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[2015] ZAKZDHC 40
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Limeco CC v CMV Plant Hire CC (12279/2015) [2015] ZAKZDHC 40 (19 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE NO.: 12279/2015
DATE: 19 MAY 2015
In the matter between:
LIMECO
CC
…............................................................................................................................
Plaintiff
And
CMV PLANT HIRE
CC
..........................................................................................................
Defendant
JUDGMENT
Heard: 12th May 2015
Delivered: 19th May 2015
JEFFREY AJ:
[1] This matter concerns the correct
application of the practice in the KwaZulu-Natal Divisions of the
High Court when a direction
by the court or a judge in chambers is
sought that a matter be enrolled by the Registrar on the expedited
roll for hearing.
[2] The plaintiff has brought an
application for a direction that the trial in this matter be so
enrolled. Such a direction may
be made in terms of Practice
Directive No. 21 of the KwaZulu-Natal Divisions of the High Court in
certain defined circumstances
including those matters to which the
provisions of Rule 32 apply, namely, in summary judgment matters. The
plaintiff alleges that
this is the position in this matter. The
relevant portions of Practice Directive No. 21 are set out in an
appendix to this judgment.
[3] The passage of the action to date
has been the following. After service of the simple summons, the
action was defended by the
defendant. The plaintiff then duly brought
an application for summary judgment that was opposed and an opposing
affidavit was delivered
by the defendant. On 8 January 2015, when
the application for summary judgment came before the court, the usual
order refusing
summary judgment was granted by consent. Some six
weeks later on 23 February 2015, the plaintiff delivered its
declaration. The
defendant’s plea has yet to be delivered.
This application was instituted on 16 March 2015 nearly ten weeks
after the usual
order refusing summary judgment was granted. The
Notice of Motion merely stated tersely, reiterating the requirements
of Practice
Directive No. 21, that Rule 32 was applicable; there was
no substantial point of law that would require determination; the
whole
or a substantial portion of the matter would be disposed of by
evidence lasting no longer than one day; and it was in the interests
of justice that this Court grant the aforementioned direction.
[4] Mr Garland, who appeared for the
plaintiff submitted that, despite the usual order refusing summary
being granted nearly ten
weeks before this application before me was
instituted, the summary judgment provisions of Rule 32 applied to the
matter and, therefore,
Practice Directive No. 21 was applicable. It
was accordingly competent, so his argument continued, for me to
direct the Registrar
to enroll the matter on the expedited trial roll
for hearing.
[5] I do not agree.
[6] The practice directives of the
KwaZulu-Natal Divisions of the High Court do not bind the courts and
they certainly do not fetter,
by prescribing when and how judges
ought to exercise their discretion in relaxing or deviating from the
practice in an appropriate
case. The practice directives attempt to
establish uniformity and certainty in those matters which they
address. Thus, as it
is envisaged in the preamble to the practice
directives, any deviations from the standard practice covered by the
practice directives
should be made only in exceptional circumstances
and any individual departure from a particular practice directive is
not regarded
as a modification or change of that practice. Changes
can only come about when this is done with the authority of the judge
president
in consultation with the other judges of the division as
occurred, for instance, in Cele v South African Social Security
Agency
& 22 Related Cases
2009 (5) SA 105
(D). See generally
Khathi & another v Standard Bank of South Africa Ltd &
another
[2010] JOL 26174
(KZP) at para [26].
[7] With specific reference to the
matter before me, the standard practice is that at the time when the
summary judgment application
is before the court and the usual order
refusing summary judgment is granted, a direction may be given to the
Registrar that the
matter be enrolled on the expedited roll for
hearing. Reported examples of where this occurred are BMW Financial
Services (SA)
(Pty) Ltd v Donkin
2009 (6) SA 63
(KZD) 67A at para [4]
and Dass and Others NNO v Lowewest Trading (Pty) Ltd
2011 (1) SA 48
(KZD).
[8] There are sound reasons for this.
Such a direction may be given, as the practice directive specifically
envisages, if it appears
to the court or judge in chambers as the
case may be, that (a) no substantial point of law will require
determination; and/or (b)
the whole or a substantial portion of the
matter will be disposed of by evidence not lasting longer than one
day; and (c) it is
in the interests of justice to do so. The issues
before the court in making or refusing to make the direction arise
from the papers
in the summary judgment application before it. In
other words, as the practice directive contemplates, the matter
before the Court
must be one where the provisions of Rule 32 relating
to summary judgment apply. Once such a direction is made by the
court, the
pre-trial procedures - including the delivery of a
declaration - envisaged in paragraph 21.4 of the practice directive
are applicable,
subject always to the court directing otherwise.
