Mapula Thebe – editor

The Rules Board for Courts of Law has appointed a Superior Courts Task Team to consider the summary judgment procedure as applied in the High Court and Uniform Rule 32. The memorandum issued by the Rules Board states that concerns were raised in light of the constitutional challenges to r 32 – which resulted in the plaintiff abandoning its summary judgment application, irrespective of the merits of its claim and the weakness of the defendant’s substantive defence – and the general sentiment that the rule was both ineffective and abused.

The task team thoroughly considered r 32 and concluded that the present summary judgment procedure was unsatisfactory for a number of reasons, in particular:

• Deserving plaintiffs were frequently unable to obtain expeditious relief because of an inability to expose bogus defences (either in their founding affidavit or in any further affidavit – further affidavits not being permitted).
• Opportunistic plaintiffs were able to use the procedure to get the defendant to commit to a version on oath and thus obtain a tactical advantage for a trial in due course.
• A burden of proof was arguably shifted to the defendant, which was not only unfair but led to the types of constitutional challenges that have emanated in the High Court.

In view of the above, the task team recommended the following, which it envisages would best alleviate and address those problems –

• summary judgment should only be able to be sought after a plea (or exception) has been delivered (and not, as at present, after delivery of a notice of intention to defend); and
• a plaintiff should not depose to a pro forma affidavit, as is now the case, but should instead identify any point of law relied upon and explain briefly why the defence as pleaded does not raise any triable issues.

The Rules Board considered those recommendations of the task team, as did the High Court Committee of the Rules Board (HCC). Both were of the view that the recommendations of the task team might well have merit, and provide a sensible and pragmatic way of improving the current summary judgment rule. It was, however, thought appropriate to invite comments from role-players on the task team’s proposal, before the Rules Board and the HCC made any firm decisions, or reached any more definitive conclusions, as well as before any draft amended rule was prepared. The Law Society of South Africa (LSSA) will be submitting comments on this to the Rules Board. Practitioners are invited to send their comments to Kris Devan at the LSSA at kris@LSSA.org.za before 25 August.

Meanwhile, the Rules Board in conjunction with the Justice College will hold a dialogue to discuss the rules of sales in execution of immovable property in the High Court and the magistrates’ courts in early August. The Rules Board has been and is currently engaged with amendments of and streamlining of the rules, conditions of sale and forms regulating execution against immovable property.

The dialogue will be held so that attendees will be able to contribute to the final drafting of the Uniform and Magistrates’ Courts Rules Conditions of Sale and Forms, which the Rules Board will approve and in due course submit to the minister for approval. Attendees will also be able to propose amendments to legislation, which may be considered necessary to strengthen the protection of judgment debtors and safeguard execution creditors, to enhance the implementation of the constitutional imperatives and to improve judicial oversight by the courts of the process of execution against residential immovable property, where these aspects cannot be addressed by the rules of court.

In one of the feature articles in this issue, ‘Too quick to execute – how does SA’s new rules on sale in execution compare internationally’ on p 32, Douglas Shaw calls on the Rules Board to look into the issue of the execution of immovable properties. Mr Shaw compares South African rules with international rules and raises a pertinent point that South Africa is lagging behind.

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This article was first published in De Rebus in 2016 (Aug) DR 3.