Rules regulating the conduct of the proceedings of the several provincial and local divisions of the Supreme Court of South Africa, 1965

Government Notice R48 of 1965

This is the version of this Government Notice as it was from 2 November 1987 to 31 December 1987. Read the latest available version.

Rules regulating the conduct of the proceedings of the several provincial and local divisions of the Supreme Court of South Africa, 1965

Citation

Government Notice R48 of 1965

Alternative names

Uniform Rules

Primary work

Superior Courts Act, 2013

Date

Language

English

Type

Government Notice

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- Dispute Resolution and Mediation

Rules regulating the conduct of the proceedings of the several provincial and local divisions of the Supreme Court of South Africa, 1965

Government Notice R48 of 1965

Published in Government Gazette 999 on 12 January 1965
Commenced on 15 January 1965
[This is the version of this document as it was from 2 November 1987 to 31 December 1987.]

[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R235 of 1966) on 18 February 1966]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R2004 of 1967) on 15 December 1967]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R3553 of 1969) on 1 November 1969]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R2021 of 1971) on 15 November 1971]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R1985 of 1972) on 1 December 1972]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R480 of 1973) on 1 April 1973]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R639 of 1975) on 4 April 1975]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R1816 of 1976) on 8 October 1976]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R1975 of 1976) on 29 October 1976]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R2477 of 1976) on 17 December 1976]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R2365 of 1977) on 18 November 1977]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R1546 of 1978) on 28 July 1978]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R1577 of 1979) on 20 July 1979]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R1535 of 1980) on 25 July 1980]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R2527 of 1980) on 5 December 1980]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R500 of 1982) on 12 March 1982]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R773 of 1982) on 23 April 1982]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R775 of 1982) on 23 April 1982]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R1873 of 1982) on 3 September 1982]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R2171 of 1982) on 6 October 1982]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R645 of 1983) on 25 March 1983]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R1077 of 1983) on 20 May 1983]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R1996 of 1984) on 7 September 1984]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R2094 of 1985) on 13 September 1985]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice R810 of 1986) on 2 May 1986]
[Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment (Government Notice 2164 of 1987) on 2 November 1987]

The Chief Justice after consultation with the judges president of the several divisions of the Supreme Court of South Africa has, in terms of paragraph (a) of subsection (2) of section forty-three of the Supreme Court Act, 1959 (Act No. 59 of 1959), with the approval of the State President made, with effect from the 15th January, 1965, the rules contained in the Annexure regulating the conduct of the proceedings of the provincial and local divisions of the Supreme Court of South Africa.

1. Definitions

In these rules and attached forms, unless the context otherwise indicates—“Act” shall mean the Supreme Court Act, 1959 (Act No. 59 of 1959);“action” shall mean a proceeding commenced by summons, or by writ in terms of rule 9;“advocate” shall include a person referred to in section one of the Natal Advocates and Attorneys Preservation of Rights Act, 1939 (Act No. 27 of 1939);“attorney” shall mean an attorney admitted, enrolled and entitled to practise as such in the division concerned;“civil summons” shall mean a civil summons as defined in the Act;“combined summons” shall mean a summons with a statement of claim annexed thereto in terms of subrule (2) of rule 17;“court” in relation to civil matters shall mean a court constituted in terms of section thirteen of the Act;“court day” shall mean any day other than a Saturday, Sunday or Public Holiday, and only court days shall be included in the computation of any time expressed in days prescribed by these rules or fixed by any order of court;“deliver” shall mean serve copies on all parties and file the original with the registrar;“judge” shall mean a judge sitting otherwise than in open court;“judge-president” [definition of “judge-president” deleted by section 1 of Government Notice R480 of 1973];“party” or any reference to a plaintiff or other litigant in terms, shall include his attorney with or without an advocate, as the context may require;“registrar” shall include assistant registrar;“Republic” shall include the territory of South West Africa;“sheriff” shall include an additional sheriff, a deputy sheriff, and an assistant to a deputy sheriff.

2. Sittings of the court and vacations

(1)Notice of the terms and sessions of the court of every provincial or local division prescribed by the Judge-President in terms of section forty-three of the Act shall be published in the Government Gazette and a copy thereof shall be affixed to the public notice board at the office of the registrar.

(2)If the day prescribed for the commencement of a civil term or a criminal session is not a court day, the term or session shall commence on the next succeeding court day and, if the day prescribed for the end of a term or session is not a court day, the term or session shall end on the court day preceding.

(3)The periods between the said terms shall be vacation, during which, subject to the provisions of subrule (4), the ordinary business of the court shall be suspended, but at least one judge shall be available on such days to perform such duties as the Judge-President shall direct.[subrule (3) amended by section 1 of Government Notice R235 of 1966]

(4)During and out of term such judges shall sit on such days for the discharge of such business as the Judge-President may direct.

(5)If it appears convenient to the presiding judge, the court may sit at any place or at a time other than a time prescribed in terms of these rules or rules made under paragraph (b) of sub-section (2) of section forty-three of the Act and may sit at any time during vacation.

3. Registrar’s office hours

Except on Saturdays, Sundays and Public Holidays, the offices of the registrar shall be open from 9 a.m. to 1.00 p.m. and from 2 p.m. to 4 p.m., save that, for the purpose of issuing any process or filing any document, other than a notice of intention to defend, the offices shall be open from 9 a.m. to 1.00 p.m. and from 2 p.m. to 3 p.m. The registrar may in exceptional circumstances issue process and accept documents at any time, and shall do so when directed by a judge.

3 bis. Admission of advocates

(1)Subject to the provisions of rule 6 in so far as they are not inconsistent with the provisions of this rule, a person applying for admission to practise and for authority to be enrolled as an advocate shall, at least six weeks before the day on which his application is to be heard by the court—

(a)give written notice to the registrar of the date on which the application is to be made;

(b)deliver to the registrar the original and a copy of all the documents in support of the application and an affidavit stating whether he has at any time been struck off the role of advocates or suspended from his practice by the court;

(c)serve a copy of the documents and affidavit referred to in paragraphs (a) and (b) on the Secretary of the Bar Council or the Society of Advocates of the division concerned.

(2)On receipt of the notice referred to in paragraph (a) of sub-rule (1), the registrar shall cause a notice indicating that the applicant will on the date referred to in the notice apply to the court for admission to practise and for authority to be enrolled as an advocate, to be screened on the public notice board of the court of the division in which such application is made and the court of the division where the applicant resides.

(3)If the applicant at any time prior to the hearing of the application delivers any other documents or declarations, other than the documents of affidavit referred to in paragraph (b) of sub-rule (1), to the registrar, he shall forthwith serve a copy thereof on the Secretary of the Bar Council or the Society of Advocates of the division concerned.

(4)At the hearing of the application the applicant shall produce a certificate from the registrar in which is specified—

(a)that the provisions of sub-rule (2) have been complied with; and

(b)whether any objections have been lodged with him.

(5)Any person who is admitted to practise and authorised to be enrolled as an advocate shall upon being so admitted and authorised take an oath or make an affirmation before the registrar in court, which shall be subscribed by him, in the form set out hereunder namely—"I, ____________________________ do hereby swear/solemnly and sincerely affirm and declare/that I will truly and honestly demean myself in the practice of advocate according to the best of my knowledge and ability, and further, that I will be faithful to the Republic of South Africa."

[rule 3 bis inserted by section 2 of Government Notice R235 of 1966]

4. Service

(1)

(a)Service of any process of the court directed to the sheriff and subject to the provisions of paragraph (a) bis any document initiating application proceedings shall be effected by the sheriff in one or other of the following manners:

(i)By delivering a copy thereof to the said person personally:Provided that where such person is a minor or a person under legal disability, service shall be effected upon the guardian, tutor, curator or the like of such minor or person under disability;

(ii)by leaving a copy thereof at the place of residence or business of the said person, guardian, tutor, curator or the like with the person apparently in charge of the premises at the time of delivery, being a person apparently not less than sixteen years of age. For the purposes of this paragraph when a building, other than an hotel, boarding-house, hostel or similar residential building, is occupied by more than one person or family, “residence” or “place of business” means that portion of the building occupied by the person upon whom service is to be effected;

(iii)by delivering a copy thereof at the place of employment of the said person, guardian, tutor, curator or the like to some person apparently not less than sixteen years of age and apparently in authority over him;

(iv)if the person so to be served has chosen a domicilium citandi, by delivering or leaving a copy thereof at the domicilium so chosen;

(v)in the case of a corporation or company, by delivering a copy to a responsible employee thereof at its registered office or its principal place of business within the court’s jurisdiction, or if there be no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in any manner provided by law;

(vi)by delivering a copy thereof to any agent who is duly authorised in writing to accept service on behalf of the person upon whom service is to be effected;

(vii)where any partnership, firm or voluntary association is to be served, service shall be effected in the manner referred to in paragraph (ii) at the place of business of such partnership, firm or voluntary association and if such partnership, firm or voluntary association has no place of business, service shall be effected on a partner, the proprietor or the chairman or secretary of the committee or other managing body of such association, as the case may be, in one of the manners set forth in this rule;[subparagraph (vii) substituted by section 3(b) of Government Notice R235 of 1966]

(viii)where a local authority or statutory body is to be served, service shall be effected by delivering a copy to the town clerk or assistant town clerk or mayor of such local authority or to the secretary or similar officer or member of the board or committee of such body, or in any manner provided by law; or

(ix)if two or more persons are sued in their joint capacity as trustees, liquidators, executors, administrators, curators or guardians, or in any other joint representative capacity, service shall be effected upon each of them in any manner set forth in this rule.

[paragraph (a) amended by section 3(a) of Government Notice R235 of 1966 and by section 1 of Government Notice R2004 of 1967]

(a) bisWhere the person to be served with any document initiating application proceedings is already represented by an attorney of record, such document may be served upon such attorney by the party initiating such proceedings.[paragraph (a) bis inserted by section 1 of Government Notice R2004 of 1967]

(b)Service shall be effected as near as possible between the hours of 7 a.m. and 7 p.m.

(c)No service of any civil summons, order or notice and no proceeding or act required in any civil action, except the issue or execution of a warrant of arrest, shall be validly effected on a Sunday unless the court or a judge otherwise directs.

(d)It shall be the duty of the sheriff or other person serving the process or documents to explain the nature and contents thereof to the person upon whom service is being effected and to state in his return or affidavit or on the signed receipt that he has done so.[paragraph (d) amended by section 3(c) of Government Notice R235 of 1966]

(2)If it is not possible to effect service in any manner aforesaid, the court may, upon the application of the person wishing to cause service to be effected, give directions in regard thereto. Where such directions are sought in regard to service upon a person known or believed to be within the Republic, but whose whereabouts therein cannot be ascertained, the provisions of sub-rule (2) of rule 5 shall, mutatis mutandis, apply.

(3)Service of any process of the court or of any document in a foreign country shall be effected—

(a)by any person who is, according to a certificate of—

(i)the head of any South African diplomatic or consular mission, any person in the administrative or professional division of the public service at a South African diplomatic or consular mission or any South African foreign service officer grade VII;[subparagraph (i) substituted by section 2 of Government Notice R2004 of 1967]

(ii)any foreign diplomatic or consular officer attending to the service of process or documents on behalf of the Republic in such country;

(iii)any diplomatic or consular officer of such country serving in the Republic or in South West Africa; or

(iv)any official signing as or on behalf of the head of the department dealing with the administration of justice in that country,

authorized under the law of such country to serve such process or document; or

(b)by any person referred to in sub-paragraph (i) or (ii) of paragraph (a), if the law of such country permits him to serve such process or document or if there is no law in such country prohibiting such serve and the authorities of that country have not interposed any objection thereto.[paragraph (b) amended by section 3(d) of Government Notice R235 of 1966]

(4)Service of any process of the court or of any document in Australia, Botswana, Finland, France, Hong Kong, Lesotho, Malawi, New Zealand, Spain, Swaziland, the United Kingdom of Great Britain and Northern Ireland and Zimbabwe may, notwithstanding the provisions of subrule (3), also be effected by an attorney, solicitor, notary public or other legal practitioner in the country concerned who is under the law of that country authorised to serve process of court or documents and in a state to which independence has been granted by law by a person in the state concerned who is under the law of that state authorised to serve process of court or documents.[subrule (4) substituted by Government Notice R1975 of 1976 and by Government Notice R1535 of 1980]

(5)

(a)Any process of court or document to be served in a foreign country shall be accompanied by a sworn translation thereof into an official language of that country or part of that country in which the process or document is to be served, together with a certified copy of the process or document and such translation.

(b)Any process of court or document to be served as provided in subrule (3), shall be delivered to the Registrar together with revenue stamps to the value of R15 fixed thereto: Provided that no revenue stamps shall be required where service is to be effected on behalf of the Government of the Republic or the Administration of South-West Africa.[paragraph (b) substituted by section 1(b) of Government Notice R2021 of 1971]

(c)Any process of court or document delivered to the registrar in terms of paragraph (b) shall, after defacement of the revenue stamps affixed thereto, be transmitted by him together with the translation referred to in paragraph (a), to the Secretary for Foreign Affairs or to a destination indicated by the Secretary for Foreign Affairs, for service in the foreign country concerned. The registrar shall satisfy himself that the process of court or document allows a sufficient period for service to be effected in good time.

(6)Service shall be proved in one of the following manners:

(a)Where service has been effected by the sheriff, by the return of service of such sheriff;

(b)where service has not been effected by the sheriff, nor in terms of sub-rule (3) or (4), by an affidavit of the person who effected service, or in the case of service on an attorney or a member of his staff, the Government of the Republic (including the South African Railways and Harbours), the Administration of any Province or of the territory of South West Africa or on any Minister, Administrator, or any other officer of such Government or Administration, in his capacity as such, by the production of a signed receipt therefor.[paragraph (b) amended by section 3(e) of Government Notice R235 of 1966]

(7)Service of any process of court or document in a foreign country shall be proved—

(a)by a certificate of the person effecting service in terms of paragraph (a) of sub-rule (3) or sub-rule (4) in which he identifies himself, states that he is authorized under the law of that country to serve process of court or documents therein and that the process of court or document in question has been served as required by the law of that country and sets forth the manner and the date of such service: Provided that the certificate of a person referred to in sub-rule (4) shall be duly authenticated; or

(b)by a certificate of the person effecting service in terms of paragraph (b) of sub-rule (3) in which he states that the process of court or document in question has been served by him, setting forth the manner and date of such service and affirming that the law of the country concerned permits him to serve process of court or documents or that there is no law in such country prohibiting such service and that the authorities of that country have not interposed any objection thereto.

(8)Whenever any process has been served within the Republic by a deputy-sheriff outside the jurisdiction of the court from which it was issued, the signature of such deputy-sheriff upon the return of service shall not require authentification by the sheriff.

(9)In every proceeding in which the State, the administration of any province, the Administration of the Territory of South-West Africa, the South African Transport Services or a Minister, Deputy Minister or Administrator in his official capacity is the defendant or respondent the summons or notice instituting such proceeding may be served at the Office of the State Attorney that is situated in the area of jurisdiction of the court from which such summons or notice has been issued.[subrule (9) substituted by section 1(b) of Government Notice R2021 of 1971 and by section 1 of Government Notice R1873 of 1982]

(10)Whenever the court is not satisfied as to the effectiveness of the service, it may order such further steps to be taken as to it seems meet.

(11)Whenever a request for the service on a person in the Republic of any civil process or citation is received from a State, territory or court outside the Republic and is transmitted to the registrar of a provincial or local division in terms of sub-section (2) of section thirty-three of the Act, the registrar shall transmit to the sheriff or a deputy-sheriff or any person appointed by a judge of the division concerned for service of such process or citation—

(a)two copies of the process or citation to be served; and

(b)two copies of a translation in English or Afrikaans of such process or citation if the original is in any other language.

(12)Service shall be effected by delivering to the person to be served one copy of the process or citation to be served and one copy of the translation (if any) thereof in accordance with the provisions of this rule.

(13)After service has been effected the sheriff or the deputy-sheriff or the person appointed for the service of such process or citation shall return to the registrar of the division concerned one copy of the process or citation together with—

(a)proof of service, which shall be by affidavit made before a magistrate, justice of the peace or commission of oaths by the person by whom service has been effected and verified, in the case of service by the sheriff or a deputy-sheriff, by the certificate and seal of office of such sheriff or, in the case of service by a person appointed by a judge of the division concerned, by the certificate and seal of office of the registrar of the division concerned; and

(b)particulars of charges for the cost of effecting such service.

(14)The particulars of charges for the cost of effecting service under sub-rule (11) shall be submitted to the taxing officer of the division concerned, who shall certify the correctness if such charges or other amount payable for the cost of effecting service.[subrule (14) amended by section 3(f) of Government Notice R235 of 1966]

(15)The registrar concerned shall, after effect has been given to any request for service of civil process or citation, return to the Secretary for Justice—

(a)the request for service referred to in sub-rule (11);

(b)the proof of service together with a certificate in accordance with form “J” of the Second Schedule duly sealed with the seal of the division concerned for use out of the jurisdiction; and

(c)the particulars of charges for the cost of effecting service and the certificate, or copy thereof, certifying the correctness of such charges.

5. Edictal citation

(1)Save by leave of the court no process or document whereby proceedings are instituted shall be served outside the Republic.

(2)Any person desiring to obtain such leave shall make application to the court setting forth concisely the nature and extent of his claim, the grounds upon which it is based and upon which the court has jurisdiction to entertain the claim and also the manner of service which the court is asked to authorize. If such manner be other than personal service, the application shall further set forth the last known whereabouts of the person to be served and the enquiries made to ascertain his present whereabouts. Upon such application the court may make such order as to the manner of service as to it seems meet and shall further order the time within which notice of intention to defend is to be given or any other step is to be taken by the person to be served. Where service by publication is ordered, it may be in a form as near as may be in accordance with Form 1 of the First Schedule, approved and signed by the registrar.

(3)Any person desiring to obtain leave to effect service outside the Republic of any document, other than one whereby proceedings are instituted, may either make application for such leave in terms of sub-rule (2) or request such leave at any hearing at which the court is dealing with the matter, in which latter event no papers need be filed in support of such request, and the court may act upon such information as may be given from the bar or given in such other manner as it may require, and may make such order as to it seems meet.

6. Applications

(1)Save where proceedings by way of petition are prescribed by law, every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief.

(2)When relief is claimed against any person, or where it is necessary or proper to give any person notice of such application, the notice of motion shall be addressed to both the registrar and such person, otherwise it shall be addressed to the registrar only.

(3)Every petition shall conclude with the form of order prayed and be verified upon oath by or on behalf of the petitioner.

(4)

(a)Every application brought ex parte (whether by way of petition or upon notice to the registrar supported by an affidavit as aforesaid) shall be filed with the registrar and set down, before noon on the court day but one preceding the day upon which it is to be heard. If brought upon notice to the registrar, such notice shall set forth the form of order sought, specify the affidavit filed in support thereof, request him to place the matter on the roll for hearing, and be as near as may be in accordance with Form 2 of the First Schedule.[paragraph (a) amended by section 4(a) of Government Notice R235 of 1966]

(b)Any person having an interest which may be affected by a decision on an application being brought ex parte, may deliver notice of an application by him for leave to oppose, supported by an affidavit setting forth the nature of such interest and the ground upon which he desires to be heard, whereupon the registrar shall set such application down for hearing at the same time as the application first mentioned.

(c)At the hearing the court may grant or dismiss either of or both such applications as the case may require, or may adjourn the same upon such terms as to the filing of further affidavits by either applicant or otherwise as to it seems meet.

(5)

(a)Every application other than one brought ex parte shall be brought on notice of motion as near as may be in accordance with Form 2(a) of the First Schedule and true copies of the notice, and all annexures thereto, shall be served upon every party to whom notice thereof is to be given.

(b)In such notice the applicant shall appoint an address within eight kilometres of the office of the Registrar, or, if the applicant is a person who is in terms of any law prohibited from being the occupier of land or premises within the distance of eight kilometres of such office, an address further than eight kilometres from such office but within the magisterial district in which such office is situated may be appointed, at which he will accept notice and service of all documents in such proceedings, and shall, subject to the provisions of section 27 of the Act, set forth a day, not less than five days after service thereof on the respondent, on or before which such respondent is required to notify the applicant, in writing, whether he intends to oppose such application, and shall further state that if no such notification is given the application will be set down for hearing on a stated day, not being less than seven days after service on the said respondent of the said notice.[paragraph (b) amended by section 5 of Government Notice R2004 of 1967 and substituted by section 2(a) of Government Notice R2021 of 1971]

(c)If the respondent does not, on or before the day mentioned for that purpose in such notice, notify the applicant of his intention to oppose, the applicant may place the matter on the roll for hearing by giving the registrar notice of set down before noon on the court day but one preceding the day upon which the same is to be heard.

(d)Any person opposing the grant of an order sought in the notice of motion shall:

(i)within the time stated in the said notice, give applicant notice, in writing, that he intends to oppose the application, and in such notice appoint an address within eight kilometres of the office of the Registrar, or, if such person is a person who is in terms of any law prohibited from being the occupier of land or premises within the distance of eight kilometres of such office, may so appoint an address further than eight kilometres from such office but within the magisterial district in which such office is situated, at which he will accept notice and service of all documents;[subparagraph (i) substituted by section 2(b) of Government Notice R2021 of 1971]

(ii)within fourteen days of notifying the applicant of his intention to oppose the application, deliver his answering affidavit, if any, together with any relevant documents; and[subparagraph (ii) amended by section 4(b) of Government Notice R235 of 1966]

(iii)if he intends to raise any question of law only he shall deliver notice of his intention to do so, within the time stated in the preceding subparagraph, setting forth such question.

(e)Within seven days of the service upon him of the affidavit and documents referred to in sub-paragraph (ii) of paragraph (d) of sub-rule (5) the applicant may deliver a replying affidavit. The court may in its discretion permit the filing of further affidavits.

(f)Where no answering affidavit, or notice in terms of sub-paragraph (iii) of paragraph (d), is delivered within the period referred to in sub-paragraph (ii) of paragraph (d) the applicant may within four days of the expiry thereof apply to the registrar to allocate a date for the hearing of the application. Where an answering affidavit is delivered the applicant may apply for such allocation within four days of the delivery of his replying affidavit or, if no replying affidavit is delivered, within four days of the expiry of the period referred to in paragraph (e) and where such notice is delivered the applicant may apply for such allocation within four days after-delivery of such notice. If the applicant fails so to apply within the appropriate period aforesaid, the respondent may do so immediately upon the expiry thereof. Notice in writing of the date allocated by the registrar shall forthwith be given by applicant or respondent, as the case may be, to the opposite party.[paragraph (f) amended by section 4(c) of Government Notice R235 of 1966 and by section 6 of Government Notice R2004 of 1967]

(g)Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as to it seems meet with a view to ensuring a just and expeditious decision. In particular, but without affecting the generality of the aforegoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.

(h)The provisions of paragraphs (c) and (f) shall mutatis mutandis apply to petitions.[paragraph (h) added by section 2(c) of Government Notice R2021 of 1971]

(6)The court, after hearing an application whether brought ex parte or otherwise, may make no order thereon (save as to costs if any) but grant leave to the applicant to renew the application on the same papers supplemented by such further affidavits as the case may require.

(7)

(a)Any party to any application proceedings may bring a counter-application or may join any party to the same extent as would be competent if the party wishing to bring such counter-application or join such party were a defendant in an action and the other parties to the application were parties to such action. In the latter event rule 10 shall apply mutatis mutandis.

(b)The periods prescribed with regard to applications shall apply mutatis mutandis to counter-applications: Provided that the court may on good cause shown postpone the hearing of the application.

(8)Any person against whom an order is granted ex parte may anticipate the return day upon delivery of not less than twenty-four hours’ notice.

(9)A copy of every application to court in connection with the estate of any person deceased, or alleged to be a prodigal, or under any legal disability, mental or otherwise, shall, before such application is filed with the registrar, be submitted to the Master for consideration and report; and if any person is to be suggested to the court for appointment as curator to property, such suggestion shall likewise be submitted to the Master for report. Provided that the provisions of this sub-rule shall not apply to any application under rule 57 except where that rule otherwise provides.[subrule (9) amended by section 4(d) of Government Notice R235 of 1966]

(10)The provisions of sub-rule (9) shall further apply to all applications for the appointment of administrators and trustees under deeds or contracts relating to trust funds or to the administration of trusts set up by testamentary disposition.

(11)Notwithstanding the aforegoing sub-rules, interlocutory and other applications incidental to pending proceedings may be brought on notice supported by such affidavits as the case may require and set down at a time assigned by the registrar or as directed by a judge.

(12)

(a)In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet.

(b)In every affidavit or petition filed in support of any application under paragraph (a) of this sub-rule, the applicant shall set forth explicity the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.

(13)In any application against any Minister, Deputy Minister, Administrator, officer or servant of the State, in his capacity as such, the State, the administration of any province, the administration of the territory of South-West Africa or the South African Railways and Harbours Administration, the respective periods referred to in paragraph (b) of subrule (5), or for the return of a rule nisi, shall be not less than 14 days after the service of the notice of motion, or the rule nisi, as the case may be, unless the court shall have specially authorised a shorter period.[subrule (13) substituted by section 2(d) of Government Notice R2021 of 1971]

(14)Rules 10, 11, 12, 13 and 34 shall mutatis mutandis apply to all applications.[subrule (14) amended by section 7 of Government Notice R2004 of 1967]

(15)The court may on application order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant, with an appropriate order as to costs, including costs as between attorney and client. The court shall not grant the application unless it is satisfied that the applicant will be prejudiced in his case if it be not granted.

