UNIFORM RULES OF
COURT
INDEX
Rule
1 Definitions.
2 Sittings of the
court and vacations.
3 Registrar's office
hours.
3A Admission of
Advocates.
4 Service.
5 Edictal citation.
6 Applications.
7 Power of attorney.
8 Provisional
sentence.
9 Arrest.
10 Joinder of parties
and causes of action.
10A Joinder of
provincial or national executive authorities.
[Rule 10A inserted by GN R849 of 25 August 2000]
11 Consolidation of
actions.
12 Intervention of
persons as plaintiffs or defendants.
13 Third party
procedure.
14 Proceedings by and
against partnerships, firms and associations.
15 Change of parties.
16 Representation of
parties.
16A Submissions by an
amicus curiae.
17 Summons.
18 Rules relating to
pleading generally.
19 Notice of
intention to defend.
20 Declaration.
21 Further
particulars.
22 Plea.
23 Exceptions and
applications to strike out.
24 Claim in reconvention.
25 Replication and
plea in reconvention.
26 Failure to deliver
pleadings - barring.
27 Extension of time
and removal of bar and condonation.
28 Amendments to
pleadings and documents.
29 Close of
pleadings.
30 Irregular
proceedings.
30A Non-compliance
with rules
[Rule 30A inserted by
GN R881 of 26 June 1998.]
1 Judgment on confession
and by default.
32 Summary judgment.
33 Special cases and
adjudication upon points of law.
34 Offer to settle.
34A Interim payments.
35 Discovery,
inspection and production of documents.
36 Inspections,
examinations and expert testimony.
37 Pre-trial
conference
37A ......
[Rule 37A repealed by GN R373 of 30 April 2001.]
38 Procuring evidence
for trial.
39 Trial.
40 In forma pauperis.
41 Withdrawal,
settlement, discontinuance, postponement and
Abandonment
42 Variation and rescission of orders.
43 Matrimonial
matters.
44 Undefended divorce
actions.
45 Execution -
general and movables.
45A Suspension of
orders by the court.
46 Execution -
immovables.
47 Security for
costs.
47A
48 Review of
taxation.
49 Civil appeals from
the High Court.
49A Criminal Appeals
to the Full Court
[Rule 49A inserted by GN R645 of 1983 and substituted by GN
R518 of 2009.]
50 Civil appeals from
magistrates' courts.
51 Criminal appeals
from magistrates' courts.
52 Criminal Appeals
to the Supreme Court of Appeal
[Rule 52 substituted by GN R518 of 2009.]
53 Reviews.
54 Criminal
proceedings - provincial and local divisions.
55 Criminal
proceedings - circuit court.
56 Criminal
proceedings - general.
57 De lunatico inquirendo,
appointment of curators in respect of
persons under
disability and release from curatorship.
58 Interpleader.
59 Sworn translators.
60 Translation of
documents.
61 Interpretation of
evidence.
62 Filing,
preparation and inspection of documents.
63 Authentication of
documents executed outside the Republic for use
within the Republic.
64 Destruction of
documents.
64A
65 Commissioners of
the court.
66 Superannuation.
67 Tariff of court
fees.
68 Tariff for
sheriffs.
69 Advocates' fees in
civil matters in the provincial and local divisions
of the supreme court.
70 Taxation and
tariff of fees of attorneys.
71 Repeal of rules.
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
proceedings 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 R150,00 fixed thereto: Provided that no revenue
stamps shall be required where service is to be effected on behalf of the
Government of the Republic.
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.
6 Applications
(1) Save where
proceedings by way of petition are prescribed by law, every application shall
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 shall be addressed to
both the registrar and such person, otherwise it shall be addressed to the
registrar only.
(3) Every petition shall 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) shall 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 shall set forth the form of order sought, specify the affidavit filed in
support thereof, request him 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 by him for leave to oppose, supported by an affidavit setting forth
the nature of such interest and the ground upon which he desires to be heard,
whereupon the registrar shall set such application down for hearing at the same
time as the application first mentioned.
(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 to it seems meet.
(5) (a) Every application other than one brought ex parte
shall 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, shall be served upon every party to whom notice thereof is to be
given.
(b) In such notice
the applicant shall appoint an address within eight kilometres of the office of
the registrar, at which he will accept notice and service of all documents in
such proceedings, and shall, subject to the provisions of section 27 of the
Act, 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 he intends to oppose such application, and shall
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.
