August 2018

MOTION COURT

1 GENERAL................................................................................................................................................1

1.1 General requirements for applications.............................................................................................1

1.2 Disputes of fact in application proceedings...................................................................................21

1.3 Ex parte applications......................................................................................................................30

1.4 Urgent applications........................................................................................................................31

1.5 General provisions.........................................................................................................................34

2 SPECIFIC PROCEDURES AND REMEDIES.......................................................................................73

2.1 Edictal citation................................................................................................................................73

2.2 Provisional sentence......................................................................................................................75

2.3 Default judgment / Judgment by confession..................................................................................88

2.4 Summary judgment........................................................................................................................95

2.5 “Rule 43” procedures...................................................................................................................108

2.6 Reviews.......................................................................................................................................112

2.7 De lunatic inquirendo, curators ad litem, ad personam and bonis...............................................122

2.8 Insolvency procedures.................................................................................................................127

2.9 Interdicts and mandamenten van spolie......................................................................................143

2.10 Rescission and variation of orders and judgments - Rule 31(2)(b), 42(1)(a) and (c) and common
law...............................................................................................................................................151

2.11 Applications for Anton Piller orders..............................................................................................161

2.12 Interpleaders................................................................................................................................165

2.13 Raising of constitutional points: amicus curiae...........................................................................168

3. COSTS: FUNDAMENTAL RULES AND EXCEPTIONS THERETO.................................................171

4. NATIONAL CREDIT ACT....................................................................................................................175

1 GENERAL

1.1 General requirements for applications

Rule 6

(1) Save where proceedings by way of petition are prescribed by law, every application must be
brought on notice of motion supported by an affidavit as to the facts upon which the applicant
relies for relief.

(2) When relief is claimed against any person, or where it is necessary or proper to give any person
notice of such application, the notice of motion must be addressed to both the registrar and such
person, otherwise it must be addressed to the registrar only.

(3) Every petition must conclude with the form of order prayed and be verified upon oath by or on
behalf of the petitioner.

(4) (a) Every application brought ex parte (whether by way of petition or upon notice to the registrar
supported by an affidavit as aforesaid) must be filed with the registrar and set down, before
noon on the court day but one preceding the day upon which it is to be heard. If brought
upon notice to the registrar, such notice must set forth the form of order sought, specify the
affidavit filed in support thereof, request the registrar to place the matter on the roll for
hearing, and be as near as may be in accordance with Form 2 of the First Schedule.

(b) Any person having an interest which may be affected by a decision on an application being
brought ex parte, may deliver notice of an application for leave to oppose, supported by an
affidavit setting forth the nature of such interest and the ground upon which such person
desires to be heard, whereupon the registrar must set such application down for hearing at
the same time as the initial application.

(c) At the hearing the court may grant or dismiss either of or both such applications as the case
may require, or may adjourn the same upon such terms as to the filing of further affidavits by
either applicant or otherwise as it deems fit.

(5) (a) Every application other than one brought ex parte must be brought on notice of motion as
near as may be in accordance with Form 2(a) of the First Schedule and true copies of the
notice, and all annexures thereto, must be served upon every party to whom notice thereof is
to be given.

(b) In a notice of motion the applicant must—

(i) appoint an address within 15 kilometres of the office of the registrar, at which applicant
will accept notice and service of all documents in such proceedings;

(ii) state the applicant’s postal, facsimile or electronic mail addresses where available; and

(iii) set forth a day, not less than five days after service thereof on the respondent, on or
before which such respondent is required to notify the applicant, in writing, whether
respondent intends to oppose such application, and must further state that if no such
notification is given the application will be set down for hearing on a stated day, not
being less than 10 days after service on the said respondent of the said notice:
 Provided that —

(aa) for the purposes of this subrule, the days between 21 December and 7 January, both
inclusive, shall not be counted in the time allowed for delivery of the notice of intention
to oppose or delivery of any affidavit;

(bb) the provisions of subparagraph (aa) shall not apply to applications brought under
subrule 6(12) of this rule and applications brought under rule 43.

(c) If the respondent does not, on or before the day mentioned for that purpose in such notice,
notify the applicant of an intention to oppose, the applicant may place the matter on the roll
for hearing by giving the registrar notice of set down before noon on the court day but one
preceding the day upon which the same is to be heard.

(d) Any person opposing the grant of an order sought in the notice of motion must—

(i) within the time stated in the said notice, give applicant notice, in writing, that he or she
intends to oppose the application, and in such notice appoint an address within 15
kilometres of the office of the registrar, at which such person will accept notice and
service of all documents, as well as such person’s postal, facsimile or electronic mail
addresses where available;

(ii) within fifteen days of notifying the applicant of his or her intention to oppose the
application, deliver his or her answering affidavit, if any, together with any relevant
documents; and

(iii) if he or she intends to raise any question of law only he or she must deliver notice of
his or her intention to do so, within the time stated in the preceding sub-paragraph,
setting forth such question.

(e) Within 10 days of the service upon the respondent of the affidavit and documents referred to
in sub-paragraph (ii) of paragraph (d) of subrule (5) the applicant may deliver a replying
affidavit. The court may in its discretion permit the filing of further affidavits.

(f) (i) Where no answering affidavit, or notice in terms of sub-paragraph (iii) of paragraph (d),
is delivered within the period referred to in sub-paragraph (ii) of paragraph (d) the
applicant may within five days of the expiry thereof apply to the registrar to allocate a
date for the hearing of the application.

(ii) Where an answering affidavit is delivered the applicant may apply for such allocation
within five days of the delivery of a replying affidavit or, if no replying affidavit is
delivered, within five days of the expiry of the period referred to in paragraph (e) and
where such notice is delivered the applicant may apply for such allocation within five
days after delivery of such notice.

(iii) If the applicant fails so to apply within the appropriate period aforesaid, the respondent
may do so immediately upon the expiry thereof. Notice in writing of the date allocated
by the registrar must be given by the applicant or respondent, as the case may be, to
the opposite party within five days of notification from the registrar.

(g) Where an application cannot properly be decided on affidavit the court may dismiss the
application or make such order as it deems fit with a view to ensuring a just and expeditious
decision. In particular, but without affecting the generality of the aforegoing, it may direct that
oral evidence be heard on specified issues with a view to resolving any dispute of fact and to
that end may order any deponent to appear personally or grant leave for such deponent or
any other person to be subpoenaed to appear and be examined and cross-examined as a
witness or it may refer the matter to trial with appropriate directions as to pleadings or
definition of issues, or otherwise.
 (h) The provisions of paragraphs (c) and (f) apply to petitions subject to the necessary
changes.

(6) The court, after hearing an application whether brought ex parte or otherwise, may make no order
thereon (save as to costs if any) but grant leave to the applicant to renew the application on the
same papers supplemented by such further affidavits as the case may require.

(7) (a) Any party to any application proceedings may bring a counter-application or may join any
party to the same extent as would be competent if the party wishing to bring such counter-
application or join such party were a defendant in an action and the other parties to the
application were parties to such action. In the latter event the provisions of rule 10 will apply.

(b) The periods prescribed with regard to applications apply to counter-applications: Provided
that the court may on good cause shown postpone the hearing of the application.

(8) Any person against whom an order is granted ex parte may anticipate the return day upon
delivery of not less than twenty-four hours’ notice.

(9) A copy of every application to court in connection with the estate of any person deceased, or
alleged to be a prodigal, or under any legal disability, mental or otherwise, must, before such
application is filed with the registrar, be submitted to the Master for consideration and report; and if
any person is to be suggested to the court for appointment as curator to property, such suggestion
must likewise be submitted to the Master for report. Provided that the provisions of this subrule do
not apply to any application under rule 57 except where that rule otherwise provides.

(10) The provisions of subrule (9) further apply to all applications for the appointment of administrators
and trustees under deeds or contracts relating to trust funds or to the administration of trusts set
up by testamentary disposition.

(11) Notwithstanding the aforegoing subrules, interlocutory and other applications incidental to pending
proceedings may be brought on notice supported by such affidavits as the case may require and
set down at a time assigned by the registrar or as directed by a judge.

(12) (a) In urgent applications the court or a judge may dispense with the forms and service provided
for in these rules and may dispose of such matter at such time and place and in such
manner and in accordance with such procedure (which shall as far as practicable be in terms
of these rules) as it deems fit.

(b) In every affidavit or petition filed in support of any application under paragraph (a) of this
subrule, the applicant must set forth explicitly the circumstances which is averred render the
matter urgent and the reasons why the applicant claims that applicant could not be afforded
substantial redress at a hearing in due course.

(c) A person against whom an order was granted in such person’s absence in an urgent
application may by notice set down the matter for reconsideration of the order.

(13) In any application against any Minister, Deputy Minister, Member of an Executive Council, officer
or servant of the State, in such capacity, the State or the administration of any province, the
respective periods referred to in paragraph (b) of subrule (5), or for the return of a rule nisi, must
be not less than 15 days after the service of the notice of motion, or the rule nisi, as the case may
be, unless the court has specially authorized a shorter period.

(14) The provisions of rules 10, 11, 12, 13 and 14 apply to all applications.

(15) The court may on application order to be struck out from any affidavit any matter which is
scandalous, vexatious or irrelevant, with an appropriate order as to costs, including costs as
between attorney and client. The court may not grant the application unless it is satisfied that the
applicant will be prejudiced if the application is not granted.
Commentary

In terms of Rule 6, every application must be brought on notice of motion. The rules distinguish between
applications on notice, ex parte applications, interlocutory applications and urgent applications.

An application is brought on notice and addressed to the registrar and a particular person when relief is
claimed against any such person, or where it is necessary or proper to give any such person notice of the
application.

 An application is brought ex parte and addressed to the registrar only, where no relief is claimed
against any person and it is neither necessary nor proper to give any person notice thereof.

 An interlocutory application or an application incidental to pending proceedings, as opposed to

applications on notice or ex parte applications commencing proceedings, may be brought on
notice addressed to all other parties to the pending dispute and the registrar and not on notice of
motion.

 An urgent application can be brought either on notice or ex parte.

Dies non for actions are between 16 December and 15 January (both inclusive), in which days are not
included for pleadings and notice of intention to defend. It only applies to pleadings in action and notice of
intention to defend. The dies non for applications are between 21 December and 7 January (as of
November 2017).

Subrule (1):

'Shall be brought on notice of motion.' The term 'notice of motion' is used in two different senses:

(i) to denote particular written notices, the form of which is prescribed in the First Schedule to the
rules; and

(ii) to denote one of the different ways in which civil proceedings may be initiated.

It is not a requisite of the rules that a notice of motion must, as in the case of a summons, be issued by the
registrar or delivered to him before it may be served upon the respondent.

'Supported by an affidavit.' An affidavit is a statement in writing sworn to before someone who has authority
to administer an oath; it is a solemn assurance of fact known to the person who states it, and sworn to as
his statement before some person in authority such as a magistrate, justice of the peace, commissioner of
the court or a commissioner of oaths.

'The facts upon which the applicant relies for relief.' The facts must be set out simply, clearly and in
chronological sequence, and without argumentative matter, in the affidavits which are filed in support of the
notice of motion. The statement of facts must at least contain the following information:
 (i) The applicant's right to apply, that is, his locus standi. When notice of motion proceedings are
brought by a legal persona such as a company, evidence must be placed before the court that the
applicant has duly resolved to institute the proceedings and that the proceedings are instituted at
its instance. The best evidence that the proceedings have been properly authorised would be
provided by an affidavit made by an official of the company annexing a copy of the resolution. This
is, however, not necessary in every case and the court must decide whether enough has been
placed before it to warrant the conclusion that it is the applicant which is litigating and not some
unauthorised person on its behalf.

(ii) The facts indicating that the court has jurisdiction.

(iii) The cause of action on which the applicant relies. The respondent is entitled to raise an objection
in limine that the founding affidavit does not make out a prima facie case for the relief claimed.

(iv) The evidence in support of the application. In application proceedings the affidavits take the place
not only of the pleadings in an action, but also of the essential evidence which would be led at a
trial. Where an affidavit sets out facts based on hearsay information, the deponent must state that
the allegations of fact are true to the best of his information, knowledge and belief and state the
basis of his knowledge or belief; and failure to state the source of the information or grounds of
belief in the original affidavit is an irregularity that cannot be cured by stating them in a replying
affidavit. It does not follow, however, that the court is obliged to accept such hearsay evidence,
even if the source and the grounds for the belief are furnished. The admission of hearsay evidence
is governed by s 3 of the Law of Evidence Amendment Act which gives the court a wide discretion
whether or not to admit hearsay evidence.

An applicant is entitled to make any legal contention which is open to him on the facts even though it was
not specifically raised or relied on in the affidavits supporting the application. This principle is subject to the
proviso that its application should not be unfair to the respondents.

Subrule (2): 'Necessary or proper to give any person notice of such application.' Notice of an application
must be given to the Master where it is necessary for him to report on applications for voluntary surrender,
sequestration, rehabilitation and other matters under the Insolvency Act; in applications for the winding-up
of companies, in applications for the winding-up of close corporations and in applications affecting
deceased estates or the property of minors or other persons under legal disability.

Subrule (4)(a): 'Every application brought ex-parte.' The phrase ex parte in this subrule contemplates the
situation in which an application is brought without notice to anyone, either because no relief of a final
nature is sought against any person, or because it is not necessary to give notice to the respondent.

An ex parte application is used:

 (i) when the applicant is the only person who is interested in the relief which is being claimed;

(ii) where the relief sought is a preliminary step in the proceedings;

(iii) where the nature of the relief sought is such that the giving of notice may defeat the purpose of the
application, e.g. an Anton Piller-type order;

(iv) where immediate relief, even though it may be temporary in nature, is essential because harm is
imminent. In such cases the applicant will often seek a rule nisi, the application then being in the
nature of an ex parte application in terms of this subrule;

(v) where certain kinds of applications are customarily brought ex parte.

Good faith is a sine qua non in ex parte applications. If any material facts are not disclosed, whether they
be wilfully suppressed or negligently omitted, the court may on that ground alone dismiss an ex parte
application.

'As near as may be in accordance with Form 2 of the First Schedule.' The applicant sets out the relief he or
she claims in the notice of motion. In practice a prayer for 'further and/or alternative relief' is usually
included. This prayer can be invoked to justify an order in terms other than that set out in the notice of
motion where that order is clearly indicated in the founding (and other) affidavits and is established by
satisfactory evidence on the papers. Relief under this prayer cannot be granted if it is substantially different
from that specifically claimed, unless the basis therefore has been fully canvassed, the party against whom
such relief is to be granted has been fully apprised that relief in this particular form is being sought and has
had the fullest opportunity of dealing with the claim for the relief being pressed.

Subrule (5)(a): 'As near as may be in accordance with Form 2(a) of the First Schedule.' The provisions of
the subrule are peremptory but in appropriate circumstances the use of a wrong form may be condoned. An
urgent application is an application in terms of the subrule and Form 2(a) must be used with such
adaptation as may be required by the circumstances of the case.

Subrule (5)(b): 'Subject to the provisions of section 27 of the Act.' Section 27 prescribes the time allowed
for giving notice of intention to oppose a notice of motion served outside the jurisdiction of the court in
which it was issued. The periods prescribed in the section are to be computed in accordance with the
provisions of the Interpretation Act and not in terms of the definition of 'court day' in Rule 1. The court has
no power to abridge the period laid down in the section nor to condone non-compliance with the provisions
thereof.

'Set forth a day, not less than five days.' The period of five days applies only where a notice of motion is
served within the jurisdiction of the court in which it was issued. The days are 'court days' and must be
calculated in terms of the definition in Rule 1.
Subrule (13) provides that in applications against officers of the state in their capacity as such or the state
or the administration of any province, the dies allowed should be at least 15 days unless the court has
specially authorised a shorter period.

Subrule (5)(d)(ii): 'Within fifteen days of notifying the applicant of his intention to oppose the application.'
Form 2(a) has been amended and the wording has been brought into line with that of the subrule.

'Deliver his answering affidavit.' The requirements for a respondent's answering affidavit, which deals with
the allegations contained in the applicant's founding affidavit, are the same as for that of the applicant. If the
respondent's answering affidavit fails to admit or deny, or confess and avoid, allegations in the applicant's
founding affidavit, the court will, for the purposes of the application, accept the applicant's allegations as
correct.

An affidavit is not a pleading. A respondent cannot content himself in his answering affidavit with bare or
unsubstantiated denials unless, of course, there is no other way open to the respondent and nothing more
can be expected of him. A statement of lack of knowledge coupled with a challenge to the applicant to
prove part of his or her case does not amount to a denial of the averments by the applicant. If the
respondent in such a case requires oral evidence he or she can apply in terms of subrule (5)(g) to cross-
examine witnesses. It is permissible for a respondent, without advancing evidence of facts under oath, to
seek to impugn the veracity of the applicant's affidavits by examining their inherent validity or probity in all
the proved circumstances. The respondent must, however, eschew 'indignant argument and expostulation'
in his or her answering affidavits.

Subrule (5)(d)(iii): 'Intends to raise any question of law only.' A respondent should, generally, file his
affidavits on the merits at the same time as he takes a preliminary objection on a point of law. Should the
respondent choose not to file opposing affidavits answering the applicant's allegations but to take a legal
point only, the court is faced with two unsatisfactory alternatives should the objection fail. The first is to hear
the case without giving the respondent an opportunity to file opposing affidavits, something the court would
be 'most reluctant' to do. The second is to grant a postponement to enable the respondent to prepare and
file affidavits, a course which gives rise to an undue protraction of the proceedings and a piecemeal
handling of the matter. It has been suggested that a respondent should be given the opportunity to file an
opposing affidavit where the court is satisfied that the respondent was not acting mala fide, where an
adequate explanation for the failure to file an affidavit on the merits is given, where justice demands that
the respondent should have further time for the purpose of presenting his or her case and where the
disadvantages to the applicant of a postponement can be compensated by an appropriate order as to
costs.

A respondent who files an affidavit on the merits is entitled to make any legal contention open to him on the
facts as they appear on the affidavits, and notice of such legal contention need not be given in terms of the
subrule, provided that the raising of the legal contention is not, in the circumstances, unfair to the applicant.
There are any number of cases which recognize the right of a respondent, in spite of having filed an
answering affidavit, to raise an objection in limine that the founding affidavit does not make out a prima
facie case for the relief claimed. In most cases it is suggested that the approach to be adopted by the court
in determining the validity of the point in limine is similar to that adopted in deciding an exception to a
pleading in that:

(a) the founding affidavits alone fall to be considered; and

(b) the averments in those affidavits must be accepted as being true.

There is, however, one important difference: unlike pleading, an affidavit contains evidence and not only
allegations of fact, and what might be sufficient to uphold an exception to a particulars of claim (that it fails
to sustain a cause of action) may be insufficient to uphold an objection in limine to a founding affidavit (that
it fails to make out a prima facie case). The former is about the law alone the latter is about the law and the
evidence.

Subrule (5)(e): 'Deliver a replying affidavit.' All the necessary allegations upon which the applicant relies
must appear in his founding affidavit, as he will not generally be allowed to supplement the affidavit by
adducing supporting facts in a replying affidavit.

'May in its discretion permit the filing of further affidavits.' It is essentially a question of fairness to both sides
as to whether or not further sets of affidavits should be allowed. There should in each case be a proper and
satisfactory explanation which negatives mala fides or culpable remissness as to the cause of the facts or
information not having been put before the court at an earlier stage, and the court must be satisfied that no
prejudice is caused by the filing of the additional affidavits which cannot be remedied by an appropriate
order as to costs.

Where an affidavit is tendered both late and out of its ordinary sequence, the party tendering it is seeking,
not a right, but an indulgence from the court. He must explain why it is out of time and satisfy the court that
in all the circumstances of the case it should be received.

Subrule (5)(g): 'Where an application cannot properly be decided on affidavit.' Where the material facts are
in dispute and there is no request for the hearing of oral evidence, a final order will only be granted on
notice of motion if the facts as stated by the respondent together with the facts alleged by the applicant that
are admitted by the respondent, justify such an order. The subrule is of wide import and empowers the
court, where an application cannot properly be decided on affidavit, to make such order as to it seems meet
with a view to ensuring a just and expeditious decision.

The ambit of the subrule is not restricted to cases where oral evidence is called for to resolve disputes of
fact. Thus the subrule also applies in the case of unopposed motions where ex hypothesi there can be no
dispute of fact.
In general terms it can be said that oral evidence in terms of the subrule should be allowed if there are
reasonable grounds for doubting the correctness of the allegations made by the applicant. In reaching a
conclusion in this regard, facts peculiarly within the knowledge of the applicant which cannot for that reason
be directly contradicted or refuted by the other party are to be carefully scrutinised.

The aforegoing does not, however, detract from the fact that in practice the presence of a dispute of fact in
an opposed application, and the nature thereof, will often be the determining consideration in deciding
whether viva voce evidence should be ordered.

The 'principal ways' in which a dispute of fact may arise are set out as follows in Room Hire Co (Pty) Ltd v
Jeppe Street Mansions (Pty) Ltd:

(i) When the respondent denies all the material allegations made by the various deponents on the
applicant's behalf, and produces or will produce, positive evidence by deponents or witnesses to
the contrary.

(ii) When the respondent admits the applicant's affidavit evidence but alleges other facts which the
applicant disputes.

(iii) When the respondent concedes that he has no knowledge of the main facts stated by the
applicant, but denies them, putting the applicant to the proof and himself gives or proposes to give
evidence to show that the applicants and his or her deponents are biased and untruthful or
otherwise unreliable, and that certain facts upon which the applicant relies to prove the main facts
are untrue. The absence of any positive evidence possessed by a respondent directly
contradicting the applicant's main allegations does not render the matter free of a real dispute of
fact.

In resolving to refer a matter to evidence a court has a wide discretion. In every case the court must
examine an alleged dispute of fact and see whether in truth there is a real dispute of fact which cannot be
satisfactorily determined without the aid of oral evidence. The test is a stringent one that is not easily
satisfied. Vague and insubstantial allegations are insufficient to raise the kind of dispute of fact that should
be referred for oral evidence. A bare denial of the applicant's allegations in his or her affidavits will not in
general be sufficient to generate a genuine or real dispute of fact. It has been said that the court must take
'a robust, common-sense approach' to a dispute on motion and not hesitate to decide an issue on affidavit
merely because it may be difficult to do so. This approach must, however, be adopted with caution and the
court should not be tempted to settle disputes of fact solely on the probabilities emerging from the affidavits
without giving due consideration to the advantages of viva voce evidence.

As a general rule, decisions of fact cannot properly be founded on a consideration of the probabilities
unless the court is satisfied that there is no real and genuine dispute on the facts in question, or that the
one party's allegations are so far-fetched or so clearly untenable or so palpably implausible as to warrant
their rejection merely on the papers, or that viva voce evidence would not disturb the balance of
probabilities appearing from the affidavits. This rule applies not only to disputes of fact, but also to cases
where an applicant seeks to obtain final relief on the basis of the undisputed facts together with the facts
contained in the respondent's affidavits.

'The court may dismiss the application.' The court will dismiss an application if the applicant should have
realised when launching his application that a serious dispute of fact, incapable of resolution on the papers,
was bound to develop.

'Or make such an order as to it seems meet.' Where the facts are in dispute, the court has a discretion as
to the future course of the proceedings. It may: (1) dismiss the application with costs, (2) order the parties
to go to trial, or (3) order oral evidence in terms of the rules. The three alternatives are set out in the
subrule as possible courses which the court may adopt.

‘Oral evidence be heard on specified issues with a view to resolving any dispute of fact.' The court will
adopt this course where the factual dispute is within a narrow compass and can be expeditiously disposed
of. The dispute of fact must be one between the parties and not a dispute between one of the parties and
his agent or representatives. As a general rule an application to refer a matter to evidence must be made at
the outset and not after argument on the merits, but the rule is not an inflexible one and a party is entitled to
persist in his application without being precluded, when a dispute becomes apparent and incapable of
resolution on the papers, from asking for evidence viva voce.

'Order any deponent to appear personally or grant leave for him or any other person to be subpoenaed.'
The court in its order must set out who may or must be called as witnesses and the parties are not entitled
at will to subpoena witnesses they wish to call.

'Refer the matter to trial.' The court will refer a matter to trial if the dispute of fact is incapable of resolution
on the papers and too wide-ranging for resolution by way of referral to oral evidence. In such instance it is
essential that the issues be defined. It is an alternative procedure to dismissal of the application in such
circumstances, and is appropriate where the applicant when launching his application could not reasonably
have foreseen that a serious dispute of fact, incapable of resolution on the papers, was bound to develop.

At the trial a witness who gives evidence must do so in the ordinary way. Once the disputes have been
resolved by oral evidence, the case is decided on the basis of that finding together with the affidavit
evidence that is not in dispute.

Subrule (6): 'Make no order …but grant leave…to renew the application on the same papers.' Where no
order is made on an application or leave is granted to apply again on the same papers, the order is the
equivalent of an order of absolution from the instance. Dismissal or refusal of an application is equivalent to
judgment for the respondent. Where an application is dismissed by reason of some procedural defect, such
as the existence of an irresoluble factual dispute, the order does not operate as a judgment for the
respondent.

Subrule (8): 'An order is granted ex parte.' The provisions of this subrule only apply where an order has
been granted against a person ex parte and where a return day has been fixed. A return day may be
anticipated under the subrule even if the order granted ex parte does not explicitly provide for the
anticipation of the return day (Lourenco (1998, T)). The subrule comes to the aid of a person who has
been taken by surprise by an order granted ex parte.

Subrule (11): 'Applications incidental to pending proceedings.' An application is incidental to pending

proceedings if it is subordinate or accessory to while at the same time being distinct from the main
proceedings. A legal issue should be decided at the interlocutory stage of proceedings only if it would result
in the final disposal of either the matter as a whole or a particular aspect thereof.

'May be brought on notice.' 'Notice' does not mean notice of motion. Interlocutory and other applications
incidental to pending proceedings need not be served by the sheriff: service may be effected upon the
attorney of record of the respondent by the party initiating the proceedings. The provisions of the rules
relating to the time for filing answering and replying affidavits do not apply to interlocutory applications.
Further affidavits in interlocutory applications must be filed within a reasonable time; prima facie in the
absence of special circumstances, this would not be longer than the times prescribed in terms of Rule 6(5).

Subrule (12)(a): 'Urgent applications’

'Urgency' in urgent applications, which are not ex parte applications under Rule 6(4), involves mainly the
abridgment of times prescribed by the rules and, secondarily, the departure from established filing and
sitting times of the court.

Urgency does not relate only to some threat to life or liberty; the urgency of commercial interests may justify
the invocation of the subrule no less than any other interests. Where an applicant first seeks compliance
from the respondent before lodging the application it cannot be said that the applicant had been dilatory in
bringing the application or that urgency was self-created.

The degree of relaxation of the rules and of the ordinary practice of the court depends upon the degree of
urgency of a matter.

In urgent matters the court is entitled to admit hearsay evidence in an affidavit provided the source of the
information and the grounds for belief in its truth are stated. The type of case in which such evidence is
accepted, if these prerequisites are complied with, is one in which it is necessary to restrain immediate
injury and to keep matters in status quo. It does not follow that the court is obliged to accept such hearsay
evidence, even if the source and the grounds for belief are furnished.

Where the application lacks the requisite element or degree of urgency, the court can, for that reason,
decline to exercise its powers under this subrule. The matter is then not properly on the roll. The
appropriate order under such circumstances is to strike the application from the roll. That enables the
applicant to set the matter down again on proper notice and compliance with the rules.

'May dispense with the forms and service provided for in these rules.' Although the court may in terms of
the subrule dispense with the forms and service provided for in the rules, the court is enjoined by the
subrule to dispose of an urgent matter by procedures which are as far as practicable in terms of the rules.
That obligation must be reflected in the attitude of the court about which deviations it will tolerate in a
specific case. It has been held that the rules of service could be relaxed in urgent matters for interim relief
involving respondents who resided outside the area of jurisdiction of a court.

An urgent application is still also an application in terms of Rule 6(5) and the provisions of the subrule
applies to such applications subject to the qualification that an applicant may, to the extent that is
necessary in the particular circumstances, deviate from the rules without asking prior permission of the
court. The applicant must, of course, ask that his non-compliance with the rules be condoned.

In terms of Rule 6(5)(a) an application must be in a form as near as may be in accordance with Form 2(a) .
The mere existence of some urgency does not justify an applicant not using Form 2(a), but the applicant
may deviate from the form to the extent justified by the exigencies of the circumstances by, for example,
using shortened time periods, advance nomination of a date of hearing, omitting notice to the registrar and
adaptation of the wording. There must be a marked degree of urgency before it will be justifiable not to use
Form 2(a).

In appropriate circumstances a rule nisi may be sought by way of urgent application. In such cases an
applicant would be entitled in one document to give two notices for the two sets of relief which is being
sought: (i) a notice along ex parte lines (Form 2) for the immediate relief which will be sought without notice
or on shorter notice than the main relief; and (ii) a notice along the lines of Form 2(a) for the relief which will
be sought at a later stage. The relief under (i) will be relief pending the relief to which (ii) refers, i.e. relief
pending the main hearing.

Subrule (12)(b): 'Shall set forth explicitly the circumstances…which render the matter urgent.' The applicant
must in his founding affidavit set out explicitly the circumstances on which he relies to render the matter
urgent and the reason why he claims that he cannot be afforded substantial relief at a hearing in due
course.

Subrule (12)(c): 'Against whom an order was granted in his absence.' While subrule (8) allows a person
against whom an order has been granted ex parte to anticipate the return day upon notice, this subrule
allows a person against whom an order was granted in his absence in an urgent application to set the
matter down on notice for reconsideration.

'Set the matter down for reconsideration of the order.' The dominant purpose of the subrule is to afford an
aggrieved party a mechanism designed to redress imbalances in, and injustices and oppression flowing
from an order granted as a matter of urgency in his absence.

Subrule (15): 'May on application order to be struck out.' This subrule regulates the striking out of matter
from an affidavit as opposed to an application to strike out an entire claim that is vexatious. In the latter
instance, the court enjoys at common law an inherent power to strike out claims that are vexatious by which
is meant 'frivolous, improper, and instituted without sufficient ground, to serve solely as an annoyance to
the defendant'. Note that this inherent power of the court is different from an application to strike out
vexatious averments in pleadings in terms of rule 23(2) or an application in terms of the Vexatious
Proceedings Act, 1956 directed at a vexatious litigant.

The application must be on notice in terms of subrule (11). The application should be set down for hearing
at the same time as the hearing of the main application.

'Any matter which is scandalous, vexatious or irrelevant.' The meaning of these terms has been stated as
follows:

(a) Scandalous matter: allegations which may or may not be relevant but which are so worded as to
be abusive or defamatory.

(b) Vexatious matter: allegations which may or may not be relevant but are so worded as to convey
an intention to harass or annoy.

(c) Irrelevant matter: allegations which do not apply to the matter in hand and do not contribute in one
way or the other to a decision of such matter.

The subrule is not exhaustive of the grounds upon which an application to strike out matter from an affidavit
may be brought. Thus it has always been the practice to strike out matter in replying affidavits which should
have appeared in the founding affidavits.

'The applicant will be prejudiced in his case.' Two requirements must be satisfied before an application to
strike out matter from any affidavit can succeed:

(1) the matter sought to be struck out must indeed be scandalous, vexatious or irrelevant; and

(2) the court must be satisfied that if such matter is not struck out the parties seeking such relief would
be prejudiced.

Overview of applications

Adapted from Subel “Applications” in Gautschi and Guidozzi (eds) Motion Court Manual for Pupils 2ed
(1999).

Introduction
An application is a procedure which is intended to be disposed of without viva voce evidence, and the
evidence is placed before the court by way of a written statement under oath, called an affidavit.

Magistrates' courts practice does not provide for a general application procedure and only recognises
certain specific instances in which applications may be brought before a magistrate's court. Rule 55 of the
magistrates' courts rules regulates the procedure for applications generally.

In the High Court, on the other hand, the application procedure is widely used. The differences between the
magistrate's court and High Court practice should accordingly be borne in mind. What follows examines
application proceedings in the High Court and discusses the main provisions of rule 6 of the Rules, certain
general principles and exceptions thereto.

General Principles

In general the following principles apply.

1. Each application is brought on notice of motion supported by an affidavit as to the facts upon which
the applicant relies for relief

The "notice of motion" is in general to be in accordance with Form 2(a) of the First Schedule to the Rules.
This form is often referred to as "long form notice of motion". As will appear more fully below, there are
instances where Form 2 of the First Schedule may be used and yet other instances where a variation on
the prescribed form may be employed.

The notice of motion is a document which tells the respondent what relief is being sought and in what court.
It also sets out an address within 15 kilometres of the Registrar's office for the applicant to receive notices
and to accept service of documents pertinent to the proceedings. It will specify a date (not less than five
days after service of the notice of motion on the respondent) for the respondent to notify the applicant in
writing of his intention to oppose the application. It will also state the date on which the matter will be set
down for hearing (being not less than ten days after the date of service on the respondent) if no notice of
intention to oppose is given.

In regard to the supporting affidavit (referred to as the "founding affidavit") care must be taken to ensure
that all evidence necessary to support the case for the relief sought is contained in that affidavit. Being a
document containing evidence, the substantive law of evidence applies equally to an affidavit as to viva
voce evidence. It is often useful to approach an affidavit in much the same way as one would approach the
oral evidence of a witness testifying to the facts which are instead being produced by way of affidavit
evidence. The affidavit is framed in the first person. The deponent will generally state in the affidavit that
the contents thereof are true, but a failure to do this does not automatically render the affidavit defective.
The affidavit is in order if it complies substantially with the relevant regulations which govern the attestation
thereof. It is not necessary to annex original documents to the affidavit, but these must be available to the
court if required.

If the application is opposed, the respondent will first deliver a notice of intention to oppose in which he will
include an address within 15 kilometres of the Registrar's office where he will accept service of documents
relevant to the application, and will thereafter deliver what is known as an "answering affidavit".

The answering affidavit is due fifteen (court) days after the notice of intention to oppose is delivered. The
applicant then has the right to respond with a "replying affidavit" within ten days after the date of delivery of
the answering affidavit.

The court has a discretion to permit the filing of further affidavits.

Applications dealing with deceased estates, prodigals or persons with other legal disability, or the
appointment of a curator to property, require submission to the Master for his consideration and report
before being filed with the Registrar.

2. Application proceedings ought generally not to be employed where a genuine factual dispute is
foreseen or is foreseeable

The principle now to be discussed is valid only for applications for final relief (for example, an application for
the payment of money, or for the vindication of an article, or for a final interdict). This principle, too, is
subject to exception which will be dealt with below.

The party suing (the applicant) is dominus litis and chooses the procedure to be used. It must be
appreciated that it is inherently unfair on the respondent to be brought to court in an application where there
are disputes of fact, when he has the prospect of a final judgment being granted against him, and does not
have the opportunity of giving viva voce evidence before a judge who is trained in the art of evaluating that
evidence and of observing his demeanour. For that reason the general principle is as stated above, and the
odds are stacked heavily against the applicant where there are disputes of fact, as we will see presently.

There are certain matters where an application must be brought. Examples of these are sequestration,
voluntary surrender, rehabilitation and liquidation applications, which are prescribed by the relevant statute,
and applications for interim interdicts. There are other cases where applications may not be brought and
the matter must proceed by way of action. Instances of these are matrimonial causes (excluding rule 43
applications) and illiquid claims for damages. Between those two extremes the party suing has the choice
between an action and an application, and his only limitation in regard to an application is the anticipation of
a real dispute on any material question of fact (Room Hire).

Generally speaking, disputes of fact arise when each party has a different version of an event. Disputes
may also arise, however, where the respondent admits the applicant's version but alleges other facts which
the applicant disputes, or where the respondent concedes that he has no knowledge of the applicant's facts
and denies them, putting the applicant to the proof thereof. The respondent may propose, in addition, to
give evidence to show that the applicant is biased and untruthful or otherwise unreliable. A bare denial of
the applicant's version does not create a genuine dispute of fact (Weightman), nor does a version which is
far-fetched or clearly untenable (Plascon-Evans).

Bearing in mind the disadvantage to which the respondent is put in an application for final relief, a court is
not permitted, where there are genuine or real disputes of fact on material issues, to decide the matter on a
mere balance of probabilities, such as would be done in an action. The test is more stringent against the
applicant. In the case of disputes of fact, an applicant can only succeed if the facts as stated by the
respondent, together with those facts in the applicant’s affidavit which have been admitted by the
respondent, justify the order sought (Plascon-Evans).

The matter is therefore decided essentially on the respondent's version.

A court will not permit a respondent to defeat the applicant's application by a mere denial in general terms.
In suitable cases it will adopt a "robust, common sense approach" to the dispute of fact. In Wightman t/a
JW Construction v Headfour (SCA, 2008), Heher JA held as follows with regard to bare denials and the
genuineness of disputes of fact:

"A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party
who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be instances where a bare denial meets the requirement
because there is no other way open to the disputing party and nothing more can therefore be expected
of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the
averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing party must necessarily possess knowledge of them and be able to
provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the
test is satisfied. I say 'generally' because factual averments seldom stand apart from a broader matrix of
circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not
necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made by the other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional
circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser
who settles an answering affidavit to ascertain and engage with facts which his client disputes and to
reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should
come as no surprise that the court takes a robust view of the matter.”

However, where the court is unable to decide the application on paper, generally three avenues are open to
it.

 First: it may dismiss the application.

 Second: it may refer the application for the hearing of oral evidence.

 Third: it may refer the application to trial

The application will generally be referred for the hearing of oral evidence where the dispute is within a
narrow ambit. The court will give directions in regard to the hearing of oral evidence. The customary order
will follow the lines of that made by Colman J in Metallurgical and Commercial Consultants (Pty) Ltd v
Metal Sales Co (Pty) Ltd:

(1) The matter is referred for the hearing of oral evidence, before me, at a time to be arranged with
the Registrar, on the question whether […].

(2) The evidence shall be that of any witnesses whom the parties or either of them may elect to call,
subject, however, to what is provided in para. 3 hereof.

(3) Save in the case of [the deponents to the affidavits], neither party shall be entitled to call any
witness unless:

(a) it has served on the other party at least 14 days before the date appointed for the hearing (in
the case of a witness to be called by the respondent) and at least 10 days before such date
(in the case of a witness to be called by the applicant), a statement wherein the evidence to
be given in chief by such person is set out; or

(b) the Court, at the hearing, permits such person to be called despite the fact that no such
statement has been so served in respect of his evidence.

(4) Either party may subpoena any person to give evidence at the hearing, whether such person has
consented to furnish a statement or not.

(5) The fact that a party has served a statement in terms of para. 3 hereof, or has subpoenaed a
witness, shall not oblige such party to call the witness concerned.

(6) Within 21 days of the making of this order, each of the parties shall make discovery, on oath, of all
documents relating to the issue referred to in para. 1 thereof, which are or have at any time been
in the possession or under the control of such party. Such discovery shall be made in accordance
with Rule of Court 35 and the provisions of that Rule with regard to the inspection and production
of documents discovered shall be operative.

(7) The incidence of the costs incurred up to now shall be determined after the hearing of oral
evidence.

(Practical note – could state that the provisions of rule 35, 36 and 37 apply rather than dealing with time
periods for discovery and pre-hearing preparation)

The application will then be set down in the trial court. Viva voce evidence will be heard on the issues
identified in the order, and thereafter the application will be decided on the oral evidence read in
conjunction with the affidavit evidence already on record.

If the matter is referred to trial, pleadings will be exchanged and the matter will proceed as if it had been
started as an action. The affidavits will play no role in the ultimate decision, other than perhaps in regard to
credibility. The customary order made when referring an application to trial would typically read as follows:

1. The application under case number [….] is referred to trial.

2. The notice of motion shall stand as a simple summons.

3. The notice of intention to oppose shall stand as a notice of intention to defend.

4. The applicant shall deliver a declaration within twenty days of this order.
 5. Thereafter the rules relating to actions shall apply.

6. The costs to date shall be reserved for determination by the trial court (or shall be paid by the
applicant).

The applicant who cannot pass the Plascon-Evans test as set out above, and who does not ask for his
matter to be referred for the hearing of oral evidence or to trial, may be faced with the prospect of having
his application dismissed. Counsel for the applicant may be faced with the dilemma as to whether to
attempt to persuade the judge that there are no genuine or real disputes of fact or that the respondent's
version is far-fetched or clearly untenable, on the one hand, or to ask that the matter be referred for the
hearing of oral evidence or to trial, on the other.

It is a salutary general rule to make application at the outset for the referral of a matter to evidence
or trial and not only after argument on the merits (Kalil v Decotex) . This is not however an inflexible
rule. It is inherently unfair to put counsel to this dilemma, since he may genuinely feel that the judge could
be persuaded, but would not wish his client to suffer any adverse consequence should he be wrong. In
these circumstances the recent trend is to allow counsel for an applicant to present his case on the footing
that the applicant is entitled to relief on the papers, but to apply in the alternative for the matter to be
referred to evidence if the main argument should fail (Theletsane).

3. Generally, notice of the application must be given to the respondent/s

It is a fundamental policy that the respondent ought to be afforded an opportunity of placing his version
before the court and of being heard (the audi alteram partem rule). Therefore, unless there are exceptional
circumstances, the notice of motion and founding affidavit (together with all annexures) must be served in
the manner provided for in the Rules 6(3) on the respondent. The exceptions to this general rule will be
dealt with below.

Exceptions to the general rules

1. Form of notice of motion

Petitions

Rule 6(1) refers to petitions, and reference thereto will also be found in legislation. Petitions were abolished
by the Petition Proceedings Replacement Act 35 of 1976. For practical purposes they exist only as the form
used for applications in the Supreme Court of Appeal. Petitions are written in the third person, such as
"your petitioner respectfully submits that he . . . "

Ex parte applications

Where an application is one brought ex parte (i.e. where the application is brought without notice to
anyone, either because no relief of a final nature is sought against any person, or because it is not
necessary to give notice to the respondent) the applicant shall use Form 2 of the First Schedule to the
Rules (known as the short form notice of motion), together with a supporting affidavit. It is important to bear
in mind that in an ex parte application it is the duty of the applicant not to omit any fact in his affidavit,
including those which may assist his opponent, which may be material to the decision.

A person having an interest in an ex parte application may apply for leave to oppose it. The affidavit must
state his interest and the ground upon which he wishes his application to be heard. The application for
leave to oppose and the ex parte application may then be set down together. The court may request that
further affidavits be filed, or make any other order as to it seems meet. Any person against whom an order
is granted ex parte may anticipate the return day upon delivery of not less than 24 hours' notice.

Interlocutory applications

Interlocutory and other applications incidental to pending proceedings are brought on notice, usually
supported by an affidavit.

Service of such an application need not be effected by the sheriff, but is usually effected by the attorney's
messenger. The word "notice" in this subrule does not mean "notice of motion". In practice Form 2 is
adapted for this purpose by reflecting thereon both the applicant and the respondent and by addressing it to
both the Registrar and the respondent.

Urgent applications

There are also instances where to proceed on long form notice of motion and to require service in the
ordinary form would cause the applicant to suffer prejudice and where the court may be justified in hearing
an application urgently. This is permitted by rule 6(12), which allows a court to dispense with the forms and
service provided for in the Rules and to dispose of an urgent matter in such manner as it deems fit.

An applicant ought to seek as little indulgence and variation to the ordinary form as possible and any
departure from the usual form must be justified by the exigencies of the situation. Any aspect of the notice
of motion may be so modified as to accommodate the need therefor (for example, the time to be allowed to
the respondent to deliver notice of intention to oppose and/or to deliver an answering affidavit may be
shortened). The applicant must dictate his terms as to time limits in the notice of motion, and the
respondent ignores those at his peril. The applicant will at the hearing have to justify the time limits which
he has sought to impose on the respondent. In the Pretoria and Johannesburg divisions the respondent
must always be given a time in which he can notify the applicant of his intention to oppose (unless the
application is brought ex parte), which must be at least two hours before the hearing.

The approach to determining the degree of urgency with which an application is to be brought is stated in
Luna Meubel (see further below).

The affidavit must set forth explicitly the circumstances which the applicant 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.
The notice of motion will typically contain a first prayer which reads as follows: "Dispensing with the forms
and service provided for in the rules of this court and disposing of the matter by way of urgency in terms of
rule 6(12)."

Where an order in an urgent application was granted in a person's absence, the person may, by notice, set
the matter down for reconsideration of the order.

Since not all relief sought is urgent, it is advisable to divide the notice of motion into two parts, namely an
urgent part, and the relief sought in the normal form. Only one affidavit need be attached for both parts.

Rule nisi

The relief in a notice of motion may be couched in the form of a rule nisi. Such a rule calls upon the
respondent or interested parties to show cause on a certain date why a certain order should not be made. It
is not an order in itself, and in reality it does no more than the notice of motion does, namely to call upon
the respondent to defend himself in court.

2. Application notwithstanding existence of a factual dispute

Notwithstanding that there may be a factual dispute foreseen or foreseeable, the situation may demand that
an applicant be afforded urgent relief in the face of a factual dispute. By way of example, an applicant
whose life is threatened may approach a court for an interim interdict restraining the respondent from
assaulting the applicant, notwithstanding that the applicant foresees that the respondent will in an
answering affidavit deny having made the threat.

The relief which is sought in such a case is, however, not final, but merely interim. It may be corrected or
reversed at a later stage and is invariably granted pendente lite. For this reason, the test is not as stringent
as where final relief is sought, and in fact it favours the applicant. There are other examples of applications
which do not claim final relief such as applications for rescission and provisional sentence actions. It will
therefore be observed that it is not in every case where a factual dispute arises that motion proceedings are
automatically excluded.

3. Notice and service

Although the general rule requires that notice of an application be afforded to the respondent, there may
also be exceptional circumstances where by giving notice the object of the application may be thwarted. By
way of example, an applicant may contend that the respondent is in wrongful possession of the applicant's
motor vehicle and has threatened to destroy the motor vehicle in the event of the applicant proceeding to
court for the recovery thereof. In such a case the applicant will contend that by affording the respondent
notice of the application, the respondent might very well destroy the vehicle without trace prior to the
applicant obtaining an order from the court for the return of the vehicle. The applicant will accordingly seek
an order on an interim basis directing that, pending the determination of the application (for the final relief
for the return of the vehicle), the vehicle be preserved (for example, by the sheriff or by being returned to
the applicant to be held in safe custody).

There are accordingly instances where the circumstances may justify the court in dispensing with service.

Form of notice of motion: Mynhardt v Mynhardt

Mynhardt v Mynhardt (T, 1986)

The use of the short form of the notice of motion (designed for ex parte applications) in circumstances
where the long form (as intended in Uniform Rule 6 (5) and as reflected in Form 2 (a)) is appropriate, will
not necessarily result in the notice of motion being a nullity which cannot be condoned.

Where the short form was inappropriate but service had nonetheless been effected upon the respondent,
he is entitled to apply for the setting aside thereof. Otherwise he can ignore it and reply thereto as if the
correct form had been used, in which event it appears that he will have abandoned his right to have the
notice set aside in terms of Rule 30.

QUESTIONS

1. Your attorney with reference to the decision in Mynhardt v Mynhardt 1986 (1) SA 456 (T) requires your
opinion whether his client should resist an application that was served on him for final relief, and if so,
on what basis. Urgency is not alleged. The following documentation is included In your brief:

(a) Notice of Motion (short form); and

(b) The founding affidavits in support thereof. (8) (2013)

2. Your attorney requires your opinion on whether his client should oppose an application that was served
on him. The following documentation is included in your brief:

(a) Notice of Motion (short form); and

(b) The founding affidavit from the deponent of the applicant;

You note that the Applicant applies for final relief and no circumstances of urgency is alleged. With
reference to Mynhardt v Mynhardt 1986 (1) SA456 (T) advise your attorney. (8) (2008)

1.2 Disputes of fact in application proceedings

The distinction between motion proceedings and actions:

 - Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T)
- Soffiantini v Mould 1956 (4) SA 150 (E);
- Metallurgical and Commercial Consultants v Metal Sales Co 1971 (2) SA 388 (W).

Case law

Room Hire v Jeppe Street Mansions (T, 1949)

Murray AJP sets out the general proposition in regard to the permissibility of motion proceedings as
opposed to trial actions.

