How to deal with retrenchment proactivelyJune 14, 2019
Wills and Testaments: InterpretationJuly 10, 2019
Rule 32(1) determines the following: “The Plaintiff may, after the Defendant has delivered a plea, apply to court for summary judgment on each of such claims in the summons as is only:
On a liquid document;
For a liquidated amount in money;
For delivery of specified movable property;
Previously, an application for summary judgment had to be brought within 15 days after the notice of intention to defend was delivered, now it is after the plea was delivered. The effect of this amendment is that a trial will be run on papers by way of the application procedure.
The benefit of the new rule is that by allowing for the plea to be filed, summary judgment applications where the Defendant has a bona fide defence will be avoided, because the Defendant is now given the opportunity to file his plea before the Plaintiff can apply for summary judgment. Previously, if the Defendant had a bona fide defence, it would have been set out in the opposing affidavit to the summary judgment application, which would later be duplicated in the Plea if the summary judgment application was not successful.
Rule 32(2)(b) determines the following: “The Plaintiff shall in the affidavit referred to in sub-rule 2(a) verify the cause of action and the amount, and identify any point of law relied upon and the facts upon which the Plaintiff’s claim is based, and explain briefly why the defence as pleaded does not raise any issue for trial.”
Previously the rule said that you had to state that there is no bona fide defence to the action and that the Plaintiff merely delivered a notice of intention to defend for the purpose of delaying the proceedings. Because the plea will now be delivered by the time the Plaintiff applies for summary judgment, the Plaintiff will be able to specifically attack the defence contained in the plea. Previously, the Plaintiff would not have had this information when applying for summary judgment.
Rule 32(3)(a) now determines: “The Defendant may give security to the Plaintiff to the satisfaction of the court for any judgment including costs”. Previously security was given to the registrar.
Rule 32(3)(b) now determines that the Defendant must satisfy the court by an affidavit which shall be delivered five days before the day on which the application is to be heard. Previously the affidavit had to be delivered before noon on the court day but one preceding the day on which application is to be heard. This is also a positive change, as it will give the judge hearing the matter a chance to properly peruse the papers and go to court prepared on the day of the hearing of the summary judgment application. It will also give the Plaintiff’s attorney the opportunity to see well in advance on what basis the Defendant is opposing the summary judgment application.
Rule 36(2)(a) determines that any party requiring another party to submit to a medical examination shall deliver a notice to such other party. Previously the rule only provided for “such examination”, now it is specifically stating “medical examination”.
Rule 36(8) now determines that any party causing an examination to be made in terms of sub-rules 1 and 6 shall:
a) cause the person making the examination to give a full report in writing, within two months of the date of the examination or within such other period as may be directed by a judge in terms of rule 37(8) or in terms of rule 37(A)b; and
b) within five days after receipt of such report inform all other parties in writing of the existence of the report and upon request immediately furnish any other party with a complete copy thereof.
Previously no timeline was set out for the person conducting the examination to give a report and the party obtaining the report did not have to disclose the report to the other party unless requested to do so. Now it is compulsory to disclose the report within five days of receiving it. This is a positive change in the sense that it will enable opposing parties to see on what the Plaintiff bases the claim long before the matter goes to trial, which will, in turn, enable the opposing party to respond properly to the Plaintiff’s case, or to settle the matter if the Defendant realises that it would not be worthwhile to keep defending the matter.
Rule 36(9)(a) now reads as follows: “Where the Plaintiff intends to call an expert, the Plaintiff shall not more than 30 days after the close of pleadings, or where the defendant intends to call the expert, the defendant shall not more than 60 days after the close of pleadings, have delivered notice of intention to call such expert”.
Rule 36(9)(b) now reads as follows: “In the case of the Plaintiff not more than 90 days after the close of pleadings and in the case of the Defendant not more than 120 days after the close of pleadings, such Plaintiff or Defendant shall have delivered a summary of the expert’s opinion and the reasons therefor, provided that the notice and summary shall be delivered before a first case summary management conference held in terms of rule 37A”.
Previously the Plaintiff had to disclose fifteen days before the hearing that the Plaintiff intended to call an expert witness. The Plaintiff had to deliver not less than ten days before trial a summary of the expert’s opinion.
The benefit of this new approach is that parties are forced to see to it that their case is in order and the opposing party can see what case they have to meet long before the case goes to trial, which will avoid unnecessary delays close to trial, and will hopefully have the effect that more cases will be settled before trial, as parties are in a better position to examine whether it will be worthwhile going ahead with the trial, given the evidence disclosed by the other party.
This is a new clause reading as follows: “The parties shall endeavour, as far as possible, to appoint a single joint expert on any one or more or all issues in the case; file a joint minute of experts relating to the same area of expertise within 20 days of the date of the last filing of expert reports”.
The intended effect of this clause is that it will decrease the number of expert witnesses to be called and testifying about the same aspect. Thus, parties need to agree beforehand which expert witness they are going to call on a certain aspect. What will happen when parties are unable to agree on an expert witness is still to be determined, but in all likelihood, judicial guidance by the judge will be needed in such an instance.
The amended paragraph determines the following: “No person shall, save with the leave of the court or the consent of all the parties, be entitled to tender in evidence any plan, diagram, model or photograph unless such person shall not more than 60 days after the close of pleadings have delivered a notice stating an intention to do so, offering inspecting of such plan, diagram, model or photograph.”
This again has the effect that parties need to see to it that their case is in order and disclose the evidence they are going to use at trial long before a trial takes place. Parties will now have to get all the evidence they want to present to the court in order relatively shortly after the close of pleadings.
The purpose of the amendments is clearly to try to speed up the process and place parties in a better position to decide whether they want to consider the settlement of the matter because they will have all the facts before them quite shortly after the close of pleadings. The summary judgment amendments will also place parties in a better position to analyse whether they will be successful with a summary judgment application or not. Hopefully, the new rules will have a positive effect on full court rolls and will ensure a faster conclusion of matters, which will be in the best interest of all parties litigating in the High Court.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)