BACKGROUND AND SUMMARY
Rule 32 of the Uniform Rules of Court (“Rule 32”), which governs the summary judgment procedure, was recently amended with effect from 1 July 2019. The substantive amendments included, inter alia:
- a plaintiff cannot make an application for summary judgment until such time as the defendant has delivered its plea; and
- a plaintiff must deliver an affidavit in support of an application for summary judgment wherein the deponent is required to verify the cause of action and the amount claimed, identify any point of law relied upon and the facts upon which the plaintiff’s claim is based and explain why the defence pleaded by the defendant does not raise any issue for trial.
The High Court of South Africa, Gauteng Local Division, Johannesburg (the “Court”) recently adjudicated whether several summary judgment applications launched in terms of the ‘unamended’ Rule 32 must be heard in terms of the ‘unamended’ Rule 32 or the ‘amended’ Rule 32. Accordingly, the question before the Court was whether or not the amendments to Rule 32 are to be given retrospective effect to pending matters.
|The Court had regard to the Interpretation of Statutes Act No. 33 of 1957 (the “Interpretation Act”) and, more specifically, section 11 thereof, which governs the position where the law or rule has only been amended. In such cases there is, significantly, no provision for pending matters except that they continue to be governed by the repealed provisions until the new provision comes into operation.
Further, the Court considered the common law position as to whether a law or rule is to be regarded as having retrospective effect (so that it would be applicable to pending matters, which is resolved by reference to whether the amendment related to a substantive right or a procedural issue. If the new law or rule relates to a substantive right, it is to be treated as prospective only, but if it related to a procedural issue, it is to be regarded as retrospective in its effect. Notwithstanding this ‘general rule’, our courts have been cautious to warn that the ability to allocate the amendment into one category should not be decisive – the real issue is whether a substantive right or obligation would be impaired if the amendment, even if categorised as procedural, would impair substantive rights or obligations.
In the circumstances, the Court found that a plaintiff will retain its right to pursue an expedited procedure for summary judgment – but must only wait until it can know what it is that it is declaring indefensible. This cannot amount to a substantive impairment of rights, just as it is not regarded as giving rise to real prejudice in other contexts.
Lastly, the Court contemplated the intention of the legislature, as informed by the Rule Board’s reasons, which reflected an appreciation that the hearing of a summary judgment application on the section as it was, posed substantial prejudice to all parties. To argue that the amendment is prospective only would be to accept that the legislature was content that the potential for injustice may continue after the date on which the new rule came into operation. In addition, the argument that, if the legislature had intended the new Rule 32 to operate retrospectively, it would have said so expressly. However, this would require of the legislature to restate the current position as it applies under the Interpretation Act, and as it has manifested in our uncontested common law jurisprudence.
Accordingly, the Court concluded, under the Interpretation Act, the guidance available in common law, and what must have been intended by the legislature, the amendment to Rule 32 is applicable to all applications for summary judgment which fall to be decided from 1 July 2019. As such, all applications which do not comply with the amended Rule 32 are to be removed from the roll and the parties thereto are invited to comply with the new Rule 32.
The effect of this is that a defendant will be entitled to proceed to deliver its plea, as so, for the purposes of time frame, to proceed as was (and still is) provided in Rule 32(7): as if no summary judgment application had been made.
|The amendments to Rule 32 are to be given retrospective effect to pending matters.|
Written by Sean Buskin and supervised by Kerry Theunissen