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Practice Directives subordinate to the Rules – SCA

The Supreme Court of Appeal has held that the Practice Directives are subordinate to the rules of court and legislation. In the Ex Parte matter of Director of Public Prposecutions, Mpumalanga High Court Case No 905/2017 the SCA had to consider whether the decision of Legodi J in terms whereof an ex parte application in terms of section 38 of POCA which was struck off the roll for want of notice, was justified. Section 38, contained in Chapter 6 of the POCA, deals with the civil recovery of property and authorises the bringing of applications ex parte for this purpose.

The court a quo when dealing with s 38(1) said “…utilization of an ex parte application as a matter of must and right may not get the pleasure of the court unless there are facts justifying the bringing of any application on ex parte and or in camera’. Furthermore, the court a quo went on to say “[a]s I said, bringing the present application in terms of s 38 for possible forfeiture under s 48 read with section 50 of the POCA without giving notice, amounts to an abuse”.

The court a quo dealt with some of the provisions of the Practice Directives of the Mpumalanga Division of the High Court 1 of 2016 and said: ‘[p]aragraph 2.5.5.2 of Mpumalanga Division of the High Court provides that; “ex parte applications, that is applications enrolled without notice being given to the affected party or parties; will not be enrolled and heard; except where such notice is not required by and will not adversely affect any person”. In addition paragraph 2.5.5.3 provides that “any ex parte application will only be enrolled and heard in exceptional circumstances, which must clearly and concisely be set out in the founding affidavit”’. The court a quo was of the view that the s 38 application must comply with the provisions of the Mpumalanga Division of the High Court practice directives.

The SCA held that : The practice directive is subordinate to any relevant statute, the common law and the Uniform rules and it cannot be applied to restrict or undermine any piece of legislation, the Uniform Rules of Court or the common law. Practice directives deal essentially with the daily functioning of the courts and, their purpose is to supplement the rules of court. In this case, the court a quo afforded the practice directive statutory force overriding both s 38 of the POCA and rule 6(4)(a) of the Uniform rules which is impermissible. The practice directive should not negate the provisions of s 38 and rule 6(4)(a) of the Uniform rules.

The question now arises as to how this judgment will affect other provisions of the Practice Directives that seemingly are in conflict with the rules of court. One such matter is the practice that matters may not be  postponed sine die by agreement between the parties but have to be postponed to a specific date and case managed. This directive is seemlingly inconsistent with the Uniform rules of Court. Rule 41(3)  states that

(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.

In addition Rule 27(1) states as follows :

27(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.

Both rules imply postponement by agreement between the parties.

 

 

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Practice Directives subordinate to the Rules – SCA