South Africa: Constitutional Assembly Resources

18 JANUARY 1995

Dear Sir/Madam,

I have reason to believe that it is my Democratic Right to make the following submission which relates to the Amendments to the present Civil Practice of the Magistrate's Court in the Republic of South Africa.

Please be advised that I am making the following Submission based an Practical Experience in Litigation in the Magistrate's Court over a period of two years resulting in no fewer than 32 Court Appearances without the loss of are single case.

In my opinion, the present Legal System is open to corruption and as proof several instances can be sited.The court rules presently used in the Magistrate's Court of the Republic of South Africa lends itself to extreme corruption and therefore needs to be amended forthwith and as follows:

1. Ad Magistrate's Court Rule 52

Sub rule (1) (a) :
A party may institute or defend and may carry to completion any legal proceedings either in person, by a practitioner or by any other party knowledgable in court proceedings and so maninated for that purpose.

Sub rule (1) (b):
A local authority, company, firm, close corporation, community,family or any other party in doing so may act through an officer or non attorney nominated by it for the purpose.

Subrule (1) (c):

A partner or group of persons associated for a common purpose in doing so may act through a member thereof or a non attorney nominated by it for the purpose.

Subrule (1) (d):

No person acting under (a), (b) or (c) shall be entitled to recover any costs other than necessary disbursements unless the matter is settled in favour of client.

Subrule (5) TO RE ADDED

Where a practitioner, or any other party so nominated to represent a litigant, fails to settle a matter in favour of his client he shall not be entitled to any costs other than necessary disbursements.

Ad Court Rule 33

This entire rule to be amended so as to accommodate non attorneys.

Subrule (12)

In this subrule, and where the court deprives a successful party of its costs for taking a course that results in unnecessary costs being incurred, the practitioner should be penalised to pay the said costs and not the the client as is presently the case.

Ad RULES FOR COURT GUIDANCE (Rule 33)
RULE 1.

The general rule in matters of costs is that the successful party should be given his costs and should also be departed from in cases of misconduct by the representative, failure or refusal to carry out a direct instruction from a client or in other exceptional cases. In such cases not only Ruele 4 (Deprivation of costs) should apply but more particularly amendment to Subrule (12) above.

RULE 4 : Ad (iv) Increasing Costs through Wrong Procedure

The general rule is that costs that have been unnecessarily or ineffectively incurred should be borne by the party responsible therefore. I strongly submit that clients should be exempted from being held liable for the incompetency of practitioners.

Court Rule 39:

Ad Subrule (4)

While neither this subrule or subrule (6) destroy the common-law right of an owner, whose property was seized unlawfully by the sheriff, to sue the sheriff for its return this have proved to have become an extremely difficult and expensive operation when conducted by a registered practioner. I submit that this process should be conducted by specially appointed non‑attorneys so as to ensure the prevention of unecessary costs which they tend to run up for themselves.

Ad Court Rule ???

Any practioner or non attorney effecting withdrawal as representative of a litigant shall not be entitled to claim any costs of whatsoever nature and shall be bound to surrender to his client the entire contents of file matter upon such withdrawal. Failure to adhere to the aforesaid should constitute a criminal offence punishable by law.

Ad Court Rule 27

(DISMISSAL) If a plaintiff does not deliver a notice of trial timeously after the close of pleadings, the defendant may either do so himself or i.t.o. Rule 27 (5) be entitled to apply for dismissal of the action with costs.

NB. Presently the Court is taking a biased stand i.f.o.

attorneys by refusing to dismiss matters as if allowing attorneys to run up costs which will ultimately be paid by the losing party. THIS PRACTICE SHOULD CEASE IMMEDIATELY.

Ad Section 22 of the Magistrate's Court Act 32 of 1944:

11. ... to include non attorneys (as per above amendments) immediately prior to the writing of the New Constitution and should be entitled to be enrolled to practise in any Magistrate's Court.

Ad Section 23 of..... Act 32 of 1944:

Misconduct of Attorneys and Non Attorneys: Both the aforesaid practitioners should at all times be subjected to a CODE OF CONDUCT for representatives and not the present Law Society who, in my opinion, is protecting their members by way of 'ethics' cunningly devised by legals to protect legals.

THIS PRACTICE SHOULD CEASE IMMEDIATELY.

In view of the above it is my candid opinion that the aforementioned changes be brought about and be included in the New Constitution so as to ensure a Bill of Rights which will prohibit the exploitation by a relatively small group of qualified persons over an experienced and knowledgeable majority of South Africans who are in some cases as conversant with the laws and Court Procedure.

Kindly acknowledge receipt of this submission, at your e convenience.

DAVID G SASSMAN