7. Power of attorney

(1)Before summons is issued in any action at the instance of the plaintiffs’ attorney, the attorney shall file with the registrar a power of attorney to sue. Such power of attorney shall state generally the nature of the particular action authorized to be instituted, the nature of the relief to be claimed therein and the names of the party to be sued.

(2)When notice of intention to defend is filed with the registrar by an attorney the latter shall pari passu file a power of attorney authorizing him to defend.

(3)

(a)The registrar shall not set down any civil appeal for hearing at the instance of an attorney unless such attorney files with the registrar a power of attorney authorizing him to set the appeal down. Such power of attorney shall be filed together with the application for a date of hearing.

(b)An attorney instructing an advocate to appear in a civil appeal on behalf of any party other than a party who has caused the appeal to be set down shall, before the hearing thereof, file with the registrar a power of attorney authorizing such attorney so to act.[paragraph (b) amended by section 5 of Government Notice R235 of 1966]

(4)Every power of attorney filed by an attorney shall be signed by or on behalf of the party giving it, and shall otherwise be duly executed according to law; provided that where a power of attorney is signed on behalf of the party giving it, proof of authority to sign on behalf of such party shall be produced to the registrar who shall note that fact on the said power.

(5)

(a)No power of attorney shall be required to be filed by the State Attorney, any deputy state attorney or any professional assistant to the State Attorney or a deputy stateattorney or any attorney instructed, in writing, or by telegram by or on behalf of the State Attorney or a deputy state attorney in any matter in which the State Attorney or a deputy state attorney is acting in his capacity as such by virtue of any provision of the State Attorney Act, 1957 (Act 56 of 1957).[paragraph (a) substituted by section 3(a) of Government Notice R2021 of 1971]

(b)[paragraph (b) deleted by section 3(b) of Government Notice R2021 of 1971]

8. Provisional sentence

(1)Where by law any person may be summoned to answer a claim made for provisional sentence, proceedings shall be instituted by way of a summons as near as may be in accordance with Form 3 of the First Schedule, calling upon such person to pay the amount claimed or failing such payment to appear personally or by counsel upon a day named in such summons not being less than seven days after the service upon him of such summons, to admit or deny his liability.

(2)Such summons shall be issued by the registrar and the provisions of sub-rules (3) and (4) of rule 17 shall mutatis mutandis apply.

(3)Copies of all documents upon which the claim is founded shall be annexed to the summons and served with it.

(4)The plaintiff shall set down the case for hearing before noon on the court day but one preceding the day upon which it is to be heard.

(5)Upon the day named in the summons the defendant may appear personally or by an advocate to admit or deny his liability and may, not later than noon of the court day but one preceding the day upon which he is called upon to appear in court, deliver an affidavit setting forth the grounds upon which he disputes liability. In such event the plaintiff shall be afforded a reasonable opportunity of replying thereto.

(6)If at the hearing the defendant admits his liability or if he has previously filed with the registrar an admission of liability signed by himself and witnessed by an attorney acting for him and not acting for the opposite party, or, if not so witnessed, verified by affidavit, the court may give final judgment against him.

(7)The court may hear oral evidence as to the authenticity of the defendant’s signature, or that of his agent, to the document upon which the claim for provisional sentence is founded or as to the authority of the defendant's agent.[subrule (7) amended by section 6 of Government Notice R235 of 1966]

(8)Should the court refuse provisional sentence it may order the defendant to file a plea within a stated time and may make such order as to the costs of the proceedings as to it may seem just. Thereafter the provisions of these rules as to pleading and the further conduct of trial actions shall mutatis mutandis apply.

(9)The plaintiff shall on demand furnish the defendant with security de restituendo to the satisfaction of the registrar, against payment of the amount due under the judgment.

(10)Any person against whom provisional sentence has been granted may enter into the principal case only if he shall have satisfied the amount of the judgment for provisional sentence and taxed costs, or if the plaintiff on demand fails to furnish due security in terms of sub-rule (9).

(11)A defendant entitled and wishing to enter into the principal case shall, within two months of the grant of provisional sentence, deliver notice of his intention to do so, in which event the summons shall be deemed to be a combined summons and he shall deliver a plea within seven days thereafter. Failing such notice or such plea the provisional sentence shall ipso facto become a final judgment and the security given by the plaintiff shall lapse.

9. Arrest

(1)No civil process whereby any person may be arrested or held to bail in order to compel his appearance to answer any claim and to abide the judgment of the court thereon shall be sued out against any person where the cause of action is not of the value of R400 or upwards, exclusive of any costs.

(2)In all cases where any person may be arrested or held to bail the process shall be by writ of arrest addressed to the sheriff or his deputy and to the officer commanding the prison and signed as is required in the case of a summons and shall, as near as may be, be in accordance with Form 4 of the First Schedule,

(3)The writ of arrest when handed to the registrar for signature shall be accompanied by an affidavit sworn by the plaintiff or his agent.

(4)The affidavit shall contain a true description of the person making the same, setting forth his place of residence, and a statement of the sum due to the plaintiff, and the cause of the claim and where incurred, or in the case of the unlawful detention of any movable property, the value and description thereof: Provided that if the plaintiff sues as executor or administrator of any deceased person, or as a trustee of an insolvent estate, or in any similar representative capacity, it shall be sufficient in any such affidavit to aver that the said defendant is indebted as stated, as appears by the books or documents in the possession of the deponent and as the deponent verily believes. The affidavit shall further contain an allegation that the plaintiff has no or insufficient security for his demand, specifying the nature and extent of the security, if any, and that a sum or value of R400 or upwards remains wholly unsecured; and if the said claim is one for damages, that the said plaintiff has sustained damage to an amount of R400 or upwards.

(5)In all cases the affidavit shall contain an allegation that the depondent believes that the defendant is about to depart, or is making preparations to depart, from the Republic and shall state fully the grounds for such belief.

(6)The writ of arrest and affidavit shall be filed by the registrar, and the defendant or his attorney shall be at liberty at all reasonable times and without charge to peruse and copy them.

(7)Where any sum of money or a specific thing is claimed, it shall be set forth in the writ of arrest. The costs of issuing any such writ shall be endorsed thereon by the registrar, and the sheriff or his deputy shall, upon an arrest made by virtue thereof, give to the defendant a copy of the same, together with copies of the affidavit aforesaid and any documents upon which the claim is founded, which copies shall be furnished by the plaintiff: Provided that where a warrant of arrest has been telegraphically transmitted the original warrant shall be sent by the first post to the place where such person has been arrested or detained and shall be accompanied by a copy thereof and a copy of the affidavit in terms of sub-rules (4) and (5). After the arrival of the warrant at the place where such person has been arrested or detained, a copy of the original warrant and affidavit shall forthwith be served upon him.

(8)If on arrest the defendant or anyone on his behalf gives to the sheriff or his deputy adequate security by bond or obligation of the said defendant and of another person residing and having sufficient means within the Republic that the defendant will appear according to the exigency of the said writ, and will abide the judgment of the court thereon, or if the said defendant pays or delivers to the sheriff or his deputy the sum of money or thing mentioned in the said writ, together with the costs and charges endorsed thereon, and a further sum of R4.20 as costs for the execution of the writ, the sheriff or his deputy shall permit the defendant to go free of the said writ of arrest. The bond or obligation to be given to the sheriff or his deputy under this rule shall be as near as may be in accordance with Form 5 of the First Schedule:Provided that the personal bond of the defendant without a surety shall be sufficient for the purposes of this rule if accompanied by a deposit of the amount or thing claimed and costs as aforesaid, such deposit being referred to in the bond as one of the conditions thereof.

(9)If the defendant at any time after his arrest satisfies the claim contained in the writ, including the costs and charges endorsed thereon, and the costs of the execution of the writ or if he gives a bond or obligation in terms of sub-rule (8), he shall be entitled to immediate release.

(10)If a bond or obligation has been given by or on behalf of the defendant, in terms of sub-rule (8), the plaintiff shall proceed with his action as if there had been no arrest, and save in those cases where summons has already been issued, the writ of arrest and affidavit shall stand as a combined summons in the action.

(11)Any person arrested shall be entitled to anticipate the day of appearance and to apply to the court for his release, upon giving notice to the plaintiff and to the registrar.

(12)If the sheriff or his deputy takes from the party arrested any bond or obligation by virtue of any writ, he shall, as soon as practicable, assign to the plaintiff such bond or obligation, by an endorsement thereon under his hand, as near as may be in accordance with Form 6 of the First Schedule.

(13)If on the return or anticipated return day the defendant admits the plaintiff’s claim, final judgment may be given against him, whereupon he shall be released.

(14)If the defendant has not satisfied or admitted the plaintiff’s claim and has not given security as aforesaid, the plaintiff may, on the return or anticipated return day, apply for confirmation of the arrest, whereupon the court, unless sufficient cause to the contrary is shown, shall confirm such arrest and order the return of the defendant to prison, and shall make such further order as to it seems meet for the speedy termination of the proceedings.

(15)If in any such proceedings judgment is given against the defendant, he shall be entitled to his release.

10. Joinder of parties and causes of action

(1)Any number of persons, each of whom has a claim, whether jointly, jointly and severally, separately or in the alternative, may join as plaintiffs in one action against the same defendant or defendants against whom any one or more of such persons proposing to join as plaintiffs would, if he brought a separate action, be entitled to bring such action, provided that the right to relief of the persons proposing to join as plaintiffs depends upon the determination of substantially the same question of law or fact which, if separate actions were instituted, would arise on each action, and provided that there may be a joinder conditionally upon the claim of any other plaintiff failing.

(2)A plaintiff may join several causes of action in the same action.

(3)Several defendants may be sued in one action either jointly, jointly and severally, separately or in the alternative, whenever the question arising between them or any of them and the plaintiff or any of the plaintiffs depends upon the determination of substantially the same question of law or fact which, if such defendants were sued separately, would arise in each separate action.

(4)In any action in which any causes of action or parties have been joined in accordance with this rule, the court at the conclusion of the trial shall give such judgment in favour of such of the parties as shall be entitled to relief, or grant absolution from the instance, and shall make such order as to costs as shall to it seem to be just, provided that without limiting the discretion of the court in any way—

(a)the court may order that any plaintiff who is unsuccessful shall be liable to any other party, whether plaintiff or defendant, for any costs occasioned by his joining in the action as plaintiff;

(b)if judgment is given in favour of any defendant or if any defendant is absolved from the instance, the court may order:

(i)the plaintiff to pay such defendant’s costs, or

(ii)the unsuccessful defendants to pay the costs of the successful defendant jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful defendants pays more than his pro rata share of the costs of the successful defendant, he shall be entitled to recover from the other unsuccessful defendants their pro rata share of such excess, and the court may further order that, if the successful defendant is unable to recover the whole or any part of his costs from the unsuccessful defendants, he shall be entitled to recover from the plaintiff such part of his costs as he cannot recover from the unsuccessful defendants;

(c)if judgment is given in favour of the plaintiff against more than one of the defendants, the court may order those defendants against whom it gives judgment to pay the plaintiff’s costs jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful defendants pays more than his pro rata share of the costs of the plaintiff he shall be entitled to recover from the other unsuccessful defendants their pro rata share of such excess.

(5)Where there has been any joinder of causes of action or of parties, the court may on the application of any party at any time order that separate trials be held either in respect of some or all of the causes of action or some or all of the parties; and the court may on such application make such order as to it seems meet.

11. Consolidation of actions

Where separate actions have been instituted and it appears to the court convenient to do so, it may upon the application of any party thereto and after notice to all interested parties, make an order consolidating such actions, whereupon—

(a)the said actions shall proceed as one action;

(b)the provisions of rule 10 shall mutatis mutandis apply with regard to the action so consolidated; and

(c)the court may make any order which to it seems meet with regard to the further procedure, and may give one judgment disposing of all matters in dispute in the said actions.

12. Intervention of persons as plaintiffs or defendants

Any person entitled to join as a plaintiff or liable to be joined as a defendant in any action may, on notice to all parties, at any stage of the proceedings apply for leave to intervene as a plaintiff or a defendant. The court may upon such application make such order, including any order as to costs, and give such directions as to the further procedure in the action as to it may seem meet.

13. Third party procedure

(1)Where a party in any action claims—

(a)as against any other person not a party to the action (in this rule called a “third party”) that such party is entitled, in respect of any relief claimed against him, to a contribution or indemnification from such third party, or

(b)any question or issue in the action is substantially the same as a question or issue which has arisen or will arise between such party and the third party, and should properly be determined not only as between any parties to the action but also as between such parties and the third party or between any of them,

such party may issue a notice, hereinafter referred to as a third party notice, as near as may be in accordance with Form 7 of the First Schedule, which notice shall be served by the sheriff.

(2)Such notice shall state the nature and grounds of the claim of the party issuing the same, the question or issue to be determined, and any relief or remedy claimed insofar as the statement of the claim and the question or issue are concerned, the rules with regard to pleadings and to summonses shall mutatis mutandis apply.

(3)

(a)The third party notice shall be served before the close of pleadings in the action in connection with which it is issued.

(b)After the close of pleadings, such notice may only be served with the leave of the court.

(c)The third party notice shall be accompanied by a copy of all pleadings filed in the action up to the date of service of the notice.

[subrule (3) substituted by section 4 of Government Notice R2021 of 1971]

(4)If the third party intends to contest the claim set out in the third party notice he shall deliver notice of intention to defend, as if to a summons. Immediately upon receipt of such notice, the party who issued the third party notice shall inform all other parties accordingly.

(5)The third party shall, after service upon him of a third party notice, be a party to the action and, if he delivers notice of intention to defend, shall be served with all documents and given notice of all matters as a party.

(6)The third party may plead or except to the third party notice as if he were a defendant to the action. He may also, by filing a plea or other proper pleading contest the liability of the party issuing the notice on any ground notwithstanding that such ground has not been raised in the action by such latter party: Provided however that the third party shall not be entitled to claim in reconvention against any person other than the party issuing the notice save to the extent that he would be entitled to do so in terms of rule 24.

(7)The rules with regard to the filing of further pleadings shall apply to third parties as follows:

(a)Insofar as the third party’s plea relates to the claim of the party issuing the notice, the said party shall be regarded as the plaintiff and the third party as the defendant.

(b)Insofar as the third party’s plea relates to the plaintiff’s claim the third party shall be regarded as a defendant and the plaintiff shall file pleadings as provided by the said rules.

(8)Where a party to an action has against any other party (whether either such party became a party by virtue of any counter-claim by any person or by virtue of a third party notice or by any other means) a claim referred to in sub-rule (1), he may issue and serve on such other party a third party notice in accordance with the provisions of this rule. Save that no further notice of intention to defend shall be necessary, the same procedure shall apply as between the parties to such notice and they shall be subject to the same rights and duties as if such other party had been served with a third party notice in terms of sub-rule (1).

(9)Any party who has been joined as such by virtue of a third party notice may at any time make application to the court for the separation of the trial of all or any of the issues arising by virtue of such third party notice and the court may upon such application make such order as to it seems meet, including an order for the separate hearing and determination of any issue on condition that its decision on any other issue arising in the action either as between the plaintiff and the defendant or as between any other parties, shall be binding upon the applicant.

14. Proceedings by and against partnerships, firms and associations

(1)In this rule—“Association” means any unincorporated body of persons, not being a partnership.“Firm” means a business carried on by the sole proprietor thereof under a name other than his own.“Plaintiff” and “Defendant” include applicant and respondent.“Relevent date” means the date of accrual of the cause of action.“Sue” and “Sued” are used in relation to actions and applications.

(2)A partnership, a firm or an association may sue or be sued in its name.

(3)A plaintiff suing a partnership need not allege the names of the partners. If he does, any error of omission or inclusion shall not afford a defence to the partnership.

(4)The previous sub-rule shall apply mutatis mutandis to a plaintiff suing a firm.

(5)

(a)A plaintiff suing a firm or a partnership may include in any civil summons a notice calling for particulars as to the full name and residential address of the proprietor or of each partner, as the case may be, as at the relevant date.

(b)The defendant shall within seven days deliver a written statement containing such information.

(c)Concurrently with the said statement the defendant shall serve upon the persons referred to in paragraph (a) a notice as near as may be, mutatis mutandis, in accordance with Form 8 of the First Schedule and deliver proof by affidavit of such service.

(d)A plaintiff suing a firm or a partnership and alleging in the summons or notice of motion that any person was at the relevant date the proprietor or a partner, shall notify such person accordingly by delivering a notice as near as may be, mutatis mutandis, in accordance with Form 8 of the First Schedule.

(e)Any person served with a notice in terms of paragraph (c) or (d) shall be deemed to be a party to the proceedings, with the rights and duties of a defendant.

(f)Any party to such proceedings may aver in the pleadings or affidavits that such person was at the relevant date the proprietor or a partner, or that he is estopped from denying such status.

(g)If any party to such proceedings disputes such status, the court may at the hearing decide that issue in limine.

(h)Execution in respect of a judgment against a partnership shall first be levied against the assets thereof, and, after such excussion, against the private assets of any person held to be, or held to be estopped from denying his status as, a partner, as if judgment had been entered against him.

(6)The preceding sub-rule shall apply mutatis mutandis to a defendant sued by a firm or a partnership.

(7)If a partnership is sued and it appears that since the relevant date it has been dissolved, the proceedings shall nevertheless continue against the persons alleged by the plaintiff or stated by the partnership to be partners, as if sued individually.

(8)The preceding sub-rule shall apply mutatis mutandis where it appears that a firm has been discontinued.

(9)

(a)A plaintiff suing an association may include in any civil summons a notice calling for a certified copy of its current constitution and a list of the names and addresses of the office-bearers and their respective offices at the relevant date.

(b)Such notice shall be complied with within seven days.

(c)Paragraphs (a) and (b) shall apply mutatis mutandis to a defendant sued by an association.

(10)Paragraphs (d) to (h) of sub-rule (5) shall apply mutatis mutandis when—

(a)A plaintiff alleges that any member, servant or agent of the defendant association is liable in law for its alleged debt;

(b)a defendant alleges that any member, servant or agent of the plaintiff association will be responsible in law for the payment of any costs which may be awarded against the association.

(11)Sub-rule (7) shall apply mutatis mutandis in regard to the continuance of the proceedings against any member, servant or agent referred to in paragraph (a) of sub-rule (10).

(12)Sub-rule (6) of rule 21 shall apply mutatis mutandis in the circumstances set out in paragraphs (a) and (b) of sub-rule (5) and in sub-rule (9) hereof.

15. Change of parties

(1)No proceedings shall terminate solely by reason of the death, marriage or other change of status of any party thereto unless the cause of such proceedings is thereby extinguished.

(2)Whenever by reason of an event referred to in subrule (1) it becomes necessary or proper to introduce a further person as a party in such proceedings (whether in addition to or in substitution for the party to whom such proceedings relate) any party thereto may forthwith by notice to such further person, to every other party and to the registrar, add or substitute such further person as a party thereto, and subject to any order made under subrule (4) hereof, such proceedings shall thereupon continue in respect of the person thus added or substituted as if he had been a party from the commencement thereof and all steps validly taken before such addition or substitution shall continue of full force and effect: Provided that save with the leave of the court granted on such terms (as to adjournment or otherwise) as to it may seem meet, no such notice shall be given after the commencement of the hearing of any opposed matter; and provided further that the copy of the notice served on any person joined thereby as a party to the proceedings shall (unless such party is represented by an attorney who is already in possession thereof), be accompanied in application proceedings by copies of all notices, affidavits and material documents previously delivered, and in trial matters by copies of all pleadings and like documents already filed of record such notice, other than a notice to the registrar, shall be served by the sheriff.[subrule (2) amended by section 7 of Government Notice R235 of 1966]

(3)Whenever a party to any proceedings dies or ceases to be capable of acting as such, his executor, curator, trustee or similar legal representative, may by notice to all other parties and to the registrar intimate that he desires in his capacity as such thereby to be substituted for such party, and unless the court otherwise orders, he shall thereafter for all purposes be deemed to have been so substituted.

(4)The court may upon notice of application delivered by any party within twenty-one days of service of notice in terms of sub-rule (2) or (3), set aside or vary any addition or substitution of a party thus effected or may dismiss such application or confirm such addition or substitution, on such terms, if any, as to the delivery of any affidavits or pleadings, or as to postponement or adjournment, or as to costs or otherwise, as to it may seem meet.

16. Representation of parties

(1)Any party bringing or defending any proceedings in person may at any time appoint an attorney to act on his behalf, who shall file a power of attorney and give notice of his name and address to all other parties to the proceedings.

(2)Any party represented by an attorney in any proceedings may at any time, subject to the provisions of rule 40, terminate such attorney’s authority to act for him, and thereafter act in person or appoint another attorney to act for him therein, whereupon he shall forthwith give notice to the Registrar and to all other parties of the termination of his former attorney’s authority, and if he has appointed a further attorney so to act for him, of the latter’s name and address. The further attorney so appointed shall forthwith file with the Registrar a power of attorney authorising him so to act. If no further attorney is so acting, such person shall in the notice of the termination of his former attorney’s authority, as aforesaid, also notify all other parties of an address within eight kilometres of the office of the Registrar, or, if he is a person who is in terms of any law prohibited from being the occupier of land or premises within the distance of eight kilometres of such office, may notify an address further than eight kilometres from such office but within the magisterial district in which such office is situated, for the service on him of all documents in such proceedings.[subrule (2) substituted by section 5 of Government Notice R2021 of 1971]

(3)Upon receipt of a notice in terms of sub-rule (1) or (2) the address of the attorney or of the party, as the case may be, shall become the address of such party for the service upon him of all documents in such proceedings, but any service duly effected elsewhere before receipt of such notice shall notwithstanding such change, for all purposes be valid.

(4)Where an attorney acting in any proceedings for a party ceases so to act, he shall forthwith notify the registrar and all parties in writing accordingly. The notification to the registrar shall specify the date when, the parties to whom and the manner in which notification was sent to all parties, and shall be acccompanied by a copy of the last-mentioned notification. Such notification shall be of the same force and effect as a notice under sub-rule (2): Provided that, unless the party for whom such attorney was acting himself within three days notifies all other parties to the proceedings of a new address for service, it shall not, save in so far as the court otherwise orders, be necessary to serve any documents upon him.[subrule (4) amended by section 8 of Government Notice R235 of 1966]

17. Summons

(1)Every person making a claim against any other person may, through the office of the registrar, sue out a summons or a combined summons as near as may be in accordance with Form 9 or Form 10 of the First Schedule addressed to the sheriff directing him to inform the defendant inter alia that, if he disputes the claim, and wishes to defend he shall,

(a)within the time stated therein, give notice of his intention to defend;

(b)thereafter, if the summons is a combined summons, within twenty-one days after giving such notice, deliver, with or without a claim in reconvention, a plea, exception, or application to strike out.[paragraph (b) amended by section 9 of Government Notice R235 of 1966]

(2)In every case where the claim is not for a debt or liquidated demand there shall be annexed to the summons a statement of the material facts relied upon by the plaintiff in support of his claim, which statement shall inter alia comply with rules 18 and 20.

(3)Every summons shall be signed by the attorney acting for the plaintiff and shall bear an attorney’s address, within eight kilometres of the office of the Registrar, or, if no attorney is acting, it shall be signed by the plaintiff, who shall in addition append an address within eight kilometres of the office of the Registrar at which he will accept service of all subsequent documents in the suit; and shall thereafter be signed and issued by the Registrar and made returnable by the Sheriff to the court through the Registrar: Provided that such address where the attorney or the plaintiff, as the case may be, will accept service of documents in the suit may be further than eight kilometres from the office of the Registrar but within the magisterial district in which such office is situated if such attorney or the plaintiff is a person who is in terms of any law prohibited from being the occupier of land or premises within the distance of eight kilometres of such office.[subrule (3) substituted by section 6 of Government Notice R2021 of 1971]

(4)Every summons shall set forth—

(a)the name (including where possible the first name or initials) by which the defendant is known to the plaintiff, his residence or place of business and, where known, his occupation and, if he is sued in any representative capacity, such capacity. The summons shall also state the defendant’s sex and, if a female, her marital status;

(b)the full names, sex and occupation and the residence or place of business of the plaintiff, and where he sues in a representative capacity, such capacity. If the plaintiff is a female the summons shall state her marital status.

18. Rules relating to pleading generally

(1)A combined summons, and every other pleading except a summons, shall be signed by an advocate and an attorney, or if a party sues or defends personally, by such party.

(2)The title of the action describing the parties thereto and the number assigned thereto by the registrar, shall appear at the head of each pleading, provided that where the parties are numerous or the title lengthy and abbreviation is reasonably possible, it shall be so abbreviated.

(3)Every pleading shall be divided into paragraphs (including sub-paragraphs) which shall be consecutively numbered and shall, as nearly as possible, each contain a distinct averment.

(4)Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto.

(5)When in any pleading a party denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively but shall answer the point of substance.

(6)A party who in his pleading relies upon a contract shall state whether the contract is written or oral, and when, where and by whom it was concluded.

(7)It shall not be necessary in any pleading to state the circumstances from which an alleged implied term can be inferred.

(8)Where a party suing for restitution of conjugal rights, divorce or judicial separation has been guilty of adultery he shall state the time and place of such adultery in his summons and pray for condonation thereof.

(9)A party to matrimonial proceedings relying on constructive desertion, shall in his pleading set out the particulars thereof.

