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CONSOLIDATED PRACTICE NOTES

WESTERN CAPE HIGH COURT

CAPE TOWN

By direction of the Judge President the following Consolidated Practice Notes are operative with effect from 1 May 2009.

INTRODUCTION

1. All existing Court Notices, Practice Notes and Old Cape Rules currently in force in this Division are hereby repealed and replaced with these Consolidated Practice Notes (Practice Notes).

2. In these Practice Notes, unless the context otherwise indicates -

1. 'day' means court day;

2. 'Judge President' includes the Deputy Judge President or Acting Judge President, as the case may be;

3. 'rules' means the Uniform Rules of Court and any word or expression defined in the rules bears the same meaning herein.

A. COURT TERMS AND TIMES OF SITTING

3. There shall be four terms in the year during such periods as the Judge President may determine from year to year.¹

4. Subject to the discretion of any individual judge to order differently, all the courts of this Division will ordinarily commence at 10h00.²

5. Subject to Practice Note 6 below, Fridays during term are reserved for the hearing of appeals, reviews, other matters to be heard by more than one judge and such other matters as the Judge President may permit to be enrolled.³

6. Admissions⁴

1. During term all applications for admission and enrolment as an advocate, attorney, notary and conveyancer will be heard by two judges on the first Friday of every month, unless the Judge President, on prior request and for good reason, orders otherwise.⁵

2. The presiding judge will deliver a short address at the com­mencement of proceedings.

3. In order to minimise disruptions and to enhance the dignity of the occasion, all persons attending the proceedings (including practitioners appearing for applicants) will be requested to remain in court until the roll has been com­pleted..

4. Whenever the number of applications set down for a particular day justify doing so, the roll will be split and will be dealt with separately during a morning and afternoon session.

7. All other matters shall be heard on any other day during term unless otherwise directed by the Judge President;⁶ provided that no new opposed matters are to be set down for hearing in the last week of any term without leave of the Judge President.⁷

8. Once the hearing of any matter has commenced and the presiding judge is available, such matter shall, save in exceptional circumstan-ces, continue until it is concluded; provided that matters that are not completed during the second last week of any term shall not auto-matically continue during the last week of term without the leave of the presiding judge.⁸ In this regard, the convenience of counsel shall not be regarded as an exceptional circumstance.⁹

9. During court recesses -

1. all unopposed matters (except divorce actions) shall be heard on TUESDAYS in Third Division;

2. all unopposed divorce actions, as well as applications in terms of Rule 43 (opposed and unopposed), shall be heard on WEDNESDAYS in the Third Division;

3. all Notices of Set Down for matters in Third Division shall be filed before 12h00 on the preceding FRIDAY;

4. urgent and/or opposed matters shall be heard at such times as the senior duty judge may determine;

5. in special circumstances, any other matters may be heard on such dates as the Judge President may direct;

provided that during the period between Christmas and New Year no court shall sit, save where circumstances otherwise require.

10. Circuit courts shall be held on the dates and at the venues determined by the Judge President from time to time.¹⁰

B. DOCUMENTS AND PLEADINGS

11. All documents filed with the Registrar -

1. shall be typed and printed in black ink on white paper of A4 size in double spacing on one side of the paper only with a font size not less than 12 point; provided that the court may, in its discretion, relax these requirements where a litigant appears in person or where circumstances require;¹¹

2. shall have a margin of at least 35mm, which serves as a binding space and shall not be used for notes, signature, initials, stamps, etc; provided that where a document which is to be used as an exhibit, is not of A4 size or does not have a margin of 35mm or more, it should, where possible, be gummed to paper of A4 size¹²

3. shall bear in the left-hand lower corner of the first page of such document the name, telephone number and (where available) the e-mail address of the legal representative filingsuch documents.¹³ Where a litigant acts in person, the rele-vant details of such litigant shall likewise appear,

12. The Registrar's office may refuse to accept any document which does not comply with these requirements.¹⁴

13. Whenever due to urgency it is not possible timeously to file an original document with the Registrar or to hand it in from the Bar, a copy thereof (including a facsimile copy) may be filed or handed in provided that -

1. such a copy shall be clear, clean, fully legible, on paper of good quality and of A4 standard size;

2. the original document shall be placed in the relevant file as soon thereafter as possible.¹⁵

C. MOTION COURT AND 'FAST LANE'

14. The Judge President will allocate two duty judges to Motion Court (Third Division) each week of the year, starting at 17h00 on each Friday, including court recesses.¹⁶

15. Enquiries as to which judge is on duty after court hours each day and during weekends must be directed only to the registrar on duty.¹⁷

16. One of the judges will hear all unopposed matters as well as opposed Rule 43 applications in Third Division.¹⁸

17. The other duty judge, presiding in what is known as the 'Fast Lane' Court, will deal with the following matters: ¹⁹

    1. all unopposed urgent applications brought under Rule 6(12) not on the ordinary Third Division roll;

    2. all matters becoming opposed on the Third Division roll;

    3. all matters which, even if unopposed, are in the opinion of the senior duty judge such as to warrant a hearing in a sepa­rate court, either by reason of the complexity of the matter or the volume of papers;

    4. all chamber book applications;²⁰

    5. all matters referred to the 'Fast Lane' Court by the Judge President.

