Szedlacsek v Szedlacsek; Van der Walt v Van der Walt; Warner v Warner

• Jurisdiction: South Africa
• Judge: Leach J
• Judgment Date: 13 July 1999
• Citation: 2000 (4) SA 147 (E)
• Docket Number: EL 703/97, EL 68/99, EL 37/99
• Hearing Date: 13 July 1999
• Counsel: A B Goosen for the applicants. No appearance for the respondents.
• Court: Eastern Cape Division

Leach J:

In each of these matters the applicant, relying upon the provisions of Uniform Rule of Court 21(4), sought an order directing the J

Leach J

respondent '. . . to comply with the applicant's request for further particulars for purposes of A trial' within a specified period. Moreover, in the Warner matter (case No EL 37/99) the applicant, presumably acting under the provisions of Uniform Rule of Court 35(7), also sought an order directing the respondent to comply with a notice served upon him under Rule 35(1). Notwithstanding the fact that the respondents in each case had not timeously replied to the requests for particulars for B trial and, in the Warner case, had not timeously filed a discovery affidavit under Rule 35(2), I dismissed the applications, indicating that my reasons for doing so would follow. These are my reasons.

In seeking relief, the applicants were of course obliged to rely upon the provisions of the Rules of Court. In Khunou and Others v M C Fihrer & Son (Pty) Ltd and Others1982 (3) SA 353 (W) at 355 - 6 Slomowitz AJ said the following about civil procedure in general and the Rules of Court in particular:

'The proper function of a Court is to try disputes between litigants who have real grievances and so see to it that justice is done. The rules of civil procedure exist in order to enable Courts to D perform this duty with which, in turn, the orderly functioning, and indeed the very existence, of society is inextricably interwoven. The Rules of Court are in a sense merely a refinement of the general rules of civil procedure. They are designed not only to allow litigants to come to grips as expeditiously and as inexpensively as possible with the real issues between them, but also to ensure that the Courts dispense justice uniformly and fairly, and that the true issues which I E have mentioned are clarified and tried in a just manner.

. . .

It follows that the principles of adjectival law, whether expressed in the Rules of Court or otherwise, are necessarily flexible. Unfortunately this concomitant brings in its train the opportunity for unscrupulous litigants and those who F would wish to delay or deny justice to so manipulate the Courts' procedures that their true purpose is frustrated. Courts must be ever vigilant against this and other types of abuse. What is more important is that the Court's officers, and especially its attorneys, have an equally sacred duty. Whatever the temptation or provocation, they must not lend themselves to the propagation of this evil, and so allow the administration of justice to fall into disrepute.'

These observations I wholeheartedly endorse. It is trite that Rules are there for the Court, not the Court for the Rules and this Court must zealously guard against its Rules being...