Civil Procedure

• Citation: 2021/2022 YSAL 138
• Published date: 14 April 2023
• Pages: 138-175
• Author: van Loggerenberg, D.
• Date: 14 April 2023

138

1. INTRODUCTION

During the past year var ious amendments to the Rules of the Supreme

Court of Appeal, the Uniform Rules of Court, and t he magistrates’ courts

rules came into operation.

In addition, the Minister of Justice a nd Correctional Supervi sion

published various notices creati ng magisterial dist ricts and establish ing

district courts i n various provinces, all of which a re with effect from

1 April 2022, and numerous practice direct ives dealing with various aspects

of court procedure were published by the Judges President of most of the

divisions of the High Court.

The superior courts delivered judgments about various aspe cts of civil

procedure. In some judgments, well-established pri nciples were reiterated;

in others, new principles in respe ct of, among others, the application of rules

of court were laid down.

A number of articles deal ing with different aspe cts of civil procedure

were publ ished.

2. LEGISLATION

2.1 CRIMINAL AND RELATED MATTERS AMENDMENT ACT 12 OF

2021

On 28 January 2022, the Crimi nal and Related Matters Amendment Act1

was publishe d.2 This statute amends t he Magistrates’ Courts Act3 and the

∗ SC; B Iuris LLB (PU for CHE) LLD (UPE); Member of the Pretoria Bar; formerly

Professor of Law, University of Port Elizabeth; Extraordinary Professor of Law, University

of Pretoria; Marcel Storme Chair Professor of Law, University of Ghent, Belgium (2016–17).

ORCID: https://orcid.org/0000-0003-1086-9642.

1 12 of 2021.

2 GG 45822 of 28 January 2022.

3 32 of 1944.

Civil ProcedureCivil Procedure

Danie van Loggerenberg*

2021/2022 YSAL 138

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CIvIL proCedure 139

Superior Cour ts Act4 to provide for the appointment of intermedia ries and

the giving of evidence th rough intermediaries i n proceedings other t han

crimina l proceedings and matter s connected therewith. It wi ll come into

operation on a date to be proclaimed.

2.2 MAGISTERIAL DISTRICTS, DISTRICT COURTS AND PLACES

FOR THE HOLDING OF MAGISTRATES’ COURTS

On 30 March 2022 the Min ister of Justice and Correctiona l Supervision

published the following notices, all of wh ich are with effect from 1 Apri l

2022:5

(a) GN 928 converting certain places for the holdi ng of magistrates’ courts;

(b) GN 929 creati ng magisterial di stricts and establish ing district cour ts

in the Free State Province;

(c) GN 930 creating magisterial distric ts and establishing d istrict courts

in the KwaZulu-Natal Province;

(d) GN 931 creating magisteri al districts a nd establishing dist rict courts

in the Eastern Cape Province;

(e) GN 932 creating magisteria l districts and est ablishing distr ict courts

in the Western Cape Province.

2.3 LOWER COURTS BILL

On 29 April 2022, the Minister of Justice a nd Correctional Services published

a draft Lower Courts Bill [Bxx-2022] for public consultation. The aim of

the draft Bill is to m ake provision for the establishment of lower courts,

comprising regional cour ts, district courts a nd municipal courts, and to

repeal the Magistrates’ Cour ts Act.

2.4 AMENDMENTS TO THE RULES OF THE SUPREME COURT OF

APPEAL

On 1 February 2022 rules 8 (Record) and 10 (Heads of argume nt) of the Rules

of the Supreme Court of Appeal were amended.6

On 8 July 2022 rules 15 (Legal assistance to i ndigent persons) and 18

(Attorneys’ fees) of the Supreme Court of Appeal were amended.7

4 10 of 2013.

5 GG 46132 of 30 March 2022.

6 GN R1602, GG 45645 of 17 December 2021.

7 GN R2135, GG 46475 of 3 June 2022.

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2.5 AMENDMENTS TO THE UNIFORM RULES OF COURT

On 1 February 2022, rules 17 (Summons) and 37 (Pre-tria l Conference) of

the Uniform Rules of Court were amended, ru le 38(9) (Procuring evidence

for trial) was added, and rule 57 (De Lunatico Inquirendo, appointment of

curators in respect of person s under disability and release f rom curatorship)

and forms 9 (Summons) and 10 (Combined summons) of the First Schedule

were substituted.8

An evaluation of the amendments to rule s 37 and 38 demonstrates the

following:

(a) Under rule 37(6)(i) the minutes of the pre-trial con ference must now

also include any agreement bet ween the parties regardi ng whether

evidence is required to be ta ken on commission or by way of

audiovisual link in t erms of rule 38 of the Uniform Rules of Court.

(b) Rul e 38(9)(a) provides that a cour t may, on application on notice by a ny

party and where it appears convenient or in the i nterests of justice,

make an order for evidence to be taken th rough audiovisual link.

(c) Under rule 38(9) an order for evidence to be taken through audiovisual

link wil l be made where it appears to the court to be convenient or in

the interests of justice to mak e such an order.

The word ‘convenient’ denotes not only facility or expedience or ease, but

also appropriateness in the sen se that the procedure would be convenient

if, in all the circ umstances of the case, it appears to be fitting and fa ir to the

parties concerned. It is submitte d that the order should be made if taki ng

evidence through audiovisual li nk is convenient to the parties, the witness es

and the court.

The interests of justice is a broad concept a nd the question whether it will

be in the interests of just ice for evidence to be taken through audiovisua l

link wil l have to be decided in the light of the facts of eac h case.

In Uramin (Incorporated in British Columbia) t/a Areva Resources Southern

Africa v Perie,9 it was held to be convenient and in the intere sts of justice to

vary the general tria l procedure under rule 39(9), and receive the evidence

of two witnesses, with thei r consent, from abroad via video lin k under

circumsta nces where their evidence was vital to the defendant’s defence but

both of them were no longer in its employ and not willing to t ravel from

abroad to the seat of the trial cour t in Johannesburg in order to testify.

In Rand Gold & Exploration Co Ltd v Gold Fields O perations Ltd,10 the

applicants applied to the High Court for the court to i ssue letters to certai n

foreign judicial authorities request ing them to subpoena witne sses in

8 GN R1603, GG 45645 of 17 December 2021.

9 2017 (1) SA 236 (GJ).

10 2020 (3) SA 251 (GJ).

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