(10)A plaintiff suing for damages shall set them out in such manner as will enable the defendant reasonably to assess the quantum thereof: Provided that a plaintiff suing for damages for personal injury shall specify the nature and effects of the disability alleged to give rise to such damages, and shall as far as practicable state separately what amount, if any, is claimed for—

(a)medical, hospital and other similar expenses;

(b)pain and suffering; and

(c)disability in respect of:

(i)the earning of income (stating the earnings lost to date and the estimated future loss);

(ii)the enjoyment of amenities of life (giving particulars).

19. Notice of intention to defend

(1)Subject to the provisions of section 27 of the Act, the defendant in every civil action shall be allowed 10 days after service of summons on him (and where he resides more than 80 kilometres from the nearest railway station, 21 days) within which to deliver a notice of intention to defend, either personally or through his attorney: Provided that the days between 16 December and 15 January, both inclusive, shall not be counted in the time allowed within which to deliver a notice of intention to defend where the defendant resides more than 80 kilometres from the nearest railway station.[subrule (1) amended by section 8 of Government Notice R2004 of 1967 and substituted by section 7(a) of Government Notice R2021 of 1971]

(2)In actions against any Minister, Deputy Minister, Administrator, officer or servant of the State, in his capacity as such, the State, the administration of any province, the Administration of the Territory of South West Africa or the South African Railways and Harbours Administration, the time to be allowed for delivery of notice of intention to defend shall be not less than one month after service of summons, unless in any case the court has specially authorised a shorter period.[subrule (2) amended by section 10 of Government Notice R235 of 1966 and substituted by section 7(b) of Government Notice R2021 of 1971]

(3)When a defendant delivers notice of intention to defend, he shall therein appoint an address, not being a post office box or poste restante, within eight kilometres of the office of the Registrar, or, if he is a person who is in terms of any law prohibited from being the occupier of land or premises within the distance of eight kilometres of such office, he may appoint an address further than eight kilometres from such office but within the magisterial district in which such office is situated, for the service on him thereat of all documents in such action, and service thereof at the address so given shall be valid and effectual, except where by any order or practice of the court personal service is required.[subrule (3) substituted by section 7(c) of Government Notice R2021 of 1971]

(4)A party shall not by reason of his delivery of notice of intention to defend be deemed to have waived any right to object to the jurisdiction of the court or to any irregularity or impropriety in the proceedings.

20. Declaration

(1)In all actions in which the plaintiff’s claim is for a debt or liquidated demand and the defendant has delivered notice of intention to defend, the plaintiff shall except in the case of a combined summons within twenty-one days of his receipt thereof, deliver a declaration.[subrule (1) amended by section 11 of Government Notice R235 of 1966 and by section 8 of Government Notice R2021 of 1971]

(2)The declaration shall set forth the nature of the claim, the conclusions of law which the plaintiff shall be entitled to deduce from the facts stated therein, and a prayer for the relief claimed.

(3)Where the plaintiff seeks relief in respect of several distinct claims founded upon separate and distinct facts, such claims and facts shall be separately and distinctly stated.

21. Further particulars

(1)A party may, before delivering any pleading in answer to a pleading delivered to him and for the purpose of enabling him to plead thereto or to tender an amount in settlement, deliver a notice within fourteen days of receipt of such pleading or of the delivery of a notice of intention to defend, as the case may be, calling for only such further particulars as may be strictly necessary for either purpose aforesaid.

(2)

(a)Particulars so required shall be delivered within fourteen days of receipt of the request which, together with the reply thereto, shall form part of the pleadings.

(b)The request for further particulars and the reply thereto shall, save where the party is litigating in person, be signed by an advocate and an attorney.

(3)The party receiving the particulars shall have fourteen days from receipt thereof within which to deliver a further pleading.

(4)After the close of pleadings any party may, not less than twenty-one days before trial, deliver a notice calling for only such further particulars as are strictly necessary to enable him to prepare for trial. Such request shall be complied with within ten days of receipt thereof.

(5)The request for further particulars for trial and the reply thereto shall, save where the party is litigating in person, be signed by an attorney.

(6)If the party requested to furnish any particulars as aforesaid fails to deliver them timeously or sufficiently, the party requesting the same may apply to court for an order for their delivery or for the dismissal of the action or the striking out of the defence, whereupon the court may make such order as to it seems meet.

(7)The court shall at the conclusion of the trial mero motu consider whether the further particulars were strictly necessary, and shall disallow all costs of and flowing from any unnecessary request or reply, or both, and may order either party to pay the costs thereby wasted, on an attorney and client basis or otherwise.

22. Plea

(1)Where the defendant has delivered notice of intention to defend, he shall within twenty-one days after the service upon him of a declaration or within twenty-one days after delivery of such notice in respect of a combined summons, or within 14 days after the service upon him of further particulars to such declaration or combined summons, as the case may be deliver a plea with or without a claim in reconvention, or an exception with or without application to strike out.[subrule (1) amended by section 9 of Government Notice R2021 of 1971]

(2)The defendant shall in his plea either admit or deny or confess and avoid all the material facts alleged in the combined summons or declaration or state which of the said facts are not admitted and to what extent, and shall clearly and concisely state all material facts upon which he relies.

(3)Every allegation of fact in the combined summons or declaration which is not stated in the plea to be denied or to be not admitted, shall be deemed to be admitted. If any explanation or qualification of any denial is necessary, it shall be stated in the plea.

(4)If by reason of any claim in reconvention, the defendant claims that on the giving of judgment on such claim, the plaintiff’s claim will be extinguished either in whole or in part, the defendant may in his plea refer to the fact of such claim in reconvention and request that judgment in respect of the claim or any portion thereof which would be extinguished by such claim in reconvention, be postponed until judgment on the claim in reconvention. Judgment on the claim shall, either in whole or in part, thereupon be so postponed unless the court, upon the application of any person interested, otherwise orders, but the court, if no other defence has been raised, may give judgment for such part of the claim as would not be extinguished, as if the defendant were in default of filing a plea in respect thereof, or may, on the application of either party, make such order as to it seems meet.

23. Exceptions and applications to strike out

(1)Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception thereto and may set it down for hearing in terms of paragraph (f) of sub-rule (5) of rule 6: Provided that where a party intends to take an exception that a pleading is vague and embarrassing he shall within the period allowed as aforesaid by notice afford his opponent an opportunity of removing the cause of complaint within fourteen days provided that the party excepting shall have seven days from the date whereon a reply to such notice is received or from the date on which such reply is due within which to deliver his exception.

(2)Where any pleading contains averments which are scandalous, vexatious, or irrelevant, the opposite party may, within the period allowed for filing any subsequent pleading, apply for the striking out of the matter aforesaid, and may set such application down for hearing in terms of paragraph (f) of sub-rule (5) of rule 6, but the court shall not grant the same unless it is satisfied that the applicant will be prejudiced in the conduct of his claim or defence if it be not granted.

(3)Wherever an exception is taken to any pleading the grounds upon which the exception is founded shall be clearly and concisely stated.

(4)Wherever any exception is taken to any pleading or an application to strike out is made, no plea, replication or other pleading over shall be necessary.

24. Claim in reconvention

(1)A defendant who counterclaims shall, together with his plea, deliver a claim in reconvention setting out the material facts thereof in accordance with rules 18 and 20. The claim in reconvention shall be set out either in a separate document or in a portion of the document containing the plea, but headed “Claim in Reconvention”. It shall be unnecessary to repeat therein the names or descriptions of the parties to the proceedings in convention.

(2)If the defendant is entitled to take action against any other person and the plaintiff, whether jointly, jointly and severally, separately or in the alternative, he may with the leave of the court proceed in such action by way of a claim in reconvention against the plaintiff and such other person, in such manner and on such terms as the court may direct.

(3)A defendant who has been given leave to counterclaim as aforesaid, shall add to the title of his plea a further title corresponding with what would be the title of any action instituted against the parties against whom he makes claim in reconvention, and all further pleadings in the action shall bear such title, subject to the proviso to sub-rule (2) of rule 18.

(4)A defendant may counterclaim conditionally upon the claim or defence in convention failing.

25. Replication and plea in reconvention

(1)Within fourteen days of the service upon him of a plea or further particulars to the plea, and subject to sub-rule (2) hereof, the plaintiff shall where necessary deliver a replication to the plea and a plea to any claim in reconvention, which plea shall comply with rule 22.[subrule (1) amended by section 10 of Government Notice R2021 of 1971]

(2)No replication or subsequent pleading which would be a mere joinder of issue or bare denial of allegations in the previous pleading shall be necessary, and issue shall be deemed to be joined and pleadings closed in terms of paragraph (b) of rule 29.

(3)Where a replication or subsequent pleading is necessary, a party may therein join issue on the allegations in the previous pleading. To such extent as he has not dealt specifically with the allegations in the plea or such other pleading, such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined.

(4)A plaintiff in reconvention shall, subject to the provisions mutatis mutandis of sub-rule (2) hereof, within fourteen days from the delivery of the plea in reconvention deliver a replication in reconvention.

(5)Further pleadings may, subject to the provisions mutatis mutandis of sub-rule (2), be delivered by the respective parties within eight days of the previous pleading delivered by the opposite party. Such pleadings shall be designated by the names by which they are customarily known.

26. Failure to deliver pleadings—barring

Any party who fails to deliver a replication or subsequent pleading within the time stated in rule 25 shall be ipso facto barred. If any party fails to deliver any other pleading within the time laid down in these rules or within any extended time allowed in terms thereof, any other party may by notice served upon him require him. to deliver such pleading within three days after the day upon which the notice is delivered. Any party failing to deliver the pleading referred to in the notice within the time therein required or within such further period as may be agreed between the parties, shall be in default of filing such pleading, and ipso facto barred: Provided that for the purposes of this rule the days between 16 December and 15 January both inclusive shall not be counted in the time allowed for the delivery of any pleading.

27. Extension of time and removal of bar and condonation

(1)In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any step in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet.

(2)Any such extension may be ordered although the application therefor is not made until after the expiry of the time prescribed or fixed, and the court ordering any such extension may make such order as to it seems meet as to the recalling, varying or cancelling of the results of the expiry of any time so prescribed or fixed, whether such results flow from the terms of any order or from these rules.

(3)The court may, on good cause shown, condone any non-compliance with these rules.[subrule (3) amended by section 12 of Government Notice R235 of 1966]

28. Amendments to pleadings and documents

(1)Any party desiring to amend any pleading or document other than an affidavit, filed in connection with any proceeding, may give notice to all other parties to the proceeding of his intention so to amend.

(2)Such notice shall state that unless objection in writing is made within fourteen days to the proposed amendment, the party giving the notice will amend the pleading or document in question accordingly.

(3)If no objection in writing be so made, the party receiving such notice shall be deemed to have agreed to the amendment.

(4)If any objection be made within the said period, the party wishing to pursue the amendment, shall within ten days of the receipt of such objection apply to court on notice for leave to amend and set the matter down for hearing. The court may make such order thereon as to it seems meet.

(5)Whenever the court has ordered an amendment or no objection has been made within the time prescribed in sub-rule (2), the party amending shall deliver the amendment to the pleading or document within the time specified in the court’s order or within seven days of the expiry of the time prescribed in sub-rule (2) as the case may be.

(6)When an amendment to a pleading has been delivered in terms of this rule, the other party shall be entitled to plead thereto or amend consequentially any pleading already filed by him within fourteen days of the receipt of the amended pleading.[subrule (6) amended by section 13 of Government Notice R235 of 1966]

(7)A party giving notice of amendment shall, unless the court otherwise orders, be liable to pay the costs thereby occasioned to any other party.

(8)The court may during the hearing at any stage before judgment grant leave to amend any pleading or document on such terms as to costs or otherwise as to it seems meet.

(9)Where any amendment is made it shall be made on a separate page to be added in an appropriate place to the pleading or the document amended.

29. Close of pleadings

Pleadings shall be considered closed—

(a)if either party has joined issue without alleging any new matter, and without adding any further pleading;

(b)if the last day allowed for filing a replication or subsequent pleading has elapsed and it has not been filed;

(c)if the parties agree in writing that the pleadings are closed and such agreement is filed with the registrar; or

(d)if the parties are unable to agree as to the close of pleadings, and the court upon the application of a party declares them closed.

30. Irregular proceedings

(1)Any party to any cause in which an irregular or improper step or proceeding has been taken by any party, may within fourteen days of the taking of such step or proceeding apply to court to set it aside: Provided that no party who has taken any further step in the cause with knowledge of the irregularity or impropriety shall be entitled to make such application.

(2)Application in terms of sub-rule (1) shall be on notice to all parties specifying particulars of the irregularity or impropriety alleged.

(3)If at the hearing of such application the court is of opinion that the proceeding or step is irregular or improper it may set it aside in whole or in part, either as against all the parties or as against some of them, and grant leave to amend or make any such order as to it seems meet

(4)Until a party has complied with any order of court made against him, he shall not take any further step in the cause, save to apply for an extension of time within which to comply with such order.

(5)Where a party fails to comply timeously with a request made or notice given pursuant to these rules, the party making the request or giving the notice may notify the defaulting party that he intends after the lapse of seven days applying for an order that such notice or request be complied with, or that the claim or defence be struck out. Failing compliance within the seven days, application may be made to court and the court may make such order thereon as to it seems meet.

31. Judgment on confession and by default

(1)Save in actions for divorce, restitution of conjugal rights, judicial separation or nullity of marriage, a defendant may at any time confess in whole or in part the claim contained in the summons. Such confession shall be signed by the defendant personally and his signature shall either be witnessed by an attorney acting for him, not being the attorney acting for the plaintiff, or be verified by affidavit, and furnished to the plaintiff, whereupon the plaintiff may apply in writing through the registrar to a judge for judgment according to such confession.

(2)

(a)Whenever a defendant is in default of delivery of notice of intention to defend or of a plea, the plaintiff may set the action down as provided in sub-rule (4) for default judgment and the court may, where the claim is for a debt or liquidated demand, without hearing evidence, and in the case of any other claim, after hearing evidence, grant judgment against the defendant or make such order as to it seems meet.

(b)A defendant may within twenty-one days after he has knowledge of such judgment apply to court upon notice to the plaintiff to set aside such judgment and the court may upon good cause shown and upon the defendant furnishing to the plaintiff security for the payment of the costs of the default judgment and of such application to a maximum of R50, set aside the default judgment on such terms as to it seems meet.[paragraph (b) amended by section 11 of Government Notice R2021 of 1971]

(3)Where a plaintiff has been barred from delivering a declaration the defendant may set the action down as provided in sub-rule (4) and apply for absolution from the instance or, after adducing evidence, for judgment, and the court may make such order thereon as to it seems meet.

(4)The proceedings referred to in sub-rules (2) and (3) shall be set down for hearing before noon on the day but one preceding the day on which the matter is to be heard upon not less than three days notice to the party in default, provided that no notice of set down need be given to any party in default of delivery of notice of intention to defend.

32. Summary judgment

(1)Where the defendant has delivered notice of intention to defend, the plaintiff may apply to court for summary judgment on each of such claims in the summons as is only—

(a)on a liquid document;

(b)for a liquidated amount in money;

(c)for delivery of specified movable property, or

(d)for ejectment;

together with any claim for interest and costs.

(2)The plaintiff shall within fourteen days after the date of delivery of notice of intention to defend, deliver notice of such application, accompanied by an affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed and stating that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. If the claim is founded on a liquid document a copy of the document shall be annexed to such affidavit. Such notice of application shall state that the application will be set down for hearing on a stated day not being less than seven days from the date of the delivery thereof.

(3)Upon the hearing of an application for summary judgment the defendant may—

(a)give security to the plaintiff to the satisfaction of the registrar for any judgment including costs which may be given, or

(b)satisfy the court by affidavit (which shall be delivered before noon on the court day but one preceding the day on which the application is to be heard) or with the leave of the court by oral evidence of himself or of any other person who can swear positively to the fact that he has a bona fide defence to the action; such affidavit or evidence shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.

(4)No evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in sub-rule (2), nor may either party cross-examine any person who gives evidence viva voce or on affidavit: Provided that the court may put to any person who gives oral evidence such questions as it considers may elucidate the matter.

(5)If the defendant does not find security or satisfy the court as provided in paragraph (b) of sub-rule (3), the court may enter summary judgment for the plaintiff.

(6)If on the hearing of an application made under this rule it appears—

(a)that any defendant is entitled to defend and any other defendant is not so entitled; or

(b)that the defendant is entitled to defend as to part of the claim,

the court shall—

(i)give leave to defend to a defendant so entitled thereto and give judgment against the defendant not so entitled; or

(ii)give leave to defend to the defendant as to part of the claim and enter judgment against him as to the balance of the claim, unless he shall have paid such balance to the plaintiff or into court in terms of rule 34; or

(iii)make both orders mentioned in sub-paragraphs (i) and (ii).

(7)If the defendant finds security or satisfies the court as provided in sub-rule (3), the court shall give leave to defend, and the action shall proceed as if no application for summary judgment had been made.

(8)Leave to defend may be given unconditionally or subject to such terms as to security, time for delivery of pleadings, or otherwise, as the court deems fit.

(8) bisWhere delivery of a declaration is required by these rules and the court, when giving leave to defend in terms of this rule, has not made an order for the delivery of such declaration within a specified time, such declaration shall be delivered, within 21 days of the date leave to defend has been given.[subrule (8) bis inserted by section 9 of Government Notice R2004 of 1967]

(9)The court may at the hearing of such application make such order as to costs as to it may seem just: Provided that if—

(a)the plaintiff makes an application under this rule, where the case is not within the terms of sub-rule (1) or where the plaintiff, in the opinion of the court, knew that the defendant relied on a contention which would entitle him to leave to defend, the court may order that the action be stayed until the plaintiff has paid the defendant’s costs; and may further order that such costs be taxed as between attorney and client; and

(b)in any case in which summary judgment was refused and in which the court after trial gives judgment for the plaintiff substantially as prayed, and the court finds that summary judgment should have been granted had the defendant not raised a defence which in its opinion was unreasonable, the court may order the plaintiff’s costs of the action to be taxed as between attorney and client.

33. Special cases and adjudication upon points of law

(1)The parties to any dispute may, after institution of proceedings, agree upon a written statement of facts in the form of a special case for the adjudication of the court.

(2)

(a)Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties and their contentions thereon. Such statement shall be divided into consecutively numbered paragraphs and there shall be annexed thereto copies of documents necessary to enable the court to decide upon such questions. It shall be signed by an advocate and an attorney on behalf of each party or, where a party sues or defends personally, by such party.

(b)Such special case shall be set down for hearing in the manner provided for trials or opposed applications, whichever may be more convenient.[paragraph (b) amended by section 12 of Government Notice R2021 of 1971]

(c)If a minor or person of unsound mind is a party to such proceedings the court may, before determining the questions of law in dispute, require proof that the statements in such special case so far as concerns the minor or person of unsound mind are true.

(3)At the hearing thereof the court and the parties may refer to the whole of the contents of such documents and the court may draw any inference of fact or of law from the facts and documents as if proved at a trial.

(4)If it appears to the court mero motu or on the application of any party that there is, in any pending action, a question of law or fact which it would be convenient to decide either before any evidence is led or separately from any other question, the court may make an order directing the trial of such question in such manner as it may deem fit, and may order that all further proceedings be stayed until such question has been disposed of.

(5)When giving its decision upon any question in terms of this rule the court may give such judgment as may upon such decision be appropriate and may give any direction with regard to the hearing of any other issues in the proceeding which may be necessary for the final disposal thereof.

(6)If the question in dispute is one of law and the parties are agreed upon the facts, the facts may be admitted and recorded at the trial and the court may give judgment without hearing any evidence.

34. Payment into court

(1)

(a)In any action for payment of a sum of money the defendant may at any time pay unconditionally into court the sum so claimed or any part thereof, and the registrar shall, upon the application of the plaintiff, pay such sum to the plaintiff’s attorney (or to the plaintiff where he sues in person). In making such payment the defendant shall state whether he acknowledges or disavows liability for the payment of the plaintiff’s costs in whole or in part.

(b)If the defendant in making such payment into court in terms of paragraph (a) of sub-rule (1) acknowledges liability for payment of the costs in whole or in part and fails to pay in full such costs, as taxed, within seven days after demand, the plaintiff may apply in writing through the registrar to a judge for judgment for the same.

(c)If the defendant in making payment into court in terms of paragraph (a) of sub-rule (1) disavows liability for any portion of the plaintiff’s costs, he shall state in the notice accompanying the payment into court the grounds upon which he so disavows, and the action may be set down for hearing on the question of costs only.

(2)In any action in which a sum of money is claimed either alone or with any other relief, the defendant may, at any time without prejudice, pay an amount into court by way of an offer of settlement of the plaintiff’s claim.

(3)Where the plaintiff claims the performance of some act by the defendant, the defendant may at any time tender either unconditionally or without prejudice to perform such act. Unless such act must be performed by the defendant personally, pari passu with such tender there shall be filed with the registrar an irrevocable power of attorney to perform such act on behalf of the person making the tender.

(4)Any party to an action who stands to be held liable to any other party to contribute towards or to be held liable with such party for the payment of any amount which may be recovered by any other party, may either unconditionally or without prejudice by way of an offer of settlement—

(a)make a written offer to that other party to contribute either a specific sum or in a specific proportion towards the amount to which the plaintiff may be held entitled in the action, or

(b)pay into court a sum in respect of the share of the amount to which the plaintiff may be held to be entitled and for which share he may be adjudged liable.

(5)One of several defendants, whether sued jointly, jointly and severally, separately or in the alternative, may either unconditionally or without prejudice by way of an offer of settlement nay into court a sum of money in respect of the plaintiff’s claim or tender in terms of these rules to do any act or acts the performance of which is claimed by the plaintiff.

(6)Notice of any payment, tender or offer in terms of this rule shall be given to all parties to the action and shall state—

(a)whether the same is unconditional or without prejudice as an offer of settlement;

(b)whether it is accompanied by a tender to pay the plaintiff’s costs in whole or in part; and

(c)whether the amount paid is offered in settlement of both claim and costs or of the claim only.

(7)A plaintiff may within ten days of the receipt of the notice referred to in sub-rule (6) or thereafter with the consent of the defendant or a judge accept any payment, tender to perform an act, or written offer in settlement of his claim and shall notify all other parties to the action accordingly, and the registrar, upon being satisfied that the requirements of this sub-rule have been complied with, shall pay out to the plaintiff’s attorney (or to the plaintiff where he sues in person) the money paid into court or give effect to or deliver to the plaintiff’s attorney (or to the plaintiff where he sues in person) the power of attorney referred to in sub-rule (3).

(8)If a tender or payment in terms of sub-rule (2), (3), (4) or (5) is not stated to be in satisfaction of a plaintiff’s claim and costs, the plaintiff may, on notice to the defendant, apply for judgment for costs.[subrule (8) amended by section 14(a) of Government Notice R235 of 1966]

(9)

(a)No payment into court, tender or offer, made without prejudice in terms of this rule, by way of an offer of settlement, shall be disclosed at any time to the court before judgment has been given. No reference to the fact of such a payment, tender or offer shall appear on any file in the office of the registrar containing the papers in the said case.

(b)The fact of a payment, tender or offer referred to in paragraph (a) of sub-rule (9) may be brought to the notice of the court after judgment has been given as being relevant to the question of costs. If the court has given judgment on the question of costs in ignorance of any such payment, tender or offer and such is brought to the notice of the court within two days, the question of costs shall be considered afresh in the light thereof: Provided that nothing in this sub-rule contained shall affect the court’s discretion as to an award of costs.[paragraph (b) amended by section 14(b) of Government Notice R235 of 1966]

(c)Any party to an action who shall, contrary to this rule, by himself, his advocate or his attorney, mention or disclose to the court such payment, tender or offer shall, even if successful in the action, be liable to have costs given against him.

(10)

(a)An insurance company which is a registered company as defined in section 1 of the Motor Vehicle Insurance Act, 1942 (Act 29 of 1942), may, instead of paying into court any sum of money as referred to in this rule, lodge with the registrar, in a form which is acceptable to the registrar, a guarantee for the payment of such sum to the plaintiff.

(b)The lodging of a guarantee referred to in paragraph (a) shall not derogate from the provisions of the foregoing subrules of this rule and such provisions, except the provisions relating to payment by the registrar of any amount paid into court, shall apply as if the sum guaranteed had been paid into court.

(c)Payment to the plaintiff's attorney (or to the plaintiff where he sues in person) by an insurance company referred to in paragraph (a) of the amount guaranteed shall be made within 14 days of the receipt of the plaintiff's notice of acceptance of the amount guaranteed and failing such payment the plaintiff may apply for judgment for such amount together with the costs of the application.

[subrule (10) added by section 1 of Government Notice R3553 of 1969]

35. Discovery, inspection and production of documents

(1)Any party to any action may require any other party thereto, by notice in writing, to make discovery on oath within twenty-one days of all documents relating to any matter in question in such action (whether such matter is one arising between the party requiring discovery and the party required to make discovery or not) which are or have at any time been in the possession or control of such other party. Such notice shall not, save with the leave of a judge, be given before the close of pleadings.

(2)The party required to make discovery shall within twenty-one days or within the time stated in any order of a judge, make discovery of such documents on affidavit as near as may be in accordance with Form 11 of the First Schedule specifying separately:

(a)Such documents in his possession or that of his agent other than the documents mentioned in paragraph (b);

(b)such documents in respect of which he has a valid objection to produce;

(c)such documents which he or his agent had but has not in his possession at the date of the affidavit.

A document shall be deemed to be sufficiently specified if it is described as being one of a bundle of documents of a specified nature, which have been initiated and consecutively numbered by the deponent. Statements of witnesses taken for purposes of the proceedings, communications between attorney and client, attorney and advocate, pleadings, affidavits and notices in the action shall be omitted from the schedules.