[9] In this matter the plaintiff’s
delivery of its declaration well after the time when the summary
judgment application was
before the court and the delay in bringing
this application prima facie remove this matter from the ambit of the
practice directive
unless there are exceptional circumstances present
that justify a departure from the usual practice.
[10] In this matter the issues that
were before the court at the time when the summary judgment
application was heard may not be
the same now as they were then.
Indeed, as I have said, the defendant still has to plead and further
issues may be raised by it.
A directive, therefore, that the matter
be enrolled by the Registrar on the expedited roll cannot be made
properly in these circumstances
unless, as I have said, there are
exceptional circumstances justifying a departure from the usual
practice. No exceptional circumstances
were placed before me that
would justify a departure from the usual practice envisaged by the
practice directive. In the result
this application must fail.
[11] Even if a direction could have
been competently made by me for the matter to be enrolled on the
expedited trial roll, Mr Chetty,
who appeared for the defendant
submitted that one of the issues between the parties is that of
delivery of the goods on which the
plaintiff’s claim is based.
There are, he submitted, five witnesses who would be called on behalf
of the defendant on this
issue. Although counsel were not ad idem on
this point, if the defendant intends to call five witnesses I have
grave reservations
as to whether the whole or a substantial portion
of the matter will be disposed of by evidence not lasting longer than
one day.
If the evidence exceeds one day then this could disrupt the
proper functioning of the courts and cause inconvenience not only to
other litigants who have been waiting patiently in the queue for
their matters to be enrolled on the trial roll but also cause
great
inconvenience to the court hearing the matter, as D Pillay J, with
respect, aptly remarked in another context in Standard
Bank of South
Africa Ltd v Dlamini
2013 (1) SA 219
(KZD) 238E at para [79]. So,
even if it was competent to make the direction sought, which I have
found that it is not, the application
would have been refused by me
on this ground alone.
[12] I make an order that the
application is dismissed with costs.
JEFFREY AJ
Appearances:
Counsel for the plaintiff : Mr R
Garland
Applicants’ attorneys :
Peacock Liebenberg & Robert Mitchley/jdm/MAT14478
Tel. 031 708 2266
Counsel for the
defendant : Mr K J Chetty
Defendant’s attorneys : Thorpe
& Hands Inc
Ref. Mr K Walker/am/08/C001021
Tel. 031 305 3641
Date of hearing : 12th May 2015
Date of judgment : 19th May 2015
APPENDIX
Expedited Hearing
21.1 The registrar shall maintain a
separate roll of cases, which shall be called ‘The Expedited
Roll’, for hearing
on an expedited basis.
21.2 The registrar shall enrol matters
on the expedited roll only when directed to do so by order of court
or by a judge in chambers.
21.3 In all matters to which the
provisions of:
21.3.1 Uniform Rule 6 (5) (d) (iii),
or
21.3.2 Uniform Rule 6 (5) (g), or
21.3.3 Uniform Rule 8, or
21.3.4 Uniform Rule 32
apply and it appears to the court or
the judge, as the case may be, that no substantial point of law will
require determination,
and/or that the whole or a substantial portion
of the matter will be disposed of by evidence not lasting longer than
one day, and
that it is in the interests of justice to do so, the
court or the judge may mero motu, or on the application of any of the
parties
on notice to the others, after considering the submissions of
all the parties, direct that (referred to hereafter as 'a direction'
or 'the direction'), subject to the provisions of this Rule, the
matter be placed on the expedited roll.
21.4 In matters to which the
provisions of subrule 3.4 of this rule apply, and unless the court or
judge otherwise directs:
21.4.1 in matters requiring the filing
of a declaration, the plaintiff shall file a declaration within five
days of the direction
being made, failing which he shall be ipso
facto barred;
21.4.2 the defendant shall file a plea
within five days of the direction being made or the declaration being
filed, as the case
may be, failing which he shall be ipso facto
barred;
21.4.3 the plaintiff shall comply
with the provisions of Uniform Rule 35 (1), mutatis mutandis, within
five days thereafter and
shall simultaneously index and paginate the
court file and shall serve a copy of the index on the defendant;
21.4.4 the defendant shall comply
with the provisions of Uniform Rule 35 (1), mutatis mutandis, within
five days thereafter, save
that the defendant shall not be entitled
to rely upon any document at trial, which has not been so discovered,
without the leave
of the court;
21.4.5 the parties shall hold a
pre-trial conference and shall comply with the provisions of Uniform
Rule 37, mutatis mutandis,
not less than five days before the hearing
of the matter.