In July, the Office of the Judge President Gauteng Division of the High Court issued Practice Directive 2 of 2019 (www.derebus.org.za). The directive relates to the –

• case management, trial allocation and enrolment of civil trial matters; and
• issuing of process, electronic service and filing of practice notes and heads of argument.

The directive is to be read with r 36, 37 and 37A of the Uniform Rules of Court, as amended, which have been in force since July. The directive applies to both the Gauteng Division of the High Court in Pretoria and the Gauteng Local Division of the High Court in Johannesburg and its provisions prevail over any provision in the practice manuals of either court. All trial matters in which the defendant is the Road Accident Fund or the Member of the Executive Council of Health Gauteng, or the Passenger Rail Agency of South Africa constitutes the category in respect of which paras 6 – 14 of the directive will apply.

Legal practitioners need to fully understand and interpret the principles of the directive correctly because, as the directive states: ‘This directive shall be construed and applied in accordance with the principle that notwithstanding the provisions herein providing for judicial case management, the primary responsibility remains with the parties and their legal representatives to prepare properly, to comply with all rules of court, the practice manual and this directive and to act professionally in expediting the matter towards trial and adjudication. The objectives of judicial case management in the interests of justice are to alleviate congested trial rolls and to address the problems which cause delays in the finalisation of cases. Any failure by a party to adhere to these principles may be penalised by way of an adverse costs order on a punitive scale, de bonis propriis, and may further include an order disallowing fees to be charged to a litigant by that litigants own legal practitioners.’

As can be seen from the above, this directive has the potential to cause issues for legal practitioners. In response to the directive and the issues it has caused, on 16 September
several legal practitioners filed a notice in terms of r 16A (www. derebus.org.za). The applicants raised the following constitutional issues:

• Whether the contents of the directive is contrary to the principle of legality as it does not display a rational connection between the procedures prescribed therein and the ends, which such procedures are intended to achieve, being to alleviate the causes of litigation delay and/or increased costs.
• Whether the contents of the directive unjustifiably breaches the applicants’ right of access to courts as protected by s 34 of the Constitution in the following respects –
• it unfairly limits a litigant’s existing right in terms of the rule of party presentation as it is acknowledged within the adversarial system of civil litigation;
• it does not strike a balance between the rights of litigants in terms of the rule of party presentation and the goals of case management;
• it unfairly creates delays in the finalisation of damages claims against the state and further unfairly provides the state with grounds on which to create further delays;
• it unfairly impairs the long-standing and untrammeled right of a litigant to obtain a trial date on the close of pleadings and unfairly creates further obstacles and procedures before a trial date may be obtained; and
• it introduces a system of case management that provides no remedy to a litigant who believes that they have been unfairly refused a trial date.

In the interest of access to justice, it is imperative that cases are dealt with expeditiously by the courts, however, legal practitioners and litigants should not be prejudiced in the process.

• What experience have you had with applying Practice Directive 2 of 2019? Send your views to mapula@derebus.org.za

This article was first published in De Rebus in 2019 (October) DR 3.