012-05-21.
5 Ss 3, 4 Constitution Seventeenth Amendment Bill, which is currently before parliament, propose amending the Constitution in such a way as to make the Constitutional Court the final court of appeal in constitutional and in other matters in respect of which the Constitutional Court has granted leave to appeal on the grounds that the interests of justice require that the matter be decided by it. See GG 33216, 2012-05-21, not 414 of 2010.
6 These significant changes were brought about by the Regional Courts Amendment Act 31 of 2008, which was brought into operation on 2010-0809 in terms of Proc R41 GG 33448, 2010-08-06.
7 The Rules Board was established by s 2 Rules Board for Courts of Law Act 107 of 1985. The Board was acting in compliance with a direction set out in section 9(6)(a) Jurisdiction of Regional Courts Amendment Act 31 of 2008, which required the Board to review and amend the existing rules of magistrates' courts, so as to ensure that the new courts of regional divisions could exercise jurisdiction effectively and efficiently. The Rules Board used this opportunity to bring the Magistrates' Courts Rules closer to the high court rules (ie to the Uniform Rules of Court).
8 See the definition of "court" in s 1 Magistrates' Courts Act 32 of 1944 (MCA) as amended by the Jurisdiction of Regional Courts Amendment Act 31 of 2008, which came into operation on 2010-08-09, read with GN 670 GG 33418, 2010-07-29.
9 32 of 1944.
10 31 of 2008.
11 32 of 1944.
12 31 of 2008.
14 See Proc R41 GG 33448, 2010-08-06.
15 Act 33 of 1957.
16 Section 14(e) Interpretation Act 33 of 1957.
17 See GG 33418 2010-07-29.
18 Act 31 of 2008
19 Act 33 of 1957.
20 1961 2 SA 654 (T) 656.
21 Further, note the following analysis of Rumpff JA in Cresto Machines (Edms) Bpk v Die Afdeling Speur-Offisier SA Polisie Noord-Transvaal 1972 1 SA 376 (A) 391: "Die bedoeling skyn duidelik te wees dat Kennisgewings uitgereik kan word en ander handelinge verrig kan word ná aanname van die Wet vir sover dit nodig is om die Wet by sy inwerkingtreding te laat funksioneer. Dit gebeur gereeld dat artikels van 'n Wet voorsiening maak vir die aanstelling van persone in sekere ampte, vir die uitvaardiging van regulasies en reëls en die doen van ander handelinge. Indien so 'n Wet in werking gestel sou word sonder voorafgaande aanstellings, uitvaardiging van regulasies of kennisgewings sou die Wet of sekere artikels daarvan wesenlik nie funksioneer nie totdat die nodige aanstellings gedoen is en die regulasies en kennisgewings uitgevaardig is. Klaarblyklik sou dit 'n ondoeltreffende proses wees om die Wet in werking te stel terwyl die geheel of dele daarvan nie funksioneer nie en daar gewag moet word op toekomstige administratiewe handelinge. Dit is dus te verstaan dat die Interpretasiewet voorsiening maak om 'n Wet behoorlik te laat funksioneer wanneer dit in werking tree." See also S v Manelis 1965 1 SA 748 (A); S v Van der Horst 1991 1 SA 552 (C); Cats Entertainment CC v Minister of Justice, Van der Merwe v Minister of Justice, Lucksters CC v Minister of Justice 1995 1 SA 869 (T); and Harksen v Director of Public Prosecutions, Cape 1999 4 SA 1201 (C).
22 Act 31 of 2008
23 The various causes of action were set out in ss 29(1)(a)-(g) MCA. The monetary jurisdictional limits were set out in Sch 2 GN 670 GG 33418, 2010-07-29.
24 S 29(1C) MCA.
25 See s 2(1)(iA) MCA.
26 Van Loggerenberg Jones and Buckle: The Civil Practice of the Magistrates' Courts in South Africa: Volume 1 - The Act (2011) 11. [ Links ]
27 32 of 1944.
28 See Col B Sch 2 GN 670 GG 33418, 2010-07-29.
29 32 of 1944.
30 S 29(1)(a) MCA employs the words "not exceeding in value the amount determined by the Minister" whereas s 29(1)(b), (d), (f), (g) MCA employ the words "not exceed the amount determined by the Minister".
31 Van Loggerenberg Jones and Buckle 1 119.
32 32 of 1944.
33 34 of 2005.
