Repeal of r 60(9) of the Magistrates’ Court Rules

September 1st, 2020
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By HCJ Flemming

The Rules Board for Courts of Law (the Rules Board) was regrettably inspired by Kondlo v Eastern Cape Development Corporation [2014] 2 All SA 328 (ECM) to create an undesirable r 60(9) in the Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa, which reads: ‘The court may, on good cause shown, condone non-compliance with these rules’.

The judgment was given on appeal against the granting of summary judgment for rentals in arrears under a written lease. The contract was not attached to the summons (r 6(6)) or to the affidavit in the summary judgment application (r 14(2)(c)). After recording the history of the litigation, the court stated: ‘The question is whether or not Rule 60 of the Magistrates’ Court Rules confer a general power of condonation on Magistrates’ Courts’.  However, the defendant had not lodged an r 60 application. Nor was ‘condonation’ asked by the plaintiff. The plaintiff’s argument was suitable for r 60A opposition.  The plaintiff argued that the non-attachment caused no prejudice and is thus ‘technical’ in a setting where no defense on the merits of the rental claim was put up. (A lease in the file seen by the judges may even have been handed up to the magistrate?)

There was also no need to bother with r 6(6). However, r 14(2)(c) was crucial. Despite the plaintiff’s pleading that he had lost the document, if the liquid document is not attached to the affidavit the matter does not qualify for summary judgment. End of story. The plaintiff would have to prove the letting and its rentals in ordinary procedures.

In any event, the court was wrong in mixing r 60 and r 60A. Prior to r 60A a stream of r 60 applications served harassment and fees but none of the ideals of r 1(2). Rule 60A counteracts that in all ‘irregular proceedings’ (non-compliance with r 14 was not made an ‘irregular proceeding’). Understanding r 60A correctly, the court’s discretion will be guided by the curing of prejudice. (In the Pretoria Magistrates’ Court case 21601/2016, inter alia, the contract was not attached to the summons.  Evidence proved that the defendant insurance company realised which contract was involved and had the original in its records. The court, in its judgment, found that the non-compliances should not bar the matter from proceeding to trial and directed the defendant to deliver its plea within 20 days.) The court may make ‘any such order as it deems fit’. The outcome can be the same as pronouncing ‘condonation’.

Rule 60 is for seeking completion, any party forces their opposite number to do what will take the case further towards readiness for trial; r 60A is designed to seek destruction, the defendant  wants the setting aside of a past defective step. Rule 60 deals with what you did not do (timeously or at all); and r 60A deals with what you did do (issue summons) but did so defectively (for example, not attaching the lease). Rule 60A stands independently when an ‘irregular proceeding’ is involved.

In referring ‘the trial’ back to the magistrate’s court, and subjecting it to both rules, the court was perhaps wrongly inspired by the peculiar practice in Mthatha.

The court saw the need for a condonation rule in a problem that did not arise in the case before it and, about which the court’s reasoning was wrong and its remarks were obiter. The court foresaw the ‘startling’ result that the plaintiff is non-suited if the contract is not available to be attached. One must be cautious about discovering a lacuna that has been undetected by thousands for 76 years. The alleged problem is no worse than in the case of a plaintiff not knowing the name of the shop assistant who acted for the defendant when concluding a sale. The plaintiff is not non-suited. The law does not require a positive court response to the frivolous or technical (see Hainard v Estate Dewes 1930 OPD 119 at 121).

Secondly, law does not compel the impossible. The plaintiff had pleaded loss of the document.

Thirdly, if the wide discretion of r 60A is properly applied, the court could order for example, that a document-less plaintiff is allowed to amend the summons appropriately. The plaintiff who operates with standard terms can allege that the terms were the same as that of the document (or part thereof) now newly attached to the summons or the plaintiff can additionally plead the precise wording of the crucial terms that the plaintiff wants the court later to find proved.

Fourthly, the court underrated that the summons stood as a completely valid summons until set aside. The mere refusal to set aside has the same outcome as a magisterial blessing in the legal formula of ‘condonation’.

By way of overview, r 60(9) is open to objection.

Rule 60(9) operates without any ‘application’ as defined. It does not even require notice. The position of the parties is altered midstream by mere discretion.

Rule 60(9) gives no guidance about ‘good cause’. Does a purely procedural deviation now require adjudicating the prospects of success of plaintiff’s claim? Is more required than ‘I did not read the rule and my client should not suffer for it’.

Rule 60(9) is unnecessary. As demonstrated, there are two types of decisions by a court that create the same result as condonation. The rule creates uncertainties. It confuses the structured scheme of the rules. The case for repeal is clear.

HCJ Flemming BCom LLB (UFS) is a retired judge from Johannesburg.

This article was first published in De Rebus in 2020 (Sept) DR 52.