Wednesday, 11 July 2012

Amendments regulating the conduct of proceedings in the High Court of South Africa

On the 22nd June 2012 the South African Department of Justice (“DOJ”) introduced various amendments to the court rules relating specifically to the service of legal process on certain parties.

These amendments relate mainly to the manner of service elected by the parties and, in short, in application to services not utilising the Sheriff, now expressly includes service by way of facsimile or email.

Succinctly, the DOJ has taken cognisance of the enormous growth of electronic communications and has made further provisions therefor in the court rules.  The aforementioned is done through the inclusion of new Rule 4A which states:
"Delivery of documents and notices:

4A (1)     Service of all subsequent documents and notices. not falling under rule 4(1)(a), in any proceedings on any other party to the litigation may be effected by one or more of the following manners to the address or addresses provided by that party under rules6(5)(b), 6(5)(d){i), 17(3). 19(3) or 34(8), by: -

(a) hand at the physical address for service provided, or

(b) registered post to the postal address provide, or

(c) facsimile or electronic mail to the respective addresses provided.

(3) Chapter Ill, Part 2 of the Electronic Communications and Transactions Act. 2002 (Act No. 25 of 2002) is applicable to service by facsimile or electronic mail.

Focusing on Rule 4A(1) it is clear that the section seeks only to apply to services not falling within the ambit of application of Rule 4(1)(a) (which refers to service on parties by the Sheriff).  As such, in application proceedings, the applicant’s Notice of Motion and Founding Affidavit, being the documents initiating the application process, must be served via the Sheriff.  

This would only apply to proceedings instituted by way of a Notice of Motion and not when the relevant application amounts to an interlocutory application interrupting action proceedings, unless specifically agreed when action was instituted (this is discussed hereunder). This is further emphasized by the inclusion of Rule 4A(4) above which states that, “Service under this rule need not be effected through the Sheriff”.

Therefore, the provisions of Rule 4A apply to all documents and notices served and filed subsequent to the Notice of Motion being served on the Respondent. These would include Opposing/Answering Affidavits and Replying Affidavits.

A further important element of the new Rule 4A is the reference to the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) in section 4A(3), and more specifically Chapter III, Part 2 thereof.  

Chapter III, Part 2 of the ECTA deals mainly with the “Communication of Data Messages”.  As such it is trite that the service of legal documents through email or facsimile must comply with the provisions of Chapter II, Part 2 of the ECTA or the chosen manner of service will be considered invalid. For the present purposes it is unnecessary to set out the relevant provisions of the ECTA aforementioned but knowledge of its application to Rule 4A is sufficient.

Notwithstanding the inclusion of Rule 4A to the High Court Rules, certain other Rules have also been amended to accommodate the inclusion of Rule 4A and the alternative forms of service nominated therein.

Rule 6 of the High Court Rules has been substantially amended. In so doing the Rules Board has substituted paragraph (b) of sub-rule (5) which, to sum up, holds the following:

·   When dealing with an application other than an ex parte application, it shall be brought by Notice of Motion and served on all parties to whom notice is given;

·    The Applicant shall nominate an address within 8 kilometres from the office of the Registrar;

·   Such documents served shall set forth a day, not less than 5 days after service of the document on the Respondent, by which the Respondent shall notify the Applicant in writing if he or she seeks to oppose the application;

·      If no such notification of received, the matter shall be enrolled for hearing on a stated day, not being less than 10 days after service of the document on the Respondent.

Similarly, paragraph (d) of sub-rule (5) has been substituted. In its previous form it held:

·      When a Respondent chooses to oppose the order sought in the Notice of Motion he or she must within the time stated in the Notice of Motion, convey in writing his or her written intention to oppose and that such a notice must nominate an address within 8 kilometres radius of the office of the Registrar, where documents and services will be received.

