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[2012] ZAGPJHC 165
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In re: Several matters on the urgent court roll [2012] ZAGPJHC 165; [2012] 4 All SA 570 (GSJ); 2013 (1) SA 549 (GSJ) (18 September 2012)
REPORTABLE
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
In re several matters on the urgent court roll 18 September 2012
J U D G M E N T
Summary
Practice – Motions –
Urgent matters. All matters must comply with the provisions of the
Rules and South Gauteng Practice
Manual – Practice directives
valid and enforceable in both actions and applications.
WEPENER J:
[1] There are a number of
matters on today’s urgent court roll which do not comply with
the provisions of the Rules of Court
(‘the Rules’) and
the South Gauteng Practice Manual (‘the Practice Manual’)
regarding applications, and
in particular, the provisions regarding
urgent applications.
[2] The Rules and directives
contained in the Practice Manual are there to assist judges to
prepare for and hear urgent matters
expeditiously. These rules of
practice were introduced to also assist the judge who is to hear the
matters to be able to properly
prepare for the hearing.
[3] It is not only that
non-compliance with the Rules and Practice Manual per se is of
relevance; it is also discourteous towards
the judge who has to hear
a considerable number of so-called urgent matters on a particular day
not to comply with the provisions
of the Rules and the Practice
Manual.
[4] Some of the defects are the following:
a lack of indexing and pagination – the latter which assists a
judge to easily work with the papers and find relevant
documentation;
a lack of proper binding of
papers – the latter which, similarly to indexing and
pagination, assists a judge to work through
the papers with a
measure of convenience;
a lack of the index to describe
each affidavit and annexure as a separate item – making the
work of a judge more difficult
and indices that read ‘Annexure
A’, ‘Annexure B’, ‘Annexure C’ etc.,
are of no assistance
whatsoever and lacks compliance with the
Practice Manual;
a lack of compliance with the Practice Manual chapter 9.24 regarding
urgent applications in particular. As an example I refer
to the
requirement that the applicant is obliged to set out explicitly the
circumstances which render the matter urgent. In this
regard a
practice has developed in this Division that practitioners see to it
that there is a specific section headed ‘Urgency’
wherein this requirement is fully dealt with. This enables the
presiding judge to quickly and conveniently determine the nature
of
the urgency and why the matter should be afforded preference on the
motion roll i.e. why it should be heard in the urgent
court and not
in the normal course of events.
[5] The Practice Manual in 9.24 paragraph 3.5 provides:
‘
The
aforementioned practices will be strictly enforced by the presiding
judge. If an application is enrolled on a day or at a time
that is
not justified, the application will not be enrolled and an
appropriate punitive cost order may be made.
’
[6] The Practice Manual echoes the words of Rule 6(12)(b) which
provides:
‘
In
every affidavit or petition filed in support of any application under
paragraph (a) of this subrule, the applicant shall set
forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course.
’
In
Western
Bank Ltd v Packery
1977 (3) SA 141(T)
, Coetzee J (as he then was) held at 141B:
‘
The
Rules of Court are delegated legislation, have statutory force and
are binding on the Court’.
The Rules are also binding on litigants, who must comply therewith.
[7] The importance of these
provisions is that the procedure set out in Rule 6(12) is not there
for the mere taking. Notshe AJ
said in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others
(11/33767) [2011] ZAGPJHC 196 (23 September 2011) in paras 6 and 7 as
follows:
‘
[6]
The import thereof is that the procedure set out in rule 6(12) is not
there for taking. An applicant has to set forth explicitly
the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently urgent
to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial redress in an application
in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter were to wait for the normal
course
laid down by the rules it will not obtain substantial redress.
[7]
It is important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm
that is
required before the granting of an interim relief. It is something
less. He may still obtain redress in an application
in due course but
it may not be substantial. Whether an applicant will not be able
obtain substantial redress in an application
in due course will be
determined by the facts of each case. An a
pplicant
must make out his case in that regard.’
[8] There are a number of matters where these provisions have simply
been ignored. Practitioners are setting matters down in the
urgent
court for flimsy and inadequate reasons. This practice needs to be
discouraged.