(3)If any party believes that there are, in addition to documents disclosed as aforesaid, documents (including copies thereof) which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring him to make the same available for inspection in accordance with sub-rule (6), or to state on oath within fourteen days that such documents are not in his possession, in which event he shall, if known to him, state their whereabouts.

(4)A document not disclosed as aforesaid may not, save with the leave of the court granted on such terms as to it may seem meet, be used for any purpose at the trial by the party who was obliged but failed to disclose it, provided that any other party may use such document.

(5)

(a)Where a registered company as defined in the Motor Vehicle Insurance Act, 1942, as amended, is a party to any action by virtue of the provisions of the said Act, any party thereto may obtain discovery in the manner provided in paragraph (d) of this sub-rule against the driver or owner (as defined in the said Act) of the vehicle insured by the said company.

(b)The provisions of paragraph (a) shall apply mutatis mutandis to the driver of a vehicle owned by a person, state, government or body of persons referred to in subsection (3) of section nineteen of the said Act.

(c)Where the plaintiff sues as a cessionary, the defendant shall mutatis mutandis have the same rights under this rule against the cedent.

(d)The party requiring discovery in terms of paragraph (a), (b) or (c) shall do so by notice as near as may be in accordance with Form 12 of the First Schedule.

(6)Any party may at any time by notice as near as may be in accordance with Form 13 of the First Schedule, require any party who has made discovery to make available for inspection any documents disclosed in terms of sub-rules (2) and (3). Such notice shall require the party to whom notice is given to deliver to him within seven days a notice as near as may be in accordance with Form 14 of the First Schedule, stating a time, within three days from the delivery of such latter notice, when such documents may be inspected at the office of his attorney or, if not represented by an attorney, at some convenient place mentioned in the notice, or in the case of bankers’ books or other books of account or books in constant use for the purposes of any trade, business or undertaking, at their usual place of custody. The party receiving such last-named notice shall be entitled at the time therein stated, and for a period of seven days thereafter, during normal business hours or on any one or more of such days, to inspect such documents and to take copies thereof. A party’s failure to produce any such document for inspection shall preclude him from using such document at the trial save where the court on good cause shown allows otherwise.

(7)If any party fails to give discovery as aforesaid or, having been served with a notice under sub-rule (6), omits to give notice of a time for inspection as aforesaid or fails to give inspection as required by that sub-rule, the party desiring discovery or inspection may apply to a court, which may order compliance with this rule and, failing such compliance, may dismiss the claim or strike out the defence.

(8)Any party to an action may after the close of pleadings give notice to any other party to specify in writing particulars of dates and parties of or to any document intended to be used at the trial of the action on behalf of the party to whom notice is given. The party receiving such notice shall not less than twenty-one days before the date of trial give a notice—

(a)specifying the dates and parties of or to and the general nature of any such document which is in his possession;

(b)specifying such particulars as he may have to identify any such document not in his possession, at the same time furnishing the name and address of the person in whose possession such document is.

In making any such specification the party so specifying may give the particulars of such documents as may be in his possession by reference to any discovery affidavit in so far as such particulars in the discovery affidavit are sufficient.

(9)Any party proposing to prove documents at a trial may give notice to any other party requiring him within fourteen days of the receipt of such notice to admit that those documents were properly executed and are what they purported to be. If the party receiving the said notice does not within the said period so admit, then as against such party the party giving the notice shall be entitled to produce the documents specified at the trial without proof other than proof (if it is disputed) that the documents are the documents referred to in the notice and that the notice was duly given. If the party receiving the notice states that the documents are not admitted as aforesaid, such documents shall be proved by the party giving the notice before he is entitled to use them at the trial, but the party not admitting them may be ordered to pay the costs of their proof.

(10)Any party may give to any other party who has made discovery of a document notice to produce at the hearing the original of such document, not being a privileged document, in such party’s possession. Such notice shall be given not less than four days before the hearing but may, if the court so allows, be given during the course of the hearing. If any such notice is so given, the party giving the same may require the party to whom notice is given to produce the said document in court and shall be entitled, without calling any witness, to hand in the said document, which shall be receivable in evidence to the same extent as if it had been produced in evidence by the party to whom notice is given.

(11)The court may, during the course of any action or proceeding, order the production by any party thereto under oath of such documents in his power or control relating to any matter in question in such action or proceeding as the court may think meet, and the court may deal with such documents, when produced, as it thinks meet.

(12)Any party to an action or proceeding may at any time before the hearing thereof give a notice as near as may be in accordance with Form 15 of the First Schedule to any other party in whose pleadings or affidavits reference is made to any document to produce such document for his inspection and to permit him to take a copy thereof. Any party failing to comply with such notice shall not, save with the leave of the court, use such document in such action or proceeding provided that any other party may use such document.

(13)The provisions of this rule relating to discovery shall mutatis mutandis apply, in so far as the court may direct, to applications.

36. Inspections, examinations and expert testimony

(1)Subject to the provisions of this rule any party to proceedings in which damages or compensation in respect of alleged bodily injury is claimed shall have the right to require any party claiming such damage or compensation, whose state of health is relevant for the determination thereof to submit to medical examination.

(2)Any party requiring another party to submit to such examination shall deliver a notice specifying the nature of the examination required, the person or persons by whom, the place where and the date (being not less than fourteen days from the date of such notice) and time when it is desired that such examination shall take place, and requiring such other party to submit himself for examination then and there. Such notice shall state that such other party may have his own medical adviser present at such examination, and shall be accompanied by a remittance in respect of the reasonable expense to be incurred by such other party in attending such examination. Such expense shall be tendered on the scale as if such person were a witness in a civil suit before the court, provided, however,

(a)that if such other party is immobile, the amount to be paid to him shall include the cost of his travelling by motor vehicle and, where required, the reasonable cost of a person attending upon him;

(b)where such other party will actually lose his salary, wage or other remuneration during the period of his absence from work, he shall in addition to his expenses on the basis of a witness in a civil case be entitled to receive an amount not exceeding R6 per day in respect of the salary, wage or other remuneration which he will actually lose;

(c)any amounts paid by a party as aforesaid shall be costs in the cause unless the court otherwise directs.

(3)The person receiving such notice shall within seven days of the service thereof notify the person delivering it in writing of the nature and grounds of any objection which he may have in relation to—

(a)the nature of the proposed examination,

(b)the person or persons by whom the examination is to be conducted,

(c)the place, date or time of the examination,

(d)the amount of the expenses tendered to him;

and shall further—

(i)in the case of his objection being to the place, date or time of the examination furnish an alternative date, time and place as the case may be;

(ii)in the case of the objection being to the amount of the expenses tendered furnish particulars of such increased amount as may be required.

Should the person receiving the notice not deliver such objection within the said period of seven days, he shall be deemed to have agreed to the examination upon the terms set forth by the person giving the notice. Should the person giving the notice regard the objection raised by the person receiving it as invalid in whole or in part he may on notice make application to a judge to determine the conditions upon which the examination, if any, is to be conducted.

(4)Any party to such an action may at any time by notice in writing require any person claiming such damages to make available in so far as he is able to do so to such party within ten days any medical reports, hospital records, X-ray photographs, or other documentary information of a like nature relevant to the assessment of such damages.

(5)If it appears from any medical examination carried out either by agreement between the parties or pursuant to any notice given in terms of this rule, or by order of a judge, that any further medical examination by any other person is necessary or desirable for the purpose of giving full information on matters relevant to the assessment of such damages, any party may require a second and final medical examination in accordance with the provisions of this rule.

(6)If it appears that the state or condition of anything of any nature whatsoever whether movable or immovable may be relevant with regard to the decision of any matter at issue in any action, any party thereto may at any stage thereof not later than fourteen days before the hearing, give notice requiring the party relying upon the existence of such state or condition of such thing or having such thing in his possession or under his control to make it available for inspection or examination in terms of this sub-rule, and may in such notice require him that such thing or a fair sample thereof remains available for inspection or examination for a period of not more than ten days from the date of the receipt of the notice.[subrule (6) amended by section 12 of Government Notice R2004 of 1967]

(7)The party called upon to submit such thing for examination may require the party requesting it to specify the nature of the examination to which it is to be submitted, and shall not be bound to submit such thing thereto if this will materially prejudice such party by reason of the effect thereof upon such thing. In the event of any dispute whether the thing should be submitted for examination, such dispute shall be referred to a judge on notice delivered by either party stating that the examination is required and that objection is taken in terms of this sub-rule. In considering any such dispute, the judge may make such order as to him seems meet.

(8)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 of the results of his examination and the opinions that he formed as a result thereof on any relevant matter;

(b)after receipt of such report and upon request furnish any other party with a complete copy thereof; and

(c)bear the expense of the carrying out of any such examination: Provided that such expense shall form part of such party’s costs.

(9)No person shall, save with the leave of the court or the consent of all parties to the suit, be entitled to call as a witness any person to give evidence as an expert upon any matter upon which the evidence of expert witnesses may be received unless he shall—

(a)not less than fourteen days before the hearing, have delivered notice of his intention so to do, and

(b)not less than ten days before the trial, have delivered a summary of such expert’s opinions and his reasons therefor.

(10)

(a)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 he shall not less than ten days before the hearing have delivered a notice stating his intention to do so, offering inspection thereof and requiring the party receiving notice to admit the same within seven days of his receipt of the notice.

(b)If the party receiving the notice fails within the said period so to admit, the said plan, diagram, model or photograph shall be received in evidence upon its mere production and without further proof thereof. If such party states that he does not admit them, the said plan, diagram, model or photograph may be proved at the hearing and the party receiving the notice may be ordered to pay the cost of their proof.

37. Curtailment of proceedings

(1)

(a)An attorney desirous of setting an action down for trial or of obtaining a date for the hearing thereof shall as soon as possible after the close of pleadings and before delivering a notice of set down or filing a written request for such date, as the case may be, in writing request the attorneys acting for all other parties to such action to attend a conference at a mutually convenient time with the object of reaching agreement as to possible ways of curtailing the duration of such trial and in particular as to all or any of the following matters, namely:

(i)The possibility of obtaining admissions of fact and of documents;

(ii)the holding of any inspection or examination;

(iii)the making of any discovery of documents;

(iv)the exchange between parties of the reports of experts;

(v)the giving of any further particulars reasonably required for the purposes of trial;

(vi)the plans, diagrams, photographs, models, and the like, to be used at the trial;

(vii)the consolidation of trials;

(viii)the quantum of damages;

(ix)the preparation and handing in at the trial of copies of correspondence and other documents in the form of a paged bundle with copies for the bench and all parties.

(b)The conference referred to in paragraph (a) may be held at any time after the close of pleadings but before the commencement of the trial.[paragraph (b) inserted by section 13(a) of Government Notice R2021 of 1971]

(c)At the conclusion of such conference the attorneys shall draw up and sign a minute of the matters upon which they are agreed.[paragraph (c), previously paragraph (b), amended by section 13(b) of Government Notice R2021 of 1971]

(2)In his notice of set down or written request for a date for the hearing of the trial, as the case may be, such an attorney shall state that the requirements of paragraph (a) of sub-rule (1) have been duly observed.

(3)At the commencement of the trial the advocates for the respective parties shall report to the court whether such conference has been duly held and, if so, shall hand in the signed minute referred to in paragraph (b) of subrule (1).

(4)Before the trial proceeds the judge may call in to his chambers the advocates for the parties with a view to securing agreement on any matters likely to curtail the duration of the trial.

(5)When giving judgment in the action the court may make an order for the payment by a party of portion of the costs when the attorney for such party has refused a request to attend a conference in terms of sub-rule (1).

38. Procuring evidence for trial

(1)Any party, desiring the attendance of any person to give evidence at a trial, may as of right, without any prior proceeding whatsoever, sue out from the office of the registrar one or more subpoenas for that purpose, each of which subpoenas shall contain the names of not more than four persons, and service thereof upon any person therein named shall be effected by the sheriff or his deputy in the manner prescribed by rule 4, and the process for subpoenaing such witnesses shall be, as nearly as may be, in accordance with Form 16 in the First Schedule.If any witness has in his possession or control any deed, instrument, writing or thing which the party requiring his attendance desires to be produced in evidence, the subpoena shall specify such document or thing and require him to produce it to the court at the trial.

(2)The witnesses at the trial of any action shall be examined viva voce, but a court may at any time, for sufficient reason, order that all or any of the evidence to be adduced at any trial be given on affidavit or that the affidavit of any witness be read at the hearing, on such terms and conditions as to it may seem meet: Provided that where it appears to the court that any other party reasonably requires the attendance of a witness for cross-examination, and such witness can be produced, the evidence of such witness shall not be given on affidavit.

(3)A court may, on application on notice in any matter where it appears convenient or necessary for the purposes of justice, make an order for taking the evidence of a witness before or during the trial before a commissioner of the court, and permit any party to any such matter to use such deposition in evidence on such terms, if any, as to it seems meet, and in particular may order that such evidence shall be taken only after the close of pleadings or only after the giving of discovery or the furnishing of any particulars in the action.

(4)Where the evidence of any person is to be taken on commission before any commissioner within the Republic, such person may be subpoenaed to appear before such commissioner to give evidence as if at the trial.

(5)Unless the court ordering the commission directs such examination to be by interrogatories and cross-interrogatories, the evidence of any witness to be examined before the commissioner in terms of an order granted under sub-rule (3) shall be adduced upon oral examination in the presence of the parties, their advocates or attorneys, and the witness concerned shall be subject to cross-examination and re-examination.[subrule (5) amended by section 15 of Government Notice R235 of 1966]

(6)A commissioner shall not decide upon the admissibility of evidence tendered, but shall note any objections made and such objections shall be decided by the court hearing the matter.

(7)Evidence taken on commission shall be recorded in such manner as evidence is recorded when taken before a court and the transcript of any shorthand record or record taken by mechanical means duly certified by the person transcribing the same and by the commissioner shall constitute the record of the examination: Provided that the evidence before the commissioner may be taken down in narrative form.

(8)The record of the evidence shall be returned by the commissioner to the registrar with his certificate to the effect that it is the record of the evidence given before him, and shall thereupon become part of the record in the case.

39. Trial

(1)If, when a trial is called, the plaintiff appears and the defendant does not appear, the plaintiff may prove his claim so far as the burden of proof lies upon him and judgment shall be given accordingly, insofar as he has discharged such burden: Provided that where the claim is for a debt or liquidated demand no evidence shall be necessary unless the court otherwise orders.

(2)When a defendant has by his default been barred from pleading, and the case has been set down for hearing, and the default duly proved, the defendant shall not, save where the court in the interests of justice may otherwise order, be permitted, either personally or by an advocate, to appear at the hearing.

(3)If, when a trial is called, the defendant appears and the plaintiff does not appear, the defendant shall be entitled to an order granting absolution from the instance with costs, but may lead evidence with a view to satisfying the court that final judgment should be granted in his favour and the court, if so satisfied, may grant such judgment.

(4)The provisions of sub-rules (1) and (2) shall apply to any person making any claim (whether by way of claim in reconvention or third party notice or by any other means) as if he were a plaintiff, and the provisions of subrule (3) shall apply to any person against whom such a claim is made as if he were a defendant.

(5)Where the burden of proof is on the plaintiff, he or one advocate for the plaintiff may briefly outline the facts intended to be proved and the plaintiff may then proceed to the proof thereof.

(6)At the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event the defendant or one advocate on his behalf may address the court and the plaintiff or one advocate on his behalf may reply. The defendant or his advocate may thereupon reply on any matter arising out of the address of the plaintiff or his advocate.

(7)If absolution from the instance is not applied for or has been refused and the defendant has not closed his case, the defendant or one advocate on his behalf may briefly outline the facts intended to be proved and the defendant may then proceed to the proof thereof.

(8)Each witness shall, where a party is represented, be examined, cross-examined or re-examined as the case may be by only one (though not necessarily the same) advocate for such party.

(9)If the burden of proof is on the defendant, he or his advocate shall have the same rights as those accorded to the plaintiff or his advocate by sub-rule (5).

(10)Upon the cases on both sides being closed, the plaintiff or one or more of the advocates on his behalf may address the court and the defendant or one or more advocates on his behalf may do so, after which the plaintiff or one advocate only on his behalf may reply on any matter arising out of the address of the defendant or his advocate.

(11)Either party may apply at the opening of the trial for a ruling by the court upon the onus of adducing evidence, and the court after hearing argument may give a ruling as to the party upon whom such onus lies: Provided that such ruling may thereafter be altered to prevent injustice.

(12)If there be one or more third parties or if there be defendants to a claim in reconvention who are not plaintiffs in the action, any such party shall be entitled to address the court in opening his case and shall lead his evidence after the evidence of the plaintiff and of the defendant has been concluded and before any address at the conclusion of such evidence. Save insofar as the court shall otherwise direct, the defendants to any counter-claim who are not plaintiffs shall first lead their evidence and thereafter any third parties shall lead their evidence in the order in which they became third parties. If the onus of adducing evidence is on the claimant against the third party or on the defendant to any claim in reconvention, the court shall make such order as may seem convenient with regard to the order in which the parties shall conduct their cases and address the court, and in regard to their respective rights of reply. The provisions of sub-rule (11) shall mutatis mutandis apply with regard to any dispute as to the onus of adducing evidence.

(13)Where the onus of adducing evidence on one or more of the issues is on the plaintiff and that of adducing evidence on any other issue is on the defendant, the plaintiff shall first call his evidence on any issues in respect of which the onus is upon him, and may then close his case. The defendant, if absolution from the instance is not granted, shall, if he does not close his case, thereupon call his evidence on all issues in respect of which such onus is upon him.

(14)After the defendant has called his evidence, the plaintiff shall have the right to call rebutting evidence on any issues in respect of which the onus was on the defendant: Provided that if the plaintiff shall have called evidence on any such issues before closing his case he shall not have the right to call any further evidence thereon.

(15)Nothing in sub-rule (13) or (14) contained shall prevent the defendant from cross-examining any witness called at any stage by the plaintiff on any issue in dispute, and the plaintiff shall be entitled to re-examine such witness consequent upon such cross-examination without affecting the right given to him by sub-rule (14) to call evidence at a later stage on the issue on which such witness has been cross-examined. The plaintiff may further call the witness so re-examined to give evidence on any such issue at a later stage.

(16)A record shall be made of—

(a)any judgment or ruling given by the court,

(b)any evidence given in court,

(c)any objection made to any evidence received or tendered,

(d)the proceedings of the court generally (including any inspection in loco and any matter demonstrated by any witness in court); and

(e)any other portion of the proceedings which the court may specifically order to be recorded.

(17)Such record shall be kept by such means as to the court seems appropriate and may in particular be taken down in shorthand or be recorded by mechanical means.

(18)The shorthand notes so taken or any mechanical record shall be certified by the person taking the same to be correct and shall be filed with the registrar, It shall not be necessary to transcribe them unless the court or a judge so directs or a party appealing so requires. If and when transcribed, the transcript of such notes or record shall be certified as correct by the person transcribing them and the transcript, the shorthand notes and the mechanical record shall be filed with the registrar. The transcript of the shorthand notes or mechanical record certified as correct shall be deemed to be correct unless the court otherwise orders.

(19)Any party to any matter in which a record has been made in shorthand or by mechanical means may apply in writing through the registrar to a judge to have the record transcribed if an order to that effect has not already been made. Such party shall be entitled to a copy of any transcript ordered to be made upon payment of the prescribed fees.

(20)If it appears convenient to do so, the court may at any time make any order with regard to the conduct of the trial as to it seems meet, and thereby vary any procedure laid down by this rule.

(21)Every stenographer employed to take down a record and every person employed to make a mechanical record of any proceedings shall be deemed to be an officer of the court and shall, before entering on his duties, take the following oath:I. A. B., do swear that I shall faithfully, and to the best of my ability, record in shorthand, or cause to be recorded by mechanical means, as directed by the judge, the proceedings in any case in which I may be employed as an officer of the court, and that I shall similarly, when required to do so, transcribe the same or, as far as I am able, any shorthand notes, or mechanical record, made by any other stenographer or person employed to make such mechanical record.[subrule (21) amended by section 16 of Government Notice R235 of 1966]

(22)By consent the parties to a trial shall be entitled, at any time before trial, on written application to a judge through the registrar, to have the cause transferred to the magistrate’s court: Provided that the matter is one within the jurisdiction of the latter court whether by way of consent or otherwise.

(23)The judge may, at the conclusion of the evidence in trial actions, confer with the advocates in his chambers as to the form and duration of the addresses to be submitted in court.

(24)Where the court considers that the proceedings have been unduly prolonged by the successful party by the calling of unnecessary witnesses or by excessive examination or cross-examination, or by over-elaboration in argument, it may penalize such party in the matter of costs.

40. In forma pauperis

(1)

(a)A person who desires to bring or defend proceedings in forma pauperis, may apply to the registrar who, if it appears to him that he is a person such as is contemplated by paragraph (a) of sub-rule (2), shall refer him to an attorney and at the same time inform the local society of advocates accordingly.

(b)Such attorney shall thereupon enquire into such person’s means and the merits of his cause and, upon being satisfied that the matter is one in which he may properly act in forma pauperis, he shall request the said society to nominate an advocate who is willing and able to act, and upon being so nominated such advocate shall act therein.

(c)Should such attorney or advocate thereafter become unable so to act, the registrar or the said society, as the case may be, may, upon request, nominate another practitioner to act in his stead.

(2)If when proceedings are instituted there be lodged with the registrar on behalf of such person—

(a)an affidavit setting forth fully his financial position and stating that, excepting household goods, wearing apparel and tools of trade, he is not possessed of property to the amount of R100 and will not be able within a reasonable time to provide such sum from his earnings;

(b)a statement signed by the advocate and attorney aforementioned that being satisfied that the person concerned is unable to pay fees they are acting for the said person in their respective professional capacities gratuitously in the proceedings to be instituted by him; and

(c)a certificate of probabilis causa by the said advocate;

the registrar shall issue all process and accept all documents in the said proceedings for the aforesaid person without fee of office.

(3)All pleadings, process and documents filed of record by a party proceeding in forma pauperis shall be headed accordingly.

(4)The registrar shall maintain in his office a roster of attorneys, and in referring persons desirous of bringing or defending proceedings in forma pauperis to practitioners in terms of sub-rule (1), he shall do so as far as possible in rotation.

(5)The said advocate and attorney shall thereafter act gratuitously for the said person in their respective capacities in the said proceedings, and shall not be at liberty to withdraw, settle or compromise such proceedings, or to discontinue their assistance, without the leave of a judge, who may in the latter event give directions as to the appointment of substitutes.

(6)When a person sues or defends in forma pauperis under process issued in terms of this rule, his opponent shall, in addition to any other right he might have, have the right at any time to apply to the court on notice for an order dismissing the claim or defence or for an order debarring him from continuing in forma pauperis; and upon the hearing of such application the court may make such order thereon, including any order as to costs, as to it seems meet.

(7)If upon the conclusion of the proceedings a litigant in forma pauperis is awarded costs, his attorney may include in his bill of costs such fees and disbursements to which he would ordinarily have been entitled, and upon receipt thereof, in whole or in part, he shall pay out in the following order of preference: first, to the registrar, such amount in revenue stamps as would have been due in respect of his fees of office; second, to the deputy sheriff, his charges for the service and execution of process; third, to himself and the advocate, their fees as allowed on taxation, pro rata if necessary.

41. Withdrawal, settlement, discontinuance, postponement and abandonment

(1)

(a)A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the parties or leave of the court withdraw such proceedings, in any of which events he shall deliver a notice of withdrawal and may embody in such notice a consent to pay costs; and the taxing master shall tax such costs on the request of the other party.

(b)A consent to pay costs referred to in paragraph (a), shall have the effect of an order of court for such costs.

(c)If no such consent to pay costs is embodied in the notice of withdrawal, the other party may apply to court on notice for an order for costs.

[subrule (1) substituted by section 14 of Government Notice R2021 of 1971]

(2)Any party in whose favour any decision or judgment has been given, may abandon such decision or judgment either in whole or in part by delivering notice thereof and such judgment or decision abandoned in part shall have effect subject to such abandonment.The provisions of subrule (1) relating to costs shall mutatis mutandis apply in the case of a notice delivered in terms of this subrule.[subrule (2) substituted by section 13 of Government Notice R2004 of 1967]

(3)If in any proceedings a settlement or an agreement to postpone or withdraw is reached, it shall be the duty of the attorney for the plaintiff or applicant immediately to inform the registrar accordingly.

(4)Unless such proceedings have been withdrawn, any party to a written settlement shall, if the same has not been carried out, be entitled to apply for judgment in terms thereof on at least four days’ notice to all interested parties.

42. Variation and rescission of orders

(1)The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

(a)An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;[paragraph (a) amended by section 17 of Government Notice R235 of 1966]

(b)an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

(c)an order or judgment granted as the result of a mistake common to the parties.

(2)Any party desiring any relief under this rule shall make application therefor upon notice to all parties whose interests may be affected by any variation sought.

(3)The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed.

43. Matrimonial matters

(1)This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:

(a)Maintenance pendente lite;

(b)a contribution towards the costs of a pending matrimonial action;

(c)interim custody of any child;

(d)interim access to any child.

(2)The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent as near as may be in accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the applicant or his attorney and shall give an adress for service within eight kilometres of the office of the Registrar, or, if the applicant or his attorney is a person who is in terms of any law prohibited from being the occupier of land or premises within the distance of eight kilometres of such office, may give an address further than eight kilometres from such office but within the magisterial district in which such office is situated, and shall be served by the Sheriff.[subrule (2) amended by section 18(a) of Government Notice R235 of 1966 and substituted by section 15 of Government Notice R2021 of 1971]

(3)The respondent shall within seven days of receiving the statement deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred.[subrule (3) amended by section 18(a) of Government Notice R235 of 1966]

(4)As soon as possible thereafter the registrar shall bring the matter before the court for summary hearing, on seven days’ notice to the parties (unless the respondent is in default).

