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Practice Directives

Practice Directives

Practice Directivess

Readers must note:The Practice Directives are up to date until 30 September 2016.

This publication will be updated regularly.

First Published in 2016

© Law Society of South Africa 2016

Copyright subsists in this work. No part of this work may be reproduced in any form or by any means without the Law Society of South

Africa’s permission. Any unauthorised reproduction of this work will constitute a copyright infringement and render the doer liable

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Whilst every eff ort has been made to ensure that the information published in this work is accurate, the editors, publishers and

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Table of Contents

Gauteng Provincial Division Practice Directives 1

Western Cape Provincial Division Practice Directives 270

KwaZulu Natal Provincial Division Practice Directives 323

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GAUTENG PROVINCIAL DIVISION PRACTICE DIRECTIVES

INTRODUCTION

In November 1985 the first practice manual for the then Transvaal Provincial Division and the Witwatersrand Local Division was published. It was compiled by the late Mr Justice G A Coetzee, at the time the Deputy Judge President of the Witwatersrand Local Division. This was a monumental piece of work which was extensively used and amended from time to time. The first practice manual’s aim was to enable the courts to deliver a better service to litigants in changing circumstances. The aim of this practice manual is the same.

In October 2010, the South Gauteng High Court, Johannesburg (as the Witwatersrand Local Division is now known) published a new practice manual. With the consent of Deputy Judge President Mojapelo of that division, portions of the manual were copied into this practice manual, thereby bringing the practices of the two divisions as closely in line with each other as possible.

As was stated by Coetzee DJP in the introduction to the 1985 practice manual, the title “PRACTICE MANUAL” in itself “proclaims that there is no question of rules of law or any rule for that matter …… it is concerned mainly with how the Rules of Court are applied in the daily functioning of the courts.”

That is still the status of this practice manual. The provisions set out in the practice manual are not rules of court. It does not displace or amend rules of court. It merely tells practitioners how things are done in this court.

Over the years the workload of the courts has increased at an alarming rate. As a result the administration of the court rolls has become a mammoth task. The delay in finalizing matters became increasing longer until such time as it was unacceptable.

Since June 2010 certain practice directives were issued in the North Gauteng High Court, Pretoria, to improve service delivery in this court. There has been a marked improvement since. I therefore decided to revise the 1985 practice manual and the multitude of directives and notices issued in the division since then.

It is hoped that the revised practice manual will assist practitioners and liti-gants in knowing how we deal with litigation in this division in an attempt to improve our service delivery to the public at large.

Case Management in our Courts: A New Direction

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I wish to express my sincere thanks to all my colleagues for the valuable ideas, suggestions and assistance in preparing the practice manual. A number of practitioners also assisted. A sincere word of thanks to you as well.

_________________________W J van der Merwe Deputy Judge President North Gauteng High Court, PRETORIA Dated: 29 April 2011

CHAPTER 1 – APPLICATION OF THE PRACTICE MANUAL

1. This practice manual sets out the practice in the North Gauteng High Court, Pretoria, Republic of South Africa.

2. As such it seeks to inform how the courts in this high court function. It also seeks to obtain uniformity amongst judges in respect of practice rul-ings. It must be emphasized that no judge is bound by practice directives. Accordingly, the practice manual is not intended to bind judicial discretion. Nonetheless, it should be noted, that the judges of this high court strive for uniformity in the functioning of the courts and their practice rulings. The practice manual thus sets out what can be anticipated occurring, in the normal course of events, on any issue dealt within the practice manual.

3. This manual supersedes all previous practice directives and will come into effect on 25 July 2011, the fi rst day of the third term of 2011.

4. Amendments to the practice manual can only be made by the Judge President or the Deputy Judge President after consultation with the other judges in the North Gauteng High Court, Pretoria.

5. Reference in this manual to the rules, is a reference to the Uniform Rules of Court published in Government Notice R48 of 12 January 1965, as amended, and the Transvaal Rules.

6. Reference in this manual to “counsel” includes an advocate and an attorney who appear in court or before a judge in chambers to represent a litigant. Reference in this manual to “legal representative” means a litigant’s at-torney of record and includes a party appearing in person.

7. Where, as at date hereof, Acts of Parliament are to be repealed or amended, such as the Companies Act 1973 (Act No 61 of 1973) – to be repealed – the Close Corporations Act 1984 (Act No 69 of 1984) and the Companies Act 2008 (Act No 71 of 2008) – to be amended – topics dealing with such acts appear as Appendices to this practice manual. Similarly, where recent judg-ments such as that of the Constitutional Court in respect of default judg-ments granted by the registrar (See Elsie Gundwana v Steko Development CC, case CCT 44/10 delivered on 11 April 2011) signifi cantly change the


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applicability of a Rule of Court or where Judgments are expected to bring about such changes or clarity on the meaning or applicability of Rules of Court, rules of practice or statutes, such topics are also dealt with in ap-pendices to this practice manual. Once a topic has been suffi ciently dealt with by the courts, it will be taken up in the body of the practice manual.

CHAPTER 2 – COURT TERMS

1. As from 6 October 2014 terms of the Gauteng High Court, Provincial Division, Pretoria will be as published in directive 2/2014 of the Offi ce of the Chief Justice hereto attached as Annexure F.

CHAPTER 3 – COURT RECESS

1. The Judge President determines the duration of recess duty which each judges of the division must perform during recess. The Judge President further directs in which court(s) each judge on duty would sit.

2. Subject to 3 below, only unopposed motion court matters, unopposed di-vorce actions, opposed rule 43 and summary judgement applications with-out complexity, urgent applications and bail appeals will be heard during recess unless the Judge President so directs.

3. Save for urgent applications and bail appeals no matters at all may be en-rolled for hearing from 25 December to 2 January of each year.

4. Subject to any direction by the Judge President or the Deputy Judge President, the senior judge on duty from time to time during the recess, allocates other matters requiring determination during recess to the judges on duty.

5. During recess automatic reviews are distributed equally amongst the judges on duty, except that the judge sitting in the urgent court will not be al-located reviews during the entire week.

CHAPTER 4 – COUNSEL’S DRESS

1. Counsel is required to be properly dressed. If not properly dressed they run the risk of not being “seen” by the presiding judge.

2. Proper dress for junior counsel comprises:-2.1 A black stuff gown.2.2 A plain black long sleeved jacket, which has both a collar and lapels

(or sleeved waistcoat, similar to the one worn by English barristers). The jacket must have, for closing, one or two buttons at the waist. The buttons must be black.


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2.3 A white shirt or blouse closed at the neck.2.4 A white lace jabot or white bands.2.5 Dark pants or skirt.2.6 Black or dark closed shoes.

3. Proper dress for senior counsel comprises:3.1 Senior counsel’s gown.3.2 Senior counsel’s waist coat.3.3 White shirt or blouse closed at the neck.3.4 White lace jabot or white bands.3.5 Dark pants or skirt.3.6 Black or dark closed shoes.

4. Counsel must ensure, when appearing in court, that their waist coats or jackets, as the case may be, are buttoned up.

5. It is not proper for counsel to enter court not fully robed as set out in para-graph 2, paragraph 3 and 4 supra. It follows that counsel should not robe in court.

6. Conspicuous ornaments or jewellery should not be worn.7. On attending a judge’s chambers during the hearing of a case, counsel must

be dressed as set out in paragraphs 2 to 4 above. On attending a judge’s chambers otherwise than during the hearing of a case, counsel must be properly dressed as follows:7.1 A white shirt with a tie (men) or a white blouse closed at the neck

(women);7.2 Dark pants or dark skirt;7.3 A long sleeved dark jacket; and7.4 Black or dark closed shoes.

CHAPTER 5 – COURT SITTINGS

1. Save as set out below, all the courts of the division will commence sitting at 10:00. The courts adjourn at 11:15 and resume sitting at 11:30. The courts adjourn at 13:00 and resume sitting at 14:00. The courts adjourn for the day at 16:00.

2. Counsel must be punctual in their attendance in court at the aforesaid times.

3. Notwithstanding paragraph 1 above, it should be noted, that:3.1 Roll call of civil trials commences at 09:30.3.2 Applications for leave to appeal are usually enrolled for hearing at

09:30 or 14:00.4. The presiding judge may, at his/her discretion, deviate from the times set

out above.


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CHAPTER 6 – CIVIL TRIALS

6.1 Allocation of civil trials6.2 Briefi ng of Counsel 6.3 Bundles of documents6.4 Case management6.5 Closure of the trial roll6.6 Expert Witnesses6.7 General6.8 Hearing duration 6.9 Obtaining of Instructions 6.10 Pagination, indexing, binding and general preparation of papers 6.11 Part-heard trials6.12 Preferential trial date6.13 Pre-trial conference6.14 Roll call6.15 Set down6.16 Settlement agreements and draft orders

6.1 ALLOCATION OF CIVIL TRIALS

1. A trial will normally be allocated by the Deputy Judge President or a judge designated by him/her for hearing by a specifi c judge at roll call. Roll call is held at 09:30 in Court 6E.

2. An allocation of a trial for hearing by a specifi c judge may be made prior to roll call in which event counsel and/or the litigants’ legal representatives will be informed of the allocation before roll call.

3. In the allocation of trials due regard will be had to any justifi able claim for precedence in allocation.

4. Only trials that are ready for immediate commencement and continuous running to their conclusion will be allocated for hearing.

6.2 BRIEFING OF COUNSEL

1. Legal representatives must ensure that counsel are briefed timeously to en-able counsel to consult and be prepared to conduct the trial on behalf of the client.

2. The failure to brief counsel timeously will normally not be regarded as a valid reason not to allocate a matter to a court for trial.

6.3 BUNDLES OF DOCUMENTS

1. Where a party or the parties to a trial intend utilizing documents in their conduct of the trial such documents must be collated, numbered consecu-tively and suitably bound.


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2. Each bundle must be indexed. The index must briefl y describe each docu-ment in the bundle as a separate item.

3. The parties should preferably agree upon a joint bundle of documents. Where the parties are unable to agree upon a joint bundle, the parties must agree which party’s bundle shall be the dominant bundle. The subservient bundle or bundles must not contain documents contained in the dominant bundle or bundles.

4. The documents should not be bound in volumes of more than 100 pages.5. The bundle of documents must be bound in a manner that does not hinder

the turning of pages and which enables it to remain open without being held open.

6. The parties must agree prior to the commencement of the trial upon the evidential status of the documents contained in the bundle. The agreement must be contained in a pre-trial minute. The agreement must also cover the issue as to which documents will be part of the record before the court, in the eventuality of an appeal.

7. If unnecessary documents are included in the bundle the court may on the application of any party to the trial, or mero motu, make a punitive cost order in respect thereof.

6.4 CASE MANAGEMENT

1. Any party to a trial who is of the opinion that by reason of its complexity, long duration or any other reason, the trial requires case management, shall deliver a letter to the offi ce of the Deputy Judge President. The letter must set out – 1.1 the names of the parties to the trial and the case number;1.2 the nature of the dispute;1.3 an estimate of the probable duration of the trial;1.4 the reason why the party is of the opinion that the trial requires case

management.Proof that a copy of this letter has been forwarded to the other party or parties in the trial must be provided.

2. Any party who is in receipt of such a letter and who wishes to make rep-resentations in respect thereof may do so by forthwith delivering a letter to the offi ce of the Deputy Judge President. A copy of the letter must be delivered to all other parties to the trial and proof thereof must be provided.

3. The Deputy Judge President will advise the parties of the outcome of the request.

4. In the event of the request for case management being granted, the Deputy Judge President shall appoint a judge to undertake the case management of the trial.

5. On the appointment of the judge as aforesaid:5.1 all interlocutory applications relating to the trial, will, after consulta-

tion with the Deputy Judge President, as far as possible, be heard by that judge.


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5.2 any party to the trial, on notice to all other parties to the trial, may ap-ply to the judge for directions as to the conduct of the trial. The judge may furnish such directions or direct that an interlocutory application be brought.

5.3 The appointed judge may direct that one or more pre-trial confer-ences be held before him or in his absence.

6.5 CLOSURE OF THE TRIAL ROLL

1. The trial roll closes at 13:00 two (2) days preceding the allocated trial date where after access to the court fi le will not be permitted.

2. The prohibition of access to the court fi le continues for the duration of the trial, save with the leave of the trial judge.

3. Notwithstanding the aforegoing, attention is drawn to the requirement in respect of pagination, indexing and binding of papers which must occur not less than ten (10) days prior to the date allocated for the hearing of the trial as provided for in 6.10 infra.

6.6 EXPERT WITNESSES

1. The time periods provided in rule 36(9) of the Uniform Rules of Court are inadequate. This can result in trials not being ripe for hearing on their al-located trial dates.

2. To preclude this from happening provision has been made in 6.13 infra for extended time periods with which the parties must comply with in all mat-ters where expert notices and summaries must be delivered.

6.7 GENERAL

1. Counsel must ensure that they are available for the entire duration of the trial. The failure to do so will result in counsel’s conduct being referred to the relevant society or association of which counsel is a member for discipli-nary action.

2. A postponement of a trial will normally not be granted because counsel is not available for the trial or for the entire duration of the trial.

3. Any matter which may affect the continuous running of the trial to its con-clusion must be disclosed at roll call.

6.8 HEARING DURATION

1. A trial is designated:-1.1 “a special trial” if it is anticipated that it will last 10 (ten) or more days;

and1.2 “of long duration” if it anticipated that it will last less than 10 (ten)

but more than 5 (fi ve) days.2. If any party to a trial is of the view that a trial qualifi es as a special trial,


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that party shall deliver a written application to the offi ce of the Deputy Judge President for the allocation of a special trial date. The letter must set out:-2.1 the names of the parties to the trial and the case number;2.2 the nature of the dispute;2.3 an estimate of the probable duration of the trial ; and2.4 that a pre-trial conference in terms of rule 37 has been held and a

copy of the relevant minute must be annexed to the letter. 3. The Judge President shall inform the parties in writing of the date al-

located for the trial upon receipt of the letter that complies with 2 above.4. After being informed of the trial date as set out in 3 above, all the parties

to the trial must comply with Transvaal Rule 7(5).5. If any party to a trial is of the view that a trial will be of long duration,

that party shall deliver at least 10 (ten) days before the trial date a letter together with practice note to the offi ce of the Deputy Judge President.

6. If the letters referred to in paragraphs 2 and 5 above are not joint letters by all the parties to the trial, proof that copies of the letters have been forwarded to the other party or parties to the trial, must be provided.

7. Any party who is in receipt of a letter referred to in paragraphs 2 and 5 above and who wishes to make representations in respect thereof may do so by forthwith delivering a letter to the offi ce of the Judge President or the Deputy Judge President as the case may be. A copy of this letter must be delivered to all other parties to the trial and proof thereof must be provided.

6.9 OBTAINING OF INSTRUCTIONS

1. Legal representatives must, prior to the date of the trial, seek and obtain proper instructions from their clients in order to instruct counsel to prop-erly conduct the trial.

2. The failure by legal representatives to seek and/or obtain proper instruc-tions will normally not be regarded as a valid reason not to allocate a matter to a court for trial.

6.10 PAGINATION, INDEXING, BINDING AND GENERAL PREPARATION OF PAPERS

1. The plaintiff shall, not less than 10 (ten) days prior to the date allocated for the hearing of the trial –1.1 collate, number consecutively and suitably bind all the pleadings

relating to the trial as a separate bundle and ensure that they are in the court fi le;

1.2 collate, number consecutively and suitably bind all the notices relat-ing to the trial as a separate bundle and ensure that they are in the court fi le;


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1.3 collate, number consecutively and suitably bind all pleadings which were amended after delivery thereof;

1.4 collate, number consecutively and suitably bind the pre-trial minute/s and all documents relating thereto;

1.5 prepare and attach an index to the pleadings bundle, the notices bundle, the pre-amendment pleadings bundle and the pre-trial bun-dle respectively. The index must briefl y describe each pleading, notice or document as a separate item.

2. In binding the pleadings, notices and documents, care must be taken to ensure that the method of binding does not hinder the turning of pages and the bundle should remain open without being held open.

3. The pleadings, notices and documents should not be bound in volumes of more than 100 pages.

4. The pleadings bundle must only contain the original pleadings (as amended, if applicable).

5. If a document or documents attached to the pleadings, or contained in the bundles as referred to in paragraph 1, is or are5.1 in manuscript, or 5.2 not readily legible

the party fi ling such document shall ensure that legible typed copies of the documents are provided.

6.11 PART-HEARD TRIALS

1. As a general rule, part-heard trials should be avoided. Accordingly no trial should be commenced with where any issue or consideration exists to the knowledge of counsel that would interfere with the completion of the trial.

2. A judge hearing a trial will be most reluctant to postpone a trial which will result in a part-heard trial.

3. Where a trial is part-heard, a date for the continuation thereof must be applied for by delivering a letter to the offi ce of the Judge President. This letter must set out –3.1 the names of the parties to the action and the case number;3.2 the name of the judge before whom the trial became part-heard;3.3 the date when the trial became part-heard;3.4 an estimate of the probable duration for the completion of the trial;3.5 whether a copy of the record of the part-heard portion of the trial is

available.4. If the letter referred to in the previous paragraph is not a joint letter from all

the parties to the trial, proof that a copy of the letter has been forwarded to the other party or parties to the trial, must be provided.

5. A party who is in receipt of a letter referred to in paragraph 4 above, and who wishes to make representations in respect thereof, may do so forth-with by delivering a letter to the offi ce of the Judge President. A copy of the letter must be delivered to all other parties to the trial and proof thereof


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must be provided.6. The Judge President shall inform the parties in writing of the date for the

completion of the trial.7. After being informed of the trial date, all the parties to the trial must comply

with Transvaal Rule 7(5).

6.12 PREFERENTIAL TRIAL DATE

1. Save as provided in 6.13.3.5 infra, a request for a preferential trial date must be made only after following the procedure for the allocation of a trial date as set out in Transvaal Rule 7.

2. A request for a preferential date is made by delivering a letter to the offi ce of the Deputy Judge President. The letter must set out:-2.1 the names of the parties to the trial and the case number;2.2 the nature of the dispute;2.3 an estimate of the probable duration of the trial; and2.4 the motivation for the allocation of a preferential date.

3. If the aforementioned letter is not a joint letter by all the parties to the trial, proof that a copy of the letter has been forwarded to the other party or parties to the trial, must be provided.

4. Any party who is in receipt of a letter referred to in paragraph 2 above, and who wishes to make representations in respect thereof, may do so forthwith by delivering a letter to the offi ce of the Deputy Judge President. A copy of the letter must be delivered to the other party or parties to the trial and proof thereof must be provided.

5. The Deputy Judge President shall inform the parties in writing of the out-come of the request. The party who requested the preferential trial date may then approach the registrar for the allocation of such a preferential trial date.

6. After being informed of a trial date, all the parties to the trial must comply with Transvaal Rule 7(5). The letter from the Deputy Judge President allocat-ing the preferential trial date must be attached to the Notice of Set down delivered in terms of rule 7(5).

6.13 PRE-TRIAL CONFERENCE

1. A pre-trial conference as contemplated in rule 37 and in this Practice Manual must be held in every matter which is to proceed to trial.

2. In order to ensure that it is effective, a pre-trial conference must ideally be held after discovery and after the parties have exchanged documents as contemplated in rule 35. In the event of discovery be-ing made after the holding of a pre-trial conference, a further pre-trial conference must be held after such discovery and exchange of discovered documents.

3. In claims for damages, whether delictual or contractual, and matters where


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expert notices and summaries must be delivered the following will apply:-3.1 Within 10 (ten) days from the date the pleadings are considered to

be closed in terms of rule 29 the plaintiff shall deliver a notice as contemplated in rule 37(2)(a) to hold a pre-trial Conference (the 1st pre-trial conference).

3.2 If the plaintiff fails to comply with paragraph (1) above, the defend-ant shall within 10 (ten) days after the expiration of the said 10 (ten) day period deliver such a notice.

3.3 The purpose of the fi rst pre-trial conference is to facilitate a set-tlement (of the merits) and at that pre-trial conference the parties shall do everything in their power to achieve a settlement.

3.4 If the parties settle the merits or liability of the matter they shall state whether an apportionment of damages applies or not and, if so, in what percentages. The issue of causation should also be discussed.

3.5 If the parties do not settle the merits of the matter: and they agree on separation of certain issues, a preferential trial date will only be allocated by the Registrar if3.5.1 the pre-trial minute shows plaintiff(s) version supporting the

claim and defendant(s) version and defence to the claim (i) clearly and concisely, sets out their clients’ versions of

how the incident giving rise to the action occurred; (ii) facts which are common cause and exactly what

are the triable issues; (iii) If there are any registered or recorded claims or

actions arising out of the same incident and their status;

(iv) notices in terms of Rule 36(9)(a) and 36(9)(b), if any, in respect of merits together with joint min-utes shall have been served and fi led;

(v) the estimated number of witnesses to be called by each party and

(vi) the probable estimation of the duration of the trial must be agreed upon by the parties

3.5.2 the attorneys must prepare and fi le at court a pre-trial minute within 10 days of the pre-trial conference. Should any party fail to sign minutes of the pre-trial minute served and not object thereto in writing within 10 days after receipt the minute shall be presumed to refl ect what was dis-cussed at the pre-trial conference.

3.5.3 In matters where the matter is to proceed on merits or liability only and the opponent(s) have not signed the minutes of the pretrial conference, the party seeking a preferential/ordinary trial date shall apply to the offi ce of the DJP and annex the minute of the said pretrial


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conference. The opponent must be served or copied with such an application for a preferential/ordinary date.

3.5.4 The court may authorise separation of merits and quantum in accordance with rule 33(4) If it is convenient and the quantum is not ready to be dealt with.

3.5.5 If the merits and quantum remain separated, any of the parties may apply to the Registrar for the allocation of a preferential/ordinary trial date on the merits only after the court fi le shall have been indexed and paginated. The minute of the pre-trial conference must be annexed to the application for a preferen-tial/ordinary trial date;

3.5.6 If the Registrar is not satisfi ed that a proper pre-trial minute complying with clause 3.5.1 (above) the court fi le will be re-ferred to the Deputy Judge President or a Judge designated by him or her to fi rst certify that the matter to be trial ready before a trial date can be allocated.

3.5.7 If the Deputy Judge President (or a judge designated by him/her) is not satisfi ed that a proper pre-trial minute has been fi led, he/she will direct that a further pre-trial conference (the 2nd pre-trial conference) will be held before him/her or a judge designated by the Deputy Judge President, who may, after such pre-trial conference, authorise the allocation of a preferential trial date on the merits only.

3.6 In matters where the merits and quantum have not been sepa-rated or in matters to proceed on quantum only, a trial date shall not be allocated unless;3.6.1 the parties shall have fi led a pre-trial conference minute

refl ecting that they genuinely endeavoured to achieve the objects of Rule 37 i.e. defi ning triable issues, curtail-ing the proceedings, fi ling the relevant experts reports and joint minutes where they are required.

3.6.2 If any of the parties is of the view that the matter is ready for trial such a party should apply by noting the matter in the relevant register kept in the Registrars offi ce and furnish the Registrar with a court fi le being properly col-lated, numbered consecutively and suitably secured all pages of the pleading notices and other documents in the court fi le, together with the pre-trial minute which shall further deal with matters shown on in Annexure E in the schedule hereto.

3.6.3 The Registrar shall then distribute the said fi les to the offi ce of the Deputy Judge President where they will be distributed to various Judges who shall hold a con-ference as contemplated by Rule 37(8) before a Judge. The Registrar or the secretary of the DJP shall notify the


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parties about the date and time of the further pre-trial conference to be held in the presence of a Judge.

3.6.4 The parties may agree to allow advocates’ fees for at-tendance of any of the stages of the pre-trial procedures in terms of this directive, failing which, the court may do so at the trial.

3.6.5 The Registrar will only allocate a date of hearing if the Judge has certifi ed a matter trial ready in respect of triable issues in dispute refl ected in the minutes of the pre-trial.

3.6.6 Each party to the action proceedings should fi le a prac-tice note at least three (3) days before the allocated date of hearing.

The practice note shall set out:1. Name of the legal representatives and contact details;2. Date of hearing;3. Duration;4. Nature of the matter;5. Issue(s)6. Any prospects of settlement.

4. If it appears at the roll call – 4.1 that the parties have seriously endeavoured to narrow the issues and

explore settlement;4.2 that there are no outstanding requests for admissions or particularity

and no outstanding requests for documents;4.3 that, where applicable, the experts have met and produced a joint

minute;4.4 that the trial is ready to commence immediately and run continuously

to a conclusion then the matter will be ripe for allocation provided a judge is available.

5. Parties have a continuous obligation to seek to narrow issues and to com-ply with the substantive requirements of rule 37, and this manual.

6. If, after allocation of a trial for hearing, it appears to the judge presiding that there has not been proper compliance with rule 37, and this manual, the presiding judge to whom the trial has been allocated, may, instead of commencing or continuing with the hearing of the trial, order proper compliance with rule 37. The presiding judge may order the pre-trial to be held either in his/her chambers or on record in open court under his/her direction. The presiding judge will then determine the further hearing of the trial.

7. Where a party wishes to request that a judge presides over the pre-trial conference in terms of rule 37(8), that party shall do so by delivering a letter to the offi ce of the Deputy Judge President. A copy of this letter must be delivered to all other parties to the trial and proof thereof must appear from the letter directed to the Deputy Judge President. Any party


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who is in receipt of such a letter and who wishes to make representations in respect thereof, may do so by forthwith delivering a letter to the offi ce of the Deputy Judge President. A copy of this letter must be delivered to all other parties to the trial, and proof thereof must appear from the letter directed to the Deputy Judge President.

8. Where a party wishes to request that the registrar should intervene by fi xing the time, date and place for the conference in terms of rule 37(3)(b) that party shall do so by delivering a letter to the registrar. A copy of this letter must be directed to all other parties to the trial and the procedure contemplated in paragraph 7 above shall apply mutatis mutandis.

9. The request for intervention by the registrar as contemplated in rule 37(3)(b), or the Deputy Judge President, as contemplated in rule 37(8), must be made timeously and preferably before the time prescribed for the holding of the conference has expired.

6.14 ROLL CALL

1. A roll call will be held at 09:30 on each day during the court term of all trials enrolled for hearing on that day. If necessary a further roll call will be held at 11:30.

2. Unless advised prior to the commencement of roll call that a trial has been allocated to a specifi c judge, the parties’ legal representatives must attend roll call and continue so attending until the trial has been allocated or oth-erwise disposed of.

3. If a trial cannot be allocated for hearing on the day for which it is enrolled for hearing, the parties’ legal representatives must attend roll call on the next and subsequent days until the trial is allocated for hearing.

4. Unless the parties’ legal representatives state the contrary, it will be as-sumed that –4.1 the parties’ legal representatives are not aware of any reason why

the trial, if allocated, cannot commence and run continuously to its conclusion;

4.2 the pleadings have been properly paginated and indexed;4.3 a bundle of documents (where necessary) properly paginated and

indexed has been prepared;4.4 where separate bundles of documents have been prepared by the

parties, there is no duplication of documents in the various bundles;4.5 all issues relating to the pre-trial conference have been completed.

5. If any of the assumptions referred to in paragraph 4 above are proven to be incorrect, the trial will not be allocated. If the trial has already been allocated and any of the aforementioned assumptions are proved to be incorrect, the trial will not commence but will be referred back to the judge who conducted the roll call.

6 Unless indicated to the contrary on the daily roll, roll call will be held in Court 6E.


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6.15 SET DOWN

1. A party setting down a matter must complete in triplicate a document in accordance with annexure “A” 6.15 attached hereto.

2. One copy of annexure “A” 6.15 must be attached to the notice of set down, the second copy must be handed to the registrar while the third copy is kept for record purposes by the party setting the matter down.

3. The registrar will send by facsimile transmission a copy of annexure “A” 6.15 to notify each party or his attorney of the date on which the action is set down for hearing. The facsimile transmission will be regarded as compliance by the registrar with the provisions of Transvaal Rule 7(3).

4. Every party to the action must comply with Transvaal Rule 7(5) within 7 (seven) days of receipt of the facsimile transmission referred to in 3 above.

6.16 SETTLEMENT AGREEMENTS AND DRAFT ORDERS

1. Where the parties to a civil trial have entered into a settlement agreement, a judge will only make such settlement agreement an order of court if –1.1 counsel representing all the parties to the trial are present in court

and confi rm the signature of their respective clients to the settlement and that their clients want the settlement agreement made an order of court; or

1.2 proof to the satisfaction of the presiding judge is provided as to the identity of the person who signed the settlement agreement and that the parties thereto want the settlement made an order of court.

2. Where the parties to a civil trial have settled on the terms set out in a draft order, a judge will only make such draft order an order of court if –2.1 counsel representing all the parties to the trial are present in court

and confi rm that the draft order correctly refl ects the terms agreed upon; or

2.2 proof to the satisfaction of the presiding judge is provided that the draft order correctly refl ects the terms agreed upon.

3. In both 1 and 2 above, if -3.1 A contingency fees agreement as defi ned in the Contingency Fees

Act, 1997 (the Act), was entered into, the affi davits referred to in s 4 of the Act must be fi led.

3.2 No contingency fees agreement was entered into, affi davits by the legal practitioner and his/her client must be fi led confi rming such fact. No contingency fees, the draft order should note same.

3.3 If the contingency fees agreement is invalid, unenforceable, the draft order to note same.

4. Where the parties to a trial have settled before the trial date, they will be entitled to remove the matter from the trial roll and enrol it on any earlier date on the civil trial roll under the heading ‘Draft Orders’.


16

5. When a matter is to be placed on the Draft Orders’ roll a notice of set down must be properly served and fi led. Such matters should not be re-enrolled unless a settlement has been fi nalised.

CHAPTER 7 – CIVIL APPEALS

1. Once a date has been allocated for the hearing of any civil appeal, the par-ties may not agree to postpone the appeal without the leave of the Judge President, the Deputy Judge President or the Judges to whom the appeal has been allocated for hearing.

2. In all civil appeals, the appellant’s heads of argument must be delivered not later than fi fteen days before the appeal is heard and the respondent’s heads of argument must be delivered not later than 10 days before the ap-peal is heard. Supplementary heads of argument will only be accepted with the leave of the judges presiding.

3. If counsel intend to rely on authority not referred to in their heads of argu-ment, copies thereof should be available for the judges hearing the appeal and counsel for each other party.

4. In regard to the content of their heads of argument, counsel are reminded of the dicta in Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1998(3) SA 938 SCA at 955 B-F.

5. Counsels’ names and contact details, including cell phone numbers, must appear on the heads of argument.

6. When allocating a date for the hearing of an appeal, the Judge President or the Deputy Judge President may direct that the parties deliver heads of argument earlier than provided for in paragraph 2 above.

7. Simultaneously with the fi ling of their heads of argument counsel shall fi le a practice note. The practice note shall set out –7.1 each issue that has to be determined in the appeal;7.2 an extremely brief submission in respect of each such issue;7.3 what portion of the record must be read.

8. 8.1 In all civil appeals the record shall be securely bound in volumes of no

more than 100 pages. Each volume shall be consecutively paginated and have a cover sheet refl ecting –8.1.1 the case number;8.1.2 the names of the parties;8.1.3 the total number of volumes in the record;8.1.4 the volume number of the particular volume;8.1.5 the court appealed from;8.1.6 the names, addresses and telephone numbers of the parties’

legal representatives.8.2 The fi rst volume of the record shall contain an index of the evidence,


17

documents and exhibits. The index must identify each document and exhibit.

8.3 Unless it is essential for the determination of the appeal, and the parties agree thereto in writing, the record shall not contain –8.3.1 the opening address to the court a quo;8.3.2 argument at the conclusion of the application or trial;8.3.3 discovery affi davits and notices in respect thereof;8.3.4 identical duplications of any document contained in the record;8.3.5 documents that were not proved or admitted in the court a

quo.8.4 If it will facilitate the hearing of the appeal, or if requested by the

presiding judge in the appeal, the parties shall prepare a core bun-dle of documents relevant to the determination of the appeal. This bundle should be prepared in chronological sequence and must be paginated and indexed.

8.5 In the event of a party failing to comply with any of the aforegoing, the court may make mero motu, or on application of any party to the appeal, make a punitive cost order.

9. If the appellant decides to abandon or not to proceed with the appeal or the respondent decides not to oppose the appeal any longer, the registrar must be notifi ed thereof immediately.

CHAPTER 8 – CRIMINAL MATTERS

8.1 Petitions for leave to appeal from the lower court8.2 Appeals8.3 Automatic review8.4 Bail appeals8.5 Reviews8.6 Trials

8.1 PETITIONS FOR LEAVE TO APPEAL FROM THE LOWER COURT

1. The Criminal Procedure Act now provides that an accused who wishes to note an appeal against conviction or sentence of a lower court must fi rst apply to that court for leave to appeal. If such an application for leave to ap-peal is unsuccessful in the lower court, the accused may “by petition apply to the Judge President of the Court having jurisdiction” for leave to appeal (section 309B and 309C).

2. The petition from the lower court must be lodged by way of petition proce-dure and not by way of notice of motion to the motion court.

3. The petition to the Judge President for leave to appeal against the convic-tion or sentence of the lower court must be lodged by delivering the original and two (2) copies to the registrar dealing with petitions who shall in turn


18

distribute them to Judges in accordance with the directives given by the Deputy Judge President.

8.2 APPEALS

1. Criminal appeals are enrolled by the Director of Public Prosecutions.2. When giving notice of the set down of a criminal appeal, the Director of

Public Prosecutions shall, when the appeal is against conviction, specify the date by which the appellant’s heads of argument must be delivered and the date by which the respondent’s heads must be delivered. The Director of Public Prosecutions may, at his/her discretion or on the direction of the Judge President or of the Deputy Judge President, where the appeal is against sentence only, specify the dates by which heads of arguments are to be delivered by the respective parties.

3. Failure to fi le the heads of argument timeously will, as a general rule, only be condoned in exceptional circumstances. Error or oversight by counsel and legal representatives or the latter’s employees will rarely be regarded as exceptional circumstances.

4. Where heads of argument have been required by the Director of Public Prosecutions, the Director of Public Prosecutions must in turn fi le heads of argument not later than fi ve (5) court days before the date upon which the appeal is enrolled for hearing.

5. The presiding judge in the criminal appeal, the Judge President or the Deputy Judge President may direct that the heads of argument be delivered earlier than the dates referred to above.

6. Counsels’ names, contact details, including cell phone numbers, must ap-pear on the heads of argument.

7. If counsel intend to rely on authority not referred to in their heads of argu-ment, copies thereof should be available for the judges hearing the appeal and counsel for each party. The same should apply where counsel intend to rely on unreported judgments.

8. In regard to the content of their heads of argument counsel are reminded of the dicta in Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1998 (3) SA 938 SCA AT 955 B-F.

8.3 AUTOMATIC REVIEW

1. Criminal matters that come before the High Court on automatic review during the court term are distributed equally amongst the judges on duty save that no reviews are distributed to the judge sitting in the urgent court for the week that he/she so sits.

2. Where a particular judge has directed a query to the magistrate who pre-sided in the matter on review and the magistrate has responded thereto, the review may be referred to any other judge who shall deal with the mat-ter. Similarly where a particular judge has referred a review to the Director


19

of Public Prosecutions, and the Director’s opinion has been received, the review may be referred to any other judge who shall then deal with, and if possible, dispose of the matter.

3. Save in the case of the greatest urgency a query must be directed to the presiding magistrate before a judge interferes with a conviction or sentence on review. In all cases the opinion of the Director of Public Prosecutions must be obtained before a judge interferes with a conviction or sentence on review.

4. Where a review, in which the judge who refers the matter is considering the release of the accused from prison, is referred to the Director of Public Prosecutions, the judge referring the matter should inform the Director of Public Prosecutions of his consideration and the reason therefore and re-quire a response within a stated period of time.

5. A review judgment is given by two (2) judges. If the two (2) judges agree, the release of the accused can be achieved by way of telegraphic communication.

8.4 BAIL APPEALS

1. Irrespective of the urgency thereof, a bail appeal is not heard in the motion court.

2. As soon as the proceedings in the bail application and the magistrate’s judgment have been transcribed, application for the enrolment of the ap-peal is made to the Director of Public Prosecutions. The Director of Public Prosecutions shall then apply to the Deputy Judge President or, in his ab-sence, the senior judge on duty, for the allocation of a date and time for the hearing of the appeal. The Director of Pubic Prosecutions shall inform all parties of the allocated date and time of the appeal

3. Bail appeals are heard by a single judge.4. If the matter is, in the opinion of the Deputy Judge President, or the senior

judge in the absence of the Deputy Judge President, of suffi cient urgency to warrant immediate attention, a bail appeal may be heard before or after ordinary court hours.

8.5 REVIEWS

1. Irrespective of the urgency thereof, a review of a magistrate’s decision in a criminal matter is not heard in the motion court.

2. As soon as the court papers relating to the review have been exchanged between the parties, the applicant may make application for the enrolment of the review to the Director of Public Prosecutions. The Director of Public Prosecutions shall then approach the Deputy Judge President or, in his ab-sence, the senior judge on duty, for the allocation of a date and time for hearing of the review. The Director of Public Prosecutions shall inform all parties of the allocated date and time of the review.


20

3. When allocating the date and time for the hearing of the review, the Deputy Judge President or senior judge on duty may direct when each party is to deliver heads of argument prior to the hearing of the review.

4. The practices in regard to the binding of the papers, indexing and paginat-ing as set out in the chapter hereof dealing with motion court, apply equally to the reviews.

5. Reviews are usually heard by two judges sitting in the criminal appeal court.

8.6 TRIALS

1. Criminal trials are enrolled by the Director of Public Prosecutions. 2. Counsel must ensure that they are available for the entire duration of the

trial. The failure to do so will result in counsel’s conduct being referred to the relevant society or association of which counsel is a member for discipli-nary action.

3. A postponement of a trial will normally not be granted because counsel is not available for the trial or for the entire duration of the trial.

4. Counsel shall disclose prior to the commencement of the trial any mat-ter which may result in the matter being unable to run continuously to its conclusion.

5. Counsel will not be released from his/her obligation to remain in attendance for the duration of the trial.

CHAPTER 9 – JUDGE IN CHAMBERS

1. Counsel who wishes to see a judge in chambers should approach the rel-evant judge’s clerk. If the relevant judge’s clerk is not available, another judge’s clerk may be approached. If no judge’s clerk is available the court usher may be approached.

2. The judge’s clerk or usher will advise counsel if and when the meeting with the judge will take place.

3. Where counsel seek to see a judge in chambers, all counsel in the matter must be present. In view hereof it is not advisable for counsel to see a judge in chambers where one or more of the parties are not represented by counsel.

4. It is not necessary for counsel who appear in a trial allocated to a particular judge, to see that judge in chambers prior to the commencement of the trial, other than for the purpose of introducing themselves to the judge, if they have not already done so.


21

CHAPTER 10 – JUDGES’ CLERKS

1. The duties of judges’ clerks are set out in a manual which is made available to each judge’s clerk on his or her appointment.

2. The judges’ clerks must familiarize themselves with their functions as set out in the practice manual.

3. Court orders must be carefully and correctly noted by the judges’ clerks on the court fi le. If a draft order is made an order of court, judges’ clerks must staple the draft order onto the inside of the front cover of the court fi le. If the draft order provides for the postponement of the matter or for the extension of a rule nisi, the date to which the matter is postponed or the extended return date must be noted on the court fi le.

4. If a judge has marked a judgment as reportable the judge’s clerk must hand a printed copy and an electronic copy of the judgment to the head librar-ian. The head librarian will arrange for the reporting of the judgment. The indication on the judgment that it is reportable must be signed in original on the copy of the judgment handed to the head librarian.

5. If a judge has marked a judgment as being of interest to other judges, a printed copy thereof bearing such indication signed by the judge in original must be handed by the judge’s secretary to the head librarian. The head librarian will arrange for the distribution of the judgment to the judges of the division.

6. The judge`s clerk must hand a copy of every printed and signed judgment of his/her judge to the head librarian who shall compile and retain an electronic collection of all judgments delivered in the North Gauteng High Court, Pretoria, once such judgments have been printed and signed by the judges.

7. When a judge is sitting in the trial court and a matter has been allocated to the judge, the relevant judge’s clerk must notify the clerk of the Deputy Judge President by e-mail-7.1 immediately after the hearing of the matter has been concluded;7.2 whilst the matter continues, each afternoon no later than 15:00, that

the matter will continue the next morning; and7.3 the estimated further duration of the matter.7.4 the name of the judge hearing the matter;7.5 the parties` names; and7.6 the case number.


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CHAPTER 11 – LEAVE TO APPEAL IN CIVIL MATTERS

1. An application for leave to appeal must be fi led with the registrar in charge of civil appeals.

2. If the judgment in respect of which leave to appeal is sought was not handed down in typed form when the judgment was delivered, the applicant shall forthwith take the necessary steps to cause the judgment to be transcribed. All the other parties to the application for leave to appeal shall forthwith be informed in writing of the steps taken by the applicant in this regard.

3. If the applicant does not within (3) three days of the service of the applica-tion for leave to appeal take the necessary steps to cause the judgment to be transcribed, the respondent’s legal representative may take the neces-sary steps to ensure that the judgment is transcribed. All the other parties to the application for leave to appeal shall forthwith be informed in writing of the steps taken by the respondent in this regard.

4. If the judgment was handed down in typed form, or after the judgment has been transcribed, it may be placed in the court fi le and the applicant may apply by letter to the registrar in charge of civil appeals for the allocation of a date for the hearing of the application for leave to appeal. The applicant must forthwith forward a copy of the letter to all the other parties to the application for leave to appeal.

5. If the applicant does not apply for the allocation of a date for hearing of the application for leave to appeal within a period of (7) seven days after the judgment has become available, the respondent may so apply. The applica-tion is made by directing a letter to the registrar in charge of civil appeals. At the same time the respondent must place a copy of the judgment in the court fi le. The respondent must forthwith forward a copy of the letter to all the other parties to the application for leave to appeal.

6. Once the registrar in charge of civil appeals is in possession of – 6.1 the application for leave to appeal;6.2 the judgment; and 6.3 the letter requesting a date for the hearing of the application,

the aforesaid registrar will submit the relevant court fi le to the clerk of the judge who delivered the judgment. The judge`s clerk will endorse the date and time on which the application for leave to appeal is to be heard. The judge’s clerk will return the fi le to the aforesaid registrar.

7. The registrar in charge of civil appeals shall thereupon notify the parties of the date and time so determined and shall enrol the matter accordingly. Thereafter the aforesaid registrar shall return the court fi le with proof of notifi cation of the date and time of the hearing to the secretary of the judge who delivered the judgment and shall confi rm that the application has been enrolled.

8. Applications for leave to appeal are normally enrolled for 09:30 or 14:00. It is anticipated that the application, including judgment thereon, will be


23

concluded by 10:00 or 14:30. If the parties or any one of them envisage the application taking longer than half an hour to be concluded, a statement to this effect must be made in the letters referred to above. In such a case the presiding judge may determine another time for the hearing of the applica-tion for leave to appeal.

9. If none of the parties to the application for leave to appeal apply to the registrar for the allocation of a date for the hearing of the application for leave to appeal, the registrar in charge of civil appeals will submit the relevant court fi le to the clerk of the judge who delivered the judgment. The aforesaid registrar shall indicate the parties’ failure to comply with the aforegoing and request a date for the hearing of the application for leave to appeal. The clerk of the judge will endorse the date and time on which the application is to be heard. The judge’s clerk will return the court fi le to the aforesaid registrar. Thereafter the practice set out in paragraph 7 shall be followed.

10. The availability of counsel is not conclusive in the determination of a date for the hearing of an application for leave to appeal.

11. If the judge who delivered the judgment is not available for whatever rea-son, the fi le will be submitted to the Deputy Judge President.

CHAPTER 12 – MEDIA COVERAGE OF COURT PROCEEDINGS

12.1 In the practice notice reported 2009(3) S.A.1 the Supreme Court of Appeal issued guidelines to standardize the procedure where permission is re-quested to fi lm or record court proceedings.

12.2 The same guidelines will be applicable in the North Gauteng High Court, Pretoria, subject to the Judge President’s right to add to or alter any of the guidelines.

12.3 A typed copy of the guidelines is annexed hereto as annexure “A”.

CHAPTER 13 – MOTION COURT

13.1 Allocation of courts13.2 Index13.3 Binding of papers 13.4 Pagination 13.5 Briefi ng of counsel13.6 Calling of the roll of unopposed matters13.7 Closure of the unopposed motion court roll13.8 Concise heads of argument 13.9 Enrolment 13.10 Enrolment of application after notice of intention to oppose


24

13.11 Errors on the unopposed roll13.12 Hearing of opposed matters13.13 Third motion court matters 13.14 Matters not on the roll 13.15 Postponements 13.16 Practice note 13.17 Preparation of papers13.18 Service 13.19 Settlement 13.20 Settlement agreements and draft orders13.21 Stale service 13.22 Striking from the roll13.23 Summary judgments 13.24 Urgent applications

13.1 ALLOCATION OF COURTS

1. During Court Term -1.1 Unopposed Motion Court Three (3) courts will sit on each day of the week.1.2 Opposed Motion Court Five (5) courts will sit on each day of the week.1.3 Urgent Motion Court :- One (1) court will sit from 16:00 on the Friday preceding the motion

court week and terminates its sitting on the following Friday at 16:00.

1.4 The Judge President may in terms of the term roll or, where it is required during the court term, the Deputy Judge President, may increase or decrease the number of courts referred to in 1.1, 1.2 and 1.3.

2. During Court Recess –2.1 Unopposed Motion Court ;

Two (2) courts will sit on each day of the week save for the week before Christmas and the week before New Year.

2.2 Opposed Motion CourtNo opposed matter will be heard during court recess.

2.3 Urgent Motion CourtOne (1) court will sit each day of the week.

2.4 The Judge President may in terms of the recess duty roll or, where it is required during recess, the senior judge on duty, may increase or decrease the number of courts referred to in 2.1, 2.2 and 2.3.


25

13.2 INDEX

1. Prior to the hearing of the application the applicant must deliver a com-plete index of all documentation before the court for the determination of the application.

2. The index should briefl y describe each affi davit and annexure as a sepa-rate item.

3. This practice is equally applicable to unopposed applications.

13.3 BINDING OF PAPERS

1. Prior to the set down of the application the applicant must ensure that all the documentation before the court for the determination of the applica-tion is properly bound.

2. In binding the application, care must be taken to prevent that the method of binding hinders the turning of papers.

3. The documentation should not be bound in volumes of more than 100 pages each.

13.4 PAGINATION

1. The applicant must paginate the notice of motion, founding affi davit and annexures thereto, the replying affi davit, if any, and annexures thereto, prior to serving the documents on the other party.

2. The respondent must likewise paginate the answering affi davit and an-nexures thereto prior to serving the documents on the other party.

3. The respondent must commence pagination of the answering affi davit and annexures thereto by utilizing the next chronological number fol-lowing the last number utilized by the applicant. The applicant must commence pagination of the replying affi davit and annexures thereto by utilizing the next chronological number following the last number utilized by the respondent.

4. Where there are multiple respondents represented by different attorneys each such respondent is released from the obligation referred to in para-graphs 2 and 3 above. In that event the obligation to paginate all the affi davits is on the applicant.

5. Additional documents generated during the application (e g returns of service, reports, etc) must be indexed, paginated and placed in an “Additional Documents Bundle.”

6. Notwithstanding paragraph 2 and 3 above, the applicant must ensure that prior to the hearing of the application it is properly paginated. In the event that the respondent failed to comply with paragraph 2 above, the applicant may seek a punitive cost order against the respondent in respect of the pagination of the answering affi davit and annexures.

7. As is apparent from paragraph 1 above, this practice is applicable to op-posed and unopposed applications.


26


1. Legal representatives must ensure that counsel are briefed timeously to enable counsel to fi le practice notes and short heads of argument and to generally comply with the requirements of the practice manual in respect of the motion court.

2. The fact that counsel has not been briefed timeously will normally not be accepted as a reasonable explanation for the failure of counsel to comply with the requirements of the practice manual.

13.6 CALLING OF THE ROLL OF UNOPPOSED MATTERS

1. Prior to the calling of the roll the secretary of the presiding judge will invite counsel and legal practitioners to call matters which are to be re-moved from the roll or postponed.

2. Summary judgment and rule 43 applications which are not to be removed or postponed as well as divorce matters, will stand down to the end of the roll.

3. Thereafter the roll will be called page by page and counsel will deal with their matters, including divorce matters, in order of seniority.

4. Thereafter, if not all matters have been dealt with, counsel and legal rep-resentatives will be entitled to call their matters in order of seniority.

5. Thereafter summary judgment applications will be dealt with.6. Finally rule 43 applications will be dealt with.7. If a matter has to stand down after it has been called, it must stand down

until the roll has been called once, unless the presiding judge indicates otherwise.

8. It is emphasised that the courts of the most senior judges take precedence over the courts of more junior judges.

9. Judges may arrange the calling of matters in their specifi c courts other than provided herein.

13.7 CLOSURE OF THE UNOPPOSED MOTION COURT ROLL

1. The unopposed motion court roll closes at noon two court days preceding the date of hearing.

2. Access to the court fi le must not be sought from the relevant judge nor from the judge`s clerk.


27

13.8 CONCISE HEADS OF ARGUMENT

1. Concise heads of argument must be attached to the practice note (see paragraph 13.16 below) fi led by each party.

2. The heads should indicate the issues that fall for determination and coun-sel’s contentions in respect of those issues. Reference to the authorities relied upon for those contentions should be set out.

3. If concise heads of argument were fi led for a previous hearing of the mat-ter and the issues for determination have not changed, concise heads of argument need not be fi led again. The practice note must indicate that reliance will be placed on the concise heads of argument which were fi led previously.

4. At the hearing of the matter further heads of argument may be handed in.5. The practice note and heads of argument should also be served on the

other side or at least be exchanged with the opposing counsel.

13.9 ENROLMENT

1. For purposes of this directive “unopposed motions” shall include ex parte, unopposed, summary judgment and rule 43 applications as well as unop-posed divorces.

2. For practical reasons the enrolment of unopposed motions will require two steps: provisional enrolment and fi nal enrolment.

Provisional enrolment3. For purposes of provisional enrolment, the registrar will prepare and at all

times have available a blank register for each court day. The blank register will be in accordance with annexures “A” 13.9, “B” 13.9 and “C” 13.9 at-tached hereto. The register will be kept available at a location designated by the registrar.

4. A person seeking to enrol a matter shall do so by entering on the register for the appropriate day, in the next available space on the register under the appropriate heading (application, rule 43 or divorce) the case number, the parties’ names, the nature of the application, the name of the applicants’ attorneys, the name of the person enrolling the matter and his or her con-tact details.

5. No more than 180 applications (which include summary judgment applica-tions), 9 rule 43 applications and 60 divorces may be enrolled on any court day provided that during recess the respective numbers shall be 120, 6 and 40.

6. When the court grants a rule nisi or postpones a matter, it shall be the responsibility of the applicant or his attorney to provisionally enter the mat-ter on the register for the appropriate day before the rule is granted or the matter is postponed.

7. No entry may be removed from the provisional register.8. When the register for a particular day is full, the registrar shall remove and


28

keep the register in a safe place until the day after the date to which the register applies.

Final Enrolment9. Only matters that have been provisionally enrolled for a particular date may

be fi nally enrolled for that date.10. Unopposed motions may only be fi nally enrolled when the papers are ready,

paginated and indexed where applicable, and the matter is ripe for hearing.11. Unopposed motions may not be fi nally enrolled later than noon on the

court day but two preceding the day on which the matter is to be heard.12. For the purpose of fi nal enrolment, the registrar shall make available a se-

cure location (“the location”) under supervision of a person designated by the registrar (“the supervisor”). The supervisor shall at the location oversee the fi nal enrolment process.

13. In the location, the registrar shall make available suitable space where the fi les for each motion court day can be stored.

14. A matter is fi nally enrolled by handing over the court fi le, ready for hearing, to the supervisor in the manner prescribed in this directive.

15. The person fi nally enrolling a matter shall enter on the cover of the court fi le the relevant date and the number from the register where it had been enrolled provisionally.

16. When the court fi le is handed to the supervisor, both the supervisor and the person fi nally enrolling the matter must sign next to the date and number entered on the cover of the court fi le, as proof of fi nal enrolment.

17. The court fi le of a matter fi nally enrolled shall be left with the supervisor in the secure location.

18. The supervisor shall keep the respective fi les for each motion court day separately. The fi les shall be kept in the order that they have been received for fi nal enrolment.

19. A party who has fi nally enrolled a matter may not after fi nal enrolment, without the leave of the court, fi le any further documents other than a notice of removal, a notice of withdrawal, a notice of postponement, a notice granting leave to defend to a defendant in a summary judgment application, a practice note and an offi cial document or report.

20. Parties who are in terms of the rules entitled to fi le documents in matters that have been fi nally enrolled shall do so by handing the document/s to the supervisor who shall stamp it and fi le it in the appropriate fi le.

21. It shall be the responsibility of the registrar to prepare a motion court roll from the fi les of matters that have been fi nally enrolled and have been kept, ready for hearing, in the secure location. No matter that has not been enrolled provisionally for that day, may be on the motion court roll for a particular day. No matter that has not been fi nally enrolled as set out herein may appear on the motion court roll for a particular day.