(c) If the respondent does not, on or before the day
mentioned for that purpose in such notice, notify the applicant of his
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 shall-
(i) within the time
stated in the said notice, give applicant notice, in writing, that he intends
to oppose the application, and 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 documents;
(ii) within fifteen
days of notifying the applicant of his intention to oppose the application,
deliver his answering affidavit, if any, together with any relevant documents;
and
(iii) if he intends to raise any question of law only he shall
deliver notice of his intention to do so, within the time stated
(e) Within 10 days of the service upon him 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) 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. Where an answering affidavit is delivered the applicant may
apply for such allocation within five days of the delivery of his 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. 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 shall
forthwith be given by applicant or respondent, as the case may be, to the
opposite party.
(g) Where an application cannot properly be decided on
affidavit the court may dismiss the application or make such order as to it
seems meet 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 him 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.
(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.
(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 shall not grant the application unless it is satisfied that
the applicant will be prejudiced in his case if it be not granted.
16 Representation of
Parties
(1) If an attorney
acts on behalf of any party in any proceedings, he shall notify all other
parties of his name and address.
(2) (a) Any party represented by an attorney in any
proceedings may at any time, subject to the provisions of rule 40, terminate
such attorney's authority to act for him, and thereafter act in person or
appoint another attorney to act for him therein, whereupon he shall forthwith
give notice to the registrar and to all other parties of the termination of his
former attorney's authority and if he has appointed a further attorney so to
act for him, of the latter's name and address.
(b) If such party
does not appoint a further attorney, such party shall in the notice of
termination appoint an address within eight kilometres from the office of the
registrar for the service on him of all documents in such proceedings.
(3) Upon receipt of a notice in terms of subrule (1) or (2)
the address of the attorney or of the party, as the case may be, shall become
the address of such party for the service upon him of all documents in such
proceedings, but any service duly effected elsewhere before receipt of such
notice shall, notwithstanding such change, for all purposes be valid, unless
the court orders otherwise.
17 Summons
(1) Every person
making a claim against any other person may, through the office of the
registrar, sue out a summons or a combined summons addressed to the sheriff
directing him to inform the defendant inter alia that, if he disputes the
claim, and wishes to defend he shall-
(a) within the time
stated therein, give notice of his intention to defend;
(b) thereafter, if
the summons is a combined summons, within twenty days after giving such notice,
deliver a plea (with or without a claim in reconvention), an exception or an
application to strike out.
(3) Every summons shall be signed by the attorney acting for
the plaintiff and shall bear an attorney's address, within eight kilometres of
the office of the registrar, or, if no attorney is acting, it shall be signed
by the plaintiff, who shall in addition append an address within eight
kilometres of the office of the registrar at which he will accept service of
all subsequent documents in the suit; and shall thereafter be signed and issued
by the registrar and made returnable by the sheriff to the court through the
registrar.
(4) Every summons shall set forth-
(a) the name
(including where possible the first name or initials) by which the defendant is
known to the plaintiff, his residence or place of business and, where known,
his occupation and, if he is sued in any representative capacity, such
capacity. The summons shall also state the defendant's sex and, if a female,
her marital status;
(b) the full names, sex and occupation and the residence or
place of business of the plaintiff, and where he sues in a representative
capacity, such capacity. If the plaintiff is a female the summons shall state
her marital status.
18 Rules relating to Pleadings generally
(1) A combined
summons, and every other pleading except a summons, shall be signed by both an
advocate and an attorney or, in the case of an attorney who, under section 4
(2) of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995), has the
right of appearance in the Supreme Court, only by such attorney or, if a party
sues or defends personally, by that party.
(2) The title of the action describing the parties thereto
and the number assigned thereto by the registrar, shall appear at the head of
each pleading, provided that where the parties are numerous or the title
lengthy and abbreviation is reasonably possible, it shall be so abbreviated.
(3) Every pleading shall be divided into paragraphs which
shall be consecutively numbered and shall, as nearly as possible, each contain
a distinct averment.
(4) Every pleading shall contain a clear and concise
statement of the material facts upon which the pleader relies for his claim,
defence or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.