Two types of proceedings may be mentioned, as falling outside the scope of this enquiry. (1) There are
certain types of proceeding (e.g., in connection with insolvency) in which by Statute motion proceedings are
specially authorised or directed. (2) There are on the other hand certain classes of case (for example,
matrimonial causes and illiquid claims for damages) in which motion proceedings are not permissible at all.

But between these two extremes there is an area in which according to recognised practice a choice
between motion proceedings and trial action is given according to whether there is or is not an absence of
a real dispute between the parties on any material question of fact. The deciding factor is the existence of a
dispute as to fact.

It has been emphasised repeatedly that (except in interlocutory matters) it is undesirable to attempt to settle
disputes of fact solely on probabilities disclosed in contradictory affidavits, in disregard of the additional
advantages of viva voce evidence, and the tendency of resorting to affidavits is deprecated. But where no
real dispute of fact exists, there is no reason for the incurrence of the delay and expense involved in a trial
action and motion proceedings are generally recognised as permissible.

The crucial question is therefore whether there is a real dispute of fact. In every case, the court must
examine the alleged dispute of fact and see whether in truth there is a real issue of fact which cannot be
satisfactorily determined without the aid of oral evidence. If a rigorous enquiry is not performed, the
respondent may be able to raise fictitious/trivial issues of fact and thus delay the hearing of the matter to
the prejudice of the applicant. A real dispute of fact may arise in 4 situations:

1. where the respondent denies all the material allegations made by the various deponents on the
applicant’s behalf, and produces or will produce positive evidence by deponents or witnesses to
the contrary (NB bare denials are not sufficient: the respondent’s affidavits must disclose that there
are material issues in which there is a bona fide dispute of fact capable of being decided only after
viva voce evidence has been heard);

2. where the respondent admits the allegations in the applicant’s founding or supporting affidavit, but
raises other facts (“confess and avoid”) which in turn are denied by the applicant;
 3. where the respondent concedes that he or she has no knowledge of the main facts alleged by the
applicant, but denies them and puts applicant to the proof thereof and furnishes evidence or
undertakes to furnish evidence to indicate that the applicant and the applicant’s deponents are
prejudiced and not credible or otherwise unreliable, and that certain facts upon which the applicant
and the deponents rely in order to prove the main facts are also unreliable;

4. where the respondent states that he can lead no evidence himself or by others to dispute the truth
of the applicant’s statements, which are peculiarly within the applicant’s knowledge, but he puts
the applicant to the proof thereof by oral evidence subject to cross-examination.

If no dispute of fact exists, the applicant is entitled as of right to have his relief given speedily and cheaply
on affidavits. If a dispute does exist, the court will have discretion to employ Rule 9? to hear viva voce
evidence. If the dispute cannot be settled in this manner, the Court may either dismiss the application
(where the applicant knew/should have known that a dispute of fact would arise) or send the parties to trial.

Soffiantini v Mould (E, 1956)

The Court noted that if by a mere denial in general terms a respondent can defeat or delay an applicant
who comes to court on motion, then motion proceedings are worthless, for a respondent can always defeat
or delay a petitioner by such a device. It is necessary to make a robust, common-sense approach to a
dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented
by the most simple and blatant stratagem.

The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do
so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute
raised in affidavits.

QUESTIONS

1. Explain the difference between the action and application procedure. (2) (2016)

2. You are requested to indicate in each of the following instances whether your client should proceed by
way of application or action procedure. Motivate your answer in each instance:

(a) Parties were married to each other for many years but they are in agreement that the marriage
relationship between them has broken down irretrievably to such an extent that no reasonable
prospect exists for the restoration of a normal marriage relationship. All assets have already been
divided between them. The parties hand you a settlement agreement in terms whereof all disputes
between them have been resolved. (2) (2016)

(b) Your client purchased immovable property from Mr Y. Mr Y died shortly after transfer of the
 property into the name of your client had been effected. The executor of Mr Y's estate informs you
that a portion of the property has not been transferred into the name of your client and the
conveyancer admits that it occurred as a result of a bona fide mistake by him, in that he neglected
to insert the correct description of the property in the Deed of Sale. Mr Y's widow is the sole heir to
the remainder of Mr Y's estate. You recommend that the Deed of Sale be rectified. (2) (2016)

3. You are requested to indicate in each of the following instances whether your client should proceed by
way of application or action procedure. Motivate your answer in each instance.

(a) Your client is G L Adams, a supplier of milk products to Moo-Moo (Ply) Ltd. The agreement
between G L Adams and Moo-Moo (Pty) Ltd stipulates that Moo-Moo (Pty) Ltd must effect
payment to G L Adams within 7 days after receipt of an invoice from G L Adams. Your instruction
is that Moo-Moo (Pty) Ltd is in arrears in an amount of R237,098.98. Your attorney of record has
already addressed a letter of demand to Moo-Moo (Pty) Ltd and Moo-Moo (Pty) Ltd is unable to
pay its debts In terms of Section 345 of the Companies Act, No 61 of 1973, although Moo-Moo
(Pty) Ltd disputes this. Your instruction is to seek winding-up of Moo-Moo (Pty) Ltd. (2)

(b) Mr and Mrs S are married to each other out of community of property with exclusion of the accrual
system. No children have been born of the marriage between the parties. Mr and Mrs S consult
you to assist them in obtaining a decree of divorce. All assets have already been divided between
them. The parties hand to you a settlement agreement in terms whereof all disputes between
them have been resolved. (2)

(c) Your client suffered damage to his motor vehicle when a motor vehicle driven by Mr X collided with
it . The collision was caused by the negligence of Mr X. Mr X admits that he was liable to your
client for the damage he sustained. Mr X, together with your client, go to ABS Panel Beaters to
obtain a quotation for repairs to your client's vehicle. According to the quotation, the repair
costs amount to R137,142.98. Mr X however says that the amount was excessive and refuses to
pay the amount. (2)

(d) Your client purchased an immovable property (a farm) from Mr Strauss. Mr Strauss died shortly
after transfer of the property into the name of your client had been effected. The executor of Mr
Strauss's estate has advised your client that a certain undivided portion of the property has not
been transferred into the name of your client and the conveyancer, as a result of a bona fide
mistake, has neglected to insert the correct description of the property in the Deed of Sale. Mr
Strauss's widow is the sole heir to the remainder of Mr Strauss's estate. She agrees that the
conveyancer has made a bona fide error. You recommend that the Deed of Sale be rectified. (2)
(2013)

4. You are requested to indicate in each of the following instances whether your client should proceed
by way of application or action procedure. Motivate your answer in each instance.
 (a) Your client is G L Adams, a supplier of milk products to Moo-Moo (Pty) Ltd. The agreement
between G L Adams and Moo-Moo (Pty) Ltd stipulates that Moo-Moo (Pty) Ltd must effect
payment to G L Adams within 7 days after receipt of an invoice from G L Adams. Your instruction
is that Moo-Moo (Ply) Ltd is in arrears in an amount of R237,098.98. Your attorney of record has
already addressed a letter of demand to Moo-Moo (Pty) Ltd and it appears that Moo-Moo (Pty)
Ltd is unable to pay its debts in terms of Section 345 of the Companies Act, although Moo-Moo
(Pty) Ltd disputes this. Your instruction is to seek winding-up of Moo-Moo (Pty) Ltd. (2)

(b) Mr and Mrs S are married to each other out of community of property with exclusion of the
accrual system. No children have been born of the marriage between the parties. Mr and Mrs S
consult you to assist them in obtaining a decree of divorce. Both parties are in agreement that the
marriage relationship between them has broken down irretrievably to such an extent that no
reasonable prospect exists for the restoration of a normal marriage relationship. All assets have
already been divided between them. The parties hand to you a settlement agreement in terms
whereof all disputes between them have been resolved. (2)

(c) Your client suffered damages to his motor vehicle when Mr X collided with his vehicle, from the
rear. Mr X, together with your client, went to ABS Panel Beaters to obtain a quotation for repairs
to your client's vehicle as Mr X had accepted liability for causing the accident. According to the
quotation, the repair costs amount to R137,142.98. (2)

(d) Your client urgently consults you to obtain an interdict against his neighbour. The neighbour, that
same morning, threatened to shoot your client and to kill him later that day. It transpires from the
consultation that the neighbour suspects that your client is conducting an adulterous relationship
with his wife. Your client informs you that the neighbour has no proof of the relationship and your
client foresees that the neighbour will, in any even, deny having made such a threat. (2)

(e) Your client purchased immovable property (a farm) from Mr Strauss. Mr Strauss died shortly after
transfer of the property into the name of your client had been effected. The executor of Mr
Strauss's estate informs you that a certain undivided portion of the property has not been
transferred into the name of your client and it appears that the conveyancer, as a result of a bona
fide mistake, neglected to insert the correct description of the property in the Deed of Sale. Mr
Strauss's widow is the sole heir to the remainder of Mr Strauss's estate. You recommend that the
Deed of Sale be rectified. (2) (2008)

Referral to oral evidence

- Metallurgical and Commercial Consultants v Metal Sales Co supra

- Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) at 981D-E
 - Administrator, Transvaal and Others v Theletsane and Others 1991 (2) SA 192 (A) at 200B-C
- Bocimar NV v Kotor Overseas Shipping Ltd 1994 (2) SA 563 (A) at 587B-F

As a general rule an application for the hearing of oral evidence must be made in limine and not
once it becomes clear that the applicant is failing to convince the court on the papers (see Law
Society, Northern Provinces v Mogami (2010, SCA).

The circumstances must be exceptional before a court will permit an applicant to apply in the
alternative for the matter to be referred to evidence should the main argument fail (see De Reszke
(2006, (C)).

Where the respondent in his or her answering affidavit states that he or she can lead no evidence to
dispute the truth of the applicant's statements and puts the applicant to the proof thereof, the cross-
examination of witnesses may properly be ordered in terms of Rule 6(5)(g) (see Room Hire 1949, (T)).

Where a respondent made averments which, if proved, would constitute a defence to the applicant's claim,
but is unable to produce an affidavit containing allegations which prima facie establish that defence, the
respondent is entitled to invoke Rule 6(5)(g) (see D&F Wevell Trust (2008, SCA)).

Case law

Kalil v Decotex (AD, 1988)

The Court noted that it has been held in a number of cases that an application to refer a matter to
evidence should be made at the outset and not after argument on the merits. However, it was held
that this is not an inflexible rule. One can conceive of cases on the other hand, exceptional perhaps when
to ask the Court to decide the issues without oral evidence if it can, and to permit such if it cannot, may be
more convenient to it as well as the litigants. Much depends on the particular enquiry and its scope.

Administrator, Transvaal v Theletsane (AD, 1991)

The Court noted that in Kalil v Decotex, Corbett JA, after referring to a number of cases in which it was
held that an application to refer a matter to evidence should be made at the outset and not after argument
on the merits, observed that that was no doubt a salutary general rule, but that he did not regard it as an
inflexible one. The recent tendency of the Courts seems to be to allow counsel for an applicant, as a
general rule, to present his case on the footing that the applicant is entitled to relief on the papers, but to
apply in the alternative for the matter to be referred to evidence if the main argument should fail. The Court
noted that such an approach has much to commend itself.

Bocimar NV v Kotor Overseas Shipping Ltd (AD, 1994)

In the Court a quo Bocimar's counsel simply applied informally and non-specifically for the hearing of oral
evidence, at the end of his argument on the merits, in the event of the Court holding that Bocimar had failed
on the papers to establish a genuine and reasonable need for security. No indication was apparently given
of who should be required to give evidence or submit themselves to cross-examination nor was any
indication given of what evidence new witnesses would be able to give.

In Kalil v Decotex reference was made to 'the salutary general rule' that an application to refer a matter to
evidence should be made at the outset and not after argument on the merits. It was pointed out that the
rule was not an inflexible one and that in exceptional cases the Court may depart from it. It is, however, a
factor to be considered. In Kalil the Court said, with reference to the discretion to allow oral evidence in the
case of an application for a provisional order of winding-up (at 979H-I):

“Naturally, in exercising this discretion the Court should be guided to a large extent by the prospects of
viva voce evidence tipping the balance in favour of the applicant. Thus, if on the affidavits the
probabilities are evenly balanced, the Court would be more inclined to allow the hearing of oral evidence
than if the balance were against the applicant. And the more the scales are depressed against the
applicant the less likely the Court would be to exercise the discretion in his favour. Indeed, I think that
only in rare cases would the Court order the hearing of oral evidence where the preponderance of
probabilities on the affidavits favoured the respondent.”

QUESTION

1. What possible orders may a Court grant where an application cannot properly be decided on affidavit?
Specify under what circumstances each order will be justified. (9) (2017)

Approach to disputes of fact in applications for final relief

If the material facts are in dispute and there is no request for the hearing of oral evidence, a final order will
only be granted on notice of motion if the facts as stated by the respondent together with the facts alleged
by the applicant that are admitted by the respondent, justify such an order.

If in such a case the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may
proceed on the basis of the correctness thereof and include this fact among those upon which it determines
whether the applicant is entitled to the final relief sought.

The subrule is of wide import and empowers the court, where an application cannot properly be decided on
affidavit, to make such order as it deems fit with a view to ensuring a just and expeditious decision. As a
general rule an application for the hearing of oral evidence must be made in limine and not once it becomes
clear that the applicant is failing to convince the court on the papers or on appeal. The circumstances must
be exceptional before a court will permit an applicant to apply in the alternative for the matter to be referred
to evidence should the main argument fail. It is undesirable that a court mero motu orders a referral to oral
evidence.

The ambit of the subrule is not restricted to cases where oral evidence is called for to resolve disputes of
fact. Thus, the subrule also applies in the case of unopposed motions where ex hypothesi there can be no
dispute of fact. The court is, for example, entitled in an unopposed application for the variation of a custody
order to invoke the rule and call for viva voce evidence. A party will, however, not be allowed to lead oral
evidence to make out a case which is not already made out in his affidavits.

If a party to an application requires the evidence of a person who is unwilling or unavailable to make an
affidavit, the court may be approached under this subrule for leave to subpoena such a person for the
purpose of giving viva voce evidence. The court will, however, refuse such an application where evidence
is requested to be given in circumstances which amounted to a fishing expedition.

A party who is obliged by law to bring proceedings by way of notice of motion and who seeks to discharge
an onus of proof which rests upon him by asking for an opportunity to adduce oral evidence or to cross-
examine deponents to answering affidavits, should not be lightly deprived of that opportunity.

If the respondent in his answering affidavit states that he can lead no evidence to dispute the truth of the
applicant's statements and puts the applicant to the proof thereof, the cross-examination of witnesses may
properly be ordered in terms of the subrule.

If a respondent made averments which, if proved, would constitute a defence to the applicant's claim, but is
unable to produce an affidavit containing allegations which prima facie establish that defence, the
respondent is entitled to invoke this subrule. It would, however, be essential in such a situation for the
deponent to the respondent's answering affidavit to:

(a) set out the import of the evidence which is proposed to be elicited (by way of cross-examination of
the applicant's deponents or other witnesses);

(b) explain why the evidence is not available;

(c) most importantly, satisfy the court that there are reasonable grounds for believing that the defence
would be established.

The Supreme Court of Appeal has cautioned that a court should be astute to prevent an abuse of its
process in such a situation by an unscrupulous litigant intent only on delay or a litigant intent on a fishing
expedition to ascertain whether there might be a defence without there being any credible reason to believe
that there is one.

In general terms it can be said that oral evidence in terms of the subrule should be allowed if there are
reasonable grounds for doubting the correctness of the allegations made by the applicant. In reaching a
conclusion in this regard, facts peculiarly within the knowledge of the applicant which cannot for that reason
be directly contradicted or refuted by the other party are to be carefully scrutinized.

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd (A, 1984)

“In such a case the general rule was stated [in] Stellenbosch Farmers' Winery Ltd…, to be:

"... where there is a dispute as to the facts a final interdict should only be granted in notice of motion
proceedings if the facts as stated by the respondents together with the admitted facts in the
applicant's affidavits justify such an order... Where it is clear that facts, though not formally admitted,
cannot be denied, they must be regarded as admitted."

It seems to me, however, that this formulation of the general rule, and particularly the second sentence
thereof, requires some clarification and, perhaps, qualification. It is correct that, where in proceedings on
notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or
some other form of relief, may be granted if those facts averred in the applicant's affidavits which have
been admitted by the respondent, together with the facts alleged by the respondent, justify such an
order.

The power of the Court to give such final relief on the papers before it is, however, not confined to such
a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be
such as to raise a real, genuine or bona fide dispute of fact …. If in such a case the respondent has
not availed himself of his right to apply for the deponents concerned to be called for cross-examination
under Rule 6(5)(g) of the Uniform Rules of Court … and the Court is satisfied as to the inherent
credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and
include this fact among those upon which it determines whether the applicant is entitled to the final relief
which he seeks …. Moreover, there may be exceptions to this general rule, as, for example, where the
allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified
in rejecting them merely on the papers”.

In summary, the rule in Plascon-Evans may be stated in the following terms:

1. Final relief may be granted in proceedings for a final interdict on application where those facts
averred in the applicant's affidavits which have been admitted by the respondent, together with the
facts alleged by the respondent, justify such an order.

2. In addition in assessing the applicant’s entitlement to the final relief, the court must consider:

(a) a denial by respondent of a fact alleged by the applicant does not raise a real, genuine
or bona fide dispute of fact. If in such a case the respondent has not sought to cross-
examine the deponents, and the Court is satisfied as to the inherent credibility of the
applicant's factual averment, then the court may accept that averment; and

(b) where the allegations or denials of the respondent are so far-fetched or clearly untenable
that the Court is justified in rejecting them merely on the papers.

QUESTIONS

1. What is generally the Court’s approach to disputes of fact in applications for final relief? (9) (2017)

2. What is the test laid down in the Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3)
 SA 623 (A) and [1984] 2 All SA 366 (A) case? (2) (2016)

3. A dispute of fact has arisen on the affidavits in an opposed application for a provisional winding-up
order. The only way to resolve this dispute would be to refer the matter for the hearing of oral evidence
and cross-examination of witnesses. (5) (2014)

(a) Which of the parties may apply for an order referring the matter for the hearing of oral evidence?

(b) At what stage of the proceedings should such an application be made?

(c) What test will be applied by the Court to decide whether an application for an order referring the
matter for the hearing of oral evidence should be granted?

4. Set out the approach which a court will adopt to disputes of fact in applications for final relief? (13)
(2010)

5. In an opposed application a dispute of fact has arisen. It relates to the question whether the
respondent made payment of the September 2010 rental of the premises which he had hired from the
applicant. There are only two affidavits filed of record in the proceedings, namely the founding affidavit
deposed to by the applicant and the answering affidavit deposed to by the respondent. The presiding
judge requests you and your opponent to furnish him with a draft order referring the matter to oral
evidence. Provide the requested draft. (17) (2010)

1.3 Ex parte applications

See the section under the corresponding heading in ethics:

Schlesinger v Schlesinger 1979 (4) SA 342 (W)
Mahomed NO & others v NDPP 2002 (4) SA 366 (W) at 373B-374B

Schlesinger v Schlesinger (W, 1979)

There is nothing inherently wrong or contrary to public policy in an interested party opposing an ex parte
application which has come to his notice fortuitously or by informal notice; Rule 6 (4)(b) provides for this
very contingency. On principle any person who shows a direct and substantial interest in proceedings, and
whose affidavit indicates that his opposition might contribute something to a just decision of the case,
should not be deprived of an opportunity of being heard.

The Court stated the following in regard to ex parte applications:

1. In ex parte applications all material facts must be disclosed which might influence a Court in
coming to a decision;
 2. the non-disclosure or suppression of facts need not be wilful or mala fide to incur the penalty of
rescission; and

3. the Court, apprised of the true facts, has a discretion to set aside the order obtained on material
facts not disclosed or to preserve it. Unless there are very cogent practical reasons why an order
should not be rescinded, the Court will always frown on an order obtained ex parte on incomplete
information and will set it aside even if relief could be obtained on a subsequent application by the
same applicant. A litigant who approaches a Court ex parte is not entitled to omit any reference to
a fact or attitude of his opponent which is relevant to the point in issue merely because he is not
prepared to accept the correctness thereof.

It is a court's duty not to condone serious and deliberate breaches of the principle of full disclosure of
material facts in ex parte applications.

Mohamed v NDPP (W, 2002)

It is a cornerstone of our jurisprudence, both at common law in terms of the maxim audi alteram partem and
in terms of section 34 of the Constitution, that in general a party should be heard before an order is given
which may adversely affect that party's rights. Our Courts strictly adhere to the fundamental precept audi
alteram parte, and entertain ex parte applications that affect the interests of others only in limited
circumstances set out in Gouws v Scholtz (see below).

Where an order is made in such circumstances the right of an interested person to be heard is recognised
by granting a rule nisi operating as a temporary interdict or by expressly reserving such right in the Court
order or by bringing the fact that such a right exists – either under the Rules of Court or the common law –
to such a person's attention in the order granted. Our Courts' adherence to the fundamental precept audi
alteram partem is the most likely explanation for the common-law practice that any person against whom
an order of attachment or arrest has been granted ex parte is entitled to approach the Court to have it set
aside.

The limited circumstances set out in Gouws v Scholtz are:

(i) where another person's rights are not affected;

(ii) where the relief sought is a preliminary step in the proceedings; and

(iii) and where other person's rights will be affected but, because of the urgency of the application, it is
impossible to give notice or the circumstances render it undesirable to give notice.

1.4 Urgent applications

Rule 6(12)
Luna Meubel Vervaardigers (Edms) Bpk v Makin 1977 (4) SA 135 (W)
IL & B Marcow Caterers (Pty) Ltd v Greatermans SA; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd 1981 (4)
SA 108 (C) at 113E-114B
Gallagher v Norman’s Transport Lines 1992 (3) SA 500 (W) at 502D – 504C
Cape Killarney Property Investments (Pty) Ltd v Mahamba 2000 (2) SA 67 (C) paras 6 and 20

When an application is urgent, a court may dispense of the ordinary formalities and timeframes provided for
the service of affidavits in terms of the Uniform Rules of Court and hear the matter on an expedited basis.
The matter will be heard at a time and place that the court deems fit (Rule 6(12)(a)). An applicant who
brings an urgent application must, however, comply with the Rules as far as is possible and must apply for
an order condoning non-compliance with the Rules (Republikeinse Publikasies 1972, (A)).

Matters may be of varying degrees of urgency (Luna Meubel, 1977 (W)). In cases of extreme urgency, it
may be justifiable for a matter to proceed at once, whatever the time or circumstances and regardless of
whether it is outside of normal court hours. This may be the case, for example, where a person's privacy
and dignity is violated in such manner that he or she cannot be expected to endure continued violation
(Prinsloo v RCP Media, 2003 (T)). In other cases, and more usually, the degree of urgency only dictates
that the applicant be allowed to abridge the time for the service of affidavits in the matter, with the matter
being heard more quickly than in the ordinary course but during normal court hours (id).

The particular circumstances of a case will dictate the level of urgency. And, importantly, the degree of the
abridgment of the timeframes and deviation from the normal rules of court must be commensurate with the
level of urgency (Luna Meubel, 1977 (W)).

A party bringing an urgent application is required to clearly set out in its founding affidavit:

 first: the grounds for urgency. The applicant is required to "set forth explicitly" the facts and
circumstances that it claims render the matter urgent; and

 second: the reasons why the applicant cannot be afforded substantial redress if a hearing is only
held in the normal course (Rule 6(12)(b); Rock Trading 2011, (GSJ)).

Our courts have accepted that commercial interests may, no less than other interests (such as life or
liberty), justify a claim of urgency and a departure from normal court processes (Twentieth Century Fox,
1982 (W)).

Our courts frequently refuse to hear applications on an urgent basis if the applicant has unduly delayed
instituting proceedings (Schweizer Reneke, 1971 (T)). Put differently, and in terms used by the courts, an
applicant cannot "create its own urgency" by delaying its application. In these circumstances, courts
reason that they are justified in refusing to hear the application urgently as the applicant has created the
predicament it finds itself in or, at worst, has abused court processes.

Case law
Luna Meubels Vervaardigers v Makin (W, 1977)

In his opening paragraph, Coetzee J laments that Rule 6(12) is ‘undoubtedly the most abused Rule in this
Division’. Far too many advocates treat the phrase ‘which shall as far as practicable be in terms of these
rules’ simply pro non scripto. This is quite intolerable and is calculated to reduce the good order which is
necessary for the dignified functioning of the Courts to shambles.

Coetzee J sets out the important aspects of ‘urgency’. Urgency involves mainly the abridgment of times
prescribed by the Rules, and secondly the departure from the established filing and sitting times of the
Court. He sets out the urgency ‘triage’ as outlined below. He cautions that practitioners should carefully
analyse the facts of each case to determine whether a greater or lesser degree of relaxation of the Rules
and of the ordinary practice of the Court is required. The degree of relaxation should not be greater than
the necessity of the case. Mere lip service to the requirements of Rule 6(12) will not do. An applicant must
make out a case in the founding affidavit to justify the particular extent of the departure from the norm.

The Court set out the following ‘urgency triage’ which ought to be followed:

1. When the matter is too urgent for the respondent to be allowed the usual 10 court days from date
or service of notice of application to date of hearing (in terms of Rule 6(5)(iii)), the 10 day period
may be ignored, but the application must still be set down for hearing on a motion day, and papers
must still be filed with the registrar sufficiently early for it to come on to the following week’s roll
(i.e. before noon but one day before day of enrolment).

2. Only if the matter is so urgent that the applicant cannot set the matter down for hearing on the
court’s weekly motion day and give the registrar the prescribed period of notice may the applicant
set the matter down for hearing on the next motion day while giving the registrar shorter notice.

3. Only if the urgency is such that the applicant dare not wait even for the next motion day may the
matter be set down for hearing on the next court day at the normal time of 10am or the same day if
court has not yet adjourned.

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

The applicant must make out a case for urgency in founding affidavit. Practitioners should carefully analyse
the facts to ensure urgency and must clearly describe the circumstances which render the matter urgent.
The reasons why the applicant would not be afforded substantial redress at a hearing in due course must
be clearly and sufficiently set out in the papers.

IL & B Marcow Caterers v Greatermans SA (C, 1981)

The applicants sought permission for their applications to be heard as matters of urgency, and to review the
decision of second respondent, the Minister of Industries and Commerce and Consumer Affairs, to grant a
grocers' wine licence to first respondents. Applicants afforded respondents not the 14 and 24 days
respectively, required by Rule 53 for entering appearance and filing answering affidavits, but seven and 12
days respectively. As a consequence applicants were required in terms of Rules 27 and 6(12) to show
good cause why the times should be abridged and why applicants could not be afforded substantial redress
at a hearing in due course.

The three major considerations which the Court, in exercising its judicial discretion to abridge the times
prescribed and to accelerate the hearing, would normally consider sufficient and satisfactory grounds being
shown were, namely:

(1) the prejudice that applicants might suffer by having to wait for a hearing in the ordinary course;

(2) the prejudice that other litigants might suffer if the applications were given preference; and

(3) the prejudice that respondents might suffer by the abridgment of the prescribed times and an early
hearing.

The main consideration advanced by applicants was the possibility that they might suffer losses of profits.
The losses, if any, sounded in money. It was held that the fact that a litigant with a claim sounding in money
might suffer serious financial consequences by having to wait his turn for the hearing of his claim did not
entitle him to preferential treatment. It was held that the loss that the applicants might suffer by not being
afforded an immediate hearing was not the kind of loss that justified the disruption of the roll and the
resultant prejudice to other members of the litigating public.

1.5 General provisions

Service generally Rule 4

Applications for substituted service Rule 4(2)
Proceedings against firms, etc. Rule 14
Change of parties Rule 15
Failure to deliver pleadings - barring Rule 26
Extension of time periods Rule 27
Amendments Rule 28
Irregular proceedings Rule 30
Non-compliance with Rules Rule 30A
Withdrawal of proceedings Rule 41
Security for costs Rule 47
Authentication of documents Rule 63
Claims for interest Sections 1, 2, 2A and 4 of the Prescribed Rate of Interest Act, 55 of 1975

Service
4 Service

(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 in one or other of the following manners:

(i) By delivering a copy thereof to the said person personally: Provided that where such
person is a minor or a person under legal disability, service shall be effected upon the
guardian, tutor, curator or the like of such minor or person under disability;

(ii) by leaving a copy thereof at the place of residence or business of the said person,
guardian, tutor, curator or the like with the person apparently in charge of the premises
at the time of delivery, being a person apparently not less than sixteen years of age.
For the purposes of this paragraph when a building, other than an hotel, boarding-
house, hostel or similar residential building, is occupied by more than one person or
family, ‘residence’ or ‘place of business’ means that portion of the building occupied by
the person upon whom service is to be effected;

(iii) by delivering a copy thereof at the place of employment of the said person, guardian,
tutor, curator or the like to some person apparently not less than sixteen years of age
and apparently in authority over him;

(iv) if the person so to be served has chosen a domicilium citandi, by delivering or leaving
a copy thereof at the domicilium so chosen;

(v) in the case of a corporation or company, by delivering a copy to a responsible

employee thereof at its registered office or its principal place of business within the
court’s jurisdiction, or if there be no such employee willing to accept service, by affixing
a copy to the main door of such office or place of business, or in any manner provided
by law;

(vi) by delivering a copy thereof to any agent who is duly authorized in writing to accept
service on behalf of the person upon whom service is to be effected;

(vii) where any partnership, firm or voluntary association is to be served, service shall be
effected in the manner referred to in paragraph (ii) at the place of business of such
partnership, firm or voluntary association and if such partnership, firm or voluntary
association has no place of business, service shall be effected on a partner, the
proprietor or the chairman or secretary of the committee or other managing body of
such association, as the case may be, in one of the manners set forth in this rule;

(viii) where a local authority or statutory body is to be served, service shall be effected by
delivering a copy to the town clerk or assistant town clerk or mayor of such local
authority or to the secretary or similar officer or member of the board or committee of
such body, or in any manner provided by law; or

(ix) if two or more persons are sued in their joint capacity as trustees, liquidators,
executors, administrators, curators or guardians, or in any other joint representative
capacity, service shall be effected upon each of them in any manner set forth in this
rule.

(aA) Where the person to be served with any document initiating application proceedings is
already represented by an attorney of record, such document may be served upon such
attorney by the party initiating such proceedings.

(b) Service shall be effected as near as possible between the hours of 7:00 and 19:00.

(c) No service of any civil summons, order or notice and no proceeding or act required in any
 civil action, except the issue or execution of a warrant of arrest, shall be validly effected on a
Sunday unless the court or a judge otherwise directs.

(d) It shall be the duty of the sheriff or other person serving the process or documents to explain
the nature and contents thereof to the person upon whom service is being effected and to
state in his return or affidavit or on the signed receipt that he has done so.

(2) If it is not possible to effect service in any manner aforesaid, the court may, upon the application of
the person wishing to cause service to be effected, give directions in regard thereto. Where such
directions are sought in regard to service upon a person known or believed to be within the
Republic, but whose whereabouts therein cannot be ascertained, the provisions of subrule (2) of
rule 5 shall, mutatis mutandis, apply.

(3) Service of any process of the court or of any document in a foreign country shall be effected—

(a) by any person who is, according to a certificate of—

(i) the head of any South African diplomatic or consular mission, any person in the
administrative or professional division of the public service serving at a South African
diplomatic or consular mission or trade office abroad;

(ii) any foreign diplomatic or consular officer attending to the service of process or
documents on behalf of the Republic in such country;

(iii) any diplomatic or consular officer of such country serving in the Republic; or

(iv) any official signing as or on behalf of the head of the department dealing with the
administration of justice in that country, authorized under the law of such country to
serve such process or document; or

(b) by any person referred to in sub-paragraph (i) or (ii) of paragraph (a), if the law of such
country permits him to serve such process or document or if there is no law in such country
prohibiting such service and the authorities of that country have not interposed any objection
thereto.

(4) Service of any process of the court or of any document in Australia, Botswana, Finland, France,
Hong Kong, Lesotho, Malawi, New Zealand, Spain, Swaziland, the United Kingdom of Great
Britain and Northern Ireland and Zimbabwe may, notwithstanding the provisions of subrule (3),
also be effected by an attorney, solicitor, notary public or other legal practitioner in the country
concerned who is under the law of that country authorized to serve process of court or documents
and in the state concerned who is under the law of that state authorized to serve process of court
or documents.

(5) (a) Any process of court or document to be served in a foreign country shall be accompanied by
a sworn translation thereof into an official language of that country or part of that country in
which the process or document is to be served, together with a certified copy of the process
or document and such translation.

(b) Any process of court or document to be served as provided in subrule (3), shall be delivered
to the registrar together with revenue stamps to the value of R150 fixed thereto: Provided
that no revenue stamps shall be required where service is to be effected on behalf of the
Government of the Republic.

(c) Any process of court or document delivered to the registrar in terms of paragraph (b) shall,
after defacement of the revenue stamps affixed thereto, be transmitted by him together with
the translation referred to in paragraph (a), to the Director-General of Foreign Affairs or to a
destination indicated by the Director-General of Foreign Affairs, for service in the foreign
country concerned. The registrar shall satisfy himself that the process of court or document
 allows a sufficient period for service to be effected in good time.

(6) Service shall be proved in one of the following manners:

(a) Where service has been effected by the sheriff, by the return of service of such sheriff;

(b) where service has not been effected by the sheriff, nor in terms of subrule (3) or (4), by an
affidavit of the person who effected service, or in the case of service on an attorney or a
member of his staff, the Government of the Republic, the Administration of any Province or
on any Minister, Administrator, or any other officer of such Government or Administration, in
his capacity as such, by the production of a signed receipt therefor.

(6A) (a) The document which serves as proof of service shall, together with the served process of
court or document, without delay be furnished to the person at whose request service was
effected.

(b) The said person shall file each document on behalf of the person who effected service with
the registrar when—

(i) he sets the matter in question down for any purpose;

(ii) it comes to his knowledge in any manner that the matter is being defended;

(iii) the registrar requests filing;

(iv) his mandate to act on behalf of a party, if he is a legal practitioner, is terminated in any
manner.

(7) Service of any process of court or document in a foreign country shall be proved—

(a) by a certificate of the person effecting service in terms of paragraph (a) of subrule (3) or
subrule (4) in which he identifies himself, states that he is authorized under the law of that
country to serve process of court or documents therein and that the process of court or
document in question has been served as required by the law of that country and sets forth
the manner and the date of such service: Provided that the certificate of a person referred to
in subrule (4) shall be duly authenticated; or

(b) by a certificate of the person effecting service in terms of paragraph (b) of subrule (3) in
which he states that the process of court or document in question has been served by him,
setting forth the manner and date of such service and affirming that the law of the country
concerned permits him to serve process of court or documents or that there is no law in such
country prohibiting such service and that the authorities of that country have not interposed
any objection thereto.

(8) Whenever any process has been served within the Republic by a sheriff outside the jurisdiction of
the court from which it was issued, the signature of such sheriff upon the return of service shall not
require authentication by the sheriff.

(9) In proceedings in which the State or an organ of state, a Minister, a Deputy Minister, a Premier or
a Member of an Executive Council in such person’s official capacity is the defendant or
respondent, the summons or notice instituting such proceedings shall be served in accordance
with the provisions of any law regulating proceedings against and service of documents upon the
State or organ of state, a Minister, a Deputy Minister, a Premier or a Member of an Executive
Council.

(10) Whenever the court is not satisfied as to the effectiveness of the service, it may order such further
steps to be taken as to it seems meet.
 (11) Whenever a request for the service on a person in the Republic of any civil process or citation is
received from a State, territory or court outside the Republic and is transmitted to the registrar of a
provincial or local division in terms of subsection (2) of section thirty-three of the Act, the registrar
shall transmit to the sheriff or a sheriff or any person appointed by a judge of the division
concerned for service of such process or citation —

(a) two copies of the process or citation to be served; and

(b) two copies of a translation in English or Afrikaans of such process or citation if the original is
in any other language.

(12) Service shall be effected by delivering to the person to be served one copy of the process or
citation to be served and one copy of the translation (if any) thereof in accordance with the
provisions of this rule.

(13) After service has been effected the sheriff or the sheriff or the person appointed for the service of
such process or citation shall return to the registrar of the division concerned one copy of the
process or citation together with —

(a) proof of service, which shall be by affidavit made before a magistrate, justice of the peace or
commissioner of oaths by the person by whom service has been effected and verified, in the
case of service by the sheriff or a sheriff, by the certificate and seal of office of such sheriff
or, in the case of service by a person appointed by a judge of the division concerned, by the
certificate and seal of office of the registrar of the division concerned; and

(b) particulars of charges for the cost of effecting such service.

(14) The particulars of charges for the cost of effecting service under subrule (11) shall be submitted to
the taxing officer of the division concerned, who shall certify the correctness of such charges or
other amount payable for the cost of effecting service.

(15) The registrar concerned shall, after effect has been given to any request for service of civil
process or citation, return to the Director-General of Justice —

(a) the request for service referred to in subrule (11);

(b) the proof of service together with a certificate in accordance with Form ‘J’ of the Second
Schedule duly sealed with the seal of the division concerned for use out of the jurisdiction;
and

(c) the particulars of charges for the cost of effecting service and the certificate, or copy thereof,
certifying the correctness of such charges.

Commentary

Subrule (1): 'Service.' When proceedings have begun without due notice to the defendant, the subsequent
proceedings are null and void, any judgment is of no force and effect and may be disregarded without the
necessity of a formal order setting it aside. Mere knowledge of issue of summons does not constitute
service and cannot relieve a plaintiff of his obligations to follow the prescribed rules.

'Any document initiating application proceedings.' In current practice the only documents which initiate
application proceedings are notices of motion issued under the provisions of Rule 6 and applications for
leave to appeal by way of petition in terms of the Superior Courts Act.
Subrule (1)(a)(i): 'By delivering…' In this subrule the word 'deliver' bears its ordinary meaning, which in the
present context is simply 'to hand over'; it does not bear the special meaning attributed to it in rule 1.

'To the said person personally.' The rules display a clear preference for personal service and, where
reasonably possible, personal service should be effected. Subject to any order of court in a particular case,
personal service is required in divorce proceedings in the Western Cape High Court and the KwaZulu-Natal
High Courts.

Subrule (1)(a)(ii): 'At the place of residence…' It is submitted that service must be effected at the particular
residence of the defendant (i.e. the particular sectional title unit, room, flat etc). The residence
contemplated by the subrule is the present residence of the defendant.

'…or business.' The 'place of business' referred to in this paragraph of the subrule is not identical with the
'place of employment' referred to in para (a)(iii) of this subrule. The former appears to contemplate the
defendant's own business and there the document served may be left with the person apparently in charge
of the premises; the latter contemplates a business where the defendant is employed and there the
document must be left with a person apparently in authority over the defendant. It is not clear how service
should be effected where the defendant is employed by what is virtually his own company; this may
perhaps be regarded as his own business. Compliance with any of the stated two requirements may
suffice.

'Place of employment' means, it is submitted, the place where the defendant is employed at the time of the
service of the summons, even though he is absent on leave at the time when service is effected. Service
under this paragraph cannot be effected upon a defendant by delivering a copy of the summons to the
secretary of the company by whom he is employed irrespective of the address at which he is employed.

Subrule (1)(a)(iv): 'Has chosen a domicilium citandi.' A domicilium citandi is a place chosen by a person
where process in judicial proceedings may be served upon him or her. The courts adopt the view that
normally where a person chooses a domicilium citandi et executandi, the domicilium so chosen must be
taken to be his place of abode within the meaning of the rules of court which deals with the service of a
summons. Where a domicilium citandi has been chosen, service there will be good even though the
defendant is known not to be living there (Amcoal).

Subrule (1)(a)(v): 'To a responsible employee thereof.' Where service had been effected upon the person
apparently in charge of the premises where the registered office of the company was located at the time of
delivery although the return of service did not state that such person was a responsible employee of the
company, such service was held to be in substantial compliance with the requirements of this sub-rule.

'At its registered office or its principal place of business within the court's jurisdiction.' The words 'principal
place of business' relate to the main or principal place of business of the company within the area of
jurisdiction of the court (from which the summons was issued). Service at the registered office, or at the
principal place of business within the jurisdiction, is therefore good service: the two places are offered as
alternatives for service. The effect of this paragraph has been stated to be as follows:

(a) a summons may always be served upon a company at its registered office, wherever that may be
situated;

(b) if a company has no place of business within the court's jurisdiction, the summons would have to
be served at its registered office;

(c) if a company has only one place of business within the court's jurisdiction, that would be regarded
as its principal place of business within that area, and the summons could accordingly be served
there;

(d) if a company has more than one place of business within the court's jurisdiction, the summons
would have to be served at the company's chief or principal place of business within that area,
unless, of course, it is served at its registered office (wherever that may be situated).

Subrule (1)(a)(vii): 'Any partnership, firm or voluntary association.' This paragraph deals only with service
upon a partnership, firm or voluntary association. The partnership must be an existing partnership; the rule
does not apply after the dissolution of a partnership.

Subrule (1)(aA): 'Is already represented by an attorney of record.' This paragraph of the subrule makes it
clear that service by the sheriff is not necessary in interlocutory applications where there is already an
attorney of record for the respondent.

Subrule (2): 'Not possible to effect service in any manner aforesaid.' This subrule is aimed at substituted
service. Substituted service is ordered when the defendant is believed to be in the Republic but one of the
normal forms of service set out in the rules cannot be effected. The court then gives directions authorizing
some form of 'substituted service'.

Substituted service differs from edictal citation which is ordered when the defendant is or is believed to be
out of the Republic, or the exact whereabouts of the defendant are unknown. Substituted service is
therefore only permitted where the respondent is believed to be in SA. Where he is beyond the borders of
SA, and his whereabouts are unknown, the application brought is a combination of substituted service and
edictal citation.

'Upon the application.' In an application for leave to effect substituted service the applicant must set out:

(i) the full description of the applicant (establishing locus standi);

(ii) the full description of the respondent (establishing locus standi);

(iii) jurisdiction in the main action;

 (iv) grounds upon which the claim is based (a prima facie case);

(v) nature and extent of relief claimed;

(vi) the reasons why service cannot be effected in any of the ways provided for in the rules;

(vii) the last known whereabouts of the persons to be served,

(viii) what steps he has taken to ascertain the defendant's whereabouts and that these have proved
unsuccessful;

(ix) sufficient relevant facts to indicate the best manner in which service may be effected and that there
is some reasonable likelihood that the form of service suggested will come to the knowledge of the
defendant;

(x) any information that may assist the court in determining whether leave should be granted and, if
so, the terms thereof; and

(xi) the manner of service that the court is asked to authorise.

'Give directions in regard thereto.' The court may order any manner of service as is likely to bring the
proceedings to the notice of the party to be served. This may be in the form of publication in one or more
newspapers, or by registered letter to the defendant at his or her last known address, or care of his or her
relatives or legal advisers, or by affixing the process ad valvas curiae, etc. A court may also authorise
service by way of electronic mail (e-mail) or other electronic means.

Subrule (6): 'By the return of service of such sheriff.' A return is regarded as prima facie evidence of its
content. The sheriff or deputy-sheriff who in fact executes the judgment must sign the return of service.

Personal service must be effected in divorce proceedings, claims for imprisonment, and applications for
final sequestration and applications for eviction from a person’s primary residence.

Proceedings against firms

14 Proceedings by and against partnerships, firms and associations

(1) In this rule—

'Association' means any unincorporated body of persons, not being a partnership.

'Firm' means a business, including a business carried on by a body corporate, carried on by

the sole proprietor thereof under a name other than his own.

'Plaintiff' and 'Defendant' include applicant and respondent.

'Relevant date' means the date of accrual of the cause of action.

 'Sue' and 'sued' are used in relation to actions and applications.

(2) A partnership, a firm or an association may sue or be sued in its name.

(3) A plaintiff suing a partnership need not allege the names of the partners. If he does, any error of
omission or inclusion shall not afford a defence to the partnership.

(4) The previous subrule shall apply mutatis mutandis to a plaintiff suing a firm.

(5) (a) A plaintiff suing a firm or a partnership may at any time before or after judgment deliver to
the defendant a notice calling for particulars as to the full name and residential address of
the proprietor or of each partner, as the case may be, as at the relevant date.

(b) The defendant shall within 10 days deliver a notice containing such information.

(c) Concurrently with the said statement the defendant shall serve upon the persons referred to
in paragraph (a) a notice as near as may be mutatis mutandis, in accordance with Form 8 of
the First Schedule and deliver proof by affidavit of such service.

(d) A plaintiff suing a firm or a partnership and alleging in the summons or notice of motion that
any person was at the relevant date the proprietor or a partner; shall notify such person
accordingly by delivering a notice as near as may be, mutatis mutandis, in accordance with
Form 8 of the First Schedule.

(e) Any person served with a notice in terms of paragraph (c) or (d) shall be deemed to be a
party to the proceedings, with the rights and duties of a defendant.

(f) Any party to such proceedings may aver in the pleadings or affidavits that such person was
at the relevant date the proprietor or a partner, or that he is estopped from denying such
status.

(g) If any party to such proceedings disputes such status, the court may at the hearing decide
that issue in limine.

(h) Execution in respect of a judgment against a partnership shall first be levied against the
assets thereof, and, after such excussion, against the private assets of any person held to
be, or held to be estopped from denying his status as, a partner, as if judgment had been
entered against him.

(6) The preceding subrule shall apply mutatis mutandis to a defendant sued by a firm or a partnership.

(7) If a partnership is sued and it appears that since the relevant date it has been dissolved, the
proceedings shall nevertheless continue against the persons alleged by the plaintiff or stated by
the partnership to be partners, as if sued individually.

(8) The preceding subrule shall apply mutatis mutandis where it appears that a firm has been
discontinued.

(9) (a) A plaintiff suing an association may at any time before or after judgment deliver a notice to
the defendant calling for a true copy of its current constitution and a list of the names and
addresses of the office-bearers and their respective offices as at the relevant date.

(b) Such notice shall be complied with within 10 days.

(c) Paragraphs (a) and (b) shall apply mutatis mutandis to a defendant sued by an association.

(10) Paragraphs (d) to (h) of subrule (5) shall apply mutatis mutandis when—
 (a) a plaintiff alleges that any member, servant or agent of the defendant association is liable in
law for its alleged debt;

(b) a defendant alleges that any member, servant or agent of the plaintiff association will be
responsible in law for the payment of any costs which may be awarded against the
association.

(11) Subrule (7) shall apply mutatis mutandis in regard to the continuance of the proceedings against
any member, servant or agent referred to in paragraph (a) of subrule (10).

(12) Subrule (4) of rule 21 shall apply mutatis mutandis in the circumstances set out in paragraphs (a)
and (b) of subrule (5) and in subrule (9) hereof.

Form 8

NOTICE TO ALLEGED PARTNER

TAKE NOTICE that action has been instituted by the above-named plaintiff against the above-named
defendant for the sum of ........... and that it is alleged that the above-named defendant is a partnership
of which you were from ............... to ................ a partner.

If you dispute that you were a partner or that the above-mentioned period is in any way relevant to your
liability as a partner, you must within 10 days of the service of this notice give notice of your intention to
defend. Upon your giving such notice a copy of the summons served upon the above-named defendant
will be served upon you.

To give such notice you must file with the registrar and serve a copy thereof upon the plaintiff at the
address set out at the foot hereof a notice stating that you intend to defend. Your notice must give an
address (not being a post office box or poste restante) referred to in rule 6(5)(b) for the service upon you
of notices and documents in the action. Unless you do all these things your notice will be invalid.

Thereafter you should file a plea in which you may dispute that you were a partner or that the period
alleged above is relevant or that the defendant is liable, or all three of these matters.

If you do not give such notice you will not be at liberty to contest any of the above issues. If the above-
named defendant is held liable you will be liable to have execution issued against you, should the
defendant’s assets be excussed in execution and be insufficient.

(N.B. In application proceedings this form should be appropriately altered.)

Commentary

The common-law position is that unless each individual forming part of an unincorporated body of persons
is joined and cited by name the summons is bad for non-joinder.

The rule is a procedural aid assisting a plaintiff to cite certain legal entities that do not have any existence
separate from their members or owners. The rule simplifies the method of citation by enabling such a body
of persons to be sued in the name which it normally bears and which is descriptive of it. The rule provides
procedural machinery only and cannot as such make inroads upon the substantive law relating to
partnerships and unincorporated associations. It does not operate to constitute a partnership, firm or an
unincorporated association a persona in law or vest it with locus standi where none exists. The rule also
does not create rights or liabilities that would otherwise not have exist.