18. In all matters to be heard in the Third Division a notice of set down must be filed with the Registrar by no later than noon on the day but one prior to the date of hearing.²¹

19. Save where the court is prepared to condone the defect, matters in which the set-down has preceded the expiry of the dies induciae may be struck from the roll with an appropriate order as to costs.²²

20. In all opposed matters in Third Division (including Fast Lane) -

    1. the applicant's attorney must file a practice note when setting the matter down, indicating -

1. whether or not the matter is likely to proceed on the allocated date;

2. where applicable, the grounds of urgency;

3. if the matter is to be postponed, the reason(s) for the postponement;

4. full details, including contact numbers, of the legal representatives of all the parties.²³

1. where the matter is likely to proceed on the allocated date, the papers in the court file must be collated, indexed and paginated before the matter is set down;²⁴

2. where it is anticipated that argument is likely to last for more than half a day, the parties must approach the Judge President for directions regarding the hearing of the matter.²⁵

21. The judge hearing opposed matters in Third Division (including Fast Lane) may, after hearing the legal representative(s), make an order but need not furnish reasons therefor unless reasons are requested in terms of Rule 49(1)(c).²⁶

22. Whenever reasons for a court's order are required (whether in terms of Rule 49(1)(c) or otherwise), the legal representative concerned shall deliver such application or request for reasons to the judge from whom the reasons are required.²⁷

23. The papers in the court file must likewise be collated, indexed and paginated -

1. in all return days; and

2. in all matters where the papers exceed 50 pages, whether the matters are opposed or unopposed.

24. It is the responsibility of the applicant's (or plaintiff's) attorney in all matters to ensure that the court file is in order when filing the notice of set down.²⁸

25. Matrimonial Matters

    In all divorce actions -

1. there shall be personal service of the summons on the defendant unless service other than personal service has been authorised;²⁹

2. where more than six months have elapsed between the date of service of the summons and the date of set-down, notice of set-down shall be given to the defendant, unless the court in the exercise of its discretion dispenses with this require­ment.³⁰

3. the original or a copy of the marriage certificate of the parties shall be handed in at the hearing;³¹

failure to comply with the requirements set out above may result in the matter being postponed or struck from the roll with an appropriate order as to costs.³²

24. Save where the court in its discretion and on good cause shown dispenses therewith, all applications in terms of section 21(1) of the Matrimonial Property Act 88 of 1984, and all applications under section 88 of the Deeds Registries Act, 47 of 1937, shall, in additionto the requirements of those Acts, also follow the guidelines laid down in Ex parte Lourens et uxor 1986 (2) SA 291 (C).³³

25. Service and Publication of Orders

1. Whenever a rule nisi or a provisional order has to be served (whether by delivery and/or publication and/or posting), such service shall be effected not later than 10 days prior to the return date of the said rule nisi or provisional order.³⁴

2. Whenever an order of court has to be published in a newspaper or in any other publication, such order shall be published only in the language of the relevant newspaper or publication, irrespective of the language in which the order is issued, unless an order is specifically made that the order of court be published in another language. Where, however, a newspaper or publication is published in more than one language, priority shall be given to the language in which the order of court is issued.³⁵

3. In all return days an affidavit must be filed by the applicant's attorney of record, setting out in what respects there has and/or has not been compliance with the court order and attaching the relevant supporting documents (eg court order, sheriff's return and/or other proof of service, publication or posting).³⁶

4. Where an order of court has been published in the Gazette or a newspaper, the full sheet with the heading and the date of a Gazette or newspaper containing the relevant publi­cation should be attached to the affidavit referred to in the preceding paragraph. This page must be folded to A4 size in such a way as to show the order and the date of publication.³⁷ Alternatively, and if only a cutting of the order is filed, the date and newspaper in which it was published shall be proved by way of the affidavit referred to in the preceding paragraph, which shall explain inter alia why the full page is not filed.³⁸

   These directions shall apply mutatis mutandis where service is effected by way of edictal citation or substituted service.