22. The unopposed motions fi nally enrolled for each day shall be distributed evenly between the motion courts.


29

23. No more than 60 applications, 3 rule 43 applications and 20 divorces may be enrolled before any one court.

24. Any matter on the roll in excess of the numbers mentioned in paragraph 21 above, will be postponed sine die.

25. The court postponing matters under paragraph 22 above may, in its discre-tion and after hearing the offi cial concerned, order the supervisor or the registrar who has prepared the roll to pay the costs of the postponement.

2. Opposed Motions2.1 A party to an opposed motion may apply to the registrar to allocate a

date for the hearing of that application in terms of rule 6(5)(f) of the Uniform Rules of Court only, if, in addition:(a) The papers have been indexed and paginated; and(b) The heads of argument have been served and fi led.

2.2 On completion of the index it must be served immediately on the other party. The index must indicate prominently on the front page the date on which it was completed.

2.3 The applicant must serve and fi le heads of argument within 15 days from the date of completion of the index and the respondent must serve and fi le heads of argument within 10 days from the date on which the applicant’s heads of argument are served. The party fi l-ing heads of argument must ensure that the registrar records on the court fi le the date of receipt of the heads of argument.

2.4 If any of the parties fail to fi le the heads of argument as provided for in 2.3 above, the other party who has served and fi led heads of argu-ment will be entitled to apply for the allocation of a date for hearing as provided for in 2.1 above. The party applying for a date for hearing in terms of this paragraph must state in the application that the other party has failed to timeously fi le heads of argument.

2.5 If the application, for any reason, is not to proceed on the date al-located, the parties must notify the registrar thereof immediately.

2.6 The registrar will make available a secure location (“the location”) under the supervision of a person (“the supervisor”) where a register of matters enrolled on the opposed motion roll will be kept.

2.7 In the location the registrar shall make available suitable space where the fi les of each opposed motion court week will be kept. A desig-nated room will be indicated as the location.

2.8 The registrar will prepare and at all times have available in the loca-tion a blank register for each court week. The blank register will be in accordance with annexure “D” 13.9 attached hereto.

2.9 Any person seeking to enrol a matter on the opposed motion court roll shall take the fi le, ready for hearing, properly paginated and in-dexed, together with the heads of argument, to the location, enter the particulars as set out hereunder and leave the fi le in the location.

2.10 The person enrolling the matter shall do so by entering in the next


30

available space, for a particular date, on the register, the case num-ber, the parties’ names, the nature of the application, the name of the parties’ attorneys, the name of the person enrolling the matter and his or her contact details. The person shall fi le in the court fi le a notice of set down stamped by the supervisor.

2.11 The supervisor shall keep the respective fi les for each motion court week separately. The fi les shall be kept in the order that they appear on the register.

2.12 No more than 50 applications may be enrolled for any court week. 2.13 A party who has enrolled a matter may not after enrolment, without

the leave of the court, fi le any further documents other than a notice of removal, a notice of withdrawal, a notice of postponement, a practice note and an offi cial document or report.

2.14 Parties who are in terms of the rules entitled to fi le documents in matters that have been enrolled shall do so by handing the docu-ment to the supervisor who shall stamp it and fi le it in the appropri-ate fi le.

2.15 When a matter is removed from the roll by notice, the supervisor shall stamp the notice of removal, fi le the notice in the fi le and return the fi le to the general offi ce for fi ling. The supervisor shall also delete the entry pertaining to that matter from the register and sign his or her name next to the deletion with the date of the deletion. Other than this no entry may be removed from the register of opposed motions and no fi le may be removed from the secure location for any purpose other than to take the fi les to the senior judge in the opposed motion court.

2.16. It shall be the responsibility of the registrar to prepare a court roll from the register for the opposed motions for each week.

13.10 ENROLMENT OF APPLICATIONS AFTER NOTICE OF INTENTION TO OPPOSE

1. Where the respondent has failed to deliver an answering affi davit and has not given notice of an intention to only raise a question of law (rule 6(5)(d)(iii)) or a point in limine, the application must not be enrolled for hearing on the opposed roll.

2. Such an application must be enrolled on the unopposed roll. In the event of such an application thereafter becoming opposed (for whatever reason), the application will not be postponed as a matter of course. The judge hearing the matter will give the necessary directions for the future conduct of the matter.

3. The notice of set down of such an application must be served on the re-spondent’s attorney of record.


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13.11 ERRORS ON THE UNOPPOSED ROLL

1. If an urgent application is enrolled in the wrong court, the application may be referred to the urgent court with the leave of the judge in whose court it was erroneously enrolled.

2. If an opposed matter is erroneously placed on the roll of unopposed mat-ters, the clerk of the judge on whose roll the matter appears, must on instruction from the judge, hand the court fi le to the clerk of the senior opposed motion court judge who will deal therewith as the judge sees fi t.

13.12 HEARING OF OPPOSED MATTERS

1. All matters will be enrolled for the fi rst day of the week in which the matters are to be heard.

2. The senior judge will have all fi les at least 15 clear court days before the fi rst day of the week during which the matters are to be heard and will allocate all matters at least 10 (ten) court days in advance. Each judge will then prepare his or her own roll for the week which will be distributed to the professions.

3. Judges will, as far as possible, accommodate counsel and legal practitioners to hear matters on specifi c dates.

4. As soon as a matter becomes settled or the parties agree to postpone, the judge presiding must be informed of that fact immediately.

5. No opposed applications may be postponed to another opposed motion court date. Instead a new date of hearing must be applied for.

13.13 THIRD MOTION COURT MATTERS

1. An opposed motion which is expected to require a day or more (including the delivery of an ex tempore judgment) may not be enrolled for hearing without the consent of the Deputy Judge President.

2. The consent of the Deputy Judge President for the enrolment of the matter is sought in writing, a copy of which must simultaneously be made available to the other party or parties to the opposed motion and must contain:-2.1 a short exposition of the nature and complexity of the matter;2.2 the estimated duration thereof;2.3 an assurance that all the necessary affi davits have been exchanged

(or in exceptional cases an indication of the date by when they will have been exchanged);

2.4 an assurance that the papers have been properly indexed and paginated;

2.5 proposals for the fi ling of heads of argument by the parties; and2.6 suggestions as to when the application can be heard.

3. The other party or parties to the opposed motion who wish to make repre-sentations in respect thereof may do so in writing.


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4. The Deputy Judge President will determine the date of the hearing of the aforesaid opposed motion and furnish such directives as he deems fi t in respect thereof.

5. The opposed motion must forthwith be enrolled for hearing in terms of the determination of the Deputy Judge President.

13.14 MATTERS NOT ON THE ROLL

1. Any matters not on the roll must only be brought to the attention of the presiding judge of the court on whose roll the matter ought to have ap-peared after the roll of the court has been called at least once.

2. Once counsel has determined that a matter is not on the roll and the relevant court fi le has been located, the court fi le should be handed to the secretary of the judge presiding. The judge’s secretary shall prepare a list of such matters for use by the judge’s secretary and the presiding judge.

3. Once the matter is enrolled, the presiding judge will give directions for the hearing of the matter.

13.15 POSTPONEMENTS

1. A motion, whether opposed or unopposed, will generally not be postponed to a specifi c date. It will either be postponed sine die or removed from the roll.

2. Where a motion has to be postponed to a specifi c date (e g rehabilitation for which notice has been given) such date, in the absence of urgency, must be to a date at least two weeks hence.

3. Subsequent to the allocation of an opposed matter to a particular judge for hearing, the clerk of the judge to whom the matter has been allocated, must be informed in person or telephonically immediately it becomes known that a matter is to be postponed.

4. When a matter is to be postponed the provisions of paragraph 13.9 supra must be followed. In particular all the required information must be en-tered on the register for the date to which the matter is to be postponed.

13.16 PRACTICE NOTE1. Counsel for each party in a motion which appears on the opposed roll is to

fi le a practice note not later than 13:00, 15 (fi fteen) days preceding the fi rst day of the week in which the matter will be heard.

2. The practice note shall set out – 2.1 the name of the parties, the case number and its number on the roll

( if known );2.2 the names and telephone numbers of all counsel in the motion;2.3 the nature of the motion;2.4 an indication of the issues to be determined in the application;


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2.5 the relief sought at the hearing by the party on whose behalf coun-sel is completing the practice note;

2.6 an estimate of the probable duration of the motion;2.7 if the matter is urgent and, if so, motivation for the urgency; and2.8 whether or not the papers need to be read and, if so, which portion

thereof.3. A practice note must be fi led as set out in 1 above on each occasion the

motion appears on the opposed roll. 4. When the day on which the practice note is to be fi led falls on a public

holiday, such documents shall be fi led on the preceding court day.

13.17 PREPARATION OF PAPERS

1. The original application, the original return of service and other original documents comprising the application must be contained in the court fi le.

2. If a document or documents attached to the founding or replying affi davit are:-2.1 in manuscript; and2.2 not readily legible,

the applicant shall ensure that typed and legible copies of the docu-ment or documents are provided.

3. The respondent bears the obligation referred to in the previous sub-para-graph in respect of documents attached to the answering affi davit.

13.18 SERVICE

1. Service is proved by fi ling in the court fi le the original return of service which establishes the service. In the absence of an acceptable explana-tion, a return of service will generally not be accepted from the bar.

2. Where publication in the Government Gazette or newspaper of a court order, notice or other document has to be proved, the full page of the Government Gazette or newspaper containing the relevant order, notice or other document must be fi led. The court order, notice or other docu-ment must be clearly highlighted. In the absence of an acceptable expla-nation, proof of publication will generally not be accepted from the bar.

3.3.1 Where service is effected at the registered address of a company or

close corporation the Sheriff must state in the return that he or she ascertained that there was a board at the address where service was effected indicating that that address was indeed the registered offi ce of the company or close corporation.

3.2 In the absence of such statement in the return of service, the reg-istered address must be proved by fi ling in the court fi le an offi cial document proving the registered address of the company or close corporation.


34

4. Where service is effected at a domicilium citandi et executandi, the original document wherein the domicilium is chosen must be in the court fi le.

5. In actions or applications for the incarceration (i e imprisonment) of the defendant or respondent, personal service of the summons or application must be effected on the defendant or respondent. If notice of set down of the matter has to be given to the defendant or respondent, personal service of the notice of set down must be effected on the defendant or respondent.

6. When service of any document by registered post is prescribed or author-ized (in any action or application), such service is proved by the production of an affi davit by the person who procured the dispatch of such document, in which he/she –6.1 indicate the date of dispatch together with the name and address of

the addressee;6.2 describes the document so dispatched; and6.3 indicates, if that be the case, that the item in question has not been

returned to the sender by the Post Offi ce as being undelivered, and to which he/she annexes the documentary proof of posting of a reg-istered article issued by the Post Offi ce.

13.19 SETTLEMENT

1. Prior to allocation and in respect of unallocated matters the clerk of the sen-ior motion court judge for the particular week must be informed telephoni-cally immediately it becomes known that a matter has become settled.

2. Subsequent to the allocation of a matter to a particular judge for hear-ing, the clerk of the judge to whom the matter has been allocated, must be informed telephonically immediately it becomes known that a matter has become settled, or where it has been agreed that the matter is to be postponed.


1. Where the parties to an application have entered into a settlement agree-ment, a judge will only make such settlement agreement an order of court if -1.1 counsel representing all the parties to the application are present in

court and confi rm the signature of their respective clients to the set-tlement agreement and that their clients want the settlement agree-ment made an order of court,or

1.2 proof to the satisfaction of the presiding judge is provided as to the identity of the person who signed the settlement agreement and that the parties thereto want the settlement made an order of court.

2. Where the parties to an application have settled the application on


35

the terms set out in a draft order, a judge will only make such draft order an order of court if:-

2.1 counsel representing all the parties to the application are present in court and confi rm that the draft order correctly refl ects the terms agreed upon; or

2.1 proof to the satisfaction of the presiding judge is provided that the draft order correctly refl ects the terms agreed upon.

13.21 STALE SERVICE

1. Where any unopposed application is made six months or longer after the date on which the application or summons was served, a notice of set down must be served on the defendant or respondent.

2. The notice of set down must set out:-2.1 the date and time at which the relief will be sought;2.2 the nature of the relief that will be sought.

3. The notice of set down must be served at least fi ve days before the date on which the relief will be sought.

13.22 STRIKING FROM THE ROLL

1. If there is no appearance when a matter is called after a court has com-pleted its roll, it may there and then be struck from the roll.

2. If a matter has been struck from the roll, counsel in the course of the week in which the matter was struck from the roll, may seek that the matter be re-enrolled. The matter will only be re-enrolled if a proper explanation for non-appearance is given. Such explanation must be on oath.

3. If a matter has been struck from the roll it may only be re-enrolled for a subsequent week if an affi davit explaining the previous non-appearance is fi led.

4. The negligence or ignorance of the provisions of the practice manual by counsel or legal representative will not necessarily constitute an acceptable explanation for the non-appearance.

5. Where the applicant or plaintiff has failed to fi le a practice note and/or heads of argument where they are required to do so in terms of the prac-tice manual, the relevant matter may be struck from the roll.

13.23 SUMMARY JUDGMENTS

1. The plaintiff must paginate and index the application before it is served and fi led

2. If the defendant fi les an opposing affi davit in terms of rule 32(3)(b) such affi davit and annexures must be paginated and an updated index must be served and fi led.


36

3. Due to the fact that the defendant is entitled to fi le any opposing affi davit in terms of rule 32(3)(b) as late as noon on the court day but one preceding the day on which the application is to be heard, the court will hear the application in spite of the absence of a practice note and/or heads of argu-ment, save in exceptional cases.

4. The parties will be entitled to fi le and the supervisor will be obliged to receive and put on the fi le, opposing affi davits, indices, practice notes and heads of argument in spite of a summary judgment application having been fi -nally enrolled.

13.24 URGENT APPLICATIONS

1. A judge is designated for the hearing of urgent applications for each week of the year. For this purpose the week commences on Friday at 16:00 and terminates on the Friday of the next week at 16:00.

2. The normal time for the bringing of an urgent application is at 10:00 on Tuesday of the motion court week.

3.3.1 If the urgent application cannot be brought at 10:00 on the Tuesday

of the motion court week, it may be brought on any other day of the motion court week at 10:00. The applicant in the founding affi davit must set out facts which justify the bringing of the application at a time other than 10:00 on the Tuesday.

3.2 If the urgent application cannot be brought at 10:00 on any day dur-ing the motion court week, it may be brought at 11:30 or 14:00 on any day during the motion court week. The applicant in the founding affi davit must set out facts which justify the bringing of the applica-tion at a time other than 10:00 on the Tuesday and other than 10:00 of the relevant court day.

3.3 If the application cannot be brought at 10:00 on the Tuesday or at 10:00 on any other court day or at 11:30 or 14:00 on any court day it may be brought at any time during the court day. The applicant in the founding affi davit must set out facts which justify the bringing of the application at a time other than 10:00 on the Tuesday and other than at 10:00, 11:30 or 14:00 on any other court day.

3.4 The aforementioned requirements are in addition to the applicant’s obligation to set out explicitly the circumstances which render the matter urgent. In this regard it is emphasised that while an applica-tion may be urgent, it may not be suffi ciently urgent to be heard at the time selected by the applicant.

3.5 The aforementioned practices will be strictly enforced by the presid-ing judge. If an application is enrolled on a day or at a time that is not justifi ed, the application will not be enrolled and an appropriate punitive cost order may be made.

4. The fi rst paragraph of relief sought in the applicant’s notice of motion must


37

be for the enrolment of the application as an urgent application and for dispensing of the forms and service provided for in the rules of court, to the extent necessary.

5.5.1 Unless the circumstances are such that no notice of the application

is given to the respondent, or unless the urgency is so great that it is impossible to comply therewith, the notice of motion must follow the format of form 2(a) of the First Schedule to the Rules of Court and therefore must provide a reasonable time, place and method for the respondent to give notice of intention to oppose the application and must further provide a reasonable time within which the respondent may fi le an answering affi davit. The date and time selected by the ap-plicant for the enrolment of the application must enable the applicant to fi le a replying affi davit if necessary.

5.2 Deviation from the time periods prescribed by the Rules of Court must be strictly commensurate with the urgency of the matter as set out in the founding papers.

5.3 In cases of extreme urgency, the reasonable time afforded to the respondent to give notice of intention to oppose, is usually not less than 2 hours, excluding the hour between 13:00 and 14:00.

6.6.1 If the facts and circumstances set out in the applicant’s affi davits do

not:-6.1.1 constitute suffi cient urgency for the application to be brought

as an urgent application and/or6.1.2 justify the abrogation or curtailment of the time periods re-

ferred to in rule 6(5) and/or6.1.3 justify the failure to serve the application as required in rule 4,

the court will decline to grant an order for the enrolment of the application as an urgent application and/or for the dispensing of the forms and services provided for in the rule. Save for a possible adverse cost order against the applicant the court will make no order on the application.

6.2 The aforementioned requirements will be strictly enforced by the presiding judge.

7.7.1 For the purposes of urgent applications ordinary court hours are

10:00 to 11:15, 11:30 to 13:00 and 14:00 to 16:00 of a court day. If a party wishes to bring an urgent application out of ordinary court hours the presiding judge’s clerk must be telephoned at his/her offi ce or on cell number: 083 677 0522The following information must be conveyed to the judge’s clerk – 7.1.1 The identity of the parties;7.1.2 Whether or not service has been or will be effected;


38

7.1.3 Whether or not the application is or is anticipated to be opposed;

7.1.4 The type of application;7.1.5 The nature of the relief sought;7.1.6 Why it is not possible for the application to be heard during

ordinary court hours; and7.17 When it is anticipated the application will be ripe for hearing.

7.2 The judge’s clerk will communicate with the judge and thereafter advise the party when and where the application will be heard or what directions the judge has given in regard to the application.

7.3 When an urgent application is brought out of ordinary court hours, the applicant must ensure that the order of the court can be typed so that it can be signed by the presiding judge’s clerk.

7.4 The judge designated for the hearing of urgent applications is not to be contacted directly.

7.5 If the judge designated for the hearing of urgent applications directs that the application be heard in court after ordinary court hours the judge’s clerk shall telephone – 7.5.1 the court stenographer on urgent application duty to arrange

the stenographer’s attendance in court at the arranged time. The stenographer’s telephone number is obtained from i AFRICA on the Friday before 16:00.

7.5.2 the security offi cer on duty at the main entrance of the High Court at telephone number 012 315 7460 to arrange for the admission of the parties to the court and for the parties to be directed to the court in which the court dealing with urgent matters is sitting.

8.8.1 When an urgent application is brought for the Tuesday at 10:00 the

applicant must ensure that the relevant papers are fi led with the reg-istrar by the preceding Thursday at 12:00.

8.2 The registrar’s offi ce must ensure that the court fi les of all urgent applications set down for the Tuesday at 10:00 are brought to the clerk of the judge hearing the urgent applications by 16:00 on the preceding Thursday.

8.3 The clerk of the judge hearing urgent applications will prepare a roll in respect of the urgent applications to be heard on the Tuesday at 10:00. The clerk will publish the roll in the foyer of the High Court by no later than 10:00 on the Tuesday.

8.4 Where an urgent application is brought for any other time than Tuesday at 10:00, the registrar’s offi ce shall ensure that the court fi le is brought to the clerk of the judge hearing urgent applications as soon as possible. The judge’s clerk shall prepare a roll in respect of the urgent applications to be heard on the other days of the week.


39

The clerk will publish the roll in the foyer of the High Court by no later than 09:00 on the day of the hearing.

9. Save in exceptional circumstances the applicant should not frame the relief sought in the form of a rule nisi which has in whole or in part interim effect. Where applicable the urgent relief should be sought pending the determi-nation of the application.

10.10.1 On the Friday of each week at 16:00 the registrar shall send to the

clerk of the judge designated for the hearing of urgent applications for the week commencing at 16:00 on the Friday – 10.1.1 the cellular phone provided for the judge’s clerk;10.1.2 fi fteen (15) consecutively numbered court fi les (These fi les

are to be utilized in the event of an urgent application being brought without a court fi le having been opened by the regis-trar of the court);

10.1.3 an offi cial stamp of the registrar of the High Court. 10.2 On Friday of each week, before 16:00 the clerk of the judge who is to

take over the urgent court, must obtain from i AFRICA the telephone number of the stenographer on urgent court duty for the urgent court week.

10.3 On the fi rst court day after any of the fi les referred to in 10.1.2 above have been utilized, the judge’s clerk shall inform the registrar of the names of the parties and the allocated case number.

10.4 On the Friday morning at the conclusion of the week during which the designated judge heard the urgent applications, the judge’s clerk must return the cellular telephone, the unused numbered fi les and the aforesaid stamp to the registrar.

11. The memorandum to practitioners titled:-“Procedure in the Pretoria urgent motion court” dated 12 February 2007, annexed hereto as annexure “A”, is applicable and of full force and effect and must be complied with together with the aforegoing.

CHAPTER 14 – OPENING OF COURT FILES

1. Each proceeding is allocated a distinctive case number by the registrar. In all proceedings the distinctive number precedes the reference to the year in which the proceeding was registered (e g 100/2011). In appeals the distinc-tive number is preceded by an “A” (e g A100/2011).

2. An application for leave to appeal retains the case number of the matter in which leave to appeal is sought.

3. All interlocutory applications, applications related to or fl owing from the main action or application and rule 43 applications are brought in the same court fi le as the main action or application and not under a new case number.


40

CHAPTER 15 – PARTICULAR APPLICATIONS

15.1 Anton Pillar type orders15.2 Admission of advocates15.3 Cancellation of sales in execution15.4 Change of matrimonial regime 15.5 Curator bonis 15.6 Curator ad Litem 15.7 Eviction where the Prevention of Unlawful Occupation of Land Act 1998

(No 19 of 1998), applies15.8 Provisional sentence 15.9 Rehabilitation 15.10 Removal of amendment of restrictions on land use 15.11 Sequestration

15.1 ANTON PILLAR TYPE ORDERS

1. These practices apply when an order which is sought ex parte involves a search for a movable object or the attachment thereof in order to preserve evidence as is meant in Shoba v Offi cer Commanding, Temporarily Police Camp, Wagendrift dam and another: Maphanga v Offi cer Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg, and oth-ers 1995 (4) SA 1 (A) or if the item is not identifi ed in the papers, i e if identifi cation is dependent upon pointing out which is still to be made.

2. Such an application must stand on its own and not form part of an applica-tion in which other relief is claimed. Duplication of costs is to be minimized by incorporating evidence in one application by reference in any other application.

3. When the applicant wishes the matter to be head in camera:-3.1 the applicant may, without being obliged to do so, prove the reason

why such a hearing is necessary in a separate affi davit. If a separate affi davit is employed and a hearing in camera is refused without a party or the judge having placed reliance on the contents of the ap-plication itself, the applicant may withdraw and remove the Anton Pillar application;

3.2 a certifi cate from counsel in support of a hearing in camera is not necessary; and

3.3 all steps must be taken as if the application is being set down on the motion court roll by use of the ordinary forms and in the ordi-nary manner except that the notice of set down and application are handed to the clerk of the senior judge on motion court duty for purpose of safekeeping and maintaining secrecy all in accordance with the directions of the senior judge.

4. A Notice which accords with annexure “A” 15.1 hereto must be handed to the person on whom the order is to be served prior to any execution of the order.


41

5.5.1 Annexure “B” 15.1 represents a model order which applies to relief

along Anton Pillar lines. It may be adapted according to circumstances but the judge’s attention must be drawn to deviations.

5.2 Deviations from annexure “B” 15.1 must be limited to what is neces-sary and must heed the following guidelines:-5.2.1 Unless the procedure is limited in case law, undertakings to the

court must be employed to counteract injustice and avoidable inconvenience to the respondent;

5.2.2 The order must be justifi able in terms of South African law.5.2.3 It must be borne in mind that it is of the essence of an Anton

Pillar type order that it results in some immediate interference with the respondent without any prior notice (even if a rule nisi pattern of order were to be used). Immediate operation must be limited to what can be fully justifi ed by urgency or other need for breach of the audi alteram partem principle.

5.2.4 Relief which can not be so justifi ed must be dealt with in a separate part of the notice of motion (and where necessary in the court order) so that the respondent has a proper opportu-nity to oppose such relief. Immediate preserving of evidence does not imply a need to allow the making of copies or other early discovery without the other party having a chance to be heard.

15.2 ADMISSION OF ADVOCATES

1. An application for admission as an advocate must, in addition to the infor-mation required by section 3(1) of the Admissions of Advocates Act No 74 of 1964 and rule 3A of the Rules of Court allege that:- 1.1 the applicant is not arraigned on a criminal charge and has not been

convicted of a criminal offence;1.2 the applicant’s estate has not been sequestrated and that no seques-

tration proceedings are pending;1.3 the applicant was not found guilty in misconduct proceedings while

in a previous profession or employment and that when any previ-ous profession was relinquished or employment was terminated, no misconduct proceedings were pending; and

1.4 the applicant is unaware of any fact which may detrimentally affect the adjudication of the application.

22.1 If the applicant is unable to make any of the allegations aforemen-

tioned, full details of the circumstances which preclude the allegation being made must be furnished.

2.2 If the applicant is not in possession of a degree certifi cate evidencing the fact that a LL B degree or similar qualifi cation was awarded to


42

him because of her or his failure to effect payment of the tuition fees to the relevant tertiary education institution, such fact must be fully explained and such candidate must provide proof to the court of any arrangement she or he has entered into with such institution to effect payment of any outstanding amount.

3. The registrar is to ensure that the court fi les containing the admission ap-plications are handed to the clerks of the judges hearing the application at least two days before the hearing of the applications.

4. Applications for admissions are heard before two judges.

15.3 CANCELLATION OF SALE IN EXECUTION

1. If an application in terms of rule 46(11) is unopposed it is dealt with by the judge before whom it comes in chambers. If the application is opposed the application will be heard in open court.

2. The notice of motion must inter alia be served on the purchaser against whom relief is sought. The notice of motion must inform the purchaser of the time within which and the manner in which the applicant and the registrar must be informed of the purchaser’s intention to oppose the relief sought, if any.

3. If no intention to oppose the relief sought is fi led, the applicant must depose to an affi davit stating that fact. The affi davit must be placed in the court fi le before the application comes before the judge.

15.4 CHANGE TO THE MATRIMONIAL REGIME

1. The application is commenced by publication in the Government Gazette of a notice substantially in the form of annexure “A” 15.4 hereto.

2. The report of the Registrar of Deeds must be obtained before such adver-tisement is placed.

3. At least (3) three weeks before the hearing date a copy of the notice re-ferred to in paragraph 1 must be forwarded to each creditor by registered post and must be accompanied by a letter, a copy of which must be placed before the court, which states -3.1 on which date and time and to which court application will be made;3.2 the full names of the spouses, their identity numbers and their

residential addresses and places of employment in the preceding 12 months;

3.3 the effect of the proposed order;3.4 that a creditor whose interests will be prejudicially affected by the

change of marital regime may appear at the hearing to oppose the granting of the order.

4. The name, address, amount owing to, and the cause of action of each contingent and other creditor must be set out in the application. Proof of compliance with paragraph 1, 2 and 3 must be proved at the hearing of the application by the fi ling of a supplementary affi davit.


43

15.5 CURATOR BONIS

1. At the fi rst hearing of the application for the appointment of a curator bonis, the only relief granted is the appointment of a curator ad litem. All other relief is postponed sine die pending receipt of the curator ad litem’s and the master’s report.

2. The application is re-enrolled after the aforementioned reports have come to hand.

3. Save in exceptional circumstances, which must be established on affi davit, an application for the appointment of a curator bonis will not be heard if the aforementioned reports have not been fi led in the court fi le.

4. The consent of both the curator ad litem and the proposed curator bonis must be annexed to the application.

15.6 CURATOR AD LITEM

1. Where the appointment of a curator ad litem is sought to assist a litigant in the institution or conduct of litigation, the applicant must establish the experience of the proposed curator ad litem in the type of litigation which the litigant wishes to institute or conduct and also of the curator bonis who is proposed should attend to the patient’s affairs and person.

2. A consent to act by the proposed curator ad litem must be annexed to the application.

3. In order to preclude giving notice of the application to the prospective defendant, the applicant should seek that the costs of the application be reserved for determination in the contemplated trial.

4. The order sought should only permit the proposed curator to settle the action with the approval of a judge.

5. Where the curator ad litem requires the approval of the court to settle the action, the curator ad litem and plaintiff’s counsel may approach the Deputy Judge President for the allocation of a judge in chambers to approve the settlement.

15.7 EVICTION IN TERMS OF THE PREVENTION OF ILLEGAL EVICTIONS AND UNLAWFUL OCCUPATION OF LAND ACT, 19 OF 1998.

1. The application for eviction must be a separate application. The procedure to be adopted (except in urgent applications) is as follows:-1,1 The notice of motion must follow Form 2(a).1.2 The notice of motion must allow not less than fi ve days from date

of service of the application for delivery of a notice of intention to oppose.

1.3 The notice of motion must give a date when the application will be heard in the absence of a notice of intention to oppose.


44

2. After the eviction application has been served and no notice of intention to oppose has been delivered or if a notice of intention to oppose has been delivered at a stage when a date for the hearing of the application has been determined, the applicant may bring an ex parte interlocutory application authorizing a section 4(2) notice and for directions on service.

3. When determining a date for the hearing of an eviction application, suffi -cient time must be allowed for bringing the ex parte application, for serving the section 4(2) notice and for the 14 day notice period to expire.

4. If the eviction application is postponed in open court on a day of which notice in terms of section 4(2) was duly given, and if the postponement is to a specifi c date, it will not be necessary to serve another section 4(2) notice in respect of the latter date.

5. The local, provincial or national authorities that might be affected by an eviction order must be clearly identifi ed.

15.8 PROVISIONAL SENTENCE

1. Proof of presentation of a negotiable instrument is unnecessary unless pres-entation is disputed or the court requires proof thereof.

2. The original liquid document upon which provisional sentence is sought must be handed to the court when the provisional sentence is sought.

15.9 REHABILITATION

1. An application for rehabilitation will not be read by the presiding judge if the master’s report is not in the court fi le. The presiding judge will only accept the master’s report from the bar in exceptional circumstances made out in an affi davit.

2. If the applicant avers that a contribution paid by a creditor has been repaid to the creditor, adequate proof thereof must be provided.

3. The applicant, as is required by section 127 of Act 24 of 1936, must state what dividend was paid by the creditors. It is not acceptable to attempt to comply with this requirement by attaching the distribution account which the presiding judge is expected to analyse and interpret.

4. As the date of the hearing of an application for rehabilitation has been advertised, any postponement of the application will be to a specifi c date.

15.10 REMOVAL OR AMENDMENT OF RESTRICTIONS ON LAND USE

1. Applications dealt with in this section are based upon the premise that the consent of the holder of the right that is sought to be cancelled or the conditions under which it was granted are sought to be amended, does not object to the application, as is discussed in, inter alia, Ex parte Gold 1956 (2) SA 642 (T) and Ex parte Glenrand (Pty) Ltd 1983 (3) SA 203 (W).

2. If follows that the court should be convinced that the holder of the right


45

in question has knowledge of the application. There should accordingly be service on all interested parties concerned. Service under rule 4(2) of the Rules of Court is authorised by way of exception to the ordinary methods of service. Full and cogent reasons should be advanced in support of a request under the sub-rule.

3. The fact that it might be diffi cult or costly to ascertain particulars of the persons concerned, and to effect service on them, is not the most impor-tant consideration. The nature and extent of the curtailment of the rights of affected persons and the need to ensure that they are made aware of the application, is of greater importance. It follows that the court might distinguish between persons directly or indirectly affected by such ap-plications, and differentiated service might be authorised.

4. When the application is presented to court –4.1 It must be proved that the application together with a request to

report was served in good time upon the Registrar of Deeds, any Township Board that might be involved and, where applicable, a local authority that is able to comment upon-4.1.1. the correctness of the facts relied upon by the applicant; 4.1.2 the identity of persons who may have a legal interest or

whose refusal of consent could constitute adequate reason to refuse the application; and

4.1.3 the optimal method of notifying interested parties.4.2 A plan or map must be attached as an annexure to the report (if

necessary extending beyond the relevant township in which the property is situated) that will assist the court to ascertain which owners or users (of roads or rights) have an interest suffi ciently strong to warrant their being given notice of the application.

4.3 If applicable, factors must be recorded that may render ordinary service on interested parties impractical;

4.4 As the mere objection by an affected person to the removal or amendment may put an end to the application, affected persons must be clearly informed that they may raise their objections, either by written notice to the registrar or on the return day, without run-ning the risk of being mulcted in costs.

15.11 SEQUESTRATION AND VOLUNTARY SURRENDER OF ESTATES

1. In an application for sequestration, unless leave to proceed by way of substituted service has been granted, personal service of the application must be effected on the respondent.

2. Unless the court directs otherwise in terms of section 11(2) of Act 24 of 1936, the provisional order of sequestration must be served on the respondent personally.

3. If an extension of a provisional order of sequestration is sought, the party seeking such an extension must deliver an affi davit motivating such an extension.


46

4. If the applicant fails to establish that the application is not a so-called “friendly” sequestration the following will apply:4.1 Suffi cient proof of the existence of the debt which gives rise to the

application must be provided. The mere say so of the applicant and the respondent will generally not be regarded as suffi cient.

4.2 The respondent’s assets must be valued by a sworn appraiser on the basis of what the assets will probably realize on a forced sale. Mere opinions, devoid of reasoning as to what the assets will probably realize, will not be regarded as compliance herewith. The valuation must be made on oath and the appraiser must be qualifi ed as any other expert witness.

4.3 Where the applicant seeks to establish advantage to creditors by rely-ing on the residue between immovable property valued as aforesaid and the amount outstanding on a mortgage bond registered over the immovable property, proof of the amount outstanding on the mortgage bond at the time of the launching of the application is required, together with an accurate exposition of the rate of interest charged by the bondholder at the time of signature of the notice of motion. Provision must be made for any interest that will be charged on the balance outstanding of the debt secured by the bond until the date of hearing, to be added to the amount owing to the bondholder when the matter is heard.

4.4 Where the applicant seeks to establish advantage to creditors by relying on a sum of money paid into an attorney’s trust account to establish benefi t for creditors, an affi davit by the attorney must be attached to the application in which he/she confi rms that the money has been paid into his trust account and will be retained there until the appointment of a trustee. The source of the funds paid into the attorney’s trust account must be clearly disclosed under oath by the person providing the money.

4.5 In establishing advantage to creditors the following sequestration and administration costs will be assumed in an uncomplicated application:

4.5.1 Cost of application – R6 000. Cost of application if correspondent utilized – R8 000 (if the ap-

plicant’s attorney of record has agreed to limit fees proof thereof must be provided).4.5.2 The aforementioned costs are assumed to increase by R 700

for every postponement of the application or if the provi-sional order has to be furnished to all known creditors, the aforementioned costs are assumed to increase by R 700.

4.5.3 The cost of administration, subject to a minimum of R2 500 are:4.5.3.1 1% plus VAT on cash or money in a fi nancial institution;4.5.3.2 3% plus VAT on immovable property and shares; and


47

4.5.3.3 10% plus VAT on movable property including book debts.

4.5.4 Other administration costs include sheriff fees (Schedule 3 of Act 24 of 1936) and the costs of security.

4.5.5 The aforementioned costs do not include the costs of the realization of the asset. The cost must be established. Unless evidence to the contrary is placed before the court, it will be assumed that the cost of the realization of immovable prop-erty is 6% of the selling price plus advertising charges.

4.5.6 Regard being had to the costs set out in paragraph 4.5.5, the applicant must in the application set out a calculation indi-cating the probable dividend to concurrent creditors, which shall not be less than 20c in the Rand, unless extraordinary circumstances exist.

4.5.7 If the court hearing an application is doubtful whether the free residue in an insolvent estate will be suffi cient to render a dividend of 20c in the Rand to concurrent creditors, it may order any shortfall of such dividend to be supplemented from the applicant’s attorney’s taxed fees in order to ensure that proven concurrent creditors receive at least 20% of their claims. The court may further order the applicant’s attorney to inform all concurrent creditors by registered mail that a dividend of 20% of all proven claims has been guaranteed by such order.

4.1 Where the application is brought as an urgent application with the purpose of staying a sale in execution, notice of the application must be given to the judgment creditor. In addition the applicant must set out facts to enable the court to determine that the assets which are to be sold at the sale in execution will realise more, if sold privately.

4.2 Notwithstanding paragraph 3 above, a court will be reluctant to grant an extension of a return date in a “friendly” sequestration.

4.3 Where applicable, the aforegoing also apply to applications for the voluntary surrender of estates.

4.4 Every application for the voluntary surrender of an estate must be accompanied by a practice note completed by the attorney present-ing the application which is in the form annexed hereto as annexure “A” 15.14.

CHAPTER 16 – RESERVED JUDGMENTS

16.1 All enquiries about reserved judgments must be directed to the Deputy Judge President in writing who will then enquire from the judge involved when the judgment will be delivered.

16.2 If the aforementioned letter is not delivered by all the parties to the


48

litigation, proof that a copy of the letter has been forwarded to the other party or parties, must be provided.

16.3 Legal representatives must no later than 14 (fourteen) days after the be-ginning of a court term, provide a list of reserved judgments in matters handled by him/her to the Deputy Judge President.

CHAPTER 17 – UNOPPOSED DIVORCE ACTIONS

1. Prior to enrolling the matter, the legal representative who enrols the matter must ensure that the court fi le contains all the relevant pleadings, notices and returns of service. The legal representative must further ensure that the court fi le is properly paginated, indexed and bound. Documents will only be accepted from the bar in exceptional circumstances which must be established on affi davit.

2. The pleadings, notices and returns of services referred to in the previous paragraph must all be originals. If any one is not an original, an affi davit must be included in the documents explaining why the original is not in the court fi le and proving that the copy is a true copy of the original. Where the summons is not the original summons, the affi davit must additionally prove that the original summons was properly signed and stamped when issued. In such a case the presiding judge will determine if the matter can proceed in the absence of the original pleadings, notices and returns of service.

3. If a copy of a marriage certifi cate is used to prove the marriage, the copy must have been certifi ed as a true copy of the original.

4. Where the party proving the marriage requires return of the original or certifi ed marriage certifi cate, a copy thereof must be available to be placed in the court fi le at the hearing.

5. In the event that the parties have concluded an agreement of settlement, the original agreement of settlement must not be placed in the court fi le. The original agreement must be handed up through the witness proving its conclusion.

6. If a matter is not on the printed roll it will not be enrolled save in exceptional circumstances which must be made out on affi davit.

7. A matter may not be enrolled prior to the expiry of the dies induciae even if the dies induciae will have expired by the time the matter is heard.

8. Any amendment to the pleadings must be sought in writing. If the amend-ment is granted the judge’s clerk must note the order on the court fi le. The notation of the order will, in so far as the amendment may relate to the parties’ names and the spelling thereof, draw the attention of the registrar’s offi ce thereto and ensure that any court order will correctly refl ect the par-ties’ names.

9. Subject to the discretion of the presiding judge the evidence necessary for the grant of a decree of divorce may be presented on affi davit provided that – 9.1 the affi davit proves that no child was born to or adopted by the


49

parties to the marriage, or, if there was, that such child is over the age of 18 years;

9.2 all fi nancial matters between the spouses have been settled in a signed written agreement which is identifi ed in and attached to the affi davit, or if the only order to be sought in regard to fi nancial mat-ters is division of the joint estate or forfeiture of the benefi ts of the marriage in community of property;

9.3 all necessary evidence is set out in the affi davit. (In this regard it is em-phasised that primary facts and not conclusions of fact are required); and

9.4 the affi davit is attached to the notice of enrolment.10. If the interests of minor children are involved in any divorce, any settlement

agreement entered into by the parties in which the interests of such minors are addressed, or, in the absence of an agreement, any prayers dealing with the interest of minor children must be referred to the Family Advocate prior to the hearing of the matter. Any comment, concern or recommendation expressed by the Family Advocate must be brought to the court’s attention together with a comprehensive exposition of the manner in which the par-ties intend to address such comment, concern or recommendation.

CHAPTER 18 – STANDARD ORDERS

1. To facilitate the printing of court orders certain standard orders have been devised. Where practical, practitioners should seek relief in terms of the standard orders.

2. Any deviation from the standard order must be motivated either in the court papers or by counsel at the hearing of the matter.

3. The standard orders that are annexed hereto are:18.1 Absolution from the instance 18.2 Admission of Translator18.3 Agreement of Settlement18.4 Default Judgment by Court18.5 Default judgment by Registrar 18.6 Discharge of Provisional Sequestration 18.7 Divorce with Settlement Agreement18.8 Divorce without Settlement Agreement18.9 Edictal Citation18.10 Final Sequestration18.11 General order for Discovery 18.12 Leave to Appeal18.13 Order in terms of rule 39(22)18.14 Order on Appeal18.15 Post Nuptial Registration of a contract


50

18.16 Provisional Sentence 18.17 Provisional Sequestration18.18 Rehabilitation 18.19 Restrictive Conditions on Land18.20 Rule 4318.21 Rule Nisi18.22 Substituted Service 18.23 Summary Judgment granted 18.24 Summary Judgment refused18.25 Surrender 18.26 Unallocated Order

18.1 ABSOLUTION FROM THE INSTANCE

IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)

CASE NO: BEFORE THE HONOURABLE JUDGE

In the matter between:-

PLAINTIFF

and

DEFENDANT

HAVING read the documents fi led of record, having heard counsel and having considered the matter:-

THE COURT ORDERS THAT:1. Absolution form the instance be granted to the defendant.2. The plaintiff is ordered to pay the costs of the action.

BY THE COURT

____________REGISTRAR


51

18.2 ADMISSION OF TRANSLATOR




APPLICANT HAVING read the documents fi led of record, heard counsel and having considered the matter:-

IT IS ORDERED THAT:-1. The proper offi cer places the name of the applicant on the roll of translators

for translations from ………………………..to ………………………. and from ……………………. to ……………………….

BY THE COURT



52

18. 3 AGREEMENT OF SETTLEMENT




APPLICANT and

RESPONDENT

HAVING read the documents fi led of record, heard counsel and having considered the matter:-

IT IS ORDERED THAT:-1. That the agreement of settlement marked “ “ is made an order of court.

BY THE COURT



53

18.4 DEFAULT JUDGMENT BY COURT


CASE NO:

BEFORE THE HONOURABLE JUDGE


PLAINTIFF

and

DEFENDANT


DEFAULT JUDGEMENT is granted against the for:-1. Payment of the sum of ………………2. Interest on the sum of ………………at the rate of ….... per annum from

…………….to date of payment.3. The following property is declared specially executable …………………………..4. Costs of suit.

BY THE COURT



54

18.5 DEFAULT JUDGMENT BY THE REGISTRAR


CASE NO:


PLAINTIFF

and

DEFENDANT

HAVING read the documents fi led of record and having considered the matter:-

DEFAULT JUDGEMENT is granted against the for:-1. Payment of the sum of …………………………….2. Interest on the sum of……at the rate of…..per annum from ……..to date of

payment.3. ………………….

BY THE COURT



55

18.6 DISCHARGE OF PROVISIONAL SEQUESTRATION




APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. The order of provisional sequestration is set aside.2. The rule nisi is discharged.

BY THE COURT



56

18.7 DIVORCE WITH SETTLEMENT AGREEMENT




PLAINTIFF and

DEFENDANT


THE COURT ORDERS THAT:1. The marriage between the plaintiff and defendant is dissolved.2. The deed of settlement (marked “ “) is hereby made an order of court.

BY THE COURT



57

18.8 DIVORCE WITHOUT SETTLEMENT AGREEMENT




PLAINTIFF and

DEFENDANT


THE COURT ORDERS THAT:1. The marriage between the plaintiff and defendant is dissolved.2. ……………….. is awarded care and primary residence of the minor children

………………..3. The other parent shall be entitled to reasonable contact to the said children

which contact shall include:-4. …………….. is ordered to pay maintenance to ………………. in the amount

of ……………..per month per child .5. …………….. is ordered to pay maintenance in respect of the minor children

at the rate of………………….6. The defendant is ordered to pay the costs

BY THE COURT



58

18.9 EDICTAL CITATION




PLAINTIFF

and

DEFENDANT


THE COURT ORDERS THAT:1. Leave is granted to the applicant to sue the abovementioned respondent by

way of edictal citation for the following relief:-2. The citation must be served on the respondent ……………………3. The respondent is afforded …………………. (days) within which to enter

appearance to defend.4. The costs of this application are costs in the cause.

BY THE COURT



59

18.10 FINAL SEQUESTRATION


CASE NO:



APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. The estate of the respondent is placed under fi nal sequestration

BY THE COURT



60

18.11 GENERAL ORDER FOR DISCOVERY




APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. …………………………..shall make discovery on affi davit within

……………………………………..days from the date of service of this order.2. The costs of this application are to be paid by

……………………………………………………………...

BY THE COURT



61

18.12 LEAVE TO APPEAL




APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. Leave to appeal is granted.2. Leave is granted to appeal to the Supreme Court of Appeal / the Full Court

of this division.3. The costs of this application are costs in the appeal.

BY THE COURT



62

18.13 ORDER IN TERMS OF RULE 39 (22)

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)



PLAINTIFFand

DEFENDANT


IT IS ORDERED THAT:-1. The matter is transferred to the magistrate`s court for the area – in terms of

rule 39(22).2. The costs incurred to date are costs in the cause.

BY THE COURT



63

18.14 ORDER ON APPEAL




APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. The appeal is upheld / dismissed.2. The order of the court a quo is set aside and substituted with the following

order:(Set out order if the appeal is upheld)

3. The respondent / appellant is ordered to pay the costs of the appeal.

BY THE COURT



64

18.15 POST NUPTIAL REGISTRATION OF A CONTRACT




FIRST APPLICANT and

SECOND APPLICANT


THE COURT ORDERS THAT:1. The applicants are given leave to effect the execution and registration of a

notarial contract, a draft whereof is annexed as annexure “ “ to the applica-tion, which contract will after registration thereof regulate their matrimonial property system:-

2. The Registrar of Deeds is authorised to register the said notarial contract:3. This order-

3.1 will lapse if the notarial contract is not registered by the Registrar of Deeds within two months of the date of the granting of this order;

3.2 will not prejudice the rights of any creditor of the applicant as at date of registration of the contract.

BY THE COURT



65





PLAINTIFF

and

DEFENDANT


PROVISIONAL SENTENCE is granted against the defendant for:-1. Payment of the sum of ………………2. Interest on the sum of ………………at the rate of ….... per annum from

…………….to date of payment.3. Costs of suit4. The following property is declared specially executable:

BY THE COURT



66

18.17 PROVISIONAL SEQUESTRATION




APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. The estate of the respondent is placed under provisional sequestration.2. The respondent and any other party who wishes to avoid such an order

being made fi nal, are called upon to advance the reasons, if any, why the court should not grant a fi nal order of sequestration of the said estate on the …….day of …………..………..at 10:00 or as soon thereafter as the mat-ter may be heard.

BY THE COURT



67

18.18 REHABILITATION




APPLICANT


IT IS ORDERED THAT:-1. The abovementioned applicant be and is hereby rehabilitated.

BY THE COURT



68

18.19 RESTRICTIVE CONDITIONS ON LAND


CASE NO:


In the matter between:- APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. A rule nisi is issued calling on any interested persons who may choose to

do so, to object either by letter received by the registrar before …….., or by personally or through counsel appearing in court on ……………..at 10:00 against the granting of the following order:-1.11.21.3

2. Any person who has a right which may be affected is entitled to object to the granting of such an order, and may do so without incurring liability for costs. If he opposes by writing a letter to the registrar, the objector must state the objector’s full names, identity number and address and describe the property or right which will be affected by the grant of the order.

3. The order sought will have the following effect: ………………………………………………………………..

4. The papers in the matter are open for inspection without charge at the offi ce of the Registrar, High Court, cnr Paul Kruger and Vermeulen Street, Pretoria, and at the offi ces of the applicant’s attorney:- Messrs.

of

5. Service is to be effected:-5.1 by the dispatch of a copy of the order by prepaid post before

…………..to the following persons at the addresses set out alongside their names……….

6. A copy of the order, in two offi cial languages, is to be exhibited on a promi-nent part of the public notice board at the offi ce of the …………………..for a period of four weeks from ……………


69

7. Copies of the order in two offi cial languages are to be exhibited at con-spicuous places at ……….

BY THE COURT

___________REGISTRAR


70

18.20 RULE 43


CASE NO: BEFORE THE HONOURABLE JUDGE In the matter between:- PLAINTIFF and

DEFENDANT


THE COURT ORDERS THAT:1. Pendente lite the………………………. is ordered to pay maintenance to

……………in the amount of R ………per month.2. Pendente lite the …………………. is awarded care and primary residence of

the minor children born out of the marriage.3. Pendente lite the ………………… shall be entitled to reasonable contact to

the said minor children, which access shall include:- (i) …………………….(ii) …………………….

4. Pendente lite the ………………….. is ordered to pay maintenance to ……………… in respect of the aforesaid minor children in the amount of R …………. per month per child.

5. The……………………….. is ordered to make a provisional contribution to …………….. legal costs pendente lite in monthly instalments in the amount of R …………

6. The payments referred to above will commence on or before the ……. day of …….. 20…. And shall thereafter be made on or before the …….. day of each succeeding month.

7. The costs of this application are to be costs in the cause.

BY THE COURT



71

18.21 RULE NISI




APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. A rule nisi is issued calling upon the respondent to show cause on

…………………….. day of (month and year) at 10:00 or so soon thereafter as the matter may be heard why an order should not be made in the follow-ing terms:-1.1 1.21.3

2. Pending the return day the respondent is interdicted from:2.12.2

BY THE COURT



72

18.22 SUBSTITUTED SERVICE




PLAINTIFF and

DEFENDANT HAVING read the documents fi led of record, heard counsel and having considered the matter:-

THE COURT ORDERS THAT:1. Leave is granted to the application to serve the summons in which the ap-

plicant claims:1.11.2by way of substituted service

2. Service of the summons must be effected by ………………………….3. The respondent is to be afforded ……………………. (days) after service of

the summons within which to enter appearance to defend. 4 The costs of this application are to be costs in the cause.

BY THE COURT

____________

REGISTRAR


73

18.23 SUMMARY JUDGMENT GRANTED




PLAINTIFF

and

DEFENDANT


SUMMARY JUDGEMENT is granted against the for:-1. Payment of the sum of ………………2. Interest on the sum of ………………at the rate of ….... per annum from

…………….to date of payment.3. Costs of suit

BY THE COURT



74

18.24 SUMMARY JUDGMENT REFUSED




PLAINTIFF

and

DEFENDANT


SUMMARY JUDGEMENT is:-1. Refused2. Leave is granted to the defendant to defend the action.3. Costs will be costs in the cause.

BY THE COURT



75

18.25 SURRENDER




APPLICANT


IT IS ORDERED THAT:-1. The surrender of the estate of the applicant is accepted as insolvent and the

estate is placed under sequestration in the hands of the Master of the High Court.

BY THE COURT



76

18.26 UNALLOCATED ORDER




APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-

BY THE COURT



77

CHAPTER 19 – USHERS

1. The standards that are expected of ushers in the performance of their court duties as described in their job description are set out hereunder.

2. While in attendance in court, ushers should be neatly and appropriately dressed. The appropriate dress code is the following:2.1 Male ushers should be dressed in shoes, socks, dark long trousers,

white shirt with buttoned collar, and a sober tie.2.2 Female ushers should be dressed in shoes, dark skirt or long trousers,

and a white, collared blouse.2.3 All ushers are required to wear a black gown which must be in a

proper state of repair. Gowns are issued by the registrar, and each usher is responsible to ensure that the gown remains in his pos-session, and is properly cared for. If a gown is lost, the usher con-cerned will be responsible for the cost of replacement. If a gown becomes unduly worn, it must be returned to the registrar, and will be replaced.

3. Ushers must adhere to the duty roster issued by the registrar unless a de-parture from the roster has been arranged with the chief registrar. A copy of the roster for the week will be circulated to all judges at the commence-ment of the working week.

4. The working hours of ushers are from 08:00 am to 16:15, and they should make their transport arrangements accordingly. Working hours may not be altered without prior arrangement with the chief usher and the judge concerned.

5. An usher will present himself or herself at the chambers of the judge to whom he or she has been allocated at 09:30 am each day in order to determine what may be required of him or her in order to ensure that the court commences at 10:00 am. The usher will thereafter attend the court concerned. Once the court is ready to convene he or she will report at the chambers of the judge concerned in suffi cient time to enable the court to convene at 10:00 am. If a court is not ready to convene by 10:00 the usher will immediately report the fact to the judge concerned.

6. Ushers will remain in court, and will remain alert, throughout the court session.

7. An usher who has been allocated to perform duties in two courts must inform the clerk of both judges accordingly. If the usher is performing du-ties in a trial court and in an appeal court, the usher is required to remain in attendance at the trial court, unless specifi c arrangements to the contrary have been made by the judges concerned, and conveyed to the usher.

8. If the court session has not been completed by 15:55 pm, the usher may leave the court at that time in order to complete his or her other duties before the end of the working day.


