Lekota v Editor, 'Tribute' Magazine, and Another

• Jurisdiction: South Africa
• Judge: Flemming Djp
• Judgment Date: 06 December 1994
• Docket Number: 93/2642
• Court: Witwatersrand Local Division
• Hearing Date: 08 November 1994
• Citation: 1995 (2) SA 706 (W)

H Flemming DJP:

In this Motion Court application condonation was sought of the lateness of holding a pre-trial conference.

Wrong views of applicant's attorney, added to uncertainties of other practitioners, make it advisable to explain that condonation was appropriate despite a reason advanced by the applicant and not because I thereof. That reason is that a timeous date did not suit applicant's counsel.

Before the 1994 amendment of Rule 37 of the Uniform Rules of Court, [*] the Rule required a conference with the object of 'reaching agreement . . . as to . . . the following matters . . .'. The 'matters' were general topics

Flemming DJP

A like 'the making of any discovery of documents', Rule 37 not adding any more specific requirement. That contributed thereto that for many years Rule 37 meant little. Conferences were literally held at the last minute and as a formality.

It was not any good quality of Rule 37 but initiatives from the Bench B which later encouraged some recognisable effort (and a minuted report thereof) to eliminate issues. Such interest from the Bench was evidenced, for example, in the importance attached by an ex-Colleague to a meeting of the experts of the parties. In divorce cases in which a monetary claim is made, I found it productive to require the parties to list the liabilities C and assets of each party, to state their valuation of each item and to try to agree on individual items. No doubt in other cases and before other Judges, other techniques would have been found useful to achieve some benefit for litigants despite the soulless Rule. A Division tried to guide towards something better with Practice Directions.

None of those judicial pressures was specifically or even generally D attended to by Rule 37. That remained the case when Rule 37 was amended. Subject to Rule 37(6), it is still not necessary to discuss any specific fact or issue, to follow any specific method of seeking agreement (such as getting experts to meet), etc. Nor was a time limit for discussions introduced - except again for the specific topics of Rule 37(6).

E But where the six-week limit does operate, there are reasons why that limit should not be lightly dishonoured. That becomes clearer if one, first, turns to the objects of the amendment as being relevant to interpretation. The deficiencies of the old Rule were not only its lack of giving direction. A conference could not be enforced if a party was not represented. It was impossible to curb the recalcitrant or to assist F the competent. One party could not apply pressure on the other to participate constructively in a discussion; the other party merely had to turn up. There was often no real getting together at all. The Court had no equipment or opportunity to measure slack effort towards avoiding issues. Above all, the Court could not so interpret or apply the Rule that it could achieve what was by practically unanimous consent absolutely G necessary: that serious attention to preparations for trial should not be left to the last and that impediments to proceeding with the trial should be known at an earlier stage.

In broad terms the amended Rule ties the six-week conference to...