Putting the cart before the horse: Unpacking the minority judgment in Murray and Others NNO v Ntombela and Others [2024] 2 All SA 342 (SCA)

There is a distinction between r 30 and r 30A of the Uniform Rules of Court. Rule 30 deals with irregular proceedings and/or step. Rule 30A deals with non-compliance and/or failure to comply with the rules. In principle, r 30 seeks that a party undo what they have done while r 30A seeks that a party does what they have not done.

In this case, it appears that rs 30 and 30A applications were contained in the same application; hence reference to prayers 1 and 2. Prayer 1 relates to r 30 and prayer 2 to r 30A. Notice in terms of r 6(5)(d)(iii) is filed where a party seeks to raise only questions of law. The minority judgment accepted the general principle that the applicant in r 53 application was entitled, as of right, to the record.

It further accepted that the only exception to the general rule is where the jurisdiction of the court is challenged. However, the minority judgment found that approach to be narrow but fell short of giving further exception to the general principle.

Without further exception to the general principle, concession and disavowing reliance on the Competition Commission of South Africa v Standard Bank of South Africa Limited and related matters 2020 (4) BCLR 429 (CC) case by counsel for the liquidators was indeed fatal. Notice in terms of r 6(5)(d)(iii), which does not in itself challenge a court’s jurisdiction, is insufficient in this regard.

Notice in terms of r 6(5)(d)(iii) was set aside provisionally. Such an order is not appealable. That is why the majority judgment focused on prayer 2. The practice is that notice in terms of r 6(5)(d)(iii) will be set down for hearing together with the main application. If it contains in limine points, those points will be heard and determined first before the merits of the application. But at that time, the applicant in r 53 application would have already been provided with the record.

I respectfully agree that requiring that r 6(5)(d)(iii) be heard prior to the furnishing of the record is an attempt to subvert the general principle and, therefore, putting the cart before the horse. Notice in terms of r 6(5)(d)(iii) is not the same as an objection to jurisdiction.

Nare Simon Molele BProc (Unisa)
is a legal practitioner at SN Molele Incorporated in Pretoria.

This article was first published in De Rebus in 2024 (June) DR 4.