Subrule (1): 'Any unincorporated body.' This phrase refers to nothing more than a collection of individuals
who are bound to one another by contract and who act jointly in pursuit of a common purpose. An
unincorporated body has no existence on its own, cannot own property and has no locus standi to sue or
be sued in its own name.

By contrast, a universitas personaram is a separate legal entity that has perpetual succession with rights
and duties separate and independent from the rights and duties of its members. Being a legal persona, a
universitas has the capacity to own property and to sue and be sued in its own name. It derives these
characteristics from the common law and it is not necessary for it to be created by or registered in terms of
a statute. Rule 14 does not apply to a universitas or to any artificial or juristic person constituting a legal
entity with perpetual succession and the capacity to acquire rights and incur obligations and own property
apart from its members.

The ability of an association to sue or be sued as envisaged in Rule 14 is subject to two considerations:
firstly, the nature of the relationship between the members of the association inter se; and, secondly,
whether there exists a sufficient nexus between the individual members in their capacities as members of
the association and the right that forms the subject-matter of the litigation.

'Partnership.' A partnership at common law is not a legal entity distinct from the individual partners who
constitute it. The individual partners are the owners of partnership property in undivided shares and the
rights and duties of the partnership are the rights and duties of the partners. A rule of practice had
developed which a plaintiff had to cite and join all partners otherwise the action would be bad for non-
joinder. Rule 14 effectively nullified this procedure.

The provisions of the subrule are supplemented by Rule 4(1)(a)(vii) which provides that where a
partnership, firm or association is to be served, service may be effected at the place of business of the
partnership, firm or association, or if there be none such, then on any member of the partnership, the
proprietor of a firm or the chairman or secretary of the committee of an association.

‘Firm’ means a business, including a business carried on by a body corporate, carried on by the sole
proprietor thereof under a name other than his own. It includes a company carrying on business under a
name other than its own e.g. AB, a division of XYZ (Pty) Ltd (Two Sixty Four Investments, 1993 (W)).

Subrule (3): 'Need not allege the names of the partners.' In terms of subrule (2) a partnership may sue in its
own name. Subrule (5) provides the plaintiff with a means of obtaining the names and addresses of all the
partners simply by delivering a notice to disclose.

Subrule (5)(a): 'At any time before or after judgment.' Prior to the amendment of the subrule in, the notice
formed part of the summons; now the notice may be delivered to the defendant at any time before or after
judgment.

'Deliver . . . a notice calling for particulars.' This subrule provides the plaintiff with a means of obtaining, for
purposes of execution, the names and addresses of the proprietor of a firm or of all the partners of a
partnership he had sued in the name of the firm or partnership.

Subrule (5)(d): 'A plaintiff . . . shall notify.' The subrule envisages that a plaintiff, who alleges in his
summons or notice of motion that any person was at the 'relevant date' a partner or proprietor, shall
concurrently with his summons deliver the notice in accordance with Form 8 so as to enable the person
concerned to participate in the proceedings as a defendant. By not reacting to a notice delivered upon him
in terms of this subrule, a person is prohibited from disputing that he was a partner at the relevant time or
that the defendant is liable to the plaintiff.

Subrule (6): 'To a defendant sued by a firm or partnership.' The probable object of the subrule is to afford a
defendant a means of ascertaining the identity of the parties who are suing him, so that he may, if
successful, recover his costs from them.

Subrule (7): 'Since the relevant date it has been dissolved.' A partnership which had been dissolved after
the accrual of the cause of action may nevertheless be sued in its name at the date of the accrual of the
cause of action and the action continues, in terms of this subrule, against the persons alleged by the
plaintiff or stated by the partnership to be partners, as if sued individually. Where a firm has ceased to exist
after judgment has been given against it, the court will, in the exercise of its inherent powers, declare a
person to have been the owner of the firm at the relevant date and authorise execution against him.

Where a person becomes the sole proprietor of a firm after the accrual of the cause of action, he cannot
under the rule be held liable on that cause of action because a firm is not a legal persona and the firm
name is only the alias of its sole proprietor. When the business is sold the firm becomes the alter ego of the
new proprietor.

Change of parties

15 Change of parties

(1) No proceedings shall terminate solely by reason of the death, marriage or other change of status
of any party thereto unless the cause of such proceedings is thereby extinguished.

(2) Whenever by reason of an event referred to in subrule (1) it becomes necessary or proper to
introduce a further person as a party in such proceedings (whether in addition to or in substitution
for the party to whom such proceedings relate) any party thereto may forthwith by notice to such
further person, to every other party and to the registrar, add or substitute such further person as a
party thereto, and subject to any order made under subrule (4) hereof, such proceedings shall
thereupon continue in respect of the person thus added or substituted as if he had been a party
from the commencement thereof and all steps validly taken before such addition or substitution
shall continue of full force and effect: Provided that save with the leave of the court granted on
such terms (as to adjournment or otherwise) as to it may seem meet, no such notice shall be given
after the commencement of the hearing of any opposed matter; and provided further that the copy
 of the notice served on any person joined thereby as a party to the proceedings shall (unless such
party is represented by an attorney who is already in possession thereof), be accompanied in
application proceedings by copies of all notices, affidavits and material documents previously
delivered, and in trial matters by copies of all pleadings and like documents already filed of record,
such notice, other than a notice to the registrar, shall be served by the sheriff.

(3) Whenever a party to any proceedings dies or ceases to be capable of acting as such, his
executor, curator, trustee or similar legal representative, may by notice to all other parties and to
the registrar intimate that he desires in his capacity as such thereby to be substituted for such
party, and unless the court otherwise orders, he shall thereafter for all purposes be deemed to
have been so substituted.

(4) The court may upon a notice of application delivered by any party within 20 days of service of
notice in terms of subrule (2) and (3), set aside or vary any addition or substitution of a party thus
affected or may dismiss such application or confirm such addition or substitution, on such terms, if
any, as to the delivery of any affidavits or pleadings, or as to postponement or adjournment, or as
to costs or otherwise, as to it may seem meet.

Commentary

The rule is designed to simplify the procedure where a party to proceedings has undergone a change in
status. Previously when a party died, married, became insolvent, attained majority, was placed under
curatorship or suffered any other change in status, it was necessary to apply to court to substitute some
other person in his place. The present rule renders such an application unnecessary, and the alteration
may now be effected by notice, subject to the right of any affected party to apply to court for relief.

The rule regulates the procedure only where substitution becomes necessary by reason of change of
status. Where no change of status is involved the court will, under its common-law power, grant an
application for substitution involving the introduction of a new persona on being satisfied that no prejudice
will be caused to the opposite parties which cannot be remedied by an order for costs or some other
suitable order, such as a postponement.

Where a summons has been issued in the name of a person who did not exist at the date of the issue of
the summons, the summons is a nullity and the court cannot by substitution revive it to the date of issue.

Subrule (3): 'A party . . . dies or ceases to be capable of acting as such.' In proceedings in the magistrate's
court an action is stayed if a party dies or becomes incompetent to continue until such time as an executor,
trustee, guardian or other competent person has been appointed. In superior court practice the action is not
stayed but the court will not allow any further steps to be taken in the proceedings until an executor,
curator, trustee or similar legal representative has been substituted in terms of this rule.

Barring

26 Failure to Deliver Pleadings – Barring

Any party who fails to deliver a replication or subsequent pleading within the time stated in rule 25 shall
be ipso facto barred. If any party fails to deliver any other pleading within the time laid down in these
rules or within any extended time allowed in terms thereof, any other party may by notice served upon
 him require him to deliver such pleading within five days after the day upon which the notice is delivered.
Any party failing to deliver the pleading referred to in the notice within the time therein required or within
such further period as may be agreed between the parties, shall be in default of filing such pleading, and
ipso facto barred: Provided that for the purposes of this rule the days between 16 December and 15
January, both inclusive shall not be counted in the time allowed for the delivery of any pleading.

Commentary

‘Shall be ipso facto barred.' The fact that a plaintiff is barred from replicating or from delivering a
subsequent pleading does not debar him from proceeding with the action: the pleadings are merely
deemed to be closed and the action may be set down for trial.

'Fails to deliver a replication . . . fails to deliver any other pleading.' The effect of this rule is as follows:

(a) failure to deliver a declaration or plea within the time stated does not entail an automatic bar;
notice of bar must be given; but

(b) failure to deliver a replication or subsequent pleading within the time stated entails an automatic
bar, and no notice of bar is necessary.

An exception is a pleading and cannot be objected to as having been filed out of time unless notice of bar
has been given.

‘Fails to deliver any other pleading within the time laid down.' The rule does not deal explicitly with the case
where a plaintiff is in default of delivering a declaration. It is submitted that the rule applies in such a case
and that the plaintiff will be barred only if the defendant serves a notice requiring delivery of the declaration
within the time prescribed and the plaintiff fails to comply with the notice.

Where a plaintiff has been given leave to file amended particulars of claim within a certain time and fails to
do so, notice of bar must be given before the defendant is entitled to apply for dismissal of the action.

Removal of bar is dealt with under Rule 27.

Gautschi commentary

Rule 26 only applies to actions. An affidavit is not a pleading.

The effect of dies non is that the period between 16 December and 15 January is not counted.

Extension of time periods and condonation

27 Extension of Time and Removal of Bar and Condonation

(1) In the absence of agreement between the parties, the court may upon application on notice and on
good cause shown, make an order extending or abridging any time prescribed by these rules or by
an order of court or fixed by an order extending or abridging any time for doing any act or taking
 any step in connection with any proceedings of any nature whatsoever upon such terms as to it
seems meet.

(2) Any such extension may be ordered although the application therefor is not made until after expiry
of the time prescribed or fixed, and the court ordering any such extension may make such order as
to it seems meet as to the recalling, varying or cancelling of the results of the expiry of any time so
prescribed or fixed, whether such results flow from the terms of any order or from these rules.

(3) The court may, on good cause shown, condone any non-compliance with these rules.

(4) After a rule nisi has been discharged by default of appearance by the applicant, the court or a
judge may revive the rule and direct that the rule so revived need not be served again.

Commentary

Subrule (1): 'In the absence of agreement between the parties.' The rule clearly envisages that an
application for the removal of bar is necessary only in the absence of agreement between the parties.

'The court may upon application.' An application founded on this rule falls within the capability of the court
to control and regulate its own proceedings. There is no need to distinguish between an application before
litis contestatio and one that is brought thereafter. Although a bar may be removed by consent of the
parties, there is no obligation on the party who has barred to consent to the removal merely upon tender of
wasted costs.

'And on good cause shown.' The subrule requires 'good cause' to be shown, and this gives the court a wide
discretion. The courts have consistently refrained from attempting to formulate an exhaustive definition of
what constitutes 'good cause', because to do so would hamper unnecessarily the exercise of the discretion.

The requirement to grant application on “good cause shown” gives the court a wide discretion which must,
in principle, be exercised with regard also to the merits of the matter seen as a whole.

Two principal requirements for the favourable exercise of the court's discretion have crystallised.

1. The applicant should file an affidavit satisfactorily explaining the delay. In this regard it has been
held that the defendant must at least furnish an explanation of his or her default sufficiently to
enable the court to understand how it really came about, and to assess his or her conduct and
motives. Where there has been a long delay, the court should require the party in default to satisfy
the court that the relief sought should be granted, especially in a case where the applicant is the
dominus litis. It is not sufficient for the applicant to show that condonation will not result in
prejudice to the other party. An applicant for relief under this rule must show good cause and the
question of prejudice does not arise if it is unable to do so. The court will refuse to grant the
application where there has been a reckless or intentional disregard of the rules of court, or the
court is convinced that the applicant does not seriously intend to proceed. The application must be
bona fide and not made with the intention of delaying the opposite party's claim.
 2. The applicant should satisfy the court on oath that he has a bona fide defence or that his action is
clearly not ill-founded. Regarding this requirement it has been held that the minimum that the
applicant must show is that his defence is not patently unfounded and that it is based upon facts
which, if proved, would constitute a defence.

3. In most of the authorities a third requirement is also laid down, namely, that the grant of the
indulgence sought must not prejudice the plaintiff in any way that cannot be compensated for by a
suitable order as to postponement and costs.

'Make an order extending or abridging any time.' The powers of the court under this subrule and Rule 6(12)
to abridge the times prescribed by the rules and to accelerate the hearing of matters should be exercised
with judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. The
applicant will have to show good cause why the time should be abridged and why he could not be afforded
substantial redress at a hearing in due course.

The three major considerations which the court would normally consider sufficient and satisfactory are:

(a) the prejudice that the applicant might suffer by having to wait for a hearing in ordinary course;

(b) the prejudice that other litigants might suffer if the applicants were given preference; and

(c) the prejudice that the respondents might suffer by the abridgement of the prescribed times and the
early hearing.

The fact that a litigant with a claim sounding in money may suffer serious financial consequences by having
to wait his turn for the hearing of his claim does not entitle him to preferential treatment. (This statement is
questionable: see Twentieth Century Fox which is referred to under urgent applications above).

'Upon such terms as to it seems meet.' The order which the court makes must be designed to eliminate any
prejudice to any party so as to ensure a fair trial.

Subrule (3): 'The court may…' The subrule gives the court a wide discretion.

'Condone any non-compliance with these rules.' The subrule empowers the court to condone any non-
compliance with the rules and is not confined to non-compliance with rules other than those laying down
time-limits. The wide powers of the court to condone non-compliance with its own rules is subject to the
requirement, and safeguard, that good cause must be shown. It has been held that where what has been
done amounts to a nullity it cannot be condoned in terms of the subrule but where there is a proceeding or
step albeit an irregular or improper one it is capable of being condoned regardless of whether the rule
which has not been complied with is directory or mandatory and whether there has been substantial
compliance or not. The validity of this distinction between an irregular proceeding (which can be condoned)
and one that is a nullity or void (which cannot be condoned) has been doubted: it is artificial and in conflict
with the wide discretion afforded by the subrule to condone non-compliance with the rules. The subrule
empowers the court to condone 'any non-compliance' with the rules, and the use of the word 'any'
emphasises the absence of any restriction on the powers of the court to do so.

Subrule (4): 'A rule nisi has been discharged by default of appearance.' It was held in Fisher v Fisher that
subrule (2) of this rule does not empower the court to revive a rule nisi which has been discharged or which
has lapsed. This subrule, which was inserted in 1987, now gives the court the power to revive such a rule
which has been discharged by default of appearance by the applicant. The subrule does not, however,
empower the court to revive a rule nisi which had lapsed because of the fulfilment of a resolutive condition
such as, for example, the failure to have taken a prescribed step timeously.

Amendments to pleadings

28 Amendment of Pleadings and Documents

(1) Any party desiring to amend a pleading or document other than a sworn statement, filed in
connection with any proceedings, shall notify all other parties of his intention to amend and shall
furnish particulars of the amendment.

(2) The notice referred to in subrule (1) shall state that unless written objection to the proposed
amendment is delivered within 10 days of delivery of the notice, the amendment will be effected.

(3) An objection to a proposed amendment shall clearly and concisely state the grounds upon which
the objection is founded.

(4) If an objection which complies with subrule (3) is delivered within the period referred to in subrule
(2), the party wishing to amend may, within 10 days, lodge an application for leave to amend.

(5) If no objection is delivered as contemplated in subrule (4), every party who received notice of the
proposed amendment shall be deemed to have consented to the amendment and the party who
gave notice of the proposed amendment may, within 10 days after the expiration of the period
mentioned in subrule (2), effect the amendment as contemplated in subrule (7).

(6) Unless the court otherwise directs, an amendment authorized by an order of the court may not be
effected later than 10 days after such authorization.

(7) Unless the court otherwise directs, a party who is entitled to amend shall effect the amendment by
delivering each relevant page in its amended form.

(8) Any party affected by an amendment may, within 15 days after the amendment has been effected
or within such other period as the court may determine, make any consequential adjustment to the
documents filed by him, and may also take the steps contemplated in rules 23 and 30.

(9) A party giving notice of amendment in terms of subrule (1) shall, unless the court otherwise
directs, be liable for the costs thereby occasioned to any other party.

(10) The court may, notwithstanding anything to the contrary in this rule, at any stage before judgment
grant leave to amend any pleading or document on such other terms as to costs or other matters
as it deems fit.

Commentary
Subrule (1): 'Any party desiring to amend…' It is for the party desiring an amendment to ask for it, not for
the judge to make it without being asked or to direct a party to amend.

'A pleading or document other than a sworn statement, filed in connection with any proceeding.' A pleading
or document may be amended under the subrule only if it has been filed in connection with any proceeding.
An affidavit or sworn statement is a document by means of which sworn evidence is put before a court in
written form. An amendment of an affidavit would amount to a change of evidence which had been given on
oath and amendment thereof cannot be allowed by way of mere notice under the subrule: a party who
wishes to change his or her evidence given on oath must do so on oath, if necessary by way of a further
affidavit.

'Shall notify all other parties.' Subrule (2) refers to 'delivery' of the notice. In terms of rule 1 copies of the
notice must be served on all parties and the original filed with the registrar.

'Shall furnish particulars of the amendment.' The subrule makes it clear that the party desiring to amend
must set out in his notice particulars of his proposed amendment. Unless particulars of the proposed
amendment are so set out the party receiving the notice would not be able to object to the amendment
under subrules (2) and (3): the latter subrule requires the grounds of objection to be clearly and concisely
stated. If the particulars are not set out in the notice, a party receiving the notice may invoke the provisions
of rule 30.

Subrule (2): 'Unless written objection to the proposed amendment is delivered.' A party may object to a
proposed amendment on any of the grounds on which the court would refuse an amendment to a pleading.
The fact that a party gives notice of his or her intention to apply for an amendment on the date of trial does
not prevent his opponent from objecting thereto under this subrule within ten days of delivery of the notice,
and the party seeking the amendment will thereupon have to make a substantive application under subrule
(4).

Subrule (3): 'Shall clearly and concisely state the grounds…' This subrule enables a party who wishes to
amend a pleading to know the basis upon which objection to such a proposed amendment is made and to
avoid a situation where such party has to endeavour to deal with every conceivable complaint when
applying for an amendment. In terms of subrule (2) any objection to a proposed amendment must be in
writing, and in terms of this subrule such objection must state clearly and concisely the grounds upon which
it is founded.

Subrule (4): 'Lodge an application for leave to amend.' An application under this subrule is an interlocutory
application as contemplated in Rule 6(11) and need not be brought on notice of motion supported by
affidavit. However, it is trite law that an application for an amendment seeking to withdraw an admission
must be supported by affidavit.

The primary object of allowing an amendment is 'to obtain a proper ventilation of the dispute between the
parties, to determine the real issues between them, so that justice may be done'. The vital consideration is
that an amendment will not be allowed in circumstances which will cause the other party such prejudice as
cannot be cured by an order for costs and, where appropriate, a postponement. The practical rule adopted
seems to be that amendments will always be allowed unless the application to amend is mala fide or
unless such amendment would cause an injustice to the other side which cannot be compensated by costs.
The power of the court to allow material amendments is, accordingly, limited only by considerations of
prejudice or injustice to the opponent.

Prejudice in this context 'embraces prejudice to the rights of a party in regard to the subject-matter of the
litigation, provided there is a causal connection which is not too remote between the amendment of the
pleading and the prejudice to the other party's rights. The fact that an amendment may cause the other
party to lose his case against the party seeking the amendment is not of itself 'prejudice' of the sort which
will dissuade the court from granting it. The onus is on the party seeking the amendment to establish that
the other party will not be prejudiced by it.

The court will exercise its discretion whether or not to grant an amendment in the light of the following
guidelines:

(a) formal amendments are usually allowed unless precluded by some rule of court (thus arithmetical
and clerical errors have been corrected and mis description of parties rectified);

(b) where the real issue in a case is imperfectly or ambiguously expressed in the pleadings, an
amendment designed to place on record the true issue will be allowed;

(c) the court will allow the amendment of a prayer where the main issue between the parties remains
the same, but will not readily do so where the addition of a prayer also entails the introduction of a
new cause of action;

(d) the courts have recognised that in many cases it maybe convenient to incorporate fresh causes of
action in original proceedings. An amendment which introduces a new cause of action will only be
allowed if no prejudice is occasioned thereby.

Except in special or exceptional circumstances a summons may not be amended so as to include a cause
of action not existing at the time of its issue. It is important to distinguish between an amendment
introducing a new cause of action and one which merely introduces fresh and alternative facts supporting
the original right of action as set out in the cause of action. An amendment which introduces a new claim
will not be allowed if it would resuscitate a prescribed claim or defeat a statutory limitation as to time.

In the exercise of its discretion the court may grant an amendment involving the withdrawal of an admission
in a pleading. The court's discretion is not fettered by the necessity to find that there has been an error
before it can allow such an amendment. It has been stressed that an amendment involving a withdrawal of
an admission is not put on a basis different from any other amendment. However, the withdrawal of an
admission is usually more difficult to achieve because (i) it involves a change of front which requires full
explanation to convince the court of the bona fides thereof, and (ii) it is more likely to prejudice the other
party, who had by the admission been led to believe that he need not prove the relevant fact and might, for
that reason, have omitted to gather the necessary evidence. The court will, therefore, in the exercise of its
discretion, require an explanation of the circumstances under which the admission was made and the
reasons for now seeking to withdraw it.

The Appellate Division has stressed that a litigant who seeks to add new grounds of relief at the eleventh
hour does not claim such an amendment as a matter of right but rather seeks an indulgence. The applicant
has to prove that he did not delay the application after he became aware of the material upon which he
proposes to rely. He must explain the reason for the amendment and show prima facie that he or she has
something deserving of consideration: a triable issue. A triable issue is:

(a) a dispute, which, if it is proved on the basis of the evidence foreshadowed by the applicant in his
application, will be viable or relevant; or

(b) a dispute, which will probably be established by the evidence thus foreshadowed.

An amendment ought not to be allowed where its introduction into the pleading would render such pleading
excipiable. In other words, the issue proposed to be introduced by the amendment must be a triable issue.

An amendment seeking to introduce a claim which is prescribed will not be allowed.

Where it is proposed to introduce by way of amendment a cause of action in respect of which the court will
not have jurisdiction, the amendment will be refused. Where, however, the question of jurisdiction is
doubtful or arguable, it is submitted that the amendment should be allowed and that it should be left to the
defendant to raise the issue of jurisdiction by way of special plea.

The court will not allow an amendment on appeal if it is a new point raised for the first time on appeal,
unless it was covered by the pleadings. In Road Accident Fund v Mothupi (2000, SCA) the Court
explained as follows:

“Subject to what is said below, a Court will not allow a new point to be raised for the first time on appeal
unless it was covered by the pleadings. The application for the amendment of the replication was
designed to circumvent that difficulty; but in essence the amendment is simply the platform from which
the plaintiff sought to launch the new point on appeal. A party will not be permitted to do so if it would be
unfair to his opponent …. It would be unfair to the other party if the new point was not fully canvassed or
investigated at the trial. In this case it is by no means certain that the issue of estoppel in all its
ramifications was properly and fully investigated. So for instance there was no evidence by and no
cross-examination of Mr and Mrs Mahlase on whether they ever thought of prescription at the time and
on whether they would have acted differently if they were attentive to it; nor was there any explanation
offered as to why summons was only issued in February 1997, whereas negotiations about the
quantification came to an abrupt end in September 1996. In the result it appears to me that the
proposed amendment opened up entirely new fields of enquiry which were not properly explored before
 the trial Court. The amendment must accordingly be refused. And if that is so estoppel falls by the
wayside.”

Subrule (5): 'Shall be deemed to have consented to the amendment.' If a party does not object to a
proposed amendment of which he has been given notice in terms of subrules (1) and (2), he is deemed in
terms of this subrule to have consented to the amendment. The party seeking the amendment thereby
acquires the right to amend but the actual amendment of the pleading takes place only when the
amendment is effected within the stipulated time in accordance with subrule (7). A party who had
consented to an amendment and allowed it to be incorporated into the pleadings is not entitled thereafter to
argue that the court should disregard it.

'Within 10 days after the expiration of the period mentioned in subrule (2).' A party who has been given
notice by another party of the latter's intention to amend is under subrule (2) entitled to object to the
proposed amendment within 10 days of delivery of the notice of intention to amend. If no objection is
raised, the party wishing to amend may effect his or her amendment in accordance with subrule (7) within
10 days after the expiration of this initial period of 10 days.

Subrule (6): 'An amendment authorized by an order of the court'. The subrule makes it clear that the court
merely authorises an amendment, and the amendment only takes effect when the steps prescribed in
subrule (7) have been taken within the applicable time limit. The court may, however, under its powers in
terms of this subrule, order an amendment which takes immediate effect, or allow a period of more than 10
days within which the amendment is to be effected in accordance with subrule (7).

Subrule (7): 'A party who is entitled to amend'. A party may be entitled to amend (i) by reason of no
objection being raised to his or her proposed amendment (subrule (5)), or (ii) by an order of court
authorising the amendment (subrule (6)).

'Shall effect the amendment by delivering…' A party who is in terms of subrule (5) or (6) entitled to amend,
must effect the amendment in the manner prescribed in this subrule. An amendment accordingly takes
effect when the steps prescribed in the subrule have been taken within the applicable time limit.

The granting of an amendment does not, however, have retrospective effect in the proper sense, and
prescription is not interrupted, in respect of a cause of action introduced by an amendment, from the date
when the summons was originally served. In other words, where the right which is sought to be enforced
and the relief claimed in the amendment is different from the right sought to be enforced and the relief
claimed in the original claim, the service of the summons does not interrupt prescription in respect of the
claim introduced by the amendment. Where a new cause of action is introduced by amendment,
prescription is interrupted by, and on the date of delivery of, the notice of intention to amend.

Subrule (8): 'Any party affected by an amendment'. It is submitted that a party 'affected by an amendment'
denotes a party to whom each relevant page in its amended form is delivered; it does not include the party
who effects the amendment.

'May make any consequential adjustment'. A party is entitled to make 'adjustments' to any pleading already
filed by him or her which are 'consequential' upon the amendment that has been made. He may not invoke
the subrule for the purpose of amending his pleadings in other respects for such amendment he will be
obliged to proceed under subrule (1).

'May also take the steps contemplated in rules 23 and 30'. Rule 23 deals with exceptions and applications
to strikeout; rule 30 provides for steps which may be taken in the case of irregular proceedings. Only the
party to whom each relevant page in its amended form is delivered is entitled to take these steps. Where a
defendant fails to respond to the amendments effected by the plaintiff, every allegation of fact which is not
stated in the plea to be denied or to be admitted, shall be deemed to be admitted.

Subrule (9): 'Unless the court otherwise directs, be liable to pay the costs thereby occasioned.' It is clear
that the court, in accordance with the basic rule governing awards of costs, has a discretion. The grant of
an amendment is an indulgence to the party requiring it, which entails that such a party is generally liable
for all the costs occasioned by or wasted as a result of the amendment.

Subrule (10): At any stage before judgment.' The rule is in the widest possible terms and does not envisage
any period before judgment during which the possibility of making an application for an amendment is
precluded. Once a court has pronounced a final judgment or order, it is functus officio and has itself no
authority thereafter to grant any amendment of the pleadings.

Applications for amendments have been entertained and allowed after both sides have closed their cases,
during the hearing of an application for absolution and in certain cases even after the conclusion of
argument. Where the issue of liability had been determined by judgment at an earlier hearing, the court,
while dealing with the question of the quantum of damages, will not grant an amendment of a plea which
would bring about a reopening of the issues which had been finalised at the earlier hearing.

Gautschi commentary

Rule 28 applies to both actions and applications. However, an affidavit cannot be amended as it would
amount to a change of evidence under oath. A party who wishes to change his evidence must do so under
oath by way of a further affidavit and the change of evidence must be fully explained.

Irregular proceedings

30 Irregular proceedings

(1) A party to a cause in which an irregular step has been taken by any other party may apply to court
to set it aside.

(2) An application in terms of subrule (1) shall be on notice to all parties specifying particulars of the
irregularity or impropriety alleged, and may be made only if—
 (a) the applicant has not himself taken a further step in the cause with knowledge of the
irregularity;

(b) the applicant has, within ten days of becoming aware of the step, by written notice afforded
his opponent an opportunity of removing the cause of complaint within ten days;

(c) the application is delivered within fifteen days after the expiry of the second period
mentioned in paragraph (b) of subrule (2).

(3) If at the hearing of such application the court is of opinion that the proceeding or step is irregular or
improper, it may set it aside in whole or in part, either as against all the parties or as against some
of them, and grant leave to amend or make any such order as to it seems meet.

(4) Until a party has complied with any order of court made against him in terms of this rule, he shall
not take any further step in the cause, save to apply for an extension of time within which to
comply with such order.

Commentary

Subrule (1): 'A party to a cause.' Prior to the amendment of the subrule in 1987 the phrase 'any cause' was
used and it was held that the words were used in the widest possible sense and referred to any judicial
proceeding of whatsoever nature. It is submitted by Erasmus that the phrase 'a cause' in the present
subrule has a similar wide meaning.

'An irregular step has been taken.' The irregular step contemplated by the subrule must be a step which
advances the proceedings one stage nearer completion. The subrule does not apply to omissions, but to
positive steps or proceedings. The annexure of an unsworn statement to an affidavit is not an irregular
proceeding under this rule, nor is a notice in respect of furnishing security.

The rule has found application where, for example:

(a) a proper power of attorney had not been filed;

(b) proper service of a summons had not been effected;

(c) an address for service of documents was not set out in a summons;

(d) pleadings were not signed in accordance with the rules or did not comply with the rules as to form;

(e) particulars of claim in an action for damages failed to comply with the provisions of rule 18(10);
and

(f) an application was brought on the grounds of urgency but no reasons of urgency were set out in
the supporting affidavits.

The rule applies only to irregularities of form and not to matters of substance. Specific defences such as
lack of locus standi and prescription are raised by special plea and not by way of application under this rule.
'May apply to court to set it aside.' A party's proper course where any proceeding in a cause is irregular is
not to proceed as if there had been no such proceeding at all but to apply to court under this rule for an
order setting it aside.

A party is not obliged to invoke the rule in order to have proceedings set aside on the ground of irregularity,
but may avail himself of any other remedy available to him under the rules. Thus it has been held that an
objection in limine that a notice of the hearing of an application for summary judgment did not comply with
rule 32(2) need not be raised by way of formal application under this subrule; a plaintiff may in terms of rule
31(2)(a) apply for judgment by default without first making application to have an irregular notice of
appearance to defend set aside; an objection of non-joinder or misjoinder may be raised under this rule but
the more usual practice is to raise it by way of special plea.

If a pleading both fails to comply with Rule 18 and is vague and embarrassing, the defendant has a choice
of remedies: he may either bring an application in terms of Rule 30 or raise an exception in terms of Rule
23(1).

Subrule (2): 'Specifying particulars of the irregularity or impropriety alleged.' An application under the
subrule shall be on notice but need not be supported by an affidavit; all that the subrule requires is that the
notice must specify the particulars of the irregularity or impropriety complained of. It is analogous to an
exception and the subrule does not provide for any form of reply.

'Taken a further step in the cause.' The subrule is intended to deal with the situation where a party has
taken a further step in the cause and thereafter seeks to make application to set aside an irregular or
improper step. A further step in the cause is some act which advances the proceedings one stage nearer
completion. Notice of intention to defend is not a further step in that sense but is merely an act done with
the object of qualifying the defendant to put forward his defence. A party takes a further step in the cause
by the filing of a declaration, a notice of bar, a plea in response to an irregular notice of bar, a replication,
but not by filing a notice in respect of furnishing security.

'With knowledge of the irregularity.' It is submitted that knowledge of the irregularity means knowledge of
the fact which constitutes the irregularity and not consciousness that the fact constitutes an irregularity.

'Within ten days of becoming aware of the step.' The subrule in its amended form now makes it clear that a
party must give notice to his opponent to remove the cause of complaint within ten days of becoming aware
of the fact that the step concerned had been taken, and not within ten days of becoming aware of the
irregularity of the step.

'The application is delivered within fifteen days.' The period may be extended by the court under the
provisions of Rule 27(1).

Subrule (3): 'May set it aside…or make any order as to it seems meet.' The subrule gives a court very wide
powers, powers which might enable a court to grant a plaintiff the opportunity to amend a summons which
is so defective as to constitute a nullity. The court is entitled to overlook in proper cases any irregularity
which does not work any substantial prejudice to the other party. Proof of prejudice is therefore a
prerequisite to success in an application in terms of Rule 30(1).

Non-compliance with Rules

30A Non-compliance with rules

(1) Where a party fails to comply with these rules or with a request made or notice given pursuant
thereto, any other party may notify the defaulting party that he or she intends, after the lapse of 10
days, to apply for an order that such rule, notice or request be complied with or that the claim or
defence be struck out.

(2) Failing compliance within 10 days, application may on notice be made to the court and the court
may make such order thereon as to it seems meet.

Commentary

Rule 30(5) used to provide a remedy where a party failed to comply timeously with a request made or
notice given pursuant to the rules.

To the extent that the provisions of this rule may be in conflict with a provision in another rule which
provides a specific remedy for non-compliance with that rule, a party need only follow the provisions of the
other rule, without first having to give notice in terms of this rule or follow the provisions of this rule.

The court has an inherent power to dismiss an action on account of a delay in its prosecution by the
plaintiff. The circumstances under which the court may do so will depend on the period of the delay, the
reasons therefor and the prejudice suffered by the other party.

Subrule (1): ‘After the lapse of 10 days.’ The period of ten days affords the defaulting party an opportunity
to comply with the rule, request or notice concerned.

Application must be brought on notice.

Subrule (2): ‘Failing compliance within 10 days.’

‘The court may make such order thereon as to it seems meet.’ This subrule confers a discretion on the
court which, it is submitted, must be exercised judicially on a proper consideration of all the relevant
circumstances. Striking out a claim or defence is a drastic remedy and, accordingly, the court must be
appraised of sufficient facts on the basis of which it could exercise its discretion in favour of such an order.
Consequently, the necessary affidavits in support of and opposing such relief should be delivered. Relevant
factors will include:

(a) the reasons for non-compliance with the rules, request or notice concerned and, in this regard,
 whether the defaulting party has recklessly disregarded his obligations;

(b) whether the defaulting party’s case appears to be hopeless; and

(c) whether the defaulting party does not seriously intend to proceed.

In addition, prejudice to either party is a relevant factor.

Withdrawal, settlement, discontinuance, postponement, and abandonment

41 Withdrawal, settlement, discontinuance, postponement and abandonment

(1) (a) A person instituting any proceedings may at any time before the matter has been set down
and thereafter by consent of the parties or leave of the court withdraw such proceedings, in
any of which events he shall deliver a notice of withdrawal and may embody in such notice a
consent to pay costs; and the taxing master shall tax such costs on the request of the other
party.

(b) A consent to pay costs referred to in paragraph (a), shall have the effect of an order of court
for such costs.

(c) If no such consent to pay costs is embodied in the notice of withdrawal, the other party may
apply to court on notice for an order for costs.

(2) Any party in whose favour any decision or judgment has been given, may abandon such decision
or judgment either in whole or in part by delivering notice thereof and such judgment or decision
abandoned in part shall have effect subject to such abandonment. The provisions of subrule (1)
relating to costs shall mutatis mutandis apply in the case of a notice delivered in terms of this
subrule.

(3) If in any proceedings a settlement or an agreement to postpone or withdraw is reached, it shall be

the duty of the attorney for the plaintiff or applicant immediately to inform the registrar accordingly.

(4) Unless such proceedings have been withdrawn, any party to a settlement which has been reduced
to writing and signed by the parties or their legal representatives but which has not been carried
out, may apply for judgment in terms thereof on at least five days' notice to all interested parties.

Commentary

Subrule (1)(a): 'A person instituting any proceedings may at any time before the matter has been set
down…withdraw such proceedings.' A person who has instituted proceedings is entitled to withdraw such
proceedings without the other party's concurrence and without leave of the court at any time before the
matter is set down. The 'proceedings' referred to in this subrule are those envisaged by the rules in which
there is a lis between parties, one of whom seeks redress or the enforcement of rights against the other.

'And thereafter by consent of the parties or leave of the court.' Once a matter has been set down for
hearing, it is not competent for the party who has instituted such proceedings to withdraw them without
either the consent of all the parties or the leave of the court. In the absence of such consent or leave, a
purported notice of withdrawal will be invalid. The court has a discretion whether or not to grant such leave,
and the question of injustice to the other parties is germane to the exercise of the court's discretion. It is,
however, not ordinarily the function of the court to force a person to proceed with an action against his will
or to investigate the reasons for abandoning or wishing to abandon one.

Subrule (1)(c): 'Apply to court on notice for an order for costs.' An applicant for an order for costs need only
deliver a notice of his intention to ask for an order as to costs: no affidavit is required since all the relevant
material is already before the court. The respondent is entitled to oppose the application for an order for
costs and to place the grounds of his opposition before the court on affidavit. Where a party brings an
urgent application under rule 6(12) with service on the respondent but without notice to the registrar, and
subsequently decides not to proceed with the application, the other party is entitled on notice of motion and
by affidavit to place before the court the papers of the incomplete proceedings and to apply for an order of
costs.

The general principle is that the party withdrawing is liable, as an unsuccessful litigant, to pay the costs of
the proceedings. The court, however, retains a discretion to deprive the successful party of his costs.

Subrule (2): 'May abandon such decision or judgment.' The decision or judgment referred to may be either
final or interlocutory. In the absence of a consent by the party abandoning to pay costs, the other party may
apply on notice for an order for costs.

Subrule (3): 'The duty of the attorney…immediately to inform the registrar.' The registrar should be
informed of a settlement, postponement or withdrawal as soon as possible. Where the settlement is
reached at a time so close to the calling of the roll that the registrar cannot timeously be informed thereof,
then, as a matter of courtesy, an explanation can be given in court. A case cannot be said to have been
postponed until the notice of postponement has been delivered to the registrar.

Postponement

(i) The court has a discretion as to whether an application for a postponement should be granted or
refused. Thus the court has a discretion to refuse a postponement even when wasted costs are
tendered or even when the parties have agreed to postpone the matter.

(ii) An applicant for a postponement seeks an indulgence. The applicant must show good and strong
reasons, i.e. the applicant must furnish a full and satisfactory explanation of the circumstances that
give rise to the application.

(iii) An application for a postponement must be made timeously, as soon as the circumstances which
might justify such an application become known to the applicant.

(iv) An application for postponement must always be bona fide and not used simply as a tactical
manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately
entitled.
 (v) Considerations of prejudice will ordinarily constitute the dominant component of the total structure
in terms of which the discretion of the court will be exercised; the court has to consider whether
any prejudice caused by a postponement can fairly be compensated by an appropriate order of
costs or any other ancillary mechanism.

(vi) The balance of convenience or inconvenience to both parties should be considered: the court
should weigh the prejudice which will be caused to the respondent in such an application if the
postponement is granted against the prejudice which will be caused to the applicant if it is not.

(vii) One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe
pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of
clients to terminate the mandate (more often than not at the suggestion of the practitioner), to
force the court to grant a postponement because the party is then unrepresented. Judicial officers
have a duty to the court system, their colleagues, the public and the parties to ensure that this
abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner
or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a
postponement as of right.

Where both a civil action and a criminal prosecution, arising out of the same facts, are pending, the former,
as a general rule, should be stayed until the latter has been heard, or even, in a proper case, until it has
been on review. The civil and criminal proceedings must be pending against the same person, and that
principle cannot be extended to accord locus standi to a witness to seek the adjournment of a trial in which
he was due to give evidence. The applicable legal principles are as follows:

(a) Our courts have a discretion to suspend civil proceedings where there are criminal proceedings
pending in respect of the same issues.

(b) Each case must be decided in the light of the particular circumstances and the competing interests
in the case.

(c) In exercising its discretion the court will have regard to the following factors:

(i) the extent to which the person's right to a fair trial might be implicated if the civil proceedings
are allowed to proceed prior to the criminal proceedings;

(ii) the interests of the plaintiff in dealing expeditiously with the litigation or any particular aspect
thereof;

(iii) the potential prejudice to the plaintiff if the proceedings are delayed;

(iv) the interests of persons not involved in the litigation; and

(v) the interests of the public in the pending civil and criminal litigation.
 (d) The court must be satisfied that there is a danger that the accused might be prejudiced in the
conduct of his defence in the criminal matter if the civil case is allowed to proceed before the
finalisation of the criminal case against him.

Costs. There are three types of costs relevant to applications for postponement:

(a) 'costs of postponement' means the costs for the application for postponement; and does not
include costs incurred in another case in consequence of the postponement;

(b) 'costs of the day' are those extra costs caused by a postponement of the proceedings and which
are ordered to be paid by the party responsible for the postponement and consequent waste of a
day;

(c) 'wasted costs' are those extra costs incurred in consequence of the postponement which have
become useless and unnecessary by reason of the postponement.

'Costs of the day' are in principle the same as 'wasted costs'.

Costs stand over for determination at the trial when the court hearing the application for postponement
decides that, in the circumstances, the trial court will be in a better position to ascertain the facts and
decide who should pay the costs of postponement.

Costs are made costs in the cause, as a general rule, when it appears to the court, not that it cannot decide
where the liability for costs of postponement lies, but that the postponement is not due to the fault of any
party but is necessary in any event, and it will be equitable that the loser of the main action or application
should pay all costs incurred, including costs of postponement.

Though the court has the power to order that wasted costs be paid before the trial be allowed to proceed,
the court will be slow to place a clog upon a litigant's free access to the courts and will make such an order
only where the postponement and the resultant wastage of costs are due to blameworthy conduct of a high
degree.

'May apply for judgment in terms thereof.' An application for judgment in terms of this subrule is not an
application which is incidental to pending proceedings in the sense contemplated in Rule 6(11); the
application can be brought under Rule 6(1). Once judgment had been applied for on at least five days’
notice to all interested parties, a warrant of execution may be issued.

Withdrawal

A person may, at any time between the initiation of a matter and set down, without permission of the court,
withdraw proceedings. To withdraw proceedings is to remove the proceedings from the arena of the court
in their entirety and without the possibility of re-instituting the proceedings on the particular documents
already filed in court. The only manner in which such proceedings can be re-instituted once withdrawn is to
start afresh.

Where a matter has already been set down, leave of the court or the consent of the other side is required.

Abandonment

Where any order or judgment is given (either final or interlocutory), the party in whose favour the judgment
was given may abandon the order or judgment. To abandon means to disregard to the extent that the order
or judgment has no effect. This is different to a rescission of judgment since it is within the power of the
party in whose favour the judgment was granted to abandon same.

If a party abandons an order or judgment, he will usually be obliged to tender the costs in the same manner
as if he withdrew the action/application.

Security for costs

47 Security for costs

(1) A party entitled and desiring to demand security for costs from another shall, as soon as
practicable after the commencement of proceedings, deliver a notice setting forth the grounds
upon which such security is claimed, and the amount demanded.

(2) If the amount of security only is contested the registrar shall determine the amount to be given and
his decision shall be final.

(3) If the party from whom security is demanded contests his liability to give security or if he fails or
refuses to furnish security in the amount demanded or the amount fixed by the registrar within ten
days of the demand or the registrar's decision, the other party may apply to court on notice for an
order that such security be given and that the proceedings be stayed until such order is complied
with.

(4) The court may, if security be not given within a reasonable time, dismiss any proceedings
instituted or strike out any pleadings filed by the party in default, or make such other order as to it
may seem meet.

(5) Any security for costs shall, unless the court otherwise directs, or the parties otherwise agree, be
given in the form, amount and manner directed by the registrar.

(6) The registrar may, upon the application of the party in whose favour security is to be provided and
on notice to interested parties, increase the amount thereof if he is satisfied that the amount
originally furnished is no longer sufficient; and his decision shall be final.

Commentary

This rule does not set out the grounds upon which one party is entitled to demand security for costs from
the other; it deals only with the purely procedural aspect of the matter. Recourse must therefore be had to
the common law and to statutory provisions which deal with the grounds upon which security for costs
could be demanded. Under the common law an incola of the Republic cannot, as a general rule, be called
on to give security for costs. There are, however, exceptions to the general rule. The principles of the
common law and certain relevant statutory provisions are briefly considered in the notes that follow.

(a) Actions by peregrini

A peregrinus who is plaintiff (or applicant), either in convention or reconvention, and who does not own
unmortgaged immovable property, in the Republic may be ordered to give security for the costs.

In Magida v Minister of Police, the Appellate Division, after a review of the Roman-Dutch authorities, held
that at common law an incola did not have a right which entitled him or her as a matter of course to the
furnishing of security for his costs by a peregrinus. The court has a discretion whether or not to order
security to be lodged in any given case, a discretion which is to be exercised by having regard to all the
relevant facts as well as considerations of equity and fairness to both parties. There is no justification for
requiring the court to exercise its discretion in favour of a peregrinus only sparingly. If the defendant incola
is sufficiently safeguarded in other ways the court will not order the security to be given.

It is to be noted that, in terms of s 25 of the Superior Courts Act, no incola of the Republic can be required
to furnish security for costs by reason only of the fact that he or she is not resident within the jurisdiction of
the court.

(b) Actions by insolvents

An insolvent may be ordered to furnish security for the costs of an action brought by him but will not
ordinarily be ordered to do so unless it is shown that his action is reckless or vexatious . The mere fact that
he or she is insolvent and that the action is one which would ordinarily be brought by the creditors does not
entitle the defendant to demand security for costs, nor is there a presumption that such an action is
vexatious.

(c) The action is vexatious

As a general rule, the mere inability of a plaintiff or applicant as the case may be, who is an incola, to
satisfy a potential costs order against him is insufficient in itself to justify an order that he furnish security for
his opponent's costs. Something more is required. The court must be satisfied that the main application is
vexatious or reckless or amounted to an abuse of the process of the court.

The court has an inherent jurisdiction to stop or prevent a vexatious action as being an abuse of the
process of the court; one of the ways of doing so is by ordering the vexatious litigant to furnish security for
the costs of the other side. An action is vexatious if it is obviously unsustainable.

(d) Other cases

Where a plaintiff who is a man of straw litigates in a nominal capacity the court may order him or her to
furnish security for costs.
(e) Actions by companies and close corporations

The Companies Act 1973 ('the previous Act') was repealed by the Companies Act 2008 ('the new Act'). In
terms of s 13 of the previous Act, where a limited company was plaintiff or applicant in any legal
proceeding, the court could at any stage order it to furnish security for costs if there was reason to believe
that the company or its liquidator would be unable to pay the costs of the defendant or respondent if
successful in his defence.

The new Act lacks a provision equivalent to s 13 of the previous Act. At common law an incola company
could not be required to give security for the costs of proceedings instituted by it. There was no exception
to this rule. The omission in the new Act of a provision such as s 13 of the previous Act is for the common
law to prevail, i.e. neither an impecunious or an insolvent company which is an incola of the Republic, nor
an incola company which embarked upon vexatious and/or speculative action could be required to give
security for the costs of proceedings instituted by it.

However, in Haitas (GSJ, 2011) the court, relying on its inherent power to protect and regulate its own
process and to develop the common law, taking into account the interest of justice, held that since allowing
impecunious or insolvent plaintiff companies to indulge in risk-free litigation would encourage unnecessary
or vexatious law suits, the courts should, in cases in which the interests of justice demand it, invoke their
inherent power to protect and regulate their own process by ordering the furnishing of security. The court,
however, stressed that each case should be decided on its own peculiar facts and when such peculiar facts
'scream for the furnishing of security, courts should not hesitate to order such a party to file security for
costs'.

