Summary of Judgment

1. Introduction

The proceedings were an opposed motion concerning an application for postponement of a substantial main application enrolled in the Gauteng Division, Pretoria. Although the underlying main application was not determined, the court was required to decide whether the hearing should proceed as enrolled and, consequentially, how the costs of the postponement should be dealt with.

The applicant was Internet Filing (Pty) Ltd. The respondents were Business Connexion (Pty) Ltd (first respondent), XET Group (Pty) Ltd (described as the second excipient), XET Solutions (Pty) Ltd (third respondent), PTPI Group (Pty) Ltd (fourth respondent), and the City of Ekurhuleni Metropolitan Municipality (fifth respondent). The fifth respondent played a central role in relation to the enrolment and opposition to the postponement.

Procedurally, the matter came before Skosana AJ after it had been set down for hearing (initially for 24 January 2020). The fifth respondent “drove” the enrolment of the main application. After the judge had allocated the matter for hearing on 26 January 2022 and while continuing to read the extensive papers, the applicant uploaded a substantive application for postponement on 22 January 2022. That postponement application was opposed by the fifth respondent, and the applicant delivered a replying affidavit in the postponement proceedings. The court granted a postponement of the main application sine die and made a wasted costs order against the applicant. The present judgment provides reasons for that order after a request by the fifth respondent.

The general subject-matter of the dispute in this judgment was the procedural propriety of the set-down and compliance with relevant practice directives, including whether those directives were valid and applicable, and the appropriate costs consequences of a late postponement request.

2. Material Facts

The court treated as material that the main application comprised more than 1000 pages of papers, excluding the postponement application, and that the matter appeared to require more than a single day for hearing, involving several sets of counsel. These circumstances were relevant to the applicability of practice directives regulating set-down and case management for lengthy matters.

It was also material that, in relation to the main application, only the fifth respondent had filed heads of argument. The absence of heads from the applicant and other parties was treated as significant to the manageability and readiness of the matter for hearing.

The chronology of the postponement request was material to costs. The notice of set down was served on the applicant on 20 October 2021, but the applicant only sought a postponement in January 2022, a few days before the hearing date allocated for 26 January 2022. The court further relied on the applicant’s delay in filing its replying affidavit in the main application, despite demands from some respondents, as contributing to delay in finalising the matter.

The applicant’s postponement was premised on an asserted failure to comply with relevant practice directives, namely that (i) before set-down the enrolling party should ensure that heads of argument are filed by other parties and should compel them to do so by court order if necessary, and (ii) for a matter of this magnitude (requiring more than one day), enrolment should not occur without the involvement and approval of the Deputy Judge President.

A key dispute of fact and law in the postponement application concerned the validity and continued operation of the practice directives relied upon by the applicant. The fifth respondent disputed their enforceability on the grounds set out below, and the court resolved those contentions against the fifth respondent.

3. Legal Issues

The central legal questions were whether the practice directives invoked by the applicant were valid and applicable so as to render the matter not properly enrolled, and whether non-compliance with those directives justified postponing the main application.

This raised questions of law and application of law to fact. On the legal side, the court had to decide whether practice directives required publication in the Government Gazette under the Superior Courts Act 10 of 2013, whether later directives (including those said to arise during restrictions under the State of Disaster Act 57 of 2002) had superseded the earlier directives, and whether the directives impermissibly restricted or negated Rule 6(5)(f) of the Uniform Rules in light of the Supreme Court of Appeal decision cited by the fifth respondent.

On the factual and application side, the court had to decide whether, given the size and complexity of the matter and the state of the papers (including the absence of heads), the set-down requirements were met, including the requirement to obtain Deputy Judge President approval for a multi-day matter, and what costs order was appropriate in the exercise of the court’s discretion.

4. Court’s Reasoning

The court addressed the fifth respondent’s challenges to the practice directives in three main respects and found them to be without merit.

First, in relation to the contention that the directives were invalid because they had not been published in the Government Gazette as allegedly required by section 8(5)(b) of the Superior Courts Act 10 of 2013, the court considered the structure of section 8. It held that section 8(4)(a) contemplates that judicial management powers vest not only in the Chief Justice but also in heads of courts, who may delegate such functions to other judicial officers. The court also relied on section 8(4)(b), which explicitly provides that the management of the judicial functions of each court is the responsibility of the head of that court. On that basis, the court reasoned that the publication requirement in section 8(5) was confined to directives issued by the Chief Justice and did not affect directives issued by heads of courts and/or Judges President. It further observed that only the designation relating to the Chief Justice’s judicial leadership functions referred to in section 8(7) is affected by publication. The court therefore characterised the first attack on the directives as ill-conceived.

