civil procedure - bowmans · 2016-09-21 · proc r16 gg 30070 of 11 july 2007 (reg gaz 8715) ......

CIVIL PROCEDURE

SIBERGRAMME 10/2007

ISSN 1814-0564

7 January 2008

BY: MERVYN DENDY

BCom LLB (cum laude), Attorney and Notary

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IN THIS ISSUE: 1. .. INTRODUCTION ....................................................................................................4

2. .. LEGISLATION ......................................................................................................5

3. .. JURISDICTION .....................................................................................................7 Arrest or attachment to found or confirm jurisdiction ................................................. 7 Inherent power to regulate process ........................................................................... 8

4. .. RECUSAL OF JUDICIAL OFFICER............................................................................8 Bias............................................................................................................................ 8

5. .. PARTIES .............................................................................................................8 Pan South African Language Board .......................................................................... 8

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ISSN 1814 – 0564 CIVIL PROCEDURE SG 10/2007

6. .. APPLICATIONS ....................................................................................................9 Dispute of fact ............................................................................................................ 9

7. .. RES JUDICATA ....................................................................................................9

8. .. INTERDICTS.........................................................................................................9 Final interdict ............................................................................................................. 9

9. .. JUDGMENTS AND ORDERS....................................................................................10 Preservation order ..................................................................................................... 10

10. APPEALS ............................................................................................................10 Appealability .............................................................................................................. 10 Application for leave to appeal................................................................................... 10 Application to the Supreme Court of Appeal for leave to appeal ............................... 11 Exercise of discretion by court a quo......................................................................... 11 Mode of address in Supreme Court of Appeal........................................................... 11 Practice directions: Supreme Court of Appeal ........................................................... 11 Record on appeal ...................................................................................................... 13

11. COSTS................................................................................................................13 Attorney-and-client costs ........................................................................................... 13 Successful party deprived of costs ............................................................................ 14

12. CONSTITUTIONAL PRACTICE .................................................................................14 Amicus curiae ............................................................................................................ 14 Application for leave to appeal to Constitutional Court .............................................. 14 Costs.......................................................................................................................... 15 Direct access to Constitutional Court......................................................................... 16 Jurisdiction of Constitutional Court ............................................................................ 17 Refusal by Supreme Court of Appeal of leave to appeal ........................................... 17 Variation of judgment containing patent error ............................................................ 17

13. LITERATURE .......................................................................................................18

Cases Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd 2007 (5) BCLR 453

(CC) .............................................................................................................................. 16 Minister of Justice and Constitutional Development & another v Zealand 2007 (2)

SACR 401 (SCA), [2007] 3 All SA 588 ...................................................................... 14 National Director of Public Prosecutions v Braun & another (No 2) 2007 (1)

SACR 556 (C) ...................................................................................................... 7, 9, 10 Nyamhoka & others v Officer Commanding, Zimbabwe Republic Police,

& others 2007 (2) SACR 16 (ZH) ........................................................................... 9, 13

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Online Lottery Services (Pty) Ltd v National Lotteries Board & others [2007] 1 All SA 618 (T) ................................................................................................................ 9

Pan South African Language Board v Member of the Executive Committee for Roads, Transport and Community Safety, North West Province & another 2007 (11) BCLR 1258 (B) ....................................................................................... 8, 15

Practice Direction 2007 (1) SACR 565 (SCA) ............................................................... 11 Practice Directions 2007 (2) SACR 323 (SCA).............................................................. 11 S v Basson 2007 (1) SACR 566 (CC).................................................................... 8, 11, 17 Shinga v S (Society of Advocates, Pietermaritzburg Bar as Amicus Curiae);

O’Connell & others v S 2007 (5) BCLR 474 .............................................................. 10 Shinga v The State & another (Society of Advocates (Pietermaritzburg Bar)

intervening as Amicus Curiae; S v O’Connell & others 2007 (2) SACR 28............. 11 Shinga v The State & another (Society of Advocates, Pietermaritzburg Bar,

as Amicus Curiae); O’Connell & others v The State 2007 (4) SA 611 (CC) ............ 10 South African Broadcasting Corporation Ltd v National Director of Public

Prosecutions & others 2007 (1) SACR 408 (CC) ................................................ passim Toich v The Magistrate, Riversdale & others [2007] 4 All SA 1064 (C), 2007

(2) SACR 235 ............................................................................................................... 13 Transnet Ltd & others v Chirwa 2007 (2) SA 198 (SCA), [2007] 1 All SA 184 ............. 9 University of Witwatersrand Law Clinic v Minister of Home Affairs & others

2007 (8) BCLR 900 (CC) ...................................................................................... 14, 17

Legislation Convention on International Interests in Mobile Equipment Act 4 of 2007 ............... 5 Genetically Modified Organisms Amendment Act 23 of 2006...................................... 5 Housing Consumers Protection Measures Amendment Act 17 of 2007 ...................... 5 Pension Funds Amendment Act 11 of 2007 .................................................................... 5 South African Institute for Drug-Free Sport Amendment Act 25 of 2006 .................. 5 General Notice 768 GG 29994 of 19 June 2007............................................................... 5 General Notice 817 GG 30022 of 6 July 2007 ................................................................. 6 General Notice 998 GG 30164 of 17 August 2007........................................................... 7 General Notice 1172 GG 30299 of 21 September 2007 .................................................. 7 General Notice 1629 GG 30455 of 9 November 2007 ..................................................... 7 GN 306 GG 29775 of 13 April 2007 ................................................................................. 6 GN R321 GG 29792 of 20 April 2007 .............................................................................. 6 GN R364 GG 29828 of 26 April 2007 .............................................................................. 6 GN R478 GG 29958 of 1 June 2007 (Reg Gaz 8694)....................................................... 6 GN R570 GG 30061 of 9 July 2007 (Reg Gaz 8713)........................................................ 6 GNs 658, 659, 660, 661 and 662 GG 30098 of 20 July 2007 ........................................... 6 GN R680 GG 30112 of 24 July 2007 (Reg Gaz 8721)...................................................... 6 GN 684 GG 30117 of 27 July 2007 ................................................................................... 7 GN 696 GG 30140 of 3 August 2007 ................................................................................ 6 GN 789 GG 30225 of 28 August 2007 .............................................................................. 7 GN 820 GG 30253 of 7 September 2007 .......................................................................... 7



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GN 999 GG 30392 of 26 October 2007 ............................................................................ 7 GN 1072 GG 30459 of 16 November 2007....................................................................... 7 GN 1100 GG 30485 of 23 November 2007....................................................................... 7 Proc 13 GG 30030 of 29 June 2007 (Reg Gaz 8706)........................................................ 5 Proc R16 GG 30070 of 11 July 2007 (Reg Gaz 8715)...................................................... 5 Proc 20 GG 30213 of 24 August 2007 .............................................................................. 5 Proc 26 GG 30297 of 13 September 2007 ........................................................................ 5

Literature C G Marnewick SC Litigation Skills for South African Lawyers (Second

edition) (2007) .............................................................................................................. 18 Lawrence Schäfer The Law of Access to Children: A Comparative Study

of South African, English and Australian Law (2007) .............................................. 18 W A Joubert (ed) The Law of South Africa Volume 29 (Second edition)