78

ANNEXURE “A” 6.15

NORTH GAUTENG HIGH COURT ANNEXURE TO NOTICE OF SET DOWN FOR TRIALS

This document must be completed in triplicate

______________________________________________________________TELEFAX CONFIRMATION IN TERMS OF TRANSVAAL RULE 7(3) FOR TRIAL DATES ALLOCATED________________________________________DATE OF APPLICATION FOR TRIAL DATE: __________________________CASE NO: _________________PLAINTIFF ________________________________________DEFENDANT ________________________________

PARTY APPLYING FOR A TRIAL DATE .ATTORNEY______________________________________ADDRESS ___________________________________________ ________________________________________________ ________________________________________________REF NO: ______________________________________________

LANDLINE NO: _____________FAX number: ____________COMPULSORY

PARTY/PARTIES TO WHOM NOTICE IS TO BE GIVEN. ATTORNEY ___________________________________________ADDRESS ___________________________________________ ________________________________________________ ________________________________________________REF NO: ______________________________________________

LANDLINE NO: ________________________ FAX number: __________________________COMPULSORY

TRIAL DATE ALLOCATED BY REGISTRAR’S OFFICE___________________

This fax transmission serves as notifi cation in terms of Transvaal Rule 7(3) to ALL parties of the trial date allocated, no further registered post notifi -cation will be sent.

Parties must further satisfy the obligations imposed upon them by Transvaal Rule 7(5) within 7 days of receipt of this fax transmission.

REGISTRAR

Offi cial

Date stamp


79

ANNEXURE “A” 12

1. The court grants the necessary leave in general terms subject to the provi-sions set out below.

2. Any party who wishes to fi lm or record proceedings must notify the reg-istrar of its intention at least 24 hours beforehand. The registrar will then establish from the presiding judge whether there is any particular objection to the request.

3. Any party who wishes to object to any fi lming or recording must raise its objections in writing.

4. The court may on good cause in any particular case withdraw the leave or change the conditions.

5. Equipment limitations:5.1 Video: one camera only may be used at a time and the location of the

camera is not to change while the court is in session.5.2 Audio: the media may install their own audio-recording system pro-

vided this is unobtrusive and does not interfere with the proceedings. Individual journalists may bring tape recorders into the courtroom for the purposes of recording the proceedings but changing of cassettes is not permitted while the court is in session.

5.3 Still cameras: only one photographer allowed and the location of the camera is not to change and no changing of lenses or fi lm is permit-ted while the court is in session.

5.4 All camera, video and audio equipment must be in position at least 15 minutes before the start of proceedings and may be moved or removed only when the court is not in session. Cameras, cables and the like are not to interfere with the free movement within the court.

5.5 Lighting: no movie lights, fl ash attachments or artifi cial lighting de-vises are permitted during court proceedings.

5.6 Operating signals: no visible or audible light or signal may be used on any equipment.

6. Pooling arrangements:6.1 Only one media representative may conduct each of the audio-, video

and still- photography activities.6.2 This media representative is to be determined by the media them-

selves and is to operate an open and impartial distribution scheme, in terms of which the footage, sound or photographs would have to be distributed in a ‘clean” form, that is, with no visible logos, etc, to any other media organization requesting same and would also be archived in such a manner that it remains freely available to other media.

6.3 If no agreement can be reached on these arrangements, no expanded media coverage may take place.

7. Rules regarding behaviour of media representatives


80

7.1 Conduct must be consistent with the decorum and dignity of the court.

7.2 No identifying names, marks, logos or symbols should be used on any equipment or clothing worn by media representatives.

7.3 All representatives (including camera crew) must be appropriately dressed.

7.4 Equipment must be positioned and operated to minimize any distrac-tion while the court is in session.

7.5 Equipment must not be placed in or removed from the court room.7.6 No fi lm, video tape, cassette tape or lens may be changed.

8. There is an absolute bar on:8.1 audio recordings or close-up photography of bench discussions.8.2 audio recordings or close-up photography of communication between

legal representatives or between clients and their legal representative.8.3 close-up photographs or fi lming of judges, lawyers or parties in court.8.4 recordings (whether video or audio) being used for commercial or

political advertising purposes thereafter.8.5 use of sound bytes without the prior consent of the presiding judge.

(This does not apply to extracts from judgments or orders).9. Failure to comply with these instructions may lead to contempt of court

proceedings.


81

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85


MEMORANDUM TO PRACTITIONERS

RE: PROCEDURE IN THE PRETORIA URGENT MOTION COURT

[1] Urgent applications must be brought in accordance with rule 6 and the guidelines set out in cases such as Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782A-G, Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) and Sikwe v SA Mutual Fire & General Insurance 1977 (3) SA 438 (W) at 440G-441A. The majority of practitioners launch urgent applications without taking account of the rules or the guidelines. Apparently many practitioners feel entitled to select any day of the week and any time of the day (or night) to demand a hearing. The result is that procedures are followed which do not accord remotely with ‘the good order which is necessary for the dignifi ed functioning of the Court’ – Luna Meubel Vervaardigers at 136G-H.

[2] The purpose of this memorandum is to inform practitioners how rule 6(12) must be applied and the manner in which the urgent court will be managed to ensure that there is an orderly and dignifi ed adjudication of applications in that court. This means ensuring that the papers are fi led timeously and ready for adjudication. In general this means that they must be complete when fi led by 12:00 on the Thursday ready for roll call at 10:00 the follow-ing Tuesday.

[3] The attention of practitioners is drawn to the following:(1) Urgent applications must as far as practicable be in terms of the rules:

i e the deviation from the rules must be commensurate with the ur-gency of the case;

(2) Urgency mainly involves the abridgment of times prescribed by the rules and secondarily the departure from established fi ling and sitting times;

(3) In Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782A-G the court considered the effect of rule 6(12) (what follows is a translation) –‘It is of importance to state what the effect of this rule is. In the case of an urgent application an applicant is permitted to act by way of notice of motion without taking into account the rules which are usually applicable. The applicant is, in a certain sense, taking into account the circumstances of the case permitted to make his own rules but “as far as practicable” in accordance with the existing rules. Rule 6(12) therefore makes provision for a process subject to rules dif-ferent from the usual and when an applicant appears before a judge in such a procedural manner he must ask the judge to disregard the


86

rules applicable to ordinary adjudication. He is not obliged to go to the judge fi rst to ask permission to act by means of extraordinary adjudication because rule 6(12) expressly provides that the judge may deal with such a matter when and where he deems fi t. If an applicant acts in terms of this rule and informs the respondent that he regards the application as urgent it follows, in my view, that the respondent is obliged, in the sense that he runs the risk of an order against him by default, and entitled to provisionally accept the rules which the applicant has adopted. When the matter comes before the judge he can object, but in the meantime, he dares not disregard the rules which the applicant has made for himself. Even if the rules of court with regard to ordinary adjudication are deemed to determine that an action is instituted when the notice of motion is handed to the registrar in the case of an urgent application the applicant in the absence of the registrar may launch the matter directly to the judge and the judge can disregard the rules of ordinary adjudication in this connection. Rule 6(12)(a) provides that in the case of urgent applica-tions a judge can disregard the “forms and service” prescribed by the rules. Delivery of a notice of motion to the registrar is no “service” but because in the case of an opposed motion the applicable form 2(a) in the fi rst Schedule requires express notice to the registrar and respondent a judge in an urgent case when the registrar is not avail-able can disregard the requirement that form 2(a) be directed to the registrar.’

(4) Judges sit in the urgent motion court on a weekly basis and matters should be set down bearing that in mind. Whether unopposed or opposed the papers must be fi led (bound, indexed and paginated) by 12:00 the previous Thursday, unless the matter is so urgent that relief must be granted sooner. In Luna Meubel Vervaardigers at 137A-E the ascending order of urgency is set out:(1) The question is whether there must be a departure at all from

the times prescribed in rule 6(5)(b). Usually this involves a de-parture from the time of 7 (now 10) days which must elapse from the date of service of the papers until the stated day for hearing. Once that is so, this requirement may be ignored and the application may be set down for hearing on the fi rst avail-able motion day but regard must still be had to the necessity of fi ling papers with the registrar by the preceding Thursday so that it can come onto the following week’s motion roll which will be prepared by the Motion Court Judge on duty for that week.

(2) Only if the matter is so urgent that the applicant cannot wait for the next motion day, from the point of view of the obli-gation to fi le the papers by the preceding Thursday, can he consider placing it on the roll for the next Tuesday, without


87

having fi led papers by the previous Thursday.(3) Only if the urgency be such that the applicant dare not wait

even for the next Tuesday, may he set the matter down for hearing on the next court day at the normal time of 10:00 am or for the same day if the court has not yet adjourned.

(4) Once the court has dealt with the causes for that day and has adjourned, only if the applicant cannot possibly wait for the hearing until the next court day at the normal time that the court sits, may he set the matter down forthwith for hearing at any reasonably convenient time, in consultation with the registrar, even that be at night, or during the weekend.

Practitioners should carefully analyse the facts of each case to deter-mine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the rules under the ordinary practice of the court is required. The degree of relaxation should not be greater than the exigency of the case demands. It must be com-mensurate therewith. Mere lip service to the requirements of rule 6(12)(b) will not do and an applicant must make out a case in the founding affi davit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter is set down.’(5) Normally a respondent has not less than fi ve days after service

to give notice of his/her intention to oppose the application (rule 6(5)(b)) and if no notice of intention to oppose is given, a period of not less than ten days must elapse between the date of service and the date of the hearing stipulated in the notice of motion (rule 6(5)(b)). If the respondent gives notice of intention to oppose the respondent has 15 days from the date of service of the notice within which to fi le the answering affi davit or a notice of his/her intention to raise a question of law (rule 6(5)(d)). Thereafter the applicant has 10 days from the date of service of the answering affi davit to fi le a replying affi davit (rule 6(5)(e)). After that the applicant may within fi ve days apply for the allocation of a date for the hearing, failing which the respondent may do so (rule 6(5)(f)). It is clear from these times that the respondent is normally given ample time to consider whether to oppose (5 days); to fi le an answering affi davit (15 days); and to consider the replying affi davit before the matter is enrolled (5 days);

(6) The rule ensures an orderly fl ow of applications through the court and their expeditious adjudication. Rule 6(12) allows an applicant who requires relief urgently to have his case decided without the delays necessitated by the ordinary procedure. However the normal times will be abridged and the deviation from rule 6 will be permitted only when the matter is urgent.


88

The degree of abridgement and deviation must be commen-surate with the case and must be justifi ed in the founding affi davit. It is also required that the applicant satisfy the court that the circumstances of the case are such that the applicant will not be afforded substantial redress at a hearing in due course. Rule 6(12)(b) provides that –

‘In every affi davit or petition fi led in support of any application under sub-paragraph (a) of this sub-rule, the applicant shall set forth explic-itly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.’(7) Too many practitioners are over-optimistic or reckless in their

assessment of the requirements set out in rule 6(12)(b) and attempt to use rule 6(12) to jump the queue to their client’s advantage. Many applications are struck off the roll because the court has found them not to be urgent. It is clear that the rule continues to be the most abused rule in the Division;

(8) In accordance with the Republikeinse Publikasies judg-ment an applicant may choose to set the matter down on any Tuesday (or other day, in accordance with the degrees of urgency referred to in Luna Meubel Vervaardigers) but if the applicant does not wish to have the matter heard on that day at the time indicated it is wrongly enrolled and the pro-cedure abused. If an applicant anticipates that the application will be opposed it is essential that the respondent and the applicant be allowed reasonable times for the fi ling of answer-ing and replying affi davits before the roll closes at 12:00 on Thursday. If these affi davits are not able to be fi led in time and the matter cannot be heard at the time indicated in the notice of motion the procedure is abused. In every case the court will decide whether reasonable time has been allowed in the light of the circumstances revealed in the affi davits. If reasonable times have been allowed the respondent will not be allowed to delay the process;

(9) Where the urgent motion court judge has found that the ap-plication is not urgent and strikes it off the roll the applicant is not prevented from re-enrolling the application duly amplifi ed in a later week.

[4] In the light of the aforegoing practitioners can expect the following ap-proach in the urgent motion court –(1) Strict application of the Republikeinse Publikasies and Luna Meubel

Vervaardigers judgments: all urgent applications must be enrolled by 12:00 on the previous Thursday for hearing at 10:00 on Tuesday un-less they are covered by the other three degrees of ascending urgency referred to in Luna Meubel Vervaardigers;


89

(2) Insistence by the urgent court judge that the judge be satisfi ed that –(i) the abridgement of times and the deviation from the rule is

justifi ed by the circumstances of the case; and(ii) if the matter is not heard immediately the applicant will not be

afforded substantial redress at a hearing in due course;These matters must be pertinently dealt with in the affi davits fi led in support of the application;

(3) If an application is not fi led (bound, indexed and paginated) by 12:00 on the previous Thursday (subject to the remaining degrees of as-cending urgency in Luna Meubel Vervaardigers) the application will not be heard and will be struck off the roll. The object of timeous fi ling of the papers is to enable the court to prepare and adjudicate upon the matter expeditiously;

(4) If the judge is not satisfi ed that the application must be heard in the week in which it is enrolled for hearing it will be struck from the roll;

(5) If the application is enrolled for hearing outside normal court hours (i e 10:00 – 16:00) without satisfactory explanation, it will be struck from the roll;

(6) If an application, whether unopposed or opposed, is not ready to be adjudicated upon at the time indicated in the notice of motion it will be struck off the roll. If this occurs in an opposed application because the affi davits have not been fi led timeously before 12:00 the previous Thursday (subject to the application falling under the remaining three degrees of ascending urgency referred to in Luna Meubel Vervaardigers) this will mean that the applicant has not complied with the Republikeinse Publikasies guidelines. The judge in the urgent motion court will not permit the application to stand down so that further affi davits can be fi led;

(7) If a matter is not ready for hearing in the week in which it is en-rolled for hearing, for whatever reason, in the absence of exceptional circumstances, which must appear from an affi davit, it will not be postponed to a later week. It will be struck off the roll;

(8) If the circumstances of a case are exceptional and the judge post-pones the matter to a later week the judge will order –(i) that the remaining affi davits be fi led (bound, indexed and

paginated) by specifi c times;(ii) that the papers be taken immediately to the judge who will sit

in the later court;(iii) that the applicant immediately deliver to the judge who will sit

in the later week a letter summarising the issues in the matter and the nature of the urgency.

(9) The return day of a rule nisi will be heard in the ordinary motion court unless the rule nisi expressly orders that the return day be heard in the urgent motion court. If parties agree that interim relief be granted and the respondent contends that the fi nal adjudication


90

of the matter is urgent, this must be dealt with in an affi davit so that the judge in the urgent motion court can make the appropriate order;

(10) No matter involving more than 500 pages will be considered by the judge in the urgent court (subject to the remaining three degrees of ascending urgency) unless the papers are delivered to the judge who will hear the matter at least 48 hours before the time of the hearing in the notice of motion;

(11) Any semi-urgent application which involves bulky affi davits in ex-cess of 500 pages and/or argument in excess of three hours will be referred to the Deputy Judge President to allocate a date and judge for the hearing. Where practitioners anticipate that a dispute is of such importance that it must be resolved urgently by the court, for whatever reason, they should approach the Deputy Judge President to allocate a date for the hearing and determine dates for the fi ling of affi davits and heads of argument and the indexing and pagina-tion of the affi davits.

Dated at Pretoria on the ……….. of ………………….. 20……


91


1. The order being served on you requires you to allow the persons named therein to enter the premises described in this order and to search for, examine and remove or copy the articles specifi ed in this order. You are also required to point out and hand over any such item to the sheriff. Particulars are stated in the order.

2. 2.1 When this notice is handed to you, you are entitled, if you are an

employee of the respondent or in charge of the premises, to con-tact the respondent or a more senior offi cer of the respondent. You are entitled to the attendance and advice of such senior person, the respondent or an attorney, provided such person arrives without delay and not later than an hour after the handing over of this notice.

2.2 Until the attorney, the respondent or such other offi cer arrives or until the time has passed for him or her to arrive, you need not comply with any part of this order, except that you must allow the applicant’s attorney, the sheriff and the other persons named in the order to enter the premises and to take such steps as, in the opinion of that attorney, are reasonably necessary to prevent prejudice to the further execution of the order.

3. You are further entitled to have the sheriff and the applicant’s attorney explains to you what this notice and the court order mean.

4. You may be punished for contempt of court if you, inter alia:-4.1 obstruct the sheriff unlawfully in the execution of this order; or 4.2 wilfully disobey this order; or4.3 remove or intentionally cause harm to any item about to be attached

or removed in terms of this order, until the attachment is set aside by the court or is lifted on instruction from the applicant.


92

ANNEXURE “B” 15.1

Having heard counsel for the applicant and having read the papers fi led of record, and on the basis that the applicant undertakes to this court that:-

1. this order will not be executed outside the hours between 08:00 and 18:00 on a weekday;

2. applicant will prevent the disclosure of any information gained during the execution of this order to any party except in the course of obtaining legal advice or pursuing litigation against the respondent;

3. applicant will compensate the respondent for any damages caused to the respondent by anyone exceeding the terms of this order;

4. applicant will compensate the respondent for any damage caused to the respondent by reason of the execution of this order should this order sub-sequently be set aside.

IT IS ORDERED:

1. That the respondent and any other adult person in charge of the premises of the respondent at Lover’s Lane, Pretoria, grant the sheriff of the above honourable court, applicant’s manager ( “Mr ABC”), attorney DEF (“appli-cant’s attorneys”) and a computer operator nominated by applicant access to the said premises for the purpose of :-1.1 searching the premises for the purpose of enabling any of those per-

sons to identify and point out to the sheriff originals or copies of, or extracts from applicant’s recipes and formulae for the manufacture of GHtoys;

1.1 examining any item for the purpose of identifying it and deciding whether it is of the nature mentioned in the preceding subparagraph;

1.2 searching the premises for the purposes of fi nding any computer disc containing any of the items referred to above.

2. That the respondent forthwith discloses passwords and procedures required for effective access to the computer for the purpose of searching on the computer and making a disc copy, or, if that is not possible, a print out of computer documents containing information of the nature which would be expected in a document mentioned in paragraph 1.1 above.

3. 3.1 That the respondent permits the sheriff to attach and to remove any

document pointed out by a person mentioned in paragraph 1 as be-ing a document covered by paragraph 1.

3.2 That, subject to paragraph 5.3.2 hereof, the sheriff is authorized to attach any document which is pointed out by any of the aforesaid persons and is directed to remove any attached document in respect of which the applicant or the applicant’s attorney does not give a different instruction. The sheriff is directed to keep each removed item in his custody until the applicant authorizes its release to the


93

respondent or this court directs otherwise.4. That until completion of the search authorized in the preceding paragraphs

the respondent may not access any computer or any area where documents of the class mentioned in paragraph 1.1 may be present except with the leave of the applicant’s attorney or to make telephone calls or send an electronic message to obtain the attendance and advice mentioned in the notice which is handed over immediately prior to execution of this order.

5. The sheriff is directed, before this order and this application is served or executed, to-5.1 hand to the respondent or the other person found in charge of the

said premises a copy of a notice which accords with annexure” A” 15.1 of the practice manual; and

5.2 to explain paragraphs 2, 3 and 4 thereof; and5.3 to inform those persons of the following:

5.3.1 That any interested party may apply to this court on not less than twenty four (24) hours’ notice to the offi ce of the ap-plicant’s attorney for a variation or setting aside of this order, the court’s practices and rules applying unless the court directs otherwise.

5.3.2 That the respondent is entitled to make a copy of any docu-ment which the sheriff intends to remove unless the sheriff declares that the time involved makes the procedure impracti-cal and the sheriff either does not remove the relevant item or removes it in a container sealed by him

and which the sheriff may not open except to give effect to this order or to any further direction from the court.

5.3.3 That the respondent or his representative is entitled to inspect items in the sheriff’s possession for the purpose of satisfying themselves that the inventory is correct.

6. The sheriff is ordered to immediately make a detailed inventory of all items attached and to provide the registrar of this court, the applicant’s attorney, and the respondent with a clear copy thereof.

7. That unless a different direction is obtained from the court, applicant and applicant’s attorney will, two days after this order is executed, become entitled to inspect any of the removed items in order to assess whether it provides evidence relevant to the present application or to the further legal proceedings envisaged in the application.

8. That the sheriff is ordered to inform the respondent that the execution of this order does not dispose of all the relief sought by the applicant and to simultaneously serve the notice of motion and explain the nature and exigency thereof.

9. The costs of this application are reserved for determination in the further proceedings foreshadowed in this application save that –9.1 if the applicant does not institute those legal proceedings within

three weeks of the date of this order, either party may, on not less


94

than 96 hours’ notice to the other, apply to this honourable court for an order:

9.1.1 determining liability for those costs and determining what must be done about removed items and any copies thereof;

9.1.2 any other party effected by the grant or execution of this order may on no less than 96 hours’ notice apply to this honourable court for an order determining liability for the costs of such party and determining what must be done about any item removed from any such party or any copy thereof.

Note: In some situations the following may also be appropriate:

10. The respondent and any other adult person in charge of the premises at which this order is executed are further directed to disclose to the sheriff of the above honourable court the whereabouts of any document or item falling within the cat-egories of documents and items referred to in 1.1 above, whether at the premises at which this order is executed or elsewhere to the extent that the whereabouts are known to such person(s).11. In the event that any document or item is disclosed to be at premises other than the premises mentioned in paragraph 1 of this order, the applicant may approach this court ex parte for leave to permit execution of this order at such other premises.


95


Take notice that on the _________ day of ___________ 20 _____ at 10:00 or so soon thereafter as the matter may be heard, the abovementioned applicants will apply to the North Gauteng High Court of Pretoria (cnr Vermeulen and Paul Kruger Street) for an order in the following terms:

1. The applicants are given leave to change the matrimonial property system which applies to their marriage, by the execution and registration of a no-tarial contract, a draft whereof is attached to the fi rst applicant’s supporting affi davit and is marked “….” and which contract, after registration thereof, will regulate their property system;

2. The Registrar of Deeds is authorised to register the notarial contract:3. This order –

3.1 will lapse if the notarial contract is not registered by the Registrar of Deeds within two months of the date of the granting of this order; and

3.2 will not prejudice the rights of any creditor of the applicants as at date of registration of the contract.


96


Applicant/s…………………………… Case No: ……………………………..

Practice Note

(1) Applicant’s address ………………………………………………………….……..(2) Date advertised for application …………………………………………………..(3) S 4(1): Publication of notice of surrender Date of publication …………………………….…………… Government Gazette p……………….………….…………... Newspaper p ……………….……………………...(4) S 4 (2): Notice to creditors Date of delivery/posting p…………………………….……….... Affi davit to prove delivery/posting p……………………………………….. Physical proof delivery/posting p …………………………………..…..(5) S 4 (3): Statement of affairs p …………………………………….... Date of lodging p ………………………………………. Master’s certifi cate p ………………………………………. Magistrate’s certifi cate p ……………………………………….(6) S 6 (1): Proof of insolvency p ………………………………………. Movable property – description and value p …………………………….………… Proof of value of movable property p ………………………….…………… Immovable property – description and value p ……………………………………… Proof of value of immovable property p ……………………………………… Calculation of dividend to creditors p ……………………………………… Attorney’s fees for application p ……………………………………… Valuator’s fees p ………………………………………


97

APPENDICES

The Companies Amendment Act 2011 (Act No 3 of 2011 was assented to by the President on 19 April 2011. This Act amended the Companies Act 2008 (Act No 71 of 2008) (“the 2008 Act”), extensively.

On 26 April 2011 in terms of Proclamation No 32, 2011 published in Government Gazette No 34239 the President determined that the 2008 Act shall come into force on 1 May 2011.

The courts are still to interpret and apply the provisions of the 2008 Act. Before that has been done no directives will be included in this practice manual dealing with Company and Close Corporation matters as a practice manual is not intended to direct the courts how to deal with new Acts. The practice manual rather informs practitioners how acts or parts thereof are interpreted or applied by the courts. In due course consideration will be given to the inclusion of chapters in this practice manual dealing with company matters.

The 2008 Act repeals the Companies Act 1973 (Act No 61 of 1973) (“the 1973 Act “), save for the transitional arrangements set out in schedule 5 of the 2008 Act. Section 9 of schedule 5 provides for the continued application of the 1973 Act to winding-up and liquidation applications.

Appendix 1 will therefore deal with applications for the liquidation of companies.

Appendix 2 will deal with enquiries in terms of section 417 of the 1973 Act.

The National Credit Act 2005, (No 34 of 2005) is at present receiving much atten-tion from the courts. A full court is to be constituted in the very near future in this division to deal with some provisions of the National Credit Act 2005. The National Credit Act 2005 will be dealt with in Appendix 3. As the case law develops on the National Credit Act the appendix will be updated.

In the judgment in the case of Elsie Gundwana v Steko Development CC and oth-ers, case CCT 44/10 delivered on 11 April 2011, The Constitutional Court declared “that it is unconstitutional for a registrar of a High Court to declare immovable property specially executable when ordering default judgment under rule 31(5) of the Uniform Rules of Court to the extent that this permits the sale in execution of the house of a person.” Urgent measures were taken by the courts to deal with a substantial number of applications for default judgments which had previously been dealt with by the registrar.

On 24 December 2010 rule 46(1)(a)(ii) of the Uniform Rules of Court were amended to provide that where immovable property of a judgment debtor has been declared specially executable and it is the primary residence of such judgment debtor, no writ of execution against such immovable property shall issue unless the court, having considered all the relevant circumstances, orders execution against such property. It is expected that the courts will develop guidelines for such authorisation.


98

APPENDIX I – LIQUIDATION

1. The applicant shall seek a fi nal winding-up order in the notice of motion.2. The court may nonetheless in the exercise of its discretion grant a provi-

sional order and direct that service and publication of the provisional order be effected.

3. The service referred to in paragraph 2 may include -3.1 service of the order on the company or close corporation at its regis-

tered offi ce;3.2 publication of the order in the Government Gazette;3.3 publication of the order in a newspaper circulating in the area where

the company or close corporation carries on business;3.4 service on all known creditors. This will only be ordered where the

applicant has ready access to the identities and addresses of the creditors. Depending on the information that the applicant has as to the creditors’ addresses such service can be ordered to be effected by e-mail, facsimile transmission or pre-paid registered post.

4. If a provisional order for liquidation is granted, proof of compliance with the service ordered must be provided on the return date. Such proof is provided by fi ling an affi davit setting out the manner in which the service ordered was complied with. The presiding judge will only accept the affi davit of service from the bar in exceptional circumstances made out in an affi davit.

5. If an extension of the return date of a provisional order for liquidation is sought, the party seeking such an extension must deliver an affi davit moti-vating such an extension.

6. Where a company or a close corporation seeks its own winding-up, it is not necessary for the application or for any provisional order that may be granted to be served on the company or close corporation.

7. Where the applicant seeking a winding-up order is a shareholder of a com-pany or member of a close corporation, he shall serve the application on all interested parties, such as a co-shareholder or joint member. Failing such service the applicant should indicate in the founding affi davit why such service is not necessary or undesirable.


99

ANNEXURE ‘A” – APPENDIX I

STANDARD ORDER FOR FINAL LIQUIDATION




APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. The above mentioned respondent is hereby placed under fi nal winding up.

BY THE COURT



100

ANNEXURE “B” APPENDIX I

STANDARD ORDER FOR PROVISIONAL LIQUIDATION




APPLICANT and

RESPONDENT


IT IS ORDERED THAT:-1. The abovementioned respondent is hereby placed under provisional wind-

ing up.2. All persons who have a legitimate interest are called upon to put forward

their reasons why this court should not order the fi nal winding up of the respondent ……………….. at 10:00 or so soon thereafter as the matter may be heard.

3. A copy of this order be served on the respondent at its registered offi ce.4. A copy of this order to be published forthwith once in the Government

Gazette.5. A copy of this order be forthwith forwarded to each known creditor by

prepaid registered post or by electronically receipted telefax transmission.BY THE COURT



101

APPENDIX II – ENQUIRIES IN TERMS OF SECTION 417 OF THE 1973 COMPANIES ACT

1. The request that the enquiry be held in secret should be fully motivated. Secrecy will not be ordered as a matter of course.

2. Where application is made to examine a particular witness, it must be shown that the witness in question has refused to furnish the information required of him or her is otherwise unwilling to cooperate with the liquidator; or reasons must be provided why it would be inadvisable or counterproductive to interview the witness prior to a summons being served upon him/her.

3. Since the amendment of section 417 which has given the power to the Master to hold the enquiry, any application to the court under this section must indicate whether the Master himself has instituted an enquiry and why it is necessary to apply to court for this purpose.


102

APPENDIX III – PROCEEDINGS INSTITUTED IN TERMS OF THE NATIONAL CREDIT ACT OF 2005

1. In any proceedings instituted in terms of the National Credit Act 34 of 2005 in respect of any claim to which the provisions of sections 127, 129 or 131 of the Act apply, the summons or particulars of claim or, in motion proceedings, the founding affi davit, must contain suffi cient allegations or averments to enable the court to be satisfi ed that the procedures required by those sections, read with section 130 (1) and (2) of the Act, as may be applicable to the claim have been complied with before the institution of the proceedings. The attention of practitioners is drawn to paragraphs 33 to 37 of the judgment in Rossouw and Another v FirstRand Bank Ltd 2010 (6) SA 439 (SCA).

2. In order to satisfy the court of the matters referred to in section 130(3) of the Act, an affi davit by the credit provider must be fi led when judgment is applied for.


103

APPENDIX IV – APPLICATIONS FOR DEFAULT JUDGMENTS AND AUTHORISATION OF WRITS OF EXECUTION

The following directives must be complied with in applications for default judg-ments of the type referred to in the Elsie Gundwana case, as well as applications for orders for execution against the particular immovable property referred to: -

1. The registrar will prepare and at all times have available a blank register for each court day. The blank register will be in accordance with annexure “A” hereto. The register will be kept available at a location designated by the registrar.

2. A person seeking to enrol a matter may do so by entering on the register for the appropriate day in the next available space on the register the case number, the parties’ names, the nature of the application, the name of the applicant’s attorneys, the name of the person enrolling the matter and his/her contact details.

3. No more than 150 applications may be enrolled on any court day. 4. No entry may be removed from the register.5. When the register for a particular day is full, the registrar shall remove and

keep the register in a safe place until the day after the date to which the register applies.

6. Matters may only be enrolled when the papers are ready, paginated and indexed where applicable, and the matter is ripe for hearing.

7. Matters may not be enrolled later than noon on the court day but three proceeding the day on which the matter is to be heard.

8. A party who has enrolled a matter may not, without the leave of the court, fi le any further documents other then a notice of removal, a notice of with-drawal, a notice of postponement, a practice note and an offi cial document or report.

9. It shall be the responsibility of the registrar to prepare a motion court roll from the fi les of matters that have been enrolled. The matters shall be dis-tributed between as many courts as may be required on a particular day. The number of courts will be decided on by the Deputy Judge President.

10. No more than 50 matters may be enrolled before any one court. 11. No application for a default judgment and no application for the authorisa-

tion of the issuing of a writ of execution may be enrolled on the ordinary motion court rolls. The applications referred to will be heard by the court/s constituted in terms of this Appendix until further notice.

12. In the notice of set down reference must be made to the date of service, the date on which the dies induciae expired as well as the relief sought.

13. A draft court order in duplicate indicating that the orders were granted by the court and ready for signature by the registrar must be fi led in the court fi le.


104

ANNEXURE “A” – APPENDIX IV

DATE REGISTRATION FOR DEFAULT JUDGMENT APPLICATIONS AND WRITS OF EXECUTION

ENROLLED FOR: _________________________2011

CASE NO

PLAINTIFF DEFENDANT NATURE OF APPLICATION Default/WOE

PLAINTIFF’S ATTORNEY

NAME OF PERSON

ENROLLING

TELEPHONE NUMBER

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19


105

ANNEXURE E

NB. This questionnaire must be dealt with in the pre-trial minute, in addi-tion to other requirements of Rule 37 and this Practice Manual.

1. Is the trial ready to proceed on merits and quantum/merits conced-ed/merits and quantum separated/on question of law (Rule 33(4))? …………………………………………………….........................................

2. If trial is to proceed on either merits and/or quantum are both par-ties ready to proceed and will the witnesses be at court or have been subpoenaed to attend trial?

3. Did the parties fi le all the necessary expert reports?3.1 If so, list all the reports fi led and Joint minutes fi led;3.2 if not, list

3.2.1 Plaintiff’s outstanding expert report(s) and by which date they would be fi led;

3.2.2 Defendant’s outstanding expert report to be fi led by ……………………………..

3.2.3 State by when will the relevant joint minutes of the ex-perts would be fi led.

4. Does either party intend to amend the pleadings? If so, pleadings to be amended by …………………………………………………….

5. Does either party intend to request trial particulars? If so, particu-lars to be requested by ……………………………………………………..

6. Has proper discovery and expert notices been served on time?.......................................

7. Is the examination of any person or item required in terms of Rule 36?

8. What is the estimated duration of the trial?.......................................9. Has the court fi le has been properly indexed and paginated?

……………………………………………………………………10. Is it necessary for the parties to hold a further pre-trial? If so, give

reasons. ................................................................................................................................

11. Is there a need to appoint a curator ad litem or a curator bonis?


106

REPUBLIC OF SOUTH AFRICA


107

ACKNOWLEDGEMENTS

This office is indebted to and would like to acknowledge the contribution of the following: (towards)

(i) my predecessors, for the initial practice manual;

(ii) Joffe J, for the initial draft of the revised manual;

(iii) all judges of the South Gauteng High Courts for their comments and inputs;

(iv) the Johannesburg Bar, the National Forum of Advocates and the

Johannesburg Attorneys Association for the critical comments.

It is thanks to the inclusive contributions of all involved that this Practice Manual has now come out in the

form in which it is.

___________________________P M MOJAPELODEPUTY JUDGE PRESIDENTSOUTH GAUTENG HIGH COURTREPUBLIC OF SOUTH AFRICA

January 2010

Practice Manual January 2010


108

TABLE OF CONTENTS

CHAPTER 1 APPLICATION OF THE PRACTICE MANUAL............................................................5

CHAPTER 2 COURT TERMS............................................................................................................6

CHAPTER 3 COURT RECESS..........................................................................................................7

CHAPTER 4 COUNSEL’S DRESS....................................................................................................8

CHAPTER 5 COURT SITTINGS........................................................................................................9

CHAPTER 6 CIVIL TRIALS..............................................................................................................10

6.1 ALLOCATION OF CIVIL TRIALS..............................................................................................11

6.2 BUNDLES OF DOCUMENTS.....................................................................................................12

6.3 CASE MANAGEMENT...............................................................................................................13

6.4 CLOSURE OF THE TRIAL ROLL..............................................................................................14

6.5 EXPERT WITNESSES................................................................................................................15

6.6 GENERAL...................................................................................................................................16

6.7 HEARING DURATION................................................................................................................17

6.8 PAGINATION, INDEXING, BINDING AND GENERAL PREPARATION OF PAPERS............19

6.9 PART-HEARD TRIALS..............................................................................................................20

6.10 PRACTICE NOTE FOR TRIALS..............................................................................................21

6.11 PREFERENTIAL TRIAL DATE................................................................................................22

6.12 PRE-TRIAL CONFERENCE.....................................................................................................23

6.13 ROLL CALL..............................................................................................................................25

6.14 SETTLEMENT AGREEMENTS AND DRAFT ORDERS.........................................................26

CHAPTER 7 CIVIL APPEALS..........................................................................................................27

CHAPTER 8 CRIMINAL MATTERS.................................................................................................29

8.1 PETITIONS FROM THE LOWER COURT.................................................................................30

8.2 APPEALS....................................................................................................................................31

8.3 AUTOMATIC REVIEW................................................................................................................32

8.4 BAIL APPEALS.........................................................................................................................33

8.5 REVIEWS....................................................................................................................................34

8.6TRIALS.........................................................................................................................................35

CHAPTER 9 MOTION COURT........................................................................................................36

9.1 ALLOCATION OF COURTS......................................................................................................37

9.2 INDEX..........................................................................................................................................40

Practice Manual 1 January 2010


109

TABLE OF CONTENTS9.3 BINDING OF PAPERS...............................................................................................................41

9.4 PAGINATION..............................................................................................................................42

9.5 BRIEFING OF COUNSEL..........................................................................................................43

9.6 CALLING OF THE ROLL OF UNOPPOSED MATTERS IN COURTS 2 AND 3......................44

9.7 CLOSURE OF THE MOTION COURT ROLL............................................................................46

9.8 CONCISE HEADS OF ARGUMENT..........................................................................................47

9.9 ENROLMENT..............................................................................................................................48

ANNEXURE A ..................................................................................................................................50

9.10 ENROLMENT OF APPLICATION AFTER NOTICE OF INTENTION TO OPPOSE GIVEN ..51

9.11 ERRORS ON THE UNOPPOSED ROLL.................................................................................52

9.12 HEARING OF OPPOSED MATTERS......................................................................................53

9.13 LONG DURATION....................................................................................................................56

9.14 MATTERS NOT ON THE ROLL...............................................................................................57

9.15 POSTPONEMENTS..................................................................................................................58

9.16 PRACTICE NOTE.....................................................................................................................59

9.17 PREPARATION OF PAPERS..................................................................................................60

9.18 SERVICE...................................................................................................................................61

9.19 SETTLEMENT..........................................................................................................................62

9.20 SETTLEMENT AGREEMENTS AND DRAFT ORDERS.........................................................63

9.21 STALE SERVICE......................................................................................................................64

9.22 STRIKING FROM THE ROLL..................................................................................................65

9.23 SUPPLEMENTARY ROLL.......................................................................................................66

9.24 URGENT APPLICATIONS.......................................................................................................67

CHAPTER 10 PARTICULAR APPLICATIONS...............................................................................73

10.1 ANTON PILLER TYPE ORDERS.............................................................................................74

10.2 ADMISSION OF ADVOCATES................................................................................................80

10.3 CANCELLATION OF SALE IN EXECUTION..........................................................................81

10.4 CHANGE TO THE MATRIMONIAL REGIME .........................................................................82

ANNEXURE A...................................................................................................................................83

10.5 COMPROMISE IN TERMS OF SECTION 311 OF THE COMPANIES ACT 61 OF 1973.......84

10.6 CURATOR BONIS....................................................................................................................87

10.7 CURATOR AD LITEM..............................................................................................................88Practice Manual 2 January 2010


110

TABLE OF CONTENTS10.8 ENQUIRIES IN TERMS OF SECTION 417 OF THE COMPANIES ACT 61 OF 1973............89

10.9 EVICTION IN TERMS OF THE PREVENTION OF ILLEGAL EVICTIONS AND UNLAWFULOCCUPATION OF LAND ACT, 19 OF 1998.........................................................................90

10.10 THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILDABDUCTION ACT 72 OF 1996.............................................................................................91

10.11 LIQUIDATION.........................................................................................................................93

10.12 PROVISIONAL SENTENCE...................................................................................................94

10.13 REHABILITATION..................................................................................................................95

10.14 REMOVAL OR AMENDMENT OF RESTRICTIONS ON LAND USE...................................96

10.15 REQUESTS FOR PERMISSION TO FILM OR RECORD JUDICIAL PROCEEDINGS........97

10.16 SEQUESTRATION...............................................................................................................101

CHAPTER 11 LEAVE TO APPEAL IN CIVIL MATTERS..............................................................103

CHAPTER 12 UNOPPOSED DIVORCE ACTION.........................................................................105

CHAPTER 13 JUDGE IN CHAMBERS..........................................................................................107

CHAPTER 14 JUDGES’ CLERKS.................................................................................................108

CHAPTER 15 OPENING OF COURT FILES.................................................................................109

CHAPTER 16 STANDARD ORDER...............................................................................................111

16.1 DEFAULT JUDGMENT GRANTED BY THE REGISTRAR..................................................113

16.2 SUMMARY JUDGMENT........................................................................................................114

16.3 PROVISIONAL SENTENCE...................................................................................................115

16.4 DEFAULT JUDGMENT BY COURT......................................................................................116

16.5 ABSOLUTION FROM THE INSTANCE.................................................................................117

16.6 EDICTAL CITATION...............................................................................................................118

16.7 SUBSTITUTED SERVICE......................................................................................................119

16.8 RULE 43..................................................................................................................................120

16.9 DIVORCE WITH SETTLEMENT AGREEMENT....................................................................121

16.10 DIVORCE WITHOUT SETTLEMENT AGREEMENT...........................................................122

16.11 POST NUPTIAL REGISTRATION OF A CONTRACT........................................................123

16.12 GENERAL ORDER FOR DISCOVERY................................................................................124

16.13 AGREEMENT OF SETTLEMENT........................................................................................125

16.14 RULE NISI.............................................................................................................................126

16.15 RESTRICTIVE CONDITIONS ON LAND.............................................................................127

16.16 UNALLOCATED ORDER.....................................................................................................128Practice Manual 3 January 2010


111

TABLE OF CONTENTS16.17 PROVISIONAL SEQUESTRATION.....................................................................................129

16.18 FINAL SEQUESTRATION....................................................................................................130

16.19 REHABILITATION................................................................................................................131

16.20 SURRENDER........................................................................................................................132

16.21 PROVISIONAL LIQUIDATION.............................................................................................133

16.22 FINAL LIQUIDATION...........................................................................................................134

16.23 DISCHARGE OF PROVISIONAL SEQUESTRATION OR LIQUIDATION.........................135

16.24 SECTION 311.......................................................................................................................136

16.25 JUDICIAL MANAGEMENT..................................................................................................138

16.26 LEAVE TO APPEAL.............................................................................................................140

16.27 ORDER ON APPEAL...........................................................................................................141

16.28 ORDER IN TERMS OF RULE 39 (22)..................................................................................142

16.29 ADMISSION OF TRANSLATOR..........................................................................................143

CHAPTER 17 USHERS..................................................................................................................144

ANNEXURE NOTICE OF SCHEME MEETING.............................................................................146

ALPHABETICAL INDEX................................................................................................................147



112

CHAPTER 1 APPLICATION OF THE PRACTICE MANUAL

1. This practice manual sets out the practice in the South Gauteng High Court, Johannesburg,

Republic of South Africa.

2. As such it seeks to inform how the courts in this high court function. It also seeks to obtain

uniformity amongst judges in respect of practice rulings. It must be emphasised that no judge is

bound by practice directives. Accordingly, the practice manual is not intended to bind judicial

discretion. Nonetheless, it should be noted, that the judges of this high court strive for uniformity in the

functioning of the courts and their practice rulings. The practice manual thus sets out what can be

anticipated occurring, in the normal course of events, on any issue dealt with in the practice manual.

3. This manual supersedes all previous practice directives and will come into effect on 01

February 2010, the first day of the first term of 2010.

4. Amendments to the practice manual can only be made by the Deputy Judge President after

consultation with the other judges of the South Gauteng High Court, Johannesburg.

5. Reference in this manual to the rules, is a reference to the Uniform Rules of Court in Government

Notice R48 of 12 January 1965 as amended and the Transvaal Rules.

6. Reference in this manual to “counsel” includes an advocate and an attorney who appears in court or

before a judge in chambers to represent a litigant. Reference in this manual to “legal representative”

means a litigant’s attorney of record and includes a party appearing in person.



113

CHAPTER 2 COURT TERMS

1. The calendar year is divided into four court terms. The duration of each court term is

approximately 10 weeks.

2. Each court term commences on a Monday and terminates on a Friday.

3. The first court term of each year commences on the Monday immediately after 23 January. The

last court term of each year ends on the Friday immediately before 10 December.

4. The court goes into recess for two weeks between the first and second court term, five weeks

between the second and third court term, one week between the third and fourth court term and

seven weeks after the end of the fourth court term and the commencement of the first court term in

the succeeding year.

5. The Judge President determines the duration of each court term.



114

CHAPTER 3 COURT RECESS

1. The Judge President determines the duration of recess duty which the judges of the division

must perform during recess. The Judge President further directs in which courts the judges who are

on duty, sit.

2.1 Subject to 2.2 and 5 below, only unopposed motion court matters, unopposed divorce actions,

opposed rule 43 applications without complexity, urgent applications and bail appeals will be heard

during recess.

2.2 Save for urgent applications no matters at all may be enrolled for hearing from 25 December to

2 January of each year.

3. Subject to any direction by the Judge President or the Deputy Judge President, the senior

judge on duty from time to time during the recess, allocates other matters requiring determination

during recess to the other judges on duty.

4. During recess automatic reviews are distributed equally amongst the judges on duty, except

that the judges sitting in motion court will not be allocated reviews on Monday or Tuesday of the week

and the judge sitting in the urgent court will not be allocated reviews during the entire week.

5. Petitions (as contemplated in Chapter 8.1) and automatic reviews (as contemplated in Chapter

8.3) are also to be dealt with during recess. The senior judge on duty during recess shall distribute

petitions to judges on duty with him or her during recess.



115

CHAPTER 4 COUNSEL’S DRESS

1. Counsel are required to be properly dressed. If not properly dressed they run the risk of not

being “seen” by the presiding judge.

2. Proper dress for junior counsel comprises:

2.1 A black stuff gown.

2.2 A plain black long sleeved jacket (and not a waistcoat) which has both a collar and lapels. The

jacket must have, for closing, one or two buttons at the waist. The buttons must be black.

2.3 A white shirt or blouse closed at the neck.

2.4 A white lace jabot or white bands.

2.5 Dark pants or skirt.

2.6 Black or dark closed shoes.

3. Proper dress for senior counsel comprises:

3.1 A silk gown.

3.2 A silk waistcoat.

3.3 A white shirt or blouse closed at the neck.

3.4 A white lace jabot or white bands.

3.5 Dark pants or skirt.

3.6 Black or dark closed shoes.

4. Counsel must ensure when appearing in court that their waistcoats or jackets, as the case may

be, are buttoned up.

5. It is not proper for counsel to enter court not fully robed as set out in paragraph 2 and

paragraph 3 supra. It follows that counsel should not robe in court.



116

CHAPTER 5 COURT SITTINGS

1. Save as set out below, all the courts of this division will commence sitting at 10h00. The courts

adjourn at 11h15 and resume sitting at 11h30. The courts adjourn at 13h00 and resume sitting at

14h00. The courts adjourn for the day at 16h00.

2. Counsel must be punctual in their attendance in court at the aforesaid times.

3. Notwithstanding para 1 above, it should be noted, that:

3.1 Roll call of civil trials commences at 9h30.

3.2 Motion courts 2 and 3 commence sitting during court term at 9h30.

3.3 Applications for leave to appeal are usually enrolled for hearing at 9h30.

4. The presiding judge may, at his/her discretion, deviate from the times set out above.



117

CHAPTER 6 CIVIL TRIALS

6.1 Allocation of civil trials

6.2 Bundles of documents

6.3 Case management

6.4 Closure of the trial roll

6.5 Expert witness

6.6 General

6.7 Hearing duration

6.8 Pagination, indexing, binding and general preparation of papers

6.9 Part-heard trials

6.10Practice notes for trials

6.11 Preferential trial date

6.12 Pre-trial conference

6.13 Roll call

6.14 Settlement agreements and draft orders



118

6.1 ALLOCATION OF CIVIL TRIALS

1. A trial will normally be allocated by the Deputy Judge President for hearing by a specific judge

at roll call. Roll call is held at 09h30 in Court GC.

2. An allocation of a trial for hearing by a specific judge may be made prior to roll call in which

event counsel and/or the litigants’ legal representatives will be informed of the allocation before roll

call.

3. In the allocation of trials due regard will be had to any justifiable claim for precedence in

allocation.

4. As a general rule precedence in allocation will be given to trials in which a proper pre-trial

minute was timeously filed with the registrar.

5. Only trials that are ready for immediate commencement and continuous running to their

conclusion will be allocated for hearing.

6. If it appears at roll call in a trial where the parties have opposing expert witnesses that there is

no joint expert minute, the trial will not be allocated until there has been proper compliance with this

practice. This may result in the removal of the trial from the roll and the parties having to apply for a

new trial date.

7. If, after allocation of a trial for hearing, it appears to the trial judge that there is no joint expert

minute, the presiding judge to whom the trial has been allocated, will not commence or continue with

the hearing of the trial but will require proper compliance with the practice. The presiding judge will

determine the further hearing of the trial.



119

6.2 BUNDLES OF DOCUMENTS

1. Where a party or the parties to a trial intend utilising documents in their conduct of the trial such

documents must be collated, numbered consecutively and suitably bound.

2. Each bundle must be indexed. The index must briefly describe each document in the bundle as

a separate item.

3. The parties should preferably agree upon a joint bundle of documents. Where the parties are unable

to agree upon a joint bundle, the parties must agree which party’s bundle shall be the dominant

bundle. The subservient bundle or bundles must not contain documents contained in the dominant

bundle or bundles.

4. The documents should not be bound in volumes of more than 120 pages.

5. The bundle of documents must be bound in a manner that does not hinder the turning of pages

and which enables it to remain open without being held open.

6. The parties must agree prior to the commencement of the trial upon the evidential status of the

documents contained in the bundle. This agreement must be contained in a pre-trial minute. The

agreement must also cover the issue as to which document will be part of the record before the court,

to deal with the eventuality of an appeal.

7. If unnecessary documents are included in the bundle the court may on the application of any

party to the trial, or mero motu, make a punitive cost order in respect thereof.



120

6.3 CASE MANAGEMENT

1. Any party to a trial who is of the opinion that by reason of its complexity, long duration or any

other reason, the trial requires case management, shall deliver a letter to the registrar marked for the

attention of the Deputy Judge President. The letter must set out -

1.1 the names of the parties to the trial and the case number;

1.2 the nature of the dispute;

1.3 an estimate of the probable duration of the trial;

1.4 the reason why that party is of the opinion that the trial requires case management.

Proof that a copy of this letter has been forwarded to the other party or parties in the trial must be

provided.

2. Any party who is in receipt of such a letter and who wishes to make representations in respect

thereof may do so by forthwith delivering a letter to the registrar marked for the attention of the

Deputy Judge President. A copy of the letter must be delivered to all other parties to the trial and

proof thereof must be provided.

3. The registrar will advise the parties of the outcome of the request.

4. In the event of the request for case management being granted, the Deputy Judge President

shall appoint a judge to undertake the case management of the trial.

5. On the appointment of the judge as aforesaid:

5.1 all interlocutory applications relating to the trial, will, as far as possible, be heard by that judge.

5.2 any party to the trial, on notice to all other parties to the trial, may apply to the judge for

directions as to the conduct of the trial. The judge may furnish such directions or direct that an

interlocutory application be brought.

5.3 The appointed judge may direct that one or more pre-trial conference be held before him or in

his absence.



121

6.4 CLOSURE OF THE TRIAL ROLL

1. The trial roll closes at 13h00 on the day preceding the allocated trial date whereafter access to

the court file will not be permitted.

2. The prohibition of access to the court file continues for the duration of the trial, save with the

leave of the trial judge.

3. Notwithstanding the aforegoing, attention is drawn to the requirement in respect of pagination,

indexing and binding of papers which must occur not less than five days prior to the date allocated for

the hearing of the trial.



122

6.5 EXPERT WITNESSES

1. The time periods provided in Rule 36 (9) of the Uniform Rules of Court are often inadequate.

This can result in trials not being ripe for hearing on their allocated trial date.

2. To preclude this from happening, it is suggested, that in appropriate matters, the parties to a

trial, by agreement, lengthen the aforementioned time periods as well as the time period referred to in

paragraph 5 infra. Such an agreement should provide that notice of intention to call an expert witness

be given not less than thirty (30) court days before the allocated trial date and the summary of the

expert’s opinion be delivered not less than twenty (20) court days before the allocated trial date.

3. Where one or more parties to a trial wish to enter into such an agreement, but is or are unable

to conclude such an agreement, an application may be brought in terms of Rule 27 (1) of the Uniform

Rules of Court for the extension of the relevant time periods.

4. It should be noted that such an agreement, and consequently such an application, is generally

conducive to the efficient conduct of a trial. Failure to conclude such an agreement without good

cause, and opposition to such an application without good cause, may attract a punitive cost order

either on the application by the party or the parties seeking the relief, or mero motu by the judge

hearing the application.

5. In all trials in which the parties have opposing expert witnesses, such opposing expert

witnesses must meet and reduce their agreements and disagreements to writing in joint expert

minutes, signed by them. This minute must be filed in the court file not less than five days prior to the

date allocated for the hearing of the trial.

6. If it appears at roll call in a trial where the parties have opposing expert witnesses that there is

no joint expert minute, the trial will not be allocated until there has been proper compliance with this

practice. This may result in the removal of the trial from the roll and the parties having to apply for a

new trial date.

7. If, after allocation of a trial for hearing, it appears to the trial judge that there is no joint expert

minute, the presiding judge to whom the trial has been allocated, may in his/her discretion not

commence or continue with the hearing of the trial and may either require proper compliance with the

practice or postpone the trial. The presiding judge will determine the further hearing of the trial, if not

postponed.



123

6.6 GENERAL

1. Counsel must ensure that they are available for the entire duration of the trial. The failure to do

so will result in counsel’s conduct being referred to the relevant society or association of which counsel

is a member for disciplinary action.

2. A postponement of a trial will normally not be granted because counsel is not available for the

trial or for the entire duration of the trial.