(5) When in any pleading a party denies an allegation of
fact in the previous pleading of the opposite party, he shall not do so evasively,
but shall answer the point of substance.
(6) A party who in
his pleading relies upon a contract shall state whether the contract is written
or oral and when, where and by whom it was concluded, and if the contract is
written a true copy thereof or of the part relied on in the pleading shall be
annexed to the pleading.
(7) It shall not be necessary in any pleading to state the
circumstances from which an alleged implied term can be inferred.
(8) A party suing or bringing a claim in reconvention for
divorce shall, where time, date and place or any other person or persons are
relevant or involved, give details thereof in the relevant pleading.
(9) A party claiming division, transfer or forfeiture of
assets in divorce proceedings in respect of a marriage out of community of
property, shall give details of the grounds on which he claims that he is
entitled to such division, transfer or forfeiture.
19 Notice of
Intention to Defend
(1) Subject to the
provisions of section 27 of the Act, the defendant in every civil action shall
be allowed ten days after service of summons on him within which to deliver a
notice of intention to defend, either personally or through his attorney:
Provided that the days between 16 December and 15 January, both inclusive, shall
not be counted in the time allowed within which to deliver a notice of
intention to defend.
(3) When a defendant delivers notice of intention to defend,
he shall therein give his full residential or business address, and shall also
appoint an address, not being a post office box or poste restante, within eight
kilometres of the office of the registrar, for the service on him thereat of
all documents in such action, and service thereof at the address so given shall
be valid and effectual, except where by any order or practice of the court
personal service is required.
21 Further
Particulars
(1) Subject to the
provisions of subrules (2) to (4) further particulars shall not be requested.
(2) After the close
of pleadings any party may, not less than twenty days before trial, deliver a
notice requesting only such further particulars as are strictly necessary to
enable him to prepare for trial. Such request shall be complied with within ten
days after receipt thereof.
(4) If the party requested to furnish any particulars as
aforesaid fails to deliver them timeously or sufficiently, the party requesting
the same may apply to court for an order for their delivery or for the
dismissal of the action or the striking out of the defence, whereupon the court
may make such order as to it seems meet.
(5) The court shall at the conclusion of the trial mero motu
consider whether the further particulars were strictly necessary, and shall
disallow all costs of and flowing from any unnecessary request or reply, or
both, and may order either party to pay the costs thereby wasted, on an
attorney and client basis or otherwise.
22 Plea
(1) Where a defendant
has delivered notice of intention to defend, he shall within twenty days after
the service upon him of a declaration or within twenty days after delivery of
such notice in respect of a combined summons, deliver a plea with or without a
claim in reconvention, or an exception with or without application to strike
out.
(2) The defendant shall in his plea either admit or deny or
confess and avoid all the material facts alleged in the combined summons or
declaration or state which of the said facts are not admitted and to what
extent, and shall clearly and concisely state all material facts upon which he
relies.
(3) Every allegation
of fact in the combined summons or declaration which is not stated in the plea
to be denied or to be admitted, shall be deemed to be admitted. If any
explanation or qualification of any denial is necessary, it shall be stated in
the plea.
(4) If by reason of
any claim in reconvention, the defendant claims that on the giving of judgment
on such claim, the plaintiff's claim will be extinguished either in whole or in
part, the defendant may in his plea refer to the fact of such claim in
reconvention and request that judgment in respect of the claim or any portion
thereof which would be extinguished by such claim in reconvention, be postponed
until judgment on the claim in reconvention. Judgment on the claim shall,
either in whole or in part, thereupon be so postponed unless the court, upon
the application of any person interested, otherwise orders, but the court, if
no other defence has been raised, may give judgment for such part of the claim
as would not be extinguished, as if the defendant were in default of filing a
plea in respect thereof, or may, on the application of either party, make such
order as to it seems meet.
(5) If the defendant
fails to comply with any of the provisions of subrules (2) and (3), such plea
shall be deemed to be an irregular step and the other party shall be entitled
to act in accordance with rule 30.
24 Claim in
Reconvention
(1) A defendant who
counterclaims shall, together with his plea, deliver a claim in reconvention
setting out the material facts thereof in accordance with rules 18 and 20
unless the plaintiff agrees, or if he refuses, the court allows it to be
delivered at a later stage. The claim in reconvention shall be set out either
in a separate document or in a portion of the document containing the plea, but
headed 'Claim in Reconvention'. It shall be unnecessary to repeat therein the
names or descriptions of the parties to the proceedings in convention.