The substituted sub-rules have altered the above position as follows:

·         In future, the Applicant’s postal, facsimile or electronic mail addresses are to be included in the Notice of Motion;

·         The Applicant’s nominated physical address must now be within 15 kilometre radius of the office of the Registrar as opposed to 8 kilometres previously;

·         The Respondent will also be expected to provide postal, facsimile or electronic mail addresses where available;

·         The aforementioned must be provided as part of the written notice to the applicant setting out his or her intention to oppose the relief sought.

The amendments to Rule 6 therefore have the effect of including the alternative options for service of documents (via facsimile or electronic mail) as well as extending the scope of the nomination of the Applicant and Respondent’s service addresses.

It is clear, however, from amendments to additional Rules of the Uniform Rules of Court that the inclusion of alternative forms of service and extension of the restricted nominated service area does not only apply to the application process and documents relating thereto but also to summonses being documents initiating action proceedings. Rule 17 has also been amended, by the substitution of sub-rule (3).  The effect of the amendment, in my view, is as follows:

·         The Plaintiff’s attorney must now provide his or her physical address, postal address as well as electronic mail and facsimile addresses in the summons;

·         When a Plaintiff is not represented, the Plaintiff must sign the summons and provide the relevant addresses;

·         The amendments of the rules allow the Plaintiff or his attorney to nominate his or her preferred form of service including facsimile and electronic mail service;

·         The Defendant will also be allowed to deliver a consent to the future exchange of pleadings and other documents by way of electronic mail or facsimile; and

·         In the absence of such a consent, the Court may grant consent following application being made by the Plaintiff.

 Finally, it is necessary to consider the amendments made to Rule 19 of the Uniform Rules of Court. Rule 19 deals mainly with the delivery of the Defendant’s Notice of Intention to Defend and it has been amended in the following ways:

·         The Defendant must also, in his or her Notice of Intention to Defend, state his or her physical and postal addresses and where available their electronic mail and facsimile addresses;

·         Further the Defendant shall also nominate an address within 15 kilometres of the office of the Registrar, where the service of pleadings and documents are to be accepted;

·         The Defendant may elect in the Notice which manner of service would be preferred;

·         The Plaintiff, in response to the Defendant’s aforesaid written request, may deliver a written consent to the exchange or service by both parties of subsequent documents and notices in the suit by way of facsimile or electronic mail; and

·         Again, if such a request is refused by the Plaintiff, the Defendant may make application to the court for a finding ordering such form of service and on such terms as to costs and otherwise as may be just and appropriate.

In my view, the above amendments to the Uniform Rules of Court and the inclusion to these Rules of the new Rule 4A will hugely improve and streamline civil process in the Local and Provincial Divisions of the High Court of South Africa.  Moreover, it is indicative of the technological environment within which we live and work and will continue to steer our current judicial system towards technological and electronic advancement. Such progression is integral to the survival and continued successful operation of our legal system.

I do, though, have certain comments on the said amendments. Although the amendments will have an immensely positive effect on process and the ease of litigating in the High Court I do feel that such amendments have been effected too late. Service of pleadings and other relevant documents via fax especially has been a contentious issue between attorneys and the courts alike for many years. One would think that such a section and the accompanying amendments would have been enacted at the time that such issues arose and not a few years after the fact when the exchange of pleadings via facsimile has already become commonplace. This is not a particularly strong criticism but rather a comment made obiter. Though, one must admit, it is better late than never.
Further, the aforesaid amendments will obviously not have the effect of remedying the issue of alternative service methods in the Magistrates’ Courts, where I feel it would be most necessary. The issue of service in the Magistrates’ Courts has become particularly problematic especially when employing the services of correspondent attorneys or when litigating in the smaller Magistrates’ Courts located in the more remote areas of the country where service on any parties to litigation can prove to be near-impossible to effect. As such one would hope that the latest trend in judicial regulatory amendment would lead to the Magistrates’ Court Rules being brought in line with the latest provisions and amendments to the Rules of the Higher Courts.

Peter Turner


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