Procedural law and practice : review of August 2015 session of Court of Appeal
| Date | 01 January 2016 |
| Author | B. Sekonyela |
| Published date | 01 January 2016 |
| DOI | 10.10520/EJC196799 |
| Pages | 3-18 |
REVIEW OF AU GUST 2015 SESSION O F COURT OF
APPEAL
PROCEDURAL LAW AND P RACTICE
SEKONYELA , B⃰
INTRODUCTI ON
Procedural law is defined as that body of legal rules which
prescribes the procedure to be followed whe n a substantive or
material rule of law requires enforcement or where such a rule
has been transgressed and redress is needed.
1
It is thus
accessory to substantive law. Whereas the su bstantive law
defines legal rights , duties and remedies, adjective law deals
with the ‘enforcement of these ri ghts duties and reme dies’.
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, J W et al. Introduction to So uth African law and Legal Theory:
Butterworth Durban 1 995 at 1129 .
2
Supra at 11 32.
4 LL J Vol. 24 No. 2
It has also bee n 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 completion of litigation. They have been
devised to further the administration of justice, not to hamper
it.
5
Consequently, justice and fairness have to be the pri me
consideration in the interpretation of the procedural rules.
6
In
the case of National University of Lesotho and another v Motlatsi
3
Khunou v M Fihrer & S ons (PTY) LTD 19 82 (3)SA 353 (W) 355H; See
& Van Winsen. The C ivil Prac tice of the Superior Courts of S outh Africa
3rd Ed, at 18-19.
4
Highfield Milling Co (Pty) Lt d v A E Wormald & Sons 1966 2 SA 463
(E).
5
Kgobane v Ministr of Justice 1969 3 SA 365 (A).
6
See Highfiel d Milling Co Ltd (s upra).
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