[9] In addition, in Practice Manual paragraph 9.24 under the heading
Urgent Applications, it provides:
‘
When
an urgent application is brought for the Tuesday at 10h00 the
applicant must ensure that the relevant papers are filed with
the
registrar by the preceding Thursday at 12h00.
’
There is a clear duty on an applicant, who does not comply with this
provision, to supply a proper explanation why there has been
non-compliance with it.
[10] In
Greenberg
v Khumalo and Another
[2012]
JOL 29170
(GSJ), Potgieter AJ held that the practice directive which
is inconsistent with the Rules is procedurally incompetent. I
disagree
with the views expressed in
Greenberg
for two reasons. Firstly, on the reasoning of the learned judge it
has to be determined whether a practice directive is indeed
inconsistent with the Rules. If the practice directive is compatible
with or in addition to the Rules, the objection of the learned
judge
falls away.
[11] More importantly though,
there has been a prescribed practice in this Division as in many
other Divisions where practice directives
have been issued by the
Judges President or Deputy Judges President on authority of the
Judges President. This practice has been
a long standing one that has
been respected by judges and practitioners.
[12] The reasoning in the
Greenberg
matter in paragraph 17 as follows:
‘
[17]
The Supreme Court Act empowers the judge president of a provincial
division to make rules regulating proceedings with reference
to the
times for the holding of courts, the placing on the roll of actions
for hearing and the extension or reduction of time periods
in terms
of the Rules of Court. In terms of Rule 1 of the Rules of Court
“action” is defined to mean “a proceeding
commenced
by summons or by writ in terms of rule 9”. Accordingly, the
provisions of the Supreme Court Act as to the powers
of the judge
president to make rules are not relevant to the matters under
discussion.
’
I do not believe that it is
correct to interpret the word ‘action’ in the Supreme
Court Act 59 of 1959 (‘Supreme
Court Act’) by referring
to the definition in the Rules. The meaning of the word ‘action’
in the Supreme Court
Act is to be determined with reference to that
Act. There is no definition of the word ‘action’ in the
Supreme Court
Act. It is consequently necessary to interpret the word
‘action’ in section 43 of the Supreme Court Act
purposefully
for purposes of that Act. As was pointed out by Ngcobo J
in
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
CC para 90:
‘
The emerging trend in statutory construction
is to have regard to the context in which the words occur, even where
the words to
be construed are clear and unambiguous. Recently, in
Thoroughbred Breeders’ Association v Price Waterhouse
2001 (4)
SA 551
(SCA) at para 12 the SCA has reminded us that:
“
The days
are long past when blinkered peering at an isolated provision in a
statute was thought to be the only legitimate technique
in
interpreting it if it seemed on the face of it to have a readily
discernible meaning.”’
If regard is had to the
definition section of the Supreme Court Act which defines ‘civil
summons’ as:
‘…
any
summons whereby civil proceedings are commenced, and includes any
rule nisi, notice of motion or petition the object of which
is to
require the appearance before the court out of which it is issued of
any person against whom relief is sought in such proceedings
or of
any person who is interested in resisting the grant of such relief;
’
and ‘defendant’:
‘…
includes any respondent or other party
against whom relief is sought in civil proceedings;’
and ‘plaintiff’:
‘…
includes any petitioner or other party
who seeks relief in civil proceedings;’,
I am of the view that there can
be no doubt that the Supreme Court Act is intended to regulate all
proceedings in the High Court
and not only actions in the narrower
sense as described in the Rules. The legislature could not have
intended that a Judge President
can only make rules regarding actions
in the narrow sense of the word. There is no justification to have
recourse to a definition
in the Rules to interpret the meaning of a
word in the Supreme Court Act.
[13] I am consequently of the
view that the word ‘action’ in s 43 of the Supreme Court
Act should be read to include
all proceedings in the High Court. This
would entitle the Judge President to issue practice directives
relating to the setting
down of matters both in actions and in the
application court. In the circumstances, all practice directives
issued by the Judge
President, or which are issued on his authority
in relation to matters contained in the Practice Manual, are
competent and should
be adhered to.