In Ngwenda Gold (GSJ, 2011), Van der Merwe AJ held that:

(i) the Haitas decision was not authority for the proposition (a) that the approach reflected in s 13 of
the previous Act should still find application, notwithstanding the fact that the legislature had seen
fit not to retain the equivalent thereof in the new Act, (b) that an insolvent company or even a
company in liquidation was in general obliged to provide for security for costs, and (c) that a
company whose assets exceeded its liabilities by a large margin, but whose assets were not
readily realisable, was obliged to provide for security for costs;

(ii) in the absence of a provision similar to s 13 of the previous Act, an applicant in an application for
security had to found its entitlement to security for costs on the principles of the common law;

(iii) at common law, an incola company could not be required to give security for costs in civil
proceedings;

(iv) it would be inappropriate to assume that the absence of a provision similar to s 13 of the previous
Act was a result of an oversight on the part of the legislature: the fact that the new Act was
 promulgated after the inception of the Constitution of the Republic of South Africa, 1996,
suggested that the legislature, in not retaining an equivalent provision to former s 13, was mindful
of the provisions of section 34 of the Constitution, in terms of which access to courts was
enshrined;

(v) the absence of an equivalent to s 13 of the previous Act indicated that the legislature, in
promulgating the new Act, deviated from the approach as reflected in, inter alia, Shepstone &
Wylie v Geyser NO, namely, that s 13 could have the undesirable consequence that an
impecunious or insolvent company was precluded from recovering a valid claim;

(vi) the absence of an equivalent to s 13 suggested that the legislature placed greater emphasis on the
entitlement of even impecunious or insolvent corporate entities to recover what was due to them in
courts of law without the obstacle of having to provide security in advance for the costs of the
litigation;

(vii) a valid consideration in support of the approach of the legislature as reflected in the new Act was
the following: 'The fact that litigation can seldomly, if at all, be instituted and proceeded with on a
risk-free basis. At the very least, those funding the litigation on behalf of the insolvent or
impecunious corporate entity would normally be exposed to the deterrent that the funding provided
would be irrecoverable in the event of unsuccessful litigation';

(viii) the facts of the case were distinguishable from those in Haitas, in which the facts supported a
conclusion that the plaintiff was proceeding with vexatious, reckless and unmeritorious litigation;

(ix) the Haitas decision indicated that other considerations which were recognised as special
circumstances, justifying the granting of an order for security for costs, might very well be
developed by the courts in those instances where insolvent corporate entities instituted litigation,
for example, one of the considerations which might constitute special circumstances (as identified
in Haitas) was the fact that the plaintiff had for an extended period of several years lost interest in
the litigation and had failed to proceed expeditiously with the finalisation thereof;

(x) whilst future legal development might entail that special circumstances or considerations were
recognised in the case of insolvent or impecunious corporate entities which justified the granting of
an order for security for costs, 'it is clear that the common law requires "something more" than
mere insolvency or impecuniosity in the event of incola plaintiffs or applicants, irrespective of
whether the plaintiff or applicant is a private individual or a corporate entity'; and

(xi) future legal development might very well recognise the fact that the plaintiff or applicant 'had
nothing to lose' in the litigation as a relevant factor which contributed to a finding that special
circumstances were present which justified the granting of an order for security for costs.
Absent special circumstances, Van der Merwe AJ dismissed the application for security for costs.

Subrule (1): 'A party entitled…to demand security for costs.' The subrule does not indicate the types of
case in which one party is entitled to demand security for costs from the other; it deals only with the purely
procedural aspect of the matter. Recourse must therefore be had to the common law and to other statutory
provisions which deal with security for costs.

'As soon as practicable.' Prior to the introduction of this rule it was accepted that delay in applying for
security is not necessarily a fatal bar to the application. There is nothing in the present rule which suggests
delay in demanding or applying for security is to be regarded as fatal.

'After the commencement of the proceedings.' The proceedings must be pending and final judgment not
have been granted.

'Deliver a notice.' In terms of the subrule the party demanding security must set out in the notice the
grounds upon which security is claimed and the amount which is demanded. If the amount of security only
is contested, the registrar determines the amount under subrule (2); if the liability to give security is
contested an application to the court under subrule (3) must be brought.

Subrule (2): 'The amount…only is contested.' The registrar has the power, under this subrule, to determine
the amount of security in the event of a dispute between the parties. In terms of subrule (3) it is for the court
to resolve any dispute as to the liability of a party to furnish security.

'The registrar shall determine the amount.' The amount of security to be ordered is entirely within the
discretion of the registrar (or the court under subrule (3)). Each case must be decided on its own merits,
and circumstances which might weigh heavily with the court in one case may be of little value in another.

Subrule (3): 'Contests his liability to give security.' It is for the court to resolve any dispute as to the liability
of a party to furnish security.

Appeal. The decision of a court pursuant to an application brought in terms of rule 47(3) that a party who
has refused or failed to furnish security in an amount as determined by the registrar under rule 47(2) must
furnish security in the amount thus determined by the registrar, is not interlocutory in nature, nor is it a mere
ruling. It is a 'judgment or order' within the meaning of s 20 of the Supreme Act in that it is final in effect and
definitive of the rights of the parties as to the provision of security. Such order is therefore appealable.

Authentication of documents

63 Authentication of documents executed outside the Republic for use within the Republic

(1) In this rule, unless inconsistent with the context—

'document' means any deed, contract, power of attorney, affidavit or other writing, but does
not include an affidavit or solemn or attested declaration purporting to have been made
 before an officer prescribed by section eight of the Justices of the Peace and
Commissioners of Oaths Act, 1963 (Act 16 of 1963);

'authentication' means, when applied to a document, the verification of any signature

thereon.

(2) Any document executed in any place outside the Republic shall be deemed to be sufficiently
authenticated for the purpose of use in the Republic if it be duly authenticated at such foreign
place by the signature and seal of office—

(a) of the head of a South African diplomatic or consular mission or a person in the
administrative or professional division of the public service serving at a South African
diplomatic, consular or trade office abroad; or

(b) of a consul-general, consul, vice-consul or consular agent of the United Kingdom or any
other person acting in any of the aforementioned capacities or a pro-consul of the United
Kingdom;

(c) of any Government authority of such foreign place charged with the authentication of
documents under the law of that foreign country; or

(d) of any person in such foreign place who shall be shown by a certificate of any person
referred to in paragraph (a), (b), or (c) or of any diplomatic or consular officer of such foreign
country in the Republic to be duly authorised to authenticate such document under the law of
that foreign country; or

(e) of a notary public in the United Kingdom of Great Britain and Northern Ireland or in
Zimbabwe, Lesotho, Botswana or Swaziland; or

(f) of a commissioned officer of the South African Defence Force as defined in section one of
the Defence Act, 1957 (Act 44 of 1957), in the case of a document executed by any person
on active service.

(2A) Notwithstanding anything in this rule contained, any document authenticated in accordance with
the provisions of the Hague Convention Abolishing the Requirement of Legalisation for Foreign
Public Documents shall be deemed to be sufficiently authenticated for the purpose of use in the
Republic where such document emanates from a country that is a party to the Convention.

(3) If any person authenticating a document in terms of subrule (2) has no seal of office, he shall
certify thereon under his signature to that effect.

(4) Notwithstanding anything in this rule contained, any court of law or public office may accept as
sufficiently authenticated any document which is shown to the satisfaction of such court or the
officer in charge of such public office, to have been actually signed by the person purporting to
have signed such document.

(5) No power of attorney, executed in Lesotho, Botswana or Swaziland, and intended as an authority
to any person to take, defend or intervene in any legal proceedings in a magistrate's court within
the Republic, shall require authentication: Provided that any such power of attorney shall appear
to have been duly signed and the signature to have been attested by two competent witnesses.

Commentary

There is no substantive enactment which lays down that a document executed in a foreign place must be
authenticated. The general practice of requiring such authentication is, however, long established. The
manner in which documents executed outside the Republic may be authenticated in order to permit their
being produced or used in any court or produced or lodged in any public office in the Republic is prescribed
by this rule which also applies to the production and use of such documents in the magistrates' courts.

The provisions of the rule are not exhaustive or imperative but merely directory. The rule does not take
away the power of the court to consider other evidence directed at the proof of a document executed in a
foreign place, and to accept such document as being duly executed.

Interest

Prescribed Rate of Interest Act,1975

1 Rate at which interest on debt is calculated in certain circumstances

(1) If a debt bears interest and the rate at which the interest is to be calculated is not governed by any
other law or by an agreement or a trade custom or in any other manner, such interest shall be
calculated at the rate contemplated in subsection (2)(a) as at the time when such interest begins
to run, unless a court of law, on the ground of special circumstances relating to that debt, orders
otherwise.

(2) (a) For the purposes of subsection (1), the rate of interest is the repurchase rate as determined
from time to time by the South African Reserve Bank, plus 3,5 percent per annum.

(b) The Cabinet member responsible for the administration of justice must, whenever the
repurchase rate is adjusted by the South African Reserve Bank, publish the amended rate of
interest contemplated in paragraph (a) by notice in the Gazette.

(c) The interest rate contemplated in paragraph (b) is effective from the first day of the second
month following the month in which the repurchase rate is determined by the South African
Reserve Bank. [10 per cent per annum with effect from 1 May, 2018]

(3) For purposes of this section—

(a) “repurchase rate” means the rate at which banks borrow rands from the South African
Reserve Bank; and

(b) “South African Reserve Bank” means the central bank of the Republic regulated in terms of
the South African Reserve Bank Act, 1989 (Act No. 90 of 1989).

2 Interest on a judgment debt

(1) Every judgment debt which, but for the provisions of this subsection, would not bear any interest
after the date of the judgment or order by virtue of which it is due, shall bear interest from the day
on which such judgment debt is payable, unless that judgment or order provides otherwise.

(2) Any interest payable in terms of subsection (1) may be recovered as if it formed part of the
judgment debt on which it is due.

(3) In this section 'judgment debt' means a sum of money due in terms of a judgment or an order,
including an order as to costs, of a court of law, and includes any part of such a sum of money, but
does not include any interest not forming part of the principal sum of a judgment debt.

2A Interest on unliquidated debts

(1) Subject to the provisions of this section the amount of every unliquidated debt as determined by a
court of law, or an arbitrator or an arbitration tribunal or by agreement between the creditor and the
 debtor, shall bear interest as contemplated in section 1.

(2) (a) Subject to any other agreement between the parties and the provisions of the National Credit
Act, 2005 (Act 34 of 2005) the interest contemplated in subsection (1) shall run from the date
on which payment of the debt is claimed by the service on the debtor of a demand or
summons, whichever date is the earlier.

(b) In the case of arbitration proceedings and subject to any other agreement between the
parties, interest shall run from the date on which the creditor takes steps to commence
arbitration proceedings, or any of the dates contemplated in paragraph (a), whichever date is
the earlier.

(3) The interest on that part of a debt which consists of the present value of a loss which will occur in
the future shall not commence to run until the date upon which the quantum of that part is
determined by judgment, arbitration or agreement and any such part determined by arbitration or
agreement shall for the purposes of this Act be deemed to be a judgment debt.

(4) Where a debtor offers to settle a debt by making a payment into court or a tender and the creditor
accepts the payment or tender, or a court of law awards an amount not exceeding such payment
or tender, the running of interest shall be interrupted from the date of the payment into court or the
tender until the date of the said acceptance or award.

(5) Notwithstanding the provisions of this Act but subject to any other law or an agreement between
the parties, a court of law, or an arbitrator or an arbitration tribunal may make such order as
appears just in respect of the payment of interest on an unliquidated debt, the rate at which
interest shall accrue and the date from which interest shall run.

(6) The provisions of section 2(2) shall apply mutatis mutandis to interest recoverable under this
section.

4 Definitions

In this Act, unless the context indicates otherwise—

(i) 'court of law' means a court having jurisdiction in respect of the matter in question;

(ii) 'demand' means a written demand setting out the creditor's claim in such a manner as to enable
the debtor reasonably to assess the quantum thereof.

Commentary

The wording of each provision is self-explanatory:

 Section 1 governs how interest is calculated on a debt. The Judicial Matters Amendment Act, 2015
changed the way interest was determined and linked it to the repo rate.

 Section 2 provides for interest running on judgment debts. It is accordingly not necessary to plead
the running of such interest as it happens as a matter of law.

 Section 2A was introduced in 1997 and allows for interest to be claimed on a unliquidated debt.
The interest rate applicable is that determined in terms of section 1.
In court proceedings, interest runs from the date on which the payment of debt is claimed, either by way of
letter of demand or service of a summons (whichever is the earlier). In arbitration proceedings, interest
runs from the date on which the creditor takes steps to commence arbitration proceedings or from the date
on which a letter of demand is sent (whichever is the earlier).

In relation to interest on a debt, the interest rate is determined on the date at which the interest begins to
run and remains fixed through the following period. Unless there is an agreement between the parties or
the NCA provides otherwise, the interest rate set out by the Act must be applied.

A court has a discretion to change the interest rate, depending on what is just, for an unliquidated debt
(presumably because it is difficult for a defendant notionally to have known his or her liability when the
claim was instituted). In MV Seajoy (1997,C), the Court explained as follows:

“As at 27 August 1993 [the rate of interest] was prescribed in terms of the Act at 18,5% per annum. Only
about a month later, on 29 September 1993 the prescribed rate was reduced to 15,5% per annum, and
it has remained at that level since then. In Davehill (Pty) Ltd and Others v Community Development
Board 1988 (1) SA 290 (A) it was held at 300I-301F that the rate prescribed under section 1(2) of the
Prescribed Rate of Interest Act at the time when interest begins to run governs the calculation of
interest, is fixed at that time and remains constant. Applying that principle to the present case, the rate
would be 18,5% per annum. It was also held in that case that, because section 1(1) of the Act is in
peremptory terms, its application is obligatory, not discretionary (at 300I-J). However, in my view that is
not the case when it comes to interest on an unliquidated debt which is awarded under section 2A of the
amending Act 7 of 1997. As I have said, under section 2A(5) of that Act the Court is given a discretion
as to, inter alia, “the rate at which interest shall accrue.

Now, the prescribed rate was 18,5% per annum for only about a month after the date on which interest
started to run on this claim. For nearly four years thereafter it has been only 15,5% per annum. I think
that justice and fairness to both parties require that I should, in the exercise of my discretion, fix the rate
at the lower level.”

QUESTIONS

1. A plaintiff’s vehicle was hi-jacked and in the resultant accident damaged beyond economic repair. The
insurer of his vehicle repudiated his insurance claim and the plaintiff consequently instituted an action
for damages against the insurer. However, before the action could proceed to trial, the plaintiff passed
away. What, if anything, can the executor of the plaintiff’s estate do to further prosecute the matter? (2)
(2017)

2. A plaintiff has sued a firm or partnership but has no particulars of the full names or residential
addresses of the proprietor or the partners at the time of the accrual of the cause of action. Advise–

(a) the plaintiff of any possible way[s] to overcome his difficulty.

(b) the defendant of any obligations which it may attract in consequence of the step/s which the
plaintiff may have been advised to take. (5) (2017)

3. Intervention (4) (2016)

 How does a party intervene in proceedings and what averments must be made by an applicant in
an application for intervention?

4. Amendments (9) (2015)

What should a party do if he/she/it desires to amend his/her/its pleading? (1)

Within what period of time and how may the opposing party object to the proposed amendment? (1)

What should the amending party do (if anything) if there is no objection to the amendment? (1)

What rights does the opposing party have (if any) once an amendment has been effected? (4)

Who is usually liable for the costs occasioned by the amendment?(1)

Until what stage in proceedings may an amendment to pleadings be effected? (1)

5. What procedure must be followed to effect the service of a summons on a person who is known to be
in the Republic of South Africa, but whose exact location cannot be established? (1) (2013)

6. A plaintiff sued his Insurance company for damage to his vehicle, sustained when it was Involved in an
accident and damaged beyond economic repair, after having been hi-jacked. He died before the action
has proceeded to trial. What steps must the executor of his estate take should he wish to further
prosecute the matter? (1) (2013)

7. (a) Under what circumstances will a party be considered to be ipso facto barred from delivering a
pleading?

(b) When will a party be barred from delivering a pleading in other cases? (3)(2013)

8. Describe the procedure which must be followed by a party to an action who seeks to set aside an
irregular step in that action and the potential consequences for the opponent, should the procedure be
successful. (13)(2011)

9. What procedure must be followed to effect the service of a summons on a person who is known to be
in the Republic of South Africa, but whose exact location cannot be established? (1) (2009)

10. A plaintiff sued his insurance company for damages to his vehicle, sustained when it was involved in
an accident and damaged beyond economic repair, after having been hi-jacked. He died before the
action has proceeded to trial. What can the executor of his estate do to further prosecute the matter?
(1) (2009)

11. In what circumstances is a party ipso facto barred from delivering a pleading? (2) (2009)
12. In what manner is a party barred from delivering a pleading in cases where he/she/it has not been ipso
facto barred from so doing? (2) (2009)

13. Under what circumstances may a rule nisi be revived?(2)(2009)

14. Is it necessary to serve such a revived rule again? (2)(2009)

15. A plaintiff has sued a firm or partnership but has no particulars as to the full names or residential
address of the proprietor or the partners at the time of the accrual of the cause of action. Advise—

(a) the plaintiff of any possible way[s] to overcome his difficulty.

(b) the defendant of any obligations which it may attract in consequence of the step/s which the
plaintiff may have been advised to take. (5) (2009)

16. Amendments (11) (2009)

(a) What should a party do if he/she/it desires to amend a pleading?

(b) Within what period of time and in what manner may the opposing party object to such amendment?

(c) What should the amending party do (if anything) if there is no objection to the amendment?

(d) What rights does the opposing party have (if any) once an amendment has been effected?

(e) Who is liable for the costs occasioned by the amendment?

17. A peregrine plaintiff institutes action against a locally registered company out of one of the Divisions of
the High Court of South Africa and the defendant institutes a counterclaim against the plaintiff:

(a) Can any one of the parties claim security for costs from the other? If so, which one and on what
basis?

(b) On the assumption that a party is entitled to claim security for costs, how does that party go
about doing so?

(c) What happens if the amount of security is contested?

(d) What happens if the liability to furnish security is contested? (14) (2009)
2 SPECIFIC PROCEDURES AND REMEDIES

2.1 Edictal citation

5 Edictal citation

(1) Save by leave of the court no process or document whereby proceedings are instituted shall be
served outside the Republic.

(2) Any person desiring to obtain such leave shall make application to the court setting forth concisely
the nature and extent of his claim, the grounds upon which it is based and upon which the court
has jurisdiction to entertain the claim and also the manner of service which the court is asked to
authorize. If such manner be other than personal service, the application shall further set forth the
last-known whereabouts of the person to be served and the inquiries made to ascertain his
present whereabouts. Upon such application the court may make such order as to the manner of
service as to it seems meet and shall further order the time within which notice of intention to
defend is to be given or any other step that is to be taken by the person to be served. Where
service by publication is ordered, it may be in a form as near as may be in accordance with Form 1
of the First Schedule, approved and signed by the registrar.

(3) Any person desiring to obtain leave to effect service outside the Republic of any document other
than one whereby proceedings are instituted, may either make application for such leave in terms
of subrule (2) or request such leave at any hearing at which the court is dealing with the matter, in
which latter event no papers need be filed in support of such request, and the court may act upon
such information as may be given from the bar or given in such other manner as it may require,
and may make such order as to it seems meet.

Commentary

A distinction must be drawn between edictal citation and substituted service. Edictal citation is ordered
when the defendant is or is believed to be out of the Republic; substituted service is ordered when the
defendant is believed to be in the Republic but one of the normal forms of service set out in Rule 4 cannot
be effected, or when, as in matrimonial actions, personal service is required and cannot be effected.

Where edictal citation has been ordered, the practice is to issue a citation (the equivalent of a summons)
and to follow this up with an intendit (the equivalent of a declaration) which may or may not be served
simultaneously with the citation. Where the defendant has given notice of intention to defend, the intendit is
usually served on his attorney at the address given.

Subrule (1): 'Save by leave of the court.' In High Court practice a litigant does not direct a summons at his
opponent; the registrar directs it to the sheriff who then serves it upon the opponent. If a litigant wants to
proceed by way of edict (which means by way of a demand directed at his opponent by the court), he
obviously has to ask the court to direct this demand. Hence the necessity for obtaining leave to sue by edict
in the superior courts.

Under the Reciprocal Service of Civil Process Act the leave of the court to serve process is in certain cases
not required: section 4 of the Act provides that, in respect of countries designated under section 2(1),
notwithstanding the provisions of any other law relating to the service of any process outside the Republic,
any process, other than a process relating to the enforcement of a civil judgment, may be issued by the
registrar of a High Court or by any clerk of the magistrate's court, as the case may be, without the leave of
the court in question. The Act is of little practical significance: only the former Republics of Transkei, Venda
and Ciskei have been designated as countries under section 2(1).

Subrule (2): 'Make application.' The application may be brought ex parte.

An application for leave to sue by way of edictal citation must set out concisely—

(i) the full description of the applicant (establishing locus standi);

(ii) the full description of the respondent (establishing locus standi);

(iii) jurisdiction in the main action;

(iv) grounds upon which the claim is based (a prima facie case);

(v) nature and extent of relief claimed;

(vi) the manner of service that the court is asked to authorise;

(vii) If the address of the respondent is not known, the applicant must aver:

a. the reasons why service cannot be effected in any of the ways provided for in the rules;

b. the last known whereabouts of the persons to be served,

c. what steps he has taken to ascertain the defendant's whereabouts and that these have proved
unsuccessful;

d. sufficient relevant facts to indicate the best manner in which service may be effected and that
there is some reasonable likelihood that the form of service suggested will come to the
knowledge of the defendant;

(viii) any information that may assist the court in determining whether leave should be granted and, if
so, the terms thereof; and

An application for leave to sue by way of substituted service must set out concisely—

(i) the full description of the applicant (establishing locus standi);

(ii) the full description of the respondent (establishing locus standi);

 (iii) jurisdiction in the main action;

(iv) grounds upon which the claim is based (a prima facie case);

(v) nature and extent of relief claimed;

(vi) the reasons why service cannot be effected in any of the ways provided for in the rules;

(vii) the last known whereabouts of the persons to be served,

(viii) what steps he has taken to ascertain the defendant's whereabouts and that these have proved
unsuccessful;

(ix) sufficient relevant facts to indicate the best manner in which service may be effected and that there
is some reasonable likelihood that the form of service suggested will come to the knowledge of the
defendant;

(x) any information that may assist the court in determining whether leave should be granted and, if
so, the terms thereof; and

(xi) the manner of service that the court is asked to authorise.

'The court has jurisdiction.' The purpose of edictal citation is to provide the means for the institution and
prosecution of actions against those in respect of whom the court has jurisdiction but on whom the process
of the court cannot be served because they are outside the jurisdiction of the court. The court must,
therefore, have jurisdiction to hear the proposed action before it can grant leave to sue by edict.

'The manner of service the court is asked to authorize.' The subrule has a clear preference for personal
service but the court is empowered to 'make such order as to the manner of service as to it seems meet'.

'And the enquiries made to ascertain his present whereabouts.' The applicant must show that all sources of
information about the defendant's whereabouts have been investigated.

'The court may make such order as to the manner of service as to it seems meet.' The court may order any
manner of service as is likely to bring the proceedings concerned to the notice of the party to be served.

'Order the time within which notice of intention is to be given.' The time allowed in the order of the court
must not be in breach of the provisions of s 27 of the Supreme Court Act. However, if a defendant enters
appearance within the prescribed period, non-compliance with the provisions of section 27 becomes
irrelevant.

Gautschi Commentary

The application is brought ex parte on a short form notice of motion (Form 2) in which the applicant:
 1. asks for leave to serve the process on the defendant in the relevant country;

2. stipulates the dies induciae, that is, the period within which the defendant is to enter his
appearance to defence (normally one month); and

3. generally asks that the costs of the application be causes in the main action or application.

It is possible to combine an application for edictal citation with an application for substituted service.

QUESTIONS

1. Ms X’s husband has fled to Australia, leaving her with their 10 children in South Africa. Accepting that
the South African Courts have jurisdiction to grant her a decree of divorce, how should she go about
serving a divorce summons on him if she has no fixed address for him and simply knows as a fact that
he now lives in the Sydney area in Australia.

Supply a fully motivated answer. (6) (2017)

2.2 Provisional sentence

- Rule 8
- Twee Jonge Gezellen (Pty) Ltd and Another v Land & Agricultural Bank of SA t/a The Land Bank &
another 2011 (3) SA 1 (CC)
- Rich v Lagerwey 1974 (4) SA 748 (A)
- Allied Holdings v Myerson 1948 (2) SA 961
- Wollach v Barclays National Bank 1983 (2) SA 543 (A)
- Rhoode Construction v Provincial Administration Cape 1976 (4) SA 925 (C)
- Sadler v Nebraska (Pty) Ltd 1980 (4) SA 718 (W) at 721A-G.

8 Provisional sentence

(1) Where by law any person may be summoned to answer a claim made for provisional sentence,
proceedings shall be instituted by way of a summons as near as may be in accordance with Form
3 of the First Schedule calling upon such person to pay the amount claimed or, failing such
payment, to appear personally or by counsel or by an attorney who, under section 4(2) of the Right
of Appearance in Courts Act, 1995 (Act No. 62 of 1995), has the right of appearance in the
Supreme Court upon a day named in such summons, not being less than 10 days after the service
upon him or her of such summons, to admit or deny his or her liability.

(2) Such summons shall be issued by the registrar and the provisions of subrules (3) and (4) of rule
17 shall mutatis mutandis apply.

(3) Copies of all documents upon which the claim is founded shall be annexed to the summons and
served with it.

(4) The plaintiff shall set down the case for hearing before noon on the court day but one preceding
 the day upon which it is to be heard.

(5) Upon the day named in the summons the defendant may appear personally or by an advocate or
by an attorney who, under s 4(2) of the Right of Appearance in Courts Act, 1995 (Act No. 62 of
1995), has the right of appearance in the Supreme Court to admit or deny his or her liability and
may, not later than noon of the court day but one preceding the day upon which he or she is called
upon to appear in court, deliver an affidavit setting forth the grounds upon which he or she
disputes liability in which event the plaintiff shall be afforded a reasonable opportunity of replying
thereto.

(6) If at the hearing the defendant admits his liability or if he has previously filed with the registrar an
admission of liability signed by himself and witnessed by an attorney acting for him and not acting
for the opposite party, or, if not so witnessed, verified by affidavit, the court may give final
judgment against him.

(7) The court may hear oral evidence as to the authenticity of the defendant's signature, or that of his
agent, to the document upon which claim for provisional sentence is founded or as to the authority
of the defendant's agent.

(8) Should the court refuse provisional sentence it may order the defendant to file a plea within a
stated time and may make such order as to the costs of the proceedings as to it may seem just.
Thereafter the provisions of these rules as to pleading and the further conduct of trial actions shall
mutatis mutandis apply.

(9) The plaintiff shall on demand furnish the defendant with security de restituendo to the satisfaction
of the registrar, against payment of the amount due under the judgment.

(10) Any person against whom provisional sentence has been granted may enter into the principal
case only if he shall have satisfied the amount of the judgment of provisional sentence and taxed
costs, or if the plaintiff on demand fails to furnish due security in terms of subrule (9).

(11) A defendant entitled and wishing to enter into the principal case shall, within two months of the
grant of provisional sentence, deliver notice of his intention to do so, in which event the summons
shall be deemed to be a combined summons and he shall deliver a plea within 10 days thereafter.
Failing such notice or such plea the provisional sentence shall ipso facto become a final judgment
and the security given by the plaintiff shall lapse.

Commentary

Provisional sentence is an extraordinary, summary and interlocutory remedy designed to enable a creditor
who has liquid proof of his claim to obtain a speedy judgment therefor without resorting to the more
expensive and dilatory machinery of an illiquid action.

Provisional sentence precludes a defendant with no valid defence from 'playing for time'. Apart from the fact
that provisional sentence is only available to a plaintiff who is armed with a liquid document, two further
inherent characteristics of provisional sentence have always rendered it distinguishable from other
remedies.

1. It only leads to a provisional or interlocutory order. Final judgment is still to be considered in the
principal case. In the final instance, the claim against the defendant can still be dismissed.

2. While on the one hand it entitles the plaintiff to payment of the judgment immediately, that is,
 before entering into the principal case, on the other hand it affords the defendant the right to insist
on security for repayment pending the final outcome.

Although the judgment so obtained is, initially, provisional only and does not prevent the defendant from
entering into the principal case, in the vast majority of cases no further steps are taken, and the provisional
sentence automatically becomes a final judgment. Although provisional sentence is intended to be a
speedy remedy, it is undesirable that highly technical objections thereto should readily be allowed and the
parties should be given adequate opportunity of putting their cases before the court, even if this
necessitates allowing a further set of affidavits.

Subrule (1): 'Where by law any person may be summoned to answer a claim made for provisional
sentence.' A person may only be summoned to answer a claim made for provisional sentence where the
claim is founded upon a liquid document. The theory behind provisional sentence is that it is granted on the
presumption of the genuineness and the legal validity of the documents produced to the Court. The debt
disclosed in the documents must be unconditional and liquid.

If a document upon a proper construction thereof, evidenced by its terms, and without resort to evidence
extrinsic thereto, an unconditional acknowledgment of indebtedness in an ascertained amount of money,
the payment of which is due to the creditor it is one upon which provisional sentence may properly be
granted.

In order to qualify as a liquid document which will sustain a claim for provisional sentence, a document
must, therefore, contain the following essential elements:

1. The document must reflect an acknowledgment of indebtedness. A document in which the

acknowledgment of indebtedness is given in consideration of an undertaking by the creditor to
advance monies in the future is liquid provided an unconditional obligation to pay money is
undertaken: a debt at once comes into existence, and the existence of the debt is not put in
abeyance by reason of the fact that the consideration for which the undertaking was given is a
promise by the other party to perform an act in the future.

2. The acknowledgment of indebtedness must be unconditional. If a document does no more than

evidence a potential liability, the existence of which is dependent upon the happening of some
future state of affairs, the document is not a liquid document and the simplicity or otherwise of the
condition upon which liability will arise is irrelevant. Where a document expresses payment (i.e. not
the liability for the payment, but simply the payment) of a debt to be subject to a simple event or
condition, extrinsic proof of the happening of the event or compliance with the condition is
permitted, provided the act or event is indeed simple in the sense that it is inherently capable of
speedy proof by means of affidavit evidence.

3. The acknowledgment of indebtedness must be for an ascertained amount of money. A claim

 sounding in foreign currency is a money claim on which provisional sentence may be granted. An
instrument which contains an acknowledgment of indebtedness, but not in a specific sum, is not a
liquid document and a certificate specifying the actual amount of indebtedness cannot turn it into a
liquid document. A covering bond which provides for future advances, or a deed of suretyship in
respect of debts which may become owing in the future, accompanied by a certificate certifying the
amount due at any given time is, therefore, not a liquid document.

The types of liquid document which are most frequently met with in practice are the following:

 Acknowledgment of debt. A simple acknowledgment of debt without a specific undertaking to pay

will support.

 Architect's certificate.

 Bill of costs. A taxed party and party bill of costs, unsupported by anything to show that the party
alleged to be liable for the costs was actually so liable, and accompanied merely by the taxing
master's allocatur, is not a liquid document. Provisional sentence can be granted on a taxed
attorney and client bill of costs (i.e. an attorney's bill of costs against his client) in conjunction with
the relevant power of attorney.

 Covering bond and deed of suretyship. Provisional sentence can be granted on a covering bond
and a deed of suretyship only if the bond or deed contains an acknowledgement by the debtor of
an indebtedness in a definite amount.

 Foreign judgment. A foreign judgment is liquid and provisional sentence will be granted thereon
provided the judgment appears ex facie the record to be final and has not become superannuated
(i.e. to become outdated or obsolete through age or new developments). A certified copy of the
foreign judgment must be annexed to the summons and, where the judgment is in a foreign
language, a due and proper translation thereof. All foreign documentation must be duly
authenticated in terms of Rule 63. The onus is on the plaintiff to prove that the foreign court from
which the judgment emanates, had jurisdiction according to the principles recognised by South
African law with reference to foreign judgments. Note that foreign judgments are probably the only
types of liquid documents which need not be signed by the defendant for provisional sentence to
be granted.

 Mortgage bond. A mortgage bond, if it contains an unconditional acknowledgement of liability in a

fixed and determinate amount, is a liquid document upon which provisional sentence can be
granted. In a mortgage bond the mortgagor's liability to make payment is usually subject to the
happening of a 'simple event', namely the default in a periodic payment of interest and capital. The
happening of this 'simple event' to which payment is conditional may be proved by extrinsic
evidence, if put in issue, but unless put in issue is proved by the simple allegation in the summons
 without affecting the liquidity of the document. The fact that the mortgagor has to perform his part
of the contract at a future date, for example pay the amount of the loan only on registration of the
bond, does not in itself make the mortgagee's indebtedness conditional and thereby affect the
liquidity of the bond.

 Negotiable Instruments. Whether bills of exchange, cheques and promissory notes are liquid
documents which can found an action for provisional sentence depends on whether they meet all
the requirements of a liquid document. In an action for provisional sentence on a bill of exchange,
the summons must contain an allegation that the plaintiff is the legal holder of the instrument sued
on, unless this is apparent from the document itself, which forms part of the summons.

'Shall be instituted by way of a summons.' A provisional sentence summons is in essence a composite

document which serves a twofold purpose.

(1) It serves to institute an action for a definitive judgment (ie it initiates the principal case).

(2) At the same time it serves to institute proceedings for interim relief.

The defendant must in the summons be informed of the consequence of his failure to pay the amount
claimed and of his right to demand security for the restitution thereof if he should pay the amount. This is
material requirement which embraces 'the very essence of a claim for provisional sentence'.

'To admit or deny his liability.' The subrule prescribes a form of summons which must call upon the
defendant, if he denies liability for the claim and files an opposing affidavit, to admit or deny his signature,
or that of his agent, and the authority of his agent. It has been held that a plaintiff is not entitled to
provisional sentence on a summons which does not call upon the defendant to admit or deny his signature;
the words are 'absolutely vital as they represent the whole theory and practice on which provisional
sentence is based'.

Subrule (2): 'The provisions of subrules (3) and (4) of Rule 17 shall…apply.' In terms of Rule 17(3) the
summons must be signed by the attorney acting for the plaintiff and must include an address for service of
documents.

The plaintiff's title and the defendant's liability must appear ex facie the summons and the document upon
which the claim is founded without resort to extrinsic evidence.

Subrule (3): 'Copies of all documents upon which the claim is founded shall be annexed to the summons.' It
is to be noted that the subrule does not enjoin that only liquid documents be attached. In determining
whether or not a document is one upon which the plaintiff's claim is founded, the following test is to be
applied: 'Whether it is necessary to determine the defendant's liability; or material to the plaintiff's cause of
action; or whether the action is so dependent on it that it cannot proceed without a consideration of it; or
whether it forms a vitally important part of the plaintiff's claims against the defendant'. All documents which
constitute an essential element of the plaintiff's cause of action must, therefore, be annexed to the
summons.

Subrule (4): 'The plaintiff shall set down the case for hearing.' A notice of set down must be filed; a
provisional sentence summons, unlike a notice of motion, does not contain a request to place the matter on
the roll.

Subrule (5):'Deliver an affidavit.' In terms of the subrule the time for the delivery of the affidavit is not later
than noon of the court day but one preceding the day on which the defendant is called upon to appear in
court. If the defendant does deliver an affidavit, the subrule provides that the plaintiff shall be afforded a
reasonable opportunity of replying thereto. This almost inevitably means that the matter will have to be
postponed.

'Setting forth the grounds upon which he disputes liability.' The subrule prescribes a form of summons
which calls upon the defendant, if he denies liability for the claim and files an opposing affidavit, to admit or
deny his signature, or that of his agent, and the authority of his agent.

There is no closed category of defences that can be raised against claims for provisional sentence. Such
claims are 'based on agreements, whether unilateral or bilateral, and many, if not most, of the defences
available to defendants confronted with illiquid claims ex contractu can be raised by defendants faced with
claims for provisional sentence.

'Afforded a reasonable opportunity of replying thereto.' Where the plaintiff does not file a replying affidavit, it
does not necessarily mean that the defendant's version must be accepted and that provisional sentence
cannot be granted before the plaintiff in a replying affidavit denies the defendant's allegations.

The subrule makes provision for two sets of affidavits only, those of the defendant in opposition to the
summons and those of the plaintiff in reply. The court may, in the exercise of its discretion, allow additional
affidavits in appropriate circumstances. A further set of affidavits may be allowed where considerations of
justice and fairness require it and where it is shown that the defendant will not suffer any prejudice that
could not be remedied by an appropriate order for costs. Appropriate circumstances are 'special or
exceptional circumstances, having regard to the nature and purpose of provisional sentence'.

Subrule (6): 'At the hearing...' At the hearing of an action for provisional sentence the plaintiff surrenders
the original document upon which the claim is founded to the court and moves for judgment on it.

'If…the defendant admits his liability.' There are three courses open to a defendant in provisional sentence
proceedings:

(i) a final and unconditional payment (solutio) which would normally result in his indebtedness being
discharged;
 (ii) an admission by him of liability in which event final judgment may be given against him in terms of
this subrule, and

(iii) a denial of liability under subrule (5).

Subrule (7): 'The court may hear oral evidence.' The court only has the power to hear oral evidence as to:

(1) the authenticity of the defendant's signature;

(2) the authenticity of the signature of his agent;

(3) the authenticity of the document; or

(4) as to the authority of the defendant's agent.

The court has no inherent powers to order the hearing of oral evidence on other issues.

Where the genuineness of the signature on the document or the authority of the signatory to bind the
defendant is disputed, the plaintiff is not allowed, either orally or by means of an affidavit, to introduce
evidence to establish an estoppel.

Subrule (8): 'Should the court refuse provisional sentence.' At the provisional sentence stage of the
proceedings, the plaintiff and the defendant bear the onus of proof in respect of different issues:

The plaintiff bears the onus of proving on a balance of probability:

(i) the authenticity of the defendant's or his agent’s signature on the document;

(ii) the authority of the defendant's agent;

(iii) the fulfilment of any condition;

(iv) the entitlement of the plaintiff to the claim evidenced by the liquid document; and

(v) all other facts necessary to sustain a cause of action on the document concerned.

The following should be noted:

 In respect of some of these issues the plaintiff is entitled to attempt to discharge the onus by oral
evidence under subrule (7). On all other issues the onus must be discharged on the papers. The
court will refuse to grant provisional sentence where the plaintiff fails to discharge on a balance of
probability the onus resting on him.

 The mere allegation of fulfilment of a simple condition or event is sufficient if the allegation is not
disputed. If it is disputed, it must be proved by the plaintiff by way of affidavit evidence only. No
 oral evidence will be permitted on this point.

 If the defendant’s signature or that of his agent, or the authority of his agent, is placed in issue, the
plaintiff bears the onus of proving that fact. Oral evidence is permitted on these points (and only
these points).

The defendant bears the onus of proving that he has a defence in the principal case. To defeat provisional
sentence, the defendant bears the onus of demonstrating on a balance of probabilities that his version is
correct and that he will in all probability succeed in the principal case.

If the probabilities are evenly balanced, provisional sentence must be granted (Allied Holdings v
Myerson). This is the major advantage of provisional sentence over summary judgment from the plaintiff’s
perspective. In summary judgment, if the probabilities are evenly balanced, summary judgment must be
refused.

'May order the defendant to file a plea.' The use of the word 'may' in the subrule indicates that the court's
power to order a defendant to file a plea is discretionary and that the right to deliver a plea is exercisable if
the court makes an order to that effect.

It is not clear whether or not a judgment refusing provisional sentence renders the matter res judicata and
precludes the plaintiff from issuing an illiquid summons to prosecute his claim to final judgment. It has, on
the one hand, been suggested that the word 'provisional' in the phrase 'provisional sentence' relates to the
sentence only if it is granted and not to the unqualified refusal thereof. On the other hand, it has been
stressed that proceedings for provisional sentence are interlocutory in their nature and that the composite
nature of a provisional sentence summons may have masked the essential nature of provisional sentence
as a form of interim relief. Erasmus submits that where a plaintiff is barred from entering the principal case
on a provisional sentence summons after provisional sentence was refused and no order was made as to
the future conduct of the proceedings, the plaintiff is entitled to prosecute his or her claim by way of an
illiquid action.

Subrule (9): 'The plaintiff shall on demand furnish…security de restituendo.' Once provisional sentence has
been granted the plaintiff is entitled to immediate payment or, failing that, to issue a writ of execution
against the defendant's property. The plaintiff's right is a qualified one: the plaintiff is entitled to solutio
fiduciaria, payment under security. If the plaintiff cannot find acceptable security, he is not entitled to
provisional relief and must wait for his money until (and if) he can obtain a final judgment in the principal
case. The plaintiff does not have unlimited time to furnish security.

Subrule (10): 'Any person against whom provisional sentence has been granted.' Where a provisional
sentence judgment is given by default it can be rescinded either in terms of Rule 42(1) or under the
common law but not under Rule 31(2)(b).
'He shall have satisfied the amount of the judgment…and taxed costs.' The provisions of this subrule are
peremptory. Payment or satisfaction of the provisional judgment cannot take place in a manner other than
payment to the plaintiff under security de restituendo or upon levy of execution of a warrant issued by the
registrar.

'Or if the plaintiff on demand fails to furnish due security…’ Where a defendant files a notice which mirrors
the wording of subrule 8(9) and the plaintiff fails to furnish security pursuant thereto, such failure is a failure
as contemplated in subrule 8(10) and the defendant is entitled to enter into the principal case.

Gautschi commentary

Provisional sentence is the preferred procedure for any plaintiff armed with a liquid document since, by
virtue of the onus on the defendant, it permits the plaintiff to succeed despite disputes of fact on paper
(compare to, say, summary judgment where the plaintiff would lose if a dispute of fact arises).

A provisional sentence is only an interlocutory order, because the defendant can pay the judgment amount
and enter the principal case. Nevertheless it affords the plaintiff a powerful remedy because frequently the
grant of provisional sentence is the end of the matter.

The liquid document must be signed, or deemed to be signed, by the defendant or his agent. A foreign
judgment is an example of a document which is deemed to be signed by the defendant.

The document must reflect an acknowledgment of indebtedness. It has been held to be sufficient if the
acknowledgment of debt is given in respect of an undertaking by the debtor to advance an amount of
money in the future, provided the undertaking to advance the money is binding and unconditional in an
amount confirmed ex facie the document.

The acknowledgment must be unconditional. An exception to this rule is where payment is subject to the
fulfilment of a simple condition. A simple condition is one which is inherently capable of speedy proof by
means of affidavit (e.g. the failure to pay an instalment on a due date or the giving of notice). One must
distinguish between the position when the indebtedness itself is contingent upon the happening of an event
(not a liquid document because not an unconditional acknowledgment) and the situation in which only
payment is so subject (remains a liquid document because acknowledgement is subject to a simple
condition).

A document which refers to an unspecified sum, for example a suretyship in respect of debts which might
arise in the future, cannot be rendered liquid by a certificate of indebtedness issued by the creditor, even if
a clause in the document provides that such a certificate will be valid proof for purposes of provisional
sentence. However, a document in which the defendant does acknowledge his indebtedness in a stated
specific sum is liquid for purposes of provisional sentence, even if the document makes provision for a
certificate to prove the balance outstanding. In the latter case, the certificate is not required to establish the
indebtedness, but merely the balance due at any point in time, and therefore does not affect the liquidity of
the document. A useful test in this regard is to consider whether the document meets the criteria for a liquid
document without a certificate.

A plaintiff can claim less than the amount specified in the document without explanation.

If the original document cannot be located, provisional sentence will not be granted. However, a certified
copy of a mortgage bond will suffice (because a mortgage bond is not a negotiable instrument, unlike a
cheque).

Documents in brief for an unopposed action for provisional sentence:

(i) the provisional sentence summons to which will be attached the liquid document (the original liquid
document will be in the brief and must be handed up at the hearing);

(ii) return of service; and

(iii) notice of set down.

The grounds on which the defendant may dispute liability include:

(a) disputing the authenticity of the defendant’s signature or that of his agent or his agent’s authority;

(b) non-compliance with the Rules;

(c) contractual defences; and

(d) raising a liquid or illiquid counterclaim.

Provisional sentence is not intended to be a weapon to terrorise the defendant into paying the debt, but it
often has that effect.

Case law

Twee Jonge Gezellen v Land & Agricultural Bank of SA (CC, 2011)

The constitutional right of access to courts is a right to a fair public hearing, not a right to a trial, and in most
cases the provisional sentence procedure does not unfairly limit a defendant's right to such a hearing. This
is due to two principles built into the provisional sentence procedure:

1. the principle that the plaintiff is obliged to establish on a balance of probabilities that the defendant
unconditionally acknowledges liability for the amount claimed; and

2. the principle that the defendant is afforded an opportunity to set out his defence on affidavit, thus
enabling the court to weigh up the opposing versions.
It is, however, possible for a defendant with a solid defence to find the barrier created by the provisional
sentence procedure to be insurmountable.

This might happen where the defendant is unable to establish a defence without recourse to oral evidence
or cross-examination of the plaintiff's witnesses, or both. It might, in the case of mutually contradictory
versions, be virtually impossible to predict which version will be accepted at trial. The court will view the
prospects of success as evenly balanced, and provisional sentence will follow, obliging the defendant to
pay the full judgment debt to enter into the principal case, and this, despite the fact that he never had the
opportunity properly to present a defence that in the court's estimation had an even chance of succeeding.
And if he is unable to pay, the judgment will become final.

The result is that, even though the defendant had an equal chance of winning, provisional sentence
procedure deprived him of that chance. The Court held that it was clear that, in these narrowly described
circumstances, the provisional sentence procedure constitutes a limitation of the defendant's right to a fair
hearing.

Thus, in summary, provisional sentence procedure constitutes a limitation of a defendant's right to a fair
hearing only where:

(i) the nature of the defence raised does not allow the defendant to show a balance in his favour
without the benefit of oral evidence; and

(ii) the defendant is unable to satisfy the judgment debt.

Absent either one of these requirements, the Court held that the provisional sentence procedure does not
limit the defendant's right to present his or her case, and thus the right to a fair hearing, in any way.

The Court held that the provisional sentence procedure would be constitutionally consistent if the common
law was developed so that courts have a discretion to refuse provisional sentence only where the
defendant could demonstrate the following circumstances:

1. an inability to satisfy the judgment debt;

2. an even balance of probabilities / prospects of success in the main case on the papers; and

3. a reasonable prospect that oral evidence may tip the balance of prospective success in his favour.

The Court therefore developed the common law in this respect.

Rich v Lagerway (AD, 1974)

It is not the type of transaction which determines whether the related document signed by the debtor is one
upon which provisional sentence may properly be granted, but whether the document upon which it is
based is a liquid document.

Where payment of a debt under a liquid document is dependent upon the fulfilment of a simple condition
and it is so alleged in the summons, the word "simple" connotes a condition or event of a kind unlikely to
give rise to a dispute, or, where it is disputed, is inherently capable of speedy proof by means of affidavit
evidence.

If payment is dependent upon the fulfilment of a condition or the happening of an event, which can only be
proved by extrinsic evidence, provisional sentence can only be granted if the case falls within the rule
formulated in Pepler v Hirschberg, namely, that one must distinguish between the position when the
indebtedness itself is contingent upon the happening of an event and the situation in which only payment is
so subject. Therefore, if, for example, payment is conditional upon the performance by the plaintiff of
obligations in terms of the document relied upon, it does not, without more, entitle him to rely on an
averment in the summons that he has performed his obligations in order to render liquid a document which
is on the face of it illiquid. The Court will of necessity enquire into the nature of the performance upon which
payment is conditional in order to determine whether the case falls within the above-mentioned rule.

In the present case, the Court, on the examination of the terms of the purported liquid document, found that
it was a bilateral contract, imposing reciprocal obligations on both the sellers and the purchasers. A price
was dependent upon the performance by the sellers of the many and varied obligations resting upon them
in terms of the contract. It was therefore held that the document was not a liquid document.

The Court set out the following requirements for a liquid document:

(i) evidences by its own terms, without the need for extrinsic evidence

(ii) an unconditional acknowledgment of indebtedness;

(iii) in an ascertained sum of money;

(iv) the payment of which is due

(v) signed by the defendant or his agent (except for a foreign judgment).

Allied Holdings v Myerson (AD, 1948)

In a provisional sentence case if the court considers that there is no balance of probabilities in favour of
either party in any principal case that may eventuate, then the court must grant provisional sentence in the
plaintiff's favour.

Wollach v Barclays National Bank (AD, 1983)

In a series of decisions since Bro-Trust Finance (Pty) Ltd v Pieters it was held or accepted that
provisional sentence could be granted if a debtor, in a written instrument such as a covering bond or deed
of suretyship, admitted indebtedness for an indeterminate amount subject to a fixed maximum, provided
that the instrument stipulated that the extent of the debtor's liability at any given moment could be proved
by a document such as a certificate, and provided that the plaintiff obtained and relied on such certificate.