3. Any matter which may affect the continuous running of the trial to its conclusion must be

disclosed at roll call and to the judge to whom the trial is allocated before the commencement of the

trial.



124

6.7 HEARING DURATION

1. A trial is designated “of long duration” if it is anticipated that it will last more than five (5) days.

2. If any party to a trial is of the view that a trial will last longer than five days, that party shall deliver

at least two weeks before the trial date a letter to the registrar marked for the attention of the Deputy

Judge President. The letter must set out -




2.4 that a pre-trial conference in terms of Rule 37 has been held and a copy of relevant minute

must be annexed to the letter.

3. If any party to a trial is of the view that a trial will last longer than ten days that party shall act as

set out in paragraph 2 above, but shall do so at least four weeks before the trial date.

4.1 If any party or the parties to a trial are of the view that a trial will last longer than fifteen (15) days,

after following the procedure for the allocation of the trial date, as set out in Transvaal Rule 7, the

party or parties shall deliver a letter to the registrar marked for the attention of the Deputy Judge

President. The letter must set out -

4.1.1 the names of the parties to the trial and the case number;

4.1.2 the nature of the dispute;

4.1.3 an estimate of the probable duration of the trial;

4.1.4 that a pre–trial conference in terms of rule 37 has been held and a copy of the relevant minute must

be annexed to the letter.

4.2 The Deputy Judge President shall inform the parties in writing of the date allocated for the trial upon

receipt of the letter that complies with 4.1 above. A trial date for a matter anticipated to last longer

than fifteen (15) days will only be allocated by the Deputy Judge President in writing.

4.3 After being informed of the trial date, all the parties to the trial must comply with Transvaal Rule 7 (5).

5. If the letter referred to in paragraphs 2, 3 and 4 above is not directed by all the parties to the trial,

proof that a copy of the letter has been forwarded to the other party or parties to the trial, must be

provided.

6. Any party who is in receipt of a letter referred to in paragraphs 2, 3 and 4 above and who

wishes to make representations in respect thereof, may do so by forthwith delivering a letter to the



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registrar for the attention of the Deputy Judge President. A copy of this letter must be delivered to all

other parties to the trial and proof thereof must be provided.



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6.8 PAGINATION, INDEXING, BINDING AND GENERALPREPARATION OF PAPERS

1. The plaintiff shall, not less than ten days prior to the date allocated for the hearing of the trial -

1.1 collate, number consecutively and suitably bind all the pleadings relating to the trial as a separate

bundle and ensure that they are in the court file;

1.2 collate, number consecutively and suitably bind all the notices relating to the trial as a separate

bundle and ensure that they are in the court file;

1.3 collate, number consecutively and suitably bind all pleadings which were amended after delivery

thereof;

1.4 collate, number consecutively and suitably bind the pre-trial minute and all documents relating

thereto;

1.5 prepare and attach an index to the pleadings bundle, the notices bundle and the pre-amendment

pleadings bundle and the pre-trial bundle respectively. The index must briefly describe each

pleading, notice or document as a separate item.

2. In binding the pleadings, notices and documents, care must be taken to ensure that the method of

binding does not hinder the turning of pages and the bundle should remain open without being held

open.

3. The pleadings, notices and documents should not be bound in volumes of more than 120 pages.

4. The pleadings bundle must only contain the original pleadings (as amended, if applicable).

5. If a document or documents attached to the pleadings, or contained in the bundles as referred to

in para 1, is or are

5.1 in manuscript, or

5.2 not readily legible

the plaintiff shall ensure that legible typed copies of the document or documents are provided.



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6.9 PART-HEARD TRIALS

1. As a general rule, part-heard trials should be avoided. Accordingly no trial should be

commenced with where any issue or consideration exists to the knowledge of counsel that would

interfere with the completion of the trial.

2. A judge hearing a trial will be most reluctant to postpone a trial which will result in a part-heard trial.

3. Where a trial is part-heard, a date for the continuation thereof must be applied for by delivering a letterto the registrar marked for the attention of the Deputy Judge President. This letter must set out -

3.1 the names of the parties to the action and the case number;

3.2 the name of the judge before whom the trial became part-heard;

3.3 the date when the trial became part-heard;

3.4 an estimate of the probable duration for the completion of the trial;

3.5 whether a copy of the record of the part-heard portion of the trial is available.

4. If the letter referred to in the previous paragraph is not a joint letter from all the parties to the trial,proof that a copy of the letter has been forwarded to the other party or parties to the trial, must beprovided.

5. A party who is in receipt of a letter referred to in paragraph 4 above, and who wishes to makerepresentations in respect thereof, may do so forthwith by delivering a letter to the registrar for theattention of the Deputy Judge President. A copy of the letter must be delivered to all other parties tothe trial and proof thereof must be provided.

6. The Deputy Judge President shall inform the parties in writing of the date allocated for the completionof the trial.

7. After being informed of the trial date, all the parties to the trial must comply with Transvaal Rule 7 (5).



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6.10 PRACTICE NOTE FOR TRIALS1. The counsel for each party to a trial shall send a practice note by facsimile transmission in

respect of the trial enrolled for hearing.

2. The practice note shall be transmitted to telephone number 011 332 8257 and shall be

transmitted not earlier than 15h30 on the day preceding the day on which the trial is enrolled for

hearing and not later than 08h30 on the day on which the trial is enrolled for hearing.

3. The practice note shall set out -

3.1 the names of the parties to the trial, the case number and its number on the roll;

3.2 the name of each party’s counsel, whom they represent and their cellular and landline numbers;


3.4 the relief sought at the trial by the party on whose behalf the counsel completing the practice note

appears;


3.6 the date on which the pre-trial conference was held;

3.7 the date on which the pre-trial conference minute was registered on the registrar’s computer

system;

3.8 whether any precedence is sought for the hearing of the trial, and if so, the motivation therefore;

3.9 any issue or consideration that would interfere with the immediate commencement and continuous

running of the trial to its conclusion;

3.10 if the trial is one of long duration with an estimated duration of longer than five days but less

than sixteen days, a copy of the letter referred to in paragraphs 2, 3 and 4 of the sub-chapter

entitled “Hearing Duration” must be referred to and attached to the practice note of the party

who delivered the letter.



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6.11 PREFERENTIAL TRIAL DATE

1. A request for a preferential trial date must be made only after following the procedure for the

allocation of a trial date as set out in Transvaal Rule 7.

2. A request for a preferential trial date is made by delivering a letter to the registrar marked for

the attention of the Deputy Judge President. The letter must set out -




2.4 the motivation for the allocation of a preferential date.

3. If the aforementioned letter is not directed by all the parties to the trial, proof that a copy of the

letter has been forwarded to the other party or parties to the trial, must be provided.

4. Any party who is in receipt of a letter referred to in paragraph 2 above, and who wishes to make

representations in respect thereof, may do so forthwith by delivering a letter to the registrar for the

attention of the Deputy Judge President. A copy of the letter must be delivered to the other party or

parties to the trial and proof thereof must be provided.

5. The Deputy Judge President shall inform the parties in writing of the outcome of the request

and of the date allocated for the trial in the event of the request being acceded to.

6. After being informed of a trial date, all the parties to the trial must comply with Transvaal Rule

7(5). The letter from the Deputy Judge President allocating the trial date must be attached to Notice

of Set-down delivered in terms of Rule 7(5).



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6.12 PRE-TRIAL CONFERENCE

1. A pre-trial conference as contemplated in Rule 37 must be held in every matter which is to proceed to

trial.

2. In order to ensure that it is effective, a pre-trial conference must ideally be held after discovery and

after the parties have exchanged documents as contemplated in Rule 35. In the event of discovery

being made after the holding of a pre-trial conference, a further pre-trial conference must be held after

such discovery and exchange of discovered documents.

3.1 If it appears at the roll call -

3.1.1 that the parties have seriously endeavoured to narrow the issues and explore settlement;

3.1.2 that there are no outstanding requests for admissions or particularity and no outstanding

requests for documents;

3.1.3 that, where applicable, the experts have met and produced a joint minute;

3.1.4 that the trial is ready to commence immediately and run continuously to a conclusion,

then the matter will be ripe for allocation, provided a judge is available.

3.2 Parties have a continuous obligation to seek to narrow issues and to comply with the substantive

requirements of Rule 37, notwithstanding the fact that strict compliance with the Rule may no longer

be possible because a pre-trial conference has not been held six (6) weeks before trial.

3.3 If it appears at the roll call that one party has prevented substantial compliance with Rule 37 despite

genuine and timeous efforts by the other party to achieve substantial compliance therewith, the court

may allocate the matter if it appears the matter can run continuously to a conclusion within five (5)

days despite the said non-compliance.

3.4 If it appears the matter cannot run continuously to a conclusion within five (5) days due to the

prevention of substantial compliance with Rule 37, the matter may be placed under case

management in the hands of a designated Judge as contemplated in Rule 6.3 and may on application

be granted a preferential trial date when a new trial date is sought.

3.5 The court may deal with the issues of costs arising out of any postponement at the roll call rather than

reserving the costs.

4. If, after allocation of a trial for hearing, it appears to the judge presiding that there has not been

proper compliance with Rule 37, the presiding judge to whom the trial has been allocated, may,

instead of commencing or continuing with the hearing of the trial, order proper compliance with Rule

37. The presiding judge will then determine the further hearing of the trial.



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5. Where a party wishes to request that a judge presides over the pre-trial conference in terms of

Rule 37(8), that party shall do so by delivering a letter to the registrar for the attention of the Deputy

Judge President. A copy of this letter must be delivered to all other parties to the trial and proof

thereof must appear from the letter directed to the Deputy Judge President. Any party who is in

receipt of such a letter and who wishes to make representations in respect thereof, may do so by

forthwith delivering a letter to the registrar for the attention of the Deputy Judge President. A copy of

this letter must be delivered to all other parties to the trial, and proof thereof must appear from the

letter directed to the Deputy Judge President.

6. Where a party wishes to request that the registrar should intervene by fixing the time, date and

place for the conference in terms of Rule 37(3)(b) that party shall do so by delivering a letter to the

registrar. A copy of this letter must be directed to all other parties to the trial and the procedure

contemplated in paragraph 5 above shall apply mutatis mutandis.

7. The request for intervention by the registrar as contemplated in Rule 37 (3) (b), or the Deputy

Judge President, as contemplated in Rule 37 (8), must be made timeously and preferably before the

time prescribed for the holding of the conference has expired.

8. At roll call priority may be given to cases in which minutes of acceptable quality (proper pre-trial

minutes) were timeously filed with the registrar.

9. Where there are competing minutes of acceptable quality, priority may be given to the matter or

matters in the order in which (a) the minutes were filed, (b) the pre-trial conferences were held, and

(c) the matters appear on the trial roll.

10. Joint Minute of Experts:

a. Where there are overlapping experts, the experts shall meet and produce joint minutes indicating

their endeavour to settle, and failing settlement, narrowly defining their differences;

b. In such a case the legal representatives shall, before commencement of trial, hold a pre-trial

conference to achieve the objectives of Rule 37 with regard to the issue or issues arising between

the overlapping experts.



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6.13 ROLL CALL

1. A roll call will be held at 09h30 on each day during the court term of all trials enrolled for hearing on

that day. If necessary further roll calls will be held at 11h30 and 14h00.

2. Unless advised prior to the commencement of roll call that a trial has been allocated to a

specific judge, the parties’ legal representatives must attend roll call and continue so attending until

the trial has been allocated or otherwise disposed of.

3. If a trial cannot be allocated for hearing on the day for which it is enrolled for hearing, the parties’ legal

representatives must attend roll call on the next and subsequent days until the trial is allocated for

hearing.

4. Unless the parties’ legal representatives state the contrary, it will be assumed that -

4.1 the parties’ legal representatives are not aware of any reason why the trial, if allocated, cannot

commence and run continuously to its conclusion;

4.2 the pleadings have been properly paginated and indexed;

4.3 a bundle of documents (where necessary) properly paginated and indexed has been prepared;

4.4 where separate bundles of documents have been prepared by the parties, there is no duplication of

documents in the various bundles;

4.5 all issues relating to the pre-trial conference have been completed.

5. If any of the assumptions referred to in paragraph 4 above are proved to be incorrect, the trial

will not be allocated. If the trial has already been allocated and any of the aforementioned

assumptions are proved to be incorrect, the trial will not be commenced but will be referred back to

the judge who conducted the roll call.

6. Unless indicated to the contrary on the daily roll, roll call at 09h30 will be held in court GC.

Counsel will be advised by the presiding judge where the subsequent roll calls, if necessary, will be

held.



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1. Where the parties to a civil trial have entered into a settlement agreement, a judge will only

make such settlement agreement an order of court if -

1.1 counsel representing all the parties to the trial are present in court and confirm the signature of their

respective clients to the settlement agreement and that their clients want the settlement

agreement made an order of court,

or

1.2 proof to the satisfaction of the presiding judge is provided as to the identity of the person who

signed the settlement agreement and that the parties thereto want the settlement made an order

of court.

2. Where the parties to a civil trial have settled the trial on the terms set out in a draft order, a

judge will only make such draft order an order of court if -

2.1 counsel representing all the parties to the trial are present in court and confirm that the draft order

correctly reflects the terms agreed upon,

or

2.2 proof to the satisfaction of the presiding judge is provided that the draft order correctly reflects the

terms agreed upon.



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CHAPTER 7 CIVIL APPEALS

1. Once a date has been allocated for the hearing of any civil appeal, the parties may not agree to

postpone the appeal without the leave of the Deputy Judge President or the judges to whom the

appeal has been allocated for hearing.

2. In all civil appeals, the appellant’s heads of argument must be delivered not later than fifteen

days before the appeal is heard and the respondent’s heads of argument must be delivered not later

than ten days before the appeal is heard.

3. If counsel intend to rely on authority not referred to in their heads of argument, copies thereof

should be available for the judges hearing the appeal and counsel for each other party.

4. In regard to the content of their heads of argument, counsel are reminded of the dicta in Catheram

Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1998 (3) SA 938 SCA at 955 B-F

and Ensign-Bickford (South Africa) (Pty) Ltd and Others v AE & CI Explosives and Chemicals Ltd

1999 (1) SA 70 SCA 844-85C..

5. Counsels’ names and contact details, including cell phone numbers, must appear on the heads of

argument.

6. When allocating a date for the hearing of an appeal, the Deputy Judge President may direct that the

parties deliver heads of argument earlier than provided for in paragraph 2 above.

7. Simultaneously with the filing of their heads of argument counsel shall file a practice note. The

practice note shall set out -

7.1 each issue that has to be determined in the appeal;

7.2 an extremely brief submission in respect of each such issue;

7.3 what portion of the record must be read.

8.1 In all civil appeals the record shall be securely bound in volumes of no more than 120 pages. Each

volume shall be consecutively paginated and have a cover sheet reflecting -

8.1.1 the case number;

8.1.2 the names of the parties;

8.1.3 the total number of volumes in the record;

8.1.4 the volume number of the particular volume;

8.1.5 the court appealed from;

8.1.6 the names, addresses and telephone numbers of the parties’ legal representatives.



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8.2 The first volume of the record shall contain an index of the evidence, documents and exhibits. The

index must identify each document and exhibit.

8.3 Unless it is essential for the determination of the appeal, and the parties agree thereto in writing, the

record shall not contain -

8.3.1 the opening address to the court a quo;

8.3.2 argument at the conclusion of the application or trial;

8.3.3 discovery affidavits and notices in respect thereof;

8.3.4 identical duplications of any document contained in the record;

8.3.5 documents that were not proved or admitted in the court a quo.

8.4 If it will facilitate the hearing of the appeal, or if requested by the presiding judge in the appeal, the

parties shall prepare a core bundle of documents relevant to the determination of the appeal. This

bundle should be prepared in chronological sequence and must be paginated and indexed.

8.5 In the event of a party failing to comply with any of the aforegoing, the court may mero motu, or on

application of any party to the appeal, make a punitive cost order.



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CHAPTER 8 CRIMINAL MATTERS8.1 Petitions for leave from the lower court

8.2 Appeals

8.3 Automatic review

8.4 Bail appeals

8.5 Reviews

8.6 Trials

Practice Manual 29 J


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8.1 PETITIONS FROM THE LOWER COURT

1. The Criminal Procedure Act now provides that an accused who wishes to note an appeal

against conviction or sentence of a lower court must first apply to that court for leave to appeal. If

such an application for leave is unsuccessful in the lower court, the accused may “ by petition apply to

the Judge President of the Court having jurisdiction” for leave to appeal (Section 309B and 309C).

2. The Judge President has directed that in the South Gauteng High Court, Johannesburg, such a

petition may be addressed to the Deputy Judge President of this court.

3. The petition from the lower court must be lodged by way of petition procedure (as was formerly the

case in the Supreme Court of Appeal) and not by way of notice of motion to the motion court.

4. The petition to the Judge President or Deputy Judge President for leave to appeal against the

conviction or sentence of the lower court must be lodged by delivering the original and two (2) copies

to the registrar dealing with petitions who shall in turn distribute them to Judges in accordance with

the directives given by the Deputy Judge President.



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8.2 APPEALS

1. Criminal appeals are enrolled by the Director of Public Prosecutions.

2. When giving notice of the set down of a criminal appeal, the Director of Public Prosecutions shall,

where the appeal is against conviction, specify the date by which the appellant’s heads of argument

must be delivered and the date by which the respondent’s heads must be delivered. The Director of

Public Prosecutions may, at his/her discretion or on the direction of the Deputy Judge President,

where the appeal is against sentence only, specify the dates by which heads of argument are to be

delivered by the respective parties.

3. Failure to file the heads of argument timeously will, as a general rule, only be condoned in

exceptional circumstances. Error or oversight by counsel and legal representatives or the latter’s

employees will rarely be regarded as exceptional circumstances.

4. Where heads of argument have been required by the Director of Public Prosecutions, the

Director of Public Prosecutions must in turn file heads of argument not later than five (5) court days

before the date upon which the appeal is enrolled for hearing.

5. The presiding judge in the criminal appeal, the judge president or the deputy judge president

may direct that the heads of argument be delivered earlier than the dates referred to above.

6. Counsel’s names, contact details including cell phone number, must appear on the heads of

argument.

7. If counsel intend to rely on authority not referred to in their heads of argument, copies thereof

should be available for the judges hearing the appeal and counsel for each party. The same should

apply where counsel intend to reply on unreported judgments.

8. In regard to the content of their heads of argument counsel are reminded of the dicta in

Catheram Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1998 (3) SA 938 SCA at

955 B-F and Ensign-Bickford (South Africa) (Pty) Ltd and Others v AECI Explosives and Chemicals

Ltd 1999 (1) SA 70 SCA at 84H-85C.



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8.3 AUTOMATIC REVIEW

1. Criminal matters that came before the High Court on automatic review during the court term are

distributed equally amongst the judges on duty save that no reviews are distributed to the judges

sitting in motion court for the week that they so sit.

2. Where a particular judge has directed a query to the magistrate who presided in the matter on

review and the magistrate has responded thereto, the review may be referred to any other judge who

shall deal with the matter. Similarly where a particular judge has referred a review to the Director of

Public Prosecutions, and the Director’s opinion has been received, the review may be referred to any

other judge who shall then deal with, and if possible dispose of, the matter.

3. Save in the case of the greatest urgency a query must be directed to the presiding magistrate

before a judge interferes with a conviction or sentence on review. In all cases the opinion of the

Director of Public Prosecutions must be obtained before a judge interferes with a conviction or

sentence on review.

4. Where a review, in which the judge who refers the matter is considering the release of the

accused from prison, is referred to the Director of Public Prosecutions, the judge referring the matter

should inform the Director of Public Prosecutions of his consideration and the reason therefore and

require a response within a stated period of time.

5. A review judgment is given by two (2) judges. If the two (2) judges agree, the release of the

accused can be achieved by way of telegraphic communication.



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8.4 BAIL APPEALS

1. Irrespective of the urgency thereof, a bail appeal is not heard in the motion court.

2. As soon as the proceedings in the bail application and the magistrate’s judgement have been

transcribed, application for the enrolment of the appeal is made to the Director of Public Prosecutions.

The Director of Public Prosecutions shall then apply to the Deputy Judge President or, in his absence,

the senior judge on duty, for the allocation of a date and time for the hearing of the appeal. The

Director of Public Prosecutions shall inform all parties of the allocated date and time of the appeal.

3. Bail appeals are heard by a single judge.



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8.5 REVIEWS

1. Irrespective of the urgency thereof, a review of a magistrate’s decision in a criminal matter is

not heard in the motion court.

2. As soon as the court papers relating to the review have been exchanged between the parties,

the applicant may make application for the enrolment of the review to the Director of Public

Prosecutions. The Director of Public Prosecutions shall then approach the Deputy Judge President

or, in his absence, the senior judge on duty, for the allocation of a date and time for the hearing of the

review. The Director of Public Prosecutions shall inform all parties of the allocated date and time of

the review.

3. When allocating the date and time for the hearing of the review, the Deputy Judge President or

senior judge on duty may direct when each party is to deliver heads of argument prior to the hearing

of the review.

4. The practices in regard to the binding of the papers, indexing and pagination as set out in the

chapter hereof dealing with motion court, apply equally to the reviews.

5. Reviews are usually heard by two judges sitting in the criminal appeal court.



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8.6 TRIALS

1. Criminal trials are enrolled by the Director of Public Prosecutions. The Deputy Judge President,

or the senior judge on duty, allocates the matters so enrolled to a particular judge.

2. Counsel must ensure that they are available for the entire duration of the trial. The failure to do

so will result in counsel’s conduct being referred to the relevant society or association of which

counsel is a member for disciplinary action.

3. A postponement of a trial will normally not be granted because counsel is not available for the

trial or for the entire duration of the trial.

4. Counsel shall disclose prior to the commencement of the trial any matter which may result in

the matter being unable to run continuously to its conclusion.

5. Counsel will not be released from their obligation to remain in attendance for the duration of the

trial.



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CHAPTER 9 MOTION COURT

9.1 Allocation of courts

9.2 Index

9.3 Binding of papers

9.4 Pagination

9.5 Briefing of counsel

9.6 Calling of the roll of unopposed matters in courts 2 and 3

9.7 Closure of the motion court roll

9.8 Concise heads of argument

9.9 Enrolment

9.10 Enrolment of application after notice of intention to oppose

9.11 Errors on the unopposed roll

9.12 Hearing of opposed matters

9.13 Long duration

9.14 Matters not on the roll

9.15 Postponements

9.16 Practice note

9.17 Preparation of papers

9.18 Service

9.19 Settlement

9.20 Settlement agreements and draft orders

9.21 Stale service

9.22 Striking from the roll

9.23 Supplementary roll

9.24 Urgent applications



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9.1 ALLOCATION OF COURTS

1. During Court Term

Six Courts are allocated for the hearing of opposed and unopposed motion matters each week.

1.1 Court 1

1.1.1 This Court is presided over by the senior motion court judge for the week.

1.1.2 This Court is available for the hearing of opposed matters.

1.1.3 This court commences sitting on the Monday at 10h00 and sits until 13h00. It resumes sitting

on Tuesday at 10h00 and terminates its sitting on Friday at 16h00.

1.1.4 The Judge presiding in this court allocates the opposed matters which are to be heard on the

Monday on the preceding Friday from 13h00.

1.1.5 The Judge presiding in this court allocates the balance of the opposed roll on the Monday

from 13h00.

1.2 Court 2

1.2.1 This court hears the following unopposed matters on the Tuesday of each week:

1.2.1.1 Sequestration applications.

1.2.1.2 Return days of provisional orders of sequestration.

1.2.1.3 Voluntary surrender of estates.

1.2.1.4 Rehabilitations.

1.2.1.5 Winding-up applications.

1.2.1.6 Return days of provisional orders of winding-up.

1.2.1.7 Provisional sentence.

1.2.1.8 All applications in terms of the Insolvency Act and the Companies Act

1.2.2 This court hears opposed motion matters, as allocated to it by the senior motion court judge,

from Wednesday at 10h00 until Friday at 16h00.

1.3 Court 3

1.3.1 This court hears the following unopposed motion matters on the Tuesday of each week:



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1.3.1.1 All other applications (excluding summary judgment, default judgments (subject to

the provisions of Rule 31) and Rule 43 applications)

1.3.1.2 All other applications (excluding summary judgment and Rule 43 applications)

1.3.2 This court hears opposed motion matters, as allocated to it by the senior motion court judge,

from Wednesday at 10h00 until Friday at 16h00.

1.4 Court 4

1.4.1 This court hears the following motion matters on the Tuesday and Wednesday of each week:

1.4.1.1 Summary judgment applications (unopposed and opposed).

1.4.1.2 Rule 43 applications (unopposed and opposed).

1.4.1.3 Default Judgments (subject to provisions of Rule 31)

1.4.2 Unless specifically so directed by the Deputy Judge President, this court is not available for

the hearing of motion matters on Thursday or Friday of the week.

1.5 Court 5

1.5.1 This court hears opposed and unopposed motion matters allocated to it by the senior motion

court judge.

1.5.2 This court commences sitting on Monday at 10h00 and terminates its sitting on Friday at

16h00.

1.6 Court 6

1.6.1 This court hears both opposed and unopposed urgent applications that have not been

allocated to any of the other motion courts on the ordinary roll.

1.6.2 This court is available from 16h00 on the Friday preceding the motion court week and

terminates its sitting on the following Friday at 16h00.

2. During Court Recess

Three courts are allocated for the hearing of opposed and unopposed motion matters each week.

2.1 Court 2



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2.1.1 This court hears the matters referred to in para. 1.2.1 and 1.4.1.1 on the Tuesday of

each week.

2.1.2 Save as provided for in para. 1.4.1.1 no opposed matters are heard.

2.1.3 Only opposed summary judgment applications without complexity will be heard

during recess.

2.2 Court 3

2.2.1 This court hears the matters referred to in para. 1.3.1 and 1.4.1.2 on the Tuesday of

each week.

2.2.2 Save as provided for in para. 1.4.1.2 no opposed matters are heard.

2.2.3 Only opposed rule 43 applications without complexity will be heard during recess.

2.3 Court 6

2.3.1 This court hears both opposed and unopposed urgent applications.

2.3.2 This court is available from 16h00 on the Friday preceding the motion court week and

terminates its sitting on the following Friday at 16h00, save for the last week of

recess. In the last week of recess the court terminates on Monday, at 08h00.

3. In all the motion courts, whether in term or in recess, matters not completed on the designated day

will stand over until the next day for completion.



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9.2 INDEX

2. Prior to the hearing of the application (and preferably simultaneous with the notice of set down) the

applicant must deliver a complete index of all documentation before the court for the determination of

the application.

3. The index should briefly describe each affidavit and annexure as a separate item.

4. This practice is equally applicable to unopposed applications.



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9.3 BINDING OF PAPERS

1. Prior to the set down of the application the applicant must ensure that all the documentation

before the court for the determination of the application is properly bound.

2. In binding the application, care must be taken to preclude that the method of binding hinders

the turning of pages.

3. The documentation should not be bound in volumes of more than 100 pages each.



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9.4 PAGINATION

1. The applicant must paginate the notice of motion, founding affidavit and annexures thereto and the

replying affidavit, if any, and annexures thereto, prior to serving the documents on the other party.

2. The respondent must likewise paginate the answering affidavit and annexures thereto prior to serving

the documents on the other party.

3. The respondent must commence pagination of the answering affidavit and annexures thereto by

utilising the next chronological number following the last such number utilised by the applicant. The

applicant must commence pagination of the replying affidavit and annexures thereto by utilising the next

chronological number following the last such number utilised by the respondent.

4. Where there are multiple respondents represented by different attorneys each such respondent is

released from the obligation referred to in paragraphs 2 and 3 above. In that event the obligation to

paginate all the affidavits is on the applicant.

5. Additional documents generated during the application (eg. returns of service, reports, etc.) must be

indexed, paginated and placed in an “Additional Documents Bundle.”

6. Notwithstanding paragraphs 2 and 3 above, the applicant must ensure that prior to the hearing of the

application it is properly paginated. In the event that the respondent failed to comply with para 2 above,

the applicant may seek a punitive cost order against the respondent in respect of the pagination of the

answering affidavit and annexures.

7. As is apparent from paragraph 1 above, this practice is applicable to opposed and unopposed

applications.



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1. Legal representatives must ensure that counsel are briefed timeously to enable counsel to file

practice notes and short heads of argument and to generally comply with the requirements of the

practice manual in respect of the motion court.

2. The fact that counsel has not been briefed timeously will normally not be accepted as a

reasonable explanation for the failure of counsel to comply with the requirements of the practice

manual.



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9.6 CALLING OF THE ROLL OF UNOPPOSED MATTERS INCOURTS 2 AND 3

1. Courts 2 and 3 commence sitting at 09h30 on the Tuesday of each week during the court term

for the hearing of the matters referred to in paragraph 2 below.

2. Counsel who are briefed in matters enrolled to be heard in courts 1, 4, 5 and 6 on the Tuesday

at 10h00 may call their motion matters in court 2 and court 3 from 09h30 on the Tuesday. To this end,

prior to the commencement of court 2 and court 3 at 09h30, those counsel are to hand to the clerks of

the judges presiding in the relevant court a list reflecting -

2.1 counsel’s name;

2.2 the name and number of the matters counsel wishes to have called in that court;

2.3 the number of the other court or courts in which counsel is to appear on the Tuesday at 10h00 as well

as the name and roll number of the matters in the other courts.

As soon as practicable after their use, the clerks of the judges presiding in courts 2 and court 3, must

hand the list to the clerk of the senior motion court judge.

3. From 10h00, and after the matters referred to in paragraph 2 have been completed, the calling

of the roll in court 2 and court 3 will commence.

4. Prior to the calling of the roll as set out in paragraph 3 above, the secretary of the presiding

judge will invite counsel to call matters which are to be removed from the roll or postponed, including

applications in which rule nisi’s have been granted and in which the return date is to be extended, to

be called.

5. Thereafter the roll will be called in each court. In court 2 matters will be called consecutively

according to their number on the roll. In court 3 the roll will be called page by page and counsel may

call the matters in which they appear, which are reflected on the relevant page.

6. It is emphasised that court 2 has precedence over court 3. Counsel must ensure that all their

matters in court 2 have been called before attending court 3.

7. Accordingly, if a matter is called in court 2 and there is no appearance, the presiding judge may

there and then strike the matter from the roll.

8. Once court 2 has completed its roll, the clerk of the presiding judge of court 2 will inform the

clerk of the presiding judge in court 3 thereof. Thereafter the matters in court 3 will be called

consecutively according to their number on the roll. If a matter is called in court 3 after court 2 has



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completed its roll and there is no appearance, the presiding judge may there and then strike the

matter from the roll.

9. If a matter has to stand down after it has been called, it must stand down until the roll has been

called once, unless the presiding judge indicates otherwise.



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9.7 CLOSURE OF THE MOTION COURT ROLL

1. The motion court roll closes at noon on the preceding Thursday. If the Thursday is a public holiday, the

roll closes at noon on the last preceding working day.

2. After the closure of the roll, the parties to a motion are not entitled to access to the court file and may

not insert or remove documents from it. Such leave must be sought at the first calling of the matter and

must be supported by an affidavit.

3. Access to the court file must not be sought from the relevant judge nor from the relevant judge’s clerk.



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9.8 CONCISE HEADS OF ARGUMENT

1. Concise heads of argument, rarely longer than 5 pages, must be attached to the practice note (see

paragraph 9.16 below) deposited by each party.

2. The heads should indicate the issues that fall for determination and counsel’s contentions in respect

of those issues. Reference to the authorities relied upon for those contentions should be set out.

3. If concise heads of argument were deposited for a previous hearing of the matter and the issues for

determination have not changed, concise heads of argument need not be filed again. The practice

note must indicate that reliance will be placed on the concise heads of argument which was filed

previously.

4. At the hearing of the matter further heads of argument may be handed in.

5. The practice note and heads of argument should also be served on the other side or at least be

exchanged with the opposing counsel.



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9.9 ENROLMENT

1. The motion court roll for a particular week closes at 12h00 on the Thursday preceding the

week. If the Thursday is a public holiday the roll closes one day earlier.

2. In order to enrol a matter in the motion court, the form referred to as J118, must be properly

completed. A specimen J118 form is annexed hereto marked “A”. The J118 must not be altered in

any respect.

3. When completing the J118 particular attention must be given to the indication of whether the

matter is opposed or unopposed and the designation of the type of matter. If the matter does not fall

within any of the type of matters set out on the J118, the designation “O” for other must be utilised. In

addition to inserting an “O” alongside “Case type (see OPTIONS)”, the type of the matter must be set

out in the open block under the heading “(OPTIONS)”.

4. If at the time of enrolment it is known that the matter is not proceeding on its merits, the J118

must be endorsed with the words “NOT PROCEEDING ON MERITS” in the block alongside “U”

(unopposed) / (opposed)”.

5. If the J118 is utilised to enrol an application for default judgment, the following must appear in a

document attached to the J118:

5.1 The date of service of the summons.

5.2 The dies induciae allowed in the summons.

5.3 The date when the dies induciae lapsed.

5.4 A statement that no notice of intention to defend was given.

5.5 The precise relief sought.

6. If the J118 is utilised to enrol an application for summary judgment, the following information

must appear in a document attached to the J118:

6.1 The date of delivery of the notice of intention to defend.

6.2 The date on which the application for summary judgment was delivered.

6.3 If applicable, a statement that no opposing affidavit was filed.


7. If the J118 is utilised to enrol an action for provisional sentence, the following information must

appear in a document attached to the J118:

7.1 The date of service of the provisional sentence summons.

7.2 A statement that no opposing affidavit was filed.




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8. If the J118 is utilised to enrol an application in which notice of intention to oppose was given but

no answering affidavit was filed, the following information must appear in a document attached to the

J118:

8.1 The date on which notice of intention to appose was given.

8.2 The date by which the answering affidavit had to be filed.

8.3 A statement that no answering affidavit was filed.

9. If the J118 is utilised to enrol any other unopposed application, except an ex parte application,

the following information must appear in a document attached to the J118:

9.1 The date of service of the application.

9.2 The date by when notice of intention to oppose was to be given.

9.3 A statement that no notice of intention to oppose was given.

10. It is emphasised that the J118 must be utilised to enrol the matter irrespective of any notice of

set down or notice of motion that may have been utilised in the matter. Any such notice of set down or

notice of motion must indicate that the matter will be heard at 9h30 or so soon thereafter as the

matter may be heard.



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ANNEXURE AJ118

* Case # (year first, eg. 92/1236)

* Date of hearing

* U (unopposed) / OP (opposed)

* Case type (see OPTIONS)

* NAMES OF PARTIES

* (-Surname, then initials- 1st plaintiff and 1st defendant only)

* Pigeon hole number

OPTIONS

FAMILY LAW PAYMENT VARIOUS SOLVENCY

E – DIVORCE D – DEFAULT JUDGMENT T – INTERLOCUTORY R –REHABILITATION

N – RULE 43 S – SUMMARY JUDGMENT I – INTERDICT B – SURRENDER

C – CUSTODY P – PROVISIONAL JUDGMENT H – REVIEW PS – PROV. SEQUESTRATION

F – INTERDICT O – OTHER (specify) V – DECLARATORY FS – FINAL SEQUESTRATION

O – OTHER (specify) FL – FINAL LIQUIDATION

PL – PROV. LIQUIDATION

NOTICE OF SET DOWNSOUTH GAUTENG HIGH COURT, JOHANNESBURG

To The Registrar

Kindly set the above matter down in accordance withthe above information.

SIGNED ON THE ____ DAY OF ________________.

______________________ SIGNATURE

(Any addition information must be stated on a second page)



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9.10 ENROLMENT OF APPLICATION AFTER NOTICE OFINTENTION TO OPPOSE GIVEN

1. Where the respondent has failed to deliver an answering affidavit and has not given notice of

an intention to only raise a question of law (rule 6 (5)(d)(iii)) or a point in limine, the application must

not be enrolled for hearing on the opposed roll.

2. Such an application must be enrolled on the unopposed roll. In the event of such an application

thereafter becoming opposed (for whatever reasons), the application will not be postponed as a

matter of course, but will be referred to the senior motion court judge for direction.

3. The notice of set down of such an application must be served on the respondent or the

respondent’s attorney of record.

4. In the event of the application being enrolled on the opposed roll, in the absence of urgency

and an acceptable explanation on affidavit for the incorrect enrolment of the application, the

application will be removed from the roll.



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9.11 ERRORS ON THE UNOPPOSED ROLL

1. If an unopposed matter is placed by the registrar on the roll of the wrong court, the matter will

normally not be transferred to the roll of the correct court. The matter will be dealt with by the judge on

whose roll the matter appears.

2. If an urgent application is enrolled in the wrong court, the application may be referred to the urgent

court with the leave of the judge in whose court it was erroneously enrolled.

3. If an opposed matter is erroneously placed on the roll of unopposed matters, the clerk of the

judge on whose roll the matter appears, must on instruction from the judge, hand the court file to the

clerk of the senior motion court judge. The matter will then be allocated for hearing in the normal

course.



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9.12 HEARING OF OPPOSED MATTERS

1. Enrolment

1.1. All opposed matters are enrolled for hearing on the Tuesday of the chosen motion court week

for hearing at 10h00 or so soon thereafter as the matter may be heard.

1.2. The opposed motions are heard by courts 1, 2, 3 and 5 as set out in “allocation of courts” or

any other court as designated by the senior motion court judge and as directed by the Deputy

Judge President.

2. Hearing of opposed matters on the Monday

2.1. By agreement between the parties and notwithstanding para. 1 above parties can, subject to

allocation by the senior motion court judge, agree to the hearing of an opposed matter

irrespective of its nature on the Monday of the chosen motion court week. In such an event -

2.1.1. all counsel in the matter must deposit a practice note and concise heads of argument in

the appropriate box by not later than 13h00 on the preceding Thursday;

2.1.2. it must be stated in each practice note that all the parties have agreed to the matter

being heard on the Monday;

2.1.3. the court file must be properly paginated and indexed;

2.1.4. the secretary of the senior motion court judge will advise the respective parties’ legal

representatives during the Friday afternoon whether it has been possible to allocate the

matter for hearing on the Monday and in which court the matter will be heard;

2.1.5. if it was not possible to allocate the matter for hearing on the Monday, the matter

will be allocated for hearing on the Tuesday or later in the week depending on the

nature of the application.

3. Hearing of opposed matters on the Tuesday

3.1. The following opposed matters are heard on the Tuesday irrespective of the consent of the

parties:



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3.1.1. Applications for and return days of winding-up orders.

3.1.2. Applications for judicial management

3.1.3. Applications for and return days of sequestration orders.

3.1.4. Exceptions.

3.1.5. Applications relating to custody and access.

3.2. If there is no appearance by the legal representatives of the parties or any of them on the

Tuesday in respect of the applications referred to in paragraph 3.1 above, the application may,

subject to the discretion of the presiding judge, be struck from the roll or be otherwise dealt with

in terms of the rules of court. Any counsel who is required to be in any other court should notify

the presiding judge accordingly.

3.3. All the parties to the applications referred to in paragraph 3.1 above must deposit a practice

note and concise heads of argument in the appropriate box by no later than 13h00 on the

preceding Friday.

3.4. The court file must be properly paginated and indexed.

4. Hearing of opposed matters on the Wednesday, Thursday and Friday

4.1. All other opposed matters will be allocated by the senior motion court judge for hearing in the

courts referred to in paragraph 1.2 above on Wednesday, Thursday and Friday of the relevant

week.

4.2. No matter will be so allocated unless

4.2.1. the court file has been properly paginated and indexed;

4.2.2. all the parties to the matter have timeously deposited in the appropriate box their

practice notes and concise heads of argument by not later than 13h00 on the preceding

Monday.

4.3. A printed roll prepared by the secretary of the senior motion court judge will be published by the

clerk in the foyer of the High Court and sent electronically to the Johannesburg Bar Council and

Attorneys’ Association by no later than 09h00 on the Tuesday. The printed roll will indicate, in

the event of an allocation having been made, the court to which the matter has been allocated

for hearing. Where a matter has not been allocated due to for failure to comply with paragraph



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4.2 above or for any other reason, such matter will appear on the roll as unallocated and will be

called before the senior motion court judge on Wednesday at 10h00.

5. Basis of allocations of opposed motions

5.1. Considerations of urgency (as disclosed in the practice note), estimated duration and

efficiency form the basis of allocation.

5.2. Where the same counsel appears in more than one matter, it is endeavoured, where

practical, to allocate all such matters to the same court. To this end counsel should indicate in

their practice notes whether they appear in other matters and give details of such other matters,

i.e. the number on the roll and the names of the parties.

5.3. Date of when the matter was enrolled may be considered when the matter is allocated.

6. Difficulties with allocation

6.1. If a problem is encountered with an allocation of an opposed motion such problem must be

raised with the senior motion court judge.

6.2. Only the senior motion court judge may change the allocation of a matter.



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9.13 LONG DURATION

1. An opposed motion which is expected to require a day or more (including the delivery of an ex tempore

judgment) may not be enrolled for hearing without the consent of the Deputy Judge President.

2. The consent of the Deputy Judge President for the enrolment of the matter is sought in writing, a copy

of which must simultaneously be made available to the other party or parties to the opposed motion and

must contain:-

2.1. a short exposition of the nature and complexity of the matter;

2.2. the estimated duration thereof;

2.3. an assurance that all the necessary affidavits have been exchanged (or in exceptional cases an

indication of the date by when they will have been exchanged);

2.4. an assurance that the papers have been properly indexed and paginated;

2.5. proposals for the filing of heads of argument by the parties;

2.6. suggestions as to when the application can be heard.

The other party or parties to the opposed motion who wish to make representations in respect

thereof may do so in writing.

3. The Deputy Judge President will determine the date of the hearing of the aforesaid opposed motion

and furnish such directions as he deems fit in respect thereof.

4. The opposed motion must forthwith be enrolled for hearing in terms of the determination of the

Deputy Judge President.



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9.14 MATTERS NOT ON THE ROLL

1. Any matters not on the roll must only be brought to the attention of the presiding judge of the

court on whose roll the matter ought to have appeared after the roll of that court has been called at

least once. At that time the presiding judge’s secretary will invite counsel to mention matters not on

the roll.

2. Once counsel has determined that a matter is not on the roll and the relevant court file has

been located, the court file should be handed to the secretary of the judge presiding over that portion

of the roll in which the matter should have appeared. The judge’s secretary shall prepare a list of such

matters for use by the judge’s secretary and the presiding judge.

3. If the matter is not on the roll due to a fault in the registrar’s office, the file should be endorsed

to that effect by the registrar dealing with enrolment. Once the matter is enrolled, the presiding judge

will give directions for the hearing of the matter.

4. If the matter is not on the roll due to an act or omission on the part of the legal representative

who was responsible for the enrolment of the application, an affidavit explaining the act or omission

by the legal representative must be filed in the court file. In the absence of urgency and prejudice the

matter will not be enrolled.



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9.15 POSTPONEMENTS

1. A motion, whether opposed or unopposed, will generally not be postponed to a specific date. It will

either be postponed sine die or removed from the roll.

2. Where a motion has to be postponed to a specific date (eg rehabilitation for which notice has been

given) such date, in the absence of urgency, must be to a date at least two weeks hence.

3. Prior to allocation and in respect of unallocated matters, the clerk of the senior motion court judge for

the particular week must be informed in person or telephonically immediately it becomes known that

an opposed matter is to be postponed.

4. Subsequent to the allocation of an opposed matter to a particular judge for hearing, the clerk of the

judge to whom the matter has been allocated, must be informed in person or telephonically

immediately it becomes known that a matter is to be postponed.



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9.16 PRACTICE NOTE1. Counsel for each party in a motion which appears on the opposed roll is to deposit a practice note in

the designated box, not later than 13h00 on the preceding Thursday, if a hearing on the following

Monday is envisaged, by not later than 13h00 on the Friday if a hearing on Tuesday is envisaged and

by not later than 13h00 on the Monday in all other cases.

2. The practice note shall set out -

2.1. the name of the parties, the case number and its number on the roll;

2.2. the names and telephone numbers of all counsel in the motion;

2.3. the nature of the motion;

2.4. an indication of the issues to be determined in the application;

2.5. the relief sought at the hearing by the party on whose behalf counsel completing the

practice note appear;

2.6. an estimate of the probable duration of the motion;

2.7. if the matter is urgent and if so motivate the urgency;

2.8. whether or not the papers need to be read and, if so, which portions thereof.

3. In the absence of a practice note from the applicant, a motion appearing on the opposed roll will not

be dealt with other than for removal from the roll, save in the event of respondent’s counsel advancing

considerations which are sufficient to persuade the presiding judge to hear the application.

4. A practice note must be deposited as set out in 1 above on each occasion the motion appears on the

opposed roll.

5. Concise heads of argument (see 9.8 above) are to be attached to the practice note at the time of

depositing thereof.

6. When the day on which the practice note and concise heads are to be deposited falls on a public

holiday, such documents shall be deposited on the preceding business day.



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9.17 PREPARATION OF PAPERS

1. The original application, the original return of service and other original documents comprising

the application must be contained in the court file.

2. If a document or documents attached to the founding or replying affidavit is

2.1 in manuscript and

3.2 not readily legible

the applicant shall ensure that typed and legible copies of the document or documents are provided.

2. The respondent bears the obligation referred to in the previous sub-paragraph in respect of

documents attached to the answering affidavit.



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9.18 SERVICE

1. Service is proved by filing in the court file the original return of service which establishes the

service. In the absence of an acceptable explanation, returns of service will generally not be accepted

from the bar.

2. Where publication in the Government Gazette or newspaper of a court order, notice or other

document has to be proved, the full page of the Government Gazette or newspaper containing the

relevant order, notice or other document must be filed. The court order, notice or other document

must be clearly highlighted. In the absence of an acceptable explanation, proof of publication will

generally not be accepted from the bar.

3.1 Where service is effected at the registered address of a company or close corporation the Sheriff

must state in his return that he or she ascertained that there was a board at the address where

service was effected indicating that that address was indeed the registered office of the company or

close corporation.

3.2 In the absence of such a statement in the return of service, the registered address must be proved by

filing in the court file of a form CM22 issued by the registrar of companies.

4. Where service is effected at a domicilium citandi et executandi, the original document wherein the

domicilium is chosen must be in the court file.

5. In actions or applications for the imprisonment of the defendant or respondent, personal service of the

summons or application must be effected on the defendant or respondent. If notice of the set down of

the matter has to be given to the defendant or respondent, personal service of the notice of set down

must be effected on the defendant or respondent.

6. When service of any document by registered post is prescribed or authorised (in any action or

application), such service is proved by the production of an affidavit by the person who procured the

despatch of such document, in which he/she -

6.1 indicates the date of despatch together with the name and address of the addressee;

6.2 describes the document so despatched;

6.3 indicates, if that be the case, that the item in question has not been returned to the sender by

the Post Office as being undelivered, and to which he annexes the documentary proof of

posting of a registered article issued by the Post Office.



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9.19 SETTLEMENT

1. Prior to allocation and in respect of unallocated matters the clerk of the senior motion court judge for

the particular week must be informed telephonically immediately it becomes known that a matter has

become settled.

2. Subsequent to the allocation of a matter to a particular judge for hearing, the clerk of the judge to

whom the matter has been allocated, must be informed telephonically immediately it becomes known

that a matter has become settled, or where it has been agreed that the matter is to be postponed.



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1. Where the parties to an application have entered into a settlementagreement, a judge will only make such settlement agreement an order of court if

1.1. counsel representing all the parties to the application are present in court and confirm thesignature of their respective clients to the settlement agreement and that their clients want thesettlement agreement made an order of court

or

1.2 proof to the satisfaction of the presiding judge is provided as to the identity of the person whosigned the settlement agreement and that the parties thereto want the settlement made an orderof court.

2. Where the parties to an application have settled the application on the terms set out in a draft order, ajudge will only make such draft order an order of court if

2.1 counsel representing all the parties to the application are present in court and confirm that thedraft order correctly reflects the terms agreed upon; or

2.2 proof to the satisfaction of the presiding judge is provided that the draft order correctly reflects the termsagreed upon

3. All applications must be accompanied by a draft order reflecting the precise terms of the relief sought.Such draft order must be filed with the registrar at the time of issuing of the application.



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9.21 STALE SERVICE

1. Where any unopposed application is made six months after the date on which the application or

summons was served, a notice of set down must be served on the defendant or respondent.

2. The notice of set down must set out -

2.1 the date and time at which the relief will be sought;

2.2 the nature of the relief that will be sought.

3. The notice of set down must be served at least five days before the date on which the relief will

be sought.



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9.22 STRIKING FROM THE ROLL

1. If there is no appearance when a matter is called in court 2 it may there and then be struck from

the roll.

2. If there is no appearance when a matter is called in court 3, and court 2 has completed its roll, it

may there and then be struck from the roll.

3. In all other matters if there is no appearance when the matter is called, it may there and then be

struck from the roll.

4. If a matter has been struck from the roll, counsel in the course of the week in which the matter

was struck from the roll, may seek that the matter be re-enrolled. The matter will only be re-enrolled if

a proper explanation for non-appearance is given. In appropriate circumstances the explanation must

be on oath.

5. If a matter has been struck from the roll it may only be re-enrolled for a subsequent week if

simultaneous with the filing of the J118, an affidavit explaining the previous non-appearance is filed.

6. The negligence or ignorance of the provisions of the practice manual of counsel or legal

representative will not necessarily constitute an acceptable explanation for the non-appearance.

7. Where the applicant or plaintiff has failed to file a practice note and/or heads of argument where

they are required in terms of the practice manual, the relevant matter may be struck from the roll.



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9.23 SUPPLEMENTARY ROLL

1. If it is ascertained before 13h00 on the Monday of the motion court week, that a matter has

been omitted from the roll due to a fault in the registrar’s office, the matter must forthwith be drawn to

the attention of the registrar’s office.

2. The registrar’s office will prepare a supplementary roll in respect of those matters. Matters on

the supplementary roll are to be placed before the senior motion court judge.

3. The supplementary motion court roll will be called before the senior motion court judge on

Wednesday of the motion court week at 10h00 or so soon thereafter as may be possible.



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9.24 URGENT APPLICATIONS

1. A judge is designated for the hearing of urgent applications for each week of the year. For this

purpose the week commences on Friday at 16h00 and terminates on the Friday of the next week at

16h00.

2. The normal time for the bringing of an urgent application is 10h00 on the Tuesday of the motion

court week.

3.1 If the urgent application cannot be brought at 10h00 on the Tuesday of the motion court week, it

may be brought on any other day of the motion court week at 10h00. The applicant in the founding

affidavit must set out facts which justify the bringing of the application at a time other than 10h00 on

the Tuesday.

3.2 If the urgent application cannot be brought at 10h00 on any day during the motion court week, it

may be brought at 11h30 or 14h00 on any day during the motion court week. The applicant in the

founding affidavit must set out facts which justify the bringing of the application at a time other than

10h00 on the Tuesday and other than 10h00 of the relevant court day.

3.3 If the application cannot be brought at 10h00 on the Tuesday or at 10h00 on any other court

day or at 11h30 or 14h00 on any court day it may be brought at any time during the court day. The

applicant in the founding affidavit must set out facts which justify the bringing of the application at a

time other than 10h00 on the Tuesday and other than at 10h00, 11h30 or 14h00 on any other court

day.

3.4 The aforementioned requirements are in addition to the applicant’s obligation to set out

explicitly the circumstances which render the matter urgent. In this regard it is emphasised that while

an application may be urgent, it may not be sufficiently urgent to be heard at the time selected by the

applicant.

3.5 The aforementioned practices will be strictly enforced by the presiding judge. If an application is

enrolled on a day or at a time that is not justified, the application will not be enrolled and an

appropriate punitive cost order may be made.

4. The first paragraph of relief sought in the applicant’s notice of motion must be for the enrolment of the

application as an urgent application and for the dispensing of the forms and service provided for in the

rules of court, to the extent necessary.

5.1 Unless the circumstances are such that no notice of the application is given to the respondent,

or unless the urgency is so great that it is impossible to comply therewith, the notice of motion must

follow the format of form 2 (a) of the First Schedule to the rules of court and therefore must provide a

reasonable time, place and method for the respondent to give notice of intention to oppose the

application and must further provide a reasonable time within which the respondent may file an



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answering affidavit. The date and time selected by the applicant for the enrolment of the application

must enable the applicant to file a replying affidavit if necessary.

5.2 Deviation from the time periods prescribed by the rules of court must be strictly commensurate

with the urgency of the matter as set out in the founding papers.

5.3 In cases of extreme urgency, the reasonable time afforded to the respondent to give notice of

intention to oppose, is usually not less than 2 hours, excluding the hour between 13h00 and 14h00.

6.1 If the facts and circumstances set out in the applicant’s affidavits do not -

6.1.1 constitute sufficient urgency for the application to be brought as an urgent application and/or

6.1.2 justify the abrogation or curtailment of the time periods referred to in the rule 6(5) and/or

6.1.3 justify the failure to serve the application as required in rule 4 the court will decline to grant an

order for the enrolment of the application as an urgent application and/or for the dispensing of

the forms and services provided for in the rule. Save for a possible adverse cost order against

the applicant the court will make no order on the application.

