BRICKHILL AJ:
Introduction
[1] This is an interlocutory application that arises from the plaintiff initially issuing
summons both manually and electronically, with the result that two case numbers
were issued to the matter. The applicant seeks an order under Rule 30A
directing the respondent to withdraw the matter under case number 26935/2022
and setting aside the respondent’s amended particulars of claim as an irregular
step.
[2] The applicant is the defendant, and the respondent the plaintiff, in the underlying
action, and I refer to the parties by their designations in the main matter in this
judgment. The underlying action concerns a contractual dispute arising from an
agreement for the delivery of porcelain moonstone tiles, the merits of which have
no bearing on this interlocutory application.
[3] On 10 October 2022, because the Court Online system was down, the plaintiff
issued a combined summons manually under case number 2022/26935 and
subsequently created and uploade d the matter on Caselines under that case
number. Having done so, the plaintiff then issued the same matter under
Caselines under case number 2023/020438.
[4] On 1 December 2022, the defendant served a notice in terms of Rule 30 and
Rule 30A stating that the summons was not issued in terms of paragraph 20 of
the Gauteng D ivision of the High Court’s Practice Directive 2 of 2022, which
provides:
“In terms of paragraph 2.1 of directive 1 of 2022 (the Court Online pilot
directive) with effect from 18 July 2022, all new cases must be initiated
on the Court Online portal for issuing and enrolment. No new cases
will be issued in person or should be created on Caselines.”
[5] On 3 February 2023, the defendant launched a Rule 30A application under case
number 2022/26935. It also served a notice of exception on the same day.
[6] On 7 March 2023, the plaintiff addressed a letter to the defendant stating that it
had corrected any irregularities, in that:
a. Following the Rule 30 application, the plaintiff’s attorney had uploaded and
reissued the summons in accordance with the Practice Directive;
b. The matter had been duly instituted on th e Court Online portal;
c. The defendant’s attorney had been invited to the matter on Court Online;
d. Accordingly, the cause of complaint had been removed and the defendant
should withdraw the Rule 30A application.
[7] The defendant takes the position that the irregular step has not been rectified
because the plaintiff did not withdraw the matter under case number 2022/26935
and tender the wasted costs.
Is there an irregular step?
[8] The management of matters on the online platforms introduced in this division is
governed by several practice directives and protocols.
[9] Practice Directive 2 of 2022, referring to Directive 1 of 2022 which is the Court
Online Pilot Directive, provides that “with effect from 18 July 2022, all new cases
must be initiated on the Court Online portal for issuing and enrolment” and that
“[n]o new cases will be issued in person or should be created on Caselines”. This
is the default position for the initiation of new matters.
[10] However, the ‘Judge President’s Protocol: Emergency Arrangements when
Court Online is Inaccessible’ dated 12 September 2022, provides for situations
of ‘downtime’ as follows:
4. Downtime for five (5) court days or longer:
…
4.2 Once the system has been restored, practitioners are
required to upload and re-issue such matters on the Court
Online portal and input the manually issued case number
under the ‘Related Case Number’ field when starting the
case. Both the manual and Court Online issued case
number must then reflect on all pleadings filed in the
matter.
4.3 Matters issued manual during such periods of system
inaccessibility may not be created on CaseLines and
must be filed and proceed on the Co urt Online platform
once accessibility has been restored.”
[11] At the time of issuing the combined summons in this matter, the Court Online
portal was experiencing downtime of five court days or longer. The plaintiff
therefore issued the summons manually. After it was restored, the plaintiff
uploaded and re-issued the summons on Court Online on 28 February 2023
under case number 2023/020438, with manually issued case number of
2022/26935 reflected as the ‘Related Case Number’.
[12] On 7 March 2023, the plaintiff advised the defendant that it had taken these
steps, invited the defendant to withdraw the Rule 30A application and, in relation
to costs, submitted that the costs of the Rule 30A application should be costs in
the cause, alternatively tendered the costs of the Rule 30A application incurred
by the defendant up to the date of the letter, 7 March 2023.
[13] The defendant accepted in argument that the plaintiff took the required steps by
re-issuing the summons on Court Online and that it is appropriate then to use
two case numbers, being the original manually issued case number and the new
Court Online case number. However, it complains that the Caselines prof ile,
which the plaintiff ought never to have created, continued to be operative. It also
complains that it will have a difficulty recovering wasted costs under the 2022
case number.
[14] On the papers, the Caselines number was suspended or closed at some point
by the time the answering affidavit in the Rule 30A application was delivered on
14 July 2023.
[15] The defendant contends that the profile opened on Caselines under case number
20222/26935 constitutes a separate matter and therefore an irregular step, which
can be cured only by withdrawing the matter under case number 2022/269 35
and tendering the wasted costs.