(2) If the defendant is entitled to take action against any
other person and the plaintiff, whether jointly, jointly and severally,
separately or in the alternative, he may with the leave of the court proceed in
such action by way of a claim in reconvention against the plaintiff and such
other persons, in such manner and on such terms as the court may direct.
(3) A defendant who
has been given leave to counterclaim as aforesaid, shall add to the title of
his plea a further title corresponding with what would be the title of any
action instituted against the parties against whom he makes claim in
reconvention, and all further pleadings in the action shall bear such title,
subject to the proviso to subrule (2) of rule 18.
(4) A defendant may
counterclaim conditionally upon the claim or defence in convention failing.
(5) If the defendant
fails to comply with any of the provisions of this rule, the claim in
reconvention shall be deemed to be an irregular step and the other party shall
be entitled to act in accordance with rule 30.
25 Replication and Plea in Reconvention
(1) Within fifteen
days after the service upon him of a plea and subject to subrule (2) hereof,
the plaintiff shall where necessary deliver a replication to the plea and a
plea to any claim in reconvention, which plea shall comply with rule 22.
(2) No replication or subsequent pleading which would be a
mere joinder of issue or bare denial of allegations in the previous pleading
shall be necessary, and issue shall be deemed to be joined and pleadings closed
in terms of paragraph (b) of rule 29.
(3) Where a
replication or subsequent pleading is necessary, a party may therein join issue
on the allegations in the previous pleading. To such extent as he has not dealt
specifically with the allegations in the plea or such other pleading, such
joinder of issue shall operate as a denial of every material allegation of fact
in the pleading upon which issue is joined.
(4) A plaintiff in
reconvention may, subject to the provisions mutatis mutandis of subrule (2)
hereof, within ten days after the delivery of the plea in reconvention deliver
a replication in reconvention.
(5) Further pleadings may, subject to the provisions mutatis
mutandis of subrule (2), be delivered by the respective parties within ten days
after the previous pleading delivered by the opposite party. Such pleadings
shall be designated by the names by which they are customarily known.
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.
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.
28 Amendment of
Pleadings and Document
(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).
29 Close of Pleadings
Pleadings shall be
considered closed-
(a) if either party
has joined issue without alleging any new matter, and without adding any
further pleading;
(b) if the last day
allowed for filing a replication or subsequent pleading has elapsed and it has
not been filed;
(c) if the parties
agree in writing that the pleadings are closed and such agreement is filed with
the registrar; or
(d) if the parties
are unable to agree as to the close of pleadings, and the court upon the
application of a party declares them closed.
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.
35 Discovery,
Inspection and Production of Documents
(1) Any party to any
action may require any other party thereto, by notice in writing, to make
discovery on oath within twenty days of all documents and tape recordings
relating to any matter in question in such action (whether such matter is one
arising between the party requiring discovery and the party required to make
discovery or not) which are or have at any time been in the possession or
control of such other party. Such notice shall not, save with the leave of a
judge, be given before the close of pleadings.
(2) The party
required to make discovery shall within twenty days or within the time stated
in any order of a judge make discovery of such documents on affidavit as near
as may be in accordance with Form 11 of the First Schedule, specifying
separately-
(a) such documents
and tape recordings in his possession or that of his agent other than the
documents and tape recordings mentioned in paragraph (b);
(b) such documents
and tape recordings in respect of which he has a valid objection to produce;
(c) such documents
and tape recordings which he or his agent had but no longer has in his
possession at the date of the affidavit.
A document shall be deemed to be sufficiently specified if
it is described as being one of a bundle of documents of a specified nature,
which have been initialled and consecutively numbered by the deponent.
Statements of witnesses taken for purposes of the proceedings, communications
between attorney and client and between attorney and advocate, pleadings,
affidavits and notices in the action shall be omitted from the schedules.
(3) If any party believes that there are, in addition to
documents or tape recordings disclosed as aforesaid, other documents (including
copies thereof) or tape recordings which may be relevant to any matter in
question in the possession of any party thereto, the former may give notice to
the latter requiring him to make the same available for inspection in
accordance with subrule (6), or to state an oath within ten days that such
documents are not in his possession, in which event he shall state their
whereabouts, if known to him.