This Court held that this approach, which was adopted in the seventies, is in conflict with the requirement of
liquidity in provisional sentence proceedings as it evolved in practice over a long period, and this extension
cannot be justified by practical or other considerations. An acknowledgment that an indeterminate amount
is due, albeit coupled to a fixed maximum, evidently does not comply with the acknowledged requirement of
liquidity, in terms of which the existence and extent of the debt must appear from the written instrument.
Liquidity cannot, so to speak, be retrospectively conferred by the agreed issue of a certificate. Renunciation
of the exceptio non numeratae pecuniae by the debtor will also not satisfy the requirement of liquidity: the
exception, and consequently a renunciation thereof, is meaningful only where a genuine, unconditional
acknowledgement or promise to pay appears from the written instrument.

In the case it appeared that the deed did contain an unqualified admission of liability in a fixed sum but that
it also contained the following provision in connection with facilities for which the debtor had applied at the
respondent bank or in the future might possibly apply for:

"And whereas the said bank has acceded to the abovementioned application and is prepared to enter
into contracts but upon the express condition that it shall always be in the entire discretion of the said
bank to determine the extent, nature and duration of the advances, contracts and other banking facilities
to be made and of the facilities to be so allowed and upon the further special condition of receiving the
security of this bond which shall be deemed to cover the principal sum of the mortgagor's indebtedness
to the said bank at any time up to, but not exceeding the sum of R80 000...".

It was held that by reason of the aforementioned provision the deed could not be regarded as a liquid
document and the appellants' renunciation therein of the exceptio non numeratae pecuniae did not affect its
liquidity. Accordingly, provisional sentence could not be granted.

Note the distinction between the Wollach scenario and where a liquid document contains an unequivocal
acknowledgment of indebtedness for a determinate amount but a proviso that the amount of that
indebtedness may be evidenced by a certificate.

 The key distinction is that in the Wollach scenario, the liquidity of the document itself is dependent
upon the certificate because there is no acknowledgment of indebtedness for a determinate amount
in the document itself.

 In the latter scenario, the liquidity of the document is not so dependent and the certificate only goes
to determine the precise amount of indebtedness. If a contract provides for a certificate to prove
amount outstanding, this is permitted because the primary document remains a liquid document.

 To determine whether a certificate is permissible, ask yourself ‘what would happen if the certificate
 is left off?’ If the certificate is necessary to create liquidity, then the document falls within the
Wollach rule.

Rhoode Construction v Provincial Administration (C, 1976)

In essence a provisional sentence summons is a composite document which serves a twofold purpose. (1)
It serves to institute a definitive judgment (i.e. it initiates the principal case) and at the same time (2) it
serves to institute proceedings for interim relief. The interim relief obtainable in our law is solutia fiduciaria,
payment under security. In the absence of bad faith or an abuse of the process of the Court, therefore, if a
plaintiff cannot find acceptable security it is not entitled to provisional relief, and must wait for its money
until (and if) it can obtain a final judgment in the principal case.

Sadler v Nebraska (W, 1980)

In provisional sentence proceedings further affidavits (to those specified in Rule 8) may be received by the
Court in terms of Rule 27 (3) "in exceptional cases on good cause shown". This is so even though Rule 8
does not expressly permit the filing of further affidavits.

QUESTION

1. Provisional Sentence (10) (2015)

(a) List the safeguards for a defendant that are inherent in provisional sentence.

(b) When would the provisional sentence procedure be constitutionally acceptable?

2. Provisional sentence (5) (2014)

What possible orders can be made at the hearing of an application for provisional sentence?

3. Provisional sentence (15) (2012)

(a) In what circumstances can/should a creditor apply for provisional sentence? (1)

(b) Describe the various steps and procedures that may be followed by a defendant who denies
liability in a claim for provisional sentence. (8)

(c) On what particular aspect(s) does the Plaintiff bear the onus, if any, and how does he discharge
such onus? (6)

2.3 Default judgment / Judgment by confession

- Rule 31
- Rule 26
- Havenga v Parker 1993 (3) SA 724 (T)

31 Judgment on Confession and by Default

(1) (a) Save in actions for relief in terms of the Divorce Act, 1979 (Act 70 of 1979), or nullity of
marriage, a defendant may at any time confess in whole or in part the claim contained in the
summons.

(b) Such confession shall be signed by the defendant personally and his signature shall either
be witnessed by an attorney acting for him, not being the attorney acting for the plaintiff, or
be verified by affidavit.

(c) Such confession shall then be furnished to the plaintiff, whereupon the plaintiff may apply in
writing through the registrar to a judge for judgment according to such confession.

(2) (a) Whenever in an action the claim or, if there is more than one claim, any of the claims is not
for a debt or liquidated demand and a defendant is in default of delivery of notice of intention
to defend or of a plea, the plaintiff may set the action down as provided in subrule (4) for
default judgment and the court may, after hearing evidence, grant judgment against the
defendant or make such order as to it seems meet.

(b) A defendant may within twenty days after he or she has knowledge of such judgment apply
to court upon notice to the plaintiff to set aside such judgment and the court may, upon good
cause shown, set aside the default judgment on such terms as to it seems meet.

(3) Where a plaintiff has been barred from delivering a declaration the defendant may set the action
down as provided in subrule (4) and apply for absolution from the instance or, after adducing
evidence, for judgment, and the court may make such order thereon as to it seems meet.

(4) The proceedings referred to in subrules (2) and (3) shall be set down for hearing upon not less
than five days' notice to the party in default: Provided that no notice of set down need be given to
any party in default of delivery of notice of intention to defend.

(5) (a) Whenever a defendant is in default of delivery of notice of intention to defend or of a plea,
the plaintiff, if he or she wishes to obtain judgment by default, shall where each of the claims
is for a debt or liquidated demand, file with the registrar a written application for judgment
against such defendant: Provided that when a defendant is in default of delivery of a plea,
the plaintiff shall give such defendant not less than 5 days' notice of his or her intention to
apply for default judgment.

(b) The registrar may—

(i) grant judgment as requested;

(ii) grant judgment for part of the claim only or on amended terms;

(iii) refuse judgment wholly or in part;

(iv) postpone the application for judgment on such terms as he or she may consider just;

(v) request or receive oral or written submissions;

(vi) require that the matter be set down for hearing in open court.

Provided that if the application is for an order declaring residential property specially
executable, the registrar must refer such application to the court.
 (c) The registrar shall record any judgment granted or direction given by him or her.

(d) Any party dissatisfied with a judgment granted or direction given by the registrar may, within
20 days after such party has acquired knowledge of such judgment or direction, set the
matter down for reconsideration by the court.

(e) The registrar shall grant judgment for costs in an amount of R200 plus the sheriff's fees if the
value of the claim as stated in the summons, apart from any consent to jurisdiction, is within
the jurisdiction of the magistrate's court and, in other cases, unless the application for default
judgment requires costs to be taxed or the registrar requires a decision on costs from the
Court, R650 plus the sheriff's fees.

Commentary

Subrule (1): 'A defendant may at any time confess…the claim contained in the summons.' This confession
of claim is what is generally known as consent to judgment. A consent to judgment is a formal document
and the provisions of the subrule relating to its execution are peremptory. Thus the consent must be signed
by the defendant personally and his signature must either be witnessed by an attorney who is acting for him
but who is not the attorney acting for the plaintiff or be verified by affidavit, the latter verification meaning
that the defendant himself must verify his signature.

In application proceedings the confession must be to the claim in the notice of motion.

If the claim to be confessed is founded not on the relief claimed in the summons or notice of motion but on
a settlement agreement, Rule 31(1) cannot be applied.

Subrule (1)(c): 'The plaintiff may apply in writing.' The confession as envisaged by the rule must be
furnished to the plaintiff in order to enable him to apply for judgment. The application for judgment may be
made without any notice to the defendant. An application under this subrule is akin to an ex parte
application and full disclosure of the relevant facts is required, particularly as to the defendant's attitude.

The remainder of Rule 31 deals with judgment by default and it is noteworthy that Rule 31(2)-(4) allows for
default judgment to be granted by a Court where the claim is not for a debt or liquidated demand (i.e. a very
wide category of claims); whereas Rule 31(5) allows for default judgment to be granted by the Registrar
where the claim is for a debt or a liquidated demand (i.e. a much narrower category of claims). The purpose
of allowing the Registrar to make these sorts of judgments is to alleviate the burden on Courts in the
narrower category of claims and in uncomplicated matters. Both types of default judgments can be re-
evaluated: in the case of a judgment by the Court Rule 31(2)(b) provides a mechanism by which a
dissatisfied plaintiff or defendant may approach a court to set aside the default judgment on good cause
shown; Rule 31(5)(d) provides a mechanism whereby a dissatisfied party may set the matter down for
reconsideration by the Court.

Subrule (2)(a): 'Defendant is in default of delivery of notice of intention to defend or of a plea.'

Notwithstanding the period allowed for entry of appearance to defend, the defendant may deliver a notice
of intention to defend even after expiration of such period, provided default judgment has not yet been
granted. The effect of this rule is that the late delivery of a notice of intention to defend does not entitle a
plaintiff to apply for or proceed with an application for default judgment. If the notice of intention to defend
was delivered after the plaintiff had lodged the application for judgment by default, he shall be entitled to
costs.

'The plaintiff may set the action down.' The application for default judgment must be set down for hearing
upon not less than five court days notice to the party in default. No such notice need be given to a party in
default of delivery of notice of intention to defend.

'Where the claim is not for a debt or liquidated demand.' A 'liquidated demand' relating to default judgment
covers much more than a 'liquidated amount in money' relating to summary judgment proceedings under
Rule 32.

Under the old Transvaal Rule of Court 42 the words 'liquidated demand' were defined as follows: 'The
words “liquidated demand” shall be here understood to mean a claim for a fixed definite thing, as, for
instance, a claim for transfer or ejectment, for the delivery of goods, for rendering an account by a partner,
for the cancellation of a contract, or the like.' The present rules contain no such definition. The term 'debt or
liquidated demand' can be equated with a claim for a fixed, certain or ascertained amount or thing.

Subrule (2)(b): 'A defendant may…apply to court…to set aside such judgment.' There are three ways in
which a judgment taken in the absence of one of the parties may be set aside, namely in terms of (i) this
subrule, or (ii) Rule 42(1)(a), or (iii) at common law. An application for rescission may be brought under this
subrule where the defendant had been in default of delivery of notice of intention to defend or of a plea.

'Upon notice to the plaintiff.' The application is not on notice of motion, but merely on notice to the plaintiff.

'The court may upon good cause shown.' The subrule does not require that the conduct of the applicant for
rescission of a default judgment be not wilful (i.e. not in wilful default), but it has been held that it is clearly
an ingredient of the good cause to be shown that the element of wilfulness is absent. Hence the element of
wilfulness is one of the factors to be considered in deciding whether or not an applicant has shown good
cause. The requirements for an application for rescission under the subrule have been stated to be as
follows:

(i) The applicant must give a reasonable explanation of his default. If it appears that his default was
wilful or that it was due to gross negligence the Court should not come to his assistance.

(ii) The application must be bona fide and not made with the intention of merely delaying plaintiff's
claim.

(iii) The applicant must show that he has a bona fide defence to plaintiff's claim. It is sufficient if he
makes out a prima facie defence in the sense of setting out averments which, if established at the
trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and
 produce evidence that the probabilities are actually in his favour.

The reasons for the applicant's absence or default must be set out because it is relevant to the question
whether or not default was wilful.

Before a person can be said to be in wilful default, the following elements must be shown:

(i) knowledge that the action is being brought against him;

(ii) a deliberate refraining from entering appearance, though free to do so; and

(iii) a certain mental attitude towards the consequences of the default.

Erasmus submits that (iii) ought to go to whether the default is a deliberate one, i.e. when a defendant with
full knowledge of the circumstances and of the risks attendant on his default freely takes a decision to
refrain from taking action.

An applicant will, therefore, be held not to be in wilful default if he acted on a bona fide but mistaken belief;
or where his default is due to a mistake, or non-compliance with the rules, on his own part or of his or her
attorney; or where the summons had not been properly served.

A rescinded default judgment is a nullity and neither advantage nor disadvantage can flow therefrom; the
applicant is entitled to claim that the status quo ante the judgment be restored.

Subrule (3): 'Where a plaintiff has been barred from delivering a declaration.' Where a plaintiff has been
barred from delivering a declaration the defendant may set the action down for hearing three days before
the day on which the matter is to be heard upon not less than five days' notice to the party in default and
apply for absolution from the instance.

Subrule (5)(a): ‘Is for a debt or liquidated demand.’ A ‘liquidated demand’ relating to default judgment
covers much more than a ‘liquidated amount in money’ relating to summary judgment proceedings under
rule 32. The term ‘debt or liquidated demand’ can be equated with a claim for a fixed, certain or
ascertained amount or thing, and includes a liquidated claim as known at common law.

The term 'debt or liquidated demand' can be equated with a claim for a fixed, certain or ascertained amount
or thing.

‘Shall . . . file.’ This subrule is phrased in peremptory language (‘shall’, ‘moet’) and it would appear that a
plaintiff who wishes to obtain default judgment against a defendant in respect of a claim which is for a debt
or liquidated demand is obliged to lodge a written application with the registrar.

Subrule (5)(b): In terms of this subrule the registrar may make the following orders on application for a
default judgment:
 (i) grant judgment as requested;

(ii) grant judgment for part of the claim only or on amended terms;

(iii) refuse judgment wholly or in part;

(iv) postpone the application for judgment on such terms as he or she may consider just;

(ii) request or receive oral or written submissions;

(iii) require that the matter be set down for hearing in open court.

It is appropriate for the Registrar to exercise her or his power to set the matter down for hearing in open
court (subrule (vii)), and she or he must do so, where evidence is required to prove the amount of the claim
or the cause of action, or where the registrar has a legitimate doubt as to whether judgment should be
granted or not. This ensures that the registrar has the power to refer complicated matters to open court for
determination by a judge.

Proviso: ‘Provided that if the application is for an order declaring residential property specially executable.’
As from 22 December 2017 rule 46A applies whenever an execution creditor seeks to execute against the
residential immovable property of a judgment debtor, including such debtor’s primary residence. In terms of
rule 46A(2)(c) the registrar is prohibited from issuing a writ of execution against the residential immovable
property of any judgment debtor unless a court has ordered execution against such property. The proviso
has therefore been rendered obsolete by the provisions of rule 46A.

The question arises whether the registrar still has the power to declare immovable property of a judgment
debtor other than such debtor’s residential property or primary residence specially executable when
granting default judgment in terms of subrule (5)(b)(i). It is submitted that the registrar has such power for
the simple reason that in terms of rule 46(1)(a)(ii), which came into operation on 22 December 2017, no writ
of execution against the immovable property of any judgment debtor (i.e. immovable property other than
the residential property or primary residence of a judgment debtor) shall be issued unless such property
has been declared specially executable by the court or where judgment is granted by the registrar under
rule 31(5).

Subrule (5)(d): ‘Any party dissatisfied.’ This includes the plaintiff and the defendant but not a non-litigant
having an interest in the action.

‘Within 20 days.’ Only court days as defined in rule 1 are to be included in the computation of the period of
20 days.

‘Set the matter down.’ This subrule does not contain any explicit directions as to the manner of set down. It
is, however, clear that set down of a matter for reconsideration by the court will have to be on notice to the
other parties to the action. It is, accordingly, submitted that such set down is, mutatis mutandis, to be in
accordance with subrule (4), that is, upon not less than five days’ notice to the other parties concerned.

Subrule (5)(e): ‘The value of the claim … is within the jurisdiction of the magistrate’s court.’ In cases which
fall within the jurisdiction of the magistrate’s court, the registrar is competent to grant judgment for costs in
the amount of R200 plus sheriff’s fees. The registrar does not have a discretion to grant attorney and client
costs in a matter which falls within the jurisdiction of the magistrate’s court.

‘In other cases.’ The ‘other cases’ are cases which do not fall within the jurisdiction of the magistrate’s
court. In such cases, the registrar is competent to grant judgment for costs in the amount of R650 plus
sheriff’s fees unless:

(i) the application for default judgment requires costs to be taxed; or

(ii) the registrar requires a decision on costs from the court, where taxation of costs is required in the
application for default judgment, and if there is a prior agreement between the parties that attorney
and client costs will be payable in the event of legal proceedings, the registrar is not only entitled
but also obliged to award attorney and client costs.

Gautschi commentary

Judgment on confession: where a person against whom an action has been instituted wishes not to contest
such an action (in whole or in part), he may consent to judgment being granted, wholly or in part.

A defendant is entitled to consent to judgment in any type of claim. There are, however, two exceptions
where consent is not permitted: where relief is sought in terms of the Divorce Act and where a nullity of
marriage is being sought.

Judgment by default: where the claim is for a debt or liquidated demand and the defendant has given
notice of intention to defend but has failed to deliver his plea, the plaintiff may apply to the registrar for
default judgment. Where the claim is for a debt or liquidated demand and the defendant has failed to
deliver a notice of intention to defend, the plaintiff must apply to the registrar (in order to reduce the burden
on courts).

Where the claim is not for a debt or liquidated demand, the plaintiff will ordinarily be required to lead
evidence before judgment is granted (but certain evidence is permitted to be given on affidavit: see
Havenga).

Where a plaintiff intends applying for default judgment in circumstances where a defendant has not
delivered a notice of intention to defend, the plaintiff is not obliged to serve a notice of set down on the
defendant.

In an application for default judgment where the defendant has not entered an appearance to defend, the
following documents should be in counsel’s brief:
 (i) the summons;

(ii) return of service; and

(iii) notice of set down.

Where the defendant has entered an appearance to defend, but is in default of delivering a plea, the
following documents should be in counsel’s brief:

(i) summons;

(ii) notice of intention to defend (the return of service is unnecessary is a notice of intention to defend
has been delivered);

(iii) notice of bar; and

(iv) notice of set down.

Case law

Havenga v Parker (T, 1993)

It is permissible in the Transvaal Provincial Division, in an application for default judgment in an action for
damages, to place before the Court the evidence of experts, for example, medical practitioners, mechanics,
valuers and others, by way of affidavit. It goes without saying that the Court retains the power to require
viva voce evidence where further information is required ,and such evidence is considered advisable.

QUESTIONS

1. In what actions, when and to what extent may a defendant confess the claim contained in the
summons? (5) (2011)

2.4 Summary judgment

- Rule 32
- Breitenbach v Fiat (SA) (Pty) Ltd 1976 (2) SA 226 (T)]
- Louis Joss Motors (Pty) Ltd v Riholm 1971 (3) SA 452 (T)
- Fischereigesellschaft v African Frozen Products 1967 (4) SA 105 (C)

32 Summary Judgment

(1) Where the defendant has delivered notice of intention to defend, the The plaintiff may after
defendant delivered plea apply to court for summary judgment on each of such claims in the
summons as is only—
 (a) on a liquid document;

(b) for a liquidated amount in money;

(c) for delivery of specified movable property; or

(d) for ejectment;

together with any claim for interest and costs.

(2) The plaintiff shall within 15 days after the date of delivery of notice of intention to defend, deliver
notice of application for summary judgment, together with an affidavit made by himself or by any
other person who can swear positively to the facts verifying the cause of action and the amount, if
any, claimed and stating that in his opinion there is no bona fide defence to the action and that
notice of intention to defend has been delivered solely for the purpose of delay. If the claim is
founded on a liquid document a copy of the document shall be annexed to such affidavit and the
notice of application for summary judgment shall state that the application will be set down for
hearing on a stated day not being less than 10 days from the date of the delivery thereof.

(3) Upon the hearing of an application for summary judgment the defendant may—

(a) give security to the plaintiff to the satisfaction of the registrar for any judgment including
costs which may be given, or

(b) satisfy the court by affidavit (which shall be delivered before noon on the court day but one
preceding the day on which the application is to be heard) or with the leave of the court by
oral evidence of himself or of any other person who can swear positively to the fact that he
has a bona fide defence to the action; such affidavit or evidence shall disclose fully the
nature and grounds of the defence and the material facts relied upon therefor.

(4) No evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in subrule
(2), nor may either party cross-examine any person who gives evidence viva voce or on affidavit:
Provided that the court may put to any person who gives oral evidence such questions as it
considers may elucidate the matter.

(5) If the defendant does not find security or satisfy the court as provided in paragraph (b) of subrule
(3), the court may enter summary judgment for the plaintiff.

(6) If on the hearing of an application made under this rule it appears—

(a) that any defendant is entitled to defend and any other defendant is not so entitled; or

(b) that the defendant is entitled to defend as to part of the claim,

the court shall—

(i) give leave to defend to a defendant so entitled thereto and give judgment against the
defendant not so entitled; or

(ii) give leave to defend to the defendant as to part of the claim and enter judgment against him
as to the balance of the claim, unless such balance has been paid to the plaintiff; or

(iii) make both orders mentioned in sub-paragraphs (i) and (ii).

(7) If the defendant finds security or satisfies the court as provided in subrule (3), the court shall give
leave to defend, and the action shall proceed as if no application for summary judgment had been
made.
 (8) Leave to defend may be given unconditionally or subject to such terms as to security, time for
delivery of pleadings, or otherwise, as the court deems fit.

(8A) Where delivery of a declaration is required by these rules and the court, when giving leave to
defend in terms of this rule, has not made an order for the delivery of such declaration within a
specified time, such declaration shall be delivered within 20 days of the date leave to defend has
been given.

(9) The court may at the hearing of such application make such order as to costs as to it may seem
just: Provided that if—

(a) the plaintiff makes an application under this rule, where the case is not within the terms of
subrule (1) or where the plaintiff, in the opinion of the court, knew that the defendant relied
on a contention which would entitle him to leave to defend, the court may order that the
action be stayed until the plaintiff has paid the defendant's costs; and may further order that
such costs be taxed as between attorney and client; and

(b) in any case in which summary judgment was refused and in which the court after trial gives
judgment for the plaintiff substantially as prayed, and the court finds that summary judgment
should have been granted had the defendant not raised a defence which in its opinion was
unreasonable, the court may order the plaintiff's costs of the action to be taxed as between
attorney and client.

Commentary

The rule was designed to prevent a plaintiff's claim, based upon certain causes of action, from being
delayed by what amounts to an abuse of the process of the court. In certain circumstances, therefore, the
law allows the plaintiff after the defendant has entered appearance, to apply to court for judgment to be
entered summarily against the defendant, thus disposing of the matter without putting the plaintiff to the
expense of a trial.

The remedy provided by the rule has for many years been regarded as an extraordinary and a very
stringent one in that it closes the doors of the court to the defendant and permits a judgment to be given
without a trial. In Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture the SCA, in holding
that the time has perhaps come to discard labels such as 'extraordinary' and 'drastic', stated:

“The rationale for summary judgment proceedings is impeccable. The procedure is not intended to
deprive a defendant with a triable issue or a sustainable defence of her/his day in court. After almost a
century of successful application in our courts, summary judgment proceedings can hardly continue to
be described as extraordinary. First, an examination of whether there has been sufficient disclosure by a
defendant of the nature and grounds of his defence and the facts upon which it is founded. The second
consideration is that the defence so disclosed must be both bona fide and good in law. Having regard to
its purpose and its proper application, summary judgment proceedings only hold terrors and are "drastic"
for a defendant who has no defence.”

The remedy should be resorted to and accorded only where the plaintiff can establish his claim clearly and
the defendant fails to set up a bona fide defence.

The application for summary judgment is supported by an affidavit which must comply with Rule 32(2). The
plaintiff must not go into the merits of the matter; he must confine himself to what the rule allows; nor may
he file replying affidavits or cross-examine the defendant if the latter gives oral evidence. The procedure is
intended neither to give the plaintiff a tactical advantage in the trial nor to provide a preview of the
defendant's evidence or to limit the defences to those disclosed in the answering affidavit.

Furthermore the rule is not intended to replace the exception as a test of one or other of the parties' legal
contentions or in effect to shift the onus (on claims based on an open account).

Subrule (1): 'Notice of intention to defend.' Delivery of a notice of intention to defend is a prerequisite to an
application for summary judgment; unless the defendant has entered appearance to defend the procedure
cannot be adopted. It has been held that once appearance to defend has been entered and the plaintiff
thereafter files a declaration or takes a further procedural step, he thereby waives his right to ask for
summary judgment, but not in a case where the declaration was attached to the summons for the sake of
convenience only and before appearance to defend was entered.

'The plaintiff.' The wording of the rule would appear clearly to limit the right to apply for summary judgment
to a plaintiff in convention.

'Such claims in the summons as is only.' It is a condition precedent to an application for summary judgment
that the claim(s) upon which the application is based shall be one or more of those listed in subrule (1). If
the claim is not one listed, the procedure of Rule 32 does not apply. If the summons contains several
claims, some of which are not within the terms of Rule 32(1), summary judgment can be applied for in
respect of those claims which are of the nature specified in the rule. The remainder of the claims will
proceed to trial in the ordinary manner.

Subrule (1)(a): 'Liquid document.' The action underlying summary judgment proceedings under this subrule
is based, not on a liquid claim, but on a liquid document. The term 'liquid document' in this subrule has the
same meaning as in provisional sentence proceedings. Whether or not a document is properly describable
as a liquid document is not always of great importance for an application under this rule, for if the document
is not liquid it will in any event more often than not support a claim for summary judgment under subrule (1)
(b).

Subrule (1)(b): 'Liquidated amount in money.' Under Rule 31(2)(a) default judgment may be granted upon
claims for a 'debt or liquidated demand' in the event of the defendant failing to enter an appearance to the
summons. Care must be taken in applying decisions upon such applications to applications for summary
judgment, for a 'liquidated demand' relating to default judgment covers much more than the words
'liquidated amount in money' in this subrule.

A liquidated amount in money is an amount which is either agreed upon or which is capable of speedy and
prompt ascertainment. Implied terms in a contract of sale that a reasonable price (i.e. a price ordinarily
charged by persons who deal in articles such as the one sold at the time and place of sale) is intended to
be paid, normally do not present difficulties of proof and the quantum can usually be ascertained speedily
and promptly.

Subrule (1)(c): 'Delivery of specified movable property.' The summons must specify the movable property
with sufficient particularity to enable it to be identified from the description given in the summons. If there is
an alternative claim for the value of the property, or for damages in lieu of the return of the property, then,
since both these alternatives are unliquidated claims, the court may grant the prayer for delivery of the
property but will refuse to grant the alternative(s).

Subrule (2): 'Within 15 days after the date of delivery of notice…to defend.' This means court days. The
plaintiff may still apply for summary judgment despite the delivery of a plea within the 15-day period.

'Notice of application.' This means the short form of notice. The notice must state that the application will be
set down for hearing on a stated day not being less than 10 days from the date of delivery of the
application.

'Together with an affidavit.' The notice of application for summary judgment must be accompanied by an
affidavit which meets the requirements of the subrule. It has been held that although a court has the power
to condone mere technical non-compliance with the provisions of Rule 32(2), it cannot condone non-
compliance with the safeguards built into that subrule for the benefit of defendants. If the claim is founded
on a liquid document, a copy of the document must be annexed to the affidavit.

'By himself or by any other person.' Any person who can swear positively to the facts may make an affidavit
in support of the application; the subrule does not require that the supporting affidavit be made by the
plaintiff himself. It has been held that no special authority by the plaintiff is required for the validity or
effectiveness of the affidavit made by another person. The essential requirement is that such other person
should state, at least, that the facts are within his personal knowledge. Just as the deponent to an affidavit
in motion proceedings need not be authorised by the party concerned to depose to the affidavit, so it is that
the deponent to the verifying affidavit filed in terms of this subrule need not be authorised by the plaintiff to
depose to the affidavit.

'Who can swear positively.' Subrule (2) contemplates the affidavit being made by the plaintiff himself or by
some other person 'who can swear positively to the facts'. Generally speaking, before a person can swear
positively to facts in legal proceedings, they must be within his personal knowledge. For this reason the
practice has been adopted of requiring that a deponent to an affidavit in support of summary judgment,
other than the plaintiff himself (who is not required to do more than assert that he can positively swear to
the facts), should state that the facts are within his personal knowledge unless such knowledge appears
from other facts stated. The mere assertion by a deponent that he 'can swear positively to the facts' (an
assertion which merely reproduces the wording of the subrule) is not sufficient, unless there are good
grounds for believing that the deponent fully appreciated the meaning of these words.

Where the plaintiff is a company and the deponent is authorised by the company to swear to the he
affidavit, and the deponent does not state in his affidavit the grounds, indicating only that the facts deposed
to by him are within his personal knowledge, the court will none the less not hold the affidavit to be
defective for that reason, as long as the deponent is someone who would ordinarily be presumed to have
personal knowledge of the matter. Thus it has been held that the managing director of a company is
presumed to be familiar with the facts in an affidavit deposed to by him and dealing with the affairs of the
company. An affidavit by a director of a company is not sufficient, for it does not follow that a director knows
anything about the dealings of the company of which he is a director, unless it appears from the affidavit as
a whole or from all the other documents relating to the proceedings, that he 'can swear positively to the
facts'.

'Verifying the cause of action.' This subrule must be read as if a comma were inserted after the word 'facts'.
Thus, it is clear that the word 'verifying' does not qualify the word 'facts' and forms no part of the definition
of the 'any other person' who may make the affidavit. The word 'verifying' and the words 'and stating' qualify
the same subject-matter and relate to the content of the affidavit. In order to comply with the rules, the
affidavit must therefore:

(i) be made by the plaintiff himself or by any other person who can swear positively to the facts;

(ii) contain a verification of the cause of action and the amount, if any, claimed; and

(iii) contain a statement by the deponent that in his opinion there is no bona fide defence to the claim
and that appearance to defend has been entered solely for the purposes of delay.

If the verifying affidavit is not technically correct due to some obvious or manifest error which caused no
prejudice to the defendant and there had been substantial compliance with the Rules, the application would
still be granted if the defendant's opposing affidavit makes it clear that the defendant knew and appreciated
the plaintiff's case against him.

Verification is done simply by referring to the facts alleged in the summons; it is unnecessary to repeat the
particulars. All the facts supporting the cause of action must be verified. If there are two or more claims in
the summons and summary judgment is sought on all of them, all must be verified; if only one is verified,
the court can grant summary judgment on the verified claim.

The affidavit in support of summary judgment should not set out evidence other than the facts positively
sworn to by the deponent. No annexures to plaintiff's affidavit are allowed, except if the claim is founded on
a liquid document, in which instance a copy of the document must be annexed to the affidavit.

'Stating that in his opinion.' This averment is essential. A failure to make the averment will result in
summary judgment being refused.

'No bona fide defence.' The deponent merely has to state that in his opinion there is no defence: the means
of source of his knowledge does not have to be set forth.
Subrule (3): General. The defendant can attack an application for summary judgment on any ground,
including the admissibility of evidence in the plaintiff's verifying affidavit. In terms of this subrule the
defendant may:

(i) satisfy the court by affidavit or, with the leave of the court, by oral evidence that he has a bona fide
defence to the action; or

(ii) give security to the plaintiff to the satisfaction of the registrar for any judgment, including costs,
which may be given.

An affidavit should be filed even if only legal objections to the application for summary judgment are raised.

Subrule (3)(a): 'Give security.' The words 'give security' in this subrule mean that the security must be
sufficient to meet the demands set out in the summons. The defendant must also give security for costs.

Subrule (3)(b): 'Satisfy the court by affidavit.' The defendant's affidavit must be made by the defendant
himself or by any other person who can swear positively to the fact that the defendant has a bona fide
defence to the action.

'Satisfy' does not mean 'prove'. What the rule requires is that the defendant set out in his affidavit facts
which, if proved at the trial, will constitute an answer to the plaintiff's claim . Only facts which the court can
take account of must be alleged. Thus, for example, it was held that secondary evidence as to documents
and hearsay evidence are inadmissible.

Affidavits in summary judgment proceedings are customarily treated with a certain degree of indulgence,
and even a tersely stated defence may be a sufficient indication of a bona fide defence for the purpose of
the rule. If, however, the defence is averred in a manner which appears in all the circumstances to be
needlessly bald, vague or sketchy, that will constitute material for the court to consider in relation to the
requirement of bona fides.

'Bona fide defence.' All that the court enquires, in deciding whether the defendant has set out a bona fide
defence, is:

(i) whether the defendant has disclosed the nature and grounds of his defence; and

(ii) whether on the facts so disclosed the defendant appears to have, as to either the whole or part of
the claim, a defence which is bona fide and good in law.

Bona fides in the subrule cannot be given its literal meaning; the subrule does not require the defendant to
establish his bona fides; it is the defence which must be bona fide. The subrule does not require the
defendant to satisfy the court that his allegations are believed by him to be true. It will be sufficient if the
defendant swears to a defence, valid in law, in a manner which is not inherently or seriously unconvincing;
or, put differently, if his affidavit shows that there is a reasonable possibility that the defence he advances
may succeed on trial.

If it is apparent from his affidavit that the defendant is not bona fide, he will fail in his defence because in
such a case his defence, too, cannot be bona fide in the sense set out in the previous paragraph. A
defendant will therefore fail if it is clear from his affidavit that he is advancing a defence simply to delay the
obtaining of a judgment to which the defendant well knows that the plaintiff is justly entitled.

The defendant is not at this stage required to persuade the court of the correctness of the facts stated by
him or, where the facts are disputed, that there is a preponderance of probabilities in his favour, nor does
the court at this stage endeavour to weigh or decide disputed factual issues or to determine whether or not
there is a balance of probability in favour of the one party or another. The court merely considers whether
the facts alleged by the defendant constitute a good defence in law and whether that defence appears to be
bona fide.

The subrule does not require that a defendant, who relied on the excipiability of the claim, had to have filed
the exception in terms of Rule 23. He merely needs to base his opposition on the excipiability of the claim
as formated.

The defendant is entitled to attack the application on any aspect, including the locus standi of the plaintiff or
the admissibility of the evidence tendered in the plaintiff's affidavit. In general the defence raised must
comply with the following principles:

(i) The defence must go to the merits of the application and not consist merely of an attack on the
language of the summons and the plaintiff's affidavit, nor is it sufficient for a defendant merely to
state that he has no knowledge of the allegations in the plaintiff's summons or that he cannot
comment on the plaintiff's claim.

(ii) The defence raised must be valid in law, not merely an unenforceable moral right or inability to
pay.

(iii) The defendant is not required to disclose the whole of his defence; it is sufficient if he discloses the
'nature and grounds' of a bona fide defence and the 'material facts relied upon therefor'.

(iv) Purely technical defences are not permitted.

The defendant may rely on an intended counterclaim in an unliquidated amount which exceeds the
plaintiff's claim and must state the extent of such counterclaim. In the event of the counterclaim being less
than the plaintiff's claim, the defendant will have a defence if he pays the difference into court.

Where the plaintiff claims the delivery of specified movable property which at all times was his own property
(although handed over to defendant in terms of a contract since cancelled) and the defendant has no legal
right to retain the property, the mere fact that the defendant has an unliquidated counterclaim for damages
against the plaintiff affords him no defence to an application for summary judgment.

'Disclose fully the nature and grounds of the defence and the material facts relied upon therefor.' The
defendant must disclose fully the 'nature' and the 'grounds' of his defence and the 'material facts relied
upon therefor'. It is submitted that the 'nature' of the defence relates to the character or kind of defence; it is
further submitted that 'grounds' as the word is used in the subrule relates to the facts upon which the
defence is based. Thus, in order to meet the requirements laid down in the subrule, there must be a
sufficiently full disclosure of the material facts to persuade the court that what the defendant has alleged, if
it is proved at the trial, will constitute a defence to the plaintiff's claim.

The subrule allows the defendant, by leave of the court, to present oral evidence as an alternative to an
opposing affidavit, not in addition to it.

Subrule (4): 'No evidence may be adduced by the plaintiff.' This is an absolute prohibition and the plaintiff
must stand or fall by his verifying affidavit delivered in terms of subrule (2). The attachment of a letter or
other document to the application for summary judgment, other than the liquid document provided for in
subrule (2), amounts to evidence which is not permitted by the rule. The inclusion of evidence in the
affidavit, or the annexure of a letter thereto, will not invalidate the application; such evidence or letter will
simply be ignored by the court.

Subrule (5): 'The court may enter summary judgment.' The word 'may' in this subrule confers a discretion
on the court, so that even if the defendant's affidavit does not measure up fully to the requirements of
subrule (3)(b) of Rule 32, the court may nevertheless refuse to grant summary judgment if it thinks fit.

Subrule (7): 'If the defendant finds security or satisfies the court as provided in subrule (3)'. The court is
empowered to give leave to defend in both cases, i.e. whether the defendant finds security or satisfies the
court of his bona fide defence by way of affidavit.

Rescission of summary judgment. A summary judgment can be rescinded under the common law. A
summary judgment, if erroneously granted, may be rescinded in terms of Rule 42. It cannot be rescinded
under rule 31(2)(b).

Appeal. The refusal of summary judgment is an interlocutory order and is not appealable. The grant of
summary judgment is a final order and appealable. The refusal to rescind a summary judgment that was
granted by default is appealable.

Circumstances where the knowledge of the deponent depends on collected data or computer
records

In Rees v Investec Bank (2014, SCA) the Supreme Court of Appeal noted that the grant summary
judgment is a fact-based enquiry; every case will be decided on its own facts. Many summary judgment
applications are brought by financial institutions and large corporations. The Supreme Court of Appeal
thus held that first-hand knowledge of every fact cannot and should not be required of the official who
deposes to the affidavit on behalf of such financial institution or large corporation.

It is, however, not sufficient that a person simply has control over and access to the records upon which
the claim for summary judgment is founded (ABSA v Le Roux (WCC, 2014). It is necessary for the
deponent to have some direct knowledge and personal knowledge of the relevant facts pertaining to the
claim.

In ABSA v Le Roux, the Court, which adopted a more stringent standard than many of the cases, held
that “[t]he deponent must have direct knowledge of most, if not all, of the facts that the plaintiff will have to
prove to establish its claim in the action’. The Court held that the Bank had not complied with Rule 32 as,
among other things, the relevant suretyship obligations where concluded in the Western Cape, while the
deponent was employed in Johannesburg.

By contrast, in Barclays v Love (1975, D) it was held that the Bank’s affidavit was sufficient. The
deponent was “the manager of the very branch of the bank at which overdraft facilities were enjoyed by
the defendant”. The Court held that the nature of the deponent’s office in itself suggested “very strongly
that he would in the ordinary course of his duties acquire personal knowledge of the defendant’s financial
standing with the bank”. It was not required, however, that the deponent have personal knowledge of
every withdrawal of money made by the defendant or that he personally would have made every entry in
the bank’s ledgers or statements of account.

The Supreme Court of Appeal considered the matter in Rees v Investec Bank (2014, SCA). In the case
the deponent was the bank’s recoveries officer. The Court noted that:

 she relied on the information at her disposal which she obtained in the course of her duties as the
bank’s recoveries officer;

 in the discharge of her duties as such she would have had access to the documents in question
and upon a perusal of those documents she would acquire the necessary knowledge of the facts to
which she deposed in her affidavit;

 the deponent had been corresponding with the debtor’s attorney in regard to the principal debtors’
delinquent accounts and had also addressed letters of demand to them, receiving letters in
response which canvassed the appellants’ defences.

The Court held that these facts showed that the deponent was able positively to swear to the relevant
facts and had the requisite personal knowledge.

The Court also noted that it was not significant that the deponent did not sign the certificates of
indebtedness nor was present when the suretyship agreements were concluded. The Court held that
these facts should not be elevated to essential requirements.
In Delsheray (2014, WCC), the Court considered the admissibility of evidence adduced on the basis of a
deponent’s reference to computerised records, as distinct from his first-hand knowledge of the underlying
facts. The Court held that the deponent’s affidavit was sufficient for the purposes of Rule 32. What was
definitive was that the deponent in that matter made it clear that he dealt with the account in question on a
day to day basis and thereby gave the court reason to believe that he had read the summons and
particulars of claim on an informed basis.

In summary, it appears that the following facts can be distilled from the above cases:

 First-hand knowledge of every fact cannot and should not be required of the official who deposes
to the affidavit on behalf of a financial institution or large corporation (Rees v Investec Bank).

 It is, however, not sufficient that a person merely has control over and access to the records upon
which the claim for summary judgment is founded (ABSA v Le Roux).

 It is necessary for the deponent to have some direct knowledge and personal knowledge of the
relevant facts pertaining to the claim (ABSA v Le Roux). The level of the deponent’s personal
involvement in the matter will be significant in determining whether she has sufficient knowledge to
depose to the affidavit (Rees v Investec Bank). Personal knowledge is not necessarily the same
as actual personal involvement in, or first-hand experience of, the underlying transactions (Future
Indefinite Investments).

 Whether a person has sufficient personal and direct knowledge of the relevant facts will depend on
the circumstances of the case. The following considerations have be held to indicate that a person
has the requisite personal knowledge:

o The deponent “had been corresponding with the appellants’ attorney in regard to the
principal debtors’ delinquent accounts and had also addressed letters of demand to them,
receiving letters in response which canvassed the appellants’ defences” (Rees v Investec
Bank). In other words, the deponent had direct involvement in the recovery and
management of the debt.

o The fact that the deponent would in ordinary course of her duties acquire personal
knowledge of the defendant’s financial standing with the bank (Rees v Investec Bank;
Barclays v Love). Similarly, it is relevant that the deponent deals with the relevant account
on a day-to-day basis (Delsheray).

o The fact that the deponent was employed at the branch of the institution at which the debt
was undertaken has been held to be significant (Barclays v Love). By corollary, the fact
that the deponent was employed at a geographically distinct branch may mean that the
deponent does not have the necessary personal knowledge (ABSA v Le Roux) as this
 suggests that the deponent’s personal knowledge derives entirely from a consideration of
the relevant documents and data (Future Indefinite Investments).

Gautschi commentary

Summary judgment may only be claimed for:

(i) a claim for a liquidated amount in money;

(ii) a claim based on a liquid document;

(iii) a claim for delivery of specified movable property;

(iv) a claim for ejectment; and

(v) consequential claims for interest and costs.

There is no provision for the filing of any affidavit by the plaintiff seeking summary judgment other than the
affidavit in support of summary judgment (i.e. a replying affidavit is not permitted).

In the case of an unopposed application for summary judgment, the following documents should be in
counsel’s brief:

(i) the summons;

(ii) the notice of intention to defend (once this has been filed it becomes unnecessary to prove service
of the summons);

(iii) application for summary judgment and accompanying affidavit; and

(iv) notice of set down.

The typical order which the court will grant if the defendant is given leave to defend the action would be as
follows:

(i) The application for summary judgment is refused.

(ii) The defendant is granted leave to defend.

(iii) The costs of the application will be costs in the cause.

Case law

Breitenbach v Fiat (SA) (T, 1976)

Rule 32(3)(b) which requires that the Court must be satisfied that the defendant has a bona fide defence
must not be given its literal meaning. It will suffice if the defendant swears to a defence, valid in law, in a
manner which is not inherently and seriously unconvincing. Likewise, the word 'fully' in Rule 32 (3) should
not be given its literal meaning: all that is called for is that the statement of material facts be sufficiently full
to persuade the Court that what the defendant has alleged, if it is proved at the trial, would constitute a
defence to the plaintiff's claim. If the defence is averred in a manner which appears in all the circumstances
to be needlessly bald, vague or sketchy, that would constitute material for the Court to consider in relation
to the requirements of bona fides.

Louis Joss Motors v Riholm (T, 1971)

The Court held that rescission of a summary judgment cannot be claimed under Rule 31(2) (b). A defendant
is certainly not in default of a plea where he has delivered notice of an intention to defend and is prevented
from proceeding with his defence by an application for summary judgment under Rule 32. The only Rule
under which the defendant could have applied for the rescission of judgment is Rule 42, but then he would
have been limited to the grounds stated in sub-rule (1), namely, if the judgment: (a) was erroneously sought
or erroneously granted in the absence of any party affected thereby; or (b) was granted as the result of a
mistake common to the parties. A judgment can also be rescinded under the common law on any of the
grounds on which a restitution in integrum would be granted by our law, such as fraud or some other cause.

Fischereigesellschaft v African Frozen Products (C, 1967):

The requirements of the affidavit referred to in Rule of Court 32(2) are the following:

(a) the affidavit should be made by the plaintiff himself or by any other person who can swear
positively to the facts;

(b) it must be an affidavit verifying the cause of action and the amount, if any, claimed; and

(c) it must contain a statement by the deponent that in his opinion there is no bona fide defence to the
action and that notice to defend has been delivered solely for the purpose of delay.

It was further held that in an application for summary judgment a court should not accept an assertion by a
deponent that he 'can swear positively to the facts' as sufficient to satisfy the requirements of Rule 32(2),
and most certainly not unless there appear to be good grounds for thinking that the meaning of these words
was fully appreciated by the deponent. When the Court comes to deal with an affidavit proffered under the
Rule, it should scrutinise it with particular care. It has often been made clear by our Courts that the
deponent to an affidavit of this kind must state at least that the facts are within his personal knowledge,
unless such direct knowledge appears from other facts stated.

QUESTIONS

1. The deponent to an applicant's affidavit in support of an application for summary judgment is a

 Manager, Legal, Customer Debt Management, Personal and Business Banking Credit, a division of
the applicant. The deponent’s affidavit reads as follows:

"It is my function within the Plaintiff to deal with arrear accounts of clients of the Plaintiff. I have full
access to all the Plaintiff's ledgers, books of account and files pertaining to these and all other
accounts. I am able to establish the exact outstanding amount and interest in respect of any account
referred to me. I can therefore in the circumstances state that the facts herein contained fall within my
personal knowledge, I am duly authorised to make this affidavit and can swear positively to facts
contained herein. Unless otherwise stated, all facts herein stated are within my own personal
knowledge."

Would a Court grant summary judgment to the applicant on the strength of this affidavit, even if a
defendant failed to disclose any defence to the plaintiff’s claim? Motivate your answer. (9) (2017)

2. Can an application for summary judgment succeed where the only source of knowledge of the
deponent is based on the plaintiff’s computerised records, as the basis for the affidavit in terms of
Rule 32(2) of the Uniform Rules of Court? Motivate your answer. (5) (2016)

3. List the requirements with which an affidavit in support of an application for summary judgment must
comply. (10) (2011)

4. Under what circumstances may a Court rescind a summary judgment? (5) (2010)

2.5 “Rule 43” procedures

- Rule 43
- Du Preez v Du Preez 2009 (6) SA 28 (T) paras 3—6

43 Matrimonial matters

(1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of
the following matters:

(a) Maintenance pendente lite;

(b) a contribution towards the costs of a pending matrimonial action;

(c) interim custody of any child;

(d) interim access to any child.

(2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief
claimed and the grounds therefor, together with a notice to the respondent as near as may be in
accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the
applicant or his attorney and shall give an address for service within eight kilometres of the office
of the registrar and shall be served by the sheriff.
 (3) The respondent shall within ten days after receiving the statement deliver a sworn reply in the
nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso
facto barred.

(4) As soon as possible thereafter the registrar shall bring the matter before the court for summary
hearing, on ten days' notice to the parties, unless the respondent is in default.

(5) The court may hear such evidence as it considers necessary and may dismiss the application or
make such order as it thinks fit to ensure a just and expeditious decision.

(6) The court may, on the same procedure, vary its decision in the event of a material change taking
place in the circumstances of either party or a child, or the contribution towards costs proving
inadequate.

(7) No attorney or advocate appearing in a case under this rule shall charge a fee of more than
R426,00 if the claim is undefended or R1 066,00 if it is defended, unless the court in an
exceptional case otherwise directs.

(8) No instructing attorney in cases under this rule shall charge a fee of more than R1 491,00 if the
claim is undefended or R2 130,00 if it is defended, unless the court in an exceptional case
otherwise directs.

Commentary

Subrule (1): 'This rule shall apply whenever...' This rule regulates the procedure to be followed in
applications for ancillary relief of an interim nature in matrimonial matters. The rule governs procedure and
does not affect the substantive law. The object of the rule is that applications of this kind should be dealt
with as inexpensively and expeditiously as possible.

