By John Price

The law should be fair and the procedures to apply the law must work efficiently and inexpensively.

Much attention has been given to the fairness of the Constitution and the access of ordinary citizens to justice is an important part of this. The Constitution provides, in s 34:

‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’.

The purpose of this article is to show that the way in which the civil court rules operate is open to abuse that deprives citizens of their right to proper access to justice in the courts.

Procedure by application (r 6)

The leading authority on application proceedings is still the case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T), in which Murray AJP stated at 1162: ‘It is certainly not proper that an applicant should commence proceedings by motion with knowledge of the probability of a protracted inquiry into disputed facts not capable of easy ascertainment, but in the hope of inducing the court to apply rule 9 [now r 6(5)(g)] to what is essentially the subject of an ordinary trial action.’

Murray AJP referred with approval to the judgment in Peterson v Cuthbert & Co Ltd 1945 AD 420 at 428, in which Watermeyer CJ held that the court must ascertain whether there is a real issue of fact and, if this is not done, ‘[the defendant] might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of [the plaintiff]’. He further noted that it is always competent to apply for an order directing that a party appear personally in court and submit to cross-examination.

In R Bakers (Pty) Ltd v Ruto Bakeries (Pty) Ltd 1948 (2) SA 626 (T) at 631, Dowling J held that in applications on petition: ‘it should, generally speaking, be open to the respondent to record a bare denial on material averments without evidence in support, unless the petitioner is able to show that, on the papers as a whole, such denial is mala fide and unsupportable’.

The applicant in this matter was ordered to proceed by way of summons and pleadings, despite the fact that the defendant had put matters in issue with a bare denial.

Notwithstanding these statements, the tendency of the courts has been increasingly to allow more latitude to parties who wish to enforce their legal remedies by way of application rather than trial action. In this regard, reliance can be placed on the statement by Price JP in Soffiantini vs Mould 1956 (4) SA 150 (ED) at 154 G – H, in which the judge held: ‘The court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.’

Procedure by trial action (ie, summons and pleadings) (rs 17 – 32)

The basic procedures that have to be applied when a case is brought to court, what Murray AJP referred to as ‘ordinary trial action’ in the Room Hire case, are more or less the same as they have been for the past 100 years and more. These procedures follow the familiar sequence, of summons, particulars of claim (or declaration), plea, exceptions and motions to strike out, particulars, discovery, pre-trial conferences, minutes of meetings, notices to admit certain facts, and so on, all of which today require great legal expertise to avoid pitfalls and punitive costs orders. However, they delay matters and cost enormous sums of money, in addition to the cost incurred by the professional time taken and the delay in resolving the dispute.

The tedious, cumbersome process that the present court rules require provides ample room for evasiveness and scope for relying on technicalities, and the party whose case is doubtful can, and does use them if he or she has the financial means. This has, of course, been recognised and rules for discovery, inspection of documents, expert testimony and pre-trial conferences are intended to avoid this. The net effect, however, has been to introduce technicalities and additional bureaucratic procedures, without achieving any significant improvement.

The proposal being mooted by at present that litigants may have to add compulsory submission to mediation to all this, will be of no assistance. Who will be the mediator, at what stage must mediation take place, how much time will it take, what will it cost, who will pay? Since mediation requires an agreement to be successful, can one ever compel parties to a dispute to agree? The mere fact that such a proposal has been put forward is confirmation that the present practice is seriously defective. Further, mediation is certainly not the solution and adding more bureaucratic procedures will worsen the problem.

The existing rules for ‘ordinary trial actions’ were derived from an ancient English system. They have become encrusted with procedures that unscrupulous litigators use to grossly abuse the court processes.

The English system is published in IH Jacob, P Adams, JS Neave, KC McGuffie, and WH Redman The Annual Practice (London: Sweet & Maxwell/Stevens & Sons 1965) vol 1 of the 1965 edition, being the latest edition available. Although speaking about a historical situation, it nevertheless suits purpose. A reading of selected passages in The Annual Practice confirms that the recognised way of initiating legal actions was by way of a summons, where the case of the plaintiff (and the plea of the defendant) were set out in the form of pleadings where the facts on which the claim (or the defence) were alleged, without evidence, followed by the legal remedy sought. No doubt this position may have been altered in some ways. The procedure for taking legal action to enforce a civil right is one that we have inherited from long-standing English practice.

Preference given to procedure by ordinary trial action

In general terms, the procedure laid down by the rules follows the form of the English court procedure for trial actions. The alternative is an application (or a petition) that contains sworn statements of the evidence in support of the remedy claimed by the applicant. Likewise, the respondent’s reply to an application must also take the form of an affidavit.

