Rule 32
Rule 32(1) determines the
following: “The Plaintiff may after the Defendant has delivered a plea, apply
to the 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 the specified movable property; and
For ejectment.”
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 now 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
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.
Rule 36(9)A
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.
Rule 36(10)(a)
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.
Conclusion
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.