(2007) ............................................................................................................................ 18 Annual Survey of South African Law 2005 edition ....................................................... 18 2007 (May) De Rebus ...................................................................................................... 18 2007 (Jun) De Rebus........................................................................................................ 19 2007 (Jul) De Rebus......................................................................................................... 19 2007 (Aug) De Rebus ....................................................................................................... 19 2007 (Nov) De Rebus ....................................................................................................... 19 (2006) 14 Juta’s Business Law ........................................................................................ 19 (2007) 15 Juta’s Business Law .................................................................................. 19, 20 (2006) 22 SAJHR ............................................................................................................. 20 (2007) 124 SALJ............................................................................................................... 20 (2007) 19 SA Merc LJ ................................................................................................ 20, 21 (2007) 70 THRHR ............................................................................................................ 21 2007 TSAR.................................................................................................................. 21, 22 1. INTRODUCTION

In this Sibergramme legislation and literature published from April to November 2007 are surveyed.

All decisions relevant to civil procedure reported in The South African Criminal Law Reports between April and November 2007 are also considered here. This Sibergramme and the next deal, in addition, with decisions reported in Butterworths Constitutional Law Reports between April and November 2007.

Cases on the law of civil procedure which were reported between April and November 2007 in The South African Law Reports and in The All South African Law Reports will be considered in later Sibergrammes.



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2. LEGISLATION

Section 12 of the Genetically Modified Organisms Amendment Act 23 of 2006 promulgated in GG 29803 of 17 April 2007 inserted s 17A into the Genetically Modified Organisms Act 15 of 1997 so as to provide for the recovery by the Executive Council for Genetically Modified Organisms of costs incurred by it in implementing control measures under s 5(1)(n) or s 17(3) of the latter Act (as amended). Section 17A(5) provides that an order made for the recovery of such costs shall have the effect of a civil judgment in a magistrate’s court, and s 17A(6) provides for a right of appeal to an appeal board against any such order for costs. The constitution, powers and functioning of the appeal board are regulated by s 19 of the principal Act, as amended by s 13 of the Amendment Act.

Section 10 of the South African Institute for Drug-Free Sport Amendment Act 25 of 2006 promulgated in GG 29805 of 17 April 2007 substitutes s 17 of the South African Institute for Drug-Free Sport Act 14 of 1997 so as to provide for an Anti-Doping Appeal Board to consider appeals by national-level athletes in matters relating to doping in sport.

Section 4 of the Convention on International Interests in Mobile Equipment Act 4 of 2007 promulgated in GG 30046 of 6 July 2007 provides that, for the purposes of art 53 of the Convention (which is set out in Schedule 1 to the Act), the High Court referred to in s 166(c) of the Constitution of the Republic of South Africa, 1996 is the court that has jurisdiction as contemplated in Chap XII of the Convention. Provisions governing choice of forum and jurisdiction are contained in arts 42—5 and 53. Article XXI of the Protocol to the Convention (which is set out in Schedule 2 to the Act) modifies the jurisdiction provisions in relation to transactions involving ‘aircraft objects’ as defined in the Protocol. The Act came into operation on 24 August 2007: Proc 20 GG 30213 of 24 August 2007.

Section 22 of the Pension Funds Amendment Act 11 of 2007 promulgated in GG 30240 of 29 August 2007 amended s 30P of the Pension Funds Act 24 of 1956, regulating recourse to the High Court by a person aggrieved by a determination of the Adjudicator. The Amendment Act came into operation on 13 September 2007: Proc 26 GG 30297 of 13 September 2007.

Section 10 of the Housing Consumers Protection Measures Amendment Act 17 of 2007 promulgated in GG 30475 of 16 November 2007 adds s 22(5) to the Housing Consumers Protection Measures Act 95 of 1998 so as to provide for a right of appeal against a decision of the National Home Builders Registration Council made in terms of s 29 of the principal Act.

The Carriage by Air Amendment Act 15 of 2006 came into operation on 19 June 2007: General Notice 768 GG 29994 of 19 June 2007 and Proc R16 GG 30070 of 11 July 2007 (Reg Gaz 8715). Provisions of the Act which are of relevance to the law of civil procedure were referred to in Civil Procedure Sibergramme 1 of 2007 (20 June 2007) 3.

Various provisions of the Children’s Act 38 of 2005 came into operation on 1 July 2007: Proc 13 GG 30030 of 29 June 2007 (Reg Gaz 8706). They include the provisions



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discussed here. Section 6(2) of the Act provides that all proceedings, actions or decisions in a matter concerning a child must (inter alia) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights and the best-interests-of-the-child standard set out in s 7 of the Act; respect the child’s inherent dignity; and treat the child fairly and equitably. Section 14 of the Act provides that every child has the right to bring, and to be assisted in bringing, a matter to a court, provided that matter falls within the jurisdiction of that court. Anyone listed in s 15 has the right to approach a competent court, alleging that a right in the Bill of Rights or the Children’s Act has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are (a) a child who is affected by or involved in the matter to be adjudicated, (b) anyone acting in the interest of the child or on behalf of another person who cannot act in their own name, (c) anyone acting as a member of, or in the interest of, a group or class of persons, and (d) anyone acting in the public interest. Importantly, s 17 of the Act provides that a child, whether male or female, becomes a major upon reaching the age of 18 years. A parent or other person who acts as guardian of a child must (inter alia) assist or represent the child in legal matters (s 18(3)(b)).

Tsakane in the district of Brakpan was appointed as a place for the holding of a magistrate’s court for the district of Brakpan in GN 306 GG 29775 of 13 April 2007 in terms of s 2(1)(h) of the Magistrates’ Courts Act 32 of 1944.

Provision for mediation and arbitration by the Gas Regulator was made in regs 14, 15 and 16 of the Piped Gas Regulations promulgated in terms of the Gas Act 48 of 2001 in GN R321 GG 29792 of 20 April 2007.

Provision for an appeal against the suspension of an approval or accreditation certificate under the Civil Aviation Regulations, 1997 is made in reg 108.05.11, as amended by the Twenty Fifth Amendment to the Civil Aviation Regulations, 1997 promulgated in GN R364 GG 29828 of 26 April 2007.

Rules promulgated under s 77I of the Customs and Excise Act 91 of 1964, prescribing the procedures to be followed for alternative dispute resolution, made by the Minister of Finance were published in GN R478 GG 29958 of 1 June 2007 (Reg Gaz 8694).

Article 7 of the Complaints Handling Procedures of the South African Human Rights Commission promulgated in General Notice 817 GG 30022 of 6 July 2007 provides for the institution of legal proceedings in the name of the Commission or in the name of a complainant following the lodgement of a complaint with the Commission. Appeals in terms of the Complaints Handling Procedures are regulated by art 8.

Appeals to the Minister in terms of s 7(2), 8(2) or 9(2) of the Precious Metals Act 37 of 2005 are regulated by reg 34 of the Precious Metals Regulations promulgated in GN R570 GG 30061 of 9 July 2007 (Reg Gaz 8713).