(4) A document or tape recording not disclosed as aforesaid
may not, save with the leave of the court granted on such terms as to it may
seem meet, be used for any purpose at the trial by the party who was obliged
but failed to disclose it, provided that any other party may use such document
or tape recording.
(7) If any party fails to give discovery as aforesaid or,
having been served with a notice under subrule (6), omits to give notice of a
time for inspection as aforesaid or fails to give inspection as required by
that subrule, the party desiring discovery or inspection may apply to a court,
which may order compliance with this rule and, failing such compliance, may
dismiss the claim or strike out the defence.
(8) Any party to an
action may after the close of pleadings give notice to any other party to
specify in writing particulars of dates and parties of or to any document or
tape recording intended to be used at the trial of the action on behalf of the
party to whom notice is given. The party receiving such notice shall not less
than fifteen days before the date of trial deliver a notice-
(a) specifying the
dates of and parties to and the general nature of any such document or tape
recording which is in his possession; or
(b) specifying such
particulars as he may have to identify any such document or tape recording not
in his possession, at the same time furnishing the name and address of the
person in whose possession
such document or tape recording is.
(9) Any party proposing to prove documents or tape
recordings at a trial may give notice to any other party requiring him within
ten days after the receipt of such notice to admit that those documents or tape
recordings were properly executed and are what they purported to be. If the
party receiving the said notice does not within the said period so admit, then
as against such party the party giving the notice shall be entitled to produce
the documents or tape recordings specified at the trial without proof other
than proof (if it is disputed) that the documents or tape recordings are the
documents or tape recordings referred to in the notice and that the notice was
duly given. If the party receiving the notice states that the documents or tape
recordings are not admitted as aforesaid, they shall be proved by the party
giving the notice before he is entitled to use them at the trial, but the party
not admitting them may be ordered to pay the costs of their proof.
(10) Any party may give to any other party who has made
discovery of a document or tape recording notice to produce at the hearing the
original of such document or tape recording, not being a privileged document or
tape recording, in such party's possession. Such notice shall be given not less
than five days before the hearing but may, if the court so allows, be given
during the course of the hearing. If any such notice is so given, the party
giving the same may require the party to whom notice is given to produce the
said document or tape recording in court and shall be entitled, without calling
any witness, to hand in the said document, which shall be receivable in
evidence to the same extent as if it had been produced in evidence by the party
to whom notice is given.
(11) The court may, during the course of any proceeding,
order the production by any party thereto under oath of such documents or tape
recordings in his power or control relating to any matter in question in such
proceeding as the court may think meet, and the court may deal with such
documents or tape recordings, when produced, as it thinks meet.
(12) Any party to any
proceeding may at any time before the hearing thereof deliver a notice as near
as may be in accordance with Form 15 in the First Schedule to any other party
in whose pleadings or affidavits reference is made to any document or tape
recording to produce such document or tape recording for his inspection and to
permit him to make a copy or transcription thereof. Any party failing to comply
with such notice shall not, save with the leave of the court, use such document
or tape recording in such proceeding provided that any other party may use such
document or tape recording.
(13) The provisions of this rule relating to discovery shall
mutatis mutandis apply, in so far as the court may direct, to applications.
(14) After appearance
to defend has been entered, any party to any action may, for purposes of
pleading, require any other party to make available for inspection within five
days a clearly specified document or tape recording in his possession which is
relevant to a reasonably anticipated issue in the action and to allow a copy or
transcription to be made thereof.
(15) For purposes of rules 35 and 38 a tape recording includes
a sound track, film, magnetic tape, record or any other material on which
visual images, sound or other information can be recorded.
36 Inspections,
Examinations and Expert Testimony
(1) Subject to the
provisions of this rule any party to proceedings in which damages or
compensation in respect of alleged bodily injury is claimed shall have the
right to require any party claiming such damage or compensation, whose state of
health is relevant for the determination thereof to submit to medical examination.
