Loyiso Sidimba
GAUTENG High Court Deputy Judge President Roland Sutherland has issued a stern warning to legal practitioners not to abuse court processes and delay proceedings.
In a notice issued earlier this month, Judge Sutherland warned that such practices could lead to punitive costs against offending lawyers as this was in violation of the code of conduct for legal practitioners.
”Implicit in the function that this court (special interlocutory court) has to fulfill is that the hearing cannot be delayed. The purpose of the court cannot be fulfilled if an allegedly delinquent party serves a notice of opposition, which has the effect of a delay in the hearing into the non-compliance,” read the notice dated May 12.
Interlocutory applications are those made pending the main proceedings in a matter before court.
Judge Sutherland further said that whether a matter was opposed or unopposed, its hearing must take place on the date set down.
“An allegedly delinquent party may file papers or simply present oral argument. Whether a postponement is appropriate, which is likely to be rare, given the nature of the areas of possible genuine dispute about non-compliance, is for the judge to decide.”
According to Judge Sutherland, it would rarely be likely that a postponement was justified and that a pattern of an abuse of the process in the special interlocutory court had become apparent where a notice of opposition was filed to undermine the process, often cynically.
He further warned: “That will not be tolerated and punitive costs may be visited on a party that seeks to delay the enquiry into why the orderly progress of a case is already being delayed.”
Judge Sutherland said the special interlocutory court will hear unopposed and opposed matters on the date set down without exception and that if the scope of a controversy that legitimately arose over the failure to comply with a procedural step, should not infringe on the merits of the main matter.
He also reminded legal practitioners that their code of conduct stated that a legal practitioner should not abuse or permit abuse of the process of court or tribunal and should act in a manner that would promote and advance efficacy of the legal process and should not deliberately extend the duration of a case before a court or tribunal.
Judge Sutherland said the objective of the special interlocutory court was to address non-compliance by an allegedly delinquent party – which was not always a defendant and/or respondent, but usually so – with an obligation due under the rules of court, practice manual or practice directives.
“This court is open to all types of cases, trials applications and appeals. Its rationale is to prevent delay and gamesmanship. It is for that reason that access to the court is simple and quick and that an order can quickly be given to prevent delays,” he said.
In the special interlocutory court, the requirement is that cases be set down on seven clear court days’ notice before the hearing date, that they be succinct and where appropriate, brief heads of argument are submitted at the hearing.
In addition, according to Judge Sutherland, there was no express prescription about what would happen if an allegedly delinquent party sought to oppose the application in the court.