Small claims courts for the areas of Mankweng, Mokerong, Mthatha, Lusikisiki and Madadeni were established by GNs 658, 659, 660, 661 and 662 GG 30098 of 20 July 2007, respectively.

Dispute-resolution provisions are set out in Chapter 5 Part V section G of the General Rules Made in Terms of the National Health Laboratory Service Act 37 of 2000, promulgated in GN R680 GG 30112 of 24 July 2007 (Reg Gaz 8721) and in item 4.10 of the guidelines promulgated in terms of the Intergovernmental Relations Framework Act 13 of 2005 in GN 696 GG 30140 of 3 August 2007.



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The district of Soshanguve was excised from the area for which the small claims court of Pretoria was established, and a separate small claims court for Soshanguve was established for the district of Soshanguve, by GN 684 GG 30117 of 27 July 2007.

The rules governing the conduct of proceedings in the Orange Free State Provincial Division were amended by General Notice 998 GG 30164 of 17 August 2007. The amendments set out the terms and administrative recesses of the Court for 2008.

An entirely new set of rules governing the conduct of proceedings in the Orange Free State Provincial Division was promulgated in GN 820 GG 30253 of 7 September 2007 with effect from 1 August 2007. The rules promulgated in 1969, all amendments thereto and all practice directions issued prior to 1 August 2007 were repealed. The new rules provide (inter alia) for sittings of the court and administrative recesses, the setting down of defended cases for trial, indexing and pagination in civil cases set down for trial, pre-trial conferences, settlement of trial actions or removal from the roll, the operation of the motion court, default judgments, sequestrations, exceptions and interpleaders, rule 43 applications, appeals and reviews, heads of argument, striking off the roll, applications for leave to appeal from the High Court in civil matters, and the Court’s dress code.

Rules for the conduct of matters before the National Consumer Tribunal were promulgated under the National Credit Act 34 of 2005 in GN 789 GG 30225 of 28 August 2007.

Court term dates for the Natal Provincial Division and the Durban and Coast Local Division for 2008 were promulgated in General Notice 1172 GG 30299 of 21 September 2007.

Ekuvukeni in the district of Glencoe was appointed as a place for the holding of a magistrate’s court in GN 999 GG 30392 of 26 October 2007.

The rules regulating proceedings of the Transvaal Provincial Division, the Witwatersrand Local Division and the Venda High Court were amended by General Notice 1629 GG 30455 of 9 November 2007 in order to provide for the dates of the terms and administrative recesses for the years 2009, 2010 and 2011.

A small claims court for the area of Lydenburg was established by GN 1072 GG 30459 of 16 November 2007.

A small claims court for the area of Tshilwavhusiku was established by GN 1100 GG 30485 of 23 November 2007. 3. JURISDICTION

Arrest or attachment to found or confirm jurisdiction

In National Director of Public Prosecutions v Braun & another (No 2) 2007 (1) SACR 556 (C) Bozalek J held that it was not necessary to attach movable property to found or confirm jurisdiction in proceedings aimed at securing the grant of a preservation order in terms of s 38 of the Prevention of Organised Crime Act 121 of 1998 where the property in respect of which the preservation order was sought was immovable property situated in South Africa and belonging to a company registered in South Africa (para 17 at 562c—d). Since the proceedings were of an in rem nature (para 16 at 561g—h), it mattered not



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that the individual who had used the immovable property as an instrumentality of crime had in the mean time fled to Germany and made it known that he had no intention of returning to South Africa. Inherent power to regulate process

The decision in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions & others 2007 (1) SACR 408 (CC) was previously reported in 2007 (1) SA 523 (CC) and 2007 (2) BCLR 167, and was surveyed in Civil Procedure Sibergramme 5 of 2007 (20 September 2007) 3—6. 4. RECUSAL OF JUDICIAL OFFICER

Bias

The decision in S v Basson 2007 (1) SACR 566 (CC) was previously reported in 2005 (12) BCLR 1192, and was surveyed in Civil Procedure Sibergramme 1 of 2006 (28 April 2006) 6—9. 5. PARTIES

Pan South African Language Board

In Pan South African Language Board v Member of the Executive Committee for Roads, Transport and Community Safety, North West Province & another 2007 (11) BCLR 1258 (B) the Pan South African Language Board was held to lack locus standi in judicio (para 27 at 1269H) to seek declaratory and interdictory relief arising out of the use of the words ‘THE PLATINUM PROVINCE’ in English only as part of the logo appearing on vehicle number plates in the North West Province. Referring extensively to the provisions of ss 3, 8 and 9 in particular of the Pan South African Language Board Act 59 of 1995, Landman J held that the legislature intended the Board to further the promotion of multilingualism by practising diplomacy rather than by entering the lists in courts of law. Litigation, by its very nature, was adversarial, and was not conducive to maintaining long-term relationships. It hardened positions and might arouse suspicion and ill will. The Board, which was enjoined to be objective and impartial, was not to engage in litigation when there were other avenues open to it. One such avenue, and the only one open to the Board when a lawsuit was indicated, was to provide the complainant with the wherewithal to institute his or her own case or to hire the services of a legal practitioner. In that way the Board could assist in bringing a complaint to a final conclusion and avoid the adverse consequences of litigation, preserving its role as an impartial promoter of multilingualism (para 26 at 1269E—H). This was in accordance with s 11(5)(b)(iv) of the Act, which provides for the Board to make arrangements for or to provide a complainant with financial or other assistance to enable a complainant to obtain relief from (inter alia) a court of law. That provision implied that the Board itself



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would not become a party to an action. There was nothing specific which forbade the Board from associating itself with the complainant or from applying to be an amicus curiae. But the general tenor of the Act militated against the Board litigating on language complaints or on behalf of complainants (paras 21—2 at 1265C—E). That conclusion was also in accordance with the administrative-law rule that in most cases express powers were needed for actions and decisions of public bodies, although implied powers might be ancillary to the express powers (para 19 at 1264J—1265A, with reference to Cora Hoexter & Rosemary Lyster The New Constitutional and Administrative Law II Administrative Law (2002) 24; see now Cora Hoexter Administrative Law in South Africa (2007) 42—3).