(2) Any party
requiring another party to submit to such examination shall deliver a notice
specifying the nature of the examination required, the person or persons by
whom, the place where and the date (being not less than fifteen days from the
date of such notice) and time when it is desired that such examination shall
take place, and requiring such other party to submit himself for examination
then and there. Such notice shall state that such other party may have his own
medical adviser present at such examination, and shall be accompanied by a
remittance in respect of the reasonable expense to be incurred by such other
party in attending such examination. Such expense shall be tendered on the
scale as if such person were a witness in a civil suit before the court:
Provided, however, that-
(a) if such other
party is immobile, the amount to be paid to him shall include the cost of his
travelling by motor vehicle and, where required, the reasonable cost of a
person attending upon him;
(b) where such other
party will actually lose his salary, wage or other remuneration during the
period of his absence from work, he shall in addition to the aforementioned
expenses be entitled to receive an amount not exceeding R75,00 per day in
respect of the salary, wage or other remuneration which he will actually lose;
(c) any amounts paid by a party as aforesaid shall be costs
in the cause unless the court otherwise directs.
(3) The person receiving such notice shall within five days
after the service thereof notify the person delivering it in writing of the
nature and grounds of any objection which he may have in relation to-
(a) the nature of the
proposed examination;
(b) the person or
persons by whom the examination is to be conducted;
(c) the place, date
or time of the examination;
(d) the amount of the
expenses tendered to him;
and shall further-
(i) in the case of
his objection being to the place, date or time of the examination, furnish an
alternative date, time or place as the case may be; and
(ii) in the case of
the objection being to the amount of the expenses tendered, furnish particulars
of such increased amount as may be required.
Should the person receiving the notice not deliver such
objection within the said period of five days, he shall be deemed to have
agreed to the examination upon the terms set forth by the person giving the
notice. Should the person giving the notice regard the objection raised by the
person receiving it as unfounded in whole or in part he may on notice make
application to a judge to determine the conditions upon which the examination,
if any, is to be conducted.
(4) Any party to such an action may at any time by notice in
writing require any person claiming such damages to make available in so far as
he is able to do so to such party within ten days any medical reports, hospital
records, X-ray photographs, or other documentary information of a like nature
relevant to the assessment of such damages, and to provide copies thereof upon
request.
(5) If it appears from any medical examination carried out
either by agreement between the parties or pursuant to any notice given in
terms of this rule, or by order of a judge, that any further medical
examination by any other person is necessary or desirable for the purpose of giving
full information on matters relevant to the assessment of such damages, any
party may require a second and final medical examination in accordance with the
provisions of this rule.
(5A) If any party
claims damages resulting from the death of another person, he shall undergo a
medical examination as prescribed in this rule if this is requested and it is
alleged that his own state of health is relevant in determining the
damages.
(6) If it appears that the state or condition of any
property of any nature whatsoever whether movable or immovable, may be relevant
with regard to the decision of any matter at issue in any action, any party may
at any stage give notice requiring the party relying upon the existence of such
state or condition of such property or having such property in his possession
or under his control to make it available for inspection or examination in
terms of this subrule, and may in such notice require that such property or a
fair sample thereof remain available for inspection or examination for a period
of not more than ten days from the date of receipt of the notice.
(7) The party called upon to submit such property for
examination may require the party requesting it to specify the nature of the
examination to which it is to be submitted, and shall not be bound to submit
such property thereto if this will materially prejudice such party by reason of
the effect thereof upon such property. In the event of any dispute whether the
property should be submitted for examination, such dispute shall be referred to
a judge on notice delivered by either party stating that the examination is
required and that objection is taken in terms of this subrule. In considering
any such dispute the judge may make such order as to him seems meet.
(8) Any party causing an examination to be made in terms of
subrules (1) and (6) shall-
(a) cause the person
making the examination to give a full report in writing of the results of his
examination and the opinions that he formed as a result thereof on any relevant
matter;
(b) after receipt of
such report and upon request furnish any other party with a complete copy
thereof; and
(c) bear the expense of the carrying out of any such
examination:
Provided that such expense shall form part of such party's
costs.
(9) No person shall, save with the leave of the court or the
consent of all parties to the suit, be entitled to call as a witness any person
to give evidence as an expert upon any matter upon which the evidence of expert
witnesses may be received unless he shall-
(a) not less than fifteen days before the hearing, have
delivered notice of his intention so to do; and
(b) not less than ten days before the trial, have delivered
a summary of such expert's opinion and his reasons therefor.
(10) (a) 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 he
shall not less than fifteen days before the hearing have delivered a notice
stating his intention to do so, offering inspection thereof and requiring the
party receiving notice to admit the same within ten days after receipt of the
notice.