34 See Nedbank Ltd v Mateman; Nedbank Ltd v Stringer 2008 4 SA 276 (T) 284B-C.
35 See GG 33418, 2010-07-29.
36 See Col B Sch 2 GN 670 GG 3341 8, 2010-07-29.
37 It is not possible to discuss in detail all the anomalies which now exist in relation to the jurisdiction of the magistrates' courts. The following anomaly, however, deserves brief mention. In terms of s 46(2)(c) MCA, the magistrates' courts shall have no jurisdiction in matters in which is sought specific performance without an alternative of payment of damages, except in: (i) the rendering of an account in respect of which the claim does not exceed R100 000; (ii) the delivery or transfer of property, movable or immovable, not exceeding R100 000 in value; (iii) the delivery or transfer of property, movable or immovable, exceeding R100 000 in value, where the consent of the parties has been obtained in terms of s 45 MCA (see s 46(2)(c) MCA read with GN R1411, 1998-10-30). All this seems simple enough. It is anomalous, however, that the monetary limits referred to above remain fixed at R100 000 for both district and regional magistrates' courts. Since the general monetary jurisdiction for the new regional magistrates' courts is only capped at R300 000, it is odd that the monetary limits referred to above were not set at this level for these courts, when they were brought into existence.
38 In terms of GN 888, 2010-10-08
39 One possible reason is to make provision for the wider and higher jurisdiction that the regional magistrates' courts now enjoy, including jurisdiction over divorce matters and an extension of the monetary value of claims that can be dealt with by these courts. Another reason is apparently the notion that eventually there will be more frequent promotion from the magistracy to the judiciary as suggested in the preamble to the Jurisdiction of Regional Courts Amendment Act 31 of 2008, and that the courts should therefore align more closely in their practices. An interesting feature on this particular head is the introduction for the first time, if in somewhat in limited form, of inherent jurisdiction to the magistracy.
40 The correct title for the high court rules is the 'Uniform Rules of Court' - of course, reflecting this particular set of rules' history as a replacement for the individual sets of rules for the former provincial divisions, which still exist and may be used in the case of a lacuna. We shall refer to the "Uniform Rules" where the context involves the name of the rule set and the "high court rules" where a description of the type of rule is involved.
41 See rr 5, 6, 16, 60A, 23 Magistrates' Courts Rules.
42 Compare r 32 Uniform Rules and r 14 Magistrates' Courts Rules.
43 See r 5(3)(a)(i), 5(3)(b), 5(3)(c) Magistrates' Courts Rules.
44 For instance, compare the provision for citation in r 17(4)(a) Uniform Rules with that contained in the otherwise similar r 5(4)(a) Magistrates' Courts Rules.
45 Thus, for instance, "seems meet" has been amended to "seems fit" where it appears in r 60A Magistrates' Courts Rules. Another example is r 24(7)(b) Magistrates' Courts Rules, which provides that either party may bring an application to the court and the court may make such order as it may deem "fit", replacing the word "just", which is employed in the otherwise similarly worded r 36(7) Uniform Rules.
46 This may include, for instance, the departure from high court practice in the amended r 5(2)(b) Magistrates' Courts Rules, which provides for simple summonses, but unlike the corresponding r 17(2)(a) Uniform Rules, permits the choice of using a combined summons in the case of a debt or liquidated demand. A guide to the new rules issued by the Department of Justice suggested that the reason for the discrepancy was the preference of many attorneys for having the choice to use a combined summons in these circumstances. Indeed, there are situations in which the use of a combined summons in the case of a debt or liquidated demand is justified, and provision for choice in the Magistrates' Courts Rules would suggest that the Uniform Rules will be amended to provide for the same choice in due course.
47 Common law rules apply to the granting of costs in the high courts, with r 70 Uniform Rules providing for taxation, whilst r 33 Magistrates' Courts Rules provides both substantive regulation for costs' orders and the procedure for taxation in the magistrates' courts. Whilst previously similar in operation, recent amendments to r 70 have made the procedures for taxation in each court quite different. Given that no attempt was made to bring r 33 Magistrates' Courts Rules into alignment with the Uniform Rules during the 2010 amendments, it would seem that the intention is for taxation procedures in each court to remain dissimilar.
48 S 54 MCA; r 25 Magistrates' Courts Rules.
49 Liquidators Wapejo Shipping Co Ltd v Lurie Bros 1924 AD 69 76. Nevertheless, there is authority to the effect that the rules of pleading ought to be observed within the magistrates' courts also; see Matambanadzo Bus Service (Pty) Ltd v Magner 1972 1 SA 198 (RA) 199H-200A.