6.2 The aforementioned requirements will be strictly enforced by the presiding judge.

7.1 For the purposes of urgent applications ordinary court hours are 10h00 to 11h15, 11h30 to 13h00

and 14h00 to 16h00 of a court day. If a party wishes to bring an urgent application out of ordinary

court hours the presiding judge’s clerk must be telephoned at her office or on cell number 082 573

5233. The following information must be conveyed to the judge’s clerk -

7.1.1 The identity of the parties.

7.1.2 Whether or not service has been or will be effected.

7.1.3 Whether or not the application is or is anticipated to be, opposed.

7.1.4 The type of application.

7.1.5 The nature of the relief sought.

7.1.6 Why it is not possible for the application to be heard during ordinary court hours.

7.1.7 When it is anticipated the application will be ripe for hearing.

7.2 The judge’s clerk will communicate with the judge and thereafter advise the party when and where the

application will be heard or what directions the judge has given in regard to the application.

7.3 When an urgent application is brought out of ordinary court hours, the applicant must ensure that the

order of the court can be typed so that it can be signed by the presiding judge’s clerk.

7.4 The judge designated for the hearing of urgent applications is not to be contacted directly.

7.5 If the judge designated for the hearing of urgent applications directs that the application be heard in

court after ordinary court hours the judge’s clerk shall telephone -



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7.5.1 the court stenographer on urgent application duty to arrange the stenographer’s attendance

in court at the arranged time. The stenographer’s telephone number is obtained from LOM

on the Friday before 16h00.

7.5.2 the security officer on duty at the main entrance of the High Court at telephone number 011

332 8264 to arrange for the admission of the parties to the court and for the parties to be

directed to Court 6 E.

8.1 When an urgent application is brought for the Tuesday at 10h00 the applicant must ensure that the

relevant papers are filed with the registrar by the preceding Thursday at 12h00.

8.2 The registrar’s office must ensure that the court files of all urgent application set down for the

Tuesday at 10h00 are brought to the clerk of the judge hearing the urgent applications by 16h00 on

the preceding Friday.

8.3 The clerk of the judge hearing urgent applications will prepare a roll in respect of the urgent

applications to be heard on the Tuesday at 10h00. The clerk will publish the roll in the foyer of the

High Court by no later than 10h00 on the Tuesday.

8.4 Where an urgent application is brought for any other time than Tuesday at 10h00, the registrar’s office

shall ensure that the court file is brought to the clerk of the judge hearing urgent applications as soon

as possible. The judge’s clerk shall prepare a roll in respect of the urgent applications to be heard on

the other days of the week. The clerk will publish the roll in the foyer of the High Court by no later than

09h00 on the day of the hearing.

9.1 Save in exceptional circumstances the applicant should not frame the relief sought in the form

of a rule nisi which has in whole or in part interim effect. Where applicable the urgent relief should be

sought pending the determination of the application.

9.2 Annexure A to this chapter is an example of the appropriate format of a notice of motion to be

utilised in an urgent application.

10.1 On the Friday of each week at 16h00 the registrar shall send to the secretary of the judge

designated for the hearing of urgent applications for the week commencing at 16h00 on the Friday -

10.1.1 the cellular phone provided for the judge’s clerk;

10.1.2 15 consecutively numbered court files (These files are to be utilised in the event of an

urgent application being brought without a court file having been opened by the registrar of

the court);

10.1.3 an official stamp of the registrar of the High Court. The stamp imprint must include

the letters J.S.



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10.2 On Friday of each week, before 16h00 the clerk of the judge who is to take over the urgent court,

must obtain from LOM (Business Solutions) the telephone number of the stenographer on urgent

court duty for the urgent court week.

10.3 On the first court day after any of the files referred to in 10.1.2 above has been utilised, the judge’s

clerk shall inform the registrar of the names of the parties and the allocated case number.

10.4 On the Friday morning at the conclusion of the week during which the designated judge heard the

urgent applications, the judge’s clerk must return the cellular telephone, the unused numbered files

and the aforesaid stamp to the registrar.



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ANNEXURE A TO CHAPTER 9.24

A. Be pleased to take notice:

(1) that on the ……………………….at 10h00, or as soon thereafter as the matter

can be heard, application will be made to the above Honourable Court for the

following orders:

a. enrolling this application as an urgent application and ……………….. with

the forms and notices as may be necessary;

b. pending the final decision of this application third respondent (The Master)

is interdicted from confirming a distribution account in the estate of the

Late DNO Soars;

c.

(2) that if you intend opposing the application which will be heard on the

………………, you must notify applicant’s attorney.

B. Further take notice:

(1) that on the ………………………. at 10h00 the applicant will apply for the

following order:

a.

b.

c.

d.

(2) that if you intend opposing the application which will be heard on the

………………… you must:

(a) state that intention in a notice delivered to applicant’s attorney at the

undermentioned address and to the registrar of the above Court not later

than ………………..; and

(b) in that notice appoint an address where further documents in this matter

can be delivered and be situate within 8 kilometres of ………; and

(c) deliver your opposing affidavits not later than …………….., at the said

address of applicant’s attorney and to the registrar …………



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CHAPTER 10 PARTICULAR APPLICATIONS

10.1 Anton Piller type orders

10.2 Admission of advocates

10.3 Cancellation of sales in execution

10.4 Change to matrimonial regime

10.5 Compromise in terms of Section 311 of the Companies Act

10.6 Curator bonis

10.7 Curator ad litem

10.8 Enquiries in terms of Section 417 of the Companies Act

10.9 Eviction where the Prevention of Unlawful Occupation of Land Act 1998 applies

10.10 Liquidation

10.11 Provisional sentence

10.12 Rehabilitation

10.13 Removal of amendment of restrictions on land use

10.14 Sequestration


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10.1 ANTON PILLER TYPE ORDERS

1. These practises apply when an order which is sought ex parte involves a search for a movable

or the attachment thereof in order to preserve evidence as is meant in Shoba v Officer Comma

1995 (4) SA 1 (A) or if the item is not identified in the papers, i.e. if identification is dependent u

pointing out which is still to be made.

2. Such an application must stand on its own and not form part of an application in which other re

claimed. Duplication of costs is to be minimised by incorporating evidence in one applicatio

reference in any other application.

3. When the applicant wishes the matter to be heard in camera:

3.1 the applicant may, without being obliged to do so, prove the reason why such a hear

necessary in a separate affidavit. If a separate affidavit is employed and a hearing in cam

refused without a party or the judge having placed reliance on the contents of the applic

itself, the applicant may withdraw and remove the Anton Piller application;

3.2 a certificate from counsel in support of a hearing in camera is not necessary;

3.3 all steps must be taken as if the application is being set down on the motion court roll by u

the ordinary forms and in the ordinary manner except that the notice of set down

application are handed to the clerk of the senior judge on motion court duty for purpos

safekeeping and maintaining secrecy all in accordance with the directions of the senior jud

4. A notice which accords with annexure A hereto must be handed to the person on whom the or

to be served prior to any execution of the order.

5.1 Annexure B represents a model order which applies to relief along Anton Piller lines. It m

adapted according to circumstances but the judge’s attention must be drawn to deviations.

5.2 Deviations from annexure B must be limited to what is necessary and must heed the foll

guidelines:

5.2.1 Unless the procedure is limited in case law, undertakings to the court mu

employed to counteract injustice and avoidable inconvenience to the respondent.

5.2.2 The order must be justifiable in terms of South African law.

5.2.3 It must be borne in mind that it is of the essence of an Anton Piller type order

results in some immediate interference with the respondent without any prior notice (e

a rule nisi pattern of order were to be used). Immediate operation must be limited to

can be fully justified by urgency or other need for breach of the audi alteram p

principle.

Practice Manual 74 January


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5.2.4 Relief which can not be so justified must be dealt with in a separate part of the notice of

motion (and where necessary of the court order) so that the respondent has a proper

opportunity to oppose such relief. Immediate preserving of evidence does not imply a need

to allow the making of copies or other early discovery without the other party having a

chance to be heard.



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ANNEXURE A

1. The order being served on you requires you to allow the persons named therein to enter the premises

described in this order and to search for, examine and remove or copy the articles specified in this

order. You are also required to point out and hand over any such item to the sheriff. Particulars are

stated in the order.

2.1 When this notice is handed to you, you are entitled, if you are an employee of the respondent or in

charge of the premises, to contact the respondent or a more senior officer of the respondent. You are

entitled to the attendance and advice of such senior person, the respondent or an attorney provided

such person arrives without delay and not later than one hour after the handing over of this notice.

2.2 Until the attorney, the respondent or such other officer arrives or until the time has passed for him or her

to arrive, you need not comply with any part of this order, except that you must allow the applicant’s

attorney, the sheriff and the other persons named in the order to enter the premises and to take such

steps as, in the opinion of that attorney, are reasonably necessary to prevent prejudice to the further

execution of the order.

3. You are further entitled to have the sheriff and the applicant’s attorney explains to you what this notice

and the court order mean.

4. You may be punished for contempt of court if you, inter alia,

4.1 obstruct the sheriff unlawfully in the execution of this order; or

4.2 wilfully disobey this order; or

4.3 remove or intentionally cause harm to any item about to be attached or removed in terms of this

order, until the attachment is set aside by the Court or is lifted on instruction from the applicant.



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ANNEXURE B

Having heard counsel for the applicant and having read the papers filed of record, and on the basis that the

applicant undertakes to this court that -

1. this order will not be executed outside the hours between 08h00 and 18h00 on a weekday;

2. applicant will prevent the disclosure of any information gained during the execution of this order to any

party except in the course of obtaining legal advice or pursuing litigation against the respondent;

3. applicant will compensate the respondent for any damage caused to the respondent by anyone

exceeding the terms of this order;

4. applicant will compensate the respondent for any damage caused to the respondent by reason of the

execution of this order should this order subsequently be set aside,

IT IS ORDERED:

1. That the respondent and any other adult person in charge of the premises of the respondent at New

Road, Delmas grant the sheriff of the above Honourable Court, applicant’s manager (Mr XY Zuma),

attorney AB Collins (“applicant’s attorney”) and a computer operator nominated by applicant access to

the said premises for the purpose of

1.1 searching the premises for the purpose of enabling any of those persons to identify and point out to

the sheriff originals or copies of or extracts from applicant’s recipes and formulae for the

manufacture of AZ toys;

1.2 examining any item for the purpose of identifying it and deciding whether it is of the nature

mentioned in the preceding subparagraph;

1.3 searching the premises for the purposes of finding any computer disc containing any of the items

referred to above.

2. That the respondent forthwith discloses passwords and procedures required for effective access to the

computer for the purpose of searching on the computer and making a disc copy, or, if that is not

possible, a print out of computer documents containing information of the nature which would be

expected in a document mentioned in paragraph 1.1 above.

3.

3.1 That the respondent permit the sheriff to attach and to remove any document pointed out by a

person mentioned in paragraph 1 as being a document covered by paragraph 1.

3.2 That, subject to paragraph 5.2 hereof, the sheriff is authorised to attach any document which is

pointed out by any of the aforesaid persons and is directed to remove any attached document in

respect of which the applicant or the applicant’s attorney does not give a different instruction. The



184

sheriff is directed to keep each removed item in his custody until the applicant authorises its release

to the respondent or this Court directs otherwise.

4. That until completion of the search authorised in the preceding paragraphs the respondent may not

access any computer or any area where documents of the class mentioned in paragraph 1.1 may be

present except with the leave of the applicant’s attorney or to make telephone calls or send an

electronic message to obtain the attendance and advice mentioned in the notice which is handed over

immediately prior to execution of this order.

5. The sheriff is directed, before this order and this application is served or executed, to -

(a) hand to the respondent or the other person found in charge of the said premises a copy of a

notice which accords with annexure A of the Practice Manual; and

(b) to explain paragraphs 2, 3 and 4 thereof; and

(c) to inform those persons the following:

5.1 That any interested party may apply to this Court on not less than twenty four (24) hours’ notice to

the offices of the applicant’s attorney for a variation or setting aside of this order, the court’s

practices and rules applying unless the court directs otherwise.

5.2 That the respondent is entitled to make a copy of any document which the sheriff intends to

remove unless the sheriff declares that the time involved makes the procedure impractical and

the sheriff either does not remove the relevant item or removes it in a container sealed by him

and which the sheriff may not open except to give to effect this order or to any further direction

from the Court.

5.3 That the respondent or his representative is entitled to inspect items in the sheriff’s possession for

the purpose of satisfying themselves that the inventory is correct.

6. The sheriff is ordered to immediately make a detailed inventory of all items attached and to provide the

Registrar of this court, the applicant’s attorney, and the respondent with a clear copy thereof.

7. That unless a different direction is obtained from the Court, applicant and applicant’s attorney will, two

days after this order is executed, become entitled to inspect any of the removed items in order to

assess whether it provides evidence relevant to the present application or to the further legal

proceedings envisaged in the application.

8. That the sheriff is ordered to inform the respondent that the execution of this order does not dispose of

all the relief sought by the applicant and to simultaneously serve the notice of motion and explain the

nature and exigency thereof.



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9. The costs of this application are reserved for determination in the further proceedings foreshadowed in

this application save that -

(a) if the applicant does not institute those legal proceedings within three weeks of the date of this

order, either party may, on not less than 96 hours’ notice to the other, apply to this Honourable

Court for an order determining liability for those costs and determining what must be done about

removed items and any copies thereof;

(b) any other party affected by the grant or execution of this order may on no less than 96 hours’

notice apply to this Honourable Court for an order determining liability for the costs of such party

and determining what must be done about any item removed from any such party or any copy

thereof.

Note: in some situations the following may also be appropriate:

10. The respondent and any other adult person in charge of the premises at which this order is executed

are further directed to disclose to the sheriff of the above Honourable Court the whereabouts of any

document or item falling within the categories of documents and items referred to in 1.1 above, whether

at the premises at which this order is executed or elsewhere to the extent that the whereabouts are

known to such person(s).

11. In the event of any document or item is disclosed to be at the premises other than the premises

mentioned in paragraph 1.1 of this order, the applicant may approach this court ex parte for leave to

permit execution of this order at such other premises.



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10.2 ADMISSION OF ADVOCATES

1. An application for admission as an advocate must, in addition to the information required by

section 3(1) of the Admissions of Advocates Act No74 of 1964 and Rule 3A of the Rules of the

Supreme Court allege that -

1.1 the applicant is not arraigned on a criminal charge and has not been convicted of a criminal

offence;

1.2 the applicant’s estate has not been sequestrated and that no sequestration proceedings are

pending;

1.3 the applicant was not found guilty in misconduct proceedings while in a previous profession or

employment and that when any previous profession was relinquished or employment was

terminated, no misconduct proceedings were pending; and

1.4 the applicant is unaware of any fact which may detrimentally affect the adjudication of the

application.

2. If the applicant is unable to make any of the allegations aforementioned, full details of the

circumstances which preclude the allegation being made must be furnished.

3. The registrar is to ensure that the court files containing the admission applications are handed

to the clerks of the judges hearing the application at least two days before the hearing of the

applications.

4. Applications for admissions are heard before two judges.



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10.3 CANCELLATION OF SALE IN EXECUTION

1. If an application in terms of rule 46(11) is unopposed it is dealt with by the judge before whom it

comes in chambers. If the application is opposed the application will be heard in open court.

2. The notice of motion must inter alia be served on the purchaser against whom relief is sought.

The notice of motion must inform the purchaser of the time within which and the manner in which the

applicant and the registrar must be informed of the purchasers intention to oppose the relief sought if

any.

3. If no intention to oppose the relief sought is filed, the applicant must depose to an affidavit

stating that fact. The affidavit must be placed in the court file before the application comes before the

judge.



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10.4 CHANGE TO THE MATRIMONIAL REGIME

1. The application is commenced by publication in the Government Gazette of a notice

substantially in the form of Annexure A hereto.

2. The report of the Registrar of Deeds must be obtained before such advertisement is placed.

3. At least 3 weeks before the hearing date a copy of the notice referred to in para 1 must be

forwarded to each creditor by registered post and must be accompanied by a letter, a copy of which

must be placed before the court, which states -

3.1 on which date and time and to which court application will be made;

3.2 the full names of the spouses, their identity numbers and their residential addresses and

places of employment in the preceding 12 months;

3.3 the effect of the proposed order;

3.4 that a creditor whose interests will be prejudicially affected by the change of marital regime,

may appear at the hearing to oppose the granting of the order.

4. The name, address, amount owing to, and the cause of action of each contingent and other creditor

must be set out in the application. Proof of compliance with para 1, 2 and 3 must be proved at the

hearing of the application by the filing of a supplementary affidavit.



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ANNEXURE A

Take notice that on the__________ day of__________ 20____ at 10h00 or so soon thereafter as the matter

can be heard, the abovementioned applicants will apply to the South Gauteng High Court of Johannesburg

(address) for an order in the following terms:

1. The applicants are given leave to change the matrimonial property system which applies to their

marriage, by the execution and registration of a notarial contract, a draft whereof is attached to the

first applicant’s supporting affidavit and is marked “. . .” and which contract, after registration thereof,

will regulate their property system;

2. The Registrar of Deeds is authorised to register the notarial contract;

3. This order –

3.1 will lapse if the notarial contract is not registered by the Registrar of Deeds within two months of

the date of the granting of this order; and

3.2 will not prejudice the rights of any creditor of the applicants as at date of registration of the

contract.



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10.5 COMPROMISE IN TERMS OF SECTION 311 OF THECOMPANIES ACT 61 OF 1973

1. Every chairperson and alternate chairperson must be identified by name. It must be proved that

such person is not a professional advisor of and has no direct or indirect interest in the offeror, in

the company or in a holding company or a subsidiary of any of them.

2.1 The proposed statement in terms of section 312 must be attached to the application. To limit costs,

the facts therein which require proof must be repeated in the affidavit only by way of an appropriate

reference to the statement as is meant in Ex parte De Villiers 1993 1 SA 493 (A) at 508H-I.

2.2 The statement must not amount to an abbreviated repetition of the terms of the compromise but

must explain its impact in terms which are readily understandable by a layman. The statement must

explain what will happen to an affected party’s interest if the scheme is approved; what conditions

precedent and other risks of failure are operative and what the prospects are about those risks;

what must be done to obtain and to enforce rights created by the scheme; how those rights may be

lost; how the party will be informed of or can gain knowledge of fulfilment of conditions like approval

of some third party; and what must be done to enable the party to vote.

2.3 The statement may be compiled by an accountant, liquidator or other person with adequate

knowledge of the facts and must state the name of its author.

2.3.1 The statement in terms of section 312(1)(a)(i) must be approved of by the court in advance

and must therefore form part of the application.

2.3.2 That statement must be in a document which is separate from the applicant’s statement in

compliance with section 312(1)(a)(ii) and separate from any other information (the

information which explains why the scheme is a good idea rather than what its impact will

be) which the applicant intends putting before interested parties, whether in order to comply

with a requirement of some body or of its own volition.

2.3.3 The statement and the actual scheme of arrangement must be forwarded to interested

parties in a way which contrast them from documents about which the court made no

finding, by way of binding them separately, using pages with a different colour, or making

the distinction with a blank page and clear headings.

2.3.4 The papers sent to interested parties must commence with the said statement, followed by

the scheme of arrangement and then followed by such other documents as the applicant

may have in mind.

2.3.5 Reasons for any opinion that the offer is fair and reasonable must be stated in an affidavit

by the individual or individuals who provided the opinion.

3. The court must be informed about the extent to which parties who are entitled to vote are not from the

Witwatersrand. If the court is not so informed it will incline to require publication in a newspaper with



191

national circulation in its dominant language and in another official language in a national newspaper which

is in circulation in the province wherein the company carried on business.

4. The order must -

4.1 require proof of giving notice in accordance with membership according to both the company’s

register and the sub-register of all CSDP’s;

4.2 allow shareholders sufficient time to obtain powers of attorney from their CSDP’s;

4.3 if relevant information is to be ascertained or published only in the future, allow shareholders

sufficient time to receive that information, to consult with their advisers and to get a response to

the place where the meeting is to be held.

5. Unless expressly otherwise directed, the court order need not be published in any newspaper. The

application must be drafted so as not to ask for such publication. The notice convening the scheme

must be published.

6. The chairperson must forthwith

6.1 cause a notice convening the meeting which substantially conforms with the annexure hereto to be

published in an official gazette and such newspaper as the court directs, on a date which is at

least two weeks prior to the date of the meeting; and

6.2 send the following by prepaid registered post to each creditor of the company:

6.2.1 A copy of the court order.

6.2.2 A copy of the offer to compromise.

6.2.3 A copy of the statement in terms if sections 312(1) and (2) of the Act.

6.2.4 A form which can be used as proxy.

6.2.5 A statement showing

6.2.5.1 the amount for which the creditor is reflected in the company’s records as a

creditor of the company and the extent to which he is reflected as a preferent

or as a secured creditor;

6.2.5.2 the company’s asset and the values thereof;

6.2.5.3 the aggregate amounts due to (a) secured, (b) preferent and (c) concurrent

creditors;

6.2.5.4 the amount which creditors claim to be owing to them, the validity of those

claims; and what security is held therefor;

6.3 A notice which accords with the annexure hereto should form the front page of the documents sent

to a creditor. If not, the front page must explain the essence of the scheme in simple terms. In

either event the words explaining the scheme must appear in bold print.



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7. If reason arises for regarding one or more creditors as a class of creditors which possibly should,

in the order authorising the convening of the meetings, have been recognised as a further class

of creditors, the votes of any creditor who may be in that class shall be cast, counted and

reported on separately.

8. The chairperson must report to the court on

8.1 the grounds, if any, for concluding that one or more creditors constitute such an additional

class of creditors;

8.2 the number of creditors who attend in person;

8.3 the number of creditors who were represented by proxies and which thereof was represented

by the chairperson in terms of proxies;

8.4 the amount of the claims of those creditors;

8.5 which proxies were rejected;

8.6 each resolution taken at any meeting with particulars of the number of votes cast in favour

and against each resolution and the number of abstentions, stating the number of votes

cast by the chairperson by virtue of proxies;

8.7 each ruling of the chairperson at a meeting;

8.8 the salient qualities of every other offer of compromise which was open for consideration ata meeting.



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10.6 CURATOR BONIS

1. At the first hearing of the application for the appointment of a curator bonis, the only relief

granted is the appointment of a curator ad litem. All other relief is postponed sine die pending receipt

of the curator ad litem’s and the master’s report.

2. The application is re-enrolled after the aforementioned reports have come to hand.

3. Save in exceptional circumstances, which must be established on affidavit, an application for

the appointment of a curator bonis will not be heard if the aforementioned reports have not been filed

in the court file.

4. The consent of both the curator ad litem and the proposed curator bonis must be annexed to

the application.



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10.7 CURATOR AD LITEM

1. Where the appointment of a curator ad litem is sought to assist a litigant in the institution or conduct of

litigation, the applicant must establish the experience of the proposed curator ad litem in the type of

litigation which the litigant wishes to institute or conduct.

2. A consent to act by the proposed curator ad litem must be annexed to the application.

3. In order to preclude giving notice of the application to the prospective defendant, the applicant should

seek that the costs of the application be reserved for determination in the contemplated trial.

4. The order sought should only permit the proposed curator to settle the action with the approval of a

judge.

5. Where the curator ad litem requires the approval of the court to settle the action, the curator ad litem

and plaintiff’s counsel may approach the deputy judge president for the allocation of a judge in

chambers to approve the settlement.



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10.8 ENQUIRIES IN TERMS OF SECTION 417 OF THECOMPANIES ACT 61 OF 1973

1.1 The request that the enquiry be held in secret should be fully motivated. Secrecy will not be ordered

as a matter of course.

1.2 Where application is made to examine a particular witness, it must be shown that the witness in

question has refused to furnish the information required of him or is otherwise unwilling to cooperate

with the liquidator.

1.3 Since the amendment of section 417 which has given the power to the Master to hold the enquiry,

any application to the Court under this section must indicate whether the Master himself has instituted

an enquiry and why it is necessary to apply to Court for this purpose.



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10.9 EVICTION IN TERMS OF THE PREVENTION OF ILLEGALEVICTIONS AND UNLAWFUL OCCUPATION OF LANDACT, 19 OF 1998

1. The application for eviction must be a separate application. The procedure to be adopted

(except in urgent applications) is as follows:

1.1 The notice of motion must follow Form 2(a).

1.2 The notice of motion must allow not less than five days from date of service of the

application for delivery of a notice of intention to oppose.

1.3 The notice of motion must give a date when the application will be heard, in the absence of

a notice of intention to oppose.

2. After the eviction application has been served and no notice of intention to oppose has been

delivered or if a notice of intention to oppose has been delivered at a stage when a date for the

hearing of the application has been determined, the applicant may bring an ex parte interlocutory

application authorising a section 4(2) notice and for directions on service.

3. When determining a date for the hearing of an eviction application, sufficient time must be

allowed for bringing the ex parte application, for serving the section 4(2) notice and for the 14 day

notice period to expire.

4. If the eviction application is postponed in open court on a day of which notice in terms of section 4(2)

was duly given, and if the postponement is to a specific date, it will not be necessary to serve another

section 4(2) notice in respect of the latter date.

5. A number of pro forma orders are attached hereto for the guidance of practitioners. The orders must

be adapted to meet the exigencies of each case.



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10.10 THE HAGUE CONVENTION ON THE CIVIL ASPECTS OFINTERNATIONAL CHILD ABDUCTION ACT 72 OF 1996

Introduction

1. There is a worldwide increase of incidents of crossborder abduction of children. The criminal part

of that phenomenon is regulated by criminal law and intergovernmental treaties in that field of law.

2. The response of the international community to the civil aspects of the phenomenon (which is

commonly inter-parental or familial) was the adoption of the Hague Convention on Civil Aspects of

International Child Abduction. South Africa is a signatory to the convention and has adopted the

convention as part of its national law. In order to respond to its obligations under the convention, the

South African parliament passed Act, No. 72 of 1996 (The Hague Convention on Civil Aspects of

International Child Abduction Act, No. 72 of 1996) which is for the sake of brievity simply herein referred

to as The Hague Convention.

3. Our courts, like other courts in countries that have adopted the convention, have an important role

to play under The Hague Convention. Cases under the convention normally come to court by way of

applications, often in the urgent court, for the return of the abducted child to the country of origin, often

another member country to the convention.

4. The objective of this portion of the Practice Manual is to expedite the handling of all applications under

The Hague Convention. In case of uncertainty legal practitioners should not hesitate to approach the

office of the Deputy Judge President with any difficulties regarding the practical aspects of implementing

this portion of the Manual.

Directive

5. The Judge President or Deputy Judge President shall designate from time to time a judge who shall be

responsible for Hague Convention matters.

6. A judge designated in terms of paragraph 5 above is not the only one who hears The Hague Convention

matters. Such judge shall fulfil the role of gathering relevant information on these matters and shall also

perform the liaison function with judicial officers and Central Authorities in other jurisdictions as and

when the need may arise.

7. Once a file for a matter under The Hague Convention has been opened, the file must, upon issue, be

clearly marked as a Hague Convention matter. The primary duty to mark the file is on the practitioner

acting on behalf of the applicant. If the applicant is not represented the Registrar must assist litigants as

far as is possible.



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8. As a matter of course matters under the Hague Convention are to be dealt with as urgent in nature.

9. After its issue the matter is to follow the following route:

9.1 The court file is to be taken to the Deputy Judge President, who is to allocate a judge to case

manage the matter and ultimately hear it when it is ripe for hearing, irrespective of the court in

which that judge is doing duty when the matter becomes ripe for hearing.

9.2 The judge to whom the application has been allocated shall determine the date and time for

hearing of the application in collaboration with the Deputy Judge President or the most senior

judge on duty and the clerk of that judge shall advise the parties of such date.

9.3 Should any reason have arisen during the course of managing the case, for that judge not to

hear the case, the judge concerned will approach the Deputy Judge President forthwith for

allocation of another judge to urgently hear the matter.



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10.11 LIQUIDATION

1. The applicant should seek a final winding-up order in the notice of motion.

2. The court may nonetheless in the exercise of its discretion grant a provisional order and direct

that service and publication of the provisional order be affected.

3. The service referred to in para 2 could include -

3.1 service of the order on the company or close corporation at its registered office;

3.2 publication of the order in the government gazette;

3.3 publication of the order in a newspaper circulating in the area where the company or close

corporation carries on business;

3.4 service on all known creditors. This will only be ordered where the applicant has ready access

to the identity and address of the creditors. Depending on the information that the applicant has

as to the creditor’s address such service can be ordered to be effected by e-mail, facsimile

transmission or pre-paid registered post.

4. If a provisional order of liquidation is granted, proof of compliance with the service ordered must

be provided on the return date. Such proof is provided by filling an affidavit setting out the manner in

which the ordered service was complied with. The presiding judge will only accept the affidavit of

service from the bar in exceptional circumstances made out in an affidavit.

5. If an extension of the return date of a provisional order of liquidation is sought, the party

seeking such an extension must deliver an affidavit motivating such an extension.

6. Where a company or a close corporation seeks its own winding-up, it is not necessary for the

application or for any provisional order that may be granted to be served on the company or close

corporation.

7. Where the applicant seeking a winding-up order is a shareholder of a company or member of a

close corporation, he shall serve the application on all interested parties, such as a co-shareholder or

joint member. Failing such service the applicant should indicate in the founding affidavit why such

service is not necessary.



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1. Proof of presentation of a negotiable instrument is unnecessary unless presentation is disputed

or the court requires proof thereof.

2. The original liquid document upon which provisional sentence is sought must be handed to the

court when the provisional sentence is sought.



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1. An application for rehabilitation will not be read by the presiding judge, if the master’s report is

not in the court file. The presiding judge will only accept the master’s report from the bar in

exceptional circumstances made out in an affidavit.

2. If the applicant avers that a contribution paid by a creditor has been repaid to the creditor,

adequate proof thereof must be provided.

3. The applicant, as is required by section 127 of Act 24 of 1936, must state what dividend was

paid by the creditors. It is not acceptable to attempt to comply with this requirement by attaching the

distribution account which the presiding judge is expected to analyse and interpret.

4. As the date of the hearing of an application for rehabilitation has been advertised, any

postponement of the application will be to a specific date.



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10.14 REMOVAL OR AMENDMENT OF RESTRICTIONS ONLAND USE

1. This section applies to applications based on the principle that the consent of the holder of a

right to the cancellation or amendment of the conditions embodying his right is to be inferred from the

fact that he does not object to the application, as is discussed in, inter alia, Ex parte Gold 1956 (2) SA

642 (T) and Ex parte Glenrand (Pty) Ltd 1983 (3) SA 203 (W).

2. If follows that the court should be convinced that the holder of the right in question has

knowledge of the application. There should accordingly be service on all persons concerned. Service

under Rule 4(2) of the Rules of Court is authorised by way of exception to the ordinary methods of

service. Full and cogent reasons should therefore be advanced in support of a request under the sub-

rule.

3. The fact – if fact it is – that it might be difficult or costly to ascertain particulars of the persons

concerned, and to effect service on them, is not the most important consideration. The nature and

extent of the curtailment of the rights of affected persons and the need to ensure that they are made

aware of the application, is of greater importance. It follows that the court might distinguish between

persons directly or indirectly affected by such applications, and differentiated service might be

authorised.

4. When the application is presented to court

4.1 it must be proved that the application together with a request to report was in good time served

upon the Registrar of Deeds, any Township Board which is involved and, if possible, a local

authority which is able to comment upon -

4.1.1 the correctness of the facts;

4.1.2 the identity of persons who may have a legal interest or whose refusal of consent could

be adequate reason to refuse the application; and

4.1.3 about the best method of notifying interested parties.

4.2 a plan or map must be attached (if necessary extending beyond the township within which the

property is situated) which will assist the court to ascertain which owners or users (of roads or

of rights) have sufficient interest to make notice appropriate;

4.3 proof must be given of the problems encountered or expected which render normal service on

interested parties or direct notice on them (perhaps in terms of Court rule 4(2)) impractical;



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4.4 The effect of granting the order must be explained since persons affected may by their mere

objection put an end to the application, the order should be so worded as to inform affected

persons that they are free to make their objection, either by written notice to the Registrar or on

the return day, without fear that they will be mulcted in costs.

10.15 REQUESTS FOR PERMISSION TO FILM OR RECORDJUDICIAL PROCEEDINGS

Requests for permission to film or record judicial proceedings are received from time to time. In order to

standardize the procedure, the guidelines set forth hereunder are provided.

1. It is hereby emphasized that no person may film or electronically record judicial proceedings without

the prior permission of the presiding judge. The granting and the terms of any such permission is

within the discretion of the presiding judge. The permission may be withdrawn and the terms thereof

altered at any time by the presiding judge.

2. Any party who wishes to film or electronically record judicial proceedings must request permission

from the presiding judge (through his or her secretary) at the earliest and at least 24 hours

beforehand. The secretary will then establish from the presiding judge whether permission is given

and, if so, on what terms.

3. It is a healthy practice for the party wishing to film or record proceedings to obtain and furnish the

judge with comments of known interested and affected parties at the time when the request is made.

4. The presiding judge may, before granting or refusing permission or setting terms, ascertain whether

there are any objections from interested and affected parties.

5. The following terms for permission to film or record judicial proceedings serve as guidelines only,

which the presiding judge in his or her discretions may or may not follow:

5.1 Equipment limitations:

a. Video: The media may install two small man-operated cameras, both on tripods and

together with the necessary microphones, in the court; no film, video tape or lenses may

be changed whilst the court is in session.

b. Audio: The media may install their own audio recording system provided this is

unobstructive and does not interfere with the proceedings. Individual journalists may

bring tape recorders into the court room for the purposes of recording the proceedings

but changing of cassettes is not permitted while the court is in session.

c. Still cameras: Only one photographer will be allowed; the location of the camera may not

be changed. No changing of lenses or film is permitted while the court is in session.



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d. Lighting: No movie lights, flash attachments or artificial lighting devices are permitted for

filming court proceedings.

e. Operating signals: no visible or audible light or signal may be used on any equipment.

f. Only two video camera operators and one still camera operator may be present in court

during the proceedings.

g. All camera, video and audio equipment must be placed in a fixed, unobstructive position

in the court and must be in position at least 15 minutes before the start of the

proceedings. The equipment must be operated to minimise any distraction whilst the

court is in cession, and may be moved or removed only when the court is not in session.

Cameras, cables and the like must not interfere with the free movement inside the court.

h. Any problems which may arise during the recording of proceedings must be attended to

during adjournments only.

5.2 Use of recordings:

a. Recordings may be used only in the form of edited highlights packages for delayed

broadcasting in news bulletins and in programs relating to current affairs or matters of

public interest.

b. The highlights packages must present a balanced and fair reflection of the proceedings.

c. The media must focus its recordings primarily on counsel arguing the matter, and/or on

the judge/s presiding.

5.3 Pooling Arrangements:

a. Only one media organisation may conduct the video, sound and still photography

activities.

b. The media organisation must be selected by the media themselves. It must operate an

open and impartial distribution scheme. The footage, sound or photographs must be

distributed in a ‘clean’ form, that is with no visible logos etc relating to any media

organization, and must be archived in a manner which makes it freely available to other

media.

c. If no agreement amongst media organisations can be reached on these arrangements,

no audio, video or still photography coverage may take place.

d. All constraints imposed by the Broadcasting Act No 4 of 1999 and by the code of

conduct of the Broadcasting Complaints Commission of South Africa will apply.



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5.4 Behaviour of media representatives:

a. The conduct of all media representatives must be consistent with the decorum and

dignity of the court.

b. No identifying names, marks, logos or symbols may be used on any equipment or

clothing worn by media representatives.

c. All media representatives (including camera crew) must be appropriately dressed.

5.5 Further directions:

a. The Court may give further directions as it deems appropriate, including directions that

portions of the proceedings may not be recorded, or that already recorded portions of

the proceedings may not be publicized or distributed, and must be deleted.

b. The Court may at any stage suspend the filming or recording process if it regards the

process to be disruptive of the proceedings.

5.6 There is an absolute bar on:

a. Recording (whether video or audio) of bench discussions;

b. Audio recording or close-up photography of matters of a private, confidential or

privileged nature which may ensue between counsel, the attorneys and the parties.

c. Close-up photography of judges, lawyers or litigants in court;

d. Recording (whether video or audio) which intrudes upon the privacy of the judges,

litigants, legal representatives and members of the public present at the proceedings.

e. The use of recordings (whether video or audio) for commercial or political advertising

purposes;

f. The use of sound bytes without the prior consent of the presiding judge. This does not

apply to extracts from judgments or orders.

6. The following court decisions are relevant to the filming, electronic recording and broadcasting of

judicial proceedings:

SA Broadcasting Corporation Ltd v Thatcher, [2005] 4 All SA 353 (C)

SA Broadcasting Corporation Ltd v National Director of Public Prosecutions 2007 (1) SA 523

(CC)



206

7. Failure to comply with this practice directive and with the terms of any permission to film or

electronically record judicial proceedings may lead to contempt of court charges.



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10.16 SEQUESTRATION

1. In an application for sequestration, unless leave to proceed by way of substituted service has

been granted, personal service of the application must be effected on the respondent.

2. Unless the court directs otherwise in terms of section 11 (2) of Act 24 of 1936, the provisional

order of sequestration must be served on the respondent personally.

3. If an extension of a provisional order of sequestration is sought, the party seeking such an

extension must deliver an affidavit motivating such an extension.

4. If the applicant fails to establish that the application is not a so-called “friendly” sequestration

the following will apply:

4.1 Sufficient proof of the existence of the debt which gives rise to the application must be provided. The

mere say so of the applicant and the respondent will generally not be regarded as sufficient.

4.2 The respondent’s assets must be valued by a sworn appraiser on the basis of what the assets

will probably realise on a forced sale. Mere opinions, devoid of reasoning as to what the assets

will probably realise, will not be regarded as compliance herewith. The valuation must be made

on oath and the appraiser must be qualified as an expert witness in the normal manner.

4.3 Where the applicant seeks to establish advantage to creditors by relying on the residue

between immovable property valued as aforesaid and the amount outstanding on a mortgage

bond registered over the immovable property, proof of the amount outstanding on the mortgage

bond at the time of the launching of the application is required. The mere say so of the

applicant and the respondent will generally not be regarded as sufficient.

4.4 Where the applicant seeks to establish advantage to creditors by relying on a sum of money

paid into an attorney’s trust account to establish benefit for creditors, an affidavit by the attorney

must be attached to the application in which he confirms that the money has been paid into his

trust account and will be retained there until the appointment of a trustee.

4.5 In establishing advantage to creditors the following sequestration and administration costs will

be assumed in an uncomplicated application:

4.5.1 Cost of application – R 6000

Cost of application if correspondent utilised – R 8000 (if the applicant’s attorney of

record has agreed to limit fees proof thereof must be provided).



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4.5.2 The aforementioned costs are assumed to increase by R 700 for every postponement

of if the application or if the provisional order has to be furnished to all known creditors,

the aforementioned costs are assumed to increase to R 700.

4.5.3 The cost of administration, subject to a minimum of R 2500 are:

4.5.3.1 1% plus VAT on cash or money in a financial institution

4.5.3.2 3% plus VAT on immovable property and shares

4.5.3.3 10% plus VAT on movable property including book debt

4.5.4 Other administration costs include sheriff fees (Schedule 3 of Act 24 of 1936) and the

cost of security.

4.5.5 The aforementioned costs do not include the costs of the realisation of the asset. The

cost must be established unless evidence to the contrary is placed before the court, it

will be assumed that the cost of the realisation of immovable property is 6% of the

selling price plus advertising charges.

4.5.6 Regard being had to the costs set out in para 4.5.5, the applicant must in the

application set out a calculation indicating the probable dividend to concurrent

creditors.

4.6 Where the application is brought as an urgent application with the purpose of staying a sale in

execution, notice of the application must be given to the judgement creditor. In addition the applicant

must set out facts to enable the court to determine that the assets which are to be sold at the sale in

execution will realise more, if sold privately.

4.7 Notwithstanding para 3 above, a court will be reluctant to grant an extension of a return date in a

“friendly” sequestration.



209

CHAPTER 11 LEAVE TO APPEAL IN CIVIL MATTERS

1. An application for leave to appeal must be filed with the registrar in charge of civil appeals.

2. If the judgment in respect of which leave to appeal is sought was not handed down in typed

form when the judgment was delivered, the applicant shall forthwith take the necessary steps to

cause the judgment to be transcribed. All the other parties to the application for leave to appeal shall

forthwith in writing be informed of the steps taken by the applicant in this regard.

3. If the applicant does not within three days of the service of the application for leave to appeal

take the necessary steps to cause the judgment to be transcribed, the respondent’s legal

representatives may take the necessary steps to ensure that the judgment is transcribed. All the other

parties to the application for leave to appeal shall forthwith in writing be informed of the steps taken by

the respondent in this regard.

4. If the judgment was handed down in typed form, or after the judgment has been transcribed, it

may be placed in the court file and the applicant may apply by letter to the registrar in charge of civil

appeals for the allocation of a date for the hearing of the application for leave to appeal. In the event

of the parties agreeing thereto, three alternative dates may be set out in the letter, being dates upon

which the parties’ counsel are available to argue the application for leave to appeal. The applicant

must forthwith forward a copy of this letter to all the other parties to the application for leave to appeal.

5. If the applicant does not apply for the allocation of a date for hearing of the application for leave

to appeal within a period of 7 days after the judgment has become available, the respondent may so

apply. The application is made by directing a letter to the registrar in charge of civil appeals. At the

same time the respondent must place a copy of the judgment in the court file. The respondent must

forthwith forward a copy of the letter to all the other parties to the application for leave to appeal

6. Once the registrar in charge of civil appeals is in possession of -

6.1 the application for leave to appeal,

6.2 the judgment and

6.3 the letter requesting a date for the hearing of the application

the aforesaid registrar will submit the relevant court file to the secretary of the judge who delivered the

judgment. The secretary of the judge will endorse the date and time on which the application for leave

to appeal is to be heard. The judge’s secretary will return the file to the aforesaid registrar.

7. The registrar in charge of civil appeals shall thereupon notify the parties of the date and time so

determined and shall enrol the matter accordingly. Thereafter the aforesaid registrar shall return the

court file with proof of notification of the date and time of the hearing to the secretary of the judge who

delivered the judgment and shall confirm that the application has been enrolled.



210

8. Applications for leave to appeal are normally enrolled for 09h30. It is anticipated that the

application including judgment thereon will be concluded by 10h00. If the parties or any one of them

envisage the application taking longer than half an hour to be concluded, a statement to this effect

must be made in the letters referred to above. In such a case the presiding judge may determine

another time for the hearing of the application for leave to appeal.

9. If none of the parties to the application for leave to appeal apply to the registrar for the

allocation of a date for the hearing of the application for leave to appeal, the registrar in charge of civil

appeals will submit the relevant court file to the clerk of the judge who delivered the judgment. The

aforesaid registrar shall indicate the parties’ failure to comply with the aforegoing and request a date

for the hearing of the application for leave to appeal. The clerk of the judge will endorse the date and

time on which the application is to be heard. The judge’s clerk will return the court file to the aforesaid

registrar. Thereafter the practice set out in paragraph 7 shall be followed.

10. The convenience of counsel is not conclusive in the determination of a date for the hearing of

an application for leave to appeal.



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CHAPTER 12 UNOPPOSED DIVORCE ACTION

1. Prior to the closure of the roll, the legal representative who enrolled the matter must determine that

the court file contains all the relevant pleadings, notices and returns of service. The legal

representative must further ensure that the court file is properly paginated, indexed and bound.

Documents will only be accepted from the bar in exceptional circumstances which must be

established on affidavit.

2. The pleadings, notices and returns of service referred to in the previous paragraph must all be

originals. If any one is not an original, an affidavit must be included in the documents explaining why

the original is not in the court file and proving that the copy is a true copy of the original. Where the

summons is not the original summons, the affidavit must additionally prove that the original summons

was properly signed and stamped when issued. In such a case the presiding judge will determine if

the matter can proceed in the absence of the original pleadings, notices and returns of service.

3. If a copy of a marriage certificate is utilised to prove the marriage, the copy must have been certified

as a true copy of the original.

4. Where the party proving the marriage requires return of the original or certified marriage certificate, a

copy thereof must be available to be placed in the court file at the hearing.

5. In the event that the parties have concluded an agreement of settlement, the original agreement of

settlement must not be placed in the court file. The original agreement must be handed up through

the witness proving its conclusion.

6. A divorce roll consists of no more than 50 matters. If a matter is not on the printed roll it will not be

enrolled save in exceptional circumstances which must be made out on affidavit.

7. In order to enrol the matter, the form known as the J 118 must be properly completed. The following

must appear on a document attached to the J 118:

7.1 The date of service of the summons,

7.2 The dies induciae allowed in the summons,

7.3 The date when the dies induciae lapsed,

7.4 A statement that no intention to defend was given,

7.5 Alternatively to 7.1 TO 7.4, the date when the opposing parties claim or plea and if applicable

counterclaim was withdrawn.

8. A matter may not be enrolled prior to the expiry of the dies induciae even if the dies induciae will have

expired by the time the matter is heard.



212

9. Any amendment to the pleadings must be sought in writing. If the amendment is granted the judge’s

clerk must note the order on the court file. The notation of the order will, in so far as the amendment

may relate to the parties’ names and the spelling thereof, draw the attention of the registrar’s office

thereto and ensure that any court order will correctly reflect the parties’ names.

10. Subject to the discretion of the presiding judge the evidence necessary for the grant of a decree of

divorce may be presented on affidavit provided that -

10.1 the affidavit proves that no child was born to or adopted by the parties to the marriage, or, if

there was that such child is over the age of 18 years;

10.2 all financial matters between the spouses have been settled in a signed written agreement

which is identified in and attached to the affidavit, or if the only order to be sought in regard to

financial matters is division of the joint estate or forfeiture of the benefits of the marriage in

community of property;

10.3 all the necessary evidence is set out in the affidavit. (In this regard it is emphasised that primary

facts and not conclusion of fact are required);

10.4 the affidavit is attached to the notice of enrolment.



213

CHAPTER 13 JUDGE IN CHAMBERS

1. Counsel who wishes to see a judge in chambers should approach the relevant judge’s clerk. If

the relevant judge’s clerk is not available, another judge’s clerk may be approached. If no judge’s

clerk is available the court usher may be approached.

2. The judge’s clerk or usher will advise counsel if and when the meeting with the judge will take

place.

3. Where counsel seek to see a judge in chambers, all counsel in the matter must be present. In

view hereof it is not advisable for counsel to see a judge in chambers where one or more of the

parties are not represented by counsel.

4. It is not necessary for counsel who appear in a trial allocated to a particular judge, to see that

judge in chambers prior to the commencement of the trial, other than for the purpose of introducing

themselves to the judge, if they have not already done so.



214

CHAPTER 14 JUDGES’ CLERKS

1. The duties of judges’ clerks are set out in a manual which is made available to each judge’s

clerk on his or her appointment.

2. The judges’ clerks must familiarise themselves with their functions as set out in the practice

manual.

3. Court orders must be carefully and correctly noted by the judges’ clerks on the court file. If a

draft order is made an order of court, judges’ clerks must staple the draft order onto the inside of the

front cover of the court file. If the draft order provides for the postponement of the matter or for the

extension of a rule nisi, the date to which the matter is postponed or the extended return date must be

noted on the court file.

4. If a judge has marked a judgment as reportable the judge’s clerk must hand a printed copy and

an electronic copy of the judgment to the head librarian. The head librarian will arrange for the

reporting of the judgment. The indication on the judgment that it is reportable must be signed in

original on the copy of the judgment handed to the head librarian.

5. If a judge has marked a judgment as being of interest to other judges, a printed copy thereof

bearing such indication signed by the judge in original must be handed by the judge’s secretary to the

head librarian. The head librarian will arrange for the distribution of the judgment to the judges of the

division.

6. The judges’ clerk must hand a copy of every printed and signed judgment of his/her judge to

the head librarian who shall compile and retain an electronic collection of all judgments delivered in

the South Gauteng High Court (Johannesburg), once such judgments have been printed and signed

by the judges.

7. When a judge is sitting in the trial court and a matter has been allocated to the judge, the

relevant judge’s clerk must notify the clerk of the Deputy Judge President by e-mail -

7.4 immediately after the hearing of the matter has been concluded;

7.5 whilst the matter continues, on adjournment each afternoon, that the matter will continue

the next morning;

7.6 the estimated further duration of the matter.

The e-mail must also contain the name of the judge hearing the matter, the parties’ names and the

case number.Practice Manual 108 January 2010


215

CHAPTER 15 OPENING OF COURT FILES

1. Papers which commence a proceeding (including an appeal and a rule 43 application) must be

accompanied by an “opening sheet” which will facilitate the registration of the proceedings by the

registrar of the court. The “opening sheet” must follow the format of annexure “ ” hereto and must

contain the information required thereto.

2. If the parties or any one of them in the proceedings is a natural person, the parties’ surnames

must precede the parties’ given names in the opening sheet and in all subsequent pleadings,

affidavits and documents relating to the proceedings.

3. Each proceeding is allocated a distinctive case number by the registrar in all proceedings.

Except for appeals, the distinctive number follows the reference to the year in which the proceeding

was registered (eg 2008/7235). In appeals the procedure is reversed and the distinctive number

precedes the reference to the year in which the proceeding was registered (eg. 2008/7235).

4. An application for leave to appeal retains the case number of the matter in which leave to

appeal is sought.



216

ANNEXURE TO CHAPTER 15

IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG

Case No.:____________

In the matter:

Applicant

and

First Respondent

Second Respondent

Third Respondent

(The form must be adapted depending on the nature of the matter)



217

CHAPTER 16 STANDARD ORDER

1. To facilitate the printing of the court orders certain standard orders have been devised. Where

practical practitioners should seek relief in terms of the standard orders.

2. Any deviation from the standard order must be motivated either in the court papers or by counsel at

the hearing of the matter.

3. The standard orders that are annexed hereto are:

16.1 Default judgment granted by registrar

16.2 Summary judgment

16.3 Provisional sentence

16.4 Default judgment by court

16.5 Absolution from the instance

16.6 Edictal citation

16.7 Substituted sentence

16.8 Rule 43

16.9 Divorce with settlement agreement

16.10 Divorce without settlement agreement

15.11 Post nuptial registration of a contract

15.12 General order for discovery

15.13 Agreement of settlement

15.14 Rule nisi

15.15 Restrictive conditions on land

15.16 Unallocated order

15.17 Provisional sequestration

15.18 Final sequestration

15.19 Rehabilitation

15.20 Surrender

15.21 Provisional liquidation

15.22 Final liquidation

16.23 Discharge of provisional sequestration or liquidation

16.24 Section 311



218

16.25 Judicial Management

16.26 Leave to appeal

16.27 Order on appeal

16.28 Order in terms of Rule 39 (22)

16.29 Admission of translator



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16.1 DEFAULT JUDGMENT GRANTED BY THE REGISTRAR


CASE NO:PH NO:


PLAINTIFF

and

DEFENDANT

HAVING read the documents filed of record and having considered the matter:-

DEFAULT JUDGMENT is granted against the for:

1. Payment of the sum of ……………….

2. Interest

3.

4. The following property is declared executable:

BY THE COURT

__________REGISTRAR



220

16.2 SUMMARY JUDGMENT


CASE NO:PH NO:



PLAINTIFF

and

DEFENDANT

HAVING read the documents filed of record, heard counsel and having considered the matter:-

SUMMARY JUDGMENT is granted against the for:

1. Payment of the sum of ………………….

2. Interest on the sum of………………….at the rate of……….per annum from……………….to date ofpayment

3. Costs of suit

BY THE COURT




221



CASE NO:PH NO:



PLAINTIFF

and

DEFENDANT


PROVISIONAL SENTENCE is granted against the Defendant for:

1. Payment of the sum of …………………

2. Interest on the sum of ……………….. at the rate of ……….. per annum from ……………….. to dateof payment

3. Costs of suit

4. The following property is declared executable:

BY THE COURT




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16.4 DEFAULT JUDGMENT BY COURT


CASE NO:PH NO:



PLAINTIFF

and

DEFENDANT


DEFAULT JUDGMENT is granted against the Defendant for:

1. Payment of the sum of ……………….

2. Interest on the sum of ……………… at the rate of ………… per annum from …………… to date ofpayment

3. Costs of suit

BY THE COURT

__________REGISTRAR



223

ABSOLUTION FROM THE INSTANCE


CASE NO:PH NO:

E THE HONOURABLE JUDGE

atter between:-

PLAINTIFF

DEFENDANT

read the documents filed of record, heard counsel and having considered the matter:-

URT ORDERS THAT:

Absolution from the instance be granted to the Defendant

The Plaintiff is ordered to pay the costs of the action

COURT

____RAR


224

16.6 EDICTAL CITATION


CASE NO:PH NO:



APPLICANTand

RESPONDENT


THE COURT ORDERS THAT:

1. Leave is granted to the applicant to sue the abovementioned respondent by way of edictal citationfor the following relief:-

2. The citation must be served on the respondent ……………..

3. The respondent is to be afforded …………. (days) within which to enter appearance to defend


BY THE COURT



225

16.7 SUBSTITUTED SERVICE


CASE NO:PH NO:



APPLICANTand

RESPONDENT



1. Leave is granted to the applicant to serve the summons in which the applicant claims:1.11.2

by way of substituted service

2. Service of the summons must be effected by …………………..

3. The respondent is to be afforded ……………(days) within which to enter appearance to defend


BY THE COURT

__________REGISTRAR



226

16.8 RULE 43


CASE NO:PH NO:



APPLICANTand

RESPONDENT

HAVING read the documents filed of record,heard counsel and having considered the matter:-


1. ………………. is ordered to pay maintenance to ……………… in the amount of R…………… permonth.