(b) If the party receiving the notice fails within the said
period so to admit, the said plan, diagram, model or photograph shall be
received in evidence upon its mere production and without further proof
thereof. If such party states that he does not admit them, the said plan,
diagram, model or photograph may be proved at the hearing and the party
receiving the notice may be ordered to pay the cost of their proof.
37 Pre-trial
conference
(1) A party who
receives notice of the trial date of an action shall, if he has not yet made
discovery in terms of rule 35, within 15 days deliver a sworn statement which
complies with rule 35 (2).
(2) (a) A plaintiff
who receives the notice contemplated in subrule (1) shall within five days
deliver a notice in which he appoints a date, time and place for a pre-trial
conference.
(b) If the plaintiff
has failed to comply with paragraph (a), the defendant may, within 30 days
after the expiration of the period mentioned in that paragraph, deliver such
notice.
(3) (a) The date,
time and place for the pre-trial conference may be amended by agreement:
Provided that the conference shall be held not later than six weeks prior to
the date of hearing.
(b) If the parties do
not agree on the date, time or place for the conference, the matter shall be
submitted to the registrar for his decision.
(4) Each party shall,
not later than 10 days prior to the pre-trial conference, furnish every other
party with a list of-
(a) the admissions
which he requires;
(b) the enquiries
which he will direct and which are not included in a request for particulars
for trial; and
(c) other matters regarding preparation for trial which he
will raise for discussion.
(5) At the pre-trial
conference the matters mentioned in subrules (4) and (6) shall be dealt with.
(6) The minutes of
the pre-trial conference shall be prepared and signed by or on behalf of every
party and the following shall appear therefrom:
(a) The place, date
and duration of the conference and the names of the persons present;
(b) if a party feels
that he is prejudiced because another party has not complied with the rules of
court, the nature of such non-compliance and prejudice;
(c) that every party
claiming relief has requested his opponent to make a settlement proposal and
that such opponent has reacted thereto;
(d) whether any issue has been referred by the parties for
mediation, arbitration or decision by a third party and on what basis it has
been so referred;
(e) whether the case
should be transferred to another court;
(f) which issues
should be decided separately in terms of rule 33 (4);
(g) the admissions
made by each party;
(h) any dispute
regarding the duty to begin or the onus of proof;
(i) any agreement
regarding the production of proof by way of an affidavit in terms of rule 38
(2);
(j) which party will
be responsible for the copying and other preparation of documents;
(k) which documents
or copies of documents will, without further proof, serve as evidence of what
they purport to be, which extracts may be proved without proving the whole document
or any other agreement regarding the proof of documents.
(7) The minutes shall
be filed with the registrar not later than five weeks prior to the trial date.
(8) (a) A judge, who
need not be the judge presiding at the trial, may, if he deems it advisable, at
any time at the request of a party or meru motu, call upon the attorneys or
advocates for the parties to hold or to continue with a conference before a
judge in chambers and may direct a party to be available personally at such
conference.
(b) No provision of
this rule shall be interpreted as requiring a judge before whom a conference is
held to be involved in settlement negotiations, and the contents of a reaction
to a request for a settlement proposal shall not be made known to a judge except
with the consent of the judge and all parties.
(c) The judge may,
with the consent of the parties and without any formal application, at such
conference or thereafter give any direction which might promote the effective
conclusion of the matter, including the granting of condonation in respect of
this or any other rule.
(d) Unless the judge
determines otherwise, the plaintiff shall prepare the minutes of the conference
held before the judge and file them, duly signed, with the registrar within
five days or within such longer period as the judge may determine.
(9) (a) At the
hearing of the matter, the court shall consider whether or not it is
appropriate to make a special order as to costs against a party or his
attorney, because he or his attorney-
(i) did not attend a
pre-trial conference; or
(ii) failed to a
material degree to promote the effective disposal of the litigation.
(b) Except in respect
of an attendance in terms of subrule (8) (a) no advocate's fees shall be
allowed on a party-and-party basis in respect of a pre-trial conference held
more than 10 days prior to the hearing.
(10) A judge in
chambers may, without hearing the parties, order deviation from the time limits
in this rule.
(11) A direction made
in terms of this rule before the commencement of the trial may be amended.