24. Default Judgments

Applications for default judgment in terms of Rule of Court 31(5) must be made substantially in accordance with Form "A" in the Schedule hereto and all such applications must be accompanied by a draft order substantially in accordance with Form "B".³⁹

24. Postponements

1. As soon as possible after applicants' legal representatives become aware that a matter on the Third Division roll is to be postponed or removed from the roll, they shall without delay notify the registrar of the duty judge concerned.⁴⁰

2. Where a matter has previously been postponed, an affidavit must be filed motivating an application for any further postponement.⁴¹

24. Notice of Applications for Sequestration / Liquidation

1. Save where the court in its discretion and on good cause shown dispenses therewith, notice of intention to apply for a provisional order of sequestration shall be given to the debtor and, if married, to the debtor's spouse (whether married in our out of community of property), who shall be joined as a respondent,⁴²

2. Save as provided in sub-paragraph (3) below, notice of intention to apply for a provisional order of liquidation shall be given to the company concerned prior to the filing of the application.⁴³

3. The court may in its discretion dispense with the requirements of the preceding sub-paragraph where the court is satisfied that it would be in the interests of the company or ofthe creditors to do so, or that the company has knowledge that such application is to be made.

4. In the case of so-called 'friendly sequestrations' or, in the case of applications for winding-up, where the applicant is the company itself or an insider, notice of the provisional order shall also be given to creditors with claims in excess of R5 000, unless the court orders otherwise, (With regard to 'friendly sequestrations' in general, the attention of practitioners is drawn to the judgment in Craggs v Dedekind and three similar matters 1996 (1) SA 935 (C).)

24. Reports by the Master and other Government Officials

1. In all applications requiring a Master's report (including those brought as matters of urgency) the attorney of record for the applicant shall first lodge his/her application with the Registrar who will in the normal course issue an appropriate case number.

2. Thereafter a copy of all the papers filed of record shall be submitted to the Master under cover of a letter requesting a report and the Registrar's case number should appear from the documents thus served upon the Master.

3. The onus will thereafter be on the attorney to lodge the Master's report in the appropriate court file and shall not enrol the matter until he or she has done so.⁴⁴

4. The provisions of paras (1) to (3) above shall apply equally to all applications for Voluntary Surrender.⁴⁵

5. Applications for the court's sanction where it is required under the Companies Act should first be submitted to the Registrar of Companies for a report, and such report is to be included in the papers placed before the court.⁴⁶

6. The procedure set out in the preceding sub-paragraph shall, subject to the provisions of section 97(1) of the Deeds Registries Act, 47 of 1937, apply mutatis mutandis in all cases requiring a report by the Registrar of Deeds.⁴⁷

24. Removal of Restrictions from Title Deeds⁴⁸

    In applications for the removal of restrictions from title deeds imposed in terms of a Town Planning Scheme, the order to be issued should, as far as possible, follow the form as approved in Ex parte Kilian; Ex parte Wiehahn 1963 (2) SA 576 (T).

25. National Credit Act 34 of 2005⁴⁹

    1. In any action instituted in terms of the National Credit Act 34 of 2005 (the Act), the summons or particulars of claim must allege that there has been compliance with the relevant provisions of sections 127, 129 and 131 (as the case may be), read with section 130 of the Act.
    2. In order to satisfy the court of the matters referred to in section 130(3) of the Act, an affidavit by the credit provider must be filed when judgment is applied for.

26. Urgent Applications ⁵⁰

1. When an application is alleged to be of extreme urgency, the applicant's legal representative shall approach the Registrar to arrange a hearing as soon as possible in consultation with the duty judge.

2. Practitioners are expected to adhere as far as possible to the basic requirement of Rule 6(5)(a) that Form 2(a) be used in applications, including applications with an element of urgency. (In this regard, the attention of practitioners is drawn to the judgment in Gallagher v Norman's Transport Lines 1992 (3) SA 500 (W) at 502 D - 504C.)⁵¹

3. Opposed matters which are not of extreme urgency but which are nevertheless too urgent to await a hearing in the ordinary course on the continuous roll, will be granted some preference. For convenience these matters are called 'semi-urgent' matters.

24. 'Anton Piller' Orders ⁵²

    1. In all applications brought ex parte for an order to allow the entry and search of premises (an 'Anton Piller' order), a draft order substantially in accordance with Form "C" in the Schedule hereto (varied or amplified to the extent necessary in particular circumstances) is to be attached.

    2. When service of the order is effected, it shall be accompanied by a copy of the notice to respondent substantially in accordance with Form "D" in the Schedule hereto (varied or amplified to the extent necessary in particular circumstances), and the attention of the person served is to be pertinently directed to such notice and order, and no further steps in pursuance of the order shall be taken until the notice