(5)The court may hear such evidence as it considers necessary and may dismiss the application or make such order as it thinks fit to ensure a just and expeditious decision.[subrule (5) substituted by section 18(b) of Government Notice R235 of 1966]

(6)The court may, on the same procedure, vary its decision in the event of a material change taking place in the circumstances of either party or a child, or the contribution towards costs proving inadequate.

(7)No advocate appearing in a case under this rule shall charge a fee of more than R15 if the claim is undefended or R25 if it is defended, unless the court in an exceptional case otherwise directs.

(8)No instructing attorney in cases under this rule shall charge a fee of more than R200 if the claim is undefended or R250 if it is defended, unless the court in an exceptional case otherwise directs.[subrule (8) added by section 1 of Government Notice R2171 of 1982]

44. Restitution of conjugal rights

(1)

(a)In any action for the restitution of conjugal rights the plaintiff may in the alternative claim a decree of divorce.

(b)Upon the hearing of the action for restitution of conjugal rights the court may upon proof of the malicious desertion of plaintiff by defendant order restitution of such rights (which order shall, unless the court otherwise directs, be served on the defendant personally), and may further direct the defendant to show cause on a day to be named in such order why a decree of divorce should not be granted.

(2)If upon such return day it is proved by affidavit or otherwise that the defendant has failed to comply with the order for restitution of conjugal rights, the court may grant a decree of divorce or make such other order as to it may seem just.

(3)When the court grants leave to the plaintiff to publish a restitution order it shall be as near as may be in accordance with Form 17A of the First Schedule.

45. Execution

General and movables

(1)The party in whose favour any judgment of the court has been pronounced may, at his own risk, sue out of the office of the registrar one or more writs for execution thereof as near as may be in accordance with Form 18 of the First Schedule: Provided that, except where by judgment of the court immovable property has been specially declared executable, no such process shall issue against the immovable property of any person until a return shall have been made of any process which may have been issued against his movable property, and the registrar perceives therefrom that the said person has not sufficient movable property to satisfy the writ.

(2)No process of execution shall issue for the levying and raising of any costs awarded by the court to any party, until they have been taxed by the taxing master or agreed to in writing by the party concerned in a fixed sum: Provided that it shall be competent to include in a writ of execution a claim for specified costs already awarded to the judgment creditor but not then taxed, subject to due taxation thereafter, provided further that if such costs shall not have been taxed and the original bill of costs, duly allocated, not lodged with the deputy-sheriff before the day of the sale, such costs shall be excluded from his account and plan of distribution.

(3)Whenever by any process of the court the deputy-sheriff is commanded to levy and raise any sum of money upon the goods of any person, he shall forthwith himself or by his assistant proceed to the dwelling-house or place of employment or business of such person (unless the judgment creditor shall give different instructions regarding the situation of the assets to be attached) and there

(a)demand satisfaction of the writ and, failing satisfaction,

(b)demand that so much movable and disposable property be pointed out as he may deem sufficient to satisfy the said writ, and failing such pointing out,

(c)search for such property.

Any such property shall be immediately inventoried and, unless the execution creditor shall otherwise have directed, and subject to the provisions of sub-rule (5), shall be taken into the custody of the deputy-sheriff: Provided—

(i)that if there is any claim made by any other person to any such property seized or about to be seized by the deputy-sheriff, then, if the plaintiff gives the deputy-sheriff an indemnity to his satisfaction to save him harmless from any loss or damage by reason of the seizure thereof, the deputy-sheriff shall retain or shall seize, as the case may be, make an inventory of and keep the said property; and

(ii)that if satisfaction of the writ was not demanded from the judgment debtor personally, the deputy sheriff shall give to the judgment debtor written notice of the attachment and a copy of the inventory made by him, unless his whereabouts are unknown.

(4)The deputy-sheriff shall file with the registrar any process with a return of what he has done thereon, and shall furnish a copy of such return and inventory to the party who caused such process to be issued.

(5)Where any movable property has been attached by the deputy-sheriff, the person whose property has been so attached may, together with some person of sufficient means as surety to the satisfaction of the deputy-sheriff, undertake in writing that such property shall be produced on the day appointed for the sale thereof, unless the said attachment shall sooner have been legally removed, whereupon the deputy-sheriff shall leave the said property attached and inventoried on the premises where it was found. The deed of suretyship shall be as near as may be in accordance with Form 19 of the First Schedule.

(6)If the judgment debtor does not, together with a surety, give an undertaking as aforesaid, then, unless the execution creditor otherwise directs, the deputy-sheriff shall remove the said goods to some convenient place of security or keep possession thereof on the premises where they were seized, the expense whereof shall be recoverable from the judgment debtor and defrayed out of the levy.

(7)Where any movable property is attached as aforesaid the deputy-sheriff shall where practicable and subject to rule 58 sell it by public auction to the highest bidder after due advertisement by him in two suitable newspapers (whenever possible one in each of the official languages) circulating in the district in which the property has been attached and after the expiration of not less than fourteen days from the time of seizure thereof. Where perishables are attached as aforesaid, they may with the consent of the execution debtor or upon the execution creditor indemnifying the deputy-sheriff against any claim for damages which may arise from such sale, be sold immediately by the deputy-sheriff concerned in such manner as to him seems expedient.[subrule (7) amended by section 14 of Government Notice R2004 of 1967]

(8)If incorporeal property, whether movable or immovable, is available for attachment, it may be attached without the necessity of a prior application to court in the manner hereinafter provided:

(a)Where the property or right to be attached is a lease or a bill of exchange, promissory note, bond or other security for the payment of money, the attachment shall be complete only when—

(i)notice has been given by the deputy-sheriff to the lessor and lessee, mortgagor and mortgagee or person liable on the bill of exchange or promissory note or security as the case may be, and

(ii)the deputy-sheriff shall have taken possession of the writing (if any) evidencing the lease, or of the bill of exchange or promissory note, bond or other security as the case may be, and

(iii)in the case of a registered lease or any registered right, notice has been given to the registrar of deeds.

(b)Where movable property sought to be attached is the interest of the execution debtor in property pledged, leased or sold under a suspensive condition to or by a third person, the attachment shall be complete only when the deputy-sheriff has served on the execution debtor and on the third person notice of the attachment with a copy of the warrant of execution. The deputy-sheriff may upon exhibiting the original of such warrant of execution to the pledgee, lessor, lessee, purchaser or seller enter upon the premises where such property is and make an inventory and valuation of the said interest.

(c)in the case of the attachment of all other incorporeal property or incorporeal rights in property as aforesaid,

(i)the attachment shall only be complete when

(a)notice of the attachment has been given in writing by the deputy-sheriff to all interested parties and where the asset consists of incorporeal immovable property or an incorporeal right in immovable property, notice shall also have been given to the registrar of deeds in whose deeds registry the property or right is registered, and

(b)the deputy-sheriff shall have taken possession of the writing or document evidencing the ownership of such property or right, or shall have certified that he has been unable, despite diligent search, to obtain possession of the writing or document;

(ii)the deputy-sheriff may upon exhibiting the original of the warrant of execution to the person having possession of property in which incorporeal rights exist, enter upon the premises where such property is and make an inventory and valuation of the right attached.

(9)Attachment of property subject to a lien shall be effected mutatis mutandis in accordance with the provisions of sub-paragraph (b) of sub-rule (8).

(10)Where property subject to a real right of any third person is sold in execution such sale shall be subject to the rights of such third person unless he otherwise agrees.

(11)

(a)Subject to any hypothec existing prior to the attachment, all writs of execution lodged with the deputy-sheriff before the day of the sale in execution shall rank pro rata in the distribution of proceeds of the goods sold in the order of preference referred to in paragraph (c) of sub-rule (14) of rule 46.

(b)If there should remain any surplus, the deputy-sheriff shall pay it over to the judgment debtor; and the deputy-sheriff shall make out and deliver to him an exact account, in writing of his costs and charges of the execution and sale, which shall be liable to taxation upon application by the judgment debtor, and if upon taxation any sum shall be disallowed, the deputy-sheriff shall refund such sum to the judgment debtor.

(12)

(a)Whenever it is brought to the knowledge of the sheriff that there are debts which are subject to attachment, and are owing or accruing from a third person to the judgment debtor, the sheriff may, if requested thereto by the judgment creditor, attach the same, and thereupon shall serve a notice on such third person, hereinafter called the garnishee, requiring payment by him to the sheriff of so much of the debt as may be sufficient to satisfy the writ, and the sheriff may, upon any such payment, give a receipt to the garnishee which shall be a discharge, pro tanto, of the debt attached.

(b)In the event of the garnishee refusing or neglecting to comply with any such notice, the sheriff shall forthwith notify the judgment creditor and the judgment creditor may call upon the garnishee to appear before the court to show cause why he should not pay to the sheriff the debt due, or so much thereof as may be sufficient to satisfy the writ, and if the garnishee does not dispute the debt due, or claimed to be due by him to the party against whom execution is issued, or he does not appear to answer to such notice, then the court may order execution to issue, and it may issue accordingly, without any previous writ or process, for the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the writ.

(c)If the garnishee disputes his liability in part, the court may order execution to issue in respect of so much as may be admitted, but if none be admitted then the court may order that any issue or question necessary for determining the garnishee's liability be tried or determined in any manner mutatis mutandis in which any issue or question in any action may be tried or determined, or the court may make any such other order in the premises as may be just.

(d)Nothing in these rules as to the attachment of debts in the hands of a garnishee shall affect any cession, preference, or retention claimed by any third person in respect of such debts.

(e)The costs connected with any application for the attachment of debts, and the proceedings arising from or incidental thereto, shall be in the discretion of the court.

(f)Where the sheriff is of opinion that applications to the court or orders with respect to a garnishee will probably cost more than the amount to be recovered thereunder, he may sell such debts, after attachment, by auction, in the same way as any other movable property, or may cede the same at the nominal amount thereof to the judgment creditor with his consent.

(g)Payment of the amount due under and in respect of any writ, and all costs and the like, incidental thereto, shall entitle the person paying to a withdrawal thereof.

(h)Whenever a court gives judgment for payment of a sum of money against a party (hereinafter called "the debtor") the court may forthwith investigate whether the debtor is able to satisfy the judgment and for that purpose may require the debtor's attendance to give evidence on oath, and to produce such documents as the court may direct, and allow the judgment creditor to adduce such evidence as the court may think fit.

(i)Whenever a return has been made to a writ of execution, that the officer charged with the execution has been unable to find sufficient property subject to attachment to satisfy the amount of the writ, or whenever a judgment debt remains wholly or in part unsatisfied after the expiration of twenty-one days from the date of the judgment, the judgment creditor may by notice call upon the judgment debtor to appear before the court on a day fixed by such notice, and to produce such documents as may reasonably be necessary, in order that the court may investigate his financial position. Any debtor who having been served with such notice, fails without good cause to appear, may be personally attached for contempt of court. Whenever the debtor appears pursuant to such notice the court may proceed as set forth in the preceding paragraph.

(j)Whenever the court is of opinion that a debtor is able to satisfy a debt by instalments out of his earnings, it may make an order for payment of such debt by instalments. Whenever an order has been made for payment by instalments and the debtor makes default in such payment, any salary, earnings or emoluments due or accruing to such debtor to the extent of the arrears may, without further notice to the debtor, but subject to the rights of the garnishee, be attached under the provisions of paragraph (a).

(k)Any writ issued for the attachment of salary earnings, or emoluments shall remain in force and may be executed periodically as such salary, earnings, or emoluments accrue to the debtor, until the same is satisfied.

[subrule (12) added by section 19(c) of Government Notice R235 of 1966]

46. Execution

Immovables

(1)A writ of execution against immovable property shall contain a full description of the nature and situation (including the address) of the immovable property to enable it to be traced and identified by the deputy-sheriff; and shall be accompanied by sufficient information to enable him to give effect to sub-rule (3) hereof.

(2)An attachment shall be made by the deputy-sheriff of the district in which the property is situate or by the deputy-sheriff of the district in which the office of the registrar of deeds or other officer charged with the registration of such property is situate, upon a writ as near as may be in accordance with Form 20 of the First Schedule.

(3)The mode of attachment of immovable property shall be by notice in writing by the deputy-sheriff served upon the owner thereof, and upon the registrar of deeds or other officer charged with the registration of such immovable property, and if the property is in the occupation of some person other than the owner, also upon such occupier. Any such notice as aforesaid shall be served by means of a registered letter, duly prepaid and posted addressed to the person intended to be served.

(4)After attachment, any sale in execution shall take place in the district in which the attached property is situate and be conducted by the deputy-sheriff of such district: Provided that the sheriff in the first instance and subject to the provisions of paragraph (b) of sub-rule (8) may on good cause shown authorize such sale to be conducted elsewhere and by another deputy-sheriff. Upon receipt of written instructions from the execution creditor to proceed with such sale, the deputy-sheriff shall ascertain and record what bonds or other encumbrances are registered against the property together with the names and addresses of the persons in whose favour such bonds and encumbrances are so registered and shall thereupon notify the execution creditor accordingly.

(5)No immovable property which is subject to any claim preferent to that of the execution creditor shall be sold in execution unless—

(a)the execution creditor has caused notice, in writing, of the intended sale to be served by registered post upon the preferent creditor, if his address is known and, if the property is rateable, upon the local authority concerned calling upon them to stipulate within ten days of a date to be stated a reasonable reserve price or to agree in writing to a sale without reserve; and has provided proof to the deputy-sheriff that the preferent creditor has so stipulated or agreed, or

(b)the deputy-sheriff is satisfied that it is impossible to notify any preferent creditor, in terms of this rule, of the proposed sale, or such creditor, having been notified, has failed or neglected to stipulate a reserve price or to agree in writing to a sale without reserve as provided for in paragraph (b) of this sub-rule within the time stated in such notice.

(6)The deputy-sheriff may by notice served upon any person require him to deliver up to him forthwith all documents in his possession or control relating to the debtor’s title to the said property.

(7)

(a)The deputy-sheriff shall appoint a day and place for the sale of such property, such day being, except by special leave of a magistrate, not less than one month after service of the notice of attachment.

(b)The execution creditor shall, after consultation with the deputy-sheriff, prepare a notice of sale containing a short description of the property, its situation and street number, if any, the time and place for the holding of the sale and the fact that the conditions may be inspected at the office of the deputy-sheriff, and he shall furnish the deputy-sheriff with as many copies of the notice as the latter may require.

(c)The deputy-sheriff shall indicate two suitable newspapers (whenever possible one in each of the official languages) circulating in the district in which the property is situated and require the execution creditor to publish the said notice once in each of the said newspapers not less than three days and not more than five days and in the Government Gazette not later than two weeks before the date appointed for the sale and to furnish him, not later than the day prior to the date of the sale, with one copy of each of the said newspapers and with the number of the Gazette in which the notice appeared.[paragraph (c) amended by section 15 of Government Notice R2004 of 1967]

(d)Not less than ten days prior to the date of the sale, the deputy-sheriff shall forward by registered post a copy of the notice of sale referred to in paragraph (b) above to every judgment creditor who had caused the said immovable property to be attached and to every mortgagee thereof whose address is known.

(e)Not less than ten days prior to the date of the sale, the deputy-sheriff shall affix one copy of the notice on the notice board of the magistrate’s court of the district in which the property is situate, or if the property be situated in the district in which the court out of which the writ is issued is situate, then on the notice board of such court, and one copy at or as near as may be to the place where the said sale is actually to take place.

(8)

(a)The conditions of sale shall, not less than twenty-eight days prior to the date of the sale, be prepared by the execution creditor as near as may be in accordance with Form 21 of the First Schedule, and the said conditions shall be submitted to the deputy-sheriff to settle them. The execution creditor shall thereafter supply the deputy-sheriff with two copies of the conditions of sale, one of which shall lie for inspection by interested parties at his office.

(b)Any interested party may, not less than seven days prior to the date of the sale, upon twenty-four hours’ notice to the execution creditor and the bondholders apply to the magistrate of the district in which the property is to be sold for any modification of the conditions of sale and the magistrate may make such order thereon, including an order as to costs, as to him may seem meet.

(9)The execution creditor may appoint an attorney to attend to the transfer of the property when sold in execution.

(10)Immovable property attached in execution shall be sold by the deputy-sheriff by public auction.

(11)If the purchaser fails to carry out any of his obligations under the conditions of sale, the sale may be cancelled by a judge summarily on the report of the deputy-sheriff after due notice to the purchaser, and the property may again be put up for sale; and the purchaser shall be responsible for any loss sustained by reason of his default, which loss may, on the application of any aggrieved creditor whose name appears on the deputy-sheriff’s distribution account, be recovered from him under judgment of the judge pronounced summarily on a written report by the deputy-sheriff, after such purchaser shall have received notice in writing that such report will be laid before the judge for such purpose; and, if he is already in possession of the property, the deputy-sheriff may, on seven days’ notice, apply to a judge for an order ejecting him or any person claiming to hold under him therefrom.

(12)Subject to the provisions of sub-rule (5), the sale shall be without reserve and upon the conditions stipulated under sub-rule (8), and the property shall be sold to the highest bidder.

(13)The deputy-sheriff shall give transfer to the purchaser against payment of the purchase money and upon performance of the conditions of sale and may for that purpose do anything necessary to effect registration of transfer, and anything so done by him shall be as valid and effectual as if he were the owner of the property.

(14)

(a)The deputy-sheriff shall not pay out to the creditor the purchase money until transfer has been given to the purchaser, but upon receipt thereof he shall forthwith pay into the deposit account of the magistrate of the district all moneys received in respect of the purchase price.

(b)The deputy-sheriff shall as soon as possible after the sale prepare in order of preference, as hereinafter provided, a plan of distribution of the proceeds and shall forward a copy of such plan to the registrar of the court. Immediately thereafter the deputy-sheriff shall give notice by registered post to all parties who have lodged writs and to the execution debtor that the plan will lie for inspection for two weeks from a date mentioned at his office and at the office of the registrar, and unless such parties shall signify, in writing, their agreement to the plan such plan shall so lie for inspection.

(c)After deduction from the proceeds of the costs and charges of execution, the following shall be the order of preference:

(i)the claims of preferent creditors ranking in priority in their legal order of preference; and thereafter

(ii)the claims of other creditors whose writs have been lodged with the deputy-sheriff in the order of preference appearing from sections ninety-six and ninety-nine to one hundred and three (inclusive) of the Insolvency Act, 1936 (Act No. 24 of 1936) as amended.

(d)Any interested person objecting to such plan shall, within four days of the expiry of the period referred to in paragraph (b) of this sub-rule give notice in writing to the deputy-sheriff and all other interested persons of the particulars of his objection and shall bring such objection before a judge for review on ten days’ notice to the deputy-sheriff and the said persons.

(e)The judge on review shall hear and determine the matter in dispute and may amend or confirm the plan of distribution or may make such order including an order as to costs as to him seems meet.

(f)If—

(i)no objection be lodged to such plan, or

(ii)the interested parties signify their concurrence therein, or

(iii)the plan is confirmed or amended on review,

the magistrate shall, on production of a certificate from the conveyancer that transfer has been given to the purchaser and on the request of the deputy-sheriff, pay out in accordance with the plan of distribution. If the address of a payee is not known the amount due to him shall be paid into the Guardian’s Fund established under any law relating to the Administration of Estates.

[rule 46 amended by section 15 of Government Notice R2004 of 1967]

47. Security for costs

(1)A party entitled and desiring to demand security for costs from another shall, as soon as practicable after the commencement of proceedings, deliver a notice setting forth the grounds upon which such security is claimed, and the amount demanded.

(2)If the amount of security only is contested the registrar shall determine the amount to be given and his decision shall be final.

(3)If the party from whom security is demanded contests his liability to give security or if he fails or refuses to furnish security in the amount demanded or the amount fixed by the registrar within ten days of the demand or the registrar’s decision, the other party may apply to court on notice for an order that such security be given and that the proceedings be stayed until such order is complied with.

(4)The court may, if security be not given within a reasonable time, dismiss any proceedings instituted or strike out any pleadings filed by the party in default, or make such other order as to it may seem meet.

(5)Any security for costs shall, unless the court otherwise directs, or the parties otherwise agree, be given in the form, amount and manner directed by the registrar.

(6)The registrar may, upon the application of the party in whose favour security is to be provided and on notice to interested parties, increase the amount thereof if he is satisfied that the amount originally furnished is no longer sufficient; and his decision shall be final.

47A.

Notwithstanding anything contained in these rules a person to whom legal aid is rendered by a statutorily established legal aid board is not compelled to give security for the costs of the opposing party, unless the court directs otherwise.[Rule 47A inserted by Government Notice R2477 of 1976]

48. Review of taxation

(1)Any party dissatisfied with the ruling of the taxing master as to any item or part of an item which was objected to or disallowed mero motu by the taxing master may within fourteen days of the allocator require the taxing master to state a case for the decision of a judge, which case shall set out each item or part of an item together with the grounds of objection advanced at the taxation and shall embody any relevant findings of facts by the taxing master: Provided that, save with the consent of the taxing master, no case shall be stated where the amount, or the total of the amounts, which the taxing master has disallowed or allowed, as the case may be, and which the party dissatisfied seeks to have allowed or disallowed respectively, is less than R10.[subrule (1) amended by section 20 of Government Notice R235 of 1966 and by section 16 of Government Notice R2004 of 1967]

(2)The taxing master shall supply a copy of the case to each of the parties, who may within ten days of the receipt of the copy submit contentions in writing thereon, including grounds of objection not advanced at the taxation, in respect of any item or part of an item which was objected to before the taxing master or disallowed mero motu by the taxing master. Thereafter the taxing master shall frame his report and shall supply a copy thereof to each of the parties who may within seven days of the receipt thereof submit contentions in writing thereon to the taxing master who shall forthwith lay the case together with the contentions of the parties thereon, his report and any contentions thereon before a judge, who may then decide the matter upon the case and contentions so submitted, together with any further information which he may require from the taxing master, or may decide it after hearing, if he deems fit, the parties or their advocates or attorneys in his chambers; or he may refer the case for decision to the court. Any further information to be supplied by the taxing master to the judge shall be supplied by him to the parties who may within seven days of the receipt thereof submit contentions in writing thereon to the taxing master who shall forthwith lay such further information together with any contentions of the parties thereon, before the judge.[subrule (2) substituted by section 17 of Government Notice R2004 of 1967]

(3)The judge or court so deciding may make such order as to the costs of the case as he or it may deem fit, including an order that the unsuccessful party shall pay to the opposing party a sum fixed by the judge or court as and for costs.

49. Appeals to the full court

(1)

(a)When leave to appeal is required, it may on a statement of the grounds therefor be requested at the time of the judgment or order.

(b)When leave to appeal is required and it has not been requested at the time of the judgment or order, application for such leave shall be made and the grounds therefor shall be furnished within 14 days after the date of the order appealed against: Provided that when the reasons or the full reasons for the court's order are given on a later date than the date of the order, such application may be made within 14 days after such later date: Provided further that the court may, upon good cause shown, extend the mentioned periods of 14 days.

(c)When in giving an order the court declares that the reason for the order will be furnished to any of the parties on application, such application shall be delivered within seven days after the date of the order.

(d)The application mentioned in paragraph (b) above shall be set down on a date arranged by the registrar who shall give written notice thereof to the parties.

(e)Such application shall be heard by the judge who presided at the trial or, if he is not available, by another judge of the division of which the said judge, when he so presided, was a member.

(2)If leave to appeal to the full court is granted the notice of appeal shall be delivered to all the parties within 21 days after the date upon which leave was granted or within such longer period as may upon good cause shown be permitted.

(3)The notice of appeal shall state whether the whole or part only of the judgment or order is appealed against and if only part of such judgment or order is appealed against, it shall state which part and shall further specify the finding of fact and/or ruling of law appealed against and the grounds upon which the appeal is founded.

(4)A notice of cross-appeal shall be delivered within eight days after the delivery of the notice of appeal or within such longer period as may upon good cause shown be permitted and the provisions of these rules with regard to appeals shall apply mutatis mutandis to cross-appeals.

(5)In the case of an appeal against the judgment or order of the court of the Witwatersrand Local Division, the judge president of the Transvaal Provincial Division shall determine whether the appeal should be heard by the full court of the said local division. As soon as possible after receipt of the notice of appeal or cross-appeal, if any, the registrar of the local division shall ascertain from the judge president his direction in the particular case. If the judge president has directed that the appeal be heard by the full court of the Witwatersrand Local Division, the said registrar shall immediately inform the parties of the direction. If not so directed by the judge president, the said registrar shall inform the registrar of the provincial division as well as the parties accordingly.

(6)

(a)Within 60 days after delivery of a notice of appeal, an appellant shall make written application to the registrar of the division where the appeal is to be heard for a date for the hearing of such appeal and shall at the same time furnish him with the name and address of every other party to the appeal and if the appellant fails to do so a respondent may within seven days after the expiry of the said period of 60 days, as in the case of the appellant, apply for the set down of the appeal or cross-appeal which he may have noted. If no such application is made by either party the appeal and cross-appeal shall be deemed to have lapsed: Provided that a respondent shall have the right to apply for an order for his wasted costs.

(b)The court to which the appeal is made may, on application of the appellant or cross-appellant, and upon good cause shown, reinstate an appeal or cross-appeal which has lapsed.