38 Procuring Evidence
for Trial
(1) (a) Any party,
desiring the attendance of any person to give evidence at a trial, may as of
right, without any prior proceeding whatsoever, sue out from the office of the
registrar one or more subpoenas for that purpose, each of which subpoenas shall
contain the names of not more than four persons, and service thereof upon any
person therein named shall be effected by the sheriff in the manner prescribed
by rule 4, and the process for subpoenaing such witnesses shall be, as nearly
as may be, in accordance with Form 16 in the First Schedule. If any witness has in his possession or
control any deed, instrument, writing or thing which the party requiring his
attendance desires to be produced in evidence, the subpoena shall specify such
document or thing and require him to produce it to the court at the trial.
(b) Any witness who has been required to produce any deed,
document, writing or tape recording at the trial shall hand it over to the
registrar as soon as possible, unless the witness claims that the deed,
document, writing or tape recording is privileged. Thereafter the parties may
inspect such deed, document, writing or tape recording and make copies or
transcriptions thereof, after which the witness is entitled to its return.
(2) The witnesses at the trial of any action shall be
examined viva voce, but a court may at any time, for sufficient reason, order
that all or any of the evidence to be adduced at any trial be given on
affidavit or that the affidavit of any witness be read at the hearing, on such
terms and conditions as to it may seem meet: Provided that where it appears to
the court that any other party reasonably requires the attendance of a witness
for cross-examination, and such witness can be produced, the evidence of such
witness shall not be given on affidavit.
39 Trial
(1) If, when a trial
is called, the plaintiff appears and the defendant does not appear, the
plaintiff may prove his claim so far as the burden of proof lies upon him and
judgment shall be given accordingly, in so far as he has discharged such
burden. Provided that where the claim is for a debt or liquidated demand no
evidence shall be necessary unless the court otherwise orders.
(2) When a defendant
has by his default been barred from pleading, and the case has been set down
for hearing, and the default duly proved, the defendant shall not, save where
the court in the interests of justice may otherwise order, be permitted, either
personally or by an advocate, to appear at the hearing.
(3) If, when a trial is called, the defendant appears and
the plaintiff does not appear, the defendant shall be entitled to an order
granting absolution from the instance with costs, but may lead evidence with a
view to satisfying the court that final judgment should be granted in his
favour and the court, if so satisfied, may grant such judgment.
(4) The provisions of subrules (1) and (2) shall apply to
any person making any claim (whether by way of claim in reconvention or third
party notice or by any other means) as if he were a plaintiff, and the
provisions of subrule (3) shall apply to any person against whom such a claim
is made as if he were a defendant.
(5) Where the burden
of proof is on the plaintiff, he or one advocate for the plaintiff may briefly
outline the facts intended to be proved and the plaintiff may then proceed to
the proof thereof.
(6) At the close of the case for the plaintiff, the
defendant may apply for absolution from the instance, in which event the
defendant or one advocate on his behalf may address the court and the plaintiff
or one advocate on his behalf may reply. The defendant or his advocate may
thereupon reply on any matter arising out of the address of the plaintiff or
his advocate.
(7) If absolution
from the instance is not applied for or has been refused and the defendant has
not closed his case, the defendant or one advocate on his behalf may briefly
outline the facts intended to be proved and the defendant may then proceed to
the proof thereof.
(8)Each witness shall, where a party is represented, be
examined, cross-examined or re-examined as the case may be.
(10) Upon the cases on both sides being closed, the
plaintiff or one or more of the advocates on his behalf may address the court
and the defendant or one or more advocates on his behalf may do so, after which
the plaintiff or one advocate only on his behalf may reply on any matter
arising out of the address of the defendant or his advocate.
(11) Either party may
apply at the opening of the trial for a ruling by the court upon the onus of
adducing evidence, and the court after hearing argument may give a ruling as to
the party upon whom such onus lies: Provided that such ruling may thereafter be
altered to prevent injustice.
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.
(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.
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 advocate appearing in a case under this rule shall
charge a fee of more than R80 if the claim is undefended or R170 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 R300 if the claim is undefended or R350 if it is
defended, unless the court in an exceptional case otherwise directs.
44 Undefended Divorce
Actions
When an undefended divorce action is postponed the action
may be continued before another court notwithstanding that evidence has been
given.