50 See r 1(3) which empowers the courts at a pre-trial conference held in terms of s 54(1) MCA, to "dispense with any provision of these rules and give directions as to the procedure to be followed by the parties so as to dispose of the action in the most expeditious and least costly manner."
51 R 17 previously dealt with exceptions and applications to strike out, whilst rather confusingly, r 19, which now deals with exceptions and applications to strike out, previously dealt with pleas.
52 For instance, r 19(10) of the former Magistrates' Courts Rules, provided that every allegation of fact made by the plaintiff that was inconsistent with the defendant's plea, would be presumed to be denied and all allegations consistent with the plea were presumed to be admitted. The new r 17(3) conforms to high court practice and r 22(3) Uniform Rules, however, by providing that all allegations not specifically denied or admitted will be taken to be admitted.
53 Sibeka v Minister of Police 1984 1 SA 792 (W) 795G-H; McLelland v Hulett 1992 (1) SA 456 (D) 463B-H; Harvey Tiling Co (Pty) Ltd vRodomac (Pty) Ltd 1977 1 SA 316 (T) 329D; Sibeka v Minister of Police 1984 1 SA 792 (W) 794H.
54 Groenewald v Minister van Justisie 1972 4 SA 223 (O) 225E.
55 Imprefed (Pty) Ltd v National Transport Commission 1990 3 SA 324 (T) 325F-G.
56 In terms of GN R1882 and GN R1883 respectively.
57 See Van Loggerenberg et al Erasmus Superior Court Practice [Revision Service 37] Rule 33 and the authorities cited there; King v King 1971 2 SA 630 (O) 634G; Groenewald v Minister van Justisie 1972 4 SA 223 (O) 225B; Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 1 SA 316 (T) 329D.
58 Other than the replication, these additional pleadings are referred to only in abstract fashion in r 25 Uniform Rules. R 25(5) provides: "Further pleadings may, subject to the provisions mutatis mutandis of sub-rule (2) be delivered by the respective parties within ten days after the previous pleading delivered by the opposite party. Such pleadings shall be designated by the names by which they are customarily known".
59 The pleadings that follow a plea are relatively rare, as replication cannot be used for introducing a fresh cause of action or adding averments that ought to have been included in the plaintiff's declaration, and to do so is known as a "departure" (see Broad v Bloom 1903 TH 427; Butler v Swain 1960 1 SA 527 (N)). Usually, a replication followed by any of the subsequent pleadings will be prompted by the defendant pleading "confession and avoidance", by admitting the truth of the plaintiff's averments but adding further information which shows the plaintiff's averments in a different light. A slightly different kind of example would be a special plea of prescription, which would require the plaintiff to resist the special plea by averring in a replication that prescription had been interrupted in some fashion.
60 The sub-rule also dispensed with the need for an appearance to defend, and provided that the time limits would run from the date of the delivery of the claim in reconvention. R 20(2) provided for the time in which a claim in reconvention should be served, which it indicated should be within the time limited by the former r 19 for the delivery of the defendant's plea, read with r 12(1)(b).
61 R 5(2)(b), (a).
62 R 18(4) Uniform Rules, the counterpart of the new r 6(4) Magistrates' Courts Rules, became necessary with the elimination of requests for further particulars to pleadings in high court practice during the 1980s, a process which has been repeated in the magistrates' courts as a result of the 2010 amendments.
63 R 15 Magistrates' Courts Rules.
64 See Moghambaram v Travagaimmal 1963 3 SA 61 (D).
65 R 25(2) Uniform Rules, read with r 29(b).
66 Before the 2010 amendment, r 21(4) provided that "where no reply to the plea is delivered, upon the expiration of the period limited for reply to the plea, the pleadings shall be deemed to be closed". The practical effect was therefore identical to high court practice, as there was only provision for the solitary reply, and if that was not timeously delivered, pleadings would be deemed to be closed, whether or not the reply was necessary. R 21(2) together with r 21A(b), have a similar effect, except that the deeming provision in r 21(2) appears to be dependent on the further pleading not being necessary. This appears to clash with r 21A(b), which makes no such distinction.
67 R 60 Magistrates' Courts Rules is a general rule, in respect of non-compliance with rules, including time limits and errors.
68 Rr 30, 30A Uniform Rules.
69 32 of 1944.
70 R 16 of the Magistrates' Courts Rules prior to amendment.
71 32 of 1944.