[14] Potgieter AJ said in the
Greenberg
at para 22:
‘
[22]
The wording of paragraph 5 of chapter 9.22 of the practice manual
conveys a requirement additional to those contained in Rule
6(5)(f)
of the Rules of Court in order to obtain an allocation for the
hearing of an application which has been struck from the
roll. I
refer to the wording of the directive which suggests that such an
application “may only be enrolled… if …
an
affidavit explaining the previous non-appearance is filed”.
’
There is however no prohibition
against a Judge President making rules in addition to those contained
in Rule 6(5)(f).
[15] Further, if a matter becomes
opposed in the urgent court and the papers become voluminous there
must be exceptional reasons
why the matter is not to be removed to
the ordinary motion roll. ‘
The
urgent court is not geared to dealing with the matter which is not
only voluminous but clearly includes some complexity and
even some
novel points of law
.’
See
Digital Printers v
Riso Africa (Pty) Ltd
case number 17318/02, an unreported judgment of Cachalia J delivered
in this Division.
[16]
There
are also matters brought against departments of State. Experience has
taught that such respondents need time to look into
the allegations
contained in the affidavits in order to be able to file answering
affidavits, if they so wish. When these affidavits
are filed, the
matters can be seen in a proper perspective. Attempts to disallow
them to file affidavits are usually based on the
judgment in
Arse
v Minister of Home Affairs and Others
2012 (4) SA 544
(SCA) where it was said at para 10 that a detained
person should not be deprived of his or her right to freedom for one
second
longer than necessary. Malan JA however, added the words that
the detention should not be ‘
longer
than necessary by an official who cannot justify his detention
’.
This statement must been seen in its proper context. It does not say
that all persons who are incarcerated are entitled
to be released
post haste. It deals with unlawful incarceration and that
determination can only be made upon a proper consideration
of all the
facts as the governing legislation specifically provides for
incarceration. By allowing the respondents to place facts
before the
court to attempt to justify the actions of its employees, the matter
can be properly considered. The success or otherwise
of the
respondents opposition to the matter can only then be determined.
[17] A
n
abuse of the process regarding urgent applications has developed (in
all likelihood with a hope that the respondents would not
be able to
file opposing affidavits in time). This practice must be addressed
in order to stop matters being unnecessarily enrolled
and to clog a
busy urgent court roll. In these matters, sufficient time
should be granted to the respondents to file affidavits
and they can
rarely do so when papers are served less than a week before a matter
is to be heard. That week includes a weekend
when State machinery
normally comes to a standstill. Practitioners will be well
advised to be realistic and to afford the
State departments a more
reasonable time to file affidavits. No doubt there are matters
which require urgent attention on
shorter notice but amongst the
thirty or so applications by foreigners to be released from custody
on the roll today, I am struggling
to find a single one that
justifies a hearing urgently today. If there are such matters, the
affidavits generally fail to set out
the urgency of the matter as
required by the Practice Manual and Rule 6.
[18] Urgency
is a matter of degree. See
Luna
Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makins Furniture
Manufacturers)
1977 (4) SA 135
(W). Some applicants who abused the court
process should be penalised and the matters should simply be struck
off the roll
with costs for lack of urgency. Those matters that
justify a postponement to allow the respondents to file affidavits
should
in my view similarly be removed from the roll so that the
parties can set them down on the ordinary opposed roll when they are
ripe for hearing, with costs reserved.
[19] Those matters that do not
comply with the Rules and Practice Manual will not be afforded a
hearing in this court. They fall
to be struck from the roll with
costs where appropriate.
[20] The aforegoing does not affect the remaining rules regarding the
enrolling of urgent matters but were cited as examples of
the
non-compliance by practitioners with the clear directives contained
in the Rules and issued in the Practice Manual of this
Division.
[21] If litigants suffer
prejudice as a result of practitioners’ laxity to comply with
the clear directives, they have only
themselves to blame for not
complying with a set of simple and clear Rules and directives that
exist regarding the hearing of urgent
applications in this Division.
WEPENER J
JUDGE OF THE HIGH COURT
DATE
OF HEARING:
18
September 2012
DATE
OF JUDGMENT:
18
September 2012