Taking a general view on readings from The Annual Practice, it would appear that there is a difference in the way in which the application procedure is approached in England and in South Africa, namely:

• The English rules tend to specify the types of remedy that may be sought on application and thus restrict the free use of applications, where our law tends to proceed on the basis of general principles, but restricts its use in other ways (see order 5, rs 4 and 5 in the 1965 version of The Annual Practice). The English courts are more ready than the South African courts, to accept that where disputes of fact arise these can be resolved by viva voce evidence at a special hearing. However, the English system restricts the use of applications by saying that only certain types of claim may be made by this procedure.
• The practice in South African courts is to more readily accept that any kind of right may be enforced by application (especially where there is a degree of urgency), but to threaten to impose a sanction (or simply to dismiss the claim) if the party choosing to proceed by application knows or ought to know that a material dispute of fact is likely to arise. Thus they also place limits on the use of application procedure.

Two interesting inferences can be drawn from this comparison:

• First, that the practical result in both England and in South Africa has been to give a distinct priority to procedure by trial action.
• Second, there is really no valid reason to look with disfavour on an application brought on affidavit, notwithstanding that a material dispute of fact is known by the parties to exist. Older cases like the Peterson case and the Soffiantini case indicate acceptance that conflicts of fact on the real issues can readily be referred to evidence. Judges and counsel are quite able to deal with any problems or abuse of the process that may become evident.

To summarise, the preference given to conducting litigation by what Murray AJP described as ‘ordinary trial action’ is not a requirement of the court rules, but has been repeated so often in judgments that it has produced the undoubtedly malign result of making recourse to litigation inordinately slow and expensive.

I submit that this defect can be cured only by a deliberate amendment of the court rules and trial process needs to be relegated to an option that can, but need not, be used.

Expense and delay of procedure by summons

Herbstein and Van Winsen The Civil Practice of the High Courts and the Supreme Court of Appeal (Cape Town: Juta 1997) at 233 contains the following passage:

‘There is an “ever-growing practice of launching proceedings by way of motion, which had previously only been initiated by way of action”. This is because, first, the scope of the application procedure has been greatly extended and, secondly, an application is immeasurably less costly and more expeditious than a trial action’ (my emphasis). (The quotation in this passage is from a judgment of Kuper J in Minister of Native Affairs v Sekukuni 1958 (4) SA 99 (T) at 101, and the rest of the passage is by the authors. They refer also to an article by G Findlay ‘Application versus trial’ (1951) 68 SALJ 20.)

Bearing in mind what must be the prime concern of everyone involved in litigation, namely that legal remedies should be just, effective and as inexpensive as reasonably possible, I have not come across a single convincing reason why trial procedure should be given preference by the courts, and why a litigant who elects to have his or her case brought to the court on application, should run the risk of being sanctioned if he or she knows that a dispute of a material fact is likely to arise.

Dowling J in the R Bakers case stated that to permit a party to proceed on application when a dispute of fact exists, would be to permit ‘fishing expeditions’ to take place. But using the process to elicit information is not in itself wrong if the information sought is relevant. Rule 35(3) has exactly this in mind, and the judgment in Garment Workers’ Union v De Vries and Others 1949 (1) SA 1110 (W) illustrates how easy it is likely to be to stop unwarranted inquiries.

The rule, expressed in the words ‘dismiss the application or’ in r 6(5)(g), has been elevated by use into an obstacle that constitutes a serious flaw in legal procedure. The consequence is that litigants have to face trial actions that are immeasurably more costly, and far more time consuming than they need to be. This also places enormous advantages in the hands of wealthy and powerful organisations and individuals, who, with delays and unscrupulous tactics, can put the cost of a civil trial completely out of the reach of ordinary individuals.

It is this defect that I believe should be corrected, and to which I have devoted this article.

Abuse of court procedures

It must be acknowledged that the process of bringing cases on application can be abused and in the Garment Workers’ Union case at 1132-1133 Price J held:

‘It would be deplorable if a litigant were allowed to come to court on vague rumours and hearsay statements and then to claim to have the right to have viva voce evidence heard about these rumours so that he [or she] could subject witnesses on the other side to cross-examination on the off-chance that he might be able to show that the vague rumours and hearsay statements were true. There must be a real issue of fact raised in the proper way by real evidence on both sides and that evidence must be such that the court cannot decide the issue except by seeing and hearing the witnesses.’

What this extract shows is not that application procedure is especially open to abuse, but that any such abuse is very easy to identify and to address.

Resolving the problem

The two obstacles in the way of resolving the present problem are, in my view –

• there is no procedure by which proceedings that have been commenced by ordinary summons can be converted to proceedings on application; and
• the present bias in favour of proceedings by summons needs to be removed.