In the light of the abovementioned provisions of the Pan South African Language Board Act, the general provision governing locus standi in s 38(d) of the Constitution of the Republic of South Africa, 1996 (referred to by Landman J in para 18 at 1264G—H and para 20 at 1265A—B) and the broad approach to standing adopted in the Constitutional Court and the High Court (referred to by Landman J in paras 16—17 at 1264A—E) could not carry the day. 6. APPLICATIONS

Dispute of fact

The well-known test in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E—635C for resolving disputes of fact on affidavit in an application in which the grant of a final interdict is sought was applied in Online Lottery Services (Pty) Ltd v National Lotteries Board & others [2007] 1 All SA 618 (T) at 626a—f and by Mthiyane JA (Jafta JA concurring) in Transnet Ltd & others v Chirwa 2007 (2) SA 198 (SCA), [2007] 1 All SA 184 para 3 at 204A—B (SA), 188c—d (All SA). 7. RES JUDICATA

See National Director of Public Prosecutions v Braun & another (No 2) 2007 (1) SACR 556 (C), surveyed under ‘APPEALS: Appealability’ below. 8. INTERDICTS

Final interdict

The trite requirements for the grant of a final interdict were set out by Hungwe J in Nyamhoka & others v Officer Commanding, Zimbabwe Republic Police, & others 2007 (2) SACR 16 (ZH) as being a clear right, an injury actually committed or reasonably apprehended and that there is no other satisfactory remedy available to the applicant (at 22h—i). The applicants (who had been unlawfully detained by the Zimbabwe Republic Police for longer than the 48-hour period permitted by law) had clearly established their



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rights by reference to the Constitution of Zimbabwe, and the infringement of those rights had been conceded by the state. No remedy other than the release of the applicants from unlawful custody could possibly be available to the applicants, who accordingly met the requirements for the grant of a final interdict. Since the applicants had, by the time when judgment was delivered, been released from custody, however, only a declaration of rights was by then being sought, and the applicants were entitled to it (at 22i—j). 9. JUDGMENTS AND ORDERS

Preservation order

In National Director of Public Prosecutions v Braun & another (No 2) 2007 (1) SACR 556 (C) Bozalek J granted a preservation order in terms of s 38 of the Prevention of Organised Crime Act 121 of 1998 in final form (rather than in the form of a rule nisi) since the application for the order was a second application, brought on notice to the respondents, and the preservation order was in itself of a temporary nature. In the circumstances, there was ‘no point [in] granting the order in anything but final form’ (para 7 at 559h—i). 10. APPEALS

Appealability

In National Director of Public Prosecutions v Braun & another (No 2) 2007 (1) SACR 556 (C) Bozalek J held, with reference to Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I—533B, that generally speaking, a non-appealable decision is a decision which is not final (because the court of first instance is entitled to alter it), nor definitive of the rights of the parties, nor dispositive of at least a substantial portion of the relief claimed in the main proceedings. A preservation order in terms of s 38(1) of the Prevention of Organised Crime Act 121 of 1998 which was previously issued in the form of a rule nisi but then discharged for want of full disclosure in an ex parte application accordingly did not prevent the applicant from approaching the court again for the same relief in a fresh application: a preservation order was a precursor to the real relief sought, sc a forfeiture order, and the judgment discharging the rule nisi lacked the second and third attributes adumbrated in Zweni and was accordingly not appealable (para 12 at 560h—561b). Application for leave to appeal

In Shinga v The State & another (Society of Advocates, Pietermaritzburg Bar, as Amicus Curiae); O’Connell & others v The State 2007 (4) SA 611 (CC), also reported sub nom Shinga v S (Society of Advocates, Pietermaritzburg Bar as Amicus Curiae); O’Connell & others v S 2007 (5) BCLR 474 and Shinga v The State & another (Society



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of Advocates (Pietermaritzburg Bar) intervening as Amicus Curiae; S v O’Connell & others 2007 (2) SACR 28 Yacoob J (writing for the Constitutional Court) said of the evaluation of an application for leave to appeal (in a criminal context) that this is a judicial task of some delicacy and expertise. It should be approached on the footing of intellectual humility and integrity, neither over-zealously endorsing the ineluctable correctness of the decision that has been reached, nor over-anxiously referring decisions that are indubitably correct to an appellate court (para 53 at 635C—D (SA), 498G—H (BCLR), 52g—h (SACR)). The same, it is submitted, should apply to applications for leave to appeal in civil matters. Application to the Supreme Court of Appeal for leave to appeal

The decision in S v Basson 2007 (1) SACR 566 (CC) was previously reported in 2005 (12) BCLR 1192, and was surveyed in Civil Procedure Sibergramme 1 of 2006 (28 April 2006) 17. Exercise of discretion by court a quo

The decision in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions & others 2007 (1) SACR 408 (CC) was previously reported in 2007 (1) SA 523 (CC) and 2007 (2) BCLR 167, and was surveyed in Civil Procedure Sibergramme 5 of 2007 (20 September 2007) 15—16.

The decision in S v Basson 2007 (1) SACR 566 (CC) was previously reported in 2005 (12) BCLR 1192, and was surveyed in Civil Procedure Sibergramme 1 of 2006 (28 April 2006) 17. Mode of address in Supreme Court of Appeal

The practice directive summarized in Civil Procedure Sibergramme 8 of 2007 (28 November 2007) 3—4 has now been published: see Practice Direction 2007 (1) SACR 565 (SCA) and Practice Directions 2007 (2) SACR 323 (SCA) para 14 at 326d—f. Practice directions: Supreme Court of Appeal

The President of the Supreme Court of Appeal on 17 August 2007 issued new Practice Directions in respect of the Supreme Court of Appeal, which replace all previous such directions: see Practice Directions 2007 (2) SACR 323 (SCA). The new directions provide, inter alia, as follows (with changes being underlined):

• The Registrar must be informed immediately it becomes known that an appeal is to be postponed or has been settled (para 1(a) at 324h).

• An attorney who wishes to withdraw as attorney of record must comply with the procedure prescribed by uniform rule 16(4) (para 1(b) at 324h).



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• Unless the President of the Supreme Court of Appeal orders otherwise, the heads of argument to be lodged in terms of (SCA) rule 10(1) must be lodged, in the case of the appellant, within two months from the lodging of the record and, in the case of the respondent, within one month from the receipt of the appellant’s heads of argument (para 2 at 324i).

• The heads of argument of each party must be accompanied by a brief typed note indicating the name and number of the matter; the nature of the appeal; the issues on appeal succinctly stated; an estimate of the duration of the argument; if more than one day is required for argument, the reasons for the request; which portions or pages of the record are in a language other than English; a list reflecting those parts of the record that, in the opinion of counsel, are necessary for the determination of the appeal; a summary of the argument, not exceeding two folios; an indication of those authorities to which particular reference will be made during the course of argument; and that there was due and timeous compliance with rule 8(8) and (9), and if not, why not. An appeal will not be enrolled until this direction has been complied with (para 3 at 324i—325d).

• If a core bundle has not been prepared in terms of rule 8(7), the heads of argument of the appellant must be accompanied by one. If a core bundle is not appropriate for the appeal, the reasons for that conclusion must be stated in the practice note referred to in para 3 of the Practice Directions (para 4 at 325d—e).

• Cross-appeals do not require a separate set of heads of argument. In all cases where there is an appeal and a cross-appeal, the appellant’s main heads of argument under rule 10(1)(b) must follow the same pattern (para 5 at 325e—f).

• Because of problems experienced in obtaining orders from registrars in High Courts, the Registrar of the Supreme Court of Appeal will, for the time being, accept applications for leave to appeal or notices of appeal without the certified copy of the order as required by rule 6(2)(c) or rule 7(3)(c). Instead, a letter from the registrar of the court a quo certifying the date of the order will be sufficient (para 6).

• The Registrar may not accept documents in relation to an appeal on the date of the hearing of that appeal (para 7 at 325g).

• Each communication from any practitioner directed to the President of the Court or to any presiding judge must be done through the offices of the Registrar and not directly with that judge (para 8 at 325g—h).

