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23 April 2024

Amendments To The Magistrates And High Court Rules To Come Into Effect On 12 April 2024

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The Rules Board for Courts of Law, approved by the Department of Justice and Constitutional Development, issued amendments to the rules regulating the conduct of the proceedings...
South Africa Litigation, Mediation & Arbitration

The Rules Board for Courts of Law, approved by the Department of Justice and Constitutional Development, issued amendments to the rules regulating the conduct of the proceedings in the Magistrates' Courts and High Courts of South Africa on 8 March 2024, which will officially take effect on 12 April 2024. The changes will impact how proceedings are conducted in these courts.

Amendment of rules regulating the conduct of the proceedings of the Magistrates'  Courts of South Africa are as follows:

  • The first material amendment is to Rule 9 which relates to the service of process, notices, and other documents. Sub-rule 3(d) now includes that service at the domicilium citandi as chosen by someone shall be effected by delivering a copy of the process to a responsible person not less than 16 years old at the chosen address.
  • The second material amendment is to Rule 33 which relates to costs. Sub-rule 1(b) has been introduced which provides that a costs order may, upon application by any party, indicate which portions of the proceedings are deemed urgent.
  • The third material amendment is to Rule 41 which relates to the execution of moveable property. Sub-rule 1 is now subject to the provisions of Rules 36 and 37, and further, an execution creditor may only issue one warrant of execution out of the office of the registrar or clerk of the court. Sub-rule 14(b) is also amended which provides that an execution creditor (or their attorney) must satisfy the registrar/clerk of the court in writing of the desirability for the immediate removal of goods attached as well as goods to be attached.
  • Sub-rule 18(a) of Rule 41 is also amended which substitutes the word 'detain' for 'retain', and states that the sheriff must (instead of 'shall') release from attachment such property which has been retained for a period exceeding 6 months (instead of '4 months') unless a sale in execution of such property is pending. The same 4-month time period is substituted into sub-rule 18(c). The following paragraph is substituted into sub-rule 19(a)(i) and (b): "Provided that the auction may be conducted via electronic platform simultaneously with the physical auction, and the auction shall be conducted in accordance with the provisions of section 45 of the Consumer Protection Act, 2008 and the regulations promulgated thereunder".
  • The fourth material amendment is to Rule 43 which relates to execution against immovable property. Sub-rule 7(a), which details the sale of such property conducted by the Sheriff, is now qualified by two provisions which provide that the auction may be conducted via electronic platform simultaneously with the physical auction; and the auction shall be conducted in accordance with the provisions of section 45 of the Consumer Protection Act, 2008 and the regulations promulgated thereunder.
  • The fifth material amendment is to Rule 51 which relates to appeals in civil cases. Sub-rule (3) is updated to provide that an appeal may be noted by the delivery of notice within 20 days after the date of a judgment appealed against or within 20 days after the registrar or clerk of the court has supplied a copy of the judgment in writing to the party applying therefor. There is no longer any reference to "whichever period shall be the longer".
  • Sub-rule 4 of Rule 51 is replaced entirely with paragraphs (a) and (b) which read as follows:
  • Unless the respondent waives his or her right to security or the court subsequently on application to it has released the appellant wholly or partially from that obligation, the appellant shall, before lodging copies of the record of appeal with the registrar or clerk of the court, enter good and sufficient security-for the respondent's costs of appeal.
  • ln the event of failure by the parties to agree on the amount of security, the registrar or clerk of the court shall fix the amount and the appellant shall enter security in the amount so fixed or such percentage thereof as the court has determined, as the case may be: Provided that no security shall be required from the State or, unless the court of appeal otherwise orders, from a person to whom legal aid is rendered by a statutorily established legal aid board.

Amendment of Rules regulating the Conduct of the Proceedings of the Provincial and Local Divisions of the High Court of South Africa are as follows:

  • The first material amendment is to Rule 4 which relates to service.
    • Sub-rule 1(a)(ii) is updated to reflect a 'delivery' of a copy at the place of residence or business (instead of simply 'leaving' it there).
    • Sub-rule 1(a)(iv) is also updated with regards to the service of a person who has chosen a domicilium citandi by 'delivering' a copy thereof to a person not less than sixteen years of age at the chosen domicilium.
  • The second material amendment related to the inclusion of 'Rule 67A Costs' which reads as follows:
  • Subject to any order of the court awarding costs, the fees and disbursements as between party and party, which may be included in a bill of costs submitted for taxation, shall be –
  • for attorneys, in accordance with the tariff in rule 70:
  • for attorneys. with a right to appear in the Superior Courts and who appear in a matter, in accordance with rules 69 and 70, where applicable: and
  • for advocates, in accordance with the tariff in rule 69: Provided that for services rendered by an advocate referred to in section 34(2)(a)(ii) of the Legal Practice Act 28 of 2014 for work which is ordinarily performed by an attorney, the fee for such work shall be in terms of rule 70.
  • In considering all relevant factors when awarding costs, the court may have regard to –
  • the provisions of rule 41A;
  • failure by any party or such party's legal representative. to comply with the provisions of rules 30A; 37; and 37A;
  • unnecessary or prolix drafting, unnecessary annexures and unnecessary procedures followed;
  • unnecessary time spent in leading evidence, cross examining witnesses and argument;
  • the conduct of the litigation by any party's legal representative and whether such representative should be ordered to pay such costs in his or her personal capacity; and
  • whether the litigation could have been conducted out of the magistrate's court.
  • A costs order shall indicate the scale in terms of rule 69, under which costs have been granted.
  • In considering the factors to award an appropriate scale of costs, the court may have regard to:
    1. The complexity of the matter;
    2. The value of the claim or importance of the relief sought.
  • If the scale in terms of paragraph (a) is not indicated in the order, scale A of rule 69(7) shall apply to the costs that the court has awarded.
  • A costs order may upon application by any party indicate –
  • Which portions of the proceedings are deemed urgent; and
  • Whether the fees consequent upon the employment of more than one advocate or attorney having right of appearance in the Superior Courts and who appears, are allowed and the scale in terms of rule 69, under which such fees are allowed.
  • The taxation of fees as between party and party shall be effected by the taxing master in accordance with rules 69 and 70 and the applicable tariffs therein.
  • Where an item in the tariffs set out in rules 69 or 70 requires the taxing master to exercise a discretion in determining the amount of a fee or disbursement to be allowed for such item, the taxing master may have regard to any guidelines recommended by the Legal Practice Council.
  • The third material amendment is to Rule 69 which changes its title to "Tariff of fees for legal practitioners who appear in the Superior Courts". Sub-rule 1 is updated to include the fees consequent upon the employment of more than one attorney having the right of appearance in the Superior Courts in a party and party bill of costs. Sub-rule 2 is similarly updated to include the fees of an attorney with right of appearance which shall be on a scale in terms of sub-rule 7 as directed by the court. Sub-rules 3, 5, and 6 are deleted in their entirety.
  • A new sub-rule 7 is introduced which provides that the scales of fees contemplated by sub-rule (3) of rule 67A, calculated per quarter of an hour or part thereof (maximum allowed), shall be: R375.00 under Scale A; R750.00 under Scale B; and R1125.00 under Scale C. Finally, sub-rule 8 is also introduced which outlines the tariff of fees to be allowed for work performed by legal practitioners in terms of this rule.
  • The fourth material amendment is to Rule 70 which relates to taxation and tariff of fees of attorneys.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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