By Riaan Odendaal
There are some matters that many litigation lawyers dread due to the nature of the dispute and the wide ambit of the issues in dispute. One such matter forms the basis of this article.
The dispute in question was between opposing factions of a voluntary association (a church) and the background to the dispute stretched over several decades.
The parties had already approached the court on several occasions for urgent final relief. After perusing the relevant court papers, it became clear that the presiding judges’ hands were bound each time. The presiding judges were unable to satisfactorily resolve the real underlying dispute between the parties due to the magnitude of issues that were in dispute.
A real dispute of fact
Rule 6(5)(g) of the Uniform Rules of Court for the High Court states that a presiding judge has the following options available where there is a real dispute of fact that cannot properly be decided on the papers –
The particular challenge in the matter under discussion lay in the fact that virtually all the material facts were in dispute. The probabilities were stacked in the respondent’s favour to raise a successful defence due to the application of the so-called ‘Stellenvale rule’ (where there is a dispute as to the facts in motion proceedings for a final order, the order should only be granted if the facts as stated by the respondents, together with the admitted facts in the applicant’s affidavit, justify such an order), in terms of which the court generally accepts the respondent’s version where there is a bona fide dispute of fact in motion proceedings where a final order is sought (see Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1168 relating to the court’s discretion in this regard and Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235).
However, in my opinion, jurists should not necessarily always opt for a course of action because it will probably result in a win. On consideration of a possible all-encompassing solution to the parties’ dispute, it was clear that very little would be gained, especially where the members of the church were concerned, should the application merely be dismissed.
The possibility of obtaining a costs order in favour of the respondent was also in doubt, because the courts appear at times to be reluctant to make cost orders in similar matters for fear of inhibiting reconciliation between the members of the church. Further, it would be more expensive to resolve parties’ disputes in court by way of oral evidence or trial. Also, any counter-applications would probably be doomed to failure for the same reasons as the main application.
Relief through a referee?
Readers may not be aware of a relatively unknown procedure that proved useful in this matter. It provides that the court in a civil matter may, in terms of s 19 bis of the Supreme Court Act 59 of 1959 (the Act), refer, with the consent of the parties, to a referee for investigation and a report –
This provision was designed to enable civil proceedings to be conducted more expeditiously in circumstances where the court would otherwise be delayed, inconvenienced or at a disadvantage (see The Law of South Africa 2ed (Durban: LexisNexis) vol 11 at para 479).
According to DE van Loggerenberg, s 19 bis covers the same ground as the English Rules of the Superior Courts Ord 36, although the English version is considerably wider in its scope (DE van Loggerenberg Erasmus Superior Court Practice (Cape Town: Juta 2011) at A1 – 38C).
It is important to note that the referee does not usurp the role of the judge by resolving the dispute between the parties, but only assists the court in investigating the facts on which the court’s ultimate decision will be based (see The Law of South Africa 2ed (Durban: LexisNexis) 1 at para 566). The referee’s position could therefore be likened to an assistant referee or linesman’s position in a game of rugby.
The court may adopt the referee’s report in whole or in part or may return it to for further investigation. The report, or any portion thereof that is adopted by the court, has the effect of a finding by the court (s 19 bis(2)).
The referee has certain powers in terms of s 19 bis and the inquiry is to be conducted in a manner prescribed by a special order of court or by the rules of court (s 19 bis(3)). The referee may also summon witnesses and is empowered to compel the production of evidence (s 19 bis(4)) .
Any failure by a person to appear and give evidence or produce any document or thing before a referee or who refuses to cooperate is guilty of an offence and is liable on conviction to a fine or imprisonment for up to three months. Any witness who knowingly gives false evidence at an inquiry is guilty of an offence and liable on conviction to the penalties prescribed by the law of perjury (s 19 bis(5)(a) and (b)).
The referee’s remuneration and reasonable expenditure is taxable and are costs in the cause. The referee has a lien over the report until due and adequate remuneration has been paid or secured (see Adam and Others v Dada and Others 1912 NPD 109).
The potential benefits to the justice system, judges and litigants by engaging this relatively obscure procedure can be far reaching in terms of the time, money and expertise required to adjudicate a dispute.
However, the parties must consent to the procedure before the court may use it. This requirement limits the court’s use of the procedure and has been criticised in the past (see Montres Rolex SA v Kleynhans 1985 (1) SA 55 (C) at 69C – E).
Perhaps it is time for parliament to amend the section to remove this constraint.
Conclusion
In the matter referred to above, the parties agreed to appoint a referee to investigate specific issues that were stipulated in an order of court. The court appointed a retired judge to act as referee and the process is continuing.
Riaan Odendaal BProc LLB (UFS) is an advocate at the Cape Bar.
This article was first published in De Rebus in 2013 (May) DR 26.