• If an application for leave to appeal is filed within 21 court days instead of within 21 ordinary (calendar) days as required by s 21(2) of the Supreme Court Act 59 of 1959, it will for the time being not be necessary for the applicant to apply formally for condonation for the failure to comply with that provision (para 9 at 325h—i).

• The use of plastic ring binders (not files) for heads of argument and in applications would be appreciated. Annexures to the heads, such as authorities or subsidiary legislation, must be separately bound (para 10 at 325i—j).



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• If any party to a pending appeal is of the view that it warrants preferent enrolment whether by reason of urgency or other good cause, such view must be conveyed immediately by letter to the Registrar for the attention of the President of the Court (para 11 at 325j—326a).

• Where a pending appeal is awaiting enrolment, the Registrar must be informed if counsel for either party is due to be unavailable in the next ensuing term or if enrolment may clash with religious holidays which any of the legal representatives or parties in the case wish to observe (para 12 at 326a—c).

• If the heads of argument of any party to an appeal are not filed after due time for lodging and after written reminder from the Registrar, the appeal will be enrolled and the Court may at the hearing in the absence of the defaulting party, and after hearing argument, make such order as it deems fit (para 13 at 326c).

Record on appeal

In Toich v The Magistrate, Riversdale & others [2007] 4 All SA 1064 (C), 2007 (2) SACR 235 Thring J (Zondi J concurring) criticized the inclusion in an appeal record of the entire transcript of a bail application running to 359 pages, of which only six were ‘possibly . . . of some peripheral relevance’. The rest of the transcript was entirely irrelevant to the proceedings in the appeal, and was not referred to in heads of argument or (until the topic was raised by the court) in counsel’s oral submissions. Its inclusion in the record had led to a substantial waste of time and resources on the part of all concerned (at 1071f—i (All SA), 244d—f (SACR)). As a mark of the court’s disapproval, the second and third respondents (who were responsible for the incorporation of the irrelevant material in the record) were ordered to pay the costs occasioned by the inclusion of the transcript, other than the six relevant pages, on an attorney-and-client basis (at 1071i, 1072c (All SA), 244f—g, 245a—b (SACR)). 11. COSTS

Attorney-and-client costs

Costs on a ‘legal practitioner and client scale’ were awarded against the respondents in Nyamhoka & others v Officer Commanding, Zimbabwe Republic Police, & others 2007 (2) SACR 16 (ZH) after the latter were found to have unlawfully detained the applicants for longer than the 48 hours permitted by law in Zimbabwe, without access to legal representatives of their choice. This conduct, said Hungwe J, was deserving of ‘the highest possible censure’, could not be justified in a democratic society and brought the administration of justice into disrepute (at 22g—h, 23b—c).



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Successful party deprived of costs

Notwithstanding partial success on appeal, the appellants in Minister of Justice and Constitutional Development & another v Zealand 2007 (2) SACR 401 (SCA), [2007] 3 All SA 588 were ordered to pay the respondent’s costs in both the trial court and the Supreme Court of Appeal (para 22 at 409f—g (SACR), 594e—f (All SA)), since the case represented ‘an extreme example of violation of the rights of the respondent’ through unlawful detention, and was ‘a disgrace to the administration of justice’. The appellants, said Snyders AJA (Farlam and Combrinck JJA concurring), should have been eager to make good to the respondent, rather than hold out and fight to the bitter end. Against that background, the success achieved by the appellants on appeal was not substantial success entitling them to the costs of the appeal (para 21 at 409d—e (SACR), 594c—d (All SA)). 12. CONSTITUTIONAL PRACTICE

Amicus curiae

See University of Witwatersrand Law Clinic v Minister of Home Affairs & others 2007 (8) BCLR 900 (CC), which is surveyed under ‘Application for leave to appeal to Constitutional Court’ immediately below. Application for leave to appeal to Constitutional Court

The decision in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions & others 2007 (1) SACR 408 (CC) was previously reported in 2007 (1) SA 523 (CC) and 2007 (2) BCLR 167, and was surveyed in Civil Procedure Sibergramme 5 of 2007 (20 September 2007) 18.

In University of Witwatersrand Law Clinic v Minister of Home Affairs & others 2007 (8) BCLR 900 (CC) the Constitutional Court held that it was not in the interests of justice for an application for leave to appeal directly to the Constitutional Court against a judgment of the High Court to be considered while an application for leave to appeal against that judgment to the Supreme Court of Appeal was pending before the High Court. The applicant law clinic was an amicus curiae in the proceedings before the High Court, and as an amicus could not take over the litigation and determine an appropriate forum for the hearing of a possible appeal. Since the applicant in the proceedings before the High Court had elected to pursue the possibility of an appeal first in the Supreme Court of Appeal, his choice had to be respected. The decision in Campus Law Clinic, University of KwaZulu-Natal v Standard Bank of South Africa Ltd & another 2006 (6) SA 103 (CC), 2006 (6) BCLR 669 (surveyed in Civil Procedure Sibergramme 13 of 2006 (21 September 2006) 5—6) was clearly distinguishable, for that matter did not involve a direct appeal to the Constitutional Court while an application for leave to appeal was pending in the High Court (para 5 at 901E—F).

The applicant before the High Court had purported to join the amicus in an application for direct appeal to the Constitutional Court. That was impermissible. As he was the dominus litis, he had to lodge his own application and could not seek to join an



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application lodged by an amicus. The Court had made it clear in the KwaZulu-Natal Campus Law Clinic case that an amicus curiae would ordinarily be permitted to appeal against an order of another court only where the actual parties to that litigation were not seeking to pursue an appeal and there was a clear public interest requiring it to be permitted to lodge the appeal. Where a party to the litigation sought leave to appeal, that party had to launch its own application for leave to appeal in terms of the rules and to set out all the considerations relevant to its application. To permit a party to join an application for leave to appeal made by an amicus would be to subvert the clear understanding in the KwaZulu-Natal Campus Law Clinic case that parties to litigation are those who in the first place must seek to prosecute the litigation (para 6 at 901F—I).

A further problem with the application to join the amicus in the latter’s application for leave to appeal directly to the Constitutional Court was that it did not indicate, contrary to Constitutional Court rule 19(3)(d), that an application was pending in the High Court, and the status of that application. The purpose of that rule was to avoid the duplication of proceedings, and more importantly to enable the Constitutional Court to determine whether it was in the interests of justice to consider the matter while an application for leave to appeal was pending in another court. It was not in the interests of justice to have two courts consider applications for leave to appeal at the same time without each knowing that another court was considering an application for leave to appeal in the same matter (para 7 at 902A—C).

Accordingly, even though the matter in question involved the disappearance of a human being following an arrest and was thus a matter of ‘grave concern’, that did not justify a departure from the rules relating to applications for leave to appeal. There was no suggestion that there had been unreasonable delay in dealing with the application for leave to appeal which was pending before the High Court (para 8 at 902C—D).