2. (a) …………….. is awarded care and primary residence of the minor children born out of themarriage.

(b) ……………. shall be entitled to reasonable contact to the said minor children, which accessshall include:-

(i) ………..(ii) ………..

(c) ……………. is ordered to pay maintenance to ………….. in respect of the aforesaid minorchildren in the amount of R………… per month per child.

3. …………….. is ordered to make a provisional contribution to ………….legal costs pendent elite inmonthly instalments in the amount of R……………

4. The payments referred to above will commence on or before the …………. day of …………..200….and shall thereafter be made on or before the …….. day of each succeeding month.


BY THE COURT

_______________



227

REGISTRAR

16.9 DIVORCE WITH SETTLEMENT AGREEMENT


CASE NO:PH NO:



PLAINTIFF

and

DEFENDANT



1. The marriage between the Plaintiff and Defendant is dissolved.

2. The Deed of Settlement (marked “ “) is hereby made an order of Court.

BY THE COURT

__________REGISTRAR



228

16.10 DIVORCE WITHOUT SETTLEMENT AGREEMENT


CASE NO:PH NO:



PLAINTIFF

and

DEFENDANT



1. The marriage between the Plaintiff and Defendant is dissolved.

2. …………….... is awarded care and primary residence of the minor children……………………….

3. The other parent shall be entitled to reasonable contact to the said children which contact shallinclude:

4. ……………… is ordered to pay maintenance to …………….. in the amount of …………… permonth.

5. ……………… is ordered to pay maintenance in respect of the minor children at the rate of ………..

6. The Defendant is ordered to pay the costs of the action.

BY THE COURT

__________REGISTRAR



229

16.11 POST NUPTIAL REGISTRATION OF A CONTRACT


CASE NO:PH NO:



FIRST APPLICANT

and

SECOND APPLICANT



1. The applicants are given leave to effect the execution and registration of a notarial contract, a draftwhereof is annexed to the application, which contract will after registration thereof regulate theirmatrimonial property system;

2. The Registrar of Deeds is authorised to register the said notarial contract;

3. This order-

3.1 will lapse if the notarial contract is not registered by the Registrar of Deeds within twomonths of the date of the granting of this order;

3.2 will not prejudice the rights of any creditor of the applicants as at date of registration of thecontract.

BY THE COURT

__________REGISTRAR


230

16.12 GENERAL ORDER FOR DISCOVERY


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



1. …………………… shall make discovery of the following documents on affidavit within …………..from the date of the granting of this order;

2. The costs of this application are to be paid by ………………………………………………………….

BY THE COURT

__________REGISTRAR


231

16.13 AGREEMENT OF SETTLEMENT


CASE NO:PH NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED:-

1. THAT the Agreement of Settlement marked “X” is made an order of court.

BY THE COURT

__________REGISTRAR



232

16.14 RULE NISI


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



1. A rule nisi is issued calling upon the respondent to show cause on Tuesday …… day of (month andyear) 9:30 or so soon thereafter as the matter may be heard why an order should not be made inthe following terms:-

1.11.21.3

2. Pending the return day the respondent is interdicted from:

2.12.2

BY THE COURT

__________REGISTRAR


16.14 RULE NISI


233

16.15 RESTRICTIVE CONDITIONS ON LAND


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



1. A rule nisi is issued calling on any interested persons who may choose to do so, to object either byletter received by the Registrar before…………., or by personally or through counsel appearing incourt on ………………. at 09:30 against the granting of the following order:-1.11.21.3

2. Any person who has a right which may be affected is entitled to object to the granting of such anorder, and may do so without incurring liability for costs. If he opposes by writing a letter to theRegistrar, the objector must state the objector’s full names, identity number and address anddescribe the property or right which will be affected by the grant of the order.

3. The order sought will be the following effect:

The papers in this matter are open for inspection without charge at the office of the Registrar, HighCourt, Von Brandis Square, Prichard Street, Johannesburg, and at the offices of applicant’sattorney:-Messrs.of

5. Service is to be effected:-5.1 by the despatch of a copy of the order by prepaid post before …………… to the following

persons -at the addresses set out alongside their names

6. A copy of the order, in two official languages, is to be exhibited on a prominent part of the publicnotice board at the office of the …………… for a period of four weeks from ……………..

7. Copies of the order in two official languages are to be exhibited at conspicuous placesat……………..

BY THE COURT




234

16.16 UNALLOCATED ORDER


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



BY THE COURT




235

16.17 PROVISIONAL SEQUESTRATION


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



1. The estate of the respondent is placed under provisional sequestration.

2. The respondent and any other party who wishes to avoid such an order being made final, are calledupon to advance the reasons, if any, why the court should not grant a final order of sequestration ofthe said estate on the …………….. day of ………………. at 09:30 or as soon thereafter as thematter may be heard.

BY THE COURT

__________REGISTRAR


236

16.18 FINAL SEQUESTRATION


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



1. The estate of the respondent is placed under final sequestration.

BY THE COURT

__________REGISTRAR


237



CASE NO:PH NO:


In the application of:-

APPLICANT



The abovementioned applicant be and is hereby rehabilitated.

BY THE COURT

__________REGISTRAR



238

16.20 SURRENDER


CASE NO:PH NO:


In the application of:-

APPLICANT



The surrender of the estate of the Applicant is accepted as insolvent and the estate is placed undersequestration in the hands of the Master of the High Court.

BY THE COURT

_____________REGISTRAR



239

16.21 PROVISIONAL LIQUIDATION


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



1. The above mentioned respondent is hereby placed under provisional winding up.

2. All persons who have a legitimate interest are called upon to put forward their reasons why thiscourt should not order the final winding up of the respondent on ……………… at 09:30 am or sosoon thereafter as the matter may be heard.

3. A copy of this order be served on the respondent at its registered office.

4. A copy of the order be published forthwith once in the Government Gazette.

5. A copy of this order be forthwith forwarded to each known creditor by prepaid registered post or byelectronically receipted telefax transmission.

BY THE COURT

__________REGISTRAR


240

16.22 FINAL LIQUIDATION


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



1. That the above mentioned respondent is hereby placed under final winding up.

BY THE COURT

__________REGISTRAR


241

16.23 DISCHARGE OF PROVISIONAL SEQUESTRATIONOR LIQUIDATION


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



1. The order of provisional ……………….. is set aside.

2. The rule nisi is discharged.

BY THE COURT

__________REGISTRAR



242

16.24 SECTION 311


CASE NO:PH NO:



APPLICANTand

RESPONDENT


IT IS ORDERED:-

1. That a meeting in terms of section 311 (1) of the Companies Act, 61 of 1973 (the Act) of:1.1 the secured creditors;1.2 the preferred creditors; and1.3 the concurrent creditors.

be convened by the chairperson for the purpose of considering by way of casting votes theacceptance, with or without modification, of the Offer of Compromise which is an Annexure to theapplication.

2. That ………… or in the event of unavailability ……………. is appointed as Chairperson of the saidmeeting with power to determine the date and place of the meeting and to adjourn the meetingwhen it appears to be appropriate.

3. That the chairperson shall comply with part ……….. of the Practice Manual and enrol the matter forfinalisation on …………….

4. That a creditor who desires to make use of proxy should use the prescribed form

5. That to entitle him to vote a creditor who did receive the documents sent by the chairperson, mustlodge each in a form which complies with section 366 (1) (a) of the Companies Act, 1973 with thechairperson at his office not later than 24 (twenty four) hours before the meeting.

6. That a creditor who did not receive such papers may become entitled to vote if he, before thecommencement of the meeting, hands to the chairperson an affidavit in which he confirms that hedid not receive those papers and that he is a creditor, stating the amount and the nature of hisclaim.

7. That during normal business hours, a creditor is entitled, free of charge, to inspect a copy of theapplication, of the said offer of compromise, and of the list statement in terms of section 312 (1) and312 (2) of the said Act, at the office of the chairperson (namely ………...) and there to obtain a freecopy of the required proxy.

8. That the chairperson shall post to any creditor who so requests a copy of the statement in terms ofsection 321 (1) and 321 (2).

BY THE COURT___________



243


8. That the chairperson shall post to any creditor who so requests a copy of the statement in terms ofsection 321 (1) and 321 (2).

BY THE COURT___________

REGISTRAR


244

16.25 JUDICIAL MANAGEMENT


CASE NO:PH NO:



APPLICANT

and

RESPONDENT


IT IS ORDERED:-

1. That the respondent is hereby placed under provisional judicial management in terms of Act 61 of1973.

2. That while this order is in force the respondent is under judicial management, subject to thesupervision of the Court, of a provisional judicial manager or managers appointed by the Master.

3. That as from today any other person or persons vested with the management of the respondent’saffairs be divested thereof.

4. That the provisional judicial manager or managers discharge the duties prescribed by section 430of Act 61 of 1973.

5. That the provisional judicial manager or managers appointed by the Master be empowered withoutthe authority of the shareholders but subject to the authority of creditors and the Master to borrowmoney with or without security on behalf of the respondent for the purpose of paying essentialrunning expenditure in and about the business of the respondent including salaries, wages andpremises rental for business required by the respondent and to pledge the credit of the respondentfor any goods or services required.

6. That while the respondent is under provisional judicial management all actions, proceedings, theexecution of all writs, summonses and other processes against the respondent be stayed and benot proceeded with without leave of this Court being obtained.

7. That the rate of remuneration of the provisional judicial manager or managers be fixed by theMaster in accordance with the services rendered and disbursements incurred, or should the Masterso request, the said rate of remuneration shall be fixed by the Court after the Master has reportedthereon.

8. That a rule nisi is hereby issued calling upon all persons concerned to appear and to show cause, ifany, to this Court on ………………..

8.1 why a final judicial management order should not be granted;

8.2 why the following directions should not be included in the said order –Practice Manual 138 January 2010


245

8.2.1 that the management of the respondent shall vest, subject to the supervision of theCourt,, in the final judicial manager or managers.

8.2.2 that the provisional judicial manager or managers shall forthwith hand over allmatters, and account for his or their administration of the property, business andaffairs of the respondent to the final judicial manager or managers;

8.2.3 that the provisional judicial manager or managers may be discharged from theirduties, but that he or they remain obliged to account to the final judicial manager ormanagers as aforesaid,and to the Master;

8.2.4 that the provisions of Paragraph 5, 6 and 7 hereof, should apply mutatis mutandis;

8.2.5 that the final judicial manager or managers discharge the duties prescribed bysection 433 of Act 61 of 1973;

8.3 and why the costs of this application should not be costs in the judicial management.

9. That this order be published forthwith in each of the Government Gazette and ……………………..newspaper.

10. That a copy of this order be sent by prepaid registered post to the known creditors of therespondent.

11. That service of this order be effected upon the ………………… at its registered office.

BY THE COURT

__________REGISTRAR



246

16.26 LEAVE TO APPEAL


CASE NO:PH NO:



APPLICANT

and

RESPONDENT



1. Leave to appeal is granted.

2. Leave is granted to appeal to the Supreme Court of Appeal/the Full Court of this division.

3. The costs of this application are costs in the appeal.

BY THE COURT

__________REGISTRAR



247

16.27 ORDER ON APPEAL


CASE NO.:

PH NO.:


In the matter between:

APPELLANT

and

RESPONDENT

HAVING read the documents filed of record, heard counsel and having considered the matter.

IT IS ORDERED THAT

1. The appeal is upheld / dismissed

2. The order of the court a quo is set aside and substituted with the following order:

(Set out order if the appeal is upheld)

3. The respondent / appellant is ordered to pay the costs of the appeal.

BY THE COURT

__________REGISTRAR


248

16.28 ORDER IN TERMS OF RULE 39 (22)


CASE NO:PH NO:



PLAINTIFF

and

DEFENDANT



1. The matter is transferred to the magistrate court for the area in terms of Rule 39 (22).

2. The costs incurred to date are costs in the cause.

BY THE COURT

__________REGISTRAR


249

16.29 ADMISSION OF TRANSLATOR


CASE NO:PH NO:


In the ex parte application of:-

APPLICANT

HAVING read the documents filed of record, heard counsel and having heard the application:-


1. The proper officer places the name of the applicant on the roll of translators for translations from

………………. to ………………. and from ………………….. to ……………………..

BY THE COURT

__________REGISTRAR



250

CHAPTER 17 USHERS

1. The standards that are expected of ushers in the performance of their court duties as described

in that job description are set out hereunder.

2. While in attendance in court, ushers should be neatly and appropriately dressed. The

appropriate dress code is the following:

2.1 Male ushers should be dressed in shoes, socks, dark long trousers, white shirt with buttoned collar,

and a sober tie.

2.2 Female ushers should be dressed in shoes, dark skirt or long trousers, and a white, collared

blouse.

2.3 All ushers are required to wear a black gown which must be in a proper state of repair. Gowns

are issued by the registrar, and each usher is responsible to ensure that the gown remains in

his possession, and is properly cared for. If a gown is lost, the usher concerned will be

responsible for the cost of replacement. If a gown becomes unduly worn, it must be returned to

the registrar, and will be replaced.

3. Ushers must adhere to the duty roster issued by the registrar unless a departure from the roster

has been arranged with the chief registrar. A copy of the roster for the week will be circulated to all

judges at the commencement of the working week.

4. The working hours of ushers are from 8h00 am to 4h15 pm, and they should make their

transport arrangements accordingly. Working hours may not be altered without prior arrangement with

the chief usher and the judge concerned.

5. An usher will present himself or herself at the chambers of the judge to whom he or she has

been allocated at 09h30 am each day in order to determine what may be required of him or her in

order to ensure that the court commences at 10h00 am. The usher will thereafter attend the court

concerned. Once the court is ready to convene he or she will report at the chambers of the judge

concerned in sufficient time to enable the court to convene at 10h00 am. If a court is not ready to

convene by 10h00 am the usher will immediately report the fact to the judge concerned.

6. Ushers will remain in court, and will remain alert, throughout the court session.

7. An usher who has been allocated to perform duties in two courts must inform the clerks of both

judges accordingly. If the usher is performing duties in a trial court and in an appeal court, the usher is

required to remain in attendance at the trial court, unless specific arrangements to the contrary have

been made by the judges concerned, and conveyed to the usher.

8. If the court session has not been completed by 3h55 pm, the usher may leave the court at that

time in order to complete his or her other duties before the end of the working day.Practice Manual 144 January 2010


251

9. Ushers must at all times conduct themselves in a manner which enhances the dignity of the

court which they serve. Ushers are also entitled to be treated with due dignity by clerks and judges

alike. Any complaint that an usher might have in that regard should be reported to the chief usher,

who will deal with the matter accordingly.



252

ANNEXURE NOTICE OF SCHEME MEETING

In the ex parte application of

XYZ Limited (Registration number 05/30021/06) Applicant

Under authority of an Order of the South Gauteng High Court, Johannesburg (“the Court”) issued in the

above matter on 11 January 2000, this notice serves to convene a meeting of shareholders of the applicant,

other than ZYX, who are registered as such at the close of business on Thursday, 17 January 2000 (“the

scheme members”).

The meeting will be held at 10h00 on Friday, 25 January 2000, at . . . , Johannesburg. (Mention ONE

person only) . . . has been appointed by the Court as chairperson and the chairperson’s offices are at . . .

(state that chairperson’s address).

The purpose of the meeting is to consider and, if deemed fit, to agree (with or without modification) a

scheme of arrangement. Its basic characteristic is that, subject to the fulfilment of certain conditionsprecedent which are stated in paragraph Z of the scheme, XYZ will take over all shares of schememembers who are registered members on 17 January 2000, at a price of R qqq per share which ispayable on 1 March 2000.

A copy of the scheme, the statement in terms of section 312(1) of the Companies Act, 1973, which explains

the scheme, this notice, the approved form of proxy, and the Order of Court convening the scheme meeting

have been sent to the scheme members. A scheme member may, during normal business hours, inspect or

obtain a copy of those documents free of charge at . . . and at the said office of that chairperson.

Each scheme member may personally or through proxy attend, speak and vote at the meeting. An

acceptable proxy, duly signed, must be received at the chairperson’s office not later than 10h00 on

Thursday, 24 January 2000 or be handed to the chairperson more than 10 (ten) minutes before the time for

commencement of the meeting.

The Order of Court requires the chairperson to report on the meeting to the above Honourable Court at

10h00 or so soon thereafter as counsel may be heard on Tuesday, 22 February 2000. During normal

business hours in the week preceding that date a free copy of the chairman’s report to court will be

available to any scheme member at the chairperson’s office.

B G D, address, Applicant’s Attorneys



253

ALPHABETICAL INDEX

Application of the Practice Manual 5

Civil appeals 26

Civil trials 10

Allocation of civil trials 11

Bundles of documents 12

Case management 13

Closure of the trial roll 14

Expert witness 15

General 16

Hearing duration 17

Pagination, indexing, binding and general preparation of papers 18

Part heard trials 19

Practice note for trials 20

Preferential trial date 21

Pre-trial conference 22

Roll call 24

Settlement agreements and draft orders 25

Counsels’ dress 8

Court terms 6

Court recess 7

Court sittings 9

Criminal matters 28

Petitions from the lower courts 29



254

Appeals 30

Automatic review 31

Bail appeals 32

Reviews 33

Trials 34

Judge in chambers 96

Judges’ clerks 97

Leave to appeal 92

Motion Court 34

Allocation of courts 35

Binding of papers 39

Briefing of counsel 41

Calling of the roll of unopposed matters in courts 2 and 3 42

Closure of the motion court roll 44

Concise heads of argument 45

Enrolment 46

Enrolment of application after notice of intention to oppose given butrespondent has failed to file an answering affidavit 48

Errors on the unopposed roll 49

Hearing of opposed matters 50

Index 38

Long duration 53

Matters not on the roll 54

Pagination 40

Postponements 55

Practice note 56

Preparation of papers 54

Service 58



255

Settlement 59

Settlement agreements and draft orders 60

Stale service 61

Striking from the roll 62

Supplementary roll 63

Urgent applications 64

Opening of court file 98

Particular applications 68

Anton Piller type orders 69

Admission of advocates 75

Cancellation of sales in execution 76

Change to matrimonial regime 77

Compromise in terms of Section 311 of the Companies Act 79

Curator bonis 82

Curator ad litem 83

Enquiries in terms of Section 417 of the Companies Act 84

Eviction where the Prevention of Unlawful Occupation ofLand Act 1998 applies 85

Liquidation 86

Provisional sentence 87

Rehabilitation 88

Removal or amendment of restrictions on land use 89

Sequestration 90

Standard orders 99

Default judgment granted by registrar 101

Summary judgment 102

Provisional sentence 103

Default judgment by court 104

Absolution from the instance 105

Edictal citation 106

Substituted sentence 107



256

Rule 43 108

Divorce with settlement agreement 109

Divorce without settlement agreement 110

Post nuptial registration of a contract 111

General order for discovery 112

Agreement of settlement 113

Rule nisi 114

Restrictive conditions on land 115

Unallocated order 116

Provisional sequestration 117

Final sequestration 118

Rehabilitation 119

Surrender 120

Provisional liquidation 121

Final liquidation 122

Discharge of provisional sequestration or liquidation 123

Section 311 124

Judicial Management 124

Leave to appeal 127

Order on appeal 128

Order in terms of rule 39 (22) 129

Admission of translator 130

Unopposed divorce actions 94

Ushers 131



257

which were initially classified under 2.2, but in which

for reclassification from 2.2. to 2.1


258


259


260


261


262


263

13.5. An updated version of the statement referred to in paragraph 8.3 above.


264


265


266


267


268


269

270270

WESTERN CAPE PROVINCIAL DIVISION PRACTICE DIRECTIVES

1. All existing Court Notices, Practice Notes and Old Cape Rules currently in force in this Division are hereby repealed and replaced with these Consolidated Practice Notes (Practice Notes).

2. In these Practice Notes, unless the context otherwise indicates— (a) ‘day’ means court day; (b) ‘Judge President’ includes the Deputy Judge President or Acting Judge

President, as the case may be; (c) ‘rules ’ means the Uniform Rules of Court and any word or expression

defined in the rules bears the same meaning herein. (d) ‘case managing judge ’ means the judge presiding at the Rule 37(8)

Conference .

A. COURT TERMS AND TIMES OF SITTIN G

3. There shall be four terms in the year during such periods as the Judge President may determine from year to year .

4. Subject to the discretion of any individual judge to order differently, all the courts of this Division will ordinarily commence at 10h0 0.

5. Subject to Practice Note 6 below, Fridays during term are reserved for the hearing of appeals, reviews, other matters to be heard by more than one judge and such other matters as the Judge President may permit to be enroll ed .

6. ADMISSI ONS

(1) During term all applications for admission and enrolment as an advocate, attorney, notary and conveyancer will be heard by two judges on the first Friday of every month, unless the Judge President, on prior request and for good reason, orders otherwi se.

(2) The presiding judge will deliver a short address at the commencement of proceedings.


271

(3) In order to minimise disruptions and to enhance the dignity of the oc-casion, all persons attending the proceedings (including practitioners ap-pearing for applicants) will be requested to remain in court until the roll has been completed.

(4) Whenever the number of applications set down for a particular day justify doing so, the roll will be split and will be dealt with separately during a morning and afternoon sess ion.

7. All other matters shall be heard on any other day during term unless otherwise directed by the Judge Presid ent; provided that no new opposed matters are to be set down for hearing in the last week of any term without leave of the Judge Presid en t.

8. Once the hearing of any matter has commenced and the presiding judge is available, such matter shall, save in exceptional circumstances, continue until it is concluded; provided that matters that are not completed during the second last week of any term shall not automatically continue during the last week of term without the leave of the presiding j udge. In this regard, the convenience of counsel shall not be regarded as an exceptional circumst an ce.

9. DURING COURT RECESSES

(1) all unopposed matters (except divorce actions) shall be heard on TUESDAYS in Third Division;

(2) all unopposed divorce actions, as well as applications in terms of Rule 43 (opposed and unopposed), shall be heard on WEDNESDAYS in the Third Division;

(3) all Notices of Set Down for matters in Third Division shall be filed before 12h00 on the preceding FRIDAY;

(4) urgent and/or opposed matters shall be heard at such times as the senior duty judge may determine;

(5) in special circumstances, any other matters may be heard on such dates as the Judge President may direct;provided that during the period between Christmas and New Year no court shall sit, save where circumstances otherwise re quire.

10. Circuit courts shall be held on the dates and at the venues determined by the Judge President from time to time.

B. DOCUMENTS AND PLE ADINGS

11. All documents filed with the Registrar(1) shall be typed and printed in black ink on white paper of A4 size in

double spacing on one side of the paper only with a font size not less


272

than 12 point; provided that the court may, in its discretion, relax these requirements where a litigant appears in person or where cir-cumstances re quire;

(2) shall have a margin of at least 35mm, which serves as a binding space and shall not be used for notes, signature, initials, stamps, etc; pro-vided that where a document which is to be used as an exhibit, is not of A4 size or does not have a margin of 35mm or more, it should, where possible, be gummed to paper of A4 size;

(3) shall bear in the left-hand lower corner of the first page of such docu-ment the name, telephone number and (where available) the e-mail address of the legal representative filing such docu ments. Where a litigant acts in person, the relevant details of such litigant shall like-wise a ppear.

12. The Registrar’s office may refuse to accept any document which does not comply with these require me nts.

13. Whenever due to urgency it is not possible timeously to file an original document with the Registrar or to hand it in from the Bar, a copy thereof (including a facsimile copy) may be filed or handed in provided that—(1) such a copy shall be clear, clean, fully legible, on paper of good quality

and of A4 standard size;(2) the original document shall be placed in the relevant file as soon

thereafter as pos sible.

MOTION COURT AND ‘FAST LANE’

14. The Judge President will allocate two duty judges to Motion Court (Third Division) each week of the year, starting at 17h00 on each Friday, including court rec es ses.

15. Enquiries as to which judge is on duty after court hours each day and during weekends must be directed only to the registrar o n duty.

16. One of the judges will hear all unopposed matters as well as opposed Rule 43 applications in Third Di vi sion.

17. The other duty judge , presiding in what is known as the ‘Fast Lane’ Court, will deal with the following matters: (1) all unopposed urgent applications brought under Rule 6(12) not on the

ordinary Third Division roll;(2) all matters becoming opposed on the Third Divisi on roll;(3) all matters which, even if unopposed, are in the opinion of the senior

duty judge such as to warrant a hearing in a separate court, either by reason of the complexity of the matter or the volume of papers;

(4) all chamber book appl ications; (5) all matters referred to the ‘Fast Lane’ Court by the Judge P resident.


273

18. In all matters to be heard in the Third Division a notice of set down must be filed with the Registrar by no later than noon on the day but one prior to the date of h earing.

19. Save where the court is prepared to condone the defect, matters in which the set-down has preceded the expiry of the dies induciae may be struck from the roll with an appropriate order as to costs .

20. In all opposed matters in Third Division (including Fast Lane)(1) the applicant’s attorney must file a practice note when setting the

matter down, indicating—(a) whether or not the matter is likely to proceed on the allocated

date;(b) where applicable, the grounds of urgency;(c) if the matter is to be postponed, the reason(s) for the postponement;(d) full details, including contact numbers, of the legal representa-

tives of all th e parties. (2) where the matter is likely to proceed on the allocated date, the papers

in the court file must be collated, indexed and paginated before the matter is set down;

(3) where it is anticipated that argument is likely to last for more than half a day, the parties must approach the Judge President for directions regarding the hearing of t he matter.

21. The judge hearing opposed matters in Third Division (including Fast Lane) may, after hearing the legal representative(s), make an order but need not furnish reasons therefor unless reasons are requested in terms of Rul e 49(1)(c).

22. Whenever reasons for a court’s order are required (whether in terms of Rule 49(1)(c) or otherwise), the legal representative concerned shall deliver such application or request for reasons to the judge from whom the reasons a re required.

23. The papers in the court file must likewise be collated, indexed and paginated(1) in all return days; and(2) in all matters where the papers exceed 50 pages, whether the matters

are opposed o r unopposed.24. It is the responsibility of the applicant’s (or plaintiff’s) attorney in all mat-

ters to ensure that the court file is in order when filing the notice o f set down.

25. Matrimonial mattersIn all divorce actions—(1) there shall be personal service of the summons on the defendant un-

less service other than personal service has been authorised; (2) where more than six months have elapsed between the date of service

of the summons and the date of set-down, notice of set-down shall be given to the defendant, unless the court in the exercise of its discretion dispenses with this requirement.


274

(3) the original or a copy of the marriage certificate of the parties shall be handed in at the hearing;

(4) failure to comply with the requirements set out above may result in the matter being postponed or struck from the roll with an appropriate order as to costs .

26. Save where the court in its discretion and on good cause shown dispenses therewith, all applications in terms of section 21(1) of the Matrimonial Property Act 88 of 1984, and all applications under section 88 of the Deeds Registries Act, 47 of 1937, shall, in addition to the requirements of those Acts, also follow the guidelines laid down in Ex parte Lourens et uxor 1986 (2 ) SA 291 (C).

27. Service and publication of orders(1) Whenever a rule nisi or a provisional order has to be served (whether

by delivery and/or publication and/or posting), such service shall be effected not later than 10 days prior to the return date of the said rule nisi or provi sional order.

(2) Whenever an order of court has to be published in a newspaper or in any other publication, such order shall be published only in the language of the relevant newspaper or publication, irrespective of the language in which the order is issued, unless an order is specifically made that the order of court be published in another language. Where, however, a newspaper or publication is published in more than one language, priority shall be given to the language in which the order of cou rt is issued.

(3) In all return days an affidavit must be filed by the applicant’s attorney of record, setting out in what respects there has and/or has not been compliance with the court order and attaching the relevant support-ing documents (eg court order, sheriff’s return and/or other proof of service, publicatio n or posting).

(4) Where an order of court has been published in the Gazette or a news-paper, the full sheet with the heading and the date of a Gazette or newspaper containing the relevant publication should be attached to the affidavit referred to in the preceding paragraph. This page must be folded to A4 size in such a way as to show the order and the date o f publication. Alternatively, and if only a cutting of the order is filed, the date and newspaper in which it was published shall be proved by way of the affidavit referred to in the preceding paragraph, which shall explain inter alia why the full page is not filed.

(5) These directions shall apply mutatis mutandis where service is ef-fected by way of edictal citation or substi tuted service.

28. Def ault judgments Applications for default judgment in terms of Rule of Court 31(5) must be made substantially in accordance with Form “A” in the Schedule hereto and all such applications must be accompanied by a draft order substan-tially in accordance w ith Form “B”.


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29. Postponements(1) As soon as possible after applicants’ legal representatives become

aware that a matter on the Third Division roll is to be postponed or removed from the roll, they shall without delay notify the registrar of the duty judge concerned.

(2) Where a matter has previously been postponed, an affidavit must be filed motivating an application for any furthe r postponement.

30. Notice of applications for sequestration / liquidation(1) Save where the court in its discretion and on good cause shown dis-

penses therewith, notice of intention to apply for a provisional order of sequestration shall be given to the debtor and, if married, to the debtor’s spouse (whether married in our [sic] out of community of property), who shall be joined a s a respondent.

(2) Save as provided in sub-paragraph (3) below, notice of intention to ap-ply for a provisional order of liquidation shall be given to the company concerned prior to the filing of t he application.

(3) The court may in its discretion dispense with the requirements of the preceding sub-paragraph where the court is satisfied that it would be in the interests of the company or of the creditors to do so, or that the company has knowledge that such application is to be made.

(4) In the case of so-called ‘friendly sequestrations’ or, in the case of appli-cations for winding-up, where the applicant is the company itself or an insider, notice of the provisional order shall also be given to creditors with claims in excess of R5 000, unless the court orders otherwise. (With regard to ‘friendly sequestrations’ in general, the attention of practitioners is drawn to the judgment in Craggs v Dedekind and three similar matters 1996 ( 1) SA 935 (C).)

31. Reports by the master and other government officials(1) In all applications requiring a Master’s report (including those brought

as matters of urgency) the attorney of record for the applicant shall first lodge his/her application with the Registrar who will in the nor-mal course issue an appropriate case number.

(2) Thereafter a copy of all the papers filed of record shall be submit-ted to the Master under cover of a letter requesting a report and the Registrar’s case number should appear from the documents thus served upon the Master.

(3) The onus will thereafter be on the attorney to lodge the Master’s report in the appropriate court file and shall not enrol the matter until he or she has done so.

(4) The provisions of paras (1) to (3) above shall apply equally to all ap-plications for Voluntary Surrender

(5) Applications for the court’s sanction where it is required under the Companies Act should first be submitted to the Registrar of Companies for a report, and such report is to be included in the papers placed be fore the court.


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(6) The procedure set out in the preceding sub-paragraph shall, subject to the provisions of section 97(1) of the Deeds Registries Act, 47 of 1937, apply mutatis mutandis in all cases requiring a report by the Regi st rar of Deeds.

32. Removal of restrictions f rom title deeds In applications for the removal of restrictions from title deeds imposed in terms of a Town Planning Scheme, the order to be issued should, as far as possible, follow the form as approved in Ex parte Kilian; Ex parte Wiehahn 1963 (2) SA 576 (T).

33. National Credit Act 34 of 2005 (1) In any proceedings instituted in terms of the National Credit Act 34

of 2005 (the Act) in respect of any claim to which the provisions of sections 127, 129 or 131 of the Act apply, the summons or particu-lars of claim , or, in motion proceedings, the founding papers, must contain sufficient allegations or averments to enable the court to be satisfied that the procedures required by those sections, read with s 130(1) and (2) of the Act, as may be applicable to the claim had been complied with before the institution of the proceedings. (The attention of practitioners are drawn to the judgment in Rossouw and Another v FirstRand Bank Ltd 2010 (6) SA 439 (SCA), in particular a t paras 33–37.)

(2) In order to satisfy the court of the matters referred to in section 130(3) of the Act, an affidavit by the credit provider must be filed when judg-ment is applied for.

34. Urge nt applications (1) When an application is alleged to be of extreme urgency, the appli-

cant’s legal representative shall approach the Registrar to arrange a hearing as soon as possible in consultation with the duty judge .

(2) Practitioners are expected to adhere as far as possible to the basic requirement of Rule 6(5)(a) that Form 2(a) be used in applications, including applications with an element of urgency. (In this regard, the attention of practitioners is drawn to the judgment in Gallagher v Norman’s Transport Lines 1992 (3) SA 500 (W ) at 502D–504C.)

(3) Opposed matters which are not of extreme urgency but which are nevertheless too urgent to await a hearing in the ordinary course on the continuous roll, will be granted some preference. For convenience these matters are called ‘semi- urgent’ matters.

35. ‘Anto n Piller’ orders (1) In all applications brought ex parte for an order to allow the entry and

search of premises (an ‘Anton Piller’ order), a draft order substantially in accordance with Form “C” in the Schedule hereto (varied or am-plified to the extent necessary in particular circumstances) is to be attached.

(2) When service of the order is effected, it shall be accompanied by a copy of the notice to respondent substantially in accordance with Form “D”


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in the Schedule hereto (varied or amplified to the extent necessary in particular circumstances), and the attention of the person served is to be pertinently directed to such notice and order, and no further steps in pursuance of the order shall be taken until the notice and order have been read or read to and understood by the said person and he has availed himself of his rights thereunder should he wish to do so. Where necessary, the services of an interpreter are t o be called for.

(3) The ‘supervising attorney’ referred to in the notice and draft order should be an attorney whom the court considers suitable in the cir-cumstances and who is not a member or an employee of the firm act-ing for the applicant. The application shall include information as to the identity and experience of the proposed supervising attorney.

(4) Where the premises concerned are likely to be occupied by an unac-companied woman and the supervising attorney is a man, at least one of the persons attending on the service of the notice and order should be a woman.

(5) The order and the accompanying notice are to be served by the sheriff and the contents explained by the supervising attorney in whose pres-ence and under whose supervision the provisions of the order are to be carried out. The supervising attorney shall ensure that no items are removed from the premises until a list of items to be removed has been prepared, and a copy thereof has been supplied to the applicant’s attorney and the person served with the order, if present, and such person has been afforded a reasonable opportunity to check such list. The supervising attorney shall not permit the premises to be subjected to a search for items not appearing on the schedule of listed items referred to in paragraph 2 of the order.

(6) The supervising attorney shall file with the registrar, by no later than noon on the day but one preceding the return day of the order, a con-cise report describing the manner in which the order was complied with. The supervising attorney shall ensure that a copy of his/her report is delivered to applicant’s attorney and to respondent (or his/her attorney, if represented).

36. Hague Co nvention matters (1) All applications brought pursuant to the provisions of the Hague

Convention on the Civil Aspects of International Child Abduction 1980 will ordinarily be treated as urgent, subject to the right of any party to argue that it should not be so treated in any given case.

(2) It will be the responsibility of the applicant’s legal representatives to ensure that the court file is clearly endorsed so as to indicate that it is a ‘Hague Convention’ matter. Where an applicant is not represented, the Registrar should assist litigants insofar as is possible.

(3) The relevant court file must be placed before the duty judge at the earliest opportunity.


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(4) Should the matter not be disposed of by the judge in the urgent court during the course of that particular week, the judge that dealt with the matter or another judge designated by the Judge President will ordi-narily be seized with the matter and will continue to manage the case procedurally, with due regard to the urgency thereof, until it is ripe for hearing, the aim being to ensure finalisation within a maximum of 6 weeks from date of issue o f the application.

37. Chamber Book applications Applications may be brought through the Chamber Book in the following matters:(1) to authorise the issue of process on Saturdays, Sundays, public holi-

days and outside the times specified in Rule 3;(2) for directions as to the set down of applications referred to in Rule

6(11);(3) for judgment on confession as provided for in Rule 31(1);(4) for judgment following acceptance of an offer or tender and failure to

pay or perform within the period specified in Rule 34(7);(5) for an order for payment of unpaid costs following acceptance of an

offer or tender made in terms of Rule 34(9);(6) for an order as to the conditions for the conduct of an examination as

provided for in Rule 36(3);(7) for an order to resolve a dispute as contemplated in Rule 36(7);(8) for an order for the transcription of a record (see Rule 39(19));(9) for an order by consent of the parties for the transfer of a trial to the

magistrate’s court, subject to the proviso in Rule 39(22);(10) for leave, in an in forma pauperis matter, to withdraw, settle or com-

promise the proceedings or to discontinue assistance therein and for the giving of directions as to the appointment of a substitute(s) (see Rule 40(5));

(11) for directions for service in applications involving the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) 19 of 1998;

(12) for an order on a case submitted by the taxing master (including an award as to costs ) in terms of Rule 48(2);

(13) for an order by consent of the parties for the promotion of a matter on the roll, such matter to be decided by the Judge President or, in his or her absence, by the senior duty judge ;

(14) for an order by consent of the parties removing a matter to another division of the High Court or to a circuit court or for the removal of a matter from the circuit court to the court sitting in Cape Town or for the removal of a matter to the Divorce Court;

(15) for an order for the substitution of a curator ad litem;(16) for an order referring any matter concerning the welfare, custody or

maintenance of minors to the Family Advocate for investigation and report;


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(17) for the grant of an interdict (or the amendment or the setting aside thereof) by consent of the parties pursuant to the provisions of the Prevention of Family Violence Act, 1993;

(18) applications by minors for leave to marry or to enter into apprentice-ships or other contracts where the court’s sanction is sought;

(19) applications to compel the filing of opposing papers where a notice of opposition has been filed, but no further steps have been taken by the respondent, failing which the matter may be enrolled on the unop-posed roll;

(20) for any order which is required to be brought in Chambers by reason of the provisions of any Act or law or these Practice Notes.

D. TRIALS AND OTHER OPPOSED MATTERS

38. Upon the close of pleadings, the plaintiff’s attorney, or if he or she fails to do so, any party, may apply for a trial date by entering the relevant particulars as required by the Registrar in a register kept for that purpose.

39. Before applying for a date of set-down, the attorney in question shall col-late, number consecutively and suitably secure all pages of the pleadings and documents in the court file. A complete index thereof, together with a questionnaire substantially in accordance with Form “E” in the Schedule hereto, shall also be prepared and delivered.

40. The Registrar will not allocate a trial date in any trial matters until such time as the provisions of Practice Note 39 above have been complied with.

41. Pre-trial procedure and case management (1) In order to ensure that it is effective, a pre-trial conference should be

held after discovery and after the parties have exchanged documents and further particulars.

(2) At a pre-trial conference the parties must genuinely endeavour to achieve the objects of Rule 37 (by defining triable issues and curtail-ing proceedings) and the minute must show this.

(3) A document which purports to be a pre-trial minute but which does not achieve the objects of Rule 37 (e.g. if it is a mere recordal or para-phrase of the agenda items for discussions at a Rule 37 conference), shall not be accepted as a proper pre-trial minute. Proper compliance with Rule 37(4) is required to ensure a meaningful conference.

(4) Where any party is of the view that the matter is ready for trial, but no notice of a trial date as contemplated by Rule 37(1) has as yet been received, or that for any other reason a conference as contemplated by Rule 37(8) before a judge in Chambers needs to be convened, such party may apply through the Chamber Book, on notice to all other parties, for an order that such a conference be convened; provided that


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no such conference will be convened unless the party requesting the conference has complied with the provisions of Practice Note 39 above.

42. Allocation of opposed matters(1) Where a matter set down for hearing on the continuous roll is placed

before the Judge President for allocation to a judge , and the provi-sions of Rule 62(4) have not been complied with, or the signed minute referred to in Rule 37(1)(a) has not been filed, the Judge President may refuse to allocate such matter to any judge and may order that the matter be struck from the roll for the date for which it has been set down, and he/she may make such other order or orders as to him/her seems appropriate, including any order as to costs .

(2) Before 09h30 on the day before a matter on the continuous or op-posed motion roll is set down to commence, the plaintiff’s/applicant’s counsel (or in the event of the plaintiff’s/applicant’s counsel not being available, his/her instructing attorney) shall advise the secretary to the Judge President in writing (including facsimile and/or e-mail) —(a) whether or not the matter has been settled;(b) if not settled, what the prospects are of the matter being settled;(c) of the likely duration of the matter;(d) the names and telephone numbers of counsel on both sides; and(e) a brief description of the issues involved; (f) when and by which case managing judge the matter has been

released as ‘trial ready’. (3) As soon as possible after counsel becomes aware that in a particular

matter on the continuous or motion roll witnesses and/or counsel from out of town will be testifying or appearing, this information shall be conveyed by counsel to the secretary to the Judge President.

(4) If an opposed matter is settled, or is to be withdrawn or postponed, or if any issue raised will not be pursued, the attorney of record shall, without delay, notify the Registrar in terms of Rule 41(3) and, where applicable, shall immediately delete the entry on the continuous roll.

43. Early allocation of opposed matters(1) If any matter on the continuous roll requires early allocation, the legal

representatives for the plaintiff, excipient or applicant (as the case may be), shall after compliance with the provisions of Rule 62(4), deliver to the secretary of the Judge President, not less than ONE WEEK before the date of hearing, the relevant court file, together with a notice to that effect, setting out the case number, the names of the parties and their legal representatives, and the date of hearing.

(2) The notice shall otherwise comply with the provisions of Practice Note 42(2) above and shall include a list enumerating those parts of the record or the heads of argument, if applicable, which, in the opinion of the parties’ legal representatives, are not relevant for the determina-tion of the matter.


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(3) Matters will be deemed to require early allocation, as contemplated above—(a) where the papers (including annexures) in the matter exceed 200

pages; or(b) where the issues are such that the judge allocated to hear the

matter would, in order to prepare for the hearing, reasonably need to receive the papers earlier than he or she would normally do so (that is, the day before the hearing).

(4) Failure to comply with the provisions of this notice may result in the matter not being heard on the allocated day.

44. Opposed motions(1) The Registrar shall keep an Opposed Motion Roll, separate from the

continuous roll for trials.(2) The applicant or respondent in an opposed motion shall apply to the

Registrar for a date of set-down on the Opposed Motion Roll in terms of Rule 6(5)(f) after complying with the requirements of Practice Note 39 above.

(3) The Registrar shall allocate the first available date of set- down and shall give notice to all parties of such date, which date shall not be less than 25 days from the date of such notice.

(4) The applicant’s legal representative shall, together with the applicant’s heads of argument, file a short note setting out the name and number of the matter, the names of counsel involved (if known) and, in brief, the nature of the matter and its estimated duration. If an applicant is not represented, this sub-paragraph shall be complied with by re-spondent’s legal representative.

E. APPEALS & HEADS OF ARGUMENT

45. Leave to appeal Whenever an application for leave to appeal to the Supreme Court of Appeal or to the Full Court of this Division is lodged with the Registrar, the follow-ing procedure will apply, both to civil and criminal matters:(1) Counsel or the attorney for the applicant for leave to appeal shall

simultaneously therewith deliver a copy of such application together with the relevant court file to the judge against whose judgment and/or order the application is directed.

(2) Counsel or the attorney for the applicant for leave to appeal shall, after consultation with counsel or the attorney for the respondent, and not later than 10 days after the lodging of the application, approach the judge in chambers in order to arrange for a convenient time and date for the hearing of the application.


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(3) Whenever counsel or the attorney for the applicant fails to take the steps provided in para (2) above, the attorney for the respondent may not later than 15 days after the lodging of the application and on 48 hours notice to the attorney for the applicant approach the judge to arrange a time and date for the hearing of the application.

(4) An unrepresented party who lodges an application for leave to appeal shall simultaneously therewith deliver to the Registrar an additional copy of the application which is endorsed for delivery by the Registrar, together with the relevant court file, to the judge against whose judg-ment/order the application is directed.

(5) Whenever a party in a civil matter is unrepresented, the provision of paragraphs (2) and (3) shall be complied with as if such party was his/her own legal representative save, however, that the unrepresented party and/or the legal representative of any other party shall approach the Registrar who will in turn approach the judge in order to arrange for a convenient time and date for the hearing of the application.

(6) Whenever the applicant for leave to appeal in a criminal matter is unrepresented, the Director of Public Prosecutions or his/her repre-sentative shall not later than 15 days after the filing of the application approach the Registrar who will in turn approach the judge in order to arrange for a convenient time and date for the hearing of the applica-tion. The Registrar shall give the applicant written notice of the date fixed, which notice shall be posted to the applicant not less than 10 (ten) days before the hearing.

(7) Where counsel and/or the attorney for a party or the party, as the case may be, fails to comply with the provisions aforesaid, the judge may take such steps as he/she deems necessary to deal with the application.

46. Full Bench appeals(1) Full Bench appeals will ordinarily be heard during the first week of the

FIRST term and the first week of the THIRD term of every year; or on such other dates as the Judge President may determine from time to time.

(2) The roll for appeals will close on 15 September each year (for appeals to be heard during the FIRST term of the following year) and on 15 March (for appeals to be heard during the THIRD term) respectively, by which dates appellants must have complied with the provisions of Rule 49(6)(a) and Rule 49(7)(a).

(3) At the same time as the application for a date of an appeal in terms of Rule 49(6)(a) and delivery of the record in terms of Rule 49(7)(a) the appellant must deliver a Practice Note indicating—(a) the nature of the appeal succinctly stated (for example ‘negli-

gence in MVA case’; ‘appeal against conviction and sentence on a charge of murder’; ‘interpretation of a contract / will / Act 00 of 0000’; etc’);


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(b) the date of the judgment appealed against and the name of the judge ;

(c) the date when leave to appeal was granted;(d) the length of the record;(e) an estimate of the duration of the argument (if more than one day

is required for argument, the reasons for the request);(f) the portions or pages of the record that are in a language other

than English;(g) the name(s) of counsel involved in the appeal (if known).

(4) The Registrar shall give the parties written notice in terms of Rule 49(7)(c) of the dates assigned for the hearing of appeals and of the dates by when heads of argument are to be delivered so as to allow all parties’ heads of argument to be filed before the end of the term preceding the hearing of the appeal .

(5) The heads of argument of each party must be accompanied by a Practice Note indicating—(a) the name and number of the matter;(b) the issues on appeal succinctly stated;(c) a summary of the argument, not exceeding 100 words;(d) a list reflecting those parts of the record, if any, the party regards

as irrelevant to the appeal and to which they do not intend to refer.

47. Civil appeals from the magistrates’ courtHeads of argument in all civil appeals from the Magistrates’ courts shall be delivered in accordance with the provisions of Rule 50(9), as modified by Practice Note 46 above and Practice Note 49 below; provided that where the record on appeal exceeds 400 pages, the appellant must arrange with the Registrar for the early allocation of the matter for hearing and for earlier delivery of heads of argument.

48. Criminal appeals from magistrates’ courtsHeads of argument in all criminal appeals from the Magistrates’ courts shall be delivered in accordance with the provisions of Rule 51(4). Pursuant to this rule the Judge President of this Division has determined as follows:(1) The appellant’s heads of argument and list of authorities together with

two copies thereof shall be delivered not less than 15 days before the date on which the appeal is set down for hearing and the respondent’s not less than 10 days before such date.

(2) Delivery by the appellant of heads of argument in terms of Rule 51(4), read with Rule 1, shall include service on the Director of Public Prosecutions of such heads of argument in accordance with the time-periods provided for in para (2) above.

(3) Not less than 30 days prior to the date on which a criminal appeal from the Magistrates’ [sic] court is set down for hearing, the attorney of record or advocate for the appellant (or the appellant) shall confirm in writing to the Director of Public Prosecutions that the appeal is to


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proceed on the date allocated in the notice of set-down for the hearing thereof. Failing timeous receipt by the Director of Public Prosecutions of such confirmation, the appeal will not be heard on the allocated date and will be struck from the roll.

49. Appeals generally(1) Failure on the part of an appellant to comply with the provisions of

Rules 49(15), 49A(3) and (5), 50(9) and 51(4) as read with Practice Note 48(1) above may result in the appeal being struck from the roll or dismissed. Failure on the part of a respondent to comply with any of the said provisions will result in the court making such order there anent as it deems fit, unless in each such instance condonation of such failure is sought on good cause shown on written application, and is granted. In the case of a civil appeal, the court may make such order or orders as to costs as may to it appear appropriate.

(2) ‘Heads of Argument’ shall mean, in addition to or in lieu of the ‘concise and succinct statement of the main points (without elaboration) which he intends to argue on appeal ’ as provided for in Rules 49(15), 49A(3), 50(9) and 51(4), full heads of argument with, where appropriate, refer-ences to the record and to the authorities relied upon, together with a list of such authorities. When delivering the heads of argument, each party must deliver a practice note as contemplated by Practice Note 46(5) above. 3

(3) ‘Deliver’ in Practice Notes 46, 47 and 48 above shall include the hand-ing in of heads of argument at the office of the Registrar (Room 24 in the case of criminal appeals and Room 5 in the case of all civil appeals) and the entering of the required particulars in the register for heads of argument by the person handling the same.

(4) The Judge President may, in any particular instance when he/she deems it expedient to do so, determine earlier dates than those provided for in this Notice.

50. Heads of argument in other matters(1) In all matters (except trials and civil or criminal appeals) which have

been set down for hearing or argument on a specific date by the Registrar, heads of argument as defined in Practice Note 49(2) above and clearly indicating the names of the parties, the number of the case and the date upon which it is set down on the roll shall be delivered by counsel as follows, viz.(a) by the delivery of an appropriate number of copies of the heads of

argument of plaintiff, applicant, or excipient (as the case may be) to Room 5 of the office of the Registrar and by the entry of the required information in the register of heads of argument by the person who files same not less than 10 days before the date upon which the matter is to be heard;


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(b) by like delivery of the heads of argument of defendant or respond-ent (as the case may be) in like manner not less than 5 days before the said date;

(c) by exchange between the parties’ attorneys of a copy of each party’s heads of argument on the dates on which same are filed in Room No 24 by Counsel;

(2) The Judge President may in any particular instance determine earlier or later dates than those prescribed in these directions.(2) Failure on the part of a plaintiff, applicant, excipient or appel-

lant (as the case may be) to comply with the provisions of these directions may result in the matter being struck from the roll or dismissed. Failure on the part of defendant or respondent (as the case may be) to comply with the said provisions will result in the court making such order as it deems fit, unless in each case con-donation of such failure is sought on good cause shown by way of written application and is granted; and the court may make such order or orders as to costs as may to it appear appropriate.

F. CRIMINAL MATTERS

51. Pre-trial conference in criminal matters(1) The provisions of this rule shall apply to all criminal trials to be heard

in the High Court from the beginning of the Second Term, 2008.(2) All criminal trials shall be preceded by a pre-trial conference con-

ducted in terms of this rule.(3) The notification of the trial date shall be accompanied by a notice

of the date upon which the pre-trial conference is to be conducted in terms of this rule.

(4) The pre-trial conference shall be conducted under the control of the presiding judge .

(5) The pre-trial conference shall in all cases be attended by:(a) the accused;(b) the legal representative of the accused;(c) a representative of the DPP.

(6) The purpose of the pre-trial conference is to consider, and, where ap-propriate, to address matters such as:(a) the legal representation of the accused;(b) admissions sought by the DPP and the accused;(c) the consideration of plea agreements;(d) the compliance by the parties of their pre-trial obligations in

terms of the Act and the rules ;(e) the state of readiness for trial of the respective parties.


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(7) All parties may seek directives from the presiding judge in regard to the implementation of any pre-trial procedures.

(8) The DPP shall be responsible for the preparation of a minute of the conference, to be filed as soon as possible after the conclusion of the conference.

(9) The procedure set forth in this Practice Note is intended as a pilot project to avoid unnecessary delays in criminal trials. Amendments to the procedure may be considered on an ongoing basis in the light of the experience gained by all participants in the course of the applica-tion of this rule in practice.

52. Pro deo / legal aid counsel in third division(1) Practitioners acting at the request of the court or upon legal aid in-

structions in High Court criminal trials will be allowed to retain their briefs to appear in respect of unopposed matters in Third Division on the same day; provided that they shall—(a) notify in advance the registrars of the respective judgespresiding in their criminal trial and in Third Division of the fact;(b) appear in Third Division at 10h00 when their matters will receive

precedence; and(c) report back to the registrar of the judge presiding in the criminal

trial as soon as their unopposed matters have been disposed of.(2) Save as set out above, such practitioners will not be allowed,

without the prior consent of the judge presiding in the criminal trial, to retain any clashing briefs for appearances in any other courts while the criminal trial is running.

SCHEDULE — FORMS

A. Default Judgment (PN 28)

B. Default Judgment—Draft Order (PN 28)

C. Anton Piller Order (PN 35(1))

D. Anton Piller Notice (PN 35(2))

E. Rule 37 Questionnaire (PN 39)


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FORM “A”

APPLICATION FOR JUDGMENT BY DEFAULT (RULE 31(5))IN THE HIGH COURT OF SOUTH AFRICA(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.:..............


Plaintiff

And

Defendant

(a) The summons has been duly served on the defendant on.........................(b) The time for entering appearance to defend having expired on...................(c) The defendant has not entered an appearance to defend.

The plaintiff hereby applies for judgment by default against the defendant as claimed in the summons, in accordance with the attached draft, as follows:

1. Payment of the sum of R.................................2. Interest on the said sum at the rate of.......% per annum from...............to

date of payment.3. Costs of suit.