(7)

(a)At the same time as the application for a date for the hearing of an appeal in terms of subrule (6) (a) of this rule the appellant shall file with the registrar three copies of the record on appeal and shall furnish two copies to the respondent. The registrar shall further be provided with a complete index and copies of all papers, documents and exhibits in the case, except formal and immaterial documents: Provided that such omissions shall be referred to in the said index. If the necessary copies of the record are not ready at that stage, the registrar may accept and application for a date of hearing without the necessary copies if—

(i)the application is accompanied by a written agreement between the parties that the copies of the record may be handed in late; or

(ii)failing such agreement, the appellant delivers an application together with an affidavit in which the reasons for his omission to hand in the copies of the record in time are set out and in which is indicated that an application for condonation of the omission will be made at the hearing of the appeal.

(b)The two copies of the record to be served on the respondent shall be served at the same time as the filing of the aforementioned three copies with the registrar.

(c)After the delivery of the copies of the record, the registrar of the court that is to hear the appeal or cross-appeal shall assign a date for the hearing of the appeal or for the application for condonation and appeal, as the case may be, and shall set the apeal down for hearing on the said date and shall give the parties at least 21 days notice in writing of the date so assigned.

(d)If the party who applied for a date for the hearing of the appeal neglects or fails to file or deliver the said copies of the record within 40 days after the acceptance by the registrar of the application for a date of hearing in terms of subrule (7) (a), the other party may approach the court for an order that the application has lapsed.

(8)

(a)Copies referred to in subrule (7) shall be clearly typed on A4 standard paper in double spacing, paginated and bound and in addition every tenth line on every page shall be numbered.

(b)The left side of each page shall be provided with a margin of at least 35 mm that shall be left clear, except in the case of exhibits that are duplicated by photoprinting, where it is impossible to obtain a margin with the said dimensions. Where the margin of the said exhibits is so small that parts of the documents will be obscured by binding, such documents shall be mounted on sheets of A4 paper and folded back to ensure that the prescribed margin is provided.

(9)By consent of the parties, exhibits and annexures having no bearing on the point at issue in the appeal and immaterial portions of lengthy documents may be omitted. Such consent, setting out what documents or parts thereof have been omitted, shall be signed by rhe parties and shall be included in the record on appeal. The court hearing the appeal may order that the whole of the record be placed before it.

(10)When the decision of an appeal turns exclusively on a point of law, the parties may agree to submit such appeal to the court in the form of a special case, in which event copies shall be submitted of only such portions of the record as amy be necessary for a proper decision of the appeal: Provided that the court hearing the appeal may require that the whole of the record of the case be placed before it.

(11)Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs.

(12)If the order referred to in subrule (11) is carried into execution by order of the court the Party requesting such execution shall, unless the court otherwise orders, before such execution enter into such security as the parties may agree or the registrar may decide for the restitution of any sum obtained upon such execution. The registrar's decision shall be final.

(13)Unless the respondent waives his right to security, the appellant shall, before lodging copies of the record on appeal with the registrar, enter into good and sufficient security for the respondent's costs of appeal. In the event of failure by the parties to agree on the amount of security, the registrar shall fix the amount and his decision shall be final.

(14)The provisions of subrules (12) and (13) shall not be applicable to the Government of the Republic of South Africa or any provincial administration.

(15)Not later than 14 days before the appeal is heard the appellant shall deliver a concise and succinct statement of the main points (without elaboration) which he intends to argue on appeal as well as a list of the authorities to be tendered in support of each point and not later than seven days before the appeal is heard the respondent shall deliver a similar statement. Three additional copies shall in each case be filed with the registrar.

(16)A notice of appeal in terms of section 76 of the Patents Act, 1978 (Act 57 of 1978), or section 63 of the Trade Marks Act, 1963 (Act 62 of 1963), may be served on the patent agent referred to in the Patents Act, 1978, or the agent referred to in section 8 of the Trade Marks Act, 1963, who represented the respondent in the proceedings in respect of which an appeal is noted.

(17)In the case of appeals to the full court in terms of the provisions of a statute in which the procedure to be followed is laid down, this rule is applicable as far as provision is made for matters not regulated by the statute.

[rule 49 amended by section 21 of Government Notice R235 of 1966, by section 18 of Government Notice R2004 of 1967, by section 17 of Government Notice R2021 of 1971 and by Government Notice R1816 of 1976, and substituted by section 1 of Government Notice R645 of 1983, as amended by paragraph (d) of Government Notice R841 of 1983]

49A.

(1)

(a)In the case of an appeal in terms of section 315 (3) of the Criminal Procedure Act, 1977 (Act 51 of 1977), to the full court, the registrar shall, subject to the provisions of section 316 (5) (b) of the said Act, prepare three additional copies of the case record or parts thereof, as the case may be, and shall furnish the State with the amount required and, in the case of the accused, with the amount required, on payment of the prescribed tariff: Provided that if the registrar is of the opinion that the accused is too poor to pay the prescribed tariff, such copies may be furnished without payment of any fees, in which case the registrar's decision shall be final.

(b)In the case of an appeal against the judgment or order of the court of the Witwatersrand Local Division, the judge president of the Transvaal Provincial Division shall determine whether the appeal should be heard by the full court of the said local division. As soon as possible after it has been directed that a full court should hear the appeal the registrar of the said local division shall ascertain from the judge president his direction.

(c)If the judge president has directed that the appeal should be heard by the full court of the Witwatersrand Local Division the registrar of the said local division shall immediately inform the attorney-general and the accused or his legal representative. If the judge president has not so directed the registrar shall inform the registrar of the provincial division as well as the attorney-general and the accused or his legal representative accordingly.

(2)The appeal shall be set down by the attorney-general on a date assigned by him with written notice to the registrar of the where the appeal is to be heard and the accused or his legal representative.

(3)Not later than 20 days before the appeal is heard the appellant shall deliver one copy of a concise and succinct statement of the main points (without elaboration) which he intends to argue on appeal as well as a list of the authorities to be tendered in support of each point to the attorney-general and 4 copies to the registrar.

(4)Not later than seven days before the appeal is heard the attorney-general shall deliver one copy of his heads of argument as well as a list of the authorities to be tendered in support of each point to the appellant and four copies to the registrar.

(5)Where too short notice of the hearing of an appeal is given and where it was impossible for the appellant to deliver his heads of argumentat least 20 days before the date of hearing of the appeal, he shall deliver it as soon afterwards as possible.

(6)The attorney-general shall furnish the registrar with four copies of the notice of set down and the registrar shall then attach copies to the case records which are supplied to the judges.

(7)The ultimate responsibility for ensuring that all copies of the record on appeal and all the necessary exhibits are in all respects properly before the court shall rest on the appellant or his attorney.

[rule 49A inserted by section 2 of Government Notice R645 of 1983, as amended by paragraph (f) of Government Notice R841 of 1983]

50. Civil appeals from magistrates’ courts

(1)An appeal to the court against the decision of a magistrate in a civil matter shall be prosecuted within six weeks after the noting of such appeal, and unless so prosecuted it shall be deemed to have lapsed.

(2)The prosecution of an appeal shall ipso facto operate as the prosecution of any cross-appeal which has been duly noted.

(3)If a cross-appeal has been noted, and the appeal lapses, the cross-appeal shall also lapse, unless application for a date of hearing for such cross-appeal is made to the registrar within three weeks of the date of the lapse of such appeal.

(4)The appellant may, within four weeks after noting the appeal, apply in writing to the registrar on notice to all other parties for a date of hearing. If he fails to do so, the respondent may at any time before the expiry of the aforesaid period of six weeks apply for a date of hearing in like manner. Upon such application, an appeal or cross appeal shall be deemed to have been duly prosecuted.

(5)Upon receipt of such application for a date of hearing for an appeal or a cross-appeal, the registrar shall forthwith assign a date of hearing thereto, such day to be not less than six weeks from the date of such receipt (unless all parties thereto consent in writing to a shorter period). The registrar shall forthwith give the applicant for such date written notice of the date so assigned by him, whereupon the applicant shall, without delay, deliver a notice of set down and notify the clerk of the court in writing accordingly.

(6)A notice of set down of a pending appeal shall ipso facto operate as a set down of any cross-appeal and vice versa.

(7)

(a)Upon receipt of such notice of the date assigned for the hearing of an appeal, the party who applied for the same shall prepare and lodge with the registrar not less than fourteen days prior to the said date two copies of the record, provided that if such appeal is to be heard by more than two judges, the registrar may call for such additional copies of the record as are required.

(b)Such copies shall be clearly typed on foolscap paper in double spacing, and the pages thereof shall be consecutively numbered and as from second January 1968, such copies shall be so typed on A.4 standard paper referred to in rule 62(2) or on foolscap paper and after expiration of a period of twelve months from the aforesaid date on such A.4 standard paper only. In addition every tenth line on each page shall be numbered.[paragraph (b) amended by section 19 of Government Notice R2004 of 1967]

(c)The record shall contain a correct and complete copy of the pleadings, evidence and all other documents necessary for the hearing of the appeal, together with an index thereof, and the copies lodged with the registrar shall be certified as correct by the attorney or party lodging the same.

(d)The party lodging the copies of the record shall not less than fourteen days prior to the date of the hearing of the appeal also furnish each of the other parties with two copies thereof, certified as aforesaid.[paragraph (d) amended by section 20 of Government Notice R2004 of 1967 and by section 19 of Government Notice R2021 of 1971]

(8)

(a)Save insofar as these affect the merits of an appeal, subpoenas, notices of trial, consents to postponements, schedules of documents, notices to produce or inspect, and other documents of a formal nature shall be omitted from the copies of the record prepared in terms of the aforegoing sub-rule. A list thereof shall be included in the record.

(b)By consent of parties, exhibits having no bearing on a point at issue in an appeal and immaterial portions of lengthy documents may likewise be omitted from such copies—in which event a written consent, setting forth what documents, or portions thereof, as the case may be, have been omitted, and signed by or on behalf of the parties shall be filed with the registrar when such copies are lodged, provided that the court hearing the appeal may at all times refer to the original record and take cognisance of all matters appearing therein.

51. Criminal appeals from magistrates' courts

(1)An appeal by a convicted person against a conviction, sentence or order made by a magistrate’s court in a criminal matter in which the prosecution has been at the public instance, or an appeal by an attorney-general or other prosecutor against a dismissal of a summons or charge or other decision of a magistrate’s court in such a matter, shall be set down by the attorney-general or registrar on notice to the appellant or his attorney for hearing on such day in term time or vacation as the Judge-President may appoint for such matters.

(2)An appeal against a conviction, sentence or order made by a magistrate’s court in any other criminal matter shall be set down for hearing by the registrar on notice to all parties in accordance with such directions as he may receive from the Judge-President from time to time.

(3)The ultimate responsibility for ensuring that all copies of the record on appeal are in all respects properly before the court shall rest on the appellant or his attorney.

52. Criminal appeals to the Appellate Division

(1)Whenever—

(a)an accused has been, granted leave to appeal in terms of section three hundred and sixty-three of the Criminal Procedure Act, 1955 (Act No. 56 of 1955); or

(b)an accused has noted an appeal in terms of section three hundred and sixty-five of the said Act; or

(c)a court has reserved a question of law arising on the trial of an accused in terms of section three hundred and sixty-six of the said Act—

(i)the registrar of the court which tried the accused shall lodge with the registrar of the Appellate Division six copies of the record (one of which shall be certified by the first-named registrar) of the proceedings in the trial court and deliver such number of copies to the State as may be considered necessary: Provided that instead of the whole record, with the consent of the accused and the State, copies (one of which shall be certified by the first-named registrar) may be transmitted of such parts of the record as may be agreed upon by the accused and the State to be sufficient in which event the Appellate Division may nevertheless call for copies of the whole record.[subparagraph (i) amended by section 19 of Government Notice R2021 of 1971]

(ii)The accused shall be entitled, on payment of the prescribed fees, to obtain from the registrar of the court which tried him such number of copies of the record or parts of the record (as the case may be) as may be necessary for his purpose: Provided that if he is unable by reason of poverty to pay the prescribed fees he shall be entitled to obtain the same without payment of any fees.

(2)Any question arising as to the accused’s inability to pay the prescribed fees shall be decided by the registrar of the court which tried the accused. The registrar’s decision shall be final.

(3)The words “the registrar of the court which tried the accused” shall mean, where the trial court was a Circuit Local Division, the registrar of the division of the Supreme Court in whose custody the records of the Circuit Local Division concerned are lodged.

(4)If leave to appeal in a criminal case is granted by any division of the Supreme Court the registrar of that division shall without delay notify the registrar of the Appellate Division of that fact.

53. Reviews

(1)Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected—

(a)calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside, and

(b)calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to despatch, within fourteen days of the receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside together with such reasons as he is by law required or desires to give or make, and to notify the applicant that he has done so.

(2)The notice of motion shall set out the decision or proceedings sought to be reviewed and shall be supported by affidavit setting out the grounds and the facts and circumstances upon which applicant relies to have the decision or proceedings set aside or corrected.

(3)The registrar shall make available to the applicant the record despatched to him as aforesaid upon such terms as the registrar thinks appropriate to ensure its safety, and the applicant shall thereupon cause copies of such portions of the record as may be necessary for the purposes of the review to be made and shall furnish the registrar with two copies and each of the other parties with one copy thereof, in each case certified by the applicant as true copies. The costs of transcription, if any, shall be borne by the applicant and shall be costs in the cause.

(4)The applicant may within seven days after the registrar has made the record available to him, by notice and accompanying affidavit amend, add to or vary the terms of his notice of motion and supplement the supporting affidavit, and shall deliver the said notice and affidavit.

(5)Should the presiding officer, chairman, or officer, as the case may be, or any party affected desire to oppose the granting of the order prayed in the notice of motion, he shall—

(a)within fourteen days of the receipt by him of the notice of motion, or any amendment thereof deliver notice to the applicant that he intends so to oppose and shall in such notice appoint an address within five miles of the office of the registrar at which he will accept notice and service of ail process in such proceedings, and

(b)within twenty-one days of the expiry of the time referred to in sub-rule (4) hereof, deliver any affidavits he may desire in answer to the allegations made by the applicant.

(6)The applicant shall have the rights and obligations in regard to replying affidavits set out in rule 6.

(7)The provisions of rule 6 as to set down of applications shall mutatis mutandis apply to the set down of review proceedings.

54. Criminal proceedings—Provincial and local divisions

(1)The process for summoning an accused to answer any indictment shall be by writ sued out by the chief clerk to the Attorney-General who presents the indictment, or in the case of a private prosecution by the prosecutor or his attorney, and shall be directed to the deputy-sheriff: Provided that in the case of the Witwatersrand Local Division the writ may be sued out of the office of the registrar of that Division by the Deputy Attorney-General, Johannesburg.[subrule (1) amended by section 2(a) of Government Notice R480 of 1973]

(2)When any person committed for sentence under the provisions of section seventy-five of the Criminal Procedure Act, 1955 (Act No. 56 of 1955), is indicted before a superior court he may be brought up for sentence at any sitting for criminal business of the court before which he is indicted.

(3)The attorney-general or other prosecutor or his attorney shall endorse on, or annex to, every indictment and every copy of any indictment delivered to the deputy-sheriff for service thereof, a notice of trial, which notice shall specify the court before which, and the particular session and time when, he will bring the accused to trial on the said indictment.

(4)The attorney-general or other prosecutor or his attorney shall deliver to the deputy-sheriff for service the writ, a copy of the indictment and notice of trial or, if there are more than one accused, as many writs and copies of the indictment and notice of trial as there are accused. In the case of a private prosecution the prosecutor or his attorney shall at the same time hand to the deputy-sheriff his lawful costs and charges for serving the same.

(5)The subpoena or process for procuring the attendance of any person before a superior court (other than a Circuit Court) to give evidence in any criminal case or to produce any books, documents or things, shall be sued out of the office of the registrar of that court, by the chief clerk to the attorney-general (or where the prosecution is at the instance of a private party, by himself or his attorney); and the same shall be delivered to the deputy-sheriff, at his office, for service thereof, together with so many copies of the subpoena or process as there are persons to be served. In the case of the Witwatersrand Local Division, the process may also be sued out by the Deputy Attorney-General, Johannesburg and delivered to the deputy sheriff concerned.[subrule (5) amended by section 2(b) of Government Notice R480 of 1973]

(6)The subpoena shall be served upon the witness (a) personally, or (b) at his residence or place of business or employment by delivering it to some person thereat who is apparently not less than sixteen years of age and apparently residing or employed thereat.

(7)The person serving the subpoena shall, if required by. the person upon whom it was served, exhibit to him the original.

(8)If the person to be served, with a subpoena keeps his residence or place of business closed so as to prevent the service of the subpoena it shall be sufficient service to affix a copy thereof to the outer or principal door of such residence or place of business.

(9)When a court imposes upon any person whatsoever a line for contempt of court for default in appearance or otherwise, and such fine is not duly paid, the registrar of the court shall furnish the deputy-sheriff with particulars of such fine and deliver to him a completed warrant. The deputy-sheriff, immediately on such warrant being delivered to him, shall execute it.

(10)An application under section one hundred and fifty-one of the Criminal Procedure Act, 1955 (Act No. 56 of 1955) to change the place of trial in criminal proceedings may be made to the court, upon notice, by or on behalf of the Attorney-General or the accused. The court may thereupon make such order thereon as to it seems meet.

55. Criminal proceedings—Circuit Court

(1)The process of a Circuit Court for any district for summoning any person, either as an accused or as a witness in any criminal case before such court, may be sued out at any time, whether the date for holding such court shall have been appointed or not. It may be issued by the registrar of the Provincial Division or of the Circuit Court or when the latter is not in the place where the court is to be held then by the clerk of the magistrate’s court of the district or by the clerk to any judge in that court: Provided that the process for summoning any person required by the Attorney-General or his deputy as a witness in a criminal case in such court need not be endorsed or formally sued out by or on behalf of the Attorney-General.

(2)The process of the Circuit Court for any district for arresting and holding to bail any person in order to compel his appearance before such court shall be issued by the magistrate for such district, or by any judge.

(3)All process of the Circuit Court shall be dated on the day on which it is issued, shall be signed by the officer issuing it, shall be endorsed by the person suing out the same and shall be directed to the deputy-sheriff.[subrule (3) amended by section 22 of Government Notice R2004 of 1967]

(4)The registrar of every Circuit Court shall, on the closing of the same, cause to be transmitted to the sheriff a list of all warrants of execution in criminal cases which have been issued by him.

(5)In all cases wherein process is required for the execution of any sentence, judgment, or order of any Circuit Court in a criminal case, after the records thereof have been deposited in the office of the registrar of the Provincial Division, the process of that division for the execution of any such sentence, judgment or order may be issued to the party requiring the execution of the same.

(6)When a Circuit Court imposes upon any party whatsoever a fine for contempt of court, for default of appearance or otherwise, and such fine is not duly paid, the registrar of the Circuit Court shall furnish to the deputy-sheriff the particulars of such fine, and deliver to him a warrant in respect thereof.

(7)The registrar of every Circuit Court shall, immediately upon the closing of the court in each circuit town, make out and transmit to the registrar of the Provincial Division a return showing all the fines which have, during the sitting of the court in that town, been imposed by the said court, specifying therein the names of the parties, the amount of the fine, the date when imposed, and the date when a warrant was delivered to the deputy-sheriff for its levy, the extent, if any, to which the fine was remitted, and whether it was paid without issue of a warrant.

(8)Whenever a Circuit Court district comprises more than one magisterial district, the clerk of the magistrate’s court of each such magisterial district shall, within the limits of his district, perform the duties devolving on clerks of magistrates under these rules.

56. Criminal proceedings—General

(1)Any process or document referred to in rules 54 and 55 may be served by a member of a police force referred to in sub-section (4) of section three hundred and seventy-seven of the Criminal Procedure Act, 1955 (Act No. 56 of 1955).

(2)The provisions of sub-rules (16)-(19) and (21) of rule 39 shall apply mutatis mutandis to all proceedings in criminal cases.

57. De lunatico inquirendo, appointment of curators in respect of persons under disability and release from curatorship

(1)Any person desirous of making application to the court for an order declaring another person (hereinafter referred to as “the patient”) to be of unsound mind and as such incapable of managing his affairs, and appointing a curator to the person or property of such patient shall in the first instance apply to the court for the appointment of a curator ad litem to such patient.

(2)Such application shall be brought ex parte and shall set forth fully—

(a)the grounds upon which the applicant claims locus standi to make such application;

(b)the grounds upon which the court is alleged to have jurisdiction;

(c)the patient’s age and sex, full particulars of his means, and information as to his general state of physical health;

(d)the relationship (if any) between the patient and the applicant, and the duration and intimacy of their association (if any);

(e)the facts and circumstances relied on to show that the patient is of unsound mind and incapable of managing his affairs;

(f)the name, occupation and address of the respective persons suggested for appointment by the court as curator ad litem, and subsequently as curator to the patient’s person or property, and a statement that these persons have been approached and have intimated that, if appointed, they would be able and willing to act in these respective capacities.

(3)The application shall, as far as possible, be supported by—

(a)an affidavit by at least one person to whom the patient is well known and containing such facts and information as are within the deponent’s own knowledge concerning the patient’s mental condition. If such person is related to the patient, or has any personal interest in the terms of any order sought, full details of such relationship or interest, as the case may be, shall be set forth in his affidavit; and

(b)affidavits by at least two medical practitioners, one of whom shall, where practicable, be an alienist, who have conducted recent examinations of the patient with a view to ascertaining and reporting upon his mental condition and stating all such facts as were observed by them at such examinations in regard to such condition, the opinions found by them in regard to the nature, extent and probable duration of any mental disorder or defect observed and their reasons for the same and whether the patient is in their opinion incapable of managing his affairs. Such medical practitioners shall, as far as possible, be persons unrelated to the patient, and without personal interest in the terms of any order sought.

(4)Upon the hearing of the application referred to in sub-rule (I), the court may appoint the persons suggested or any other suitable person as curator ad litem, or may dismiss the application or make such further or other order thereon as to it may seem meet and in particular on cause shown, and by reason of urgency, special circumstances or otherwise, dispense with any of the requirements of this rule.

(5)Upon his appointment the curator ad litem (who shall if practicable be an advocate, or failing such, an attorney), shall without delay interview the patient, and shall also inform him of the purpose and nature of the application unless after consulting a medical practitioner referred to in paragraph (b) of sub-rule (3) he is satisfied that this would be detrimental to the patient’s health. He shall further make such enquiries as the case appears to require and thereafter prepare and file with the registrar his report on the matter to the court, at the same time furnishing the applicant with a copy thereof. In his report the curator ad litem shall set forth such further facts (if any) as he has ascertained in regard to the patient’s mental condition, means and circumstances and he shall draw attention to any consideration which in his view might influence the court in regard to the terms of any order sought.

(6)Upon receipt of the said report the applicant shall submit the same, together with copies of the documents referred to in sub-rules (2) and (3) to the master of the Supreme Court having jurisdiction for consideration and report to the court.

(7)In his report the master shall, as far as he is able, comment upon the patient’s means and general circumstances, and the suitability or otherwise of the person suggested for appointment as curator to the person or property of the patient, and he shall further make such recommendations as to the furnishing of security and rendering of accounts by, and the powers to be conferred on, such curator as the facts of the case appear to him to require. The curator ad litem shall be furnished with a copy of the said report.

(8)After the receipt of the report of the master, the applicant may, on notice to the curator ad litem (who shall if he thinks fit inform the patient thereof) place the matter on the roll for hearing on the same papers for an order declaring the patient to be of unsound mind and as such incapable of managing his affairs and for the appointment of the person suggested as curator to the person or property of the patient or to both.

(9)At such hearing the court may require the attendance of the applicant, the patient, and such other persons as it may think fit, to give such evidence viva voce or furnish such information as the court may require.

(10)Upon consideration of the application, the reports of the curator ad litem and of the master and such further information or evidence (if any) as has been adduced viva voce, or otherwise, the court may direct service of the application on the patient or may declare the patient to be of unsound mind and incapable of managing his own affairs and appoint a suitable person as curator to his person or property or both on such terms as to it may seem meet, or it may dismiss the application or generally make such order (including an order that the costs of such proceedings be defrayed from the assets of the patient) as to it may seem meet.

(11)Different persons may, subject to due compliance with the requirements of this rule in regard to each, be suggested and separately appointed as curator to the person and curator to the property of any person found to be of unsound mind and incapable of managing his own affairs.

(12)The provisions of sub-rules (1), (2) and (4) to (10) inclusive shall in so far as the same are applicable thereto, also apply mutatis mutandis to any application for the appointment by the court of a curator under the provisions of section sixty-two of the Mental Disorders Act, 1916 (Act No. 38 of 1916), to the property of a person detained as or declared mentally disordered or defective, or detained as a mentally disordered or defective prisoner or as a State President’s decision patient and who is incapable of managing his affairs.

(13)Save to such extent as the court may on application otherwise direct, the provisions of sub-rules (1) to (11) shall, mutatis mutandis, apply to every application for the appointment of a curator bonis to any person on the ground that he is by reason of some disability, mental or physical, incapable of managing his affairs.

(14)Every person who has been declared by a court to be of unsound mind and incapable of managing his affairs, and to whose person or property a curator has been appointed and who intends applying to court for a declaration that he is no longer of unsound mind and incapable of managing his affairs or for release from such curatorship, as the case may be, shall give fourteen days’ notice of such application to such curator and to the master.

(15)Upon receipt of such notice and after due consideration of the application and such information as is available to him, the master shall, without delay, report thereon to the court, at the same time commenting upon any aspect of the matter to which, in his view, its attention should be drawn.

