Raising A Rule 6(5)(d)(iii) Notice Before The Rule 53 Record: An Irregular Step Or A Competent Election?

The intersection between Rule 53 and Rule 6(5)(d)(iii) has given rise to an apparent procedural tension at an early stage of review proceedings. On the one hand, a respondent may contend that the review application is subject to a potentially dispositive question of law. On the other hand, the applicant remains entitled to the production of the Rule 53 record and, once in possession thereof, an opportunity to supplement its founding papers. The question, therefore, is: Can a respondent, before producing the Rule 53 record, invoke Rule 6(5)(d)(iii) require the court to determine a dispositive question of law? Or does the delivery of such notice constitute an attempt to circumvent the procedure prescribed by Rule 53 and, consequently constitute an irregular step?

The answer to this question lies in the Constitutional Court’s decision in Famous Idea Trading 4 (Pty) Ltd t/a Dely Road Courier Pharmacy v Government Employees Medical Scheme and Others, as discussed below.

The Relationship Between Rule 53 And Rule 6(5)(D)(Iii)

Rule 53 establishes a particular procedure for review proceedings. Once a review has been instituted, the decision-maker is ordinarily required to produce the record relevant to the decision under challenge. The applicant is then afforded an opportunity to consider that record and, where necessary, amend its notice of motion or supplement its founding affidavit before the respondent delivers its answer.

The procedure recognises that an applicant may not know the full basis upon which an administrative decision was taken until the underlying record has been disclosed.

Rule 6(5)(d)(iii) serves a different purpose. It allows a respondent who intends to oppose an application on a question of law only to deliver a notice identifying that question instead of delivering an answering affidavit.

The potential tension between the Rules arises where a respondent considers that an anterior legal issue may dispose of the review before the Rule 53 procedure has been completed. If the legal objection is dispositive and can be determined independently of the record, requiring the parties first to complete the record and supplementation process may create unnecessary costs and delay. Conversely, a preliminary objection cannot be permitted to deprive a review applicant of a record required to formulate its case properly. It was this against this backdrop that the two procedures were considered in Famous Idea.

The Constitutional Court’s Decision In Famous Idea

Famous Idea sought to review decisions by the Government Employees Medical Scheme (“GEMS”) concerning the award of a tender. In response, GEMS did not produce the Rule 53 record. Instead, it delivered a Rule 6(5)(d)(iii) notice raising questions of law, including whether the decisions concerned were susceptible to review on the grounds advanced by Famous Idea. Famous Idea, however, contended in reply that the Rule 6(5)(d)(iii) procedure could not competently be invoked in Rule 53 proceedings before production of the record.

The Constitutional Court rejected Famous Idea’s proposition. It held that Rule 6 applies to applications generally, including review proceedings instituted under Rule 53. Accordingly, it was held that nothing in Rule 53 excludes the operation of Rule 6(5)(d)(iii), and it was competent for a question of law capable of disposing of the review to be raised before the production of the record.

Accordingly, a respondent is therefore, not invariably required to produce the Rule 53 record before raising a question of law.

The Respondent’s Election Carries Consequences

While Rule 6(5)(d)(iii) provides an efficient mechanism for respondents in circumstances where a genuinely dispositive legal issue has arisen, respondents are cautioned to make their election carefully. Should the question of law raised fail, a respondent cannot necessarily assume that it will automatically be afforded a further opportunity to deliver an answering affidavit. As recognised in Minister of Finance, the court may determine the application on the papers before it as filed by the applicant, or require the respondent to seek appropriate procedural relief before being permitted to address the merit – resulting in significant delay, costs and further interlocutory proceedings.

Conclusion

The Constitutional Court’s decision in Famous Idea resolves an important procedural question in Rule 53 review proceedings. A Rule 53 record does not invariably have to come before the Rule 6(5)(d)(iii). But Rule 6(5)(d)(iii) can neither be used simply to ensure that it does not.