Procedural law and practice : review of August 2015 session of Court of Appeal

• Author: B. Sekonyela
• DOI: 10.10520/EJC196799
• Published date: 01 January 2016
• Date: 01 January 2016
• Pages: 3-18
• publishedBy: National University of Lesotho

REVIEW OF AU GUST 2015 SESSION OF COURT OF

APPEAL

PROCEDURAL LAW AND PRACTICE

SEKONYELA, B⃰

INTRODUCTION

Procedural law is defined as that body of legal rules which

prescribes the procedure to be followed when a substantive or

material rule of law requires enforcement or where such a rule

has been transgressedand redress is needed.

1

It is thus

accessory to substantive law. Whereas the substantive law

defines legal rights, duties andremedies, adjective law deals

with the ‘enforcement of these rights duties and remedies’.

2

In

other words, in assessing the procedural and practice rules

which have been established by the courts, the main question

is whether the interpretation of those rules has led to effective

dispensation of justice.

⃰ Lecturer, Faculty of Law of the N ational University of Lesotho .

1

Hosten, JW et al. Introduction to So uth African law and Legal Theory:

Butterworth Durban 1995 at 1129.

2

Supra at 1132.

4 LL J Vol. 24 No. 2

It has also been argued that the purpose of the rules of court

is,

...not only to allow litigants to come to grips as

expeditiously and as inexpensively as possible with

the real issues in dispute between them, but to

ensure that the Courts dispense with justice

uniformly and fairly.

3

(emphasis added)

The object of the rules is to ensure a fair trial, and they should

be interpreted in such a manner that they conform to the

constitution of the country. As it is normally said, the rules are

made and ‘exist for the court, not the court for the rules’.

4

They are not an end in themselves and ‘are not observed for

their own sake, but are provided to ensure the inexpensive

and expeditious completionof litigation.They have been

devised to further the administration of justice, not to hamper

it.

5

Consequently, justice and fairness have to be the prime

consideration in the interpretation of the procedural rules.

6

In

the case of National University of Lesotho and another vMotlatsi

3

Khunou v M Fihrer & Sons (PTY) LTD 19 82 (3)SA 353 (W) 355H; See

also Ven ter v Du Plessis 1980 (3 ) SA 151 (T) 152A. See also Hebstein

& Van Winsen. The Civil Practice of the Superior Courts of S outh Africa

3rd Ed, at 18-19.

4

Highfield Milling Co (Pty) Lt d v AE Wormald & Sons1966 2 SA 463

(E).

5

Kgobane v Ministr of Justice 1969 3 SA 365 (A).

6

See Highfiel d Milling Co Ltd (supra).