This is a special rule governing certain specific applications in contrast with the provisions of Rule 6 which
govern applications in general. The provisions of Rule 6 can find application only in respect of aspects
which are not governed by this Rule. The only such provisions are those relating to urgency contained in
subrules (12)(a) and (12)(b) of Rule 6, but the applicability of those provisions does not mean that an
applicant has a choice which enables him to proceed under Rule 6 and thus escape the limitations imposed
by this rule. There is no appeal from a judgment of a court on any matter governed by the rule.

'A spouse seeks relief.' 'Spouse' includes one who claims to be a spouse, even where that allegation be
denied; in other words the rule also applies where the validity of the marriage or its subsistence is disputed.

A matrimonial action may be 'pending' even though summons has not yet been issued.

Subrule (1)(a): 'Maintenance pendente lite.' It was held in Gunston v Gunston that a wife cannot apply for
maintenance pendente lite under this subrule unless the contemplated lis is a matrimonial one, i.e. an
action for divorce or nullity, and proceedings incidental to such actions. There are certain basic principles
which govern applications under this paragraph:

 Maintenance pendente lite is intended to be interim and temporary and cannot be determined with
the same degree of precision as would be possible in a trial where detailed evidence is adduced.
  The applicant is entitled to reasonable maintenance pendente lite dependent upon the marital
standard of living of the parties, the applicant's actual and reasonable requirements and the
capacity of the respondent to meet such requirements which are normally met from income
although in some circumstances inroads on capital may be justified.

 If a dependent child and the spouse against whom the divorce is sought live in the marital home
and consume household items, the spouse seeking maintenance pendente lite is entitled to such
maintenance to cover the expenditure on household items as increased by consumption of those
items by the dependent child and other spouse.

The court usually orders periodic payments of money but may order that other assets (such as furniture) be
made available for use by the applicant. The court has no jurisdiction under this subrule to award lump sum
payments.

Subrule (1)(b): 'A contribution towards the costs.' The claim for a contribution towards costs in a
matrimonial suit is sui generis. Its basis is the duty of support the spouses owe each other. An applicant for
a contribution towards costs must show that:

(i) if she is the plaintiff in the main action, that she has a prima facie case; if she is the defendant, that
she is defending in good faith; and

(ii) that she has insufficient means of her own.

The sum to be contributed is determined by the court's view of the amount necessary for the applicant
adequately to put her case before the court. The applicant is not entitled to all her anticipated costs, even
though the respondent can well afford to pay them, but only a substantial contribution towards them. In
determining the quantum of the contribution, the court will have regard to the circumstances of the case,
the financial position of the parties and the issues involved in the pending litigation.

Subrule (1)(c): 'Interim custody of any child.' The court will generally be reluctant to upset the status quo
concerning the custody of minor children. The principle of preserving the status quo is, however, subject to
the considerations that the paramount interest of the children must nevertheless prevail and that the status
quo must not constitute an unreasonable state of affairs. Normally young children should go to the mother;
the separation of children from one another should where possible be avoided; and only in exceptional
circumstances will the courts permit children to be placed in the hands of third persons.

The procedure under this rule cannot be used to vary an existing order made by a maintenance court,
though in exceptional circumstances the court may be requested to supplement the order of the
maintenance court.

Subrule (2): 'A sworn statement in the nature of a declaration.' Supporting affidavits are not allowed except
by an order of court under subrule (5). Annexures to affidavits are admissible provided that (a) the contents
thereof constitute admissible evidence, and (b) they are documents which may be annexed to a pleading
such as a declaration or a plea.

Subrule (5): 'Hear such evidence as it considers necessary.' The further evidence which the court may
receive in terms of this subrule may be either viva voce or adduced on affidavit. In either case such
evidence should be received only as a result of a deliberate decision of the court – no party can adduce
such evidence as of right.

Subrule (6): 'On the same procedure.' This means that in the event of a material change in circumstances
as set out in this subrule, an application in terms of Rule 43 can be made.

'In the event of a material change.' This subrule must be strictly interpreted and employed only in the
circumstances set out therein, i.e. where there has been a material change in the circumstances of either
party or a child, or where a contribution towards costs proves inadequate.

Subrule (7): 'No attorney and advocate…shall charge a fee of more than.' The amounts set out in this
subrule are the maximum amounts an attorney and advocate are entitled to charge on any basis, be it party
and party or attorney and client.

'Unless the court in an exceptional case otherwise directs.' In a number of cases counsel were allowed
higher fees where the applications involved questions of law not ordinarily attendant upon applications
under this Rule. Counsel is not entitled to a fee for consultations or for settling affidavits unless the court
considers the matter to be exceptional and gives a direction under this subrule.

Gautschi commentary

The applicant must deliver an affidavit in the nature of a declaration (i.e. short and to the point) setting out
the relief claimed and the grounds. The affidavit is filed and served with a notice to the respondent in the
form set out in Form 17.

The affidavit should contain the following allegaitons:

(i) facts to show the locus standi of the applicant, including an allegation that the deponent is a
spouse;

(ii) facts to indicate that the court has jurisdiction;

(iii) the relief claimed;

(iv) grounds for the relief claimed (details of the marriage, the fact that it still subsists, brief reasons for
the breakdown and an allegation that there are reasonable prospects of success in the main
action.
The respondent must, within ten days of receiving the application, deliver a sworn reply in the nature of a
plea. In default of this he shall be ipso facto barred.

As soon as possible thereafter the registrar has to bring the matter before court for summary hearing on ten
days’ notice to the parties.

Case law

Von Reiche & Basson v Swart (T, 1988)

Rule 43(7) limits counsels' fees in cases under the Rule to R15 for unopposed cases and R25 for opposed
cases and Rule 43(8) limits an instructing attorney's fees for cases under the Rule to R200 for unopposed
cases and R250 for opposed cases. It was clearly the intention of the legislature that these limitations
should apply without qualification to both party-and-party and attorney-and-client costs (i.e. the limitations
apply to both what you can recover from the other side if successful and what you can recover from your
own client).

QUESTIONS

1. What relief is available to an applicant under Rule 43? (4)(2011)

2. What is the maximum fee an advocate may charge for an opposed Rule 43 application? (1)(2011)

3. What relief is available to an applicant under Rule 43? (4) (2008)

4. What is the maximum fee an advocate may charge for an opposed Rule 43 application? [1] (2008)

2.6 Reviews

- Rule 53
- Sections 3, 5, 6, 7 and 8 of the Promotion of Administrative Justice Act, 3 of 2000

53 Reviews

(1) Save where any law otherwise provides, all proceedings to bring under review the decision or
proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-
judicial or administrative functions shall be by way of notice of motion directed and delivered by
the party seeking to review such decision or proceedings to the magistrate, presiding officer or
chairman of the court, tribunal or board or to the officer, as the case may be, and to all other
parties affected—

(a) calling upon such persons to show cause why such decision or proceedings should not be
reviewed and corrected or set aside, and

(b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to
despatch, within fifteen days after receipt of the notice of motion, to the registrar the record
 of such proceedings sought to be corrected or set aside, together with such reasons as he is
by law required or desires to give or make, and to notify the applicant that he has done so.

(2) The notice of motion shall set out the decision or proceedings sought to be reviewed and shall be
supported by affidavit setting out the grounds and the facts and circumstances upon which
applicant relies to have the decision or proceedings set aside or corrected.

(3) The registrar shall make available to the applicant the record despatched to him as aforesaid upon
such terms as the registrar thinks appropriate to ensure its safety, and the applicant shall
thereupon cause copies of such portions of the record as may be necessary for the purposes of
the review to be made and shall furnish the registrar with two copies and each of the other parties
with one copy thereof, in each case certified by the applicant as true copies. The costs of
transcription, if any, shall be borne by the applicant and shall be costs in the cause.

(4) The applicant may within ten days after the registrar has made the record available to him, by
delivery of a notice and accompanying affidavit, amend, add to or vary the terms of his notice of
motion and supplement the supporting affidavit.

(5) Should the presiding officer, chairman or officer, as the case may be, or any party affected desire
to oppose the granting of the order prayed in the notice of motion, he shall—

(a) within fifteen days after receipt by him of the notice of motion or any amendment thereof
deliver notice to the applicant that he intends so to oppose and shall in such notice appoint
an address within eight kilometres of the office of the registrar at which he will accept notice
and service of all process in such proceedings; and

(b) within thirty days after the expiry of the time referred to in subrule (4) hereof, deliver any
affidavits he may desire in answer to the allegations made by the applicant.

(6) The applicant shall have the rights and obligations in regard to replying affidavits set out in rule 6.

(7) The provisions of rule 6 as to set down of applications shall mutatis mutandis apply to the set
down of review proceedings.

Commentary

Section 22 of the Superior Courts Act deals with the grounds upon which the proceedings of an inferior
court may be brought under review. These are:

(a) absence of jurisdiction on the part of the court;

(b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;

(c) gross irregularity in the proceedings; and

(d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent
evidence.

This rule lays down the procedure to be adopted when it is desired to review the decision or proceedings
either of an inferior court or of any tribunal, board or officer performing judicial, quasi-judicial or
administrative functions.
PAJA had its own set of rules of procedure made by the Rules Board (which have subsequently been
declared unconstitutional and are being redrafted).

An applicant is still obliged to proceed by notice of motion; the parties to be joined, cited and served in
effect remain unchanged, save that the person officially in possession of the record is to be invited to:

(i) show cause why the relief sought should not be granted; and

(ii) transmit the record to the registrar.

A failure to follow Rule 53 in reviewing a decision of an administrative organ is not necessarily irregular, as
the rule exists primarily in the interests of an applicant, and an applicant can waive procedural rights. An
applicant can, however, not elect to disregard the provisions of the rule to impinge upon the procedural
rights of a respondent.

The right to seek judicial review may be deferred until the aggrieved person has exhausted domestic
remedies available to him in terms of the governing legislation or, in the case of a private organisation, in
terms of the agreement between him and the organisation concerned.

As a general rule a superior court will not by way of entertaining an application for review interfere with
incompleted proceedings in an inferior court. It will, however, exercise its inherent power to restrain
illegalities in inferior courts in rare cases where grave injustice might otherwise result or where justice might
not by other means be attained.

No statutory period is prescribed within which proceedings for review which are not covered by PAJA must
be brought, but it is clear that they must be brought within a reasonable time. Where it is alleged that the
applicant did not bring the matter to court within a reasonable time, it is for the court to decide:

(a) whether there was an unreasonable delay; and

(b) if so, whether, in all the circumstances, the unreasonable delay ought to be condoned.

Insofar as (b) is concerned, the court exercises a judicial discretion, taking into consideration all the
relevant circumstances. Among these circumstances are the giving of a satisfactory explanation, the
absence of prejudice to the complaining party and the public interest in the finality of administrative
decisions and the exercise of administrative functions.

Under PAJA proceedings for judicial review must be instituted without unreasonable delay and not later
than 180 days after the date on which the person concerned was informed of the administrative action,
became aware of the action and the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons.

Subrule (1): 'All proceedings…shall be by way of notice of motion.' A party who is obliged by this subrule to
bring proceedings by way of notice of motion, in the event of a dispute of fact arising on the papers which
can be resolved only by oral evidence, cannot be penalised on the basis that he should have anticipated
the dispute and proceeded in another way. The provision that all proceedings shall be by way of notice of
motion is not peremptory and in appropriate circumstances the court is entitled to condone non-compliance
with its provisions by, for example, hearing review proceedings brought by way of summons or by way of
notice of motion under Rule 6. Procedure by way of a rule nisi, with or without the grant of interim relief,
may in appropriate cases be utilised in connection with review proceedings under this Rule.

'Bring under review the decision or proceedings.' These words make it clear that the applicability of the
provisions of the rule is not limited to 'proceedings' but also embraces 'decisions' which do not necessarily
comprehend proceedings. Thus the decision of an officer performing quasi-judicial or administrative
functions may be brought under review under the provisions of the rule.

'Of any tribunal.' These words are wide enough to include a domestic tribunal of contractual origin.

Subrule (1)(b):'The record of such proceedings sought to be corrected or set aside.' This subrule is
primarily intended to operate in favour and to the benefit of an applicant in review proceedings and an
applicant is entitled to waive the requirements of the subrule. The keeping of a record is not a prerequisite
for the applicability of the rule; in other words, proceedings may be brought under review despite the fact
that no record of the proceedings sought to be corrected or set aside had been kept.

The whole record of the proceedings sought to be corrected or set aside, whether or not it is relevant to the
application for review, need not be furnished: only that part of the record relevant to the decision or ruling
sought to be reviewed need be furnished.

Subrule (4): 'Amend, add to or vary.' This subrule gives an applicant for review a clear right to amend, add
to or vary his notice of motion and to supplement his affidavit without the consent of the opposite party or
the leave of the court.

Subrule (5): 'Desire to oppose the granting of the order.' A respondent is not obliged to take any step to
oppose an application for review until a copy of the record of the proceedings has been furnished to the
respondent.

Subrule (6): 'Replying affidavits.' Insofar as there are disputes of fact, the respondent's version must be
preferred on the basis of the principles set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd unless some inherent improbability in relation thereto can be demonstrated.

Promotion of Administrative Justice Act, 2000

3 Procedurally fair administrative action affecting any person

(1) Administrative action which materially and adversely affects the rights or legitimate expectations of
any person must be procedurally fair.
(2) (a) A fair administrative procedure depends on the circumstances of each case.

(b) In order to give effect to the right to procedurally fair administrative action, an administrator,
subject to subsection (4), must give a person referred to in subsection (1)-

(i) adequate notice of the nature and purpose of the proposed administrative action;

(ii) a reasonable opportunity to make representations;

(iii) a clear statement of the administrative action;

(iv) adequate notice of any right of review or internal appeal, where applicable; and

(v) adequate notice of the right to request reasons in terms of section 5.

(3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in
his or her or its discretion, also give a person referred to in subsection (1) an opportunity to-

(a) obtain assistance and, in serious or complex cases, legal representation;

(b) present and dispute information and arguments; and

(c) appear in person.

(4) (a) If it is reasonable and justifiable in the circumstances, an administrator may depart from any
of the requirements referred to in subsection (2).

(b) In determining whether a departure as contemplated in paragraph (a) is reasonable and

justifiable, an administrator must take into account all relevant factors, including-

(i) the objects of the empowering provision;

(ii) the nature and purpose of, and the need to take, the administrative action;

(iii) the likely effect of the administrative action;

(iv) the urgency of taking the administrative action or the urgency of the matter; and

(v) the need to promote an efficient administration and good governance.

(5) Where an administrator is empowered by any empowering provision to follow a procedure which is
fair but different from the provisions of subsection (2), the administrator may act in accordance
with that different procedure.

4 Administrative action affecting public

(1) In cases where an administrative action materially and adversely affects the rights of the public, an
administrator, in order to give effect to the right to procedurally fair administrative action, must
decide whether-

(a) to hold a public inquiry in terms of subsection (2);

(b) to follow a notice and comment procedure in terms of subsection (3);

(c) to follow the procedures in both subsections (2) and (3);

(d) where the administrator is empowered by any empowering provision to follow a procedure
which is fair but different, to follow that procedure; or
 (e) to follow another appropriate procedure which gives effect to section 3.

(2) If an administrator decides to hold a public inquiry-

(a) the administrator must conduct the public inquiry or appoint a suitably qualified person or
panel of persons to do so; and

(b) the administrator or the person or panel referred to in paragraph (a) must-

(i) determine the procedure for the public inquiry, which must-

(aa) include a public hearing; and

(bb) comply with the procedures to be followed in connection with public inquiries, as
prescribed;

(ii) conduct the inquiry in accordance with that procedure;

(iii) compile a written report on the inquiry and give reasons for any administrative action
taken or recommended; and

(iv) as soon as possible thereafter-

(aa) publish in English and in at least one of the other official languages in the
Gazette or relevant provincial Gazette a notice containing a concise summary of
any report and the particulars of the places and times at which the report may be
inspected and copied; and

(bb) convey by such other means of communication which the administrator

considers effective, the information referred to in item (a) to the public
concerned.

(3) If an administrator decides to follow a notice and comment procedure, the administrator must-

(a) take appropriate steps to communicate the administrative action to those likely to be
materially and adversely affected by it and call for comments from them;

(b) consider any comments received;

(c) decide whether or not to take the administrative action, with or without changes; and

(d) comply with the procedures to be followed in connection with notice and comment
procedures, as prescribed.

(4) (a) If it is reasonable and justifiable in the circumstances, an administrator may depart from the
requirements referred to in subsections (1) (a) to (e), (2) and (3).

(b) In determining whether a departure as contemplated in paragraph (a) is reasonable and

justifiable, an administrator must take into account all relevant factors, including-

(i) the objects of the empowering provision;

(ii) the nature and purpose of, and the need to take, the administrative action;

(iii) the likely effect of the administrative action;

(iv) the urgency of taking the administrative action or the urgency of the matter; and

(v) the need to promote an efficient administration and good governance.

5 Reasons for administrative action

(1) Any person whose rights have been materially and adversely affected by administrative action and
who has not been given reasons for the action may, within 90 days after the date on which that
person became aware of the action or might reasonably have been expected to have become
aware of the action, request that the administrator concerned furnish written reasons for the
action.

(2) The administrator to whom the request is made must, within 90 days after receiving the request,
give that person adequate reasons in writing for the administrative action.

(3) If an administrator fails to furnish adequate reasons for an administrative action it must, subject to
subsection (4) and in the absence of proof to the contrary, be presumed in any proceedings for
judicial review that the administrative action was taken without good reason.

(4) (a) An administrator may depart from the requirement to furnish adequate reasons if it is
reasonable and justifiable in the circumstances, and must forthwith inform the person making
the request of such departure.

(b) In determining whether a departure as contemplated in paragraph (a) is reasonable and

justifiable, an administrator must take into account all relevant factors, including-

(i) the objects of the empowering provision;

(ii) the nature, purpose and likely effect of the administrative action concerned;

(iii) the nature and the extent of the departure;

(iv) the relation between the departure and its purpose;

(v) the importance of the purpose of the departure; and

(vi) the need to promote an efficient administration and good governance.

(5) Where an administrator is empowered by any empowering provision to follow a procedure which is
fair but different from the provisions of subsection (2), the administrator may act in accordance
with that different procedure.

(6) (a) In order to promote an efficient administration, the Minister may, at the request of an
administrator, by notice in the Gazette publish a list specifying any administrative action or a
group or class of administrative actions in respect of which the administrator concerned will
automatically furnish reasons to a person whose rights are adversely affected by such
actions, without such person having to request reasons in terms of this section.

(b) The Minister must, within 14 days after the receipt of a request referred to in paragraph (a)
and at the cost of the relevant administrator, publish such list, as contemplated in that
paragraph.

6 Judicial review of administrative action

(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an
administrative action.

(2) A court or tribunal has the power to judicially review an administrative action if-

(a) the administrator who took it-

(i) was not authorised to do so by the empowering provision;

 (ii) acted under a delegation of power which was not authorised by the empowering
provision; or

(iii) was biased or reasonably suspected of bias;

(b) a mandatory and material procedure or condition prescribed by an empowering provision

was not complied with;

(c) the action was procedurally unfair;

(d) the action was materially influenced by an error of law;

(e) the action was taken-

(i) for a reason not authorised by the empowering provision;

(ii) for an ulterior purpose or motive;

(iii) because irrelevant considerations were taken into account or relevant considerations
were not considered;

(iv) because of the unauthorised or unwarranted dictates of another person or body;

(v) in bad faith; or

(vi) arbitrarily or capriciously;

(f) the action itself-

(i) contravenes a law or is not authorised by the empowering provision; or

(ii) is not rationally connected to-

(aa) the purpose for which it was taken;

(bb) the purpose of the empowering provision;

(cc) the information before the administrator; or

(dd) the reasons given for it by the administrator;

(g) the action concerned consists of a failure to take a decision;

(h) the exercise of the power or the performance of the function authorised by the empowering
provision, in pursuance of which the administrative action was purportedly taken, is so
unreasonable that no reasonable person could have so exercised the power or performed
the function; or

(i) the action is otherwise unconstitutional or unlawful.

(3) If any person relies on the ground of review referred to in subsection (2) (g), he or she may in
respect of a failure to take a decision, where-

(a) (i) an administrator has a duty to take a decision;

(ii) there is no law that prescribes a period within which the administrator is required to
take that decision; and

(iii) the administrator has failed to take that decision,

 institute proceedings in a court or tribunal for judicial review of the failure to take the decision
on the ground that there has been unreasonable delay in taking the decision; or

(b) (i) an administrator has a duty to take a decision;

(ii) a law prescribes a period within which the administrator is required to take that
decision; and

(iii) the administrator has failed to take that decision before the expiration of that period,

institute proceedings in a court or tribunal for judicial review of the failure to take the decision
within that period on the ground that the administrator has a duty to take the decision
notwithstanding the expiration of that period.

7 Procedure for judicial review

(1) Any proceedings for judicial review in terms of section 6 (1) must be instituted without
unreasonable delay and not later than 180 days after the date-

(a) subject to subsection (2) (c), on which any proceedings instituted in terms of internal
remedies as contemplated in subsection (2) (a) have been concluded; or

(b) where no such remedies exist, on which the person concerned was informed of the
administrative action, became aware of the action and the reasons for it or might reasonably
have been expected to have become aware of the action and the reasons.

(2) (a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of
this Act unless any internal remedy provided for in any other law has first been exhausted.

(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy
referred to in paragraph (a) has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in
terms of this Act.

(c) A court or tribunal may, in exceptional circumstances and on application by the person
concerned, exempt such person from the obligation to exhaust any internal remedy if the
court or tribunal deems it in the interest of justice.

(3) The Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of Law
Act, 1985 (Act 107 of 1985), must, before 28 February 2009, subject to the approval of the
Minister, make rules of procedure for judicial review.

(4) Until the rules of procedure referred to in subsection (3) come into operation, all proceedings for
judicial review under this Act must be instituted in a High Court or another court having jurisdiction.

(5) Any rule made under subsection (3) must, before publication in the Gazette, be approved by
Parliament.

8 Remedies in proceedings for judicial review

(1) The court or tribunal, in proceedings for judicial review in terms of section 6 (1), may grant any
order that is just and equitable, including orders-

(a) directing the administrator-

(i) to give reasons; or

(ii) to act in the manner the court or tribunal requires;

 (b) prohibiting the administrator from acting in a particular manner;

(c) setting aside the administrative action and-

(i) remitting the matter for reconsideration by the administrator, with or without directions;
or

(ii) in exceptional cases-

(aa) substituting or varying the administrative action or correcting a defect resulting

from the administrative action; or

(bb) directing the administrator or any other party to the proceedings to pay
compensation;

(d) declaring the rights of the parties in respect of any matter to which the administrative action
relates;

(e) granting a temporary interdict or other temporary relief; or

(f) as to costs.

(2) The court or tribunal, in proceedings for judicial review in terms of section 6 (3), may grant any
order that is just and equitable, including orders-

(a) directing the taking of the decision;

(b) declaring the rights of the parties in relation to the taking of the decision;

(c) directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the
refraining from the doing, of which the court or tribunal considers necessary to do justice
between the parties; or

(d) as to costs.

QUESTIONS

1. You are briefed on behalf of a security company, Real Africa Security (Pty) Ltd.

The following facts are common cause between the parties:

 The Utopia Metropolitan Council requested tenders from various security companies to provide a
24-hour security service to the mayor of the town at her residence;

 Eight security companies participated in the tender process;

 Real Africa Security tendered to provide an all-in-all security service at the cost of R900,000.00
per year;

 The all-in-all security service of Real Africa Security includes provision of ten armed guards per 24
hours and also includes the services of a bodyguard and a security vehicle in which the mayor
 may be conveyed;

 Another company, Stopcrime (Pty) Ltd, submitted its tender two days after the closing date for the
tenders. However, their tender documents have been accepted by the Council;

 Stopcrime's tender includes the provision of only two armed guards per 24 hours at a cost of R10
million per year;

 Objectively, Real Africa Security provides the best service at the best rates of all the participating
companies;

 The Head Executive Officer of the Utopia Metropolitan Council is the only director of Stopcrime
and his brother is the sole shareholder;

 The Utopia Metropolitan Council decided to award the tender to Stopcrime (Pty)Ltd.

In the light of the above facts:

(a) To what remedies are your client entitled? (4)

(b) What relief is available to it? (4)

(c) What procedure should be followed? (4)

(12) (2011 and 2008)

2.7 De lunatic inquirendo, curators ad litem, ad personam and bonis

57 De Lunatico Inquirendo, Appointment of Curators in Respect of Persons under Disability and

Release from Curatorship

(1) Any person desirous of making application to the court for an order declaring another person
(hereinafter referred to as 'the patient') to be of unsound mind and as such incapable of managing
his affairs, and appointing a curator to the person or property of such patient shall in the first
instance apply to the court for the appointment of a curator ad litem to such patient.

(2) Such application shall be brought ex parte and shall set forth fully-

(a) the grounds upon which the applicant claims locus standi to make such application;

(b) the grounds upon which the court is alleged to have jurisdiction;

(c) the patient's age and sex, full particulars of his means, and information as to his general
state of physical health;

(d) the relationship (if any) between the patient and the applicant, and the duration and intimacy
of their association (if any);

(e) the facts and circumstances relied on to show that the patient is of unsound mind and
incapable of managing his affairs;
 (f) the name, occupation and address of the respective persons suggested for appointment by
the court as curator ad litem, and subsequently as curator to the patient's person or property,
and a statement that these persons have been approached and have intimated that, if
appointed, they would be able and willing to act in these respective capacities.

(3) The application shall, as far as possible, be supported by-

(a) an affidavit by at least one person to whom the patient is well known and containing such
facts and information as are within the deponent's own knowledge concerning the patient's
mental condition. If such person is related to the patient, or has any personal interest in the
terms of any order sought, full details of such relationship or interest, as the case may be,
shall be set forth in his affidavit; and

(b) affidavits by at least two medical practitioners, one of whom shall, where practicable, be an
alienist, who have conducted recent examinations of the patient with a view to ascertaining
and reporting upon his mental condition and stating all such facts as were observed by them
at such examinations in regard to such condition, the opinions found by them in regard to the
nature, extent and probable duration of any mental disorder or defect observed and their
reasons for the same and whether the patient is in their opinion incapable of managing his
affairs. Such medical practitioners shall, as far as possible, be persons unrelated to the
patient, and without personal interest in the terms of the order sought.

(4) Upon the hearing of the application referred to in subrule (1), the court may appoint the person
suggested or any other suitable person as curator ad litem, or may dismiss the application or
make such further or other order thereon as to it may seem meet and in particular on cause
shown, and by reason of urgency, special circumstances or otherwise, dispense with any of the
requirements of this rule.

(5) Upon his appointment the curator ad litem (who shall if practicable be an advocate, or failing such,
an attorney), shall without delay interview the patient, and shall also inform him of the purpose and
nature of the application unless after consulting a medical practitioner referred to in paragraph (b)
of subrule (3) he is satisfied that this would be detrimental to the patient's health. He shall further
make such inquiries as the case appears to require and thereafter prepare and file with the
registrar his report on the matter to the court, at the same time furnishing the applicant with a copy
thereof. In his report the curator ad litem shall set forth such further facts (if any) as he has
ascertained in regard to the patient's mental condition, means and circumstances and he shall
draw attention to any consideration which in his view might influence the court in regard to the
terms of any order sought.

(6) Upon receipt of the said report the applicant shall submit the same, together with copies of the
documents referred to in subrules (2) and (3) to the Master of the Supreme Court having
jurisdiction for consideration and report to the court.

(7) In his report the Master shall, as far as he is able, comment upon the patient's means and general
circumstances, and the suitability or otherwise of the person suggested for appointment as curator
to the person or property of the patient, and he shall further make such recommendations as to the
furnishing of security and rendering of accounts by, and the powers to be conferred on, such
curator as the facts of the case appear to him to require. The curator ad litem shall be furnished
with a copy of the said report.

(8) After the receipt of the report of the Master, the applicant may, on notice to the curator ad litem
(who shall if he thinks fit inform the patient thereof), place the matter on the roll for hearing on the
same papers for an order declaring the patient to be of unsound mind and as such incapable of
managing his affairs and for the appointment of the person suggested as curator to the person or
property of the patient or to both.

(9) At such hearing the court may require the attendance of the applicant, the patient, and such other
persons as it may think fit, to give such evidence viva voce or furnish such information as the court
 may require.

(10) Upon consideration of the application, the reports of the curator ad litem and of the Master and
such further information or evidence (if any) as has been adduced viva voce, or otherwise, the
court may direct service of the application on the patient or may declare the patient to be of
unsound mind and incapable of managing his own affairs and appoint a suitable person as curator
to his person or property or both on such terms as to it may seem meet, or it may dismiss the
application or generally make such order (including an order that the costs of such proceedings be
defrayed from the assets of the patient) as to it may seem meet.

(11) Different persons may, subject to due compliance with the requirements of this rule in regard to
each, be suggested and separately appointed as curator to the person and curator to the property
of any person found to be of unsound mind and incapable of managing his own affairs.

(12) The provisions of subrules (1), (2) and (4) to (10) inclusive shall in so far as the same are
applicable thereto, also apply mutatis mutandis to any application for the appointment by the court
of a curator under the provisions of section 56 of the Mental Health Act, 1973 (Act 18 of 1973), to
the property of a person detained as or declared mentally disordered or defective, or detained as a
mentally disordered or defective prisoner or as a State President's decision patient and who is
incapable of managing his affairs.

(13) Save to such extent as the court may on application otherwise direct, the provisions of subrules (1)
to (11) shall, mutatis mutandis, apply to every application for the appointment of a curator bonis to
any person on the ground that he is by reason of some disability, mental or physical, incapable of
managing his own affairs.

(14) Every person who has been declared by a court to be of unsound mind and incapable of
managing his affairs, and to whose person or property a curator has been appointed, and who
intends applying to court for a declaration that he is no longer of unsound mind and incapable of
managing his affairs or for release from such curatorship, as the case may be, shall give 15 days'
notice of such application to such curator and to the Master.

(15) Upon receipt of such notice and after due consideration of the application and such information as
is available to him, the Master shall, without delay, report thereon to the court, at the same time
commenting upon any aspect of the matter to which, in his view, its attention should be drawn.

(16) The provisions of subrules (14) and (15) hereof shall also apply to any application for release from
curatorship by a person who has been discharged under section 53 of the Mental Health Act, 1973
(Act 18 of 1973), from detention in an institution, but in respect of whom a curator bonis has been
appointed by the court under section 56 of the said Act.

(17) Upon the hearing of any application referred to in subrules (14) and (16) hereof the court may
declare the applicant as being no longer of unsound mind and as being capable of managing his
affairs, order his release from such curatorship, or dismiss the application, or mero motu appoint a
curator ad litem to make such inquiries as it considers desirable and to report to it, or call for such
further evidence as it considers desirable and postpone the further hearing of the matter to permit
of the production of such report, affidavit or evidence, as the case may be, or postpone the matter
sine die and make such order as to costs or otherwise as to it may seem meet.

Commentary

General: This rule provides for the various steps that must be taken in an application for the appointment of
a curator to the person or property of a person.

Subrule (1): 'Declaring another person…to be of unsound mind.' Though the subrule speaks of an order
declaring a person 'to be of unsound mind', in practice an order declaring the patient to be of unsound mind
is not usually sought. This is recognised in subrule (13) in terms of which the provisions of the rule apply
mutatis mutandis to applications for the appointment of a curator bonis to a person on the ground that he is
by reason of some disability incapable of managing his own affairs.

'Curator to the person.' The appointment of a curator to the person involves serious encroachments upon
the liberty of the patient and should be made only when a real need for it has been shown. A curator to the
person will be appointed in a case where consent to perform an operation on the patient is necessary, but
such an appointment may be limited to the sole function of deciding whether or not the operation should be
performed.

Subrule (2)(a): 'The applicant claims locus standi.' The application is usually brought by one of the patient's
next-of-kin, but where the patient has no relatives in the Republic, the application may be brought by any
person with a sufficient interest in the person of the patient.

Subrule (2)(b): 'The court is alleged to have jurisdiction.' In Ex parte Berry: In re Berry it was held that any
division of the Supreme Court has jurisdiction to declare incapable of managing his affairs and place under
curatorship any person who is domiciled within its area of jurisdiction or whose assets are within such area,
notwithstanding that he himself is not within the area.

Subrule (4): 'May appoint…as curator ad litem.' It has often been held that the court will not dispense with
the appointment of a curator ad litem even if it is clear that a curator bonis will have to be appointed. The
present rule contemplates that as a normal rule a curator ad litem will be appointed though the court has
power, under this subrule, to dispense with such an appointment on the grounds of urgency or other
special circumstances. The appointment of a curator ad litem may be dispensed with if there is reason to
believe that the person concerned understands the nature or effect of the proceedings. The appointment of
a curator ad litem is usually dispensed with in applications for the appointment of a curator bonis to a
prodigal, there being in such cases no declaration as to unsoundness of mind.

'By reason of urgency, special circumstances or otherwise.' The court may as a matter of urgency appoint a
curator for a specific purpose, for example to decide whether or not an operation on the patient should be
performed.

Subrule (5): 'Who shall if practicable be an advocate.' It is preferable that the curator ad litem be someone
completely independent and outside the range of local influence. The curator ad litem should preferably be
a person who is directly answerable to the court.

'Prepare and file…his report.' The subrule requires the curator ad litem to set forth in his report such further
facts as he may have ascertained regarding the patient's mental condition, means and circumstances, and
to draw attention to any consideration which might influence the court in regard to the order sought. Though
a curator ad litem may in certain circumstances function rather as an amicus curiae, his primary function in
the present context is to ensure that the proprietary and other interests of the patient are adequately
protected.

Subrule (7): 'The furnishing of security.' The court has the power to grant exemption to a curator bonis from
furnishing security and will exercise such discretion when exceptional circumstances exist.

Subrule (10): 'Or evidence…as has been adduced viva voce, or otherwise.' Formerly all the evidence,
including the medical evidence, was placed before the court viva voce. Today the evidence is usually
placed before the court by way of affidavit, but it is submitted that the court may either of its own motion or
at the request of the curator ad litem or any other party direct that viva voce evidence should be produced.

'Declare the patient to be of unsound mind and incapable of managing his own affairs.' Where the
application for the appointment of a curator bonis is brought under subrule (13), a declaration of
unsoundness of mind is not required.

'Dismiss the application.' While each case must be decided on its own facts, it can be said that in general
the court will not appoint a curator where the person concerned is compos mentis and actively opposes any
such appointment.

Subrule (13): 'By reason of some disability, mental or physical, incapable of managing his own affairs.' In
terms of this subrule a curator bonis may be appointed to a person who is incapable of managing his own
affairs by reason of some mental or physical disability.

Subrule (16): 'Order his release from curatorship.' The curator will not be released until he has filed
accounts to the satisfaction of the Master.

Gautschi commentary

The are two types of curators. The first is the curator ad litem. This is a curator appointed by the court to
protect the interests of some party to a legal proceeding who is unable to protect his own interests. The
second is a curator bonis, who is a person appointed by the court to manage and control the property of a
person who is unable to manage and control his own property. One must first appoint a curator ad litem
prior to a curator bonis being appointed (generally).

An application for the appointment of a curator ad litem is brought ex parte setting out the following:

1. the grounds on which the applicant claims locus standi to make the application;

2. the grounds upon which the court has jurisdiction;

3. the patient’s age and sex and full particulars of his means and information as to his general state
of physical health;
 4. the relationship, if any, between the patient and the applicant and the duration and intimacy of their
association;

5. the facts and circumstances relied on by the applicant to show that the patient is of unsound mind
and incapable of managing his affairs;

6. the name, occupation and address of the respective persons suggested for appointment, and a
statement that these persons have been approached and have intimated that they would be willing
and able to act in this capacity.

The application should be supported by the affidavits of:

(1) a person to whom the patient is well known containing such facts and information as are within the
deponent’s own knowledge concerning the patient’s medical condition;

(2) at least two medical practitioners, one of which must be a specialist in mental disease (such as a
psychiatrist) who have conducted recent examinations of the patient.

QUESTIONS

1. Indicate when a curator ad litem will be required for a person and when a curator bonis will be required
for a person. (2) (2016)

2. Rule 57 provides for an application to be made to court for an order declaring a person to be of
unsound mind and therefore incapable of managing her/his own affairs. List the essential averments to
be made for such an application. (11) (2016)

2.8 Insolvency procedures

Pupils are required to know:

1. The essential requirements; and
2. The procedures involved in the following applications:
(a) sequestration;
(b) surrender;
(c) rehabilitation;
(d) liquidation;
(e) business rescue.

Sequestration

Sequestration is the process whereby a court, at the instance of a creditor (‘compulsory sequestration’)
places the estate of a natural person, partnership, or trust which is insolvent or deemed to be insolvent
under the control of the Master until the appointment of a trustee by the Master. The trustee administers the
estate for the benefit of creditors.

The procedure involves the grant:

 first: of a provisional order of sequestration in terms whereof a rule nisi is issued calling upon the
respondent to show cause on a specified day why a final order should not be granted; and

 second: the grant (or refusal) of a final order.

Different requirements apply at the stage of seeking a provisional order and a final order.

Unlike liquidations, a provisional order of sequestration must first be granted before a final order can be
made.

The requirements for a provisional sequestration order are:

(i) in terms of section 10 of the Insolvency Act requires the court to be satisfied that there is prima
facie proof that:

(a) the creditor has established against the debtor a liquidated claim of not less than R100 (or if
there are two or more creditors, liquidated claims of an aggregate amount of not less than
R200);

(b) the debtor has committed an act of insolvency or is insolvent; and

(c) there is reason to believe that sequestration will be to the advantage of creditors. The
applicant needs to show that there is property which can be realised and that there is a
reasonable prospect of a non-negligible dividend to proved creditors.

(ii) in terms of section 9, the applicant must set forth in his application:

(a) the full names and date of birth of the debtor and identity number;

(b) the marital status of the debtor and, if he is married, the full names and date of birth of his
spouse and the identity number of the spouse;

(c) jurisdiction of the court;

(d) the amount, cause and nature of the claim in question;

(e) whether the claim is or is not secured and, if it is, the nature and value of the security;

(f) the debtor's act of insolvency upon which the petition is based or otherwise allege that the
debtor is in fact insolvent;
 (iii) the application must be accompanied by a certificate of the Master given not more than ten days
before the date of application that sufficient security has been given for the payment of all fees and
charges contemplated in section 9(3) of the Insolvency Act.

(iv) a copy of the application must be lodged with the Master or an officer in the public service
designated for that purpose by the Master by notice in the Gazette.

The application for a provisional order must be served on:

(i) every registered trade union that, as far as the petitioner can reasonably ascertain, represents any
of the debtor's employees; and

(ii) to the employees themselves: (Note the hierarchy of service methods)

(aa) by affixing a copy of the petition to any notice board to which the petitioner and the
employees have access inside the debtor's premises; or

(bb) if there is no access to the premises by the petitioner and the employees, by affixing a copy
of the petition to the front gate of the premises, where applicable, failing which to the front
door of the premises from which the debtor conducted any business at the time of the
presentation of the petition;

(iii) SARS; and

(iv) the debtor, unless the court, at its discretion, dispenses with the furnishing of a copy where the
court is satisfied that it would be in the interest of the debtor or of the creditors to dispense with it.

The applicant must, before or during the hearing, file an affidavit by the person who furnished a copy of the
petition which sets out the compliance with the service requirements. Service by the sheriff is not required
for the above, but is required for service of the final order.

Because it is frequently so that a creditor will not be in possession of information concerning the financial
position of the debtor (and whether his liabilities exceed his assets), the Insolvency Act permits a creditor to
rely upon an act of insolvency. There are eight different acts identified in section 8 of the Act upon which a
creditor can rely:

1. if he leaves the Republic or being out of the Republic remains absent therefrom, or departs from
his dwelling or otherwise absents himself, with intent by so doing to evade or delay the payment of
his debts;

2. if a court has given judgment against him and he fails, upon the demand of the sheriff to satisfy it
or to indicate to that officer disposable property sufficient to satisfy it, or if it appears from the
return made by the sheriff that he has not found sufficient disposable property to satisfy the
 judgment;

3. if he makes or attempts to make any disposition of any or his property which has or would have the
effect of prejudicing his creditors or of preferring one creditor above another;

4. if he removes or attempts to remove any of his property with intent to prejudice his creditors or to
prefer one creditor above another;

5. if he makes or offers to make any arrangement with any of his creditors for releasing him wholly or
partially from his debts;

6. if, after having published a notice of surrender of his estate which has not lapsed or been
withdrawn, he fails to comply with the requirements of sub-section (3) of section four or lodges, in
terms of that sub-section, a statement which is incorrect or incomplete in any material respect or
fails to apply for the acceptance of the surrender of his estate on the date mentioned in the
aforesaid notice as the date on which such application is to be made;

7. if he gives notice in writing to any one of his creditors that he is unable to pay any of his debts ;

8. if, being a trader, he gives notice in the Gazette in terms of sub-section (1) of section thirty-four,
and is thereafter unable to pay all his debts.

In respect of advantage to creditors, all that has to be established is that the debtor has assets which would
be sufficient, after the payment of the costs of sequestration, to ensure that his creditors receive some not
insignificant monetary dividend, known as a non-negligible dividend. The Act only requires that there must
be ‘reason to believe’ that it will be to the advantage of creditors; it is not necessary to prove actual
advantage. The reduced requirement is in recognition of the fact that a creditor would not ordinarily have
knowledge of the precise state of the debtor’s financial affairs.

The application is brought by way of notice of motion together with a founding affidavit. Where a creditor is
armed with a nulla bona return, he may bring an application for a provisional order without notice to the
respondent/ex parte.

For an application for provisional sequestration, the following documents should be in counsel’s brief:

(i) the notice of motion and founding affidavit;

(ii) return of service (unless the application is ex parte);

(iii) notice of set down;

(iv) Master’s certificate/security bond;

(v) proof of service on the Master (in some divisions the Registrar’s stamp, if the Registrar is so
 designated).

In the absence of compelling circumstances a creditor with an unpaid debt is entitled to a sequestration
order against a debtor who is insolvent or committed an act of insolvency.

The order which is granted (i) places the estate of the debtor under provisional sequestration, and (ii) calls
upon the debtor to show cause why that order should not be made final on the return day (rule nisi).

The provisional order must be served by the sheriff on:

(a) the debtor personally (If the debtor has been absent during a period of 21 days from his usual
place of residence and of his business within the Republic, the court may direct that it is sufficient
service of that rule if a copy thereof is affixed to or near the outer door of the buildings where the
court sits and published in the Gazette, or may direct some other mode of service);

(b) any trade union representing the debtor’s employees;

(c) the debtor’s employees by a affixing a copy of the petition to any notice board to which the
employees have access inside the debtor's premises, or if there is no access to the premises by
the employees, by affixing a copy to the front gate, where applicable, failing which to the front door
of the premises from which the debtor conducted any business at the time of the presentation of
the petition; and

(d) SARS.

If it is foreseeable that there may be a dispute about the claim, sequestration is not the proper procedure to
use. It is more effective to proceed by way of action on the claim to obtain a judgment, and then to execute
on the judgment to force a nulla bona return. This would prove insolvency and the application for
sequestration should follow successfully.

A friendly sequestration is where the creditor and debtor have some special or close relationship, and
would not ordinarily be seen to be antagonistic towards each other. Friendly sequestrations are permissible
provided that the requirements are genuinely met. Certain divisions require additional requirements and
safeguards to be complied with in respect of friendly sequestrations.

A sequestration order can only be heard before a division of the High Court. In terms of section 149 of the
Act, a court has jurisdiction if:

(a) on the date of launching the application, the respondent is domiciled or owns or is entitled to
property situate within the jurisdiction of the court; or

(b) at any time within 12 months preceding the launching of the application he was ordinarily resident
or carried on business within the court’s jurisdiction.
An application for sequestration based on a claim founded in a credit agreement does not amount to debt
enforcement; such an application is therefore not subject to the preliminary requirements of section 129 of
the NCA.

When a provisional order is sought, the court must prima facie be of the opinion that the applicant has
established the elements set out in section 10(a), (b), and (c), which are:

(a) the applicant has established against the debtor a claim such as is mentioned in section 9(1); and

(b) the debtor has committed an act of insolvency or is insolvent; and

(c) there is reason to believe that it will be to the advantage of creditors of the debtor if his estate is
sequestrated.

When a final order is ought, the court must be satisfied that the applicant has established the elements set
out in section 12(a), (b), and (c), which are the same as those in section 10.

The relief sought in the notice of motion for a provisional order would be:

1. That the estate of the respondent is placed under provisional sequestration;

2. That the respondent is called upon to advance the reasons, if any, why the Court should not order
final sequestration of the said estate on [date] at 10h00 or so soon thereafter as the matter may be
heard.

The relief sought in the notice of motion for a final order would be:

1. That the estate of the respondent is placed under final sequestration.

Voluntary surrender

As opposed to compulsory sequestration, where the debtor whose estate is to be sequestrated is the
respondent in the application, it is possible for a person to seek the sequestration of his own estate. This is
known as voluntary surrender.

The following parties can apply for voluntary surrender: the insolvent debtor himself, his agent, the executor
of a deceased estate, the curator bonis of the estate of an insolvent debtor, the partners of a partnership, a
trust (a trust cannot be wound up under the Companies Act).

Jurisdiction in respect of applications for voluntary surrender is the same as applications for sequestration
(section 149 of the Act; see above).

Formalities prior to the application:

(i) Publication of notice of surrender

The notice must correspond substantially with Form A of the Act and must contain:

(a) the full names of the applicant;

(b) the name of the court to which application will be made;

(c) the date of application; and

(d) the office at which and the period during which the applicant’s statement of affairs will lie for
inspection.

The notice must appear in the Government Gazette and a newspaper circulating in the area where the
applicant resides, or if a trader, in the district where the applicant’s principal place of business is situated.

The notice must appear not less than 14 days and not more than 30 days before the date of the
application.

(ii) Notice to affected parties

A copy of the notice of surrender must be given within 7 days of publication to:

(a) creditors, by delivery or by post;

(b) trade unions;

(c) employees of the applicant (in same manner as a sequestration application); and

(d) SARS.

(iii) Statement of affairs

Must correspond with Form B of the Act and must be lodged with the Master for a period of 14 days.

Once the above requirements have been complied with, the application may be brought. It will take the
form of an ex parte application. It is brought on notice of motion supported by a founding affidavit. The
founding affidavit must set out the following:

1. the applicant’s full names, address and capacity to sue (locus standi and jurisdiction);

2. that the applicant has, without fraud or dishonesty on his part, become insolvent and that he
wishes to surrender his estate for the benefit of his creditors;

3. that the applicant is insolvent (a summary of the statement of affairs should be included);
 4. the causes of the applicant’s insolvency;

5. proof of publication in the Government Gazette and newspaper (complete tear sheets must be
attached);

6. proof of notice given to affected parties;

7. a certificate of the Master confirming the statement of affairs has lain for inspection for 14 days and
whether the objection of any creditor has been lodged;

8. that there are sufficient assets in the applicant’s estate to meet the costs of sequestration payable
out of the free residue;

9. that the surrender of the applicant’s estate will be to the advantage of creditors, supported by facts
– a calculation of the expected dividend is usually required and the dividend that is usually
accepted as adequate is 20c/R;

10. full particulars of the amount of the applicant’s salary or other income;

11. evidence of all facts relevant to the exercise by the court of its discretion whether to accept or
refuse the application.

The following documents must be in counsel’s brief:

(i) notice of motion and affidavit;

(ii) the statement of affairs;

(iii) independent sworn valuation of assets if the Master has directed that such be made;

(iv) tear sheets of the Gazette and newspapers;

(v) proof by affidavit that the applicant has delivered or posted a copy of the notice of surrender to
each of his creditors;

(vi) certificate from the Master that the statement of affairs has lain for inspection; and

(vii) notice of set down.

The Act requires the court to be satisfied on the following four matters before it can accept the surrender of
the applicant’s estate:

1. the prescribed formalities have been complied with;

2. the estate is in fact insolvent;

 3. the debtor owns realisable property of sufficient value to defray all the costs of sequestration;

4. that it will be to the advantage of creditors if the estate is sequestrated.

The relief sought in the notice of motion is: That the surrender of the estate of the applicant as insolvent be
accepted and the estate be placed under sequestration in the hands of the Master of the High Court.

Rehabilitation

Rehabilitation of an insolvent brings the sequestration of his estate to an end. Although it is the estate of
the insolvent that is sequestrated, it is the insolvent himself that is rehabilitated.