Second, regarding the contention that the directives had been superseded by later directives, particularly during restrictions under the State of Disaster Act 57 of 2002, the court noted the concession by the fifth respondent’s counsel that there was no express repeal of the earlier practice directives relied upon by the applicant. The court did not accept that later directives implied a repeal, and it stated that it did not see a purpose for repeal of such directives even during COVID-19 restrictions. This challenge was therefore also rejected.

Third, the court considered whether the practice directive impermissibly restricted or negated Uniform Rule 6(5)(f) in a manner said to be forbidden by Ex parte: NDPP [2021] ZASCA 142. The court held that the practice directive did not negate or restrict Rule 6(5)(f), but rather made the requirements of the Rule more “realistic and workable”. The court explained that the rationale of the directive was to prevent the clogging of the court roll by matters that are not ripe for hearing and that it provided a mechanism for dismissal of a claim or defence in the event of ultimate failure to provide heads, contrasting this with the course that the fifth respondent sought to pursue outside the directive.

In addressing the fifth respondent’s further submission that heads of argument are not expressly required by the Rules in motion proceedings (as they are in appeals), the court rejected the contention and treated it as inconsistent with the notion that “the Rules are for the court and not the court for the rules”. The court reasoned that if heads of argument serve the purpose of assisting the court, the court may adjust the application of rules to make them effective, and that uniform adjustments through practice manuals and directives are preferable to ad hoc individual pronouncements.

Having found the fifth respondent’s challenges without merit, the court concluded that the party who sets the matter down must comply with applicable practice directives. The court further noted that nothing was said (by the fifth respondent in opposing postponement) about compliance with the requirement to seek the Deputy Judge President’s approval before set-down, and the court’s reading of the papers led it to the view that this requirement was applicable but not complied with. In that context, the court considered the postponement inevitable. It also emphasised that, in a matter of this magnitude, allowing participation without heads would lead to “chaos” and that the absence of heads did not assist the court or shorten the hearing.

On costs, the court explained that it exercised its discretion to order costs against the applicant for two principal reasons grounded in the procedural history. It found that the applicant had unduly delayed finalisation of the matter by failing to file its replying affidavit in the main application over a prolonged period despite demands, thereby frustrating prompt finalisation. It also relied on the fact that, although set-down was served in October 2021, the applicant only sought postponement days before the hearing in January 2022, which the court viewed as costly and a grave inconvenience to the court.

5. Outcome and Relief

The court postponed the main application sine die.

The court ordered the applicant to pay the wasted costs occasioned by the postponement.

No relief on the merits of the main application was determined in this judgment, which was confined to reasons for the postponement and associated costs order.

Cases Cited

Ex parte: National Director of Public Prosecutions [2021] ZASCA 142.

Legislation Cited

Superior Courts Act 10 of 2013, section 8(4)(a), section 8(4)(b), section 8(5)(b), and section 8(7).

State of Disaster Act 57 of 2002.

Rules of Court Cited

Uniform Rules of Court, Rule 6(5)(f).

Held

The court held that the practice directives relied upon by the applicant were not invalid for want of publication in the Government Gazette because the gazetting requirement in section 8(5) of the Superior Courts Act 10 of 2013 was confined to directives issued by the Chief Justice and did not apply to directives issued by heads of courts and/or Judges President.

The court held further that the relevant practice directives had not been superseded by later directives, there being no express repeal, and that the practice directive did not negate or restrict Uniform Rule 6(5)(f) but operated to make procedural requirements workable and to prevent the court roll from being clogged by matters not ripe for hearing.

On the facts, the court found that the set-down did not comply with applicable practice directives, including the requirement for Deputy Judge President involvement for a matter requiring more than one day, and that postponement was therefore inevitable. The court held that the applicant should bear the wasted costs due to its delays in the litigation and the late bringing of the postponement application shortly before the hearing date.

LEGAL PRINCIPLES

Practice directives issued by heads of courts and/or Judges President constitute instruments of judicial case management within the framework of section 8 of the Superior Courts Act 10 of 2013, and such directives are not rendered invalid by a failure to publish them in the Government Gazette where the statutory publication requirement is confined to directives issued by the Chief Justice.

Absent an express repeal, subsequent directives (including those adopted during exceptional circumstances) do not necessarily supersede earlier practice directives, and continued compliance with applicable directives remains required when matters are enrolled for hearing.

Practice directives that regulate the filing of heads of argument and set-down requirements do not necessarily restrict or negate the Uniform Rules; they may operate to make procedural requirements workable, to ensure matters are ripe for hearing, and to prevent inefficiency and congestion of the court roll.

A postponement and associated costs order involves an exercise of judicial discretion in which the court may take into account litigation conduct, including undue delays in filing material papers and the lateness of a postponement request relative to the hearing date, as well as the resulting inconvenience to the court and prejudice in wasted preparation and enrolment.