DATED THIS.................................DAY OF.................................20.........................

PLAINTIFF/PLAINTIFF’S ATTORNEY

ATTORNEY & TELEPHONE NUMBER


288

FORM “B”

JUDGMENT BY DEFAULT (RULE 31(5))

IN THE HIGH COURT OF SOUTH AFRICA(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.:..............


Plaintiff

And

Defendant

After having read the summons and other documents fi led of record, judgment by default is granted in favour of the plaintiff for:

1. Payment of the sum of R.......................2. Interest on the said sum at the rate of.........% per annum as from.....................

to date of payment.3. Costs in the sum of R200.00 (plus the Sheriff’s fees) or R650.00 (plus the

Sheriff’s fees) or taxed costs . (Delete which are not applicable).

__________________

REGISTRAR

___________________________________________________________________

Any other directions in terms of Rule 31(5)(b)(iii)–(vi) inclusive

__________________

REGISTRAR



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FORM “C”

EX PARTE: APPLICANT

IN RE: APPLICANT vs RESPONDENT

ORDER

1. Respondent is called upon to show cause before this court at 10.00 on...........why an order in the following terms should not be made:(a) that the listed items in the possession of the sheriff pursuant to the

execution of this order should not be retained by him pending the directions of the court; and

(b) why the costs of this application, including the costs of the supervis-ing attorney, should not stand over for determination in the action referred to in paragraph 7 below.

2. Respondent or the person on whom service is effected in terms of paragraph 9(a) below is ordered to allow the sheriff, AB................(“the supervising at-torney”) together with CD..................., applicant’s attorney and EF................., being (their capacity stated) accompanying them to immediately enter the following premises namely....................................., and any vehicles on such premises, for the purpose of searching for, and delivering into the posses-sion of the sheriff all the documents and articles which are listed in the schedule set out at the foot of this order (“the listed items”) or which any of the aforementioned persons believes to be listed items.

3. Respondent or the person on whom service is effected in terms of para-graph 9(a) below is further ordered to permit the said persons to remain on the premises until the search has been completed, and if necessary to re-enter the premises on the same or following day in order to complete the search.

4. The supervising attorney shall, together with the sheriff, make a list of all items removed by the sheriff in terms of this order. A copy of this list shall be handed by the supervising attorney to applicant’s attorney and to the respondent or the person referred to in paragraph 3 above, if present, and a copy shall be retained by the sheriff.

5. In the event that any of the listed items exists only in computer readable form, respondent or the person referred to in paragraph 3 above is ordered to forthwith provide the sheriff with effective access to the computers, with all necessary passwords, to enable them to be searched, and cause the listed items to be printed out; a print-out of these items is to be given to the sheriff or displayed on the computer screen so that it may be read and copied by him.

6. All listed items or copies thereof taken into possession by the sheriff


290

pursuant to this order, shall be retained by him until the court orders oth-erwise. Save as provided hereinafter, no person shall be entitled to inspect any of the items taken into possession by the sheriff nor shall any copies be made of such items. Provided that pending the return day and for the sole purpose of satisfying himself that the inventory correctly refl ects the items seized, respondent or his attorney, shall be entitled to inspect the items in the sheriff’s possession.

7. Applicant is directed to institute an action against respondent in which the listed items are concerned within 10 days of the date of this order, and if he fails, without good reason being shown on the return day to have instituted such action by that date, the sheriff shall be obliged to return all the listed items immediately to respondent, and in such event the court, in its discretion, shall make such order as it deems meet. This order shall under no circumstances constitute against applicant for damages (or other relief) sustained or claimed in consequence of these proceedings.

8. On the return day there shall be placed before the court the report of the supervising attorney with proof that a copy thereof has been served on applicant’s attorney and on respondent (or his attorney) and an affi davit of the applicant’s attorney that the said action has been instituted, and if not the reason why this has not been done.

9.(a) Service of this order together with the notice to respondent shall be

effected by the sheriff on the respondent or the person in charge of the premises and the contents thereof explained by the supervising attorney before the provisions of paragraph 2 of this order are carried out.

(b) In addition to the service referred to in sub-paragraph (a) above, ser-vice of this order together with the notice of motion and supporting affi davits and accompanying notice to respondent shall be effected by the sheriff in accordance with the Rule of court by not later than 48 hours after the supervising attorney has directed that the search has been completed.

(c) The provisions of paragraphs 2, 3 and 5 of this order may only be car-ried out in the presence and under the supervision of the supervising attorney.


291

FORM “D”

EX PARTE: (APPLICANT)

IN RE: (APPLICANT) vs (RESPONDENT)

NOTICE TO RESPONDENT

1. The order being served on you requires you to allow the persons named therein to enter the premises described in this order and to search for, ex-amine and remove or copy the articles specifi ed in the order. You are also required to hand over any of the specifi ed articles on the premises or under your control to the sheriff.

2. When these documents are handed to you, you are entitled, if you are an employee of respondent or in charge of the premises, to contact respondent immediately and you or respondent are entitled to contact an attorney and have him come to the premises to advise you. The attorney must be called and must arrive without delay, and the supervising attorney must inform you as to how long the search can be delayed so as to have the attorney present. Until the attorney, if called, arrives or until the time has passed for him to arrive, you need not comply with any part of this order, except that you must allow the supervising attorney, the sheriff and the other persons named in the order to enter the premises and to take such steps as, in the opinion of the supervising attorney, are reasonably necessary to prevent any prejudice to the further execution of this order.

3. You are further entitled to have the supervising attorney explain to you what this notice and order mean.

4. If you disobey this order you will be guilty of an offence, that is, contempt of court.

5. If the order being served upon you was granted in your absence and with-out notice to you, you are entitled—(a) in terms of Rule 6(8) to anticipate the return day of the order upon

delivery of not less than 24 hours’ written notice; and/or(b) in terms of Rule 6(12)(c) by similar notice to set down the matter for

reconsideration of the order.


292

FORM “E”

RULE 37 QUESTIONNAIRE

NOTE 1: This questionnaire must be completed on behalf of each of the parties to the action by the Attorney who on behalf of his/her client is responsible for the running of the action or where a party is unrepresented, by such party personally.

NOTE 2: The completed questionnaire must be fi le [sic] with the Registrar and a copy thereof must be delivered to all other parties not later than THREE MONTHS after the entry date.

CASE NO:________________/20______

TITLE OF ACTION:

_________________________________________________________(1st) Plaintiff

_________________________________________________________(2nd) Plaintiff

and

________________________________________________________(1st) Defendant

________________________________________________________(2nd) Defendant

NATURE OF THE ACTION: ______________________________________________

PARTY FILING THIS FORM:_____________________________________________

NAME OF ATTORNEY COMPLETING THIS QUESTIONAIRE: _____________________

CONTACT TELEPHONE NUMBER: _________________________________________

NAME/S OF COUNSEL REPRESENTING YOUR CLIENT: ________________________


293

1. Discovery(a) Have discovery and inspection been completed?______________(b) If not, what is outstanding? ______________________________

2. Particulars for trial(a) (i) Are any replies to Requests for Particulars for Trial in respect of

your pleadings outstanding?

_____________________________________________________

(ii) If so, when will the Particulars be delivered?

_____________________________________________________

(b) (i) Have you received all the Particulars that you require?

_____________________________________________________

(ii) If not, have you requested them?

_____________________________________________________

3. Amendments(a) (i) Do you at present intend to amend your pleadings?

_____________________________________________________

(ii) If so, when?

_____________________________________________________

(b) Can you make any additional admissions?

____________________________________________________

(c) (i) Are you intending to join any further parties?

_____________________________________________________

(ii) If so, whom and when?

_____________________________________________________


294

4. Issues(a) What are the important issues in the action?

_________________________________________________________

(b) (i) Are any of them capable of resolution by agreement?

_____________________________________________________

(ii) If so, have steps been taken to seek the required agreement?

_____________________________________________________

(c) (i) Are any of the issues in the action suitable for trail as preliminary or separate question in terms of Uniform Rule 33(4)?

_____________________________________________________

(ii) If so, what issues are they?

_____________________________________________________

5. Expert evidence(a) On what topics issues may you wish to call expert evidence?

_________________________________________________________

(b) (i) How many experts do you expect to call?

_____________________________________________________

(ii) Can you at this stage indicate—

_____________________________________________________

(aa) their names? and/or

_________________________________________________

(bb) the nature of their expertise? and/or

_________________________________________________


295

(cc) the topics/issues upon which each will testify?

_________________________________________________

(c) By what date can you deliver their written reports to all the other parties?

_________________________________________________________

(d) (i) Is there scope for agreement between any of the parties’ experts?

_____________________________________________________

(ii) Would a meeting of such experts be useful? If not, why not?

_____________________________________________________

6. Trial(a) What is you present estimate of the length of the trial?

_________________________________________________________

(b) What is the earliest date that you believe that you can be ready for trial?

_________________________________________________________

7. Indexing of pleadingsHas there been compliance with the provisions of Court Notice 3(5)?

_________________________________________________________________

8. Settlement of the parties’ disputesIs there any way in which the Court can assist the parties to fully or partially resolve their dispute without the need for a trial/full trial?

_________________________________________________________________

Does any party request that a conference be held before a judge in cham-bers, as contemplated by Rule 37(8)?


296

9. Alternative dispute resolution(a) Have the parties considered mediation or another alternative dispute

resolution procedure?

_________________________________________________________

(b) If not, could such consideration be worthwhile?

_____________________________________________ ____________

DATE:

______________________

SIGNATURE OF ATTORNEY


297

CONSOLIDATED PRACTICE NOTES

WESTERN CAPE HIGH COURT

CAPE TOWN

By direction of the Judge President the following Consolidated Practice Notes are operative with effect from 1 May 2009.

INTRODUCTION

1. All existing Court Notices, Practice Notes and Old Cape Rules currently in force in this Division are hereby repealed and replaced with these Consolidated Practice Notes (Practice Notes).

2. In these Practice Notes, unless the context otherwise indicates - (a) ‘day’ means court day;(b) ‘Judge President’ includes the Deputy Judge President or Acting

Judge President, as the case may be;(c) ‘rules’ means the Uniform Rules of Court and any word or expression

defi ned in the rules bears the same meaning herein.

A. COURT TERMS AND TIMES OF SITTING

3. There shall be four terms in the year during such periods as the Judge President may determine from year to year.1

4. Subject to the discretion of any individual judge to order differently, all the courts of this Division will ordinarily commence at 10h00.2

5. Subject to Practice Note 6 below, Fridays during term are reserved for the hearing of appeals, reviews, other matters to be heard by more than one judge and such other matters as the Judge President may permit to be enrolled.3

1 Compare Old Cape Rule 3(1).

2 CN 1

3 CN 2.1


298

6. Admissions4

(1) During term all applications for admission and enrolment as an advo-cate, attorney, notary and conveyancer will be heard by two judges on the fi rst Friday of every month, unless the Judge President, on prior request and for good reason, orders otherwise.5

(2) The presiding judge will deliver a short address at the com mencement of proceedings.

(3) In order to minimise disruptions and to enhance the dignity of the oc-casion, all persons attending the proceedings (including practitioners appearing for applicants) will be requested to remain in court until the roll has been com pleted.

(4) Whenever the number of applications set down for a particular day justify doing so, the roll will be split and will be dealt with separately during a morning and afternoon session.

7. All other matters shall be heard on any other day during term unless oth-erwise directed by the Judge President;6 provided that no new opposed matters are to be set down for hearing in the last week of any term without leave of the Judge President.7

8. Once the hearing of any matter has commenced and the presiding judge is available, such matter shall, save in exceptional circumstan-ces, continue until it is concluded; provided that matters that are not completed during the second last week of any term shall not auto-matically continue during the last week of term without the leave of the presiding judge.8 In this regard, the convenience of counsel shall not be regarded as an exceptional circumstance.9

9. During court recesses -(1) all unopposed matters (except divorce actions) shall be heard on

TUESDAYS in Third Division;(2) all unopposed divorce actions, as well as applications in terms of Rule

43 (opposed and unopposed), shall be heard on WEDNESDAYS in the Third Division;

(3) all Notices of Set Down for matters in Third Division shall be fi led before 12h00 on the preceding FRIDAY;

(4) urgent and/or opposed matters shall be heard at such times as the senior duty judge may determine;

(5) (5) in special circumstances, any other matters may be heard on such dates as the Judge President may direct;provided that during the period between Christmas and New Year no court shall sit, save where circumstances otherwise require.

4 PN 24.

5 CN 21

6 CN2.2

7 CN 8.6 (modifi ed)

8 B CN 8.7

9 CN6.1 & 6.2


299

10. Circuit courts shall be held on the dates and at the venues determined by the Judge President from time to time.10

B. DOCUMENTS AND PLEADINGS

11. All documents fi led with the Registrar -(1) shall be typed and printed in black ink on white paper of A4 size

in double spacing on one side of the paper only with a font size not less than 12 point; provided that the court may, in its discretion, relax these requirements where a litigant appears in person or where circumstances require;11

(2) shall have a margin of at least 35mm, which serves as a binding space and shall not be used for notes, signature, initials, stamps, etc; pro-vided that where a document which is to be used as an exhibit, is not of A4 size or does not have a margin of 35mm or more, it should, where possible, be gummed to paper of A4 size12

(3) shall bear in the left-hand lower corner of the fi rst page of such docu-ment the name, telephone number and (where available) the e-mail address of the legal representative fi lingsuch documents.13 Where a litigant acts in person, the rele-vant details of such litigant shall likewise appear,

12. The Registrar’s offi ce may refuse to accept any document which does not comply with these requirements.14

13. Whenever due to urgency it is not possible timeously to fi le an original document with the Registrar or to hand it in from the Bar, a copy thereof (including a facsimile copy) may be fi led or handed in provided that - (1) such a copy shall be clear, clean, fully legible, on paper of good qual-

ity and of A4 standard size;(2) the original document shall be placed in the relevant fi le as soon

thereafter as possible.15

C. MOTION COURT AND ‘FAST LANE’

14. The Judge President will allocate two duty judges to Motion Court (Third Division) each week of the year, starting at 17h00 on each Friday, including court recesses.16

10 Cf Old Cape Rule 3(7).

11 CN 3(3) (as modifi ed)

12 CN 3(1), 3(4).

13 CN4(as modifi ed)

14 CN 4

15 PN 11

16 CN 12.1


300

15. Enquiries as to which judge is on duty after court hours each day and during weekends must be directed only to the registrar on duty.17

16. One of the judges will hear all unopposed matters as well as opposed Rule 43 applications in Third Division.18

17. The other duty judge, presiding in what is known as the ‘Fast Lane’ Court, will deal with the following matters: 19

(1) all unopposed urgent applications brought under Rule 6(12) not on the ordinary Third Division roll;

(2) all matters becoming opposed on the Third Division roll;(3) all matters which, even if unopposed, are in the opinion of the senior

duty judge such as to warrant a hearing in a sepa rate court, either by reason of the complexity of the matter or the volume of papers;

(4) all chamber book applications;20

(5) all matters referred to the ‘Fast Lane’ Court by the Judge President. 18. In all matters to be heard in the Third Division a notice of set down must be

fi led with the Registrar by no later than noon on the day but one prior to the date of hearing.21

19. Save where the court is prepared to condone the defect, matters in which the set-down has preceded the expiry of the dies induciae may be struck from the roll with an appropriate order as to costs.22

20. In all opposed matters in Third Division (including Fast Lane) -(1) the applicant’s attorney must fi le a practice note when setting the

matter down, indicating -(a) whether or not the matter is likely to proceed on the allocated

date;(b) where applicable, the grounds of urgency;(c) if the matter is to be postponed, the reason(s) for the

postponement;(d) full details, including contact numbers, of the legal representa-

tives of all the parties.23

(2) where the matter is likely to proceed on the allocated date, the pa-pers in the court fi le must be collated, indexed and paginated before the matter is set down;24

(3) where it is anticipated that argument is likely to last for more than half a day, the parties must approach the Judge President for direc-tions regarding the hearing of the matter.25

17 CN 12.5.

18 CN 12.2, 12.6

19 PN 1

20 See Practice Note 37 below.

21 CN 29.

22 CN 22, 31.23 New.

24 New. See Erasmus Superior Court Practice D5-12, 14.

25 New.


301

21. The judge hearing opposed matters in Third Division (including Fast Lane) may, after hearing the legal representative(s), make an order but need not furnish reasons therefor unless reasons are requested in terms of Rule 49(1)(c).26

22. Whenever reasons for a court’s order are required (whether in terms of Rule 49(1)(c) or otherwise), the legal representative concerned shall deliver such application or request for reasons to the judge from whom the reasons are required.27

23. The papers in the court fi le must likewise be collated, indexed and pagi-nated -(1) in all return days; and(2) in all matters where the papers exceed 50 pages, whether the mat-

ters are opposed or unopposed.24. It is the responsibility of the applicant’s (or plaintiff’s) attorney in all matters

to ensure that the court fi le is in order when fi ling the notice of set down.28

25. Matrimonial MattersIn all divorce actions -

(1) there shall be personal service of the summons on the defendant unless service other than personal service has been authorised;29

(2) where more than six months have elapsed between the date of ser-vice of the summons and the date of set-down, notice of set-down shall be given to the defendant, unless the court in the exercise of its discretion dispenses with this require ment.30

(3) the original or a copy of the marriage certifi cate of the parties shall be handed in at the hearing;31

(4) failure to comply with the requirements set out above may result in the matter being postponed or struck from the roll with an appropri-ate order as to costs.32

26. Save where the court in its discretion and on good cause showndispenses therewith, all applications in terms of section 21(1) of theMatrimonial Property Act 88 of 1984, and all applications undersection 88 of the Deeds Registries Act, 47 of 1937, shall, in additionto the requirements of those Acts, also follow the guidelines laid down in Ex parte Lourens et uxor 1986 (2) SA 291 (C).33

26 CN 12.4 (modifi ed).

27 PN 16

28 New.

29 New.

30 New.

31 CN 24.

32 CN 24.

33 New.


302

27. Service and Publication of Orders(1) Whenever a rule nisi or a provisional order has to be served (whether

by delivery and/or publication and/or posting), such service shall be effected not later than 10 days prior to the return date of the said rule nisi or provisional order.34

(2) Whenever an order of court has to be published in a newspaper or in any other publication, such order shall be published only in the language of the relevant newspaper or publication, irrespective of the language in which the order is issued, unless an order is specifi -cally made that the order of court be published in another language. Where, however, a newspaper or publication is published in more than one language, priority shall be given to the language in which the order of court is issued.35

(3) In all return days an affi davit must be fi led by the applicant’s attorney of record, setting out in what respects there has and/or has not been compliance with the court order and attaching the relevant support-ing documents (eg court order, sheriff’s return and/or other proof of service, publication or posting).36

(4) Where an order of court has been published in the Gazette or a newspaper, the full sheet with the heading and the date of a Gazette or newspaper containing the relevant publi cation should be attached to the affi davit referred to in the preceding paragraph. This page must be folded to A4 size in such a way as to show the order and the date of publication.37 Alternatively, and if only a cutting of the order is fi led, the date and newspaper in which it was published shall be proved by way of the affi davit referred to in the preceding paragraph, which shall explain inter alia why the full page is not fi led.38

(5) These directions shall apply mutatis mutandis where service is ef-fected by way of edictal citation or substituted service.

28. Default JudgmentsApplications for default judgment in terms of Rule of Court 31(5) must be made substantially in accordance with Form “A” in the Schedule hereto and all such applications must be accompanied by a draft order substantially in accordance with Form “B”.39

29. Postponements(1) As soon as possible after applicants’ legal representatives become

aware that a matter on the Third Division roll is to be postponed or removed from the roll, they shall without delay notify the registrar of

34 PN 10.

35 CN 18

36 New.

37 PN 2, CN 3(6)

38 New. Cf Erasmus Superior Court Practice D4-7,

39 PN 14.


303

the duty judge concerned.40

(2) Where a matter has previously been postponed, an affi davit must be fi led motivating an application for any further postponement.41

30. Notice of Applications for Sequestration / Liquidation(1) Save where the court in its discretion and on good cause shown dis-

penses therewith, notice of intention to apply for a provisional order of sequestration shall be given to the debtor and, if married, to the debtor’s spouse (whether married in our out of community of prop-erty), who shall be joined as a respondent,42

(2) Save as provided in sub-paragraph (3) below, notice of intention to apply for a provisional order of liquidation shall be given to the com-pany concerned prior to the fi ling of the application.43

(3) The court may in its discretion dispense with the requirements of the preceding sub-paragraph where the court is satisfi ed that it would be in the interests of the company or ofthe creditors to do so, or that the company has knowledge that such application is to be made.

(4) In the case of so-called ‘friendly sequestrations’ or, in the case of ap-plications for winding-up, where the applicant is the company itself or an insider, notice of the provisional order shall also be given to creditors with claims in excess of R5 000, unless the court orders oth-erwise, (With regard to ‘friendly sequestrations’ in general, the atten-tion of practitioners is drawn to the judgment in Craggs v Dedekind and three similar matters 1996 (1) SA 935 (C).)

31. Reports by the Master and other Government Offi cials(1) In all applications requiring a Master’s report (including those brought

as matters of urgency) the attorney of record for the applicant shall fi rst lodge his/her application with the Registrar who will in the nor-mal course issue an appropriate case number.

(2) Thereafter a copy of all the papers fi led of record shall be submit-ted to the Master under cover of a letter requesting a report and the Registrar’s case number should appear from the documents thus served upon the Master.

(3) The onus will thereafter be on the attorney to lodge the Master’s report in the appropriate court fi le and shall not enrol the matter until he or she has done so.44

(4) The provisions of paras (1) to (3) above shall apply equally to all ap-plications for Voluntary Surrender.45

(5) Applications for the court’s sanction where it is required under the Companies Act should fi rst be submitted to the Registrar of

40 CN 14; PN 3.

41 New.

42 CN 15

43 CN 16

44 PN 5.

45 See PN 5, as amended, and as published in 2000 (4) SA 135.


304

Companies for a report, and such report is to be included in the papers placed before the court.46

(6) The procedure set out in the preceding sub-paragraph shall, subject to the provisions of section 97(1) of the Deeds Registries Act, 47 of 1937, apply mutatis mutandis in all cases requiring a report by the Registrar of Deeds.47

32. Removal of Restrictions from Title Deeds48

In applications for the removal of restrictions from title deeds imposed in terms of a Town Planning Scheme, the order to be issued should, as far as possible, follow the form as approved in Ex parte Kilian; Ex parte Wiehahn 1963 (2) SA 576 (T).

33. National Credit Act 34 of 200549

(1) In any action instituted in terms of the National Credit Act 34 of 2005 (the Act), the summons or particulars of claim must allege that there has been compliance with the relevant provisions of sections 127, 129 and 131 (as the case may be), read with section 130 of the Act.

(2) In order to satisfy the court of the matters referred to in section 130(3) of the Act, an affi davit by the credit provider must be fi led when judgment is applied for.

34. Urgent Applications 50

(1) When an application is alleged to be of extreme urgency, the ap-plicant’s legal representative shall approach the Registrar to arrange a hearing as soon as possible in consultation with the duty judge.

(2) Practitioners are expected to adhere as far as possible to the basic requirement of Rule 6(5)(a) that Form 2(a) be used in applications, including applications with an element of urgency. (In this regard, the attention of practitioners is drawn to the judgment in Gallagher v Norman’s Transport Lines 1992 (3) SA 500 (W) at 502 D - 504C.)51

(3) Opposed matters which are not of extreme urgency but which are nevertheless too urgent to await a hearing in the ordinary course on the continuous roll, will be granted some preference. For convenience these matters are called ‘semi-urgent’ matters.

35. ‘Anton Piller’ Orders 52(1) In all applications brought ex parte for an order to allow the entry

and search of premises (an ‘Anton Piller’ order), a draft order substan-tially in accordance with Form “C” in the Schedule hereto (varied or amplifi ed to the extent necessary in particular circumstances) is to be attached.

46 CN 17

47 New.

48 PN 17

49 PN 25

50 CN 11

51 New. See Erasmus Superior Court Practice D5-1.

52 PN 18


305

(2) When service of the order is effected, it shall be accompanied by a copy of the notice to respondent substantially in accordance with Form “D” in the Schedule hereto (varied or amplifi ed to the extent necessary in particular circumstances), and the attention of the per-son served is to be pertinently directed to such notice and order, and no further steps in pursuance of the order shall be taken until the notice and order have been read or read to and understood by the said person and he has availed himself of his rights thereunder should he wish to do so. Where necessary, the services of an interpreter are to be called for.

(3) The ‘supervising attorney’ referred to in the notice and draft order should be an attorney whom the court considers suitable in the cir-cumstances and who is not a member or an employee of the fi rm acting for the applicant. The application shall include information as to the identity and experience of the proposed supervising attorney.

(4) Where the premises concerned are likely to be occupied by an unac-companied woman and the supervising attorney is a man, at least one of the persons attending on the service of the notice and order should be a woman.

(5) The order and the accompanying notice are to be served by the sher-iff and the contents explained by the supervising attorney in whose presence and under whose supervision the provisions of the order are to be carried out. The supervising attorney shall ensure that no items are removed from the premises until a list of items to be removed hasbeen prepared, and a copy thereof has been supplied to the appli-cant’s attorney and the person served with the order, if present, and such person has been afforded a reasonable opportunity to check such list. The supervising attorney shall not permit the premises to be subjected to a search for items not appearing on the schedule of listed items referred to in paragraph 2 of the order.

(6) The supervising attorney shall fi le with the registrar, by no later than noon on the day but one preceding the return day of the order, a concise report describing the manner in which the order was com-plied with. The supervising attorney shall ensure that a copy of his/her report is delivered to applicant’s attorney and to respondent (or his/her attorney, if represented).

36. Hague Convention Matters53

(1) Ail applications brought pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 will ordinarily be treated as urgent, subject to the right of any party to argue that it should not be so treated in any given case.

(2) It will be the responsibility of the applicant’s legal representa tives to ensure that the court fi le is clearly endorsed so as to indicate that it is

53 New.


306

a ‘Hague Convention’ matter. Where an applicant is not represented, the Registrar should assist litigants insofar as is possible.

(3) The relevant court fi le must be placed before the duty judge at the earliest opportunity.

(4) Should the matter not be disposed of by the judge in the urgent court during the course of that particular week, the judge that dealt with the matter or another judge designated by the Judge President will ordinarily be seized with the matter and will continue to manage the case procedurally, with due regard to the urgency thereof, until it is ripe for hearing, the aim being to ensure fi nalisation within a maxi-mum of 6 weeks from date of issue of the application.

37. Chamber Book Applications54

Applications may be brought through the Chamber Book in the following matters; -

(1) to authorise the issue of process on Saturdays, Sundays, public holi-days and outside the times specifi ed in Rule 3;

(2) for directions as to the set down of applications referred to in Rule 6(11);

(3) for judgment on confession as provided for in Rule 31 (1);(4) for judgment following acceptance of an offer or tender and failure

to pay or perform within the period specifi ed in Rule 34(7);(5) for an order for payment of unpaid costs following acceptance of an

offer or tender made in terms of Rule 34(9);(6) for an order as to the conditions for the conduct of an examination as

provided for in Rule 36(3);(7) for an order to resolve a dispute as contemplated in Rule 36(7);(8) for an order for the transcription of a record (see Rule 39(19));(9) for an order by consent of the parties for the transfer of a trial to the

magistrate’s court, subject to the proviso in Rule 39(22);(10) for leave, in an in forma pauperis matter, to withdraw, settle or com-

promise the proceedings or to discontinue assistance therein and for the giving of directions as to the appointment of a substitute(s) (see Rule 40(5));

(11) for directions for service in applications involving the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) 19 of 1998;

(12) for an order on a case submitted by the taxing master (including an award as to costs) in terms of Rule 48(2);

(13) for an order by consent of the parties for the promotion of a matter on the roll, such matter to be decided by the Judge President or, in his or her absence, by the senior duty judge;

(14) for an order by consent of the parties removing a matter to another division of the High Court or to a circuit court or for the removal of a

54 CN 26.


307

matter from the circuit court to the court sitting in Cape Town or for the removal of a matter to the Divorce Court;

(15) for an order for the substitution of a curator ad litem;(16) for an order referring any matter concerning the welfare, custody or

maintenance of minors to the Family Advocate for investigation and report;

(17) for the grant of an interdict (or the amendment or the setting aside thereof) by consent of the parties pursuant to the provisions of the Prevention of Family Violence Act, 1993;

(18) applications by minors for leave to marry or to enter into apprentice-ships or other contracts where the court’s sanction is sought;

(19) applications to compel the fi ling of opposing papers where a notice of opposition has been fi led, but no further steps have been taken by the respondent, failing which the matter may be enrolled on the unopposed roll;55

(20) for any order which is required to be brought in Chambers by reason of the provisions of any Act or law or these Practice Notes.

D. TRIALS AND OTHER OPPOSED MATTERS

38. Upon the close of pleadings, the plaintiff’s attorney, or if he or she fails to do so, any party, may apply for a trial date by entering the relevant particu-lars as required by the Registrar in a register kept for that purpose.56

39. Before applying for a date of set-down, the attorney in question shall col-late, number consecutively and suitably secure all pages of the pleadings and documents in the court fi le. A complete index thereof, together with a questionnaire substantially in accordance with Form “E” in the Schedule hereto, shall also be prepared and delivered.57

40. The Registrar will not allocate a trial date in any trial matters until such time as the provisions of Practice Note 39 above have been complied with.

41. Pre-Trial Procedure and Case Management58

(1) In order to ensure that it is effective, a pre-trial conference should be held after discovery and after the parties have exchanged documents and further particulars.59

(2) At a pre-trial conference the parties must genuinely endeavour to achieve the objects of Rule 37 (by defi ningtriable issues and curtailing

55 PN 23

56 Cf Old Cape Rule 34(1).

57 CN 3(5), CN 28(i) (modifi ed).

58 PN 8, 9, 15. This largely repeats the existing practice, but forms the subject of further discussions. A new

pre-trial procedure will hopefully be implemented in the near future.

59 New.


308

proceedings) and the minute must show this.60(3) A document which purports to be a pre-trial minute but which does

not achieve the objects of Rule 37 (e.g. if it is a mere recordal or para-phrase of the agenda items for discussions at a Rule 37 conference), shall not be accepted as a proper pre-trial minute. Proper compliance with Rule 37(4) is required to ensure a meaningful conference.661

(4) Where any party is of the view that the matter is ready for trial, but no notice of a trial date as contemplated by Rule 37(1) has as yet been received, or that for any other reason a conference as contemplated by Rule 37(8) before a judge in Chambers needs to be convened, such party may apply through the Chamber Book, on notice to all other parties, for an order that such a conference be convened; provided that no such conference will be convened unless the party requesting the conference has complied with the provisions of Practice Note 39 above.

42. Allocation of Opposed Matters(1) Where a matter set down for hearing on the continuous roll is placed

before the Judge President for allocation to a judge, and the provi-sions of Rule 62(4) have not been complied with, or the signed min-ute referred to in Rule 37(1)(a) has not been fi led, the Judge President may refuse to allocate such matter to any judge and may order that the matter be struckfrom the roll for the date for which it has been set down, and he/she may make such other order or orders as to him/her seems appropriate, including any order as to costs.62

(2) Before 09h30 on the day before a matter on the continuousor opposed motion roll is set down to commence, theplaintiff’s / applicant’s counsel (or in the event of the plaintiff’s/ applicant’s counsel not being available, his/her instructingattorney) shall advise the secretary to the Judge President inwriting (including facsimile and/or e-mail)63 -(a) whether or not the matter has been settled;(b) if not settled, what the prospects are of the matter being

settled;(c) of the likely duration of the matter;(d) the names and telephone numbers of counsel on both sides;

and(e) a brief description of the issues involved.64

60 New.

61 New.

62 PN 9.

63 Fax No 021 423 4977; E-mail: [email protected]; [email protected]

64 PN 19


309

(3) As soon as possible after counsel becomes aware that in aparticular matter on the continuous or motion roll witnessesand/or counsel from out of town will be testifying orappearing, this information shall be conveyed by counsel tothe secretary to the Judge President.

(4) If an opposed matter is settled, or is to be withdrawn or postponed, or if any issue raised will not be pursued, the attorney of record shall, without delay, notify the Registrar in terms of Rule 41(3) and, where applicable, shall immediately delete the entry on the continuous roll.65

43. Early Allocation of Opposed Matters(1) If any matter on the continuous roll requires early allocation, the legal

representatives for the plaintiff, excipient or applicant (as the case may be), shall after compliance with the provisions of Rule 62(4), de-liver to the secretary of the Judge President, not less than ONE WEEK before the date of hearing, the relevant court fi le, together with a notice to that effect, setting out the case number, the names of the parties and their legal representatives, and the date of hearing.66

(2) The notice shall otherwise comply with the provisions of Practice Note 42(2) above and shall include a list enumerating those parts of the record or the heads of argument, if applicable, which, in the opinion of the parties’ legal representatives, are not relevant for the determination of the matter.67

(3) Matters will be deemed to require early allocation, as contemplated above -(a) where the papers (including annexures) in the matter exceed

200 pages; or(b) where the issues are such that the judge allocated to hear the

matter would, in order to prepare for the hearing, reasonably need to receive the papers earlier than he or she would nor-mally do so (that is, the day before the hearing).68

(4) Failure to comply with the provisions of this notice may result in the matter not being heard on the allocated day.69

44. Opposed Motions 70

(1) The Registrar shall keep an Opposed Motion Roll, separate from the continuous roll for trials.

(2) The applicant or respondent in an opposed motion shall apply to the Registrar for a date of set-down on the Opposed Motion Roll in terms of Rule 6(5)(r) after complying with the requirements of Practice Note 39 above.

65 CN 5.1

66 CN 8.1

67 CN 8.2, 8.3

68 CN 8.4

69 CN 8.5

70 CN 13, as modifi ed.


310

(3) The Registrar shall allocate the fi rst available date of set-down and shall give notice to all parties of such date, which date shall not be less than 25 days from the date of such notice.

(4) The applicant’s legal representative shall, together with the appli-cant’s heads of argument, fi le a short note setting out the name and number of the matter, the names of counselinvolved (if known) and, in brief, the nature of the matter and its estimated duration. If an applicant is not represented, this sub-paragraph shall be complied with by respondent’s legal representative.

E. APPEALS & HEADS OF ARGUMENT

45. Leave to appeal 71

Whenever an application for leave to appeal to the Supreme Court of Appeal or to the Full Court of this Division is lodged with the Registrar, the following procedure will apply, both to civil and criminal matters:

(1) Counsel or the attorney for the applicant for leave to appeal shall simultaneously therewith deliver a copy of such appli cation together with the relevant court fi le to the judge against whose judgment and/or order the application is directed.

(2) Counsel or the attorney for the applicant for leave to appeal shall, af-ter consultation with counsel or the attorney for the respondent, and not later than 10 days after the lodging of the application, approach the judge in chambers in order to arrange for a convenient time and date for the hearing of the application.

(3) Whenever counsel or the attorney for the applicant fails to take the steps provided in para (2) above, the attorney for the respondent may not later than 15 days after the lodging of the application and on 48 hours notice to the attorney for the applicant approach the judge to arrange a time and date for the hearing of the application.

(4) An unrepresented party who lodges an application for leave to ap-peal shall simultaneously therewith deliver to the Registrar an ad-ditional copy of the application which is endorsed for delivery by the Registrar, together with the relevant court fi le, to the judge against whose judgment / order the application is directed.

(5) Whenever a party in a civil matter is unrepresented, the provision of paragraphs (2) and (3) shall be complied with as if such party was his/her own legal representative save, however, that the unrepresented party and/or the legal representative of any other party shall approach the Registrar who will in turn approach the judge in order to arrange for a convenient time and date for the hearing of the application.

(6) Whenever the applicant for leave to appeal in a criminal matter is

71 PN 7 (modifi ed)


311

unrepresented, the Director of Public Prosecutions or his/her repre-sentative shall not later than 15 days after the fi ling of the application approach the Registrar who will in turn approach the judge in order to arrange for a convenient time and date for the hearing of the ap-plication. The Registrar shall give the applicant written notice of the date fi xed, which notice shall be posted to the applicant not less than 10 (ten) days before the hearing.

(7) Where counsel and/or the attorney for a party or the party, as the case may be, fails to comply with the provisions afore said, the judge may take such steps as he/she deems necessary to deal with the application.

46. Civil Appeals 72Heads of argument in all civil appeals to the Full Court of this Division and all civil appeals from the Magistrates’ courts shall be delivered in accordance with the provisions of Rules 49(15) and 50(9) respectively.

47. Criminal Appeals to the Full CourtHeads of argument in all criminal appeals to the Full Court of this Division shall be delivered in accordance with the provisions of Rules 49A (3), (4) and (5).

48. Criminal Appeals from Magistrates’ CourtsHeads of argument in all criminal appeals from the Magistrates’ courts shall be delivered in accordance with the provisions of Rule 51(4). Pursuant to this rule the Judge President of this Division has determined as follows:

(1) The appellant’s heads of argument and list of authorities together with two copies thereof shall be delivered not less than 15 days be-fore the date on which the appeal is set down for hearing and the respondent’s not less than 10 days before such date,

(2) Delivery by the appellant of heads of argument in terms of Rule 51(4), read with Rule 1, shall include service on the Director of Public Prosecutions of such heads of argument in accordance with the time-periods provided for in para (2) above.

(3) Not less than 30 days prior to the date on which a criminal appeal from the Magistrates’ court is set down for hearing, the attorney of record or advocate for the appellant (or the appellant) shall confi rm in writing to the Director of Public Prosecutions that the appeal is to proceed on the date allocated in the notice of set-down for the hearing thereof. Failing timeous receipt by the Director of Public Prosecutions of such confi rmation, the appeal will not be heard on the allocated date and will be struck from the roll.73

49. Appeals Generally(1) Failure on the part of an appellant to comply with the provisions of

Rules 49(15), 49A(3) and (5), 50(9) and 51(4) as read with Practice

72 CN 9

73 CN 9


312

Note 53(1) above may result in the appeal being struck from the roll or dismissed. Failure on the part of a respondent to comply with any of the said provisions will result in the court making such order there-anent as it deems fi t, unless in each such instance condonation of such failure is sought on good cause shown on written application, and is granted. In the case of a civil appeal, the court may make such order or orders as to costs as may to it appear appropriate.

(2) ‘Heads of Argument’ shall mean, in addition to or in lieu of the ‘con-cise and succinct statement of the main points (without elaboration) which he intends to argue on appeal’ as provided for in Rules 49(15), 49A(3), 50(9) and 51(4), full heads of argument with, where appro-priate, references to the record and to the authorities relied upon, together with a list of such authorities. Appellant or his or her legal representative(s) shall, when delivering the heads of argument and after consultation with the other parties’ legal representative(s), fi le a statement setting out which portions of the record, if any, they regard as irrelevant to the appeal and to which they do not intend to refer.

(3) ‘Deliver’ in Practice Notes 51, 52 and 53 above shall include the hand-ing in of heads of argument at the offi ce of the Registrar (Room 24 in the case of criminal appeals and Room 5 in the case of all civil appeals) and the entering of the required particulars in the register for heads of argument by the person handling the same.

(4) The Judge President may, in any particular instance when he/she deems it expedient to do so, determine earlier dates than those pro-vided for in this Notice.

50. Heads of Argument in Other Matters74

(1) In all matters (except trials and civil or criminal appeals) which have been set down for hearing or argument on a spe-cifi c date by the Registrar, heads of argument as defi nedin Practice Note 49(2) above and clearly indicating the names of the parties, the number of the case and the date upon which it is set down on the roll shall be delivered bycounsel as follows, viz.(a) by the delivery of an appropriate number of copies of the

heads of argument of plaintiff, applicant, or excipient (as the case may be) to Room 5 of the offi ce of the Registrar and by the entry of the required information in the register of heads of argument by the person who fi les same not less than 10 days before the date upon which the matter is to be heard;

(b) by like delivery of the heads of argument of defendant or re-spondent (as the case may be) in like manner not less than 5 days before the said date;

74 CN 10


313

(c) by exchange between the parties’ attorneys of a copy of each party’s heads of argument on the dates on which same are fi led in Room No 24 by Counsel;

(2) The Judge President may in any particular instance determine earlier or later dates than those prescribed in these directions.

(3) Failure on the part of a plaintiff, applicant, excipient or appellant (as the case may be) to comply with the provisions of these directions may result in the matter being struck from the roll or dismissed. Failure on the part of defendant or respondent (as the case may be) to comply with the said provisions will result in the court making such order as it deems fi t, unless in each case condonation of such failure is sought on good cause shown by way of written application and is granted; and the court may make such order or orders as to costs as may to it appear appropriate.

F. CRIMINAL MATTERS

51. Pre-trial Conference in Criminal Matters 75

(1) The provisions of this rule shall apply to all criminal trials to be heard in the High Court from the beginning of the Second Term, 2008.

(2) All criminal trials shall be preceded by a pre-trial conference con-ducted in terms of this rule.

(3) The notifi cation of the trial date shall be accompanied by a notice of the date upon which the pre-trial conference is to be conducted in terms of this rule.

(4) The pre-trial conference shall be conducted under the control of the presiding judge.

(5) The pre-trial conference shall in all cases be attended by:(a) the accused;(b) the legal representative of the accused;(c) a representative of the DPP,

(6) The purpose of the pre-trial conference is to consider, and, where appropriate, to address matters such as:(a) the legal representation of the accused;(b) admissions sought by the DPP and the accused;(c) the consideration of plea agreements;(d) the compliance by the parties of their pre-trial obligations in

terms of the Act and the rules;(e) the state of readiness for trial of the respective parties.

(7) All parties may seek directives from the presiding judge in regard to the implementation of any pre-trial procedures.

(8) The DPP shall be responsible for the preparation of a minute of the

75 PN 26.


314

conference, to be fi led as soon as possible after the conclusion of the conference,

(9) The procedure set forth in this Practice Note is intended as a pilot project to avoid unnecessary delays in criminal trials. Amendments to the procedure may be considered on an ongoing basis in the light of the experience gained by all participants in the course of the applica-tion of this rule in practice.

52. Pro Deo / Legal Aid counsel in Third Division(1) Practitioners acting at the request of the court or upon legal aid in-

structions in High Court criminal trials will be allowed to retain their briefs to appear in respect of unopposed matters in Third Division on the same day; provided that they shall -(a) notify in advance the registrars of the respective judges presid-

ing in their criminal trial and in Third Division of the fact;(b) appear in Third Division at 10h00 when their matters will re-

ceive precedence; and(c) report back to the registrar of the judge presiding in the

criminal trial as soon as their unopposed matters have been disposed of.

(2) Save as set out above, such practitioners will not be allowed, without the prior consent of the judge presiding in the criminal trial, to retain any clashing briefs for appearances in any other courts while the criminal trial is running.


315

SCHEDULE-FORMS

A. Default Judgment (PN 28)

B. Default Judgment - Draft Order (PN 28)

C. Anton Piller Order (PN 35(1))

D. Anton Piller Notice (PN 35(2))

E. Rule 37 Questionnaire (PN 39)


316

“A”

APPLICATION FOR JUDGMENT BY DEFAULT (RULE 31(5))

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.:

In the matter between: Plaintiff

and Defendant

(a) The summons has been duly served on the defendant on (b) The time for entering appearance to defend having expired on (c) The defendant has not entered an appearance to defend.

The plaintiff hereby applies for judgment by default against the defendant as claimed in the summons, in accordance with the attached draft, as follows:

1. Payment of the sum of R 2. Interest on the said sum at the rate of % per annum from to date of

payment.3. Costs of suit.

DATED THIS DAY OF 20..

PLAINTIFF/PLAINTIFFS

ATTORNEY ATTORNEY &

TELEPHONE NUMBER


317

„B“

JUDGMENT BY DEFAULT (RULE 31(5))

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.


Plaintiff

And DefendantAfter having read the summons and other documents fi led of record, judgment by default is granted in favour of the plaintiff for:

1. Payment of the sum of R 2. Interest on the said sum at the rate of % per annum as from to date of

payment.3. Costs in the sum of R200.00 (plus the Sheriff’s fees) or R650,00 (plus the Sheriff’s

fees) or taxed costs. (Delete which are not applicable).

REGISTRAR

Any other directions in terms of Rule 31(5)(b)(iii) - (vi) inclusive

REGISTRAR



318

FORM “C”

EX PARTE: APPLICANT

IN RE: APPLICANT vs RESPONDENT

ORDER

1. Respondent is called upon to show cause before this court at 10.00 on why an order in the following terms should not be made:(a) that the listed items in the possession of the sheriff pursuant to the

execution of this order should not be retained by him pending the directions of the court; and

(b) why the costs of this application, including the costs of the supervis-ing attorney, should not stand over for determination in the action referred to in paragraph 7 below.

2. Respondent or the person on whom service is effected in terms of paragraph 9(a) below is ordered to allow the sheriff, AB (“the supervising attorney”) together with CD applicant’s attorney and EF being (their capacity stated) accompanying them to immediately enter the following premises namely, and any vehicles on such premises, for the purpose of searching for, and delivering into the possession of the sheriff all the documents and articles which are listed in the schedule set out at the foot of this order (“the listed items”) or which any of the aforementioned persons believes to be listed items.

3. Respondent or the person on whom service is effected in terms of para-graph 9(a) below is further ordered to permit the said persons to remain on the premises until the search has been completed, and if necessary to re-enter the premises on the same or following day in order to complete the search.

4. The supervising attorney shall, together with the sheriff, make a list of all items removed by the sheriff in terms of this order. A copy of this list shall be handed by the supervising attorney to applicant’s attorney and to the respondent or the person referred to in paragraph 3 above, if present, and a copy shall be retained by the sheriff.

5. In the event that any of the listed items exists only in computer readable form, respondent or the person referred to in paragraph 3 above is ordered to forthwith provide the sheriff with effective access to the computers, with all necessary passwords, to enable them to be searched, and cause the listed items to be printed out; a print-out of these items is to be given to the sheriff or displayed on the computer screen so that it may be read and copied by him.

6. AH listed items or copies thereof taken into possession by the sheriff pursu-ant to this order, shall be retained by him until the court orders otherwise. Save as provided hereinafter, no person shall be entitled to inspect any of the items taken into possession by the sheriff nor shall any copies be


319

made of such items. Provided that pending the return day and for the sole purpose of satisfying himself that the inventory correctly refl ects the items seized, respondent or his attorney, shall be entitled to inspect the items in the sheriff’s possession.

7. Applicant is directed to institute an action against respondent in which the listed items are concerned within 10 days of the date of this order, and if he fails, without good reason being shown on the return day to have instituted such action by that date, the sheriff shall be obliged to return all the listed items immediately to respondent, and in such event the court, in its discretion, shall make such order as it deems meet. This order shall under no circumstances constitute against applicant for damages (or other relief) sustained or claimed in consequence of these proceedings.

8. On the return day there shall be placed before the court the report of the supervising attorney with proof that a copy thereof has been served on applicant’s attorney and on respondent (or his attorney) and an affi davit of the applicant’s attorney that the said action has been instituted, and if not the reason why this has not been done.

9. (a) Service of this order together with the notice to respondent shall be effected by the sheriff on the respondent or the person in charge of the premises and the contents thereof explained by the supervising attorney before the provisions of paragraph 2 of this order are carried out.(b) In addition to the service referred to in sub-paragraph (a) above, ser-

vice of this order together with the notice of motion and supporting affi davits and accompanying notice to respondent shall be effected by the sheriff in accordance with the Rule of court by not later than 48 hours after the supervising attorney has directed that the search has been completed.

(c) The provisions of paragraphs 2, 3 and 5 of this order may only be car-ried out in the presence and under the supervision of the supervising attorney.


320

FORM “D”

EX PARTE: (APPLICANT) IN RE:

(APPLICANT) vs (RESPONDENT)

NOTICE TO RESPONDENT1. The order being served on you requires you to allow the persons named

therein to enter the premises described in this order and to search for, ex-amine and remove or copy the articles specifi ed in the order. You are also required to hand over any of the specifi ed articles on the premises or under your control to the sheriff.

2. When these documents are handed to you, you are entitled, if you are an employee of respondent or in charge of the premises, to contact respondent immediately and you or respondent are entitled to contact an attorney and have him come to the premises to advise you. The attorney must be called and must arrive without delay, and the supervising attorney must inform you as to how long the search can be delayed so as to have the attorney present. Until the attorney, if called, arrives or until the time has passed for him to arrive, you need not comply with any part of this order, except that you must allow the supervising attorney, the sheriff and the other persons named in the order to enter the premises and to take such steps as, in the opinion of the supervising attorney, are reasonably necessary to prevent any prejudice to the further execution of this order.

3. You are further entitled to have the supervising attorney explain to you what this notice and order mean.

4. If you disobey this order you will be guilty of an offence, that is, contempt of court.

5. If the order being served upon you was granted in your absence and with-out notice to you, you are entitled -(a) in terms of Rule 6(8) to anticipate the return day of the order upon

delivery of not less than 24 hours’ written notice; and/or(b) in terms of Rule 6(12)(c) by similar notice to set down the matter for

reconsideration of the order. 76

76 New. See Sun World International Inc v Unifruco Ltd 1998 (3) SA 151 (C) at 161 J - 162 C.


321

FORM “E“

RULE 37 QUESTIONNAIRE

NOTE 1: This questionnaire must be completed on behalf of each of the parties to the action by the Attorney who on behalf of his/her client is respon-sible for the running of the action or where a party is unrepresented, by such party personally,

NOTE 2: The completed questionnaire must be fi le with the Registrar and a copy thereof must be delivered to all other parties not later than THREE MONTHS after the entry date.

CA SE NO: /20 TITLE OF ACTION: (1st) Plaintiff (2nd) Plaintiff

and

(1st) Defendant

(2nd) DefendantNATURE OF THE ACTION: PARTY FILING THIS FORM: NAME OF ATTORNEY COMPLETING THIS QUESTIONAIRE: CONTACT TELEPHONE NUMBER: NAME/S OF COUNSEL REPRESENTING YOUR CLIENT:

1. DISCOVERY(a) Have discovery and inspection been completed? (b) If not, what is outstanding?

2. PARTICULARS FOR TRIAL(a) (i) Are any replies to Requests for Particulars for Trial in respect of your

pleadings outstanding?(ii) If so, when will the Particulars be delivered?

(b) (i) Have you received all the Particulars that you require? (ii) If not, have you requested them?

3. AMENDMENTS(a) (i) Do you at present intend to amend your pleadings?

(ii) If so, when?(b) Can you make any additional admissions? (c) (i) Are you intending to join any further parties?

(ii) If so, whom and when?


322

4. ISSUES(a) What are the important issues in the action?(b) (i) Are any of them capable of resolution by agreement?

(ii) If so, have steps been taken to seek the required agreement?(c) (i) Are any of the issues in the action suitable for trail as preliminary or

separate question in terms of Uniform Rule 33(4)?(ii) If so, what issues are they?

5. EXPERT EVIDENCE(a) On what topics issues may you wish to call expert evidence?(b) (i) How many experts do you expect to call?

(ii) Can you at this stage indicate -(aa) their names? and/or(bb) the nature of their expertise? and/or(cc) the topics/issues upon which each will testify?

(c) By what date can you deliver their written reports to all the other parties?

(d) (i) Is there scope for agreement between any of the parties’ experts?(ii) Would a meeting of such experts be useful? If not, why not?

6. TRIAL(a) What is you present estimate of the length of the trial?(b) What is the earliest date that you believe that you can be ready for

trial?7. INDEXING OF PLEADINGS

Has there been compliance with the provisions of Court Notice 3(5)?

8. SETTLEMENT OF THE PARTIES’ DISPUTESIs there any way in which the Court can assist the parties to fully or partially resolve their dispute without the need for a trial/full trial?

Does any party request that a conference be held before a judge in cham-bers, as contemplated by Rule 37(8)?

9. ALTERNATIVE DISPUTE RESOLUTION(a) Have the parties considered mediation or another alternative dispute

resolution procedure?(b) If not, could such consideration be worthwhile?