It was therefore not in the interests of justice to grant the application for leave to appeal to the Constitutional Court while the application before the High Court was pending, and both applications had therefore to be dismissed (paras 9—10 at 902D—E). Costs

The decision in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions & others 2007 (1) SACR 408 (CC) was previously reported in 2007 (1) SA 523 (CC) and 2007 (2) BCLR 167, and was surveyed in Civil Procedure Sibergramme 5 of 2007 (20 September 2007) 18—19.

Landman J in Pan South African Language Board v Member of the Executive Committee for Roads, Transport and Community Safety, North West Province & another 2007 (11) BCLR 1258 (B) declined to order the applicant to pay costs after finding that it lacked locus standi to bring an application for declaratory and interdictory relief arising out of the use in the North West Province of the logo ‘THE PLATINUM PROVINCE’ in English only on vehicle number plates in the province. The court applied dicta in Motsepe v Commissioner for Inland Revenue 1997 (2) SA 898 (CC), 1997 (6) BCLR 692 para 30 at 911F—912A (SA), 705E—G (BCLR) to the effect (inter alia) that one should be cautious in awarding costs against litigants who seek to enforce their



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constitutional rights against the state, particularly where the constitutionality of a statutory provision is attacked, lest such orders had an unduly inhibiting or ‘chilling’ effect on other potential litigants in that category (para 27 at 1269H—1270A). To refuse to award costs against the applicant seemed to be ‘the proper approach to take in this matter’ (para 28 at 1270B). Direct access to Constitutional Court

The well-known reluctance of the Constitutional Court to allow direct access to itself, and thus to sit as a court of first and last instance, was again made plain in Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd 2007 (5) BCLR 453 (CC), where the applicant contended, for the first time in an application for leave to appeal to the Constitutional Court, that constitutional principles required the reintroduction into our law of contract of the exceptio doli generalis of Roman law, which was declared defunct and ‘buried’ in Bank of Lisbon and South Africa Ltd v De Ornelas & another 1988 (3) SA 580 (A) at 607B. In response, the Constitutional Court pointed out that it had repeatedly stated that it was generally undesirable for it to sit as a court of first and last instance. Experience showed that decisions were more likely to be correct if more than one court had been required to consider the issues raised. The losing party would then have the opportunity of challenging the reasoning on which the first judgment was based, and of reconsidering and refining arguments previously raised in the light of that judgment (para 5 at 455E—F, with particular reference to Bruce & another v Fleecytex Johannesburg CC & others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 para 8 at 1148D—E (SA), 419D—F (BCLR), and also with reference to Christian Education South Africa v Minister of Education 1999 (2) SA 83 (CC), 1998 (12) BCLR 1449 para 12 at 90C—D (SA), 1456C—E (BCLR), Dormehl v Minister of Justice & others 2000 (2) SA 987 (CC), 2000 (5) BCLR 471 para 5 at 990C—H (SA), 474F—475D (BCLR), Phenithi v Minister of Education & others 2003 (11) BCLR 1217 (CC) para 5 at 1219C—D and Satchwell v President of the Republic of South Africa & another 2003 (4) SA 266 (CC), 2004 (1) BCLR 1 para 6 at 270H—271C (SA), 4H—5B (BCLR); see, in addition, Mkontwana v Nelson Mandela Metropolitan Municipality & another; Bissett & others v Buffalo City Municipality & others; Transfer Rights Action Campaign & others v MEC, Local Government and Housing, Gauteng, & others (KwaZulu-Natal Law Society & Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC), 2005 (2) BCLR 150 para 11 at 539C—F (SA), 155C—F (BCLR), Bhe & others v Magistrate, Khayelitsha, & others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole & others; South African Human Rights Commission & another v President of the Republic of South Africa & another 2005 (1) SA 580 (CC), 2005 (1) BCLR 1 para 32 at 600B (SA), 10D (BCLR), Zondi v MEC for Traditional and Local Government Affairs & others 2005 (3) SA 589 (CC), 2005 (4) BCLR 347 paras 13—15 at 598F—599E (SA), 352B—353B (BCLR), De Kock v Minister of Water Affairs and Forestry & others 2005 (12) BCLR 1183 (CC) para 3 at 1185A—C, Mnguni v Minister of Correctional Services & others 2005 (12) BCLR 1187 (CC) para 6 at 1190B—D, Ex parte Omar 2006 (2) SA 284 (CC), 2003 (10) BCLR 1087 para 4 at 287C—D (SA), 1090A—B (BCLR), Janse van Rensburg v Maluti-A-Phofung Municipality 2006 (4) BCLR 457 (CC) para 4 at 458C—D, Campus



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Law Clinic, University of KwaZulu-Natal v Standard Bank of South Africa Ltd & another 2006 (6) SA 103 (CC), 2006 (6) BCLR 669 para 26 at 114F (SA), 680E—F (BCLR), Minister of Health & another v New Clicks South Africa (Pty) Ltd & others; In re: Application for Declaratory Relief 2006 (8) BCLR 872 (CC) para 13 at 877H—878C, Phumelela Gaming and Leisure Ltd v Gründlingh & others 2007 (6) SA 350 (CC), 2006 (8) BCLR 883 para 51 at 365E—F (SA), 898C—D (BCLR), Concerned Land Claimants’ Organisation of Port Elizabeth v Port Elizabeth Land and Community Restoration Association & others 2007 (2) BCLR 111 (CC) para 19 at 118F—119A read with para 18 at 118E—F, and Civil Procedure Sibergramme Yearbook 2005 (2006) 175—8).

In respect of the development of the common law of contract, continued the Constitutional Court, the High Courts and the Supreme Court of Appeal have a vital role to play. There were no compelling reasons to deal with the issues raised by the applicant for the first time before the Constitutional Court as a court of first and last instance. Besides, the further exploration that was necessary to enable the proper adjudication of the issues raised by the applicant had (understandably) not been undertaken by the High Court, and disputes unrelated to the narrow question before the High Court had not required resolution (para 6 at 455F—456A). Litigants were once again reminded that care should be taken to identify properly at the time of institution of proceedings which constitutional issue they wished to have addressed so that they, the courts and practitioners could ensure that all the necessary material was available to enable proper adjudication of cases at all levels of the judicial system (para 6 at 456A—B).