[16] While the plaintiff ought not to have opened a Caselines profile in relation to the
matter, the plaintiff took the steps required of it in terms of issuing the matter
manually and then, when Court Online was restored, re-issuing the matter online
there, generating the new case number of 2023/020438 and entering the earlier
manually issued case number of 2022/26935 under the ‘Related Case Number’
field.
[17] The C aselines profile that was erroneously generated under the 2022 case
number has since been closed or suspended and is no longer operational. This
is the factual position against which it must be determined if this court is required
to intervene in relation to an irregular step in the proceedings.
[18] As Jafta J for the majority of the Constitutional Court reiterated in Mukaddam,
the rules of court are tools to facilitate the right of access to courts in section 34
of the Constitution:
“It is important that the rules of courts are used as tools to facilitate
access to courts rather than hindering it. Hence rules are made for
courts and not that the courts are established for rules. Therefore, the
primary function of the rules of courts is the attainment of justice. But
sometimes circumstances arise which are not provided for in the
rules. The proper course in those circumstances is to approach the
court itself for guidance. After all, in terms of section 173 each superior
court is the master of its process.”
1
[19] The right of access to courts forms the bedrock underpinning the interpretation
of all court rules and the lodestar to guide courts when enforcing their rules.
[20] The suggestion that the existence of the Caselines profile creates a risk of
confusion is baseless. Similarly, the concern that the modest (if any) wasted
costs that result from the creation of the Caselines profile will not be taxable is
costs that result from the creation of the Caselines profile will not be taxable is
1 Mukaddam v Pioneer Foods (Pty) Ltd and Others [2013] ZACC 23; 2013 (5) SA 89 (C C) para 32.
illusory. This judgment and all process and court orders in the matter moving
forward will reflect both case numbers.
[21] As the Appellate Division held in 1956, in Trans-African Insurance Co Ltd v
Maluleka,
“No doubt parties and their legal advisers should not be encouraged
to become slack in the observance of the Rules, which are an
important element in the machinery for the administration of justice.
But on the other hand technical objections to less than perfect
procedural steps should not be permitted, in the absence of prejudice,
to interfere with the expeditious and, if possible, inexpensive decision
of cases on their real merits.”2
[22] In the circumstances, the plaintiff’s initial error of creating a profile on Caselines
after manually issuing the summons has been rectified. There is no irregular step
that persists, and it is doubtful whether the existence of a separate C aselines
profile in any event would have constituted such an irregularity, given that the
matter had correctly been re-issued on Court Online with the newly generated
2023 case number and the original, manually generated case 2022 case number
reflected as the ‘Related Case Number’. The situation was akin to the pre-digital
scenario in which a duplicated hard copy case file is created and has been sitting
in the Registrar’s office gathering dust, but is later located and disposed of before
the hearing of the merits. Here, the Caselines profile has been closed or
suspended and there can no longer be any basis for complaint, if ever there was.
[23] There is no prejudice to the defendant, nor any basis to require of the plaintiff to
‘withdraw’ a Caselines profile that is no longer operative.
Conclusion and costs
[24] The Rule 30A application therefore falls to be dismissed.
[25] The plaintiff seeks costs on an attorney and client scale. It originally sought, in
the alternative costs de bonis propriis against the defendant ’s attorneys, but at
the hearing indicated that it did not persist in this regard.
the hearing indicated that it did not persist in this regard.
2 Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 278F-G.
[26] There is merit to the plaintiff’s complaint that this application was brought solely
for the purpose of delaying the main matter. For that reason, I agree that it is
appropriate to make an order putting the defendant to terms to deliver its plea, if
any.
[27] However, though the Rule 30A application ought not to have been persisted with,
the original error precipitating the notice of irregular step was the plaintiff’s
mistake in opening a Caselines profile when Court Online was down . In the
circumstances, I am not inclined to grant costs on a punitive scale. It suffices to
dismiss the application and award costs on the ordinary basis.
Order
[28] Accordingly,
1. The application is dismissed with costs.
2. The applicant (defendant in the main action) is ordered to serve and file its
plea to the respondent’s (plaintiff’s) amended particulars of claim filed on
18 May 2023, if any, within a period of 20 (twenty) days from the date of
this order.
___________________________
J BRICKHILL
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
This judgment is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading it to the electronic file of this matter on Caselines, and
by publication of the judgment to the South African Legal Information Institute. The date for
hand-down is deemed to be 5 September 2025.
DATE OF HEARING: 4 June 2025
JUDGMENT SUBMITTED FOR DELIVERY: 5 September 2025
APPEARANCES:
For the Applicant: Adv R Andrews, instructed by KWP Attorneys.
For the Respondent: Adv E Fürstenburg, instructed by Castelli Attorneys Inc.