(16)The provisions of sub-rules (14) and (15) hereof shall also apply to any application for release from curatorship by a person who has been discharged under section fifty-nine of the Mental Disorders Act, 1916 (Act No. 38 of 1916), from detention in an institution, but in respect of whom a curator bonis had been appointed by the court under section sixty-two of the said Act.

(17)Upon the hearing of any application referred to in sub-rules (14) and (16) hereof the court may declare the applicant as being no longer of unsound mind and as being capable of managing his affairs, order his release from such curatorship, or dismiss the application, or mero motu appoint a curator ad litem to make such enquiries as it considers desirable and to report to it, or call for such further evidence as it considers desirable and postpone the further hearing of the matter to permit of the production of such report, affidavit or evidence, as the case may be, or postpone the matter sine die and make such order as to costs or otherwise as to it may seem meet.

58. Interpleader

(1)Where any person, in this rule called “the applicant”, alleges that he is under any liability in respect of which he is or expects to be sued by two or more parties: making adverse claims, in this rule referred to as “the claimants”, in respect thereto, the applicant may deliver a notice, in terms of this rule called an “interpleader notice”, to the claimants. In regard to conflicting claims with respect to property attached in execution, the deputy-sheriff shall have the rights of an applicant and an execution creditor shall have the rights of a claimant.

(2)

(a)Where the claims relate to money the applicant shall be required, on delivering the notice mentioned in sub-rule (1) hereof, to pay the money to the registrar who shall hold it until the conflicting claims have been decided.

(b)Where the claims relate to a thing capable of delivery the applicant shall tender the subject matter to the registrar when delivering the interpleader notice or take such steps to secure the availability of the thing in question as the registrar may direct.

(c)Where the conflicting claims relate to immovable property the applicant shall place the title deeds thereof if available to him, in the possession of the registrar when delivering the interpleader notice and shall at the same time hand to the registrar an undertaking to sign all documents necessary to effect transfer of such immovable property in accordance with any order which the court may make or any agreement of the claimants.

(3)the interpleader notice shall—

(a)state the nature of the liability, property or claim which is the subject matter of the dispute;

(b)call upon the claimants within the time stated in the notice, not being less than fourteen days from the date of service thereof, to deliver particulars of their claims; and

(c)state that upon a further date, not being less than fourteen days from the date specified in the notice for the delivery of claims, the applicant will apply to court for its decision as to his liability or the validity of the respective claims.

(4)There shall be delivered together with the interpleader notice an affidavit by the applicant stating that—

(a)he claims no interest in the subject matter in dispute other than for charges and costs;

(b)he does not collude with any of the claimants;

(c)he is willing to deal with or act in regard to the subject matter of the dispute as the court may direct.

(5)If a claimant to whom an interpleader notice and affidavit have been duly delivered fails to deliver particulars of his claim within the time stated or, having delivered such particulars, fails to appear in court in support of his claim, the court may make an order declaring him and all persons claiming under him barred as against the applicant from making any claim on the subject matter of the dispute.

(6)If a claimant delivers particulars of his claim and appears before it, the court may—

(a)then and there adjudicate upon such claim after hearing such evidence as it deems fit;

(b)order that any claimant be made a defendant in any action already commenced in respect of the subject matter in dispute in lieu of or in addition to the applicant;

(c)order that any issue between the claimants be stated by way of a special case or otherwise and tried, and for that purpose order which claimant shall be plaintiff and which shall be defendant;

(d)if it considers that the matter is not a proper matter for relief by way of interpleader notice dismiss the application;

(e)make such order as to costs, and the expenses (if any) incurred by the applicant under paragraph (b) of sub-rule (2), as to it may seem meet.

(7)If an interpleader notice is issued by a defendant in an action, proceedings in that action shall be stayed pending a decision upon the interpleader, unless the court upon an application made by any other party to the action otherwise orders.

59. Sworn translators

(1)Any person of full age may be admitted and enrolled by any division of the Supreme Court as a sworn translator in an official language of the Republic of South Africa and in any foreign language upon satisfying the court as to his competency.

(2)No person shall be admitted and enrolled as a sworn translator unless his proficiency in the language which he intends to translate has been duly certified in writing, after examination, held not more than six months before the date of his application by a competent sworn translator of not less than seven years’ standing: Provided that, if there be no sworn translator of sufficient standing within its jurisdiction, the court may appoint as examiner any person whom it considers to be duly qualified to hold such examination.

(3)Every sworn translator duly admitted and enrolled shall, to the extent of such admission and enrolment, be deemed to be a sworn translator for all divisions of the Supreme Court, and the registrar of the division in which he is admitted shall notify the registrars of all other divisions of such admission and enrolment, and furnish his address.

(4)

(a)Any person admitted and enrolled under subrule (1) shall before commencing to exercise the functions of his office take an oath or make an affirmation which shall be subscribed by him, in the form set out below, namely—“I ____________________ (full name) do hereby swear/ solemnly and sincerely affirm and declare that I will in any capacity as a translator of the Supreme Court of South Africa faithfully and correctly translate, to the best of my knowledge and ability, any document into an official language of the Republic of South Africa from any other language in respect of which I have been admitted and enrolled as a translator.”.

(b)Any such oath or affirmation shall be taken or made before a judge of the division of the Supreme Court of South Africa admitting and enrolling the translator and the judge concerned shall at the foot thereof endorse a statement of the fact that it was taken or made before him and of the date on which it was so taken or made and append his signature thereto.

60. Translation of documents

(1)If any document in a language other than an official language of the Republic is produced in any proceedings, it shall be accompanied by a translation certified to be correct by a sworn translator.

(2)A translation so certified by a sworn translator shall be deemed prima facie to be a correct translation and admissible as such upon its production.

(3)If no sworn translator is available or if, in the opinion of the court, it would not be in the interests of justice to require a sworn translation, whether by reason of the expense, inconvenience or delay involved, the court may, notwithstanding the provisions of sub-rule (1), admit in evidence a translation certified to be correct by any person who it is satisfied is competent to make such translation.

61. Interpretation of evidence

(1)Where evidence in any proceedings is given in any language with which the court or a party or his representative is not sufficiently conversant, such evidence shall be interpreted by a competent interpreter, sworn to interpret faithfully and to the best of his ability in the languages concerned.

(2)Before any person is employed as an interpreter the court may, if in its opinion it is expedient to do so, or if any party on reasonable grounds so desires, satisfy itself as to the competence and integrity of such person after hearing evidence or otherwise.

(3)Where the services of an interpreter are employed in any proceedings, the costs (if any) of interpretation shall, unless the court otherwise orders be costs in the cause: Provided that where the interpretation of evidence given in one of the official languages of the Republic is required by the representative of a party, such costs shall be at such party’s expense.

62. Filing, preparation and inspection of documents

(1)Where a matter has to be heard by more than one judge, a copy of all pleadings, important notices, annexures, affidavits and the like shall be filed for the use of each additional judge.

(2)All documents filed with the court, other than exhibits or facsimiles thereof, shall be clearly and legibly printed or typewritten in permanent black or blueblack ink on one side only of paper of good quality and of A4 standard size. A document shall be deemed to be typewritten if it is reproduced clearly and legibly on suitable paper by a duplicating, lithographic, photographic or any other method of reproduction.[subrule (2) amended by section 23 of Government Notice R2004 of 1967 and substituted by section 20 of Government Notice R2021 of 1971]

(3)Stated cases, petitions, affidavits, grounds of appeal and the like shall be divided into concise paragraphs which shall be consecutively numbered.

(4)An applicant or plaintiff shall not later than three days prior to the hearing of the matter collate, and number consecutively, and suitably secure, all pages of the documents delivered and shall prepare and deliver a complete index thereof.[subrule (4) amended by section 24 of Government Notice R2004 of 1967]

(5)Every affidavit filed with the registrar by or on behalf of a respondent shall, if he is represented, on the first page thereof bear the name and address of the attorney filing it.

(6)The registrar may reject any document which does not comply with the requirements of this rule.

(7)Any party to a cause, and any person having a personal interest therein, with leave of the registrar on good cause shown, may at his office, examine and make copies of all documents in such cause.

63. Authentication of documents executed outside the Republic and South West Africa for use within the Republic and South West Africa

(1)In this rule, unless inconsistent with the context—“document” means any deed, contract, power of attorney, affidavit or other writing, but does not include an affidavit or solemn or attested declaration purporting to have been made before an officer prescribed by section eight of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963);“authentication” means, when applied to a document, the verification of any signature thereon.

(2)Any document executed in any place outside the Republic and South West Africa shall be deemed to be sufficiently authenticated for the purpose of use in the Republic and South West Africa if it be duly authenticated at such foreign place by the signature and seal of office—

(a)of the head of a South African diplomatic or consular mission or a person in the administrative or professional division or the public service serving at a South African diplomatic, consular of trade office abroad or a South African foreign service officer grade VI, or an honorary South African consul-general, honorary consul, vice-consul, honorary vice-consul or honorary trade commissioner; or[paragraph (a) amended by section 25 of Government Notice R2004 of 1967, substituted by section 1 of Government Notice R500 of 1982 and amended by section 1(a) of Government Notice R775 of 1982]

(b)of a consul-general, consul, vice-consul or consular agent of the United Kingdom or any person acting in any of the aforementioned capacities or a pro-consul of the United Kingdom;[paragraph (b) substituted by section 25 of Government Notice R2004 of 1967]

(c)of any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or

(d)of any notary public or other person in such foreign place who shall be shown by a certificate of any person referred to in paragraph (a), (b) or (c) or of any diplomatic or consular officer of such foreign country in the Republic and South West Africa to be duly authorised to authenticate such document under the law of that foreign country; or

(e)of a notary public in the United Kingdom of Great Britain and Northern Ireland or in Rhodesia. Basutoland, the Bechuanaland Protectorate or Swaziland; or

(f)of a commissioned officer of the South African Defence Force as defined in section one of the Defence Act, 1957 (Act No. 44 of 1957), in the case of a document executed by any person on active service.

(3)If any person authenticating a document in terms of sub-rule (2) has no seal of office, he shall certify thereon under his signature to that effect.

(4)Notwithstanding anything in this rule contained, any court of law or public office may accept as sufficiently authenticated any document which is shown to the satisfaction of such court or the officer in charge of such public office, to have been actually signed by the person purporting to have signed such document.[subrule (4) amended by section 23 of Government Notice R235 of 1966]

(5)No power of attorney, executed in Basutoland, the Bechuanaland Protectorate or Swaziland, and intended as an authority to any person to take, defend or intervene in any legal proceedings in a magistrate’s court within the Republic or South West Africa, shall require authentication: Provided that any such power of attorney shall appear to have been duly signed and the signature to have been attested by two competent witnesses.

64. Destruction of documents

In any matter which has not been adjudicated upon by the court or a judge, and has not been withdrawn, the registrar may, subject to the provisions of the Archives Act, 1962 (Act No. 6 of 1962), after the lapse of three years from the date of the filing of the last document therein, authorize the destruction of the documents filed in his office relating to such matter.

64A.

Records or minutes of evidence and proceedings in criminal cases shall be transferred to an archives depot as contemplated in section 5 of the Archives Act, 1962 (Act 6 of 1962), 30 years after disposal of such cases.[rule 64A inserted by section Government Notice R773 of 1982]

65. Commissioners of the court

Every person duly appointed as a commissioner of any division of the Supreme Court of South Africa for taking affidavits in any place outside the Republic shall, by virtue of such appointment, become a commissioner of the said Supreme Court, and shall, as such, be entitled to be enrolled by the registrar of every other division as a commissioner thereof. For the purpose of facilitating such enrolment the registrar of each division shall transmit the names of those who are appointed as commissioners of such division, as well as their respective addresses, to the registrars of all the other divisions: Provided that no person residing within the Republic shall hereafter be appointed as such commissioner.

66. Superannuation

(1)After the expiration of three years from the day whereon a judgment has been pronounced, no writ of execution may be issued unless the debtor consents to the issue of the writ or unless the judgment is revived by the court on notice to the debtor, but in such case no new proof of the debt shall be required. In the case of judgment for periodic payments, the three years shall run, in respect of any payment, from the due date thereof.

(2)Writs of execution of a judgment once issued remain in force, and may, subject to the provisions of subparagraph (ii) of paragraph (e) of sub-section (2) of section three of the Prescription Act, 1943 (Act No. 18 of 1943), at any time be executed without being renewed until judgment has been satisfied in full.

67. Tariff of court fees

The court fees payable in respect of the various provincial and local divisions (except the South West Africa division) are as follows:

			R c.
(a)	(i)	On every original initial document whereby an action is instituted or application is made	3.00
	(ii)	on every bill of costs to be taxed which is not related to an action or application already registered in the court	3.00
	(iii)	on every power of attorney (to be filed with the registrar) to appeal against the judgment of an inferior court, excluding appeals in criminal cases	3.00
	(iv)	on every notice of appeal against the judgment of a single judge to the full courtProvided that no fee shall be levied on the document whereby an in forma pauperis action is instituted.	3.00
(b)	For the registrar’s certificate on certified copies of documents (each)		0.20
(c)	For each copy of an order of court made by the Registrar, for each 100 words or part thereof:		0.20
[item (c) added by section 21 of Government Notice R2021 of 1971]

68. Tariff for deputy sheriffs

(1)The fees and charges contained in the appended tariff shall be chargeable and allowed to deputy sheriffs: Provided that no fees shall be charged for the service of process in in forma pauperis proceedings (but the necessary disbursements for the purpose of such service may be recovered).

(2)Where there are more ways than one of doing any particular act, the least expensive way shall be adopted unless there is some reasonable objection thereto, or unless the party at whose instance process is executed desires any particular way to be adopted at his expense.

(3)Where any dispute arises as to the validity or amount of any fees or charges, or where necessary work is done and necessary expenditure incurred for which no provision is made, the matter shall be determined by the taxing officer of the court whose process is in question.

Tariff

1.For registration of any document for service or execution, upon receipt thereof R1.

(a)For service, of summonses, petitions together with notice of motion or notice of set down, other notices, orders or any other documents, each R10:Provided that—

(i)whenever any document to be served with any such process is mentioned in the process or forms an annexure thereto, no additional fee shall be charged for the service of such document, but otherwise a fee of R3 may be charged in respect of each separate document served;

(ii)no fee for the service of a separate document shall be charged in respect of the service of process in criminal cases.

(b)Attempted service of summonses, petitions together with notice of motion or notice of set down, other notices, orders and any other documents R5: Provided that an attempted service of more than one document on the same person shall be treated as an attempted service of one document only.

3.Travelling allowance:

(a)For the distance actually and necessarily travelled by the deputy sheriff or his officer, reckoned from the office of the deputy sheriff, both on the forward and the return journey, per kilometre of fraction of a kilometre 0.35.[paragraph (a) amended by Government Notice R810 of 1986]

(b)When two or more summonses or other process, whether at the instance of the same party or of different parties, are capable of being served on one and the same journey, the travelling allowance for performing the round of service shall be fairly and equitably apportioned among the several cases, regard being had to the distance at which the parties against whom such process is directed respectively reside from the office of the deputy sheriff, but the fee for service shall be payable for each service made or attempted to be made.

(c)This allowance shall be payable only in cases where the duty in question is to be performed beyond a radius of one kilometre from the office of the deputy sheriff: Provided that if the office of the deputy sheriff is situated more than three kilometres from the office of the magistrate of his district the allowance shall be payable only where such duty is to be performed beyond a distance of one kilometre from the magistrate's office.

(d)The restriction imposed by the provisio in the preceding paragraph 3 (c) may be relaxed by the Minister of Justice, in his discretion, where circumstances warrant this and on the recommendation of the sheriff of the province concerned, in which event the sheriff shall specially mention the extent of the recommended relaxation at the time of the appointment of the deputy sheriff.

(a)Postage in civil matters, as per postal tariff.

(b)Postage in criminal matters, free.

Note.— The deputy sheriff may take any postal matter to the registrar of the Supreme Court or, if there is no registrar in his town or city, to the magistrate, who shall frank the envelope with his official franking stamp.

5.For the execution of any writ—

(a)

(i)of personal arrest, including the conveyance of the person concerned to court, to an attorney's office or to a prison, per person R20;

(ii)for conveying the person concerned to court from a place of custody on a day subsequent to the day of arrest and attending at court, R10 per hour;

(iii)for attachment of property ad fundandam jurisdictionem or ad confirmandam jurisdictionem R20;

(iv)where an attachment in terms of item 5 (a) (iii) is withdrawn or suspended R5;

(b)of ejectment: R10 per hour, subject to a minimum fee of R20 (in addition to reasonable expenses necessarily incurred);

(c)against immovable property—

(i)for execution, including service of notice of attachment upon the owner of the immovable property and upon the registrar of deeds or other officer charged with the registration of such property and if the property is in occupation of some person other than the owner, also upon such occupier R20;

(ii)for notice of attachment to a single lessee or occupier R3,50 (identical notices when there are several lessees, occupiers or owners, for each after the first R1);

(iii)for making valuation or report for purposes of sale R15 per hour, with a minimum of R20;

(iv)when a deputy sheriff has been authorised to sell property and the property is not sold by reason of the fact that the attachment is withdrawn or stayed, irrespective of the amount of the writ, and all the necessary notices for the withdrawal of the attachment R20;

(v)for ascertaining and recording what bonds or other encumbrances are registered against the property, together with the names and addresses of the persons in whose favour such bonds and encumbrances are so registered, including any correspondence in connection therewith (in addition to reasonable expenses necessarily incurred) R15;

(vi)for notifying the execution creditor of such bonds or other encumbrances and of the names and addresses of the persons in whose favour such bonds or other encumbrances are registered R2;

(vii)for consideration of proof that a preferent creditor has complied with the requirements of rule 46 (5) (a) R1;

(viii)for the notice referred 10 in rule 46 (6) R2;

(ix)for consideration of notice of sale prepared by the execution creditor in consultation with the deputy sheriff; and

(x)for verifying that notice of sale has been published in the newspapers indicated and in the Gazette; and

(xi)for forwarding a copy of the notice of sale to every judgment creditor who had caused the immovable property to be attached and to every mortgagee thereof whose address is known, for each copy, inclusive fee for (ix), (x) and (xi) R15;

(xii)for affixing a copy of the notice of sale to the notice board of the magistrate's court referred to in rule 46 (7) (e) and at or as near as may be to the place where the sale is actually to take place, an inclusive fee of R5;

(xiii)for considering the conditions of sale R10;

(xiv)on the sale of immovable property by the deputy sheriff as auctioneer, 5 per cent of the proceeds of the sale which shall be paid by the purchaser up to a price of R10 000 and thereafter 2½ per cent up to a maximum fee of R5 000 subject to a minimum of R30 (this includes call to pay into the deposit account of the magistrate of the district all moneys received in respect of the purchase price);

(xv)for any report referred to in rule 46 (11) R10;

(xvi)for giving transfer to the purchaser R3;

(xvii)for preparing a plan of distribution of the proceeds (including the necessary copies) and for forwarding a copy to the registrar R15;

(xviii)for giving notice to all parties who have lodged writs and to the execution debtor that the plan will lie for inspection, for every notice R2;

(xix)for request to magistrate to pay out in accordance with the plan of distribution R2;

(d)against movable property—

(i)when a writ is paid on presentation, 5 per cent on the amount so paid, with a minimum fee of R10 and a maximum of R50;

(ii)for any abortive attempt at attachment, including one hour's search and enquiry R8;

(iii)when a writ is withdrawn or stayed before any property is attached R3;

(iv)for making an attachment, including one hour's search and enquiry R20;

(v)notice of attachment, if necessary, to a single person R2 (identical notices, when there is more than one person to be given notice, for each after the first R1);

(vi)when an attachment is withdrawn by the judgment creditor or stayed before sale, 2½ per cent on the value of the property attached or the amount of the writ, whichever is the lesser, but subject to a maximum fee of R75;

(vii)when a writ is paid by the debtor to the deputy sheriff after attachment but before sale, 5 per cent on the amount so paid with a minimum fee of R10 and a maximum of R100;

(viii)when moneys are taken in execution, 2½ per cent of the amount so taken, but subject to a maximum fee of R2 500;

(ix)for drawing advertisements of sale of goods attached R5;

(x)for selling in execution (whether auctioneer employed or not), including distribution of the proceeds, on the first R1 000 or part thereof, 10 per cent, and over and above the first R1 000, 5 per cent, subject to a maximum fee of R2 500;

(xi)the deputy sheriff himself shall sell movable property in execution but he shall engage the services of an auctioneer if directed thereto in writing by the judgment creditor, provided the judgment creditor bears the additional commission, if any;

(xii)commission shall not be chargeable against a judgment debtor on the value of movable property attached and subsequently claimed by a person other than the judgment debtor and released in consequence of such claim unless such property has been attached at the express direction of the judgment creditor, in writing, in which event the judgment creditor shall be liable to the deputy sheriff for the commission;

(xiii)for insuring movable property attached when it is considered necessary and when the deputy sheriff is directed thereto in writing by the judgment creditor, in addition to the amount of premium paid, an inclusive fee of R5;

(e)for keeping possession of property (money excluded)—

(i)for an officer necessarily left in possession, a reasonable inclusive fee per day not exceeding R20 (for an additional officer, where necessary, limited to one, per day, a fee not exceeding R10);Note.— Possession means the continuous and necessary presence on the premises for the period in respect of which possession is charged of a person employed and paid by the deputy sheriff for the sole purpose of retaining possession;

(ii)for removal and storage, the reasonable and necessary expenses for such removal and storage and, if an animal is to be stabled or fed, the reasonable charges for such stabling and feeding;

(iii)for tending livestock, the necessary expenses for tending such stock;

(iv)when no officer is left in possession and no security bond is taken, but movable property attached remains under the supervision of the deputy sheriff, per day 5c.

(a)For making an inventory, including all necessary copies and time spent in stocktaking, per hour R15.

(b)[omitted]

(c)For assistance, where necessary, in taking inventory, a reasonable and inclusive fee per day, not exceeding R20.

(a)For making return of service or execution, including drawing and typing original for court, limited to one person upon each original process; and

(b)copy thereof for party desiring service or execution R4.

8.Drawing and completing bail bond, deed of suretyship or indemnity bond R5.

9.Copies of process and orders necessarily made, per folio 50c.

10.Copying of summonses, orders, subpoenas, writs, etc., received by telegram, 50c per folio of 100 words, with a minimum of R1.

11.Taking statement from accused who is not represented and who desires witnesses to be subpoenaed at the expense of the State, as to his means, the names and addresses of the witnesses and what they can say in his defence, in order to enable the registrar or the clerk of the court on circuit to decide whether the witnesses should be subpoenaed R5.Note.— This information is to be obtained at the time of serving the notice of trial and indictment and conveyed to the registrar of clerk of the court in the same letter under cover of which the documents are returned.

12.Attending any criminal session of a superior court or any circuit court, per hour R10 with a maximum per day R30.

13.In cases of prisoners sentenced to death—

(a)where the prisoner is executed, arranging for and attending capital punishment, an inclusive fee of R100.

(b)where the prisoner is not executed, an inclusive fee of R50.Note.— This fee in both cases includes identifying the prisoner on arrival, subsequent attendances at the prison at the request of the prisoner or the authorities, taking statements from the prisoner if requested to do so, and transport.

14.Each necessary letter excluding formal letters accompanying process or returns R2.

15.Each necessary attendance by telephone (in addition to prescribed trunk charges) R2.

[rule 68 amended by section 22 of Government Notice R2021 of 1971, by Government Notice R1985 of 1972, by Government Notice R639 of 1975, by Government Notice R1577 of 1979, substituted by Government Notice R2527 of 1980, amended by sections 2(a) and (b) of Government Notice R500 of 1982, by sections 2(a) and (b) of Government Notice R775 of 1982, and substituted by Government Notice R1077 of 1983]

69. Advocates’ fees in civil matters in the provincial and local divisions of the Supreme Court

(1)Save where the court authorizes fees consequent upon the employment of more than one advocate to be included in a party and party bill of costs, only such fees as are consequent upon the employment of one advocate shall be allowed as between party and party.

(2)Where fees in respect of more than one advocate are allowed in a party and party bill of costs, the fees to be permitted in respect of any additional advocate shall not exceed one half of those allowed in respect of the first advocate.

(3)The appended tariff of maximum fees as between party and party (hereinafter referred to as the tariff) shall (save where the court on application made before or when judgment is delivered otherwise orders) apply in the following matters:—

(a)Any claim for a sum not exceeding R3,000 with or without any claim for ancillary relief;

(b)any claim for delivery of property movable or immovable of a value not exceeding R3,000;

(c)any claim for ejectment from premises where the value of the right of occupation to the occupier does not exceed R3,000;

(d)any claim for divorce, judicial separation or other matrimonial matters unless accompanied by a money claim exceeding R3,000 or a proprietary claim exceeding R3,000 in value (excluding a claim for maintenance);

(e)any appeal and review from magistrates’ courts;

(f)any application for interdicts pendente lite in regard to any matter mentioned in paragraph (a), (b), (c) or (d);

provided that—

(i)where the amount of the claim exceeds R3,000 but that of the or of a settlement does not, the tariff shall apply;[subparagraph (i) amended by section 23 of Government Notice R2021 of 1971]

(ii)where the defendant or respondent is awarded costs and the amount or value of the claim against him exceeded R3,000 the tariff shall not apply unless in either case the court otherwise orders.

(4)In applying the provisions of the tariff the taxing master shall have regard to the scale of fees ordinarily allowed, as between party and party, at the time of coming into operation of this tariff for like services in his division and shall not without substantial reason allow any fee materially in excess thereof.