It was therefore not in the interests of justice that the application for leave to appeal be granted (para 7 at 456B). Jurisdiction of Constitutional Court

The decision in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions & others 2007 (1) SACR 408 (CC) was previously reported in 2007 (1) SA 523 (CC) and 2007 (2) BCLR 167, and was surveyed in Civil Procedure Sibergramme 5 of 2007 (20 September 2007) 19. Refusal by Supreme Court of Appeal of leave to appeal

The decision in S v Basson 2007 (1) SACR 566 (CC) was previously reported in 2005 (12) BCLR 1192, and was surveyed in Civil Procedure Sibergramme 1 of 2006 (28 April 2006) 22. Variation of judgment containing patent error

University of Witwatersrand Law Clinic v Minister of Home Affairs & others 2007 (8) BCLR 900 (CC) is the report of a revised judgment of the Constitutional Court that was originally published in 2007 (7) BCLR 821. In terms of Constitutional Court rule 29, uniform rule 42 applies, with such modifications as may be necessary, to proceedings in the Constitutional Court, and in terms of uniform rule 42(1)(b) the court may rescind or



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vary a judgment in which there is an ambiguity, a patent error or an omission, but only to the extent of such ambiguity, error or omission. One of the circumstances in which a court may vary its judgment or order is where the judgment contains a patent error which may be deleted without altering the intended sense or substance of the judgment (n1 at 900F—H, with reference to Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306H—307H). The patent error made in the University of Witwatersrand Law Clinic case was that the judgment originally reported suggested that a particular submission had been made by the applicant which was not in fact made, and which would have reflected adversely on the applicant’s professional competence had it been made. The paragraph of the original judgment responding to that proleptic submission could be deleted without affecting the sense or the substance of the judgment, and was duly deleted from the judgment following notice to the parties, to which no objection was made by them (n1 at 900H—I). 13. LITERATURE

The second edition (2007) of Litigation Skills for South African Lawyers by C G Marnewick SC aims to help newly qualified lawyers to reach the levels of competency and professionalism required of them, and is intended as a practical guide for teacher and student, to be used in the teaching and learning of the skills essential for a practitioner embarking on a career in the field of litigation.

The Law of Access to Children: A Comparative Study of South African, English and Australian Law (2007) by Lawrence Schäfer contains a brief discussion of jurisdiction to make ‘contact’ (sc access) orders under the Children’s Act 38 of 2005 (at 50—1), and two chapters on (respectively) the form of access orders and the enforcement of access orders.

The second edition of W A Joubert (ed) The Law of South Africa Volume 29 (2007) deals with trade marks. In it the authors, G E Morley and C E Webster, deal inter alia with the procedure in appeals to the court under the Trade Marks Act 194 of 1993, and the powers of the court under that Act (paras 97—8 at 64—5 and para 137 at 89).

The 2005 edition of the Annual Survey of South African Law contains the customary chapter (by Alan Dodson) on civil and constitutional procedure and jurisdiction (at 707—25), surveying a selection of cases reported during 2005. A list of South African literature on civil and constitutional procedure published in 2005 appears at the end of the chapter.

Pretoria advocate Leon Dicker in a note entitled ‘Procedure in Urgent Applications’ 2007 (May) De Rebus 31ff reproduces in toto the contents of a memorandum circulated by Judge Southwood of the Pretoria High Court on 12 February 2007 regarding the correct procedure in urgent applications in that court.

K M Röntgen (Snr) of Pretoria attorneys Röntgen & Röntgen emphasizes in a short note entitled ‘Pre-trial Procedure (Rule 37)’ in 2007 (May) De Rebus 33 the importance of complying with the requirement that a pre-trial conference be timeously conducted and that a minute of the conference be timeously filed in court.



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Pretoria advocates Danie van Loggerenberg SC, Leon Dicker and Jacques Malan in their regular civil procedure column in De Rebus discuss expert witness fees in the light of the provisions of uniform rule 70 and recent case law on the subject in 2007 (Jun) De Rebus 29f.

Recent deliberations concerning a discussion paper issued by the Rules Board for Courts of Law on the subject of attorneys’ costs are outlined by Graham Bellairs and Etienne Horn in 2007 (Jun) De Rebus 33. The authors also discuss the issue of the adequacy of the existing tariff of attorneys’ costs. (For a report on a call by the Law Society of South Africa for a 50 per cent increase in the tariff, see 2007 (Jul) De Rebus 20.)

Johannesburg attorney Imraan Mahomed comments on whether costs orders should be made in proceedings before the CCMA in ‘Cost Orders and the CCMA’ 2007 (Jun) De Rebus 59f.

Danie van Loggerenberg SC and Leon Dicker summarize the legal principles governing claims for payment of interest in their note ‘Claims for Interest in Action Proceedings’ 2007 (Jul) De Rebus 35.

The decision in Swartbooi & others v Brink & others 2006 (1) SA 203 (CC) is discussed by Johan van der Merwe in 2007 (Jul) De Rebus 53ff. (The case was surveyed by the present writer in Civil Procedure Sibergramme 4 of 2006 (20 June 2006) 14—15 and 15—17.)

The decision in University of Witwatersrand Law Clinic v Minister of Home Affairs & others 2007 (7) BCLR 821 (CC) is surveyed by Rex Joseph Mabuza of Johannesburg attorneys Brink Cohen Le Roux in 2007 (Jul) De Rebus 58.

Mellenthri Govender of Sandton attorneys Bowman Gilfillan in ‘Taking of Evidence Abroard’ 2007 (Aug) De Rebus 24ff discusses the means by which evidence in civil and commercial matters can be obtained from foreign countries by South African litigants, and by foreign litigants from South Africa.

Danie van Loggerenberg SC, Leon Dicker and Jacques Malan in ‘Applications for Security for Costs’ 2007 (Aug) De Rebus 28f explain the law relating to the furnishing of security for costs in civil matters, comparing and contrasting in detail the provisions of uniform rule 47 and magistrate’s court rule 62 in that regard.

Bloemfontein attorney Willie Herbst in an article entitled ‘Prosedureprobleme’ 2007 (Nov) De Rebus 20ff discusses problems arising out of execution against residential immovable property where the judgment debtor has died shortly before the sale in execution takes place.

Aspects of the Children’s Act 38 of 2005 which influence the status of minors as parties to civil proceedings are considered by Danie van Loggerenberg SC, Leon Dicker and Jacques Malan in ‘The New Children’s Act’ 2007 (Nov) De Rebus 25f.

Choice of law in commercial matters, and the enforcement in South Africa of foreign judgments in such matters, is discussed by Eesa A Fredericks of the University of South Africa in the article ‘Private International Law and Its Relation to International Trade’ in (2006) 14 Juta’s Business Law 175ff.

In his article ‘Legal Standing in Passing-Off Cases’ (2007) 15 Juta’s Business Law 8ff Wim Alberts of attorneys Bowman Gilfillan Inc, Sandton considers whether a trade-mark licensee can institute passing-off proceedings.



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Michelle Kelly-Louw of the University of South Africa discusses in her article ‘Leveling the Playing Field Between the Land Bank and the Commercial Banks’ (2007) 15 Juta’s Business Law 11ff recent (unreported) case law concerning the debt-collecting procedure provided for in s 33 of the Land and Agricultural Development Bank Act 15 of 2002. In a further article, ‘The Right of Access to Adequate Housing’ (2007) 15 Juta’s Business Law 35ff, the same author considers the constitutionality of execution against immovable residential property in the light of s 26 of the Constitution of the Republic of South Africa, 1996, with particular reference to Standard Bank of South Africa Ltd v Saunderson & others 2006 (2) SA 264 (SCA). (Saunderson’s case was discussed by the present writer in Civil Procedure Sibergramme 7 of 2006 (18 July 2006) 19—24.)

Robert J Danay and Jacob Foster in their article ‘The Sins of the Media: the SABC Decision and the Erosion of Free Press Rights’ (2006) 22 SAJHR 563ff critically evaluate the decision of the Constitutional Court in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions & others 2007 (1) SACR 408 (CC), 2007 (1) SA 523, 2007 (2) BCLR 167. (The decision was surveyed by the present writer in Civil Procedure Sibergramme 5 of 2007 (20 September 2007) 3—6, 15—16 and 18—19.)

