JUSTICE COLLEGE

Justice College-PDF Download

  • Date:09 Jan 2020
  • Views:87
  • Downloads:0
  • Pages:76
  • Size:1.16 MB

Share Pdf : Justice College

Download and Preview : Justice College


Report CopyRight/DMCA Form For : Justice College


Transcription:

COMPILED BY T Deosaran R Francis Subbiah,DATE JUNE 2011. UPDATED BY, No part of this note may be reproduced or transmitted in any form or by any means. without the required permission in writing, Justice College Private Bag X659 Pretoria 0001 South Africa Tel 012 481 2892 Fax 012 481 2854. The New Magistrates Court Rules, The rules of civil procedure in the magistrates court in South Africa have recently. undergone significant changes In the effort to amend the rules so as to enable the regional. court to exercise its newly endowed civil jurisdiction in terms of the Jurisdiction of Regional. Courts Amendment Act of 2008 the opportunity presented itself to overhaul the entire. rules and to also bring greater uniformity with the high court rules The same set of rules is. applicable in both the regional and district divisions of the magistrates civil court inclusive. of the regional court s jurisdiction in divorce matters These amendments are effective from. 15 October 2010 Section 171 of the Constitution provides that all courts must function in. terms of rules and procedures determined by national legislation The Magistrates Courts. Act 32 of 1944 and the Magistrate Court Rules promulgated thereunder prescribe the. procedure the time limits and the forms to be used in the magistrates courts. This guide is intended to provide only a brief overview of the new rules In the attempt on. the one hand to provide something more than the bare restatement of the legislation. while on the other hand not wishing to repeat established tomes on the subject of civil. procedure sometimes more is stated and at other times less than what might be considered. necessary Those who have occasion to refer to this guide are therefore cautioned not to. use it as a substitute for the well known and reputable works on the subject but to consult. those resources for any purposes of reference and research. The opinions expressed in this guide are those of the respective authors only unless stated. otherwise and do not necessarily reflect the views of Justice College Each of the. respective authors bears sole responsibility and likewise the credit devolves for their. respective contributions as follows R Francis Subbiah Rules 1 to 15 Rules 33 35 Rule 52. Rule 62 and for the Appendices relating to costs T Deosaran Rules 16 to 32 Rule 34. Rules 36 to 51 Rules 53 to 61 and Rule 63,1 Purpose and application of the rules Rule 1.
The extent of the changes to the rules is evident in the fact that at least thirty of the old. rules have undergone substantial amendments All of the rules are now gender sensitive. and the use of plain language helps in the attempt at being clear concise and. contextualized Rule 1 is a new rule which appropriately sets out an introductory and. contextual purpose and application of the rules The right of access to the courts with a fair. public hearing as set out in section 34 of the Constitution is reflected in rule 1 1 which. reads as follows, 1 The purpose of these rules is to promote access to the courts and to ensure that the. right to have disputes that can be resolved by the application of law by a fair public. hearing before a court is given effect, Its function facilitates process rather than limiting it Rule 1 2 provides that the rules are to. be applied in a manner that facilitates the expeditious handling of disputes with a. minimization of costs This can be interpreted as promoting judicial empowerment in. directing parties and controlling the proceedings in the attempt to keep legal costs down. and circumvent procedural delays The third provision of this sub rule also encourages. judicial officers to use s54 of the Magistrate Court Act to direct or manage civil matters set. down for trial or hearing The S54 conference also called a pre trial conference is not. peremptory in the magistrate court as it is in the high court but can be effectively used by a. judicial officer to call a conference of litigating parties in chambers at any time of civil. proceedings Case flow management interventions of this nature by judicial officers have. radically influenced the number of actions that proceed to trial On the surface these. interventions appear to increase the costs but in actual fact have a beneficial effect of. narrowing and limiting the matters in dispute shortening trials encouraging more early. settlements and thereby have the effect of limiting costs in the long term Accordingly in. Lekota v Editor Tribute Magazine1 the court explained that the purpose of a pre trial. conference is not a full preparation for trial but a possible cooperation in steps which will. limit or prevent avoidable effort and costs The other sub rules are similar to the old ones. 1995 2 SA 706 W at 709A, but are now better constructed The following prescribed forms must conform fully with. the specimen forms contained in Annexure 1,No 2 simple summons. No 2A provisional sentence summons,No 2B combined summons.
No 3 automatic rent interdict summons,No 5A s57 Request for Judgment and. No 5B s58 Request for Judgment, All other forms may be used with variation Copies filed of record must comply with the. standard A4 white paper printed in black ink The office of the Registrar has been. established in the regional court to oversee all administrative and quasi judicial functions. Hence all reference to clerk of court in the rules also incorporates the registrar The. registrar or clerk of court retains the authority to refuse to issue summons where there is. non compliance with the rules For instance where a summons does not contain all the. necessary endorsements as required by the rules e g it does not contain the form of the. appearance to defend the registrar or clerk may refuse to issue the summons Although the. rule says that noncompliance does not give rise to an exception the registrar or clerk of. court may nevertheless refuse to issue a document that fails to comply with the prescribed. forms However a further challenge confronts the registrar or clerk of court as prescribed. form 2B omits essential endorsements referred to in r5 5 d which is prescribed by the. summons rule 5 5 This has the effect that form 2B as it stands does not comply with the. true intention of the rules It is desirable that the Rules Board effect an urgent amendment. to form 2B to reflect the necessary endorsements as prescribed by rule 5 5. 2 Definitions Rule 2, Some definitions such as attorney company and Act have been deleted The new rules. retain definitions relating to meaning of word in act so assigned apply clerk of court. deliver notice pending case plaintiff defendant applicant respondent party. and sheriff The period for calculation excludes Saturday Sunday and public holidays. Calculating days in terms of the rules is practically court days which excludes the first day. and includes the last In addition all distances are computed at the shortest route New. inclusion to the definitions section include references to signature registrars the Electronic. Communications and Transactions Act 25 of 2002 the National Credit Act 34 of 2005 and. the Criminal Procedure Act 51 of 1977, 3 Duties and Office Hours of registrars and clerks of court Rule 3. All rules relating to the duties of the registrar and clerk of court have been consolidated in. rule 3 from the previous rules 3 and rule 4 In essence four sub rules have been retained. with a further 8 being added to detail and clarify the role of the registrar and clerk of court. I It is the duty of the registrar and clerk of court to issue or re issue all processes of. court by manual or machine signature, II All fines imposed by court must be paid to the registrar or clerk of court.