DATE:

SIGNATURE OF ATTORNEY

323323

KWAZULU NATAL PROVINCIAL DIVISION PRACTICE DIRECTIVES

1. Introduction ........................................................................................................... 12. Service of Process ................................................................................................ 23. Filing of Returns of Service.................................................................................. 34. The Short Form of Summons............................................................................... 35. Mora Interest.......................................................................................................... 46. Bank Overdraft Interest ........................................................................................ 57. Confession to Judgment ...................................................................................... 58. Application Procedure ......................................................................................... 59. Opposed Applications .......................................................................................... 810. Urgent Applications ............................................................................................ 1111. Practice in regard to so-called “Friendly” Sequestrations.............................. 1212. Service of and Extension of the Rule Nisi in Provisional Sequestration

and Liquidation Applications............................................................................. 1413. Divorce Custody and Other Matrimonial Cases ............................................... 1414. Marriage Certificates........................................................................................... 1515. Divorce Settlement Agreements ........................................................................ 1516. Variation of Custody Orders .............................................................................. 1617. Application for a Change in the Matrimonial Regime ...................................... 1718. Curators ad Litem................................................................................................ 1719. Applications to Compel Delivery of Further Particulars ................................. 1720. Service on the Registrar of Deeds in Applications for the Removal of

Title Deed Restrictions ....................................................................................... 1821. Expedited Hearing............................................................................................... 1822. Separation of Issues in terms of Rule 33(4)...................................................... 2123. Bail Appeals......................................................................................................... 2224. Applications for Striking-off of Practitioners in Pietermaritzburg .................. 2225. Applications for Default Judgment in Actions for Damages........................... 2326. Claims in which immovable property should be declared executable ........... 2327. Admiralty arrest warrants in terms of Rule 4(3) ............................................... 2328. Action in terms of National Credit Act No. 34 of 2005...................................... 2429. Urgent appointments of provisional liquidators in winding-up

applications ......................................................................................................... 25


324

ii30. Social Assistance Grants ................................................................................... 2531. Effort to reduce the backlog in all trials including RAF matters ..................... 29Guidelines in Respect of Practice Directive 31 ........................................................... 3132. .............................................................................................................................. 3233. Applications for Leave to Appeal against a Refusal of a Petition................... 32Civil and Criminal Appeals to full Courts .................................................................... 3334. Preparation of Court Papers in All Matters ....................................................... 3635. A Single High Court for the entire Country....................................................... 37


325

PRACTICE MANUAL OF THE KZN DIVISION OF THE HIGH COURT

1. Introduction

This is an attempt to consolidate into one document the rules of practice of this

Division. Much of it will be repetition of what has gone before. Judges President in

the past have issued practice directives and where they are still applicable these

will simply be incorporated herein. Where we have felt it necessary to modify or

even change a rule of practice we have indicated this in the text. Changes have

taken place since some of these past directives. One that comes to mind is the

Rule of Court which permits the registrar to grant default judgment in respect of

liquidated claims.1 That has significantly reduced the number of cases on the daily

motion court rolls. However the previous directives are still of application in regard

to issues such as, for example, the sufficiency of allegations in a simple summons.

What is meant by the practice of the court? This deals essentially with the daily

functioning of the courts. It sets forth how we in KZN do things. Obviously it does

not seek to override the Rules of Court which of course have the force of law.

Practice directions supplement the rules. They are intended to act as a ruling in

advance, as it were, by all the judges of the Division as to how they expect things to

be done and what is expected of practitioners.

Judges are however not bound by practice directives. While we obviously strive to

achieve uniformity it must clearly be understood that these directives cannot fetter

the exercise of a judge’s discretion and in an appropriate case he/she may be

persuaded to relax or change a practice of the court. We envisage that this will

only arise in exceptional circumstances. If a judge does depart from a particular

practice this will not be regarded as a modification of the practice. Changes can

only come about if this is done with the authority of the Judge President in consultation with the other judges of the Division.

1 See Rule 31(5)


326

22. Service of Process2

2.1. On Company or Corporation3

Where service is effected by affixing the process to the principal door at the

registered office of a company the Sheriff must state in his return that he

ascertained that there was a board at the office indicating that this was

indeed the registered office of the company. In the absence of such

indication practitioners must present to the court or the registrar the form

CM22 issued by the registrar of companies to prove the efficacy of the

service.4

2.2. Service at domicilium citandi et executandi 5

Apart from making the allegation that the address in question is the chosen

domicilium practitioners are required to produce to the court or the registrar

when service is proved a copy of the document wherein the defendant chose

such domicilium. In many instances this document will probably form part of

the application or action but there will be cases where a simple summons

makes the bare allegation.6

Rule 4(10) makes it clear that the court has a discretion whether to accept

service at a domicilium as good service. Whether such service will be

accepted as good service will depend on the particular facts of each case.

There is, however, no rule of practice to suggest that such service is

ordinarily not good or effective service. In most case it will be regarded as

good service.7

2.3. Where an application for default judgment is made six months after the date

of service of the summons, it is both the practice of the registrar’s office and

the Court to require that a notice of set down be served on the defendant

informing him/her that such default judgment will be sought on a given date

and time8, such date and time being not less than five days from the date of

the notice.

2 Rule 4 3 Rule 4(1)(a)vii 4 This a change to the existing practice. 5 Rule 4(1) a(iv) 6 This is a change to the existing practice. 7 JP’s memorandum 14/7/1982


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33. Filing of Returns of Service9

Returns of service must be filed timeously. It is the duty of the attorney to ensure

that the Sheriff’s return of service (or where informal service has been effected,

proof of such service) is in the judge’s papers before they are sent to the judge’s

chambers. This also applies to newspaper tearsheets in cases where, for

example, service has been effected by substituted service and where publication

has been ordered in winding up proceedings. If for some reason, the return or

other proof of service cannot be filed timeously then an explanation must be

included in the judge’s papers. In future, the papers will not be read in the absence

of the return of proof of service or a satisfactory explanation for the absence of such

documents.

4. The Short Form of Summons

Rule 17(2)(b) provides that where a claim is for a debt or liquidated demand the

summons shall be as near as may be in accordance with form 9 of the first

schedule. The following rules of practice apply in relation to the sufficiency of

allegations in the summons.

The court cannot have regard to returns of service to determine whether it has

jurisdiction. The averments necessary to establish jurisdiction must be made in

the summons. Adjournments will however be granted to effect the necessary

amendments10, subject, of course, to questions of wasted costs which may

arise.

An allegation in a summons that a natural person is “of “a certain address, will

be regarded as a sufficient allegation that that is his place of residence, but an

allegation that a person is “care of” a certain residence will not.

8 New practice 9 JP’s memorandum 14/7/1982 10 JPs memorandum 14/7/82


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4 An allegation that an artificial person is “of” a certain address will not be

regarded as an allegation that that is its registered office or principal place of

business.

Where in actions other than divorce actions, the summons states that “the whole

cause of action arose within the area of jurisdiction of this honourable court”,

that will be regarded as a sufficient allegation.

The summons must make it clear whether the claim is for a debt or liquidated

demand or a claim for damages and contains the allegations that the cases

have established as being necessary.

An allegation that a claim is for “the price of goods sold and delivered” will be

regarded as a sufficient description of the cause of action. Likewise an

allegation that the amount claimed is “in respect of goods sold and delivered” is

sufficient.11

Where the cause of action is founded on a deed of suretyship it is necessary to

set out the cause of action giving rise to the original debt. (It is not necessary to

annex the suretyship agreement to a simple summons. In summary judgment

proceedings it will be necessary to do so if the document is in fact a liquid

document.

5. Mora Interest

A court making an order for the payment of interest can only decide if the rate is

lawful at the date of judgment and make an order accordingly. Furthermore,

interest at the rate laid down in Act No 55 of 1975 can only be ordered if there is no

agreement as to the rate of interest.12

11 JP’s memorandum 15/12/86 12 JP’s memorandum 15/12/86


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5When mora interest is claimed on a dishonoured cheque, the date of presentment

must be alleged in the summons; if this is not done, interest will run only from the

date of service of the summons.

6. Bank Overdraft Interest

Where the agreement between banker and customer provides that interest will be

paid at the “current overdraft rate” and there has been a change in the rate of

interest since the date of issue of the summons an employee of the bank is required

to put up a certificate setting out all relevant changes in the overdraft rate since the

date of issue of summons as well as dates upon which such changes occurred.13

7. Confession to Judgment14

Where application is made through the registrar for the entry of judgment in terms of

a confession, the party submitting same is required to depose to an affidavit which

shall set forth all payments made subsequent to the execution of the confession

and demonstrate how the capital and interest claimed is calculated. In addition

such affidavit shall also very briefly set out the nature of the default that gave rise to

the plaintiff’s entitlement to lodge the confession15 and any reason for the delay in

submitting the confession.

8. Application Procedure 16

8.1. Introduction There are fundamentally three categories of Applications.

8.1.1. Ex parte applications, which are catered for in Rule 6(4)(a), read

with form 2 of the first schedule. Here the applicant gives notice

to the Registrar in what is termed “a short form of notice of

13 JP’s memorandum 15/12/1986 14 Rule 31(1) ( c ) 15 This is a new practice directive although we are aware that some judges in the past have followed this procedure


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6motion”. In sequestration and winding up proceedings where the

applicant relies on an act of insolvency or inability to pay debts and

is able to produce documentary evidence of such inability - eg a

letter or balance sheet, the application may be brought ex parte

without notice. This is a practice of long standing in this division17

In winding up proceedings an amendment to the Companies Act

and the Insolvency Act18 requires inter alia that the applicant “must

furnish the company or the debtor, whatever the case may be, with

a copy of the application unless the court in the exercise of its

discretion dispenses with this after being satisfied that it would be

in the interests of the creditors and the debtor to do so.” We do

not consider that this amendment detracts from the aforesaid

practice. The furnishing of the copy of the application is intended

to take place informally.19 It is envisaged that in the majority of

cases the applicant will make out a case to dispense with the

provision.

8.1.1.1. This Division adheres to the practice laid down in ex

parte Three Sisters (Pty) Ltd 20 which is set forth as

follows :21

“Whatever a company’s reason may be for wanting to

be wound up in terms of s 344(a) of the Companies Act

61 of 1973, and irrespective of whether or not its

liabilities exceed the value of its assets, creditors of the

company have a very real interest in its continued

existence or demise, and the court should ensure, in so

far as it is able to, that they are not prejudiced. The

most effective way of doing this is to require that

creditors be given notice of the application, and at a

16 Rule 6 17 see Collective Investments (Pty Ltd v Brink 1978(2 ) SA 252N esp @ 254 and 255. See also JP’s memorandum dated 15/12/1986. 18 Sub-s (4A) inserted in to both Acts by Act no 69 of 2002 19 see Sub-s (4A) (b) Act 69 of 2002 20 1986(1)SA 592 (D) 21 Headnote Three Sisters case supra


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7stage which would afford them the opportunity of

voicing their objection to the grant of a provisional

winding-up order, since even the grant of such an order

has the potential of prejudicing them. Creditors need

only be given informal notice (eg by pre-paid registered

post) of the nature of the application and of the date of

hearing, together with an intimation that the papers are

available for inspection at the offices of the plaintiff’s

attorneys.”

8.1.2. Interlocutory applications and other applications incidental to

pending proceedings can be brought on notice supported by such

affidavits as the case may require.22 Here the KZN practice is

that a short form of notice of motion is also used.

8.1.3. Every application other than the above must be brought in terms of

Rule 6(5)(a) using a notice of motion in accordance with Form 2(a)

of the first schedule. KZN practitioners have over the years not

adhered strictly to this rule and the judges of this Division

encounter numerous instances where the short form of notice of

motion is incorrectly used and applications are set down for

hearing on short notice. The time periods and format of the long

form of notice of motion can only be abridged or dispensed with

altogether where the application is one of urgency and a proper

case is made out therefor in the founding affidavit.23 This also

includes service of process. Service is effected by the sheriff.24

So-called “informal service: by fax, post and the like will only be

condoned in extremely urgent applications where a case is made

out therefore in the founding affidavit. A failure to comply with the

above may result in the application being struck off the roll.

22 Rule 6(11) 23 Rule 6(12)(a) and (b); see Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782. 24 See Rule 4(1)(a): “Service of any process of the court directed to the sheriff and subject to the provisions of paragraph (aA) any document initiating application proceedings shall be effected by the sheriff…”


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89. Opposed Applications

Apart from opposed applications that are governed by Rule 6(5) insofar as the time

periods for delivery of affidavits and the like are concerned, judges presiding in the

motion court are very often asked to adjourn applications which have become

opposed and to issue directions in regard to the filing of further affidavits.

Generally speaking these would be applications brought before the court as a

matter of urgency. Many judges of this Division have expressed concern about the

frequent adjournments that are sought during process of exchanging affidavits prior

to the application being placed on the opposed roll. The practice that will be

followed henceforth is as follows:25

9.1. Where the parties agree to the dates for exchanging of affidavits, the judge

shall issue such directions and then adjourn the case to a date to be

arranged with the registrar. If a rule nisi is in force the rule will be extended

to the date when the application is finally disposed of.

Where the parties do not agree the judge after hearing both parties shall

issue the necessary directions.

If the judge is satisfied that the application ought to receive preference, he

may direct the registrar to accord the matter such preference as she/he is

able. If the applicant wishes to seek interim relief pending the opposed

hearing, and the matter cannot be accommodated or placed (with due regard

to the delivery of a Certificate of Urgency) on the ordinary motion court roll,

representations shall be made to the senior civil judge on duty to give the

necessary directions for an urgent hearing. Those representations shall,

where possible, include the recommendations of the judge seized with the

matter in motion court.

9.2. The registrar will not allocate a date for hearing on the opposed roll unless

the applicant or his attorney certifies in writing that the application is ripe for

hearing, that is to say, that all the affidavits have been delivered. A matter

shall be deemed to be ripe for hearing where the applicant has not delivered

25 New practice


333

9a replying affidavit within the time specified in Rule 6(5) or on the date

agreed or directed by the court as the case may be.

9.3. Where the respondent fails to deliver an answering affidavit the applicant

may reinstate the matter on the unopposed roll to move for the relief claimed

on notice given to the registrar and the respondent before noon on the court

day but one preceding the day upon which the same is to be heard.

9.4. The following practice direction is in force in regard to opposed motions both

in Pietermaritzburg and Durban :26

9.4.1. The applicant, excipient or plaintiff in opposed motions, exceptions

and provisional sentence proceedings shall not less than five court

days before the day of the hearing deliver concise heads of

argument (ideally no longer than five pages) and not less than

three court days before the hearing the respondent or defendant

shall do likewise. The heads should indicate the issues, the

essence of the party’s contention on each point and the authorities

sought to be relied on. Further heads may be handed in at the

hearing.

The heads of argument shall be delivered under cover of a typed

note indicating:

a. the name and number of the matter;

b. the nature of the relief sought;

c. the issue or issues that require determination;

d. the incidence of the onus of proof;

e. a brief summary (not more than 100 words) of the facts that

are common cause or not in dispute;

f. whether any material dispute of fact exists and a list of such

disputed facts;

26 Practice direction 1998(1) SA 365


334

10g. a list reflecting those parts of the papers, which in the

opinion of counsel, are necessary for the determination of

the matter;

h. a brief summary (not more than 100 words) of the

argument;

i. a list of those authorities to which particular reference will

be made;

j. in appropriate cases the applicant, excipient or plaintiff must

annex to the note a chronology table, duly cross-referenced,

without argument;

k. if the respondent or defendant disputes the correctness of

the chronology table in a material respect, the respondent's

or defendant's heads of argument must have annexe

thereto the respondent's or defendant's version of the

chronology table.

9.4.2. By no later than noon two court days before the day of hearing the

applicant, excipient or plaintiff shall notify the registrar in writing

whether the matter will be argued, and if not what alternative relief

(for example postponement, referral to evidence, etc) will be

sought.

9.4.3. Unless condonation is granted on good cause shown by way of

written application, failure on the part of the applicant, excipient or

plaintiff to comply with the provisions of paras 9.4.1. and 9.4.2.

hereof will result in the matter being struck from the roll with an

appropriate order as to costs; and failure on the part of the

respondent or defendant to comply with the said provisions will

result in the court making such order as it deems fit, including an

appropriate order as to costs.

9.4.4. If any of the aforesaid matters is of such a nature – by reason of

the volume of the record or the research involved or otherwise –

that the judge allocated to hear the matter would, in order to

prepare for the hearing, reasonably need to receive the papers


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11earlier than he or she would normally do, the applicant, excipient

or plaintiff (as the case may be) shall notify the Registrar in writing

to that effect not less than seven court days before the day of the

hearing. Failure to do so could result in the matter not being

heard on the allocated day. Practitioners are advised to use their

own discretion in interpreting this sub-rule but in the ordinary

course it ought to apply to all matters where the record exceeds

approximately 200 pages (including annexures).

9.4.5. The papers in all opposed motions shall be secured in separate

conveniently-sized and clearly identified volumes of approximately

100 pages each. Each volume shall be secured at the top left-

hand corner in a manner that shall ensure that the volume will

remain securely bound upon repeated opening and closing and

that it will remain open without any manual or other restraint. Ring

binders and lever-arch files are to be avoided if at all possible.

9.5. This direction does not apply to Rule 43 proceedings.

10. Urgent Applications

10.1. Apart from a certificate of urgency (which practitioners are reminded is not a

mere formality : in appropriate cases the signatories of such certificates may

be ordered to pay costs de bonis propriis) which in specific terms records

that the matter is of such a nature that relief has to be obtained forthwith and

cannot await the ordinary motion court the following day, the following

administrative requirements should be followed:

(a) As soon as an urgent application is in the pipeline, the registrar should

be notified and an indication given as to when it is contemplated the

application will be moved.

(b) This should be followed by a call every hour to keep the registrar and

the duty judge apprised of the current position.


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12(c) If the urgent application falls away, the registrar should be told

forthwith.

(d) If practitioners, in the absence of a duty registrar, go before a judge

and do not obtain an order, they should immediately report this fact to

the registrar.

10.2. In every urgent application (including the ordinary motion court) a draft order

must be presented to the judge. If the draft is amended in chambers,

practitioners must come to the assistance of the registrar’s typist in order to

ensure that the order is in a form where it can be issued forthwith.27

10.3. Where a rule nisi together with an interim interdict or other interim relief is

sought as a matter of urgency the rule of practice in force is stated as

follows:

“It is not permissible to grant interim interdicts without notice to

the respondent unless there is a real danger that the giving of

notice will defeat the object of the interdict or it is wholly

impracticable to give such notice. (It is not the practice of this

Division to grant orders over the telephone save in very

exceptional circumstances)”28

11. Practice in regard to so-called “Friendly” Sequestrations

Practitioners are reminded that the judges of this Division adhere to the practice

directive laid down by P.C. Colmbrinck J in Mthimkhulu v Rampersad and Another

(BOE Bank Ltd. Intervening Creditor)29. The judgment requires that such “friendly”

sequestrations should at least comply with the following minimum requirements

which are quoted in full from the judgment30:

27 JP’s memorandum 29/1/2003 28 JP’s memorandum 15/12/1986 29 [2000] 3 All SA 512 30 Page 517


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13 "1. There must be sufficient proof of the applicant’s locus standi. There must be

facts establishing the relationship between the parties giving rise to the debt

relied upon by the applicant. There must be sufficient proof of the debt in the

form of a paid cheque, documentation evidencing withdrawal from a savings

account or a deposit into the respondent’s account at or about the time the

respondent is said to have received the money. If the indebtedness arises

from a written or partly written contract, a copy of the contract or the written

portion must be put up, if from sale copies of invoices must be annexed.

3. Reasons must be given for the fact that the applicant has no security for the

debt. A court is naturally suspicious of an unsecured loan being made to a

debtor at a time when he was obviously in dire financial straits.

4. Care must be taken to put a full and complete list of the respondent’s assets

and in particular and more importantly, to put up acceptable evidence upon

which the court can determine not what their market value is prior to

sequestration but what they will realise post-sequestration at a forced sale

(see in this regard the remarks of Leveson J in Ex parte : Steenkamp and

related cases (supra)31. Very often a value is put to household furniture and

effects and second-hand motor vehicles which bear no relationship to their

true value.

5. In the case of immovable property, I consider that it is insufficient to merely put

up an affidavit by a valuer who expresses an opinion as to the value of the

property. The valuer should state why he is qualified to make the valuation,

what experience he has in valuing houses in the area and give details of

comparable sales on which he relies for his value. In addition he must state

what he considers the house will fetch on a sale by public auction.

6. In the case of urgent applications to stay the sale-in-execution of an

immovable property, full reasons must be given why the application is brought

at the last moment. In addition details must be given of attempts the debtor

has made to sell the property by way of private treat.


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147. Where there is a bondholder, notice of the application must be given to it.

8. Any application for the extension of a provisional order must be supported by

an affidavit in which full and acceptable reasons for the extension are set out.”

12. Service of and Extension of the Rule Nisi in Provisional Sequestration and Liquidation Applications

12.1. The general rule is that provisional sequestration orders are served

personally on the respondent(s). Where the respondent happened to be

present in court when the order was pronounced, it should nonetheless still

be served on her/him because of the consequences which flow from such

service as set out in the Insolvency Act.

12.2. Generally speaking the practice followed has been to allow one extension of

the rule nisi in both sequestration and winding-up orders without furnishing

any reason therefor. Where a subsequent extension is sought the party

seeking same must lodge an affidavit to motivate the application.

13. Divorce Custody and Other Matrimonial Cases

13.1. Service of Summons : Divorce being a matter of status personal service is required. This of course

is always subject to the court’s power to direct a form of substituted service.

A defendant is not permitted to waive service on the basis that he/she

consents to the divorce. A judge does however have the power in his/her

discretion to abridge the dies induciae which run after service has been

effected and to allow an early set-down of the undefended action. This of

course is on the footing that the defendant is aware that the matter is to be

heard and consents thereto.

31 1996 (3) SA 822 (W)


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1513.2. Where it appears at the hearing of an undefended divorce that service was

effected more than five (5) months before the date of the hearing it is the

practice to require that the notice of set down be served on the defendant

alternatively that the plaintiff satisfy the court by other means that the

defendant is aware that the case is to be heard on that day.32

14. Marriage Certificates

No hard and fast practice can be laid down in regard to whether a copy of a

marriage certificate is acceptable. Some judges require production of the

certificates while others are prepared to receive a copy which the plaintiff swears is

a true copy of the original33

15. Divorce Settlement Agreements

Unlike some other Divisions it is an established and long-standing practice that the

entire agreement of settlement cannot be made an order of court. The principle has

been clearly enunciated by Broome JP in Mansell v Mansell34 as follows:

“For many years this court has set its face against the making of

agreements orders of court merely on consent. We have frequently

pointed out that the court is not a registry of obligations. Where

persons enter into an agreement, the obligee’s remedy is to sue on it,

obtain judgment and execute. If the agreement is made an order of

court the obligee’s remedy is to execute merely. The only merit in

making such an agreement an order of court is to cut out the

necessity for instituting action and to enable the obligee to proceed

direct to execution. When, therefore, the court is asked to make an

agreement an order of court it must, in my opinion, look at the

agreement and ask itself the question ‘Is this the sort of agreement

upon which the obligee (normally the plaintiff) can proceed direct to

32 This is an old practice; however the 5 month provision is new. 33 See JP’s memorandum 14/7/82 34 1953 (3) SA 716 AT 712B


340

16execution?’ If it is, it may well be proper for the court to make it an

order. If it is not, the court would be stultifying itself in doing so. It is

surely an elementary principle that every court should refrain from

making orders which cannot be enforced. If the plaintiff asks the

court for an order which cannot be enforced, that is a very good

reason for refusing to grant his prayer. This principle appears to me

to be so obvious that it is unnecessary to cite authority for it or to give

examples of its operation.”

Unconditional undertakings to pay maintenance, educational, medical costs and the

like as well as custody and access provisions are made orders of court in terms of

the practice. An undertaking to pay the costs of the action is also included. Mere

contractual obligations are not. Where a defendant has undertaken to pay a sum of

money (other than maintenance) by a future date it is undesirable to enter judgment

for payment of that amount against such a defendant unless he/she specifically

consents in the agreement to judgment being entered against him/her. Otherwise

the plaintiff should be limited to the remedy in Rule 41(4).

Where a party to a divorce agrees that the other party shall be entitled to receive a

share of his pension interest when that accrues and that the fund concerned makes

an endorsement in its record to that effect, the court will only make the said

agreement an order of court if it is satisfied that due and timeous notice has been

given to the fund in question indicating that such order will be sought. The order of

court must clearly and unambiguously identify the fund in question.

16. Variation of Custody Orders

Proceeding for the variation of a custody order are to be by way of action and not by

way of application save where the variation is by consent or to give legal recognition

to an existing de facto variation of long standing.35

35 JP’s memorandum 15/12/1986-


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1717. Application for a Change in the Matrimonial Regime

This Division follows the Cape practice laid down in ex parte Lourens et Uxor and

Four Others36 which obviates the necessity of issuing a rule.37

18. Curators ad Litem

Where a curator ad litem is to be appointed to represent the interests of minors in a

dependants’ claim the practice laid down in ex parte Bloy38 and ex parte Padachy39

is to be followed. This practice does not apply to applications under Rule 57 or

applications where a curator ad litem is to be appointed to represent the interests of

minor children in cases involving the interpretation of a will or trust.40

19. Applications to Compel Delivery of Further Particulars 41

Only those particulars will be ordered which the court is satisfied are justified in

terms of the Rules. It will no longer be permissible to avoid the question as to

whether each request is so justified by arguing that all that is required is that the

respondent “respond” to the request. If an order is granted for the furnishing of

further particulars, the form of the order will still be that the respondent “respond” to

the request (or, if only some of the particulars are justifiably sought, that the

respondent respond to the questions asked in certain specified paragraphs). This

form is considered correct since the defendant may, in some cases, conceivably

turn out to be unable to furnish such particulars. The court must, however, be

satisfied that each question is justified in terms of the Rules before ordering that the

respondent respond to such question.

36 1986 (2) SA 291C 37 JP’s memorandum 15/12/1986 38 1984 (2) SA 410D 39 1984 (4) SA 325 D 40 JP’s memorandum dated 15/12/86. The provision in regard to wills and trusts is set forth in a practice note issued by the society of advocates Natal 41 JP’s memorandum 14/7/1982


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1820. Service on the Registrar of Deeds in Applications for the Removal

of Title Deed Restrictions

It is a requirement in these matters that the report of the registrar of deeds be

placed before the court at the stage when an ex parte application for a rule nisi is

moved in order that the court can be satisfied that the immovable properties

concerned have been correctly described and that the title deed restrictions accord

with the registrar’s records.42

21. Expedited Hearing

21.1 The registrar shall maintain a separate roll of cases, which shall be called

‘The Expedited Roll’, for hearing on an expedited basis.

21.2 The registrar shall enrol matters on the expedited roll only when directed to

do so by order of court or by a judge in chambers.

21.3 In all matters to which the provisions of:

21.3.1 Uniform Rule 6(5)(d)(iii), or

21.3.2 Uniform Rule 6(5)(g), or

21.3.3 Uniform Rule 8, or

21.3.4 Uniform Rule 32

apply and it appears to the court or the judge, as the case may be, that no

substantial point of law will require determination, and/or that the whole or a

substantial portion of the matter will be disposed of by evidence not lasting

longer than one day, and that it is in the interests of justice to do so, the

court or the judge may mero motu, or on the application of any of the

parties on notice to the others, after considering the submissions of all the

parties, direct that (referred to hereafter as “a direction” or “the direction”),

subject to the provisions of this Rule, the matter be placed on the expedited

roll.

42 This is a new practice.


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19 21.4 In matters to which the provisions of sub-rule 3.4 of this rule apply, and

unless the court or judge otherwise directs :

21.4.1 in matters requiring the filing of a declaration, the plaintiff shall file

a declaration within five days of the direction being made, failing

which he shall be ipso facto barred;

21.4.2. the defendant shall file a plea within five days of the direction being

made or the declaration being filed, as the case may be, failing

which he shall be ipso facto barred;

21.4.3. the plaintiff shall comply with the provisions of Uniform Rule 35(1),

mutatis mutandis, within five days thereafter and shall

simultaneously index and paginate the court file and shall serve a

copy of the index on the defendant;

21.4.4. the defendant shall comply with the provisions of Uniform Rule

35(1), mutatis mutandis, within five days thereafter, save that the

defendant shall not be entitled to rely upon any document at trial,

which has not been so discovered, without the leave of the court;

21.4.5. the parties shall hold a pre-trial conference and shall comply with

the provisions of Uniform Rule 37, mutatis mutandis, not less than

five days before the hearing of the matter.

21.5 In all other matters the plaintiff or applicant, as the case may be, shall

within five days of the direction being made, index and paginate the court

file and shall serve a copy of the index on the other party.\

21.6 Upon receipt of a notice requesting that the matter be placed on the

expedited roll, which notice shall be served on the other party and which

shall contain a certificate signed by a party or his attorney to the effect that

the matters set out in sub-rule 4 (excluding sub-rules 4.4 and 4.5) or sub-

rule 5 and that any additional directions made by the court or the judge

have been complied with and/or attended to, the registrar shall place the


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20matter on the expedited roll. Where any additional directions have been

made by the court or the judge these shall be set out with sufficient

particularity in the certificate.

21.7 Where a party upon whose request a direction has been made fails to

comply with any of the requirements of sub-rules 4 or 5, as the case may

be, the direction shall lapse.

21.8 A direction may be obtained on application, which shall not be supported

by an affidavit, on five days’ notice to the other party. Such application

shall only in exceptional or urgent circumstances be brought before a judge

in chambers.

21.9 The matters placed on the expedited roll shall be set down for hearing by

the registrar, on twenty days’ notice to the plaintiff or applicant or party

upon whose application the direction was obtained :-

21.9.1 on a weekly roster of cases which shall be called on a Monday or

first working day of a week as the case may be;

21.9.2 on a continuous roll for each such weekly roster;

and shall be heard, unless the presiding judge orders otherwise, in

the order in which they were first placed on the expedited roll.

21.10 The registrar shall advise the plaintiff or applicant or party upon whose

application the direction was obtained of the date of set down by

telefacsimile transmission to a number specified in the notice referred to in

sub-rule 6.

21.11 It shall be the responsibility of the plaintiff or applicant or party upon whose

application the direction was obtained to serve a notice of set-down on the

other party not les than ten days prior to the date of set-down and to file

proof of such service not less than five days prior to the date of set-down.


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21 21.12 Any matter struck-off or removed from the expedited roll or the weekly

roster shall not, except on good cause shown on application, be re-enrolled

on the expedited roll or the weekly roster. Nothing contained in this sub-

rule 12 shall prevent a party, after such striking-off or removal, from

enrolling the matter on the ordinary trial or motion roll.

21.13 Where any matter set down on a weekly roster has not been disposed of

during that week, such matter shall enjoy such preference on a subsequent

weekly roster as the presiding judge may direct.

21.14 Unless otherwise directed by the senior presiding judge from time to time,

the registrar shall set down not more than fifteen matters on any weekly

roster.

21.15 The senior presiding judge shall, from time to time, make available one or

more judges to preside over the matters set down on the weekly roster.

22. Separation of Issues in terms of Rule 33(4)

Where a judge has given a ruling on an issue separated in terms of Rule 33(4), eg

liability in a damages action, the matter will be regarded as partly heard before that

judge. Should, however, the said judge for any reason not be available at the

resumed hearing of the trial, and where the parties agree in writing, another judge

shall be allocated to try the remaining issues in the action provided, however, that

the second mentioned judge is satisfied that his/her decision does not depend on

the credibility of any witness whose credibility was also in issue at the first

hearing.43

43 JP’s direction 10./12/.2002


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2223. Bail Appeals

These are heard by a single judge both in Pietermaritzburg and Durban.44 While the

judges of this Division recognize that these matters are inherently urgent, it is

nonetheless necessary that appeals be put before the court in an orderly and

structured manner. The following practice will henceforth be followed :45

23.1 When an appeal is ripe for hearing, that is to say, that the record of the

proceedings has been transcribed and certified as correct, the magistrate’s

reply to the notice of appeal has been obtained and the record has been

paginated and indexed the appellant shall be entitled to lodge such record

with the registrar and at the same time apply for a date of hearing.

23.2 The registrar shall allocate a date which is not less than five (5) court days

from the date of the application. The registrar shall then place the matter

before the senior civil judge who generally speaking, will allocate it to the

judge presiding in the motion court on that day. Where however the record

of the proceedings before the magistrate is voluminous and in the opinion

of the registrar will require extensive reading and preparation, the registrar

shall allocate a date not less than 10 court days from the date of the

application.

23.3 The parties shall lodge brief and concise heads of argument at least two

court days before the hearing of the appeal.

24. Applications for Striking-off of Practitioners in Pietermaritzburg

The practice in applications to strike the names of practitioners from the roll is for a

single judge to grant the rule nisi even if it involves interim relief such as suspension

from practice and the appointment of a curator bonis. On the return day the matter

is dealt with by two judges opposed or unopposed.46

44 S. 65(1)b of Act 51 of 1977 45 new practice 46 JP’s memorandum 15/2/91


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2325. Applications for Default Judgment in Actions for Damages

This Division will henceforth follow the practice laid down in Havenga v Parker47

which is to the following effect.

It is permissible in an application for default judgment in an action for damages to

place before the Court the evidence of experts, such as for example medical

practitioners, mechanics, valuers and others by way of affidavits, subject to the

Court always retaining the power to require viva voce evidence, where it considers

it necessary to call for further information or elucidation. The affidavits shall set out

the qualifications of the experts and fully traverse his/her findings and opinions as

well as the reasons therefor.

26. Claims in which immovable property should be declared executable

The summons initiating action in which a plaintiff claims relief that embraces an

order declaring immovable property executable shall, with effect from 15 December

2005, inform the defendant as follows:

‘The defendant’s attention is drawn to section 26(1) of the Constitution of the

Republic of South Africa which accords to everyone the right to have access

to adequate housing. Should the defendant claim that the order for

execution will infringe that right it is incumbent on the defendant to place

information supporting that claim before the court.’

27. Admiralty arrest warrants in terms of Rule 4(3)

The attention of practitioners is drawn to the fact that Rule 2(1)(a) provides for a

clear and concise statement of the nature of the claim. The certificate with regard

to the warrant in terms of Rule 4(3) provides for a statement by the giver of the

certificate that the contents of the certificate are true and correct to the best of the

47 1993 (3) SA 724 T


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24knowledge, information and belief of the signatory. The source of any such

knowledge and information must be given.

As the matters to be certified include a statement that the claim is a maritime claim

and that the property sought to be arrested is the property in respect of which the

claim lies or, if the arrest is an associated ship arrest, that the ship is an associated

ship which may be arrested, it is inherent in the nature of the certificate that the

signatory should believe on proper grounds that there is a claim and also that it is

enforceable by the arrest of the property to be arrested. It follows therefore, in the

case of an associated ship arrest, that the certifier believes that the ship is an

associated ship. It is therefore necessary that the summons should contain a

statement of the facts upon which the claim is based and a statement of the factson the basis of which it is stated that the ship is an associated ship.

It is desirable that the certificate should be signed by an attorney practising in the

Court out of which the warrant is issued. In order to deal with cases of difficulty

Rule 4(2)(b) provides that the Registrar may refer to a judge the question whether a

warrant should be issued. In the vast majority of cases this is neither necessary,

practicable nor desirable. It should be done in any case of difficulty either in regard

to the claim or in regard to a question of association. In order to assist the Registrar

the responsibility for identifying cases that should be referred to a judge will in the

first instance rest on the attorney providing the certificate. When requesting a

warrant, therefore, the attorney should submit in addition to the certificate required

by Rule 4(3) a statement that the attorney knows of no circumstances making it

desirable to refer the issue of the warrant to a judge. In the absence of such a

statement, the Registrar will refer the matter to a judge under Rule 4(2)(b)

28. Action in terms of National Credit Act No. 34 of 2005

With effect from 1 August 2007, in any action brought in terms of the National Credit

Act No. 34 of 2005, the summons must allege that there has been compliance with

section 129 of the Act and a certificate must be attached to the summons indicating

compliance therewith.


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2529. Urgent appointments of provisional liquidators in winding-up

applications

A court hearing an application for the winding-up of a company or close corporation

shall not make an order directing the Master to forthwith appoint a provisional

liquidator unless there are sufficient factual allegations demonstrating that such a

course is urgently required. An example would be allegations that there is an

imminent danger that the assets of the company will be dissipated. Thus it is a

matter of extreme urgency that a provisional liquidator should take charge

immediately.

In future a failure to make the appropriate allegations in this regard will result in the

Judge declining to make such orders.

30. Social Assistance Grants

I hereby direct that the following revised practice directive which forms part of the

judgment of Wallis J in P. N. Cele v The South African Social Security Agency and Others, Case No 7940/2007, delivered on 28 May 2009, be substituted in place

of the previous directive : -

(a) Before there is any contemplation of litigation an appropriate letter of demand

should be addressed either to SASSA or to the Minister of Social

Development depending upon the nature of the claim. That letter of demand

must set out the identity of the claimant and the basis of the claim and

provide sufficient information to enable the claim to be investigated and dealt

with appropriately.

(b) If no satisfactory response follows from the letter of demand so that there is a

need to contemplate litigation, before an applicant may issue application

papers out of the Registrar’s office in an application seeking relief relating to

or arising from an application for a social assistance grant in terms of the

Social Assistance Act 13 of 2004 or its predecessor they shall be obliged to

deliver a notice to the State Attorney’s office in KwaZulu-Natal marked for the


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26attention of the officer appointed by the State Attorney for that purpose and

containing the following details:

(i) the name and identify number of the applicant for relief;

(ii) the type of grant to which it relates;

(iii) where the grant relates to a person other than the applicant, as in the

case of a child support grant, the name of that other person and their

identity number and where a child support grant is sought in respect of

a child who is not the child of the applicant a brief description of the

relationship between the applicant and the child and the reason why

the applicant claims a child support grant in respect of that child;

(iv) where the applicant is seeking a disability grant the nature and

anticipated duration of the disability;

(v) the administrative centre where the application for the grant was

lodged and where possible the date of the application as well as proof

of that application in the form of the receipt issued to the applicant in

terms of Regulation 8(3)(b) of the Regulations in GN R418 or failing

that other information that will enable the State Attorney to identify the

application in the records of SASSA;

(vi) where the complaint is that an appeal has been lodged and no appeal

convened or conducted a copy of the notice of appeal must be

furnished;

(vii) the nature of the applicant’s complaint, such as that an application has

been made and not processed; an application has been refused and

the grounds of the refusal or an appeal (or both) are sought; or that a

grant originally made has been withdrawn and the applicant seeks

reasons for the withdrawal or the reinstatement of the grant (or both)

or any other complaints;


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27(viii) a copy of the letter of demand addressed to SASSA or the Minister of

Social Development as the case may be, with proof of delivery and a

copy of any response;

(ix) the name and fax number of the attorney representing the applicant.

(c) A copy of this notice must at the same time be delivered to SASSA or the

Minister of Social Development whichever is appropriate. In the case of

claims regarding appeals both the initial letter of demand and the notice

contemplated in paragraph (b) of this practice directive must be sent to the:

Pilot Regional Tribunal Office

20 Intersite Avenue

Springfield Park

Umgeni Business Park;

or to:

Private Bag X901

Pretoria 0001

and marked for the attention of the Independent Tribunal.

In the case of other applications concerning grants the initial letter of demand

and the notice contemplated by paragraph (b) should be sent to SASSA at

one of the following addresses:

Private Bag X14

Ashwood 3601;

or

3 Clubhouse Place

Hillclimb Road

Westmead 3601.


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28 (d) On receipt of the notice the State Attorney shall enter it into a register and

allocate a reference number to it and thereafter in liaison with SASSA, or the

Independent Tribunal in the case of complaints about appeals, endeavour to

respond to and resolve the complaint. If no response is forthcoming within

one month of receipt of the notice in the case of a complaint against SASSA

or two months in the case of a complaint against the Minister of Social

Development in regard to an appeal, or the response is unsatisfactory the

applicant may then commence legal proceedings. The notice and the

response (if any) shall form part of the application papers and the Registrar

will only issue the application papers if they are accompanied by a certificate

signed by the applicant’s attorney recording that there has been proper

compliance with the practice directive and that there has either been no

response or an inadequate response to the notice. Unless the application

papers are accompanied by such a certificate, or a certificate of urgency in

the case of an urgent application, the Registrar will not accept or issue the

application.

(e) In terms of the revised practice directive are to be circulated by the State

Attorney to the interested parties identified in paragraph [37] of the judgment

in Cele.

(f) The State Attorney is required to furnish a report concerning the

implementation of this practice directive to the Deputy Judge President in the

first week of December 2009. That report must be accompanied by Mr

Diplall’s comments on the contents of the report. The report should deal

specifically with the question whether the functioning of the Pilot Regional

Tribunal Office is such that the need to furnish pre-litigation notices to the

State Attorney can fall away. It shall also deal with the extent of any

continuing backlog in the disposal of appeals. To this end it would be helpful

for the report to incorporate the type of information that was embodied in Ms

Maloka’s affidavits concerning the functioning of the Independent Tribunal.


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2931. Effort to reduce the backlog in all trials including RAF matters

In an effort to reduce the backlog in all trials, including RAF matters, it is directed –

1. That Uniform Rule 37(7), requiring minutes of the Rule 37 Conference to be

filed with the Registrar not latter than 5 weeks prior to the trial date, shall be

strictly enforced and non-co0mpliance shall automatically result in the matter

being struck off the trial roll.

2. In all RAF trial matters the following shall apply:

(a) Every matter will be the subject of a Rule 37(8) conference and the

matter shall be considered ripe for allocation of a date for the holding of

such a conference upon receipt by the Registrar of a notice applying for

a date of trial.

(b) A date for trial shall be allocated only upon the certification by a Judge

that there has bee compliance with 2(a) above.

(c) The senior civil Judge shall allocate such Judges as may from time to

time become available for the purpose of hearing conferences called

under this practice directive.

(d) A party called to a conference under this directive will receive not less

than six weeks’ notice of the fact that the conference will be held, and a

list of the dates for the holding of all such conferences will be included

in the published trial rolls.

(e) Where quantum will be an issue during the trial of the matter –

(i) A notice in terms of Rule 36(9)(a) shall be delivered not later

than fifteen days before the date allocated for the conference

(the date) and the summary contemplated in Rule 36(9)(b) shall

be delivered not later than ten days prior to the date.


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30(ii) The parties will thereafter deliver a further summary clearly and

concisely setting out areas in which their respective experts

agree as well as areas in which they disagree. Such a

summary shall be delivered not later than two days prior to the

date.

(f) The provisions of Rules 37(4), 37(5), 37(6) and 37(7) shall apply

mutatis mutandis.

(g) At the Rule 37(8) conference the presiding Judge shall note on the

court file whether the preparation and conduct of each of the parties is

considered satisfactory or unsatisfactory, giving such reasons as the

presiding Judge may in his or her sole discretion deem fit.

(h) If the conduct of any party is marked as unsatisfactory then, should the

matter ultimately come before the court, the party or parties against

whose name an unsatisfactory note has been placed will be obliged to

make submissions –

(i) as to why the provisions of Rule 37(9)(a) should not be invoked

against that party or that party’s legal representatives in

respect of a special order as to costs.

(ii) in particular, as to why an order should not be made denying

the party or the party’s representatives the right to claim costs,

and ordering the party or party’s representatives to pay the

wasted costs of the opposing party.

(i) Where attorneys place themselves on record subsequent to such

conference as may be convened under this directive, then that

attorney shall, if that attorney wishes to be disassociated from an

unsatisfactory mark, request re-allocation for the purposes of an

additional conference.


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31Guidelines in Respect of Practice Directive 31

1. Effective 30 January 2015, all Rule 37(8) conferences in respect of Road Accident Fund matters will be held on a Friday at 9:30am .Upon review this will also be extended to include all matters.

2. There will be 50 matters on the roll, including adjourned matters.

3. Practitioners/ in person litigants are to ensure that:-

(a) The correct details of the matter is recorded in the Awaiting Trial Register, that is – the case number, spelling of names, number of days applied for; attorneys details;

(b) The Court file is to be Indexed and Paginated on the Thursday of the week preceding the Set down date by no later than 12:00pm which is the current practice;

(c) They file their Rule 37(4) minutes 3 weeks before the Set down date. The Set down date must be indicated on the top right hand corner of the minutes or filing notice.

(N/B – matters will not be removed due to minutes not been filed – however filing of the minutes is encouraged to facilitate an efficient roll.)

4. Once the matter is on the roll, the Judge will give further direction at court as to how the matter will be dealt with further.

5. The Pre-Trial minutes must comply with Rule 37 (6) (a-k) inclusive of the Uniform Rules of Court.

6. If the matter is certified ready for trial, the parties involved must put up a certificate indicating compliance with Practice Directive 31 and the Pre-Trial minute as per paragraph 5 above.

7. If the pre- trial minute is not fully compliant with rule 37(6) (a-k) of the Uniform Rules of court, inclusive, the matter will be removed from the trial roll.

8. If there is a matter that is entered on the Awaiting trial Register and is ready to proceed, the Registrar can be approached to allocate a date on the pre- trial roll however there must be compliance with paragraphs 5 &6 above. The minute must be filed.


356

3232.

33. Applications for Leave to Appeal against a Refusal of a Petition

33.1. Where a petition to the Judge President for leave to appeal in terms of section 309

C of the Criminal Procedure Act, 51 of 1977 has been refused, the unsuccessful

petitioner(s) desiring to appeal against such refusal to the Supreme Court of Appeal

is required to obtain leave to do so.

33.2. The application for leave to appeal shall be delivered to the Registrar within 21

(twenty-one) days after the refusal of the petition.

33.3. Whenever possible, the application for leave to appeal shall be considered by the

same judges who considered the petition and shall grant or refuse the application.

Where one or more such judge is unavailable, an additional judge, or additional

judges shall be designated by the Judge President to consider the application for

leave to appeal and they shall grant or refuse the application.

33.4. Subject to 33.3 above, the provisions of sections 309 C (5) and (6) of the Criminal

Procedure Act, 51 of 1977 shall, mutatis mutandis, apply to such applications for

leave to appeal.


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33Civil and Criminal Appeals to full Courts

CIVIL APPEALS:

In addition to and subject to Rule 49, the following shall apply to all civil appeals to the Full Court:

1. Once a date has been allocated for the hearing of any civil appeal, the parties may not agree to postpone the appeal without the leave of the Judge President, the Deputy Judge President (in those instances where the appeal has not as yet been allocated to the judges concerned) or, where the appeal has been allocated, the Judges to whom the appeal has been allocated for hearing.

2. In all civil appeals, the appellant's heads of argument must be delivered not later than 30 days before the appeal is heard and the respondent's heads of argument must be delivered not later than 15 days before the appeal is heard. Supplementary heads of argument will only be accepted with the leave of the judges presiding.

3. If Counsel intend to rely on authority not referred to in their heads of argument, copies thereof should be available for the judges hearing the appeal and counsel for each other party.

4. In regard to the content of their heads of argument, counsel are reminded of the dicta in Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) and Another 1998 (3) SA 938 (SCA) at 955 B-F. Harms JA said:

"[37] There also appears to be a misconception about the function and form of heads of argument. The Rules of this Court require the filing of main heads of argument. The operative words are "main", "heads" and "argument". "Main" refers to the most important part of the argument. "Heads" means "points", not a dissertation. Lastly, "argument" involves a process of reasoning which must be set out in the heads. A recital of the facts and quotations from authorities do not amount to argument. By way of a reminder I wish to quote from Van der Westhuizen No v United Democratic Front 1989 (2) SA 242 (A) at 252B-G:

"There is a growing tendency in this Court for Counsel to incorporate quotations from the evidence, from the Court a quo's judgement and from the authorities on which they rely, in their heads of argument. I have no doubt that these quotations are intended for the convenience of the Court but they seldom serve that purpose and usually only add to the Court's burden. What is more important is the effect which this practice has on the costs in civil cases ….. Superfluous matter should therefore be omitted and, although all quotations can obviously not be eliminated, they should be kept within reasonable bounds. Counsel will be well advised to bear in mind that Rule 8 of the Rules of this Court requires no more that the main headsof argument ….. The heads abound with unnecessary quotations from the record and from the authorities. They reveal, moreover, another disturbing feature which is that the typing on many pages does not cover the full pages …… Had the heads been properly drawn and typed I do not think more than 20 pages would have been required. The costs cannot be permitted to be increased in this manner and an order will therefore be made to ensure that the respondent does not become liable for more than what was reasonably necessary."

[38] Practitioners should note that a failure to give proper attention to the requirements of the practice note and the heads might result in the disallowance of part of their fees."


358

34

5. Counsel's names and contact details, including cell phone numbers, must appear on the heads of argument.

6. When allocating a date or the hearing of an appeal, the Judge President or the Deputy Judge President may direct that the parties deliver heads of argument earlier than provided for in paragraph 2 above.

7. Simultaneously with the filing of their heads of argument counsel shall file a practice notice. The practice note shall set out -

7.1 each issue that has to be determined in the appeal; 7.2 an extremely brief submission in respect of each such issue; 7.3 what portion of the record must be read.

8.1 In all civil appeals the record shall be securely bound in volumes of approximately 100 pages each. Each volume shall be so bound that upon being eased open it will be open without any manual or other restraint and upon being so opened and repeatedly closed the binding shall not fail. Each volume shall be consecutively paginated, contain a volume specific index, and have a cover sheet reflecting -

8.1.1 the case number; parties;

e record; volume;

led from; gal

representatives.

ndex must identify descriptively each document and exhibit.

ion of the appeal, and the parties agree thereto in writing, the record shall not contain -

tion or trial;

record; .3.5 documents that were not proved or admitted in the court a quo.

ould be prepared in chronological sequence and must be paginated and indexed.

ll be annotated to reflect the corresponding page number in the appeal record.

8.1.2 the names of the8.1.3 the total number of volumes in th8.1.4 the volume number of the particular8.1.5 the court appea8.1.6 the names, addresses and telephone numbers of the parties' le

8.2 The first volume of the record shall also contain a consolidated index of the evidence, documents and exhibits. The i

8.3 Unless it is essential for the determinat

8.3.1 the opening address to the court a quo;8.3.2 argument at the conclusion of the applica8.3.3 discovery affidavits and notices in respect thereof; 8.3.4 identical duplications of any document contained in the8

8.4 If it will facilitate the hearing of the appeal, or if requested by the presiding judge in the appeal, the parties shall prepare a core bundle of documents relevant to the determination of the appeal. This bundle sh

8.5 The pages in the record shall be numbered clearly and consecutively, and every tenth line on each page shall be numbered and the pagination used in the court aquo shall be retained where possible. All references in the record to exhibits, annexures, evidence etc sha


359

35

8.6 In the event of a party failing to comply with any of the aforegoing, the court may, mero motu, or on application of any party to the appeal, make a punitive costs

his/her failure. The judges presiding may take such steps against the legal

eptional circumstances. Error or oversight by counsel and legal representatives or the latters' employees will rarely be regarded as exceptional circumstances.

order.

9. If the appellant decides to abandon or not to proceed with the appeal or the respondent decides not to oppose the appeal any longer, the registrar must be notified thereof immediately. The legal representative of the party who fails to notify the registrar as aforesaid may be called upon by the judges presiding to explain

representative as they regard appropriate.

10. Failure to file the heads of argument timeously will, as a general rule, only be condoned in exc

CRIMINAL APPEALS:

In addition to and subject to Rule 49A, the following shall apply to all criminal

1. The current practice with regard to setting down of criminal appeals shall continue

delivered not later than 15 days before the appeal is heard. Supplementary heads of argument will only be accepted with the leave of the

3. Items 3, 4, 5, 6, 8.1 (in introductory paragraph), 8.5 and 10 above shall, mutatis mutandis, apply in criminal appeals.

appeals to the Full Court:

1to apply.

12. In all criminal appeals, the appellant's heads of argument must be delivered not later than 30 days before the appeal is heard and the respondent's heads of argument must be

judges presiding.

1


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3634. Preparation of Court Papers in All Matters

34.1 Subject to the provisions of Rule 62 of the Uniform Rules, in all matters the

documents prepared for Court shall be:

34.1.1 printed on one side of white A4 sized paper with a weight of not

less than 80g/m2;

34.1.2 printed using a uniform regular (ie. not italics) 12 point font in Arial,

or Times Roman or Times New Roman with the main body of any

paragraph thereof being double line-spaced;

34.2 All such documents shall be appropriately bound (by a staple or such other

suitable device (papers clips or spring-clamps are not suitable devices)) at

the top left-hand corner thereof (and in no other place) with an appropriate

protective covering. Papers not bound in this manner may result in the matter

not being heard on the allocated date. Attorneys are reminded of their duty to

inspect all Court files before the rolls close to ensure that the papers are in

order and that they comply with this and all other relevant Rules and Practice

Directives.

34.3 When matters are enrolled for hearing (whether in chambers, for trial or for

Motion (Chamber) Court) practitioners are to ensure that the original process

(ie. not photostat or telefaxed copies) are placed in the Court file in good

time. All surplus or additional copies, unless strictly necessary, are to be

removed from the Court file. When preparing the Court Rolls for any Court

the Registrar may not place any matter on the printed Roll in the absence of

the original process. Exceptions shall be allowed for urgent matters and for

exceptional cases.

34.4 If a document or documents attached to any affidavit or pleading, or included

in a bundle of documents, is or are in manuscript or not readily legible, the

party filing such document(s) shall ensure that legible typed copies of the

document(s) are also attached to such affidavit or pleading or included in

such bundle.


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37

34.5 When preparing an Index care must be taken to provide an accurate

description of each document appearing on such Index. It is unacceptable in

an Index to describe a document, for example, simply as “Annexure A”. The

document itself MUST be described, eg: “Annexure B: Letter from X to Y

dated xx July xxxx” or “Annexure C: Agreement of Lease dated xx June

xxxx” and so forth.

35. A Single High Court for the entire Country

The Superior Courts Act, 10 of 2013 ("the Act") was promulgated on 12 August

2013. It came into operation on 23 August 2013 as proclaimed by Proclamation

R36 of 2013 dated 22 August 2013.

A single High Court has been constituted for the entire country, thereby

necessitating a change to all court documents. In that regard the following practice

directive shall issue:

1. In Pietermaritzburg all Court processes etc shall be headed:

"IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG"

2. In Durban all Court processes etc shall be headed:

"IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN"


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