It is not possible to rehabilitate a partnership (though it can be sequestrated).

An application for rehabilitation must be made to the court that made the sequestration order.

An insolvent who has complied with one of the following requirements may bring an application for
rehabilitation:

1. Composition with insolvent’s creditors (“composition” in this context is meant an agreement in

terms of which the insolvent is to pay, and each creditor bound by the composition is to accept in
settlement of such creditor’s claim, an amount less than 100 cents in the R1,00. In practice,
however, an agreement in terms of which the insolvent merely obtains an extension of time to pay
creditors’ claims in full also is treated as a “composition”, in this context.).

2. Lapse of time: an application may be made:

(a) 12 months from confirmation of the first liquidation and distribution account;

(b) if previously sequestrated, 3 years from confirmation of the account; and

(c) if convicted of any fraudulent act in relation to his insolvency, 5 years from date of conviction.

Provided that if the application is made within 4 years from date of sequestration, rehabilitation can
only be granted if the Master recommends the rehabilitation in his report. Without such
recommendation having been obtained, the court cannot even consider the application.

Note that an insolvent who is not rehabilitated by the court within a period of 10 years from the
date of sequestration of his estate is automatically rehabilitated unless the court orders otherwise.
The court will only do so upon the application of an interested party on good cause shown.

3. No claims proved: application may be made 6 months from date of sequestration if:

(a) no claim has been proved against his estate;

 (b) no conviction of any fraudulent act in relation to insolvency; and

(c) there is no previous sequestration.

4. Full payment of proved claims: at any time after Master has confirmed the account.

Notice of the application must be given to:

1. the Master and the trustee at least 6 weeks before the hearing of the application

2. publication in the Government Gazette 6 weeks before the hearing; the notice must contain:

(a) the number of the insolvent estate;

(b) the full name and description of the insolvent – the description must be sufficient to enable
creditors to identify the applicant as the person who was their debtor at the time of the
sequestration of the estate;

(c) date of sequestration;

(d) date and time of the application and the name of the court to which application will be made;
and

(e) grounds of the application

The application is brought on an ex parte basis on notice of motion supported by an affidavit. The affidavit
must set out the following:

1. the applicant’s full name, address, and capacity to sue;

2. the date of the sequestration order and details of the court that granted the order;

3. details of the trustee and his appointment and number of the estate;

4. the reasons for the applicant’s insolvency;

5. the total amount of the applicant’s assets and liabilities as at the date of sequestration;

6. the total amount of all claims proved against the estate (or that no claims were proved) and the
dividend, if any, paid to creditors;

7. if creditors were obliged to pay a contribution, this must be disclosed;

8. the date of confirmation of the account by the Master;

9. that the applicant has made a complete surrender of his estate and not granted or promised any
 benefit to any person or entered into any secret agreement with the intention of inducing the
trustee or a creditor not to oppose the application;

10. whether the applicant’s estate was previously sequestrated, and if the applicant has been
convicted of any offence mention in section 124 of the Act;

11. the applicant’s assets and liabilities and earnings at the date of the application must be disclosed –
the applicant must disclose the full income of his household, including full details of his present
financial position and his dependents so that the court is in a position to consider whether he
should be ordered to make a further payment for the benefit of his creditors;

12. averments that enable the court to discern the grounds of the application (i.e. why the applicant is
entitled to apply);

13. a statement to the effect that the required notice has been given in the Gazette and to the Master
and trustee (the tear sheet must be attached);

14. that security has been given with the registrar at least 3 weeks prior to the application, supported
by documentary evidence.

The Master and the trustee are obliged to file reports.

The relief sought in the notice of motion is: That the applicant be and is hereby rehabilitated.

Liquidation

Companies and close corporations may be placed in liquidation by the grant of a winging-up order, the
purpose of which is ultimately to permit the realisation by a liquidator of the assets of the corporate entity so
that the proceeds thereof may be distributed amongst creditors.

Although not statutorily compulsory (compared to sequestrations), the procedure generally followed in the
winding up or a company by the court commences with the grant of a provisional winding up order together
with a rule nisi calling upon interested parties to show cause on a specified return day why a final order
should not be granted. On the return day the court is called upon to grant a final order or to discharge the
provisional order. However, the grant of an immediate final winding up order is not precluded by statute.

Winding-up proceedings by the court continue to be governed by the 1973 Companies Act.

It is not necessary in the case of a winding up of a company to allege or prove that the winding up will be to
the advantage of creditors.

The following persons have locus standi to apply for the liquidation of a company:

(a) the company itself;

 (b) one or more of its creditors;

(c) one of more of its members;

(d) the Master; and

(e) the Minister of Trade and Industry.

In terms of jurisdiction, an application for winding-up must be made where the registered address of the
company is located (which is the same address as its principal or only place of business).

The following are the most prevalent grounds for winding-up a company:

1. a special resolution is passed by the company for its winding-up;

2. the company is unable to pay its debts.

This can be demonstrated in one of the following manners:

(a) a demand for payment has not been met: it must be shown that the applicant is a creditor for
a sum of not less than R100 then due and payable, there was service on the company of a
demand requiring payment, and the company has for three weeks thereafter neglected to
pay the sum;

(b) a nulla bona return has been obtained either to the effect that the sheriff did not find
sufficient disposable property to satisfy the judgment or that any disposable property found
did not satisfy the process; and

(c) it is proved that the company is unable to pay its debts (either actual or commercial
insolvency).

3. it is just and equitable that the company be wound-up.

This is not a catch-all ground. It is a special ground under which certain features of the way in which a
company is being run or conducted can be questioned to the point of requesting the court to wind it up.
Five broad categories have been identified:

(a) the disappearance of the company’s sub-stratum;

(b) illegality of the objects of the company and fraud committed in connection therewith;

(c) deadlock in the management of the company’s affairs;

(d) grounds analogous to those for the dissolution of partnerships; and

 (e) oppression of minority shareholders.

Two steps are envisaged by this sub-section. The first step is the determination of the facts and the court
forming an opinion that it is just and equitable that the company should be wound up. The second, which
only arises once such an opinion has been formed, is whether the court should exercise its discretion and
grant a winding up.

The application is brought on notice of motion, with a founding affidavit. The affidavit must set out:

1. that the deponent has personal knowledge of the facts and authority (if the applicant is a
company);

2. locus standi;

3. where the applicant is a member of the respondent, that he has been a member for at least 6
months;

4. where the applicant is a creditor, a description of the cause of the indebtedness;

5. the name and registration number of the respondent;

6. principal place of business or registered office;

7. jurisdiction;

8. insolvency of the respondent;

9. grounds for winding-up;

10. any relevant facts;

11. security for costs of the application issued by the Master less than 10 days before the date of the
hearing; and

12. that service has been effected as provided in section 346(4) and 346(4A) of the Companies Act.

The application for winding-up must be served on:

(a) the Master;

(b) SARS;

(c) the respondent at its registered address;

(d) employees of the respondent by affixing a copy of the application at an accessible place;
 (e) trade unions of employees.

The applicant must file an affidavit setting out how the service requirements were complied with.

The provisional liquidation order must be served on:

(a) trade unions;

(b) employees of the company;

(c) SARS;

(d) the respondent company;

(e) by publication in the Government Gazette and in a local newspaper;

(f) notice to all known creditors by registered post.

At the provisional stage, the following documents should be in counsel’s brief:

(i) the notice of motion and founding affidavit (to which will be attached the security bond);

(ii) security bond (if not attached to the affidavit);

(iii) returns of service;

(iv) notice of set down; and

(v) proof of service on the Master.

On the return day, the following documents should be in counsel’s brief:

(i) the notice of motion and founding affidavit;

(ii) provisional order;

(iii) return of service of the provisional order on the respondent; and

(iv) an affidavit establishing that the requirements of the provisional order have been met.

The order sought in the notice of motion for a provisional order will usually read as follows:

1. That the respondent company be and is hereby placed under provisional winding-up;

2. That all persons who have a legitimate interest are called upon to put forward their reasons why
this Court should not order the final winding-up of the respondent company on [date] at 10h00;
 3. That a copy of this order be forthwith served on the respondent company at its registered office
and be published in the Government Gazette and in the [name] newspaper;

4. That a copy of this order be forthwith forwarded to each known creditor by prepaid registered post.

The order sought in the notice of motion for a final order will usually read as follows:

1. That the respondent company be and is hereby placed under final winding-up.

Business Rescue

Business rescue is governed by Chapter 6 of the Companies Act, 2008 entitled “Business Rescue and
Compromise with Creditors” (s 128 – 155).

Section 129 provides for a mechanism whereby the company voluntarily resolves to begin business rescue
proceedings and place itself under supervision. The board of the company must have “reasonable
grounds” to believe that:

(a) the company is financially distressed. This means that it appears to be reasonably unlikely that the
company will be able to pay all of its debts as they become due and payable within the immediate
ensuing 6 months or it appears to be reasonably likely that the company will become insolvent
within the immediate ensuing 6 months; and

(b) there appears to be a reasonable prospect of rescuing the company.

If the board holds this belief, then it will pass a resolution placing the company under supervision and into
business rescue. Such resolution must be filed and then published in the prescribed manner to every
affected person (such persons being a shareholder or creditor, a registered trade union representing the
employees of the company, or the employees or their representatives).

The company must appoint a business rescue practitioner and then file a notice of such appointment
(within 2 days of making the appointment) and publish a copy of the notice of appointment to each affected
person.

Application to set aside the resolution or the appointment of the practitioner (section 130)

An affected person may apply to court for an order:

(a) setting aside the resolution on the grounds that: (i) there are no reasonable bases to believe that
the company is financially distressed; (ii) there is no reasonable prospect of rescuing the company;
or (iii) the company has failed to satisfy the procedural requirements set out in section 129;

(b) setting aside the appointment of the practitioner on the grounds that (i) the practitioner does not
satisfy the requirements of section 138; (ii) the practitioner is no independent of the company or its
 management; (iii) the practitioner lacks the necessary skills having regard to the company’s
circumstances; and

(c) requiring the practitioner to provide security in an amount and on terms and conditions that the
court considers necessary to secure the interests of the company and any affected persons.

The Court may grant the following orders:

(a) The Court may set the resolution aside (if the Court is satisfied that the aforementioned grounds
are present or having regard to all the available evidence the Court considers it just and equitable
to do so).

(b) The Court can also afford the business rescue practitioner sufficient time to form an opinion as to
whether or not the company is financially distressed and whether or not there is reasonable
prospect of rescuing the company. Once having received such opinion (in the form of a report)
from the business rescue practitioner the Court may set the resolution aside.

(c) If either of the two aforementioned orders are made, setting aside the resolution, the Court is also
able to make any further necessary and appropriate order, including an order placing the company
under liquidation; and a costs order against the directors who voted in favour of the resolution to
commence business rescue proceedings (if it is found that there were no reasonable grounds to
believe that the company would be unable to pay its debts as they became due and payable – with
the proviso that the Court will not make this order if the director acted in good faith and on the
basis of information that she was entitled to rely on in terms of sections 76(4) and (5);

(d) The Court may dismiss the application.

Application to begin business rescue proceedings (section 131)

An affected person may apply to court at any time for an order placing the company under supervision and
commencing business rescue proceedings.

An applicant must serve a copy of the application on the company and the Commissioner and notify every
affected person in the prescribed manner.

The applicant should prove on a balance of probabilities that:

(i) the company is financially distressed;

(ii) the company has failed to pay over any amount in terms of an obligation under or in terms of a
public regulation, or contract, with respect to employment related matters; or

(iii) it is just and equitable to do so for financial reasons; and there is a reasonable prospect of
 rescuing the company.

The Court may order (if it is satisfied of the above):

(a) that the company be placed under supervision and business rescue proceedings are commenced
(and if this order is made then the Court may also appoint an interim business rescue practitioner);
and

(b) That the application is dismissed, together with further necessary and appropriate orders including
placing the company under liquidation.

QUESTIONS

1. What must be proved before a Court will grant an order provisionally sequestrating the estate of a
debtor? (3) (2016)

2. What documents should be contained in a brief to counsel to move an application for provisional
sequestration? (5) (2016)

3. What order can the Court make if it is satisfied that all the requirements have been met for the
provisional sequestration of a respondent? (2) (2016)

4. An applicant applying for his rehabilitation must give notice of such intention. When and how must
that notice be given and what particulars must the notice contain? (4) (2015)

5. Under which circumstances can an insolvent apply for his rehabilitation, after the expiration of a
period of only six months from the date of his/her sequestration? (7) (2015)

6. Set out the essential requirements which must be established for the grant of an order provisionally
sequestrating the estate of a debtor. (5) (2013)

7. List the procedural steps which a debtor must follow should he wish to secure the surrender of his
estate. (15) (2011)

8. Set out the essential requirements which must be established for an order sequestrating the estate of
a debtor provisionally. (5) (2010)

9. Your attorney requests you to settle the founding affidavit (ANNEXURE 1) to an application for
liquidation (that was drafted by his new candidate attorney). You are requested to advise your
attorney on whether the necessary allegations for a liquidation application have been stated. Your
answer must be in the form of a memorandum to your instructing attorney wherein your advice is
motivated. (Please note that the annexures referred to in the founding affidavit do not form part of the
annexure. (15) (2008)
2.9 Interdicts and mandamenten van spolie

 See, in general, LAWSA Vol 11 paragraphs 302-344

Interim interdicts

- Setlogelo v Setlogelo 1914 AD 221

- Webster v Mitchell 1948 (1) SA 1186;
- Stern & Rushkin N.O. v Appleson 1951 (3) SA 800 (W) at 812-813
- Gool v Minister of Justice 1955 (2) SA 682 (C)
- Olympia Passenger Service v Ramlagan 1957 (2) SA 382 (D)
- UCD Bank Ltd v Seacat Leasing and Finance Co (Pty) Ltd 1979 (4) SA 682 (T) at 688ff
- Airoadexpress (Pty) Ltd v Chairman Local Road Transportation Board, Durban 1986 (2) SA 663 (A)
- Safcor v National Transport Commission 1982 (3) SA 654 (A) at 674H-676H.

Pupils are particularly required to understand clearly the distinctions between: (a) applications for final relief; (b)
applications for interim relief; (c) rules nisi; and (d) orders operating as interim interdicts, and to be able to draft
appropriate prayers and draft orders illustrating same.

Interdicts

An interdict is an order of court directing that a person must refrain from doing something (a prohibitory
interdict) or directing him to do something (a mandatory interdict). A distinction is also drawn between final
and interim interdicts.

An interdict is not the same as a rule nisi. A rule nisi is not an order and therefore has no effect. Rather, a
rule nisi is when the court calls upon a respondent to show cause why an order should not be granted.
Generally a rule nisi will only be ordered where statute requires this, as found in the order for provisional
sentence, or unknown interested parties exist who may want to come to court. An interim interdict,
however, is an order which remains in force until the outcome of the final hearing on the matter.

Final interdicts

A final interdict will finally determine the matter between the parties.

A final interdict may be sought either by way of application (if there are no bona fide disputes of fact) or by
way of action.

The requirements for a final interdict are:

1. a clear right;
 2. an injury actually committed or reasonably apprehended; and

3. the absence of similar protection by any other remedy.

A clear right

The applicant must show that he has a clear right, that is a right that can be protected by an interdict.

Injury

By injury it is meant an infringement of the right which has been established and resultant prejudice.

No alternative remedy

A person will not ordinarily obtain an interdict if he can obtain adequate redress through another remedy.
The alternative remedy must be adequate in the circumstances, be ordinary and reasonable, be a legal
remedy, and grant similar protection. Thus, if the applicant could obtain adequate redress through a
damages claim, he will ordinarily not be entitled to an interdict. The general principles is that a person must
first exhaust other remedies at his disposal before seeking an interdict.

The court has a discretion to refuse an interdict, but it does not have a discretion to grant an interdict if the
requisites are not met.

The onus of proof is on the applicant to establish on a balance of probabilities that his case is stronger than
the respondent’s. If a dispute of fact arises, the Plascon-Evans test is applied.

Interim interdicts

An interim interdict is a court order which seeks to preserve or restore the status quo pending the final
determination of the rights of the parties. It is purely an interim measure and does not finally determine the
rights of the parties.

An interim interdict is always sought by way of application. It is either sought pending the outcome of an
action instituted or to be instituted, or pending the final determination of the application. It is often sought by
way of urgency.

The requirements for an interim interdict are:

1. a prima facie right established although open to some doubt;

2. irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

3. balance of convenience;

4. no other satisfactory remedy.

Prima facie right

The applicant must show a prima facie right, that is prima facie proof of a right to the final relief which he
will seek. If he establishes a clear right, then he should not seek an interim interdict but a final interdict.

The right can be prima facie established even if it is open to some doubt. Mere acceptance of the
applicant’s allegations is insufficient but a weighing up of the probabilities of conflicting versions is not
required. The proper approach is to consider the facts as set out by the applicant together with any facts
set out by the respondent which the applicant cannot dispute and to decide whether, with regard to the
inherent probabilities and the ultimate onus, the applicant should (not could) on those facts obtain final
relief at the trial. The facts set up in contradiction by the respondent should then be considered and if they
throw serious doubt on the applicant’s case, he cannot succeed (Webster; Gool).

Irreparable harm

The applicant must show a well-grounded (or reasonable) apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually granted. In other words, he must show that if he is
refused the interim relief, but later succeeds in the ultimate relief, he will suffer irreparable harm.

In the case of vindicatory claims it is factually presumed until the contrary is shown that the applicant will
suffer irreparable harm if the interim interdict is not granted. This means that in such claims irreparable
harm need not be alleged or proved by the applicant. The same applies for quasi-vindicatory claims (claims
for the return of property not on the basis of ownership but on the basis of some other right, such as a
contractual right).

Balance of convenience

The applicant must show that the balance of convenience favours the granting of an interim interdict. By
balance of convenience it is meant a balancing or weighing of the prejudice which the applicant will suffer if
the interim interdict is not granted against the prejudice the respondent will suffer if it is granted.

The exercise of the court’s discretion usually resolves itself into a consideration of the prospects of
success: the stronger the prospects of success, the less the need for such balance to favour the applicant;
the weaker the prospects of success, the greater the need for it to favour him.

No alternative remedy

The applicant must show that there is no other adequate remedy available to him.

The court has a wide discretion to refuse an interim interdict even if the requisites have been established.
The court will take into account the relative strengths of the parties’ respective cases, where any other
adequate remedy is available, whether the respondent has displayed a cynical disregard of the law, or
whether there has been an undue delay in launching proceedings.
It is possible to obtain an interim interdict in regard to money if it is identifiable with or earmarked as a
particular fund to which the applicant claims to be entitled.

In National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC); see, also
International Trade Administration v SCAW South Africa 2012 (4) SA 618 (CC) (“OUTA”) the Constitutional Court
held that in cases interdicting the exercise by the State of a constitutional or statutory power an interim
interdict will only be granted in the “clearest of cases” and after considering the separation of powers harm
concerned. The courts are concerned that on the basis of only a prima facie right, an applicant may stymie
the government in the performance of its statutory and constitutional duties. The Constitutional Court made
this clear in OUTA:

The court reversed an interdict granted pending the determination of a judicial review of
administrative decisions regarding e-tolling. In doing so, it trenchantly criticised the High Court
judgment

It reaffirmed that, where the interim interdict will restrain the exercise of constitutional or statutory
powers by another branch of government, ordinary principles do not apply:

“The various considerations which I have mentioned lead, in my opinion, irresistibly to the
conclusion that the court should only grant an interdict such as that sought by the applicant in the
present instance upon a strong case being made out for that relief. I have already held that the
court has jurisdiction to entertain an application such as the present, but in my judgment that
jurisdiction will, for the reasons I have indicated, only be exercised in exceptional circumstances
and when a strong case is made out for relief” (“emphasis added”) (para 43).

The court thus concluded that “a temporary restraint against the exercise of statutory power well
ahead of the final adjudication of a claimant’s case may be granted only in the clearest of cases and
after a careful consideration of separation of powers harm” (emphasis added)(para 47).

Interdict case law

Setlogelo v Setlogelo (AD, 1914)

In this seminal decision, the AD laid down the requirements for interdictory relief: “The requisites for the
right to claim an interdict are well known; a clear right, injury actually committed or reasonably
apprehended, and the absence of similar protection by any other ordinary remedy.”

Webster v Mitchell (W, 1948)

The Court held as follows with regard to establishing an applicant’s prima facie right in an application for an
interim interdict:
  The applicant's right need not be shown by a balance of probabilities; it is sufficient if such right is
prima facie established, though open to some doubt.

 The proper manner of approach is as follows:

o The Court take the facts as set out by the applicant, together with any facts set out by the
respondent which applicant cannot dispute, and to consider whether, having regard to the
inherent probabilities, the applicant could on those facts obtain final relief at a trial.

o The facts set up in contradiction by respondent should then be considered, and if serious
doubt is thrown upon the case of applicant he could not succeed.

Gool v Minister of Justice (C, 1955)

The Court held that in an application for an interdict the approach outlined in Webster v Mitchell is the
correct approach, save that the criterion on an applicant's own averred or admitted facts is: should (not
could) the applicant on those facts obtain final relief at the trial. The Court was of the view that the criterion
prescribed by Webster for the first branch of inquiry was too favourably expressed towards the applicant
for an interdict (by the use of “could”).

Stern & Ruskin NO v Appleson (W, 1951)

The Court confirmed that money, like any other species of property, may be interdicted; but it must be
shown that the money to be interdicted is identifiable with or ear-marked as a particular fund to which the
plaintiff claims to be entitled.

The claims under consideration were neither vindicatory nor quasi-vindicatory, and therefore the applicants
could not obtain an interdict unless they prove in addition to a prima facie case an actual or well-grounded
apprehension of irreparable loss if no interdict is granted. In the case of vindicatory or quasi-vindicatory
claims this is presumed until the contrary is shown. In the case of all other claims it must be established by
the applicant for the interdict as an objective fact. It is not sufficient to say that the applicant himself bona
fide fears such loss.

It was argued that because the respondent carried on what is said to be a very precarious trade (a
bookmaking business) the applicants should be protected against the possibility that he may lose the
money which ought to be available to satisfy their claims if they succeed in the action. This is in itself was
held to be no ground for an interdict. The Court accepted that bookmakers are able, on the whole, so to
arrange their transactions as to ensure gain for themselves or at any rate no serious loss. While the
applicants may have had a good case against the respondent to account for money they did not succeed in
making out a case for an interdict pending action to enforce their claims.

Olympia Passenger Service v Ramlagan (D, 1957)

The Court held that in applications for interim interdicts the applicants' prospects of ultimate success may
range all the way from strong to weak.

 Where the applicant's right is clear, and the other requisites are present, no difficulty presents itself
about granting an interdict.

 At the other end of the scale, where his prospects of ultimate success are nil, obviously the Court
will refuse an interdict.

 Between those two extremes fall the intermediate cases in which, on the papers as a whole, the
applicants' prospects of ultimate success may range all the way from strong to weak.

The expression 'prima facie established though open to some doubt' is a brilliantly apt classification of the
latter cases. In such cases, upon proof of a well-grounded apprehension of irreparable harm, and there
being no adequate ordinary remedy, the Court may grant an interdict. Usually this will resolve itself into a
consideration of the prospects of success and the balance of convenience: the stronger the prospects of
success, the less need for such balance to favour the applicant; the weaker the prospects of success, the
greater the need for the balance of convenience to favour him. By balance of convenience is meant the
prejudice to the applicant if the interdict be refused, weighed against the prejudice to the respondent if it be
granted.

UDC Bank v Seacat Leasing and Finance (T, 1979)

This was an appeal against the refusal of an interdict prohibiting the sale by auction by the respondents of
machinery owned by the appellants. The appellant's claim was therefore vindicatory in nature. A vindicatory
action is one in which the plaintiff claims delivery of specific property as owner or at any rate as lawful
possessor. An action is said to be quasi-vindicatory when delivery of specific property is claimed under
some legal right to obtain possession. In all such cases the court is entitled to ensure that the thing shall be
preserved until the dispute is decided finally. If the claims under consideration are neither vindicatory nor
quasi-vindicatory, an applicant cannot obtain an interdict unless it proves, in addition to a prima facie case,
an actual or well-grounded apprehension of irreparable loss if no interdict is granted. In the case of
vindicatory or quasi-vindicatory claims this is presumed until the contrary is shown. If the proposed action is
a vindicatory one, it is unnecessary for the applicant to show that he entertains a reasonable apprehension
that the respondents will part with the thing claimed or its proceeds or that he will suffer irreparable damage
if the interdict is not granted.

The Court rejected the finding of the court a quo that the interdict should be refused as the appellant would
be able to obtain adequate redress by way of an action for damages if the sale did proceed, and held that,
by refusing the interdict, the appellant would be compelled to part with its rights as owner which it had
prima facie established and that in such circumstances interdictory relief ought to be granted. The Court
further held that the refusal to grant an interdict is always appealable.
Airoadexpress v Chairman Local Road Transportation Board, Durban (AD, 1986)

A rule nisi had been granted by the High Court directing the Local Road Transportation Board to issue road
transportation permits to the appellant, pending an appeal by the appellant to the National Transport
Commission against a decision of the board which had refused such permits. The rule was eventually
discharged, the Court holding that it did not have the power to grant the substantive rights claimed by the
appellant pending the decision of the National Transport Commission on appeal. On appeal against the
latter decision of the High Court, the appellants contended that the Court was empowered to grant public
road transportation permits affording interim protection pending an appeal to the Commission, where a
local board's decision was vitiated by irregularity as had occurred in the instant case.

On appeal, it was held that a strong prima facie case had been made out that the permits applied for were
wrongly refused as the local board had misconstrued its powers and a review to the High Court or an
appeal to the National Transport Commission would cause loss and hardship to the appellant through the
consequent delay. There was no indication in the Act that the power of the High Court to grant interim relief
pending an appeal to the National Transport Commission was excluded. On the contrary such power
seemed to be impliedly recognised in the Act.

The inherent jurisdiction of the Court to grant pendente relief to avoid injustice and hardship was a salutary
power which had to be jealously preserved and even extended where exceptional circumstances were
present and where, but for the exercise of such power, a litigant would be remediless as was the position in
the present case. The appeal was upheld.

Safcor v National Transport Commission (AD, 1982)

The Uniform Rules of Court do not provide substantively for the granting of a rule nisi by the Court.
Nevertheless, the practice, in certain circumstances, of doing so is firmly embedded in our procedural law.
The procedure of a rule nisi is usually resorted to in matters of urgency and where the applicant seeks
interim relief in order adequately to protect his immediate interests. It is a useful procedure and one to be
encouraged rather than disparaged in circumstances where the applicant can show, prima facie, that his
rights have been infringed and that he will suffer real loss or disadvantage if he is compelled to rely solely
on the normal procedures for bringing disputes to Court by way of notice of motion or summons.

The decisions of public bodies or officialdom sometimes bear hard on the individual. The impact thereof
may be sudden and devastating. Therefore, as in the case of other types of litigation, applications for the
review of such decisions may require urgent handling and, in proper circumstances, the grant of interim
relief.

Just as the rule nisi procedure (with or without the grant of interim relief) has been engrafted onto the
application procedure, now regulated by Rule 6, so can it be utilised, in appropriate cases, in connection
with the review procedure laid down by Rule 53. In practice the Courts have utilised the rule nisi procedure
in conjunction with review applications. The fact that Rule 53 makes no provision for a rule nisi is of any
real significance. Nor does Rule 6 do so, directly. Normally an applicant should adhere to the procedure
laid down by Rule 53. But the Rule does not preclude a departure from those procedures in cases of
urgency and/or where interim relief is necessary.

The objection that the issue of such a rule nisi places an unwarranted onus on the respondent was held to
be unfounded. All that the rule does is to require the respondent to appear and oppose should he wish to
do so. The overall onus of establishing his case remains with the applicant and the rule does not cast an
onus upon a respondent which he would not otherwise bear.

Spoliation

Spoliation is the wrongful deprivation of another’s right of possession. This may be movable or immovable
property or a legal right. It is used where the applicant was in peaceful possession of something which the
respondent has wrongfully dispossessed him of.

A spoliation order is an order of court which restores the status quo ante (i.e. the position as it was
immediately prior to the spoliation).

The mandament van spolie displays the following 3 characteristics:

(i) it is a possessory remedy;

(ii) it is an extraordinary remedy; and

(iii) it is a speedy remedy.

A spoliation order is a final order and is therefore appealable. It may not be brought ex parte.

Because it aims at returning the spolitated thing ante omnia (before anything), a counter-application or
counter-claim for possession cannot be entertained. Save for the recognised defences that may be put up
by a respondent, the rule spoliatus ante omnia is absolute. Discretion and considerations of convenience
do not enter into it. This means that once the applicant has discharged the onus resting upon him and no
recognised defence has been raised with success, the court has no discretion to refuse the grant of a
spoliation order on the ground of considerations relating to the merits of the dispute between the parties.
The ultimate purpose of the relief is to prevent self-help.

The requirements for a spoliation order are:

1. possession; and

2. wrongful deprivation of possession.

Possession
The applicant must prove that he possessed the spoliated thing but need not prove ownership of
lawfulness of possession. He must have factually held the thing with the intention of securing some benefit
for himself. Effective possession is sufficient; it need not be physical possession.

Wrongful deprivation

The applicant must show that he was wrongfully deprived of possession. The deprivation must be actual
and physical and must not amount to mere interference with possession. Deprivation is wrongful if it
takes place without due process of law and without a special legal right to oust the possessor.

Defences

There are a limited number of defences available to the dispossessor (respondent). The merits of the
dispute between the parties as to who is entitled to possession are absolutely irrelevant. The respondent
may raise the following defences:

(a) that the applicant was not in possession of the spoliated thing;

(b) that there was no deprivation;

(c) that the deprivation was lawful;

(d) counter-spoliation: that the respondent recovered possession immediately following an act of
spoliation by the applicant;

(e) that the respondent is no longer in possession of the spoliated thing and that alienation to an
innocent third party was bona fide, or that the property was destroyed, lost, or damaged.

QUESTIONS

1. What are the requirements for an interim interdict? (5) (2017)

2. List the requirements for an interim interdict. (4)(2012)

3. What is spoliation and what is a mandament of spolie? (6) (2012)

2.10 Rescission and variation of orders and judgments: Rule 31(2)(b), 42(1)(a) and (c) and common
law

- Rule 31
- Rule 42
- Louis Joss Motors (Pty) Ltd v Riholm 1971 (3) SA 452 (T)
 - Hardroad (Pty) Ltd v Oribi Motors 1977 (2) SA 576 (W)
- De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A)
- Groenewald v Gracia (Edms) Bpk 1985 (3)( SA 968 (T)
Pupils are particularly required to understand clearly the differences between applications in terms of Rule 31, Rule
42 and the common law.

31 Judgment on Confession and by Default

(2) (b) A defendant may within twenty days after he or she has knowledge of such judgment apply
to court upon notice to the plaintiff to set aside such judgment and the court may, upon good
cause shown, set aside the default judgment on such terms as to it seems meet.

Commentary

Subrule (2)(b): 'A defendant may…apply to court…to set aside such judgment.' There are three ways in
which a judgment taken in the absence of one of the parties may be set aside, namely in terms of:

(i) this subrule, or

(ii) Rule 42(1)(a), or

(iii) at common law.

An application for rescission may be brought under this subrule where the defendant had been in default of
delivery of notice of intention to defend or of a plea.

'Upon notice to the plaintiff.' The application is not on notice of motion, but merely on notice to the plaintiff.

'The court may upon good cause shown.' The requirements for an application for rescission under the
subrule have been stated to be as follows:

(a) The applicant must give a reasonable explanation of his default. If it appears that his default was
wilful or that it was due to gross negligence the Court should not come to his assistance.

(b) His application must be bona fide and not made with the intention of merely delaying plaintiff's
claim.

(c) He must show that he has a bona fide defence to plaintiff's claim. It is sufficient if he makes out a
prima facie defence in the sense of setting out averments which, if established at the trial, would
entitle him to the relief asked for. He need not deal fully with the merits of the case and produce
evidence that the probabilities are actually in his favour.

Wilful default: While wilful default on the part of the applicant is not a substantive or compulsory ground for
refusal of an application for rescission, the reasons for the applicant's default remain an essential ingredient
of the good cause to be shown. The wilful or negligent nature of the defendant's default is one of the
considerations which the court takes into account in the exercise of its discretion to determine whether or
not good cause is shown. While the court may well decline to grant relief where the default has been wilful
or due to gross negligence, the absence of gross negligence is not an absolute criterion, nor an absolute
prerequisite, for the granting of relief—it is but a factor to be considered in the overall determination of
whether or not good cause has been shown.

Before a person can be said to be in wilful default, the following elements must be shown:

(a) knowledge that the action is being brought against him or her;

(b) a deliberate refraining from entering appearance, though free to do so; and

(c) a certain mental attitude towards the consequences of the default.

The courts have had some difficulty in defining the third requirement. At one stage it was held to be a
willingness that judgment should go against him, because of a knowledge or belief that he has no defence.
The test has also been stated as that the defendant 'knows what he is doing, intends what he is doing, and
is a free agent, and is indifferent as to what the consequences of his default may be'.

Erasmus notes that this latter test has been followed in a number of later cases but it has been suggested
that this test, too, is not conclusive and that the true test is whether the default is a deliberate one, i.e. when
a defendant with full knowledge of the circumstances and of the risks attendant on his default freely takes a
decision to refrain from taking action.

All three elements must be established before the party can be said to have been in wilful default. An
applicant will be held not to be in wilful default if he acted on a bona fide but mistaken belief; or where his
default is due to a mistake, or non-compliance with the rules, on his or her own part or of his or her
attorney; or where the summons had not been properly served.

'Good cause.' In Silber v Ozen Wholesalers (Pty) Ltd, the AD held that 'good cause' includes, but is not
limited to, the existence of a substantial defence. It has been held that the requirement of 'good cause'
cannot be held to be satisfied unless there is evidence not only of the existence of a substantial defence
but, in addition, of the bona fide presently held desire on the part of the applicant for relief actually to raise
the defence concerned in the event of the judgment being rescinded. The subrule imposes on the applicant
for rescission the burden of actually proving, as opposed to merely alleging, good cause for a rescission.

The requirement that the applicant for rescission must show the existence of a substantial defence does,
however, not mean that he must show a probability of success: it suffices if he shows a prima facie case, or
the existence of an issue which is fit for trial. The applicant need not deal fully with the merits of the case,
but the grounds of defence must be set forth with sufficient detail to enable the court to conclude that there
is a bona fide defence, and that the application is not made merely for the purpose of harassing the
respondent.
The court has a wide discretion in evaluating 'good cause' in order to ensure that justice is done.

A rescinded default judgment is a nullity and neither advantage nor disadvantage can flow therefrom; the
applicant is entitled to claim that the status quo ante the judgment be restored.

'On such terms as to it seems meet.' If a defendant established a bona fide defence against a portion of a
plaintiff's claim he is entitled to rescission of the whole judgment.

An application for rescission of a default judgment is regarded as an indulgence and, as a general rule, the
applicant would be ordered to pay the costs of such an application if the respondent's opposition thereto
was reasonable.

42 Variation and rescission of orders

(1) The court may, in addition to any other powers it may have, mero motu or upon the application of
any party affected, rescind or vary:

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party
affected thereby;

(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to
the extent of such ambiguity, error or omission;

(c) an order or judgment granted as the result of a mistake common to the parties.

(2) Any party desiring any relief under this rule shall make application therefor upon notice to all
parties whose interests may be affected by any variation sought.

(3) The court shall not make any order rescinding or varying any order or judgment unless satisfied
that all parties whose interests may be affected have notice of the order proposed.

Commentary

An order of a court of law stands until set aside by a court of competent jurisdiction. Until that is done, the
court order must be obeyed even if it may be wrong; there is a presumption that the judgment is correct.

The general well-established rule is that once a court has duly pronounced a final judgment or order, it has
itself no authority to correct, alter or supplement it – it becomes functus officio. The inherent jurisdiction of
the High Courts does not include the right to interfere with the principle of finality of judgments, other than in
the circumstances specifically provided for in the rules or the common law. The general rule does not apply
to interlocutory orders.

Subrule (1): 'The court may…rescind or vary.' The fact that the application for rescission of judgment is
brought under this subrule does not mean that it cannot be entertained under any other rule such as rule
31(2)(b) or the common law, provided the requirements thereof are met. The court has a discretion whether
or not to grant an application for rescission under this subrule. What is a reasonable time depends upon the
facts of each case. The court does not, however, have a discretion to set aside an order in terms of the
subrule where one of the jurisdictional facts contained in paragraphs (a) – (c) of the subrule does not exist.

Once a judgment has been rescinded, the consequences thereof (for example, the issue of a writ of
execution, a writ of ejectment, the attachment of property and ejectment from property) fall to be set aside.

'Rescind or vary.' The rule deals exclusively with the rescission and variation of judgments and orders; it
confers no jurisdiction on a court to grant an amendment of pleadings after judgment. A court may clarify its
judgment or order if, on a proper interpretation, the meaning remains uncertain and it is sought to give
effect to its true intention.

'In addition to any other powers it may have.' The rule contemplates final orders. At common law an
interlocutory order may at any time before final judgment in the suit be varied or set aside by the judge who
made it or by any other judge sitting in the same court and exercising the same jurisdiction. While the
courts are generally reluctant to grant such a variation, they will do so where the variation sought is purely
procedural or incidental, where fresh facts have arisen since the granting of the order, where the order
does not reflect the intention of the applicant or serve the object for which it was sought, and where
variation will not affect the final judgment.

The rule does not deal exhaustively with the powers of a court to rescind its own final judgment. At common
law a judgment can be set aside on the following grounds: fraud, justus error, in certain exceptional
circumstances when new documents have been discovered, where judgment had been granted by default
and, in the absence between the parties of a valid agreement to support the judgment, on the grounds of
justa causa.

In order to succeed, an applicant for rescission of a judgment taken against him by default must show
good/sufficient cause. This generally entails three elements: the applicant must:

1. give a reasonable (and obviously acceptable) explanation for his default;

2. show that his application is made bona fide; and

3. show that on the merits he has a bona fide defence which prima facie carries some prospect of
success.

In order to succeed on a claim that a judgment be set aside on the ground of fraud it is necessary for the
applicant to allege and prove the following:

(a) that the successful litigant was a party to the fraud;

(b) that the evidence was in fact incorrect;

(c) that it was made fraudulently and with intent to mislead; and
 (d) that it diverged to such an extent from the true facts that the court would, if the true facts had been
placed before it, have given a judgment other than that which it was induced by the incorrect
evidence to give.

A judgment given by consent may be set aside on 'good and sufficient cause', an inquiry to be determined
in accordance with the same principles as are applicable to the rescission of a default judgment in terms of
Rule 31(2).

In setting aside a judgment by consent the courts have regard to the following factors:

(a) the reasonableness of the explanation proffered by the applicant of the circumstances in which the
consent judgment was entered;

(b) the bona fides of the application for rescission; and

(c) the bona fides of the defence on the merits of the case which prima facie carries some prospect of
success.

'Any party affected.' An applicant under this subrule must show, in order to establish locus standi, that he
has an interest in the subject-matter of the judgment or order sufficiently direct and substantial to entitle him
to have intervened in the original application upon which the judgment was given or order granted. He must
have a legal interest in the subject-matter of the action which could be prejudicially affected by the
judgment of the court. The rule also covers the case where there is only one party, such as in an ex parte
application in which the order does not affect the rights of any other party.

A fugitive from justice has the right to defend legal proceedings brought against him and if a summons is
not served on him, he has locus standi to apply for rescission of a judgment erroneously granted against
him or her.

Subrule (1)(a): 'Erroneously sought or erroneously granted…in the absence of…' There are three ways in
which a judgment taken in the absence of one of the parties may be set aside, namely in terms of (i) this
subrule, or (ii) rule 31(2)(b), or (iii) at common law.

In order to obtain a rescission under this subrule the applicant must show that the prior order was
'erroneously sought or erroneously granted'. Once the court holds that an order or judgment was
erroneously sought or granted, it should without further enquiry rescind or vary the order and it is not
necessary for a party to show good cause for the subrule to apply.

In general terms a judgment is erroneously granted if there existed at the time of its issue a fact of which
the judge was unaware, which would have precluded the granting of the judgment and which would have
induced the judge, if aware of it, not to grant the judgment. It follows that if material facts are not disclosed
in an ex parte application or if a fraud is committed (i.e. the facts are deliberately misrepresented to the
court) the order will be erroneously granted.

An order or judgment is also erroneously granted if there was an irregularity in the proceedings, or if it was
not legally competent for the court to have made such an order. The rule does not cover orders wrongly
granted.

Though in most cases such an error would be apparent on the record of the proceedings, it has been held
that in deciding whether a judgment was erroneously granted a court is not confined to the record of the
proceedings. Judgments have been rescinded under this subrule where the capital claimed had already
been paid by the defendant; where the summons had not been served on the respondent; where counsel
for the applicant in an ex parte application had led the court mistakenly to believe that the respondent had
deliberately decided not to consult his attorney or to appear at the hearing; where a final order had been
granted in an ex parte application which had not been served on the respondent whose rights were affected
by the order etc.

A judgment to which a plaintiff is procedurally entitled in the absence of the defendant cannot be said to
have been granted erroneously as contemplated in this subrule in the light of a subsequently disclosed
defence. Such a defence cannot transform a validly obtained judgment into an erroneous one.

Subrule (1)(b): ‘An ambiguity, or a patent error or omission.’ An ambiguity or a patent error or omission
have been described as an ambiguity or an error or omission as a result of which the judgment granted
does not reflect the real intention of the judicial officer pronouncing it; in other words, the ambiguous
language or the patent error or the omission must be attributable to the court itself.

The general principle is that once a court has duly pronounced a final judgment or order, it has itself no
authority to correct, alter or supplement it. The reason is that it thereupon becomes functus officio: its
jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has
ceased. The Constitutional Court and the Appellate Division have, however, recognized a number of
exceptions to this rule:

(a) Supplementing of judgment. The principal judgment or order may be supplemented in respect of
accessory or consequential matters, for example, costs or interest on the judgment debt, which the
court overlooked or inadvertently omitted to grant.

(b) Clarification of judgment. The court may clarify its judgment or order if, on a proper interpretation,
the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its
true intention, provided it does not thereby alter ‘the sense and substance’ of the judgment or
order. The proper court to determine the interpretation to be placed upon a judgment or order is
the court which made it (albeit not the same judge).

(c) Correction of errors in judgment. The court may correct a clerical, arithmetical or other error in its
 judgment or order so as to give effect to its true intention. This exception is confined to the mere
correction of an error in expressing the judgment or order; it does not extend to altering its
intended sense or substance.

(d) Costs not argued. Although a party has the right to have a costs order reconsidered if costs were
not argued at the oral hearing, its argument relating to costs had to be based upon the finding of
the court and not upon argument that the court was wrong in its finding. Thus, if counsel has
argued the merits and not the costs of a case, but the court has made an order regarding the
costs, it may thereafter correct, alter or supplement that order.

(e) General powers. It further appears that the court may have a general discretionary power to
correct other errors in its judgment or order, but this should be exercised sparingly.

The High Court has the inherent competence to correct an incorrect typed version of an order so that it
corresponds to the order which was, in fact made by the court. It is also entitled to amend, supplement or
explain its judgment, provided that the sense or substance thereof is not affected.

If the parties agree to the terms of additional orders and consent to their being made orders of court, the
court would be entitled to supplement its judgment by the grant of such additional orders.

In the application of the above principles the courts have, for example, granted the following: an order
allowing qualifying fees in respect of expert witnesses; an order to include interest where the court had
overlooked the plaintiff’s claim for interest; an amendment of its order as to costs where an order for costs
had been made without hearing argument thereon; an order directing that the (now repealed) tariff of
maximum fees for counsel should not apply; an order altering the amount of damages awarded where the
court had made its original award on a basic figure different from that which had been agreed upon
between the parties.

‘Only to the extent of such ambiguity, error or omission.’ This subrule does not allow the court to revisit the
whole of its order or judgment. It limits the powers of the court to the removal of the ambiguity, error or
omission concerned.

Subrule (1)(c): 'A mistake common to the parties.' This means that both parties are mistaken as to the
correctness of certain facts; this occurs where both parties are of one mind and share the same mistake. A
typical case would be where the parties had agreed upon a statement of facts which was afterwards found
to be incorrect.

A common mistake would cover the case of a judgment entered by consent where the parties consented in
justus error. It is not sufficient, however, if the error is that of:

(a) one of the parties only;

 (b) the court: the general rule is that if the court has given judgment on mistaken facts, the judgment
can be set aside only if the error was due to fraudulent misrepresentation;

(c) a legal representative: where a legal representative consents to judgment under the mistaken
belief that his client had authorised him to do so, the client is entitled to have the judgment
rescinded, for any judgment by consent may, generally speaking, be set aside upon any ground
which will invalidate an agreement between the parties.

The mistake must relate to and be based on something relevant to the question to be decided by the court
or to something in the procedure adopted: it cannot be founded on material which was irrelevant at the time
of the grant of the judgment sought to be set aside. This means that there must be a causative link
between the mistake and the grant of the order or judgment.

Subrule (2): 'Any party desiring any relief…shall make application.' An application under this subrule must
be brought within a reasonable time; inordinate delay in making the application is in itself good reason for
refusing relief.

Gautschi commentary

At common law a judgment can be set aside on grounds of fraud, justus error, where judgment has been
granted by default, and in certain circumstances when new documents have been discovered.

Rule 31(2)(b) makes provision for a defendant to apply to court upon notice to the plaintiff to set aside a
judgment which has been taken in default of any appearance by the defendant. This must be done within
20 days after the defendant acquired knowledge of the judgment. This Rule is limited to instances when
default judgment was obtained in consequence of the defendant’s failure to deliver a notice of intention to
defend or a plea. Therefore, this Rule cannot be utilised to set aside a judgment taken by a plaintiff in the
absence of the defendant when such judgment has been obtained by the plaintiff in terms of Rule 8
(provisional sentence) or Rule 32 (summary judgment), even if the defendant was in default of appearance.

Rule 42 is not restricted to judgments or orders obtained as a consequence of the defendant’s failure to
deliver a notice of intention to defend or plea, but apply to any judgment or order. However, the Rule can
only be utilised in the prescribed circumstances.

In terms of the court’s common law powers, the court is empowered to rescind any order or judgment
obtained on default on sufficient cause shown. The court’s common law discretion extends beyond the
grounds provided for in Rules 31 and 42. An applicant who seeks to have a judgment or order rescinded or
varied in terms of the common law is required to show sufficient cause and the onus rests on the applicant
to do so. Sufficient cause has the same content as that required for rescission in terms of Rule 31(2)(b): the
applicant must set out the reasons for his default as well as the grounds of his defence or cause of action.
The court will be motivated by considerations of justice and fairness and will take into account all the facts
and circumstances. Some examples the following:

(a) Should the party applying for a rescission or variation put forward reasons for his default which are
not particularly convincing, but he has a watertight defence to the plaintiff’s claim which he is intent
on pursuing, the court would be inclined to set aside the judgment.

(b) By the same token, should the defendant who seeks a variation or rescission put forward reasons
for his defence which clearly show that he was not to blame for his failure to appeal the court
would be included to examine the bona fides and merits of his defence with a less critical eye.

Rescission case law

Louis Joss Motors v Rihol (T, 1971)

The Court confirmed that rescission of a summary judgment cannot be claimed under Rule 31(2)(b). A
defendant is certainly not in default of a plea where he has delivered notice of an intention to defend and is
prevented from proceeding with his defence by an application for summary judgment under and by virtue of
the provisions of Rule 32. The fact that he was absent and not represented in Court when the application
for summary judgment was heard and granted, does not make the judgment a default judgment of the kind
contemplated in Rule 31.

The only Rule under which the defendant could have applied for the rescission of this judgment is Rule 42,
but then he would have been limited to the grounds stated in subrule (1) of that Rule. A judgment can also
be rescinded under the common law on any of the grounds on which a restitution in integrum would be
granted by our law, such as fraud or some other cause.

Hardroad v Oribi Motors (W, 1977)

Rule 31(2)(b) makes no reference to a provisional judgment obtained in terms of Rule 8. Accordingly Rule
31(2)(b) can have no application to a provisional judgment under Rule 8. A person who cannot bring his
case for setting aside a judgment under either Rule 31 or 42 may nevertheless be entitled to such remedy
at common law in a proper case, although it appears that such right is limited.