III Registrar and clerk are duty bound not to receive subsequent documents for filing. which has not been marked with the relevant case number. IV First documents filed in a matter are given a case no in consecutive order for the. year it is filed in, V All documents delivered to court and minutes of court must be filed in the correct. file under the precise case number, VI All copies of documents from the court files must be made in the presence of the. registrar or clerk, VII There is a duty in terms of new rule 3 8 for the registrar or clerk to assist litigants by. explaining these rules and to assist in compliance with the directive contained in s 9. of the Jurisdiction of Regional Courts Amendment Act of 2008 Note must be taken. that the duty set out in this provision is to assist litigants which does not necessarily. indicate that the registrar or clerk of court must draft summons and pleadings for. litigants The former divorce court rules which authorised a registrar or clerk of the. divorce court to draft pleadings for litigants have been repealed Although one of the. purposes of the former divorce courts was to provide a cheaper speedier do it. yourself process some drawbacks are apparent Divorce changes the status of an. individual and may impact seriously on his or her patrimonial benefits Drafting of. pleadings by a non legally trained registrar or clerk may impact negatively for. example on a spouses claim relating to forfeiture of benefits. VIII Office hours of the registrar and clerk of court are Monday to Friday from 08h00 to. 13h00 and from 14h00 to 16h00 All documents may be filed until 15h00 The. exception is the notice of intention to defend which can be filed until 16h00 In. addition the registrar or clerk may issue processes and accept documents in. exceptional circumstances at any time and in addition shall do so when directed by a. magistrate, IX Subrule 9 makes it pre emptory for the registrar of the regional court to keep the. register of divorce cases containing the number of the action and. names of the parties as well as,a daily index of all registered divorce cases.
X The registrar or clerk of court has a duty to inform the plaintiff in writing of. a defendant s consent to judgment before any notice intention to defend was. where a defective notice of intention to defend is filed by a self represented. defendant and also state in what respect in terms of s12 2 a it is defective. where a request for default judgment has been refused. XI A certified copy of judgment CCJ is issued by the registrar or clerk of the court. where judgment was granted to enable execution proceedings to commence in. another court Subrule 6 provides that a registrar or clerk must upon request note on. Particulars of any other judgment by court stating the name of the relevant. Any costs incurred after judgment payable by judgment debtor. second or further certified copy upon filing of affidavit confirming loss of. certified copy of judgment which it is intended to replace. It is noteworthy that a judicial officer may perform any act of a registrar or clerk of court. with the exception of writing affidavits pleadings processes and taxing of bills of costs. 4 Request for judgment in terms of ss57 and 58 of the Act Rule 4. New rule 4 deals with ss57 and 58 requests for judgment to the registrar or clerk of court. The rule sets out additional requirements that must be complied with to enable the granting. of judgment, The request for judgment must be in writing and is directed to the registrar or clerk of court. Form 5A or 5B must be used The form must be accompanied by an affidavit which contains. evidence as is necessary to establish that all requirements in law have been complied with. Forms 5A requires a copy of the letter of demand sent to the defendant in terms of s56 the. defendant s written acknowledgment of liability to the debtor for the amount of the debt. and the costs claimed copy of the plaintiff s written acceptance of offer and the affidavit or. affirmation by the plaintiff or a certificate by the plaintiff s attorney Proof of service or. posting must accompany the request for judgment, It is mandatory for an affidavit by a creditor indicating how the terms of an agreement or. offer has been breached detailing the payments made to date and how the balance owing. has been arrived at In addition certain documents must accompany the request for. judgment For example the s129 National Credit Act notice should be annexed Where. applicable the original underlying written agreements between parties may be annexed. The necessity for this provision is evident from the difficulty experienced in determining. whether to grant judgment where one is not fully apprised of all the relevant legal. requirements One must be sure that all these requirements are met before entering a. judgment and making it an order of court Due to the serious consequences flowing from an. order of court the law must be correctly applied, Note that rule 4 1 a prescribes that where a letter of demand as referred to in s59 of the. Act is used it must contain particulars about the nature and the amount of the claim The. National Credit Act 2005 NCA impacts on the credit market significantly Accordingly its. objectives to protect consumers and provide a consistent transparent fair responsible. efficient effective and accessible credit market is being addressed in the requirements set. out in rule 4 Subrule 4 1 b refers specifically to the NCA and reads as follows. Where the original cause of action is a credit agreement under the National Credit. Act 2005 the letter of demand referred to in section 58 of the Act must deal with. rules have undergone substantial amendments All of the rules are now gender sensitive and the use of plain language helps in the attempt at being clear concise and contextualized Rule 1 is a new rule which appropriately sets out an introductory and contextual purpose and application of the rules The right of access to the courts with a fair

Related Books