The following amendments of the court rules are suggested:

Rule 6 is the rule in which the procedure for initiating court proceedings on application is set out. At times reference has been made to the provisions of r 6(5)(g) where it is provided that the court may ‘grant leave for … any … person to be subpoenaed to appear and be examined and cross-examined as a witness’. This wording clearly indicates that it is open to any party to application proceedings to request the court to order that particular evidence be given viva voce. The textbooks are replete with cases from which guidance can be obtained concerning the giving of evidence viva voce where action has commenced on application.

In order to give litigants a proper choice in the course they wish to take, I make the following comments, and then suggest the amendments to the rules.

• No doubt more detailed amendments to the rules can be devised but the practice, in opposed applications, of referring disputed issues to oral evidence is well established and familiar. It could safely be left to practitioners to formulate suitable orders in terms of r 6(5)(g), which could eventually be set out fully in the rules. The practice in regard to orders for appointment of curators bonis evolved in this way, for example, and is now embodied in r 57.
• There is no need to deny litigants the right to commence action by way of summons, as at present. The purpose of the amendments is to eliminate the rule that imposes a penalty if proceedings are commenced on notice of motion when a factual dispute is known to exist, and also to encourage litigants to proceed on affidavit. Left with the option, the rules would evolve naturally, and if motion proceedings have the advantages claimed, practice will confirm this.
• I would expect motion procedure to be favoured where the action is likely to be defended, largely because it removes some of the purely technical advantages that a litigant in a trial action has at present, and the abuse to which trial procedure lends itself. Where an action is likely to be undefended, a summons in the present form is in fact simpler and would therefore continue to be available, with the option of applying for summary judgment if an appearance to defend is entered purely for purposes of delay.
• As matters stand today, the party with the weaker case, who wants to delay the matter or to conceal evidence, will prefer trial procedure, particularly if he or she has the means to do so, and the party with justice on his or her side will be unafraid of the evidence. Accordingly, justice will be served if either party to an action already commenced by summons has the right to convert the trial action to motion proceedings. This is a vital aspect of this proposal, and is included in the following proposed amendments.

Amendments to the rules of court

The following amendments of rs 6 and 19 are suggested:

• The following passage is inserted as r 6(1)(a), the existing r 6(1) becoming r 6(1)(b):

(a)     Every person making a claim against any other person shall have the right to institute proceedings against such person by application in accordance with these rules, notwithstanding that he [or she] may be aware that disputes of fact are likely to arise concerning the matters at issue.

• Rule 6(5)(g) is amended by the deletion of the words ‘dismiss the application or’. This is a right that any court will have in any event if the judge detects an abuse of the process, as appears from the Garment Workers’ Union
• The following sub-paragraph (6) is added to r 19:

(6) Where notice of intention to defend has been given in any action instituted by summons in terms of r 17:

(a)     The plaintiff may, by notice delivered to the defendant within ten days of delivery of the notice of intention to defend, or at any later stage in the proceedings, inform the defendant that the proceedings are converted to application proceedings in terms of r 6, and shall with such notice deliver an affidavit supporting his claim which shall take the place of any particulars of claim already filed.

(b)     The defendant may, by notice delivered to the plaintiff together with his or her notice of intention to defend, or at any later stage in the proceedings, inform the plaintiff that the proceedings are converted to application proceedings in terms of r 6, and the plaintiff shall within 21 days of such notice deliver to the defendant an affidavit in place of any particulars of claim filed, or to be filed in the case.

(c)     Any pleadings which have already been filed at the time of such conversion, including the summons, may at the request of the party who has filed them, be suitably amended, replaced, or withdrawn from the court record.

On delivery of notice by either party to the other in terms of this sub-rule, the summons shall be deemed to be a notice of motion and the proceedings shall then be deemed to be proceedings commenced in terms of r 6.

Advantages of the amendments

In the article by Findlay (supra) he writes that if proceedings are instituted on affidavit the parties will have to surrender their supposed rights of technical pleading, but, says the author, he cannot see it is anything but fit and proper that they should. Rule 37 is an example of a rule that adds to the procedures to be carried out, without having any real beneficial effect. Adding further procedural requirements to bring a case to trial will benefit nobody.

Abuse of any court process is always possible, but abuse is easy to detect if motion proceedings are undertaken. In general, it is the party who is not afraid of the evidence who will favour conversion of a trial action to an application, and who will be ready to give his or her evidence on oath.

As the court rules currently stand, the expense and delay created by the rules put civil litigation beyond the reach of ordinary citizens. I have little doubt that the change proposed will reduce the enormous wastefulness of trial procedures, promote the interests of justice, and go a long way to reducing the trial backlog that plagues the courts.

John Price BA (UKZN) MA LLB (Cambridge) BA (Hons) MA (Unisa) is an attorney at Findlay & Niemey­er Attorneys in Pretoria.

This article was first published in De Rebus in 2013 (July) DR 28.