In a case where rescission is sought at common law the proper procedure is by way of action. To succeed
an applicant must show that he has reasonable prospects of success in defending the claim against him.

De Wet v Western Bank (AD, 1979)

The Court held that the fact that a party had not been advised timeously of the withdrawal of his attorney is
a factor to be taken into account in considering whether good cause has been shown for the rescission of a
judgment under common law but it is not a circumstance which he can effectively rely on for the purpose of
an application under the provisions of Rule 42(1)(a).
Under the common law, the Courts of Holland were, generally speaking, empowered to rescind judgments
obtained on default of appearance, on sufficient cause shown. This discretion extended beyond, and was
not limited to, the grounds provided in Rules 31 and 42(1).

On the facts, the Court agreed with a finding by the court a quo that the appellants were the authors of their
own problems and that it would be inequitable to visit the other party to the action with the prejudice and
inconvenience flowing from such conduct. The appeal was dismissed.

Groenewald v Gracia (T, 1985)

The Court noted that the question of negligence on the part of an applicant for rescission of judgment on
the common law ground of justus error has not been discussed in any depth. However, it is clear that an
applicant who is himself negligent and is the author of his own problem will not succeed with his application
for rescission.

The ground of justus error has been broadened by our courts to include situations in which both logic and
common sense dictate that a defaulting party should, as a matter of justice and fairness, be afforded relief.

In the present application for the rescission of an order of provisional sentence obtained by the respondent
against the applicant, it appeared that, shortly after the respondent had served the provisional sentence
summons on the applicant, it served a notice of withdrawal on him. According to the applicant, a provisional
sentence summons, which was identical to the first summons, was annexed to the notice of withdrawal.
The applicant, as a layman, had accepted that the respondent had withdrawn the case against him and
was not proceeding with the action. The applicant had then informed his attorneys that the case against
him had been withdrawn and that it was not necessary for them to take any further steps on his behalf. The
annexed summons was in fact a new summons and provisional sentence was granted thereon some
weeks later. In his application for the rescission of the provisional sentence the applicant relied on the
common law ground of justus error.

It was held that when the applicant received the notice of withdrawal together with the new summons
annexed thereto, he, as a layman, could not be blamed if he was under the bona fide impression that the
annexed summons was indeed the one that was withdrawn. The applicant's conduct thereafter, by
informing his attorney of the withdrawal and instructing him that no further steps should be taken, appeared
under the circumstances to have been reasonable and was not negligent. The application for rescission
was granted.

QUESTIONS

1. Rescission or variation (15) (2015)

Discuss the differences between applications for the rescission or variation of a judgment,
brought in terms of:
 (a) Rule 31(2)(b); (3)

(b) Rule 31(5)(d); (2)

(c) Rule 42(1); and (6)

(d) The common law. (4)

2. Under what circumstances may a Court rescind a summary judgment in terms of the Rules of Court?
(5) (2013)

3. Under what circumstances may an applicant apply for rescission of judgment under Rule 31(2)(b)? (3)
(2012)

4. The defendant must show "good cause" when the court is asked to exercise its discretion in rescinding
a judgment. What are the factors to be taken into account? (5) (2012)

5. Under what circumstances will the court grant the rescission or variation of a judgement in terms of
Rule 42? (3) (2012)

6. On what grounds may an order be set aside in terms of the common law? (4) (2012)

2.11 Applications for Anton Piller orders

- LAWSA Vol 11, paras 328-334

- Shoba v OC Temporary Police Camp, Wagendrift Dam 1995 (4) SA 1 (A) at 15G-18D
- Hall & another v Heyns & others 1991 (1) SA 381 (C)

LAWSA

The Anton Piller order was devised in the UK. It is an order directed at the preservation of evidence. Such
an order is used where a real or personal right is sought to be enforced or asserted.

The order is sought by way of ex parte application in camera. The order is not a rule nisi operating as an
interim interdict. This means that a court is entitled to issue the order against the government and other
organs of state.

An Anton Piller order is, however, sometimes attached to a rule nisi but whereas a rule nisi operating as an
interim interdict usually seeks to maintain the status quo, the Anton Piller order gives instant relief.

In order to obtain an order an applicant must prima facie establish that:

1. the applicant has a cause of action against the respondent which he intends to pursue;
 2. the respondent has in its possession specific and specified documents or things which constituted
vital evidence in substantiation of the applicant’s cause of action (but in respect of which the
applicant cannot claim a real or personal right); and

3. there is a real and well-founded apprehension that this evidence may be hidden or destroyed or in
some manner be spirited away before discovery or by the time the case comes to trial.

When the matter is opposed on the return day, the one view is that the test of prima facie proof may be
inappropriate and the applicant must show that the three requirements are present on a balance of
probability. The other view is that the prima facie test still applies in relation to the question whether there is
a cause of action, but the other disputes have to be considered on a balance of probability and that is can
be done with reference to new material (for instance, the result of the search).

The draft order should provide the following:

(a) declaring that the applicant is entitled to have the application heard in camera without notice to the
respondent;

(b) dispensing with the forms and service provided in terms of Rule 6(12)(a);

(c) ordering the registrar to retain the file;

(d) pending the execution of the order, prohibiting anyone without leave of the court from disclosing
any facts relating to the application;

(e) stipulating that any of the acts to be performed under the order have to be performed by the sheriff
under the supervision of the applicant’s attorney and a ‘supervisory attorney’;

(f) requiring the respondent to point out and to disclose to the sheriff specified matter;

(g) enabling the sheriff to enter and search premises and to seize, attach, and remove specified
material;

(h) ordering the sheriff to keep in his possession the material pending the court’s directions;

(i) allowing the applicant or the attorney or expert to accompany the sheriff in order to point out the
allegedly incriminating matter.

The respondent is entitled to set the matter down for reconsideration by mere notice if the order was
granted in his absence. This is so even if the original order does not provide for the right to anticipate the
return date or to apply for discharge.

Mareva injunction
English law has developed a species of interim interdict, known as the Mareva injunction, in terms of which
a respondent is prevented from disposing of its assets in order to defeat a judgment the applicant believes
it will obtain in due course.

SA law recognises a similar remedy, an anti-dissipation order. It allows an interdict in respect of the
respondent’s property to which the applicant can lay no claim. In order to succeed in obtain an order
preventing the respondent from dealing freely with its assets, the applicant must show that the respondent
is wasting or secreting assets with the intention of defeating the claims of creditors.

Case law

Shoba v OC Temporary Police Camp, Wagendrift Dam (AD, 1995)

The appellant applied for Anton Piller orders, citing as respondents the Minister of Law and Order and
certain senior police officers. The appellant was a seventeen-year-old schoolboy who was arrested by the
police during January 1993 on suspicion of arson and taken to a temporary police camp at Wagendrift
Dam, Natal, where he was allegedly tortured by being subjected to electric shocks. He launched an
application in the Natal Provincial Division for an order allowing him to inspect the police camp and point
out the equipment allegedly used to administer the shocks.

The AD was called upon to decide whether an Anton Piller order directed at the preservation of evidence
should be accepted as part of our practice. The Court held that it should (and that it is not limited to
intellectual property matters). An applicant for such an order, obtained in camera and without notice to the
respondent, must prima facie establish, as the following:

1. that he, the applicant, has a cause of action against the respondent which he intends to pursue;

2. that the respondent has in his possession specific (and specified) documents or things which
constitute vital evidence in substantiation of applicant's cause of action (but in respect of which
applicant cannot claim a real or personal right); and

3. that there is a real and well-founded apprehension that this evidence may be hidden or destroyed
or in some manner be spirited away by the time the case comes to trial or to the stage of
discovery.

The Court noted that 'vital evidence' means evidence of great importance to the applicant's case. It does
not necessarily mean that the evidence must be ‘essential’ or ‘absolutely necessary’, as this would be too
stringent a test.

The Court to which application is made for such an Anton Piller order has a discretion whether to grant the
remedy or not and, if it does, upon what terms. In exercising this discretion the Court will pay regard, inter
alia, to:
 1. the cogency of the prima facie case established with reference to the matters listed (1), (2) and (3)
above;

2. the potential harm that will be suffered by the respondent if the remedy is granted as compared
with, or balanced against, the potential harm to the applicant if the remedy is withheld; and

3. whether the terms of the order sought are no more onerous than is necessary to protect the
interests of the applicant.

The Anton Piller order was designed to deal with situations created by infringements of patents, trademarks
and copyright and more particularly with acts of commercial piracy in these fields. That the Anton Piller
procedure originated in this way is beyond question; but the English decisions show that the procedure has
been extended to other classes of cases as well. There is no authority in English law suggesting that the
Anton Piller procedure should be confined to intellectual property cases.

As a matter of legal policy, there is no reason why the Anton Piller procedure should be confined to
intellectual property cases. The torture of persons in police custody is a very serious matter indeed and
where a person alleges that he has been so tortured and wishes to sue for damages the Court should not
be tardy in coming to his assistance by way of an Anton Piller order for the discovery and identification of
torture equipment in the possession of the police, provided that the three requisites are satisfied. Evidence
of the existence of such equipment would in most instances be vital or critical in any such action for
damages, even though it might not be the only evidence of assault.

Inspection of the premises in question in pursuance of such an Anton Piller order would, in normal
circumstances, not cause more than minor inconvenience to the police, often far less than that caused to a
potential defendant in an intellectual property suit. On the other hand, refusal of such an order in a
deserving case could result in a subsequent denial of justice. Naturally the Courts should be careful to
ensure that the Anton Piller procedure is not used indiscriminately or as an instrument to harass the police
or other potential defendants, but this should not occur if the Court gives careful attention to the above-
mentioned three requisites and exercises its discretion with good judgment.

QUESTIONS

1. What are the requirements for an Anton Piller order? (12) (2013)

2.12 Interpleaders

58 Interpleader

(1) Where any person, in this rule called 'the applicant', alleges that he is under any liability in respect
of which he is or expects to be sued by two or more parties making adverse claims, in this rule
referred to as 'the claimants', in respect thereto, the applicant may deliver a notice, in terms of this
 rule called an 'interpleader notice', to the claimants. In regard to conflicting claims with respect to
property attached in execution, the sheriff shall have the rights of an applicant and an execution
creditor shall have the rights of a claimant.

(2) (a) Where the claims relate to money the applicant shall be required, on delivering the notice
mentioned in subrule (1) hereof, to pay the money to the registrar who shall hold it until the
conflicting claims have been decided.

(b) Where the claims relate to a thing capable of delivery the applicant shall tender the subject-
matter to the registrar when delivering the interpleader notice or take such steps to secure
the availability of the thing in question as the registrar may direct.

(c) Where the conflicting claims relate to immovable property the applicant shall place the title
deeds thereof, if available to him, in the possession of the registrar when delivering the
interpleader notice and shall at the same time hand to the registrar an undertaking to sign all
documents necessary to effect transfer of such immovable property in accordance with any
order which the court may take or any agreement of the claimants.

(3) The interpleader notice shall—

(a) state the nature of the liability, property or claim which is the subject-matter of the dispute;

(b) call upon the claimants within the time stated in the notice, not being less than 15 days from
the date of service thereof, to deliver particulars of their claims; and

(c) state that upon a further date, not being less than 15 days from the date specified in the
notice for the delivery of claims, the applicant will apply to court for its decision as to his
liability or the validity of the respective claims.

(4) There shall be delivered together with the interpleader notice an affidavit by the applicant stating
that

(a) he claims no interest in the subject-matter in dispute other than for charges and costs;

(b) he does not collude with any of the claimants;

(c) he is willing to deal with or act in regard to the subject-matter of the dispute as the court may
direct.

(5) If a claimant to whom an interpleader notice and affidavit have been duly delivered fails to deliver
particulars of his claim within the time stated or, having delivered such particulars, fails to appear
in court in support of his claim, the court may make an order declaring him and all persons
claiming under him barred as against the applicant from making any claim on the subject-matter of
the dispute.

(5A) Simultaneously with the delivery by a claimant of particulars of claim, such claimant shall specify
an address for service within eight kilometres of the office of the registrar as referred to in rule 6(5)
(b).

(6) If a claimant delivers particulars of his claim and appears before it, the court may—

(a) then and there adjudicate upon such claim after hearing such evidence as it deems fit;

(b) order that any claimant be made a defendant in any action already commenced in respect
of the subject-matter in dispute in lieu of or in addition to the applicant;

(c) order that any issue between the claimants be stated by way of a special case or otherwise
and tried, and for that purpose order which claimant shall be plaintiff and which shall be
 defendant;

(d) if it considers that the matter is not a proper matter for relief by way of interpleader notice
dismiss the application;

(e) make such order as to costs, and the expenses (if any) incurred by the applicant under
paragraph (b) of subrule (2), as to it may seem meet.

(7) If an interpleader notice is issued by a defendant in an action, proceedings in that action shall be
stayed pending a decision upon the interpleader, unless the court upon an application made by
any other party to the action otherwise orders.

Commentary

Interpleader is a form of procedure whereby a person in possession of property not his own (e.g. a
stakeholder or other custodian of property to which he lays no claim in his own right), which is claimed from
him by two or more other persons, is enabled to call upon the rival claimants to such property to appear
before the court in order that the right to such property, as between the rival claimants, may be determined
without putting the holder of the property to the trouble and expense of an action or actions.

Interpleader in the case of execution is a species of this genus. By delivering the money or other property in
dispute to the registrar in the manner provided in the rule, the applicant divests himself of the dispute, the
money or property being then held by the registrar for payment or delivery to the successful claimant. The
effect of the procedure is that any action by either of the claimants against the applicant is stayed. The
applicant is not entitled to settle with a claimant and then claim the return of the amount he has lodged with
the registrar. This would be running counter to his own act and to the legal position he has created for the
claimants by that act.

Subrule (1): 'Alleges that he is under any liability…' Essential to the operation of the rule is the allegation by
the applicant that he is being or expects to be sued by two or more parties making adverse claims to
money or property held by him.

'Parties making adverse claims.' It is only when a person is faced with two prima facie valid and
enforceable claims (or the threat thereof) to money or property he is holding and to which he lays no claim,
that resort can be had to this rule. The two claimants must be making 'adverse claims', i.e. to the same
thing, and where this is not so, the proceedings will be set aside as irregular under rule 30.

Subrule (3)(b): 'To deliver particulars of their claims.' The subrule does not expect of a claimant that he
should clothe his claim in the form of an affidavit: all that is expected of him is that he should furnish the
'particulars' of his claim. The purpose is to inform his opponent of the tenor of his case in order to enable
the latter to decide whether or not to oppose the claim. The rule does not require the claimant to set out his
claim with the same precision as in a pleading.

Subrule (6)(b): 'Order that any claimant be made a defendant.' In determining who should be the plaintiff
and who the defendant the court should, so far as the known facts permit, exercise a judicial discretion. As
a rule, when the defendant in an action interpleads, the plaintiff is made the plaintiff in the interpleader and
the other claimant is made the defendant

QUESTIONS

1. Interpleaders (10) (2014)

(a) When may a person deliver an "interpleader notice"? (4)

(b) What right shall a sheriff have in such interpleader proceedings? (1)

(c) What rights shall an execution creditor have in such interpleader proceedings? (1)

(d) Where interpleader proceedings relate to money, how is the disputed money dealt with? (2)

(e) Where interpleader proceedings relate to a thing capable of delivery, how is the thing dealt with
pending the finalization of the proceedings? (2)

2. Interpleaders (10) (2009)

(a) When should a person deliver an interpleader notice?

(b) What rights vest in a sheriff in interpleader proceedings?

(c) What rights vest in an execution creditor in interpleader proceedings?

(d) What happens to money in the case of money claims in interpleader proceedings?

(e) What happens in cases where the claims in that type of proceeding relate to things capable of
delivery?

2.13 Raising of constitutional points: amicus curiae

- Rule 16A
- Phillips v SA Reserve Bank 2013 (6) SA 450; 2012 [2] All SA 532 (SCA)

16A Submissions by an amicus curiae

(1) (a) Any person raising a constitutional issue in an application or action shall give notice thereof
to the registrar at the time of filing the relevant affidavit or pleading.

(b) Such notice shall contain a clear and succinct description of the constitutional issue
concerned.
 (c) The registrar shall, upon receipt of such notice, forthwith place it on a notice board
designated for that purpose.

(d) The notice shall be stamped by the registrar to indicate the date upon which it was placed on
the notice board and shall remain on the notice board for a period of 20 days.

(2) Subject to the provisions of national legislation enacted in accordance with section 171 of the
Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and these rules, any
interested party in a constitutional issue raised in proceedings before a court may, with the written
consent of all the parties to the proceedings, given not later than 20 days after the filing of the
affidavit or pleading in which the constitutional issue was first raised, be admitted therein as
amicus curiae upon such terms and conditions as may be agreed upon in writing by the parties.

(3) The written consent contemplated in subrule (2) shall, within five days of its having been obtained,
be lodged with the registrar and the amicus curiae shall, in addition to any other provision, comply
with the times agreed upon for the lodging of written argument.

(4) The terms and conditions agreed upon in terms of subrule (2) may be amended by the court.

(5) If the interested party contemplated in subrule (2) is unable to obtain the written consent as
contemplated therein, he or she may, within five days of the expiry of the 20-day period prescribed
in that subrule, apply to the court to be admitted as an amicus curiae in the proceedings.

(6) An application contemplated in subrule (5) shall—

(a) briefly describe the interest of the amicus curiae in the proceedings;

(b) clearly and succinctly set out the submissions which will be advanced by the amicus curiae,
the relevance thereof to the proceedings and his or her reasons for believing that the
submissions will assist the court and are different from those of the other parties; and

(c) be served upon all parties to the proceedings.

(7) (a) Any party to the proceedings who wishes to oppose an application to be admitted as an
amicus curiae, shall file an answering affidavit within five days of the service of such
application upon such party.

(b) The answering affidavit shall clearly and succinctly set out the grounds of such opposition.

(8) The court hearing an application to be admitted as an amicus curiae may refuse or grant the
application upon such terms and conditions as it may determine.

(9) The court may dispense with any of the requirements of this rule if it is in the interests of justice to
do so.

Commentary

Any party that raises a constitutional issue in an action or application must give notice of this, in terms of a
Rule 16A notice, to the Registrar. The notice must contain a clear and succinct description of constitutional
issue.

The registrar, on receipt of the notice the notice, must place it on a notice board designated for purpose.
The date stamped on the notice is the date it was placed on the notice board. The notice will remain there
for a period of 20 days.
Any interested party in a constitutional issue raised in proceedings before a court may, with the written
consent of all the parties to the proceedings, given not later than 20 days after the filing of the affidavit or
pleading in which the constitutional issue was first raised, be admitted as amicus curiae upon such terms
and conditions as may be agreed upon in writing by the parties. Written consent shall within five days of
receipt be lodged with registrar. The amicus must comply with times agreed upon for the filing written
argument. The terms and conditions in this regard can be amended by court.

If interested party does not obtain written consent, it can apply to court within five days of expiry of 20 day
period to be admitted as an amicus curiae. The application shall:

(a) briefly describe the interest of amicus in the proceedings;

(b) clearly and succinctly set out the submissions that the amicus will advance, their relevance to
proceedings and reasons these submissions will assist the court;

(c) be served on all parties.

Any party wishing to oppose the application shall file answering affidavit within five days of receiving the
application. The affidavit must set out succinctly the party’s grounds of opposition.

The court may refuse or grant the application, and may dispense with any of the above requirements if it is
the interests of justice to do so.

QUESTIONS

1. Constitutional issues (7) (2016)

What procedural obligations are imposed by Rule 16(A) on a person who wishes to raise a
constitutional point before a Court?

2. Raising of constitutional points: amicus curiae (16) (2014)

(a) Describe the procedure to be followed when a constitutional issue is raised in an

application or action.

(b) Describe the requirements to be admitted as amicus curiae?

3. What procedure must be followed by a litigant who seeks to raise a constitutional issue? (7) (2013)
4. COSTS: FUNDAMENTAL RULES AND EXCEPTIONS THERETO

- LAWSA Vol 3, paras 769-794;

- DPP (KZN) v Henry & others [2008] JOL 21802 (SCA)

Introduction

The purpose of an award of costs to a successful litigant is to indemnify the litigant for the actual expense
to which he has been put through having been unjustly compelled to initiate or defend litigation.

The basic rule is that all costs are in the discretion of the court. In Kruger Bros & Wasserman v Ruskin
(1918, AD) Innes CJ said:

“the rule of our law is that all costs – unless expressly otherwise enacted – are in the discretion of the
Judge. His discretion must be judicially exercised, but it cannot be challenged, taken alone and apart
from the main order, without his permission.”

Even the general rule that costs follow the event is subject to the court’s discretion.

Costs follow the event

The general rule is that costs follow the event. The successful party should be awarded costs. The rule
should be departed from only where good grounds for doing so exist. In the absence of special
circumstances, therefore, a successful litigant is entitled to costs.

‘Success’ means ‘substantial success’.

As a general rule, separate and distinct issues carry their own costs.

Where there is a main claim and an alternative claim, a plaintiff who succeeds on the main claim will, as a
general rule, be awarded all of his costs.

Costs in constitutional matters

The general rule in constitutional litigation is that an unsuccessful litigant ought not to be ordered to pay
costs to the State (Biowatch (2009, CC)). The rationale for that rule is that an award of costs might have a
chilling effect on litigants who may wish to vindicate their constitutional rights.

The cautious approach which underlies the rule cannot, however, be allowed to develop into an inflexible
rule so that litigants are induced into believing that they are free to challenge the constitutionality of
statutory provisions no matter how spurious the grounds for doing so may be or how remote the possibility
of success. A party should not be immunised from appropriate sanctions, in the form of an adverse cost
order, if its conduct has been vexatious, frivolous, professionally unbecoming or in any other similar way
abusive of the processes of the court.

Costs on different scales

As a general rule, a litigant instituting proceedings in the High Court when he ought to have proceeded in a
lower court will be mulcted in costs in so far as such litigant will, if successful, be awarded costs only on the
scape applicable in the lower court.

Successful party deprived of costs

The fact that a claim exceed the award of the court will not in itself lead to the plaintiff being deprived of
costs. The court may, however, deprive a plaintiff of costs where the plaintiff’s claim is exorbitant or there is
a gross disproportion between the claim and the award.

A plaintiff may be deprived of costs where he ought to have known that the claim was excessive.

A litigant who has proved a substantial right will not be deprived of costs merely because such litigant has
recovered only nominal damages.

The general rule is that a party is liable to pay costs unnecessarily incurred through such party’s failure to
take proper steps, or by taking wholly unnecessary steps, or by adopting the wrong procedure.

A successful defendant will normally be deprived of a portion of the costs of trial if such defendant failed to
apply for absolution at the close of the plaintiff’s case where such application ought to have been made.
Where a party could summarily have disposed of proceedings by taking an exception or objection in limine,
but unreasonably omitted to do so, such party may be ordered to pay the wasted costs.

Vexatious litigants, although successful, may be deprived of their costs if the court considers that the
litigation was so wholly unnecessary as to appear to have been merely vexatious or for the sole purpose of
creating costs.

A successful defendant must be awarded his costs unless there is evidence that the defendant brought
about the litigation, has done something connected with the institution of the conduct of the suit calculated
to occasion unnecessary litigation and expense, or has done some wrongful act in the course of the
transaction of which the plaintiff complains.

Conduct of legal practitioners

The conduct of legal practitioners may in certain circumstances lead to a successful party being deprived of
the whole or a part of his costs. The court is reluctant to penalise a litigant for his attorney’s conduct, but
where failure to comply with the rules is due to neglect on the party of the litigant’s attorney, there are limits
beyond which a litigant cannot escape the results of his attorney’s lack of diligence.
Party and party costs and attorney and client costs

The concepts ‘party and party’ costs and ‘attorney and client costs’ have been defined in various ways.

Party and party costs are those costs which have been incurred by a party to legal proceedings and which
the other party is ordered to pay to him. They do not include all costs which a party may have incurred but
only such costs, charges, and expenses which appear to the taxing master to have been necessary or
proper for the attainment of justice or for defending the rights of any party.

Attorney and client costs are the costs which an attorney is entitled to recover from his client for the
disbursements made by him on behalf of his client and the professional services rendered by him. These
costs are payable by the client whatever the outcome of the matter in which he engaged the attorney’s
services and are not dependent upon any award of costs by the court.

Herbstein and van Winsen explain as follows with regard to attorney and client costs:

“Attorney-and-client costs are the costs that an attorney is entitled to recover from his client for the
disbursements made by him on behalf of his client and for the professional services rendered by him.
These costs are payable by the client whatever the outcome of the matter in which he engaged the
attorney’s services, and are not dependent upon any award of costs by the court. In the wide sense, it
includes all the costs that the attorney is entitled to recover against his client on taxation of his bill of
costs, but in the narrow and more technical sense the term is applied to those costs, charges and
expenses as between attorney and client that ordinarily the client cannot recover from the other party.
The position set out above ordinarily applies. In special cases, however, the court may award a litigant
costs against his adversary on an attorney-and-client basis. In that event, the successful litigant
becomes entitled to recover from the unsuccessful party all the costs that on taxation are due by him to
his attorney.”

The ordinary rule is that the successful party is awarded costs as between party and party. An award of
attorney and client costs is not lightly granted by the court.

The court is generally bound to give effect to an agreement to pay attorney and client costs. However, the
court retains its discretion to refuse to enforce such an agreement.

Conduct which is vexatious and an abuse of legal process may form the basis for an order that costs be
paid on an attorney and client scale, even though there may not be an intention to be vexatious. Vexatious,
unscrupulous, dilatory or mendacious conduct on the part of an unsuccessful litigant may render it unfair for
his harassed opponent to be out of pocket in the manner of his own attorney and client costs. Attorney and
client costs may also be awarded against an unsuccessful litigant whose conduct has been unworthy,
reprehensible, or blameworthy.

Costs on an attorney and own client scale and costs de bonis propriis

Our courts recognise a distinction between attorney-and-client costs, on the one hand, and attorney-and-
own-client costs, on the other. In the absence of an agreement, an attorney is entitled to recover from his
or her client only the amount that the taxing master allows on the attorney-and-client scale. By agreement,
express or tacit, the attorney may be entitled to more than the taxable amount, and this agreed amount or
scale of fees is what is referred to as attorney-and-own-client costs.

A court is entitled to order an unsuccessful litigant to pay to the successful party’s attorney-and-own-client
costs, bearing in mind that such an order is a punitive one. An order for costs on the scale of attorney-and-
own-client should in general be approached as follows:

(a) it is proper in exceptional circumstances only;

(b) it should be kept in mind that the ostensible purpose of such an order is to recompense the
successful litigant as far as can be done; and

(c) what the attorney can recover from his or her client should be ascertained. This appears to consist
of expenses specifically authorised (expressly or impliedly), other expenses that the attorney
considered necessary in managing the client’s affairs, and fees expressly or impliedly agreed
upon.

Costs de bonis propriis can be awarded against a person litigating in a representative capacity, rendering
that person liable to pay the opponent’s costs out of her or his own pocket, but this is unusual.

Case law

DPP v Henry (SCA, 2008)

This was an appeal against an order of costs granted against the appellant in review proceedings in the
High Court. The Court noted that it is well established that in awarding costs, a court of first instance
exercises a judicial discretion and a court of appeal will interfere only if the exercise of that discretion is
vitiated by misdirection or irregularity, or if there are no grounds on which a court, acting reasonably, could
have made the order in question. Merely because the court of appeal may have made a different order is
no justification for interference.

The court dismissed the appeal, finding no reason to interfere with the discretion of the court a quo.
5. NATIONAL CREDIT ACT

- National Credit Act sections 65, 86, 88, 129 and 130
- Collett v First Rand Bank 2011 (3) SA 585 (SCA)
- Nedbank v National Credit Regulator 2011 [4] All SA 131 (SCA)
- Rossouw v First Rand Bank [2011 All SA 56 (SCA)
- Sebola v Standard Bank 2012 (5) SA 142 (CC)
- Kubyana v Standard Bank 2014 (3) SA 56 (CC)

65 Right to receive documents

(1) Every document that is required to be delivered to a consumer in terms of this Act must be
delivered in the prescribed manner, if any.

(2) If no method has been prescribed for the delivery of a particular document to a consumer, the
person required to deliver that document must-

(a) make the document available to the consumer through one or more of the following
mechanisms-

(i) in person at the business premises of the credit provider, or at any other location
designated by the consumer but at the consumer's expense, or by ordinary mail;

(ii) by fax;

(iii) by email; or

(iv) by printable web-page; and

(b) deliver it to the consumer in the manner chosen by the consumer from the options made
available in terms of paragraph (a).

(3) A credit provider must not charge a fee for the original copy of any document required to be
delivered to a consumer in terms of this Act.

(4) On written request from the consumer the credit provider must provide the consumer with-

(a) a single replacement copy of a document required in terms of this Act, without charge to the
consumer, at any time within a year after the date for original delivery of that document; and

(b) any other replacement copy, subject to any search and production fees permitted by
regulation.

(5) On application by a credit provider, the Tribunal may make an order limiting the credit provider's
obligation in terms of subsection (4) if the Tribunal is satisfied that the consumer's requests for
information are frivolous or vexatious.

(6) Subsections (3), (4) and (5) do not apply to a developmental credit agreement if-

(a) the National Credit Regulator has pre-approved procedures to be followed by the credit
provider in the delivery of documents with respect to such credit agreements in terms of this
Act; and

(b) the credit provider has complied with those pre-approved procedures in dealing with the
 particular consumer.

(7) When pre-approving any procedure as contemplated in subsection (6), the National Credit
Regulator must balance the need for efficiency of the credit provider with the principles of
subsections (1) to (5).

86 Application for debt review

(1) A consumer may apply to a debt counsellor in the prescribed manner and form to have the
consumer declared over-indebted.

(2) An application in terms of this section may not be made in respect of, and does not apply to, a
particular credit agreement if, at the time of that application, the credit provider under that credit
agreement has proceeded to take the steps contemplated in section 129 to enforce that
agreement.

(3) A debt counsellor-

(a) may require the consumer to pay an application fee, not exceeding the prescribed amount,
before accepting an application in terms of subsection (1); and

(b) may not require or accept a fee from a credit provider in respect of an application in terms of
this section.

(4) On receipt of an application in terms of subsection (1), a debt counsellor must-

(a) provide the consumer with proof of receipt of the application;

(b) notify, in the prescribed manner and form-

(i) all credit providers that are listed in the application; and

(ii) every registered credit bureau.

(5) A consumer who applies to a debt counsellor, and each credit provider contemplated in subsection
(4) (b), must-

(a) comply with any reasonable requests by the debt counsellor to facilitate the evaluation of the
consumer's state of indebtedness and the prospects for responsible debt rearrangement;
and

(b) participate in good faith in the review and in any negotiations designed to result in
responsible debt re-arrangement.

(6) A debt counsellor who has accepted an application in terms of this section must determine, in the
prescribed manner and within the prescribed time-

(a) whether the consumer appears to be over-indebted; and

(b) if the consumer seeks a declaration of reckless credit, whether any of the consumer's credit
agreements appear to be reckless.

(7) If, as a result of an assessment conducted in terms of subsection (6), a debt counsellor reasonably
concludes that-

(a) the consumer is not over-indebted, the debt counsellor must reject the application, even if
the debt counsellor has concluded that a particular credit agreement was reckless at the
time it was entered into;
 (b) the consumer is not over-indebted, but is nevertheless experiencing, or likely to experience,
difficulty satisfying all the consumer's obligations under credit agreements in a timely
manner, the debt counsellor may recommend that the consumer and the respective credit
providers voluntarily consider and agree on a plan of debt rearrangement; or

(c) the consumer is over-indebted, the debt counsellor may issue a proposal recommending that
the Magistrate's Court make either or both of the following orders-

(i) that one or more of the consumer's credit agreements be declared to be reckless
credit, if the debt counsellor has concluded that those agreements appear to be
reckless; and

(ii) that one or more of the consumer's obligations be re-arranged by-

(aa) extending the period of the agreement and reducing the amount of each
payment due accordingly;

(bb) postponing during a specified period the dates on which payments are due under
the agreement;

(cc) extending the period of the agreement and postponing during a specified period
the dates on which payments are due under the agreement; or

(dd) recalculating the consumer's obligations because of contraventions of Part A or

B of Chapter 5, or Part A of Chapter 6.

(8) If a debt counsellor makes a recommendation in terms of subsection (7) (b) and-

(a) the consumer and each credit provider concerned accept that proposal, the debt counsellor
must record the proposal in the form of an order, and if it is consented to by the consumer
and each credit provider concerned, file it as a consent order in terms of section 138; or

(b) if paragraph (a) does not apply, the debt counsellor must refer the matter to the Magistrate's
Court with the recommendation.

(9) If a debt counsellor rejects an application as contemplated in subsection (7) (a), the consumer,
with leave of the Magistrate's Court, may apply directly to the Magistrate's Court, in the prescribed
manner and form, for an order contemplated in subsection (7) (c).

(10) (a) If a consumer is in default under a credit agreement that is being reviewed in terms of this
section, the credit provider in respect of that credit agreement may, at any time at least 60
business days after the date on which the consumer applied for the debt review, give notice
to terminate the review in the prescribed manner to—

(i) the consumer;

(ii) the debt counsellor; and

(iii) the National Credit Regulator; and

(b) No credit provider may terminate an application for debt review lodged in terms of this Act, if
such application for review has already been filed in a court or in the Tribunal.

(11) If a credit provider who has given notice to terminate a review as contemplated in subsection (10)
proceeds to enforce that agreement in terms of Part C of Chapter 6, the Magistrate's Court hearing
the matter may order that the debt review resume on any conditions the court considers to be just
in the circumstances.
87. Magistrate’s Court may re-arrange consumer’s obligations.

(1) If a debt counsellor makes a proposal to the Magistrate’s Court in terms of section 86 (8) (b), or a
consumer applies to the Magistrate’s Court in terms of section 86 (9), the Magistrate’s Court must
conduct a hearing and, having regard to the proposal and information before it and the consumer’s
financial means, prospects and obligations, may—

(a) reject the recommendation or application as the case may be; or

(b) make—

(i) an order declaring any credit agreement to be reckless, and an order contemplated
in section 83 (2) or (3) [set aside the agreement or suspend the debtors obligations], if
the Magistrate’s Court concludes that the agreement is reckless;

(ii) an order re-arranging the consumer’s obligations in any manner contemplated

in section 86 (7) (c) (ii); or

(iii) both orders contemplated in subparagraph (i) and (ii).

(2) The National Credit Regulator may not intervene before the Magistrate’s Court in a matter referred
to it in terms of this section.

88 Effect of debt review or re-arrangement order or agreement

(1) A consumer who has filed an application in terms of section 86 (1), or who has alleged in court
that the consumer is over-indebted, must not incur any further charges under a credit facility or
enter into any further credit agreement, other than a consolidation agreement, with any credit
provider until one of the following events has occurred:

(a) The debt counsellor rejects the application and the prescribed time period for direct filing in
terms of section 86 (9) has expired without the consumer having so applied;

(b) the court has determined that the consumer is not over-indebted, or has rejected a debt
counsellor's proposal or the consumer's application; or

(c) a court having made an order or the consumer and credit providers having made an
agreement re-arranging the consumer's obligations, all the consumer's obligations under the
credit agreements as re-arranged are fulfilled, unless the consumer fulfilled the obligations
by way of a consolidation agreement.

(2) If a consumer fulfils obligations by way of a consolidation agreement as contemplated in

subsection (1) (c), or this subsection, the effect of subsection (1) continues until the consumer
fulfils all the obligations under the consolidation agreement, unless the consumer again fulfilled the
obligations by way of a consolidation agreement.

(3) Subject to section 86 (9) and (10), a credit provider who receives notice of court proceedings
contemplated in section 83 or 85, or notice in terms of section 86 (4) (b) (i), may not exercise or
enforce by litigation or other judicial process any right or security under that credit agreement until-

(a) the consumer is in default under the credit agreement; and

(b) one of the following has occurred:

(i) An event contemplated in subsection (1) (a) through (c); or

(ii) the consumer defaults on any obligation in terms of a re-arrangement agreed between
the consumer and credit providers, or ordered by a court or the Tribunal.
(4) If a credit provider enters into a credit agreement, other than a consolidation agreement
contemplated in this section, with a consumer who has applied for a debt re-arrangement and that
re-arrangement still subsists, all or part of that new credit agreement may be declared to be
reckless credit, whether or not the circumstances set out in section 80 apply.

(5) If a consumer applies for or enters into a credit agreement contrary to this section, the provisions
of this Part will never apply to that agreement.

129 Required procedures before debt enforcement

(1) If the consumer is in default under a credit agreement, the credit provider-

(a) may draw the default to the notice of the consumer in writing and propose that the consumer
refer the credit agreement to a debt counsellor, alternative dispute resolution agent,
consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute
under the agreement or develop and agree on a plan to bring the payments under the
agreement up to date; and

(b) subject to section 130 (2), may not commence any legal proceedings to enforce the
agreement before-

(i) first providing notice to the consumer, as contemplated in paragraph (a), or in section
86 (10), as the case may be; and

(ii) meeting any further requirements set out in section 130.

(2) Subsection (1) does not apply to a credit agreement that is subject to a debt restructuring order, or
to proceedings in a court that could result in such an order.

(3) Subject to subsection (4), a consumer may-

(a) at any time before the credit provider has cancelled the agreement re-instate a credit
agreement that is in default by paying to the credit provider all amounts that are overdue,
together with the credit provider's permitted default charges and reasonable costs of
enforcing the agreement up to the time of re-instatement; and-

(b) after complying with paragraph (a), may resume possession of any property that had been
repossessed by the credit provider pursuant to an attachment order.

(4) A consumer may not re-instate a credit agreement after-

(a) the sale of any property pursuant to-

(i) an attachment order; or

(ii) surrender of property in terms of section 127;

(b) the execution of any other court order enforcing that agreement; or

(c) the termination thereof in accordance with section 123.

130 Debt procedures in a Court

(1) Subject to subsection (2), a credit provider may approach the court for an order to enforce a credit
agreement only if, at that time, the consumer is in default and has been in default under that credit
agreement for at least 20 business days and-

(a) at least 10 business days have elapsed since the credit provider delivered a notice to the
 consumer as contemplated in section 86 (9), or section 129 (1), as the case may be;

(b) in the case of a notice contemplated in section 129 (1), the consumer has-

(i) not responded to that notice; or

(ii) responded to the notice by rejecting the credit provider's proposals; and

(c) in the case of an instalment agreement, secured loan, or lease, the consumer has not
surrendered the relevant property to the credit provider as contemplated in section 127.

(2) In addition to the circumstances contemplated in subsection (1), in the case of an instalment
agreement, secured loan, or lease, a credit provider may approach the court for an order enforcing
the remaining obligations of a consumer under a credit agreement at any time if-

(a) all relevant property has been sold pursuant to-

(i) an attachment order; or

(ii) surrender of property in terms of section 127; and

(b) the net proceeds of sale were insufficient to discharge all the consumer's financial
obligations under the agreement.

(3) Despite any provision of law or contract to the contrary, in any proceedings commenced in a court
in respect of a credit agreement to which this Act applies, the court may determine the matter only
if the court is satisfied that-

(a) in the case of proceedings to which sections 127, 129 or 131 apply, the procedures required
by those sections have been complied with;

(b) there is no matter arising under that credit agreement, and pending before the Tribunal, that
could result in an order affecting the issues to be determined by the court; and

(c) that the credit provider has not approached the court-

(i) during the time that the matter was before a debt counsellor, alternative dispute
resolution agent, consumer court or the ombud with jurisdiction; or

(ii) despite the consumer having-

(aa) surrendered property to the credit provider, and before that property has been
sold;

(bb) agreed to a proposal made in terms of section 129 (1) (a) and acted in good faith
in fulfilment of that agreement;

(cc) complied with an agreed plan as contemplated in section 129 (1) (a); or

(dd) brought the payments under the credit agreement up to date, as contemplated in
section 129 (1) (a).

(4) In any proceedings contemplated in this section, if the court determines that-

(a) the credit agreement was reckless as described in section 80, the court must make an order
contemplated in section 83;

(b) the credit provider has not complied with the relevant provisions of this Act, as contemplated
in subsection (3) (a), or has approached the court in circumstances contemplated in
 subsection (3) (c) the court must-

(i) adjourn the matter before it; and

(ii) make an appropriate order setting out the steps the credit provider must complete
before the matter may be resumed;

(c) the credit agreement is subject to a pending debt review in terms of Part D of Chapter 4, the
court may-

(i) adjourn the matter, pending a final determination of the debt review proceedings;

(ii) order the debt counsellor to report directly to the court, and thereafter make an order
contemplated in section 85 (b); or

(iii) if the credit agreement is the only credit agreement to which the consumer is a party,
order the debt counsellor to discontinue the debt review proceedings, and make an
order contemplated in section 85 (b);

(d) there is a matter pending before the Tribunal, as contemplated in subsection (3) (b), the
court may-

(i) adjourn the matter before it, pending a determination of the proceedings before the
Tribunal; or

(ii) order the Tribunal to adjourn the proceedings before it, and refer the matter to the
court for determination; or

(e) the credit agreement is either suspended or subject to a debt re-arrangement order or
agreement, and the consumer has complied with that order or agreement, the court must
dismiss the matter.

Case law

Collett v FNB (SCA, 2011)

The Court held that a credit provider may terminate a debt review in terms of section 86(10) even after the
matter has been referred to the magistrates' court for a rearrangement order in terms of section 87 . This
right is, however, counterbalanced by the obligation of both the credit provider and consumer to participate
in the debt-review process in good faith so as to achieve a responsible debt rearrangement. A failure to do
so by the credit provider may lead to a resumption of the debt review under section 86(11).

The Court further noted that there is a lacuna in section 86(11), and the words 'or High Court' must be read
in after the words 'Magistrate's Court’ in order to ensure that the magistrates' court and the High Court
hearing proceedings to enforce a credit agreement may grant an order for the resumption of the debt
review.

Nedbank v National Credit Regulator (SCA, 2011)

The Court cleared up the confusion regarding the interplay between sections 86(2) and 129(1)(a), holding
that by giving the notice envisaged by section 129(1)(a) the credit provider 'has proceeded to take the
steps contemplated in section 129 to enforce that agreement'. A debt review relating to that specific
agreement is thereafter excluded. Thus the impact of this decision is that a credit provider ‘proceeds to take
the steps’ contemplated in section 129 where he takes the first step contemplated by section 129(1)(a), that
is, when he gives notice to the debtor as required by that subsection. In other words, section 86(2) is
triggered by service of the section 129(1)(a) notice alone. If the consumer does not approach a debt
counselor within 10 days of receipt of that notice, he is precluded from doing so unless the court invokes its
discretion in terms of section 85.

In respect of section 103(5) of the NCA, it was held that this section effectively abolishes the common-law
in duplum rule insofar as it concerns credit agreements within the ambit of the Act. Once the amounts
referred to in section 101(1)(b) – (g) that accrue during the period of default, whether or not they are paid,
equal in aggregate the unpaid balance of the principal debt at the time the default occurs, no further
charges may be levied.

Rossouw v First Rand Bank (SCA, 2011)

The question in this case was whether the bank’s sending of a section 129(1)(a) notice by registered post
to the appellant’s chosen domicilium address stipulated in the agreement was sufficient for purposes of the
section. The Court confirmed that it was.

It held that it is sufficient for the creditor to deliver the notice in a manner chosen by a consumer from the
six delivery options provided in section 65(2)(a). So, if the consumer has chosen to have notices sent by
ordinary mail and the credit provider follows this method of delivery, actual receipt of the notice is the
consumer’s responsibility.

The Court held that the legislature’s grant to the consumer of a right to choose the manner of delivery
pointed to an intention to place the risk of non-receipt on the consumer’s shoulders. With every choice lies
a responsibility, and it is within a consumer’s sole knowledge as to which means of communication will
reasonably ensure delivery to him. Having established what section 129(1) required of the respondent, it
was necessary to determine whether or not the latter complied with the section. No allegation was made,
either in the summons or the summary judgment affidavit, regarding the method employed in delivering the
notice. At no point during the pleadings did the respondent confirm that a registered letter was actually sent
to the appellant. Thus it was held that the respondent did not prove that it delivered the notice. Sections
129(1)(b)(i) and 130(1)(b) make this a peremptory prerequisite for commencing legal proceedings under a
credit agreement, and a critical cog in a plaintiff’s cause of action. Failure to comply must, of necessity,
preclude a plaintiff from enforcing its claim.

The appeal was upheld, and the application for summary judgment was dismissed.

Sebola v Standard Bank (CC, 2012)

The Court held that the requirement that a credit provider provide notice in terms of section 129(1)(a) to the
consumer must be understood in conjunction with section 130, which requires delivery of the notice. The
statute, though giving no clear meaning to 'deliver', requires that the credit provider seeking to enforce a
credit agreement aver and prove that the notice was delivered to the consumer. Where the credit provider
posts the notice, proof of registered despatch to the address of the consumer, together with proof that the
notice reached the appropriate post office for delivery to the consumer, will in the absence of contrary
indication constitute sufficient proof of delivery.

Kubyana v Standard Bank of South Africa Ltd (CC, 2014)

The Court held that when delivery of a section 129(1)(a) notice occurs through the postal service, proof that
these obligations have been discharged entails proof that:

(1) the section 129 notice was sent via registered mail and was sent to the correct branch of the Post
Office, in accordance with the postal address nominated by the consumer. This may be deduced
from a track and trace report and the terms of the relevant credit agreement;

(2) the Post Office issued a notification to the consumer that a registered item was available for her
collection;

(3) the Post Office’s notification reached the consumer. This may be inferred from the fact that the
Post Office sent the notification to the consumer’s correct postal address, which inference may be
rebutted by an indication to the contrary; and

(4) a reasonable consumer would have collected the section 129 notice and engaged with its
contents. This may be inferred if the credit provider has proven (a)-(c), which inference may, again,
be rebutted by a contrary indication: an explanation of why, in the circumstances, the notice would
not have come to the attention of a reasonable consumer.

QUESTION

1. Section 86(10) of the National Credit Act (8) (2016)

(a) When and under what circumstances may a creditor send a debtor a Section 86(10) notice
after having being informed of a consumer's application for debt review?

(b) What are the orders a Court may make after a consumer has made a proposal in terms of
Section 86(8)(b) or a consumer has made application to the Magistrates Court in terms of
Section 86(9)?
TRUE OR FALSE QUESTIONS

1. State whether the following is TRUE or FALSE and provide a reason for your answer: (5) (2017)

(a) A party is not allowed to introduce an amendment to its pleadings if the amendment introduces a
new cause of action.

(b) “Dies non” provided for in the Uniform Rules of Court, apply only to actions and not to applications.

(c) In provisional sentence proceedings, the Court cannot hear oral evidence.

(d) Failure to deliver a replication within the time stipulated in the Uniform Rules of Court, results in an
automatic bar and no notice of bar is necessary.

(e) The Registrar shall determine the liability to provide security for costs.

2. Answer true or false: (2012)

(a) In application proceedings (other than ex parte) when the incorrect form is used, it will necessarily
result in the Notice of Motion being a nullity which cannot be condoned. (1)

(b) Summary judgment can be granted on a claim based on a covering bond. (1)

(c) A plaintiff suing a partnership need not allege the names of all the partners of the partnership. (1)

(d) A respondent in a Rule 43-application may rely on dies non between 16 December and 15
January in relation to the delivery of a sworn reply. (1)

(e) A party who wishes to amend his pleadings may do so provided that he has not closed his case.
(1)

(f) The filing of a notice in respect of furnishing security (in terms of Rule 47) does not constitute "a
further step in the cause" for purposes of an application to set aside an irregular step taken by
another party. (1)

(g) An applicant must first apply for the appointment of a curator ad /item before a curator bonis or
curator ad personam is appointed. (1)

(h) Where substituted service has been ordered, the practice is to issue a citation and to follow this up
with an intendit. (1)

(i) A deed of suretyship in respect of debts which may become owing in future, accompanied by a
certificate certifying the amount due at any given time, is a liquid document. (1)
(j) In the case of a dispute of fact, an applicant can only succeed if the facts as stated by the
applicant, together with the facts in the respondent's affidavit which have been admitted, justify the
order sought. (1)