(5)The taxation of advocates’ fees as between party and party shall be effected by the taxing master in accordance with this rule and, where applicable, the tariff. Where the tariff does not apply, he shall allow such fees (not necessarily in excess thereof) as he considers reasonable.

Tariff of maximum fees for advocates on party and party basis in certain civil matters

[heading amended by section 24 of Government Notice R235 of 1966]

				Rand
1.	Written advice and memoranda in the course of litigation			60
[item 1 amended by section 3 of Government Notice R480 of 1973]
2.	Drawing pleadings and stated cases, settling a statement of claim in a combined summons or third party notice			60
[item 2 amended by section 3 of Government Notice R480 of 1973]
3.	Advice on evidence			60
[item 3 amended by section 3 of Government Notice R480 of 1973]
4.	Consultations on trial, to settle affidavits, stated cases, etc., and receive instructions and/or furnish advice, informal inspections with attorney and/or client prior to hearing, etc. (per hour)			25
[item 4 amended by section 3 of Government Notice R480 of 1973]
5.	Settling notice of motion, affidavit, etc., where consultation not held			60
[item 5 amended by section 3 of Government Notice R480 of 1973]
6.	Appearances in court—
	(a)	First day of hearing:
		(i)	Opposed applications	120
		[subitem (i) amended by section 3 of Government Notice R480 of 1973]
		(ii)	Exceptions or motions to strike out	120
		[subitem (ii) amended by section 3 of Government Notice R480 of 1973]
		(iii)	Stated cases	120
		[subitem (iii) amended by section 3 of Government Notice R480 of 1973]
		(iv)	Trials	175
		[subitem (iv) amended by section 3 of Government Notice R480 of 1973]
		(v)	Appeals from magistrates’ courts including review of proceedings thereof	120
		[subitem (v) amended by section 3 of Government Notice R480 of 1973]
	(b)	Subsequent days: A refresher (without the necessity of a refresher brief) in an amount per day to be allowed in the discretion of the taxing master, but not to exceed two-thirds of the fees allowed on taxation in respect of the first day
	(c)	(i)	Attending court to note a reserved judgment	5
		(ii)	Attending court to note a reserved judgment, including argument as to terms of order, whether as to costs or otherwise, and an application for leave to appeal	15
	(d)	Attending court on formal unopposed postponement		5
	(e)	Fee in lieu of fee for first day’s hearing when case settled or withdrawn or postponed at the instance of any party:
		(i)	not more than two days prior to the date of hearing	Fee otherwise allowable on taxation for first day’s hearing.
		(ii)	not less than three days and not more than seven days prior to the date of hearing	Two-thirds of fee under (i)
		(iii)	not less than eight days and not more than twenty-one days prior to the date of hearing	Half the fee under (i)
7.	Circuit matters: For services necessarily rendered on circuit in respect of a matter already pending in a circuit local division, any fee otherwise allowable in terms of the aforegoing tariff may be increased in the discretion of the taxing master by an amount not exceeding one-third of such fee.

70. Taxation and tariff of fees of attorneys

(1)

(a)The taxing master shall be competent to tax any bill of costs for services actually rendered by an attorney in his capacity as such in connection with litigious work and such bill shall be taxed subject to the provisions of subrule (5), in accordance with the provisions of the appended tariff: Provided that the taxing master shall not tax costs in instances where some other officer is empowered so to do.

(b)The provisions relating to taxation existing prior to the promulgation of this subrule shall continue to apply to any work done or to be done pursuant to a mandate accepted by a practitioner prior to such date.

(2)At the taxation of any bill of costs the taxing master may call for such books, documents, papers or accounts as in his opinion are necessary to enable him properly to determine any matter arising from such taxation.

(3)With a view to affording the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by him in relation to his claim or defence and to ensure that all such costs shall be borne by the party against whom such order has been awarded, the taxing master shall, on every taxation, allow all such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but save as against the party who incurred the same, no costs shall be allowed which appear to the taxing master to have been incurred or increased through over-caution, negligence or mistake, or by payment of a special fee to an advocate, or special charges and expenses to witnesses or to other persons or by other unusual expenses.

(4)The taxing master shall not proceed to the taxation of any bill of costs unless he is satisfied that the party liable to pay the same has received due notice as to the time and place of such taxation and notice that he is entitled to be present thereat: Provided that such notice shall not be necessary—

(a)if the party against whom costs have been awarded has not appeared at the hearing either in person or through his legal representative;

(b)if the person liable to pay costs has consented in writing to taxation in his absence; and

(c)for the taxation of writ and postwrit bills.

(5)

(a)The taxing master shall be entitled, in his discretion, at any time to depart from any of the provisions of, this tariff in extraordinary or exceptional cases, where strict adherence to such provisions would be inequitable.

(b)In computing the fee to be allowed in respect of items 1, 2, 3, 6, 7 and 8 of Section A; 1, 2 and 6 of Section B and 2, 3, 4 and 7 of Section C, the taxing master shall take into account the time necessarily taken, the complexity of the matter, the nature of the subject matter in dispute, the amount in dispute and any other factors which he considers relevant.

(6)

(a)In order to diminish as far as possible the costs arising from the copying of documents to accompany the briefs of advocates, the taxing master shall not allow the costs of any unnecessary duplication in briefs.

(b)Fees may be allowed by the taxing master in his discretion as between party and party for the copying of any document which, in his view, was reasonably required for any proceedings.

(7)Fees for copying shall be disallowed to the extent by which such fees could reasonably have been reduced by the use of printed forms in respect of bonds, credit agreements or other documents.

(8)Where, in the opinion of the taxing master, more than one attorney has necessarily been engaged in the performance of any of the services covered by the tariff, each such attorney shall be entitled to be remunerated on the basis set out in the tariff for the work necessarily done by him.

(9)A folio shall contain 100 words or part thereof and four figures shall be counted as a word.

(10)The costs taxed and allowed in terms of the tariff (excluding section I of the tariff) shall be increased by an amount of 35 per cent of the total amount of such costs.[subrule (10) added by Government Notice R1996 of 1984, amended by section 1 of Government Notice R2094 of 1985 and substituted by section 42 of Government Notice 2164 of 1987]

Tariff of fees of attorneys

A – Taking instructions

1.To institute or defend any proceeding: R10 to R100.

2.For advice on evidence or on commission: R5 to R50.

3.For case on opinion, or for advocate's guidance in preparing pleadings, including exceptions: A fee equivalent to the fee allowed under item 2 of Section D for drafting the document.

4.For statement of witness: R10 to R50.

5.To set down cause, issue subpoena or writ or any other simple instructions: R2,50.

6.To draft a petition or affidavit: A fee equivalent to one half of the fee allowed under item 7 of Section D for drafting the document: Provided that in cases where no petition or affidavit is actually drawn the taxing master shall allow a fee in his discretion, but not less than R10.

7.To note an appeal: R10.

8.To prosecute or defend an appeal, exclusive of the perusal of the record: R10 to R30.

B – Attendance and perusal

1.Attending the receipt of and perusing, and considering—

(a)any summons, petition, affidavit, pleading, advocate's advice and drafts, report, or important letter, notice or document per folio: R1,50;

(b)any formal letter, record, stock sheets in voluntary surrenders, judgments or any other material document not elsewhere specified, per folio: 50c;

subject to a minimum fee of: R1.

2.Attending the receipt of and considering any plan or exhibit or other material document in respect of which the basis of remuneration set out in item 1 of this Section cannot be applied: R2,50 to R30.

3.Making searches in offices of record, per half hour or part thereof—

(a)by an attorney: R15;

(b)by a clerk: R5.

4.Sorting out, arranging and paginating papers for pleading, advice on evidence or brief on trial or appeal, per halfhour or part thereof: R5.

5.Attending to give or take disclosure, per half-hour or part thereof—

(a)by an attorney: R10 to R20;

(b)by a clerk: R5.

6.Attending on witness to obtain particulars of his claim and to settle same: R4.

7.Attending to bespeak and thereafter to procure translation: R4.

8.Other attendances including telephone calls other than formal telephone calls: R3 to R30.

[Note.—The fees allowed under this Section shali be in addition to such fees as may be allowed for instructions under Section A. In computing the fees chargeable for perusal of documents in connection with instructions under items Al and A6, the number of words in all documents to be perused, shall be added together and the total divided by 100.]

C – Attendance (Formal)

1.To serve or deliver (other than by post) any necessary document or letter or despatch any telegram: R2.

2.To sue out any process or file any document: R2.

3.To set down causes for trial: R2.

4.To search for any return: R2.

5.On receipt of notice of intention to defend: R2.

6.On advocate, e.g. with brief or to make appointment: R2.

7.On signature of powers of attorney to sue or defend: R2.

8.Other formal attendances, including telephone calls: R2.

9.Attending receipt of a formal acknowlegment: R1.

D – Drafting and drawing

1.An entry in the chamber book, where used, including all attendances: R4.

2.Instructions for case on opinion, for advocate's guidance in preparing pleadings, including further particulars and requests for same, including exceptions, per folio: R3.

3.Instructions to advocate for advice on evidence for brief on trial or on commission, per folio: R3.

4.Instructions to advocate for argument in respect of all classes of pleading: Provided that a fee for drafting instructions on motion, petition, exception or appeal, shall only be allowed in discretion of the taxing master, per folio: R2.

5.Statements of witnesses, per folio: R3.

(a)Powers of attorney to sue or defend, per folio: R3.

(b)Formal notices and subpoenas, per folio: R1,50.

(a)A petition, affidavit, any notice (except a formal notice), summons, further particulars requested and furnished for trial, writs of execution, arrest or attachment and any other important document not otherwise provided for, per folio: R6.

(b)A formal affidavit of non-return in restitution suits, verifying affidavits, affidavits of service and other formal affidavits, per folio: R2.

(a)Letter or telegram, per folio: R1 to R3.

(b)Copy to keep, per folio: 20c.

9.Drawing index to brief, per folio: R1,50.

10.Short brief: R2.

(Note 1.— In computing the number of folios of any document referred to in items 2, 3, 4, 5 and 7 of this Section, the taxing master shail deduct, but treat as annexures where relevant, any portions consisting of quotations from other documents and papers.)(Note 2.— The charges allowed in this Section for drafting and drawing do not, save in the case of items 1, 6, 8 and 10, include making the first fair copy, which shall be charged for under item 1 of Section F.)

E – Appearance, conference and inspection

(a)Attendance by attorney when an advocate is employed in court or before a judge or before a commissioner or referee or at an inspection directed by the Court—

(i)to note judgment only—

(a)by an attorney: R15;

(b)by a clerk: R5;

(ii)otherwise, per half-hour or part thereof: R20 to R30.

(b)Appearance by attorney without an advocate before a judge on request by the judge, or before a commissioner or referee, per half-hour or part thereof: R20 to R30.

The above rates of remuneration shall not be applicable in respect of the time spent in travelling or waiting, but the taxing master shall, in respect of time necessarily so spent, allow such additional remuneration not exceeding R50 per diem as he in his discretion may deem fair and reasonable, and shall also allow a reasonable amount to cover the cost of necessary conveyance.

2.Attendance of attorney's articled clerk to assist a contested proceeding—

(i)if advocate employed, per hour or part thereof: R5;

(ii)if advocate not employed, per hour or part thereof: R5;

(iii)when assisting attorney, per diem if necessary: R20.

3.Any conference or consultation with advocate with or without witnesses and on pleadings including exceptions and particulars to pleadings, applications, petitions, affidavits, testimony and on any other matter which the taxing officer may consider necessary, per half-hour or part thereof: R20 to R30.

(a)Any conference or consultation with client, witness or opposite party, and any other conference or consultation which the taxing officer may consider necessary, per halfhour or part thereof: R20 to R30.

(b)Attending conference in terms of Rule 37, per half-hour or part thereof—

(i)by an attorney: R20 to R30.

(ii)by a clerk: R10 to R15.

5.Any inspection in situ, or otherwise, per half-hour or part thereof—

(a)by an attorney: R20 to R30.

(b)by a clerk: R10 to R15.

The above rates of remuneration shall not be applicable in respect of time spent in travelling but the taxing master shall in respect of time necessarily so spent allow additional remuneration not exceeding R50 per diem, and shall also allow the reasonable cost of necessary conveyance.

6.Evidence: Such just and reasonable charges and expenses as may, in the opinion of the taxing master, have been properly incurred in procuring the evidence and attendance of witnesses whose fees have been allowed on taxation: Provided that the qualifying expenses of a witness shall not be allowed without an order of court or the consent of all interested parties.

F – Miscellaneous

(a)Briefing and copying: For making typewritten copies for the court, counsel or attorney, or for service or for any other necessary purpose, the charge shall be, for the first copy at the rate of 50c per folio (including the first copy of any document drafted in respect of which a charge is recoverable under items 2, 3, 4, 5, 7 and 9 of Section D of this tariff) and for further copies, 20c per folio.

(b)For making typewritten copies of the record in a civil appeal from a magistrate's court the charge shall be as set out above.

(c)Where any of the above copies are made other than by typewriter, the charge shall be, for the first copy, 50c per page, for the next four copies, 20c per page, and for further copies, 10c per page.

2.For giving a written opinion (as between attorney and client): R10 to R100.

3.General: Inclusive fee for consultations and discussions with client or advocate not otherwise provided for: R10 to R60.

G – Bill of costs

In connection with a bill of costs for service rendered by an attorney, an attorney shall be entitled to charge:

1.For drawing the bill of costs, making the necessary copies and attending settlement, 5 per cent on the first R500 or portion thereof, 2½ per cent on the second R500 or portion thereof, and 1 per cent on the amount in excess of R1 000 of the amount of the attorney’s fees, either as charged in the bill if not taxed, or as allowed on taxation.

2.In addition thereto, if recourse is had to taxation for arranging arid attending taxation and obtaining consents to taxation, 5 per cent on the first R500 or portion thereof, and 2½ per cent on the second R500 or portion thereof, and 1½ per cent on the amount in excess of R1 000 of the fees allowed.

Note:(1)The minimum fee under each item of this Section shall be R5.(2)The fee under each item of this Section shall be calculated on the same amount.

[subrule 70 amended by sections 25 and 27 of Government Notice R235 of 1966, by sections 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Government Notice R3553 of 1969, by sections 24 of Government Notice R2021 of 1971, by Government Notice R2365 of 1977, by Government Notice R1546 of 1978 and substituted by section 2 of Government Notice R2171 of 1982]

71. Repeal of Rules

All rules made under any provision of a law repealed by section forty-six of the Act or under paragraph (a) of sub-section (2) of section forty-three of the Act, as substituted by section eleven of the Supreme Court Amendment Act, 1963 (Act No. 85 of 1963) regulating the conduct of the proceedings of the various provincial and local divisions are hereby repealed in terms of sub-section (5) of section forty-three of the Act, save to the extent indicated in the appended schedule.

Schedule

[schedule amended by section 28 of Government Notice R235 of 1966]

Transvaal Rules

Rule No.	Subject matter	Government Notice	Date
1	Terms	153 as amended from time to time	1.5.1902
2	Vacations	do.	1.5.1902
47	Set Down	do.	1.5.1902
48	do.	do.	1.5.1902
49	do.	do.	1.5.1902
108	Criminal sessions	1425	23.9.1960
109	Sittings of Witwatersrand Local Division	1130	3.6.1955
109	Cases in last week of term	1093	30.9.1903
1—26	Circuit Court Rules	678	Aug. 1905
1—26	Admission of Advocates	1266	14.12.1906

Orange Free State

Rule No.	Subject matter	Government Notice	Date
1	Terms	221 as amended from time to time	23.7.1902
2	Vacation	do.	23.7.1902
47	Set Down	do.	23.7.1902
48	do.	do.	23.7.1902
49	do.	do.	23.7.1902
103	Admission of Advocates	do.	23.7.1902
107—124	Circuit Courts Rules	do.	23.7.1902

Cape Provincial Division

Rule No.	Subject matter	Government Notice	Date
3	Sitting of the Court and vacations	41 as amended from time to time	13.1.1938
5(1)	Admission of Advocates	do.	13.1.1938
7	Derelict Lands Act	do.	13.1.1938
34	Set Down	do.	13.1.1938
39(22)—(32)	Execution	do.	13.1.1938
50	Jurors	do.	13.1.1938
52, 54—63	Circuit Courts Rules	do.	13.1.1938

Natal Provincial Division

Rule No.	Subject matter	Government Notice	Date
Order III1—12, 14	Sitting of the courts and set down	79as amended from time to time	—2.1907
Order XI61	Set Down	do.	—2.1907
Order XI62	Withdrawal of set down	do.	—2.1907
Order XI67	Set Down	do.	—2.1907
Order XXVIIIThe Whole	Executors Dative and others	do.	—2.1907
Order XXXIIWhere not already repealed	Admission of Advocates and Attorneys	do.	—2.1907
Order XXXIVThe whole	Circuit Court Rules	do.	—2.1907

South West Africa Division

Rule No.	Subject matter	Government Notice	Date
3	Sitting of the Court and Vacations	103 as amended from time to time	15.6.1939
5	Admission of Advocates	do.	15.6.1939
5bis	do.	do.	15.6.1939
34	Set Down	103 as amended from time to time	15.6.1939
39(21)—(31)	Execution	do.	15.6.1939
52	Circuit Courts Rules	do.	15.6.1939
54—63	do.	do.	15.6.1939
68	Admission of attorneys	do.	15.6.1939

Eastern Cape Courts

Rule No.	Subject matter	Government Notice	Date
2(b) and (c)	Sitting of the Court and Vacations	1639	25.10.1957
2(d)	Admission of Advocates
2(n)	Circuit Court Rules
34	Setting down of defended cases and exceptions	43 as amended from time to time	13.1.1938
39(22)—(32)	Execution	do.	13.1.1938

Griqualand West Local Division

Rule No.	Subject matter	Government Notice	Date
2(b) being Rule 3(1) and (4)	Sittings and Vacations	280	6.2.1953
2(c)	Admission of Advocates	42 as amended from time to time	13.1.1938
34	Setting down of cases and exceptions	do.	13.1.1938
39(22)—(32)	Execution	do.	13.1.1938

First Schedule

Forms

[Form 2(a) amended by section 25(a) of Government Notice R2021 of 1971][Form 3 amended by section 29 of Government Notice R235 of 1966][Form 7 amended by section 25(b) of Government Notice R2021 of 1971][Form 8 amended by section 25(c) of Government Notice R2021 of 1971][Form 9 amended by section 25(d) of Government Notice R2021 of 1971][Form 10 amended by section 30 of Government Notice R235 of 1966 and by section 25(e) of Government Notice R2021 of 1971][Form 17 amended by section 25(f) of Government Notice R2021 of 1971][Form 20 amended by section 26 of Government Notice R2004 of 1967][Editorial note: The forms have not been reproduced.]

Second Schedule

Forms

[Editorial note: The forms have not been reproduced.]

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History of this document

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03 August 1992

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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09 March 1992

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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01 January 1992

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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01 November 1991

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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01 July 1991

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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10 September 1990

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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02 March 1990

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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02 January 1990

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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01 July 1989

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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10 March 1989

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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15 August 1988

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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01 January 1988

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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02 November 1987 this version

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

02 May 1986

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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13 September 1985

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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07 September 1984

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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20 May 1983

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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25 March 1983

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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06 October 1982

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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03 September 1982

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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23 April 1982

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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12 March 1982

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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05 December 1980

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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25 July 1980

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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20 July 1979

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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28 July 1978

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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18 November 1977

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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17 December 1976

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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29 October 1976

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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08 October 1976

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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04 April 1975

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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01 April 1973

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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01 December 1972

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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15 November 1971

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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01 November 1969

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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15 December 1967

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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18 February 1966

Amended by Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment

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15 January 1965

Commenced

12 January 1965

Published in Government Gazette 999

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Cited documents 14

Act 14

Criminal Procedure Act, 1977 Dispute Resolution and Mediation · Peace and Security	Dispute Resolution and Mediation · Peace and Security
Insolvency Act, 1936 Finance and Money	Finance and Money
Superior Courts Act, 2013 Dispute Resolution and Mediation	Dispute Resolution and Mediation
Income Tax Act, 1962 Finance and Money	Finance and Money
Supreme Court Act, 1959 Repealed
Prescription Act, 1969 Dispute Resolution and Mediation	Dispute Resolution and Mediation
Defence Act, 1957
Sheriffs Act, 1986 Labour and Employment · Public administration	Labour and Employment · Public administration
Patents Act, 1978 Business, Trade and Industry	Business, Trade and Industry
State Liability Act, 1957

Documents citing this one 4381

Judgment 3656

Zuma v Secretary of Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in Public Sector Including Organs of State and Others [2021] ZACC 28 (17 September 2021)

Reported

Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd (53/84) [1984] ZASCA 51 (21 May 1984)

Reported

MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd (77/13) [2014] ZACC 6 (25 March 2014)

Reported

Eke v Parsons (CCT214/14) [2015] ZACC 30 (29 September 2015)

Reported

Public Protector v South African Reserve Bank (107/18) [2019] ZACC 29 (22 July 2019)

Reported

National Treasury and Others v Opposition to Urban Tolling Alliance and Others (Road Freight Association intervening) [2012] ZACC 18 (20 September 2012)

Reported

Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others [2005] ZACC 14 (30 September 2005)

Reported

Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20 (26 November 2004)

Reported

Pheko and Others v Ekurhuleni Metropolitan Municipality (Socio-Economic Rights Institute of South Africa as Amicus Curiae) [2015] ZACC 10 (7 May 2015)

Reported

South African Transport and Allied Workers Union and Another v Garvas and Others [2012] ZACC 13 (13 June 2012)

Reported

Gazette 723

KwaZulu-Natal Provincial Gazette dated 2015-08-28 number 1483

North-West Provincial Gazette dated 2018-10-26 number 7949

South Africa Government Gazette dated 1976-11-19 number 5338

South Africa Government Gazette dated 1980-06-18 number 7073

South Africa Government Gazette dated 1997-02-21 number 17804

South Africa Government Gazette dated 1998-12-04 number 19572

South Africa Government Gazette dated 1999-11-05 number 20585

South Africa Government Gazette dated 2003-06-06 number 24925

South Africa Government Gazette dated 2004-04-02 number 26182

South Africa Government Gazette dated 2007-09-07 number 30253

Guide 1

A Practical Approach to Evidence for Judicial Officers

Law Reform Report 1

Investigation into Legal Fees - Including Access to Justice and Other Interventions - Project 142

Subsidiary legislation

Title
Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment Dispute Resolution and Mediation	Government Notice R5124 of 2024	Dispute Resolution and Mediation
Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment Dispute Resolution and Mediation	Government Notice R4477 of 2024	Dispute Resolution and Mediation
Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment Dispute Resolution and Mediation	Government Notice R2642 of 1987	Dispute Resolution and Mediation
Rules regulating the conduct of the proceedings of the several provincial and local divisions of the High Court of South Africa: Amendment Dispute Resolution and Mediation	Government Notice 2164 of 1987	Dispute Resolution and Mediation

Rules regulating the conduct of the proceedings of the several provincial and local divisions of the Supreme Court of South Africa, 1965

Government Notice R48 of 1965

Rules regulating the conduct of the proceedings of the several provincial and local divisions of the Supreme Court of South Africa, 1965

Collections

Related documents

Rules regulating the conduct of the proceedings of the several provincial and local divisions of the Supreme Court of South Africa, 1965

Government Notice R48 of 1965

1. Definitions

2. Sittings of the court and vacations

3. Registrar’s office hours

3 bis. Admission of advocates

4. Service

5. Edictal citation

6. Applications

7. Power of attorney

8. Provisional sentence

9. Arrest

10. Joinder of parties and causes of action

11. Consolidation of actions

12. Intervention of persons as plaintiffs or defendants

13. Third party procedure

14. Proceedings by and against partnerships, firms and associations

15. Change of parties

16. Representation of parties

17. Summons

18. Rules relating to pleading generally

19. Notice of intention to defend

20. Declaration

21. Further particulars

22. Plea

23. Exceptions and applications to strike out

24. Claim in reconvention

25. Replication and plea in reconvention

26. Failure to deliver pleadings—barring

27. Extension of time and removal of bar and condonation

28. Amendments to pleadings and documents

29. Close of pleadings

30. Irregular proceedings

31. Judgment on confession and by default

32. Summary judgment

33. Special cases and adjudication upon points of law

34. Payment into court

35. Discovery, inspection and production of documents

36. Inspections, examinations and expert testimony

37. Curtailment of proceedings

38. Procuring evidence for trial

39. Trial

40. In forma pauperis

41. Withdrawal, settlement, discontinuance, postponement and abandonment

42. Variation and rescission of orders

43. Matrimonial matters

44. Restitution of conjugal rights

45. Execution

General and movables

46. Execution

Immovables

47. Security for costs

47A.

48. Review of taxation

49. Appeals to the full court

49A.

50. Civil appeals from magistrates’ courts

51. Criminal appeals from magistrates' courts

52. Criminal appeals to the Appellate Division

53. Reviews

54. Criminal proceedings—Provincial and local divisions

55. Criminal proceedings—Circuit Court

56. Criminal proceedings—General

57. De lunatico inquirendo, appointment of curators in respect of persons under disability and release from curatorship

58. Interpleader

59. Sworn translators

60. Translation of documents

61. Interpretation of evidence

62. Filing, preparation and inspection of documents

63. Authentication of documents executed outside the Republic and South West Africa for use within the Republic and South West Africa

64. Destruction of documents

64A.

65. Commissioners of the court

66. Superannuation

67. Tariff of court fees