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 various amendments to the Rules of the Supreme

Court of Appeal, the Uniform Rules of Court, and the magistrates’ courts

rules came into operation.

In addition, the Minister of Justice and Correctional Supervision

published various notices creating magisterial districts and establishing

district courts in various provinces, all of which are 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 aspects of civil

procedure. In some judgments, well-established principles 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 dealing with different aspects of civil procedure

were publ ished.

2. LEGISLATION

2.1 CRIMINAL AND RELATED MATTERS AMENDMENT ACT 12 OF

2021

On 28 January 2022, the Criminal and Related Matters Amendment Act1

was published.2 This statute amends the 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.

112 of 2021.

2GG 45822 of 28 January 2022.

332 of 1944.

Civil ProcedureCivil Procedure

Danie van Loggerenberg*

2021/2022 YSAL 138

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CIvIL proCedure139

Superior Courts Act4 to provide for the appointment of intermediaries and

the giving of evidence through intermediaries in proceedings other than

criminal proceedings and matters connected therewith. It will 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 Minister of Justice and Correctional Supervision

published the following notices, all of which are with effect from 1 April

2022:5

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

(b) GN 929 creating magisterial districts and establishing district courts

in the Free State Province;

(c) GN 930 creating magisterial districts and establishing district courts

in the KwaZulu-Natal Province;

(d) GN 931 creating magisterial districts and establishing district courts

in the Eastern Cape Province;

(e) GN 932 creating magisterial districts and establishing district 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 make provision for the establishment of lower courts,

comprising regional courts, district courts and 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 indigent persons) and 18

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

410 of 2013.

5GG 46132 of 30 March 2022.

6GN R1602, GG 45645 of 17 December 2021.

7GN 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-trial Conference) of

the Uniform Rules of Court were amended, rule 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 rules 37 and 38 demonstrates the

following:

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

also include any agreement between the parties regarding whether

evidence is required to be taken 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 interests 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 will 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 sense 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 submitted that the order should be made if taking

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 justice for evidence to be taken through audiovisual

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 interests of justice to

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

of two witnesses, with their consent, from abroad via video link 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 travel 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 Operations Ltd,10 the

applicants applied to the High Court for the court to issue letters to certain

foreign judicial authorities requesting them to subpoena witnesses in

8GN R1603, GG 45645 of 17 December 2021.

92017 (1) SA 236 (GJ).

102020 (3) SA 251 (GJ).

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