In his note ‘The Galaecia’, published in (2007) 124 SALJ 247ff, Darryl Cooke of the Cape Bar discusses the decision in The Galaecia; Vidal Armadores SA v Thalassa Export Co Ltd (2006) SCOSA D252 (D), dealing with a maritime arrest in rem of an associated ship.

Attorney Glenn Penfold of Webber Wentzel Bowens and Max du Plessis of the University of KwaZulu-Natal in their article ‘Interdicts Seeking to Preserve Constitutional Rights – Of Losing Litigants, Interim Interdicts Pending Appeal, and Lessons from Canada’ (2007) 124 SALJ 557ff consider the South African legal position regarding the question of a stay of the operation of legislation which has been declared unconstitutional in a court of first instance, pending finalization of an appeal on the constitutional validity of the legislation.

J P van Niekerk of the University of South Africa in a note entitled ‘The Relevance of the Indemnification of an Insured Consignor of Goods Carried by Air in an Action Against the Carrier’ (2007) 19 SA Merc LJ 115ff discusses the decision in Impala Platinum Ltd v Koninklijke Luchtvaart Maatschappij NV & another [2007] 1 All SA 545 (SCA). (For a survey of the case by the present writer, see Civil Procedure Sibergramme 7 of 2007 (31 October 2007) 3—5.)

Christian Schulze of the University of South Africa discusses the 2005 Hague Convention on Choice of Court Agreements in an article under that name in (2007) 19 SA Merc LJ 140ff.

A process for dealing with disputes about domain names on the Internet is discussed by Eddie Hurter of the University of South Africa in his article ‘An Evaluation of Selected Aspects of the Alternative Dispute Resolution Regulations for the Resolution of Domain Name Disputes in the .za Domain Name Space’ (2007) 19 SA Merc LJ 165ff.

Christian Schulze considers the decision in B & W Industrial Technology (Pty) Ltd & others v Baroutsos 2006 (5) SA 135 (W) in his note ‘Should a Peregrine Plaintiff Furnish Security for Costs for the Counterclaim of an Incola Defendant?’ (2007) 19 SA



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Merc LJ 393ff. (For a survey of the case by the present writer, see Civil Procedure Sibergramme 19 of 2006 (18 December 2006) 3—6.)

C Louw of the University of Pretoria considers whether the Minister of Finance should be joined as a party in proceedings concerning the constitutionality of certain sections in tax legislation, in a note entitled ‘Should the Minister of Finance Be Joined in Proceedings Before the Tax Court Concerning the Constitutionality and Validity of Tax Legislation?’ (2007) 70 THRHR 652ff.

Jan L Neels of the University of Johannesburg in a note entitled ‘Tweevoudige Leemte: Bevrydende Verjaring en die Internasionale Privaatreg’ 2007 TSAR 178ff discusses the decisions in Coutts & Co v Ford 1997 (1) ZLR 440 (H), Society of Lloyd’s v Price; Society of Lloyd’s v Lee 2005 (3) SA 549 (T), Society of Lloyd’s v Romahn and two other cases 2006 (4) SA 23 (C) and Society of Lloyd’s v Price; Society of Lloyd’s v Lee 2006 (5) SA 393 (SCA). (The decision of the Transvaal Provincial Division in Price and Lee is surveyed by the present writer in Civil Procedure Sibergramme Yearbook 2005 (2006) 83—5. The decision in Romahn was discussed by the present writer in Civil Procedure Sibergramme 15 of 2006 (17 October 2006) 8—19. The decision of the Supreme Court of Appeal in Price and Lee was discussed by the present writer in Civil Procedure Sibergramme 23 of 2006 (4 May 2007) 3 and 8—16.)

Estelle Hurter of the University of South Africa in her article ‘Seeking Truth or Seeking Justice: Reflections on the Changing Face of the Adversarial Process in Civil Litigation’ 2007 TSAR 240ff considers the validity of recent attacks on the adversarial system of conducting civil litigation as being ‘in crisis’, with particular reference to the development of alternative dispute-resolution mechanisms and judicial case management in overseas jurisdictions.

The decisions in South African Broadcasting Corporation Ltd v National Director of Public Prosecutions & others 2007 (1) SACR 408 (CC), 2007 (1) SA 523, 2007 (2) BCLR 167 and Giddey NO v J C Barnard and Partners 2007 (5) SA 525 (CC), 2007 (2) BCLR 125 are surveyed by I M Rautenbach of the University of Johannesburg in ‘Overview of Constitutional Court Decisions on the Bill of Rights’ 2007 TSAR 391 at 399—401. (The decision in the SABC case was surveyed by the present writer in Civil Procedure Sibergramme 5 of 2007 (20 September 2007) 3—6, 15—16 and 18—19. The decision in Giddey’s case was surveyed by the present writer in Civil Procedure Sibergramme 6 of 2007 (25 September 2007) 3—7, 9—10 and 11.) Various decisions on standing to enforce the Bill of Rights, the jurisdiction of the Constitutional Court, direct access and direct appeals to the Constitutional Court, the commencement of invalidation of unconstitutional legislation, and the amendment of orders suspending invalidations are discussed by Professor Rautenbach at 404—9.

W D Ryan and G J Pienaar of the University of North West in their article ‘Geskilbeslegting by die Toepassing van Bestuursreëls van Deeltitelskemas’ 2007 TSAR 437ff explore the possibility of establishing a sectional-title ombud’s office as a method of alternative dispute resolution in relation to sectional-title disputes.

I M Rautenbach in a note entitled ‘Die Konstitusionele Hof se Uitsluitlike Jurisdiksie oor die Nienakoming van Sekere Pligte van die Parlement’ 2007 TSAR 581ff discusses the decisions in King & others v Attorneys’ Fidelity Fund Board of Control & another 2006 (1) SA 474 (SCA), [2006] 1 All SA 458, 2006 (4) BCLR 462 and Doctors for Life



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International v Speaker of the National Assembly & others 2006 (6) SA 416 (CC), 2006 (12) BCLR 1399. (The decision in King was surveyed by the present writer in Civil Procedure Sibergramme 6 of 2006 (10 July 2006) 10—12. The decision in the Doctors for Life case was surveyed by the present writer in Civil Procedure Sibergramme 1 of 2007 (20 June 2007) 4, 6, 7—16 and 17.)

The decision in the Doctors for Life case is also discussed by Rassie Malherbe of the University of Johannesburg in a note entitled ‘Openbare Betrokkenheid by die Wetgewende Proses Kry Oplaas Tande’ 2007 TSAR 594ff.

C M van Heerden and J M Otto of the University of Johannesburg discuss the remedies available to a credit provider in terms of the National Credit Act 34 of 2005 in their article ‘Debt Enforcement in Terms of the National Credit Act 34 of 2005’ 2007 TSAR 655ff. Author: Mervyn Dendy Subscribers wishing to contact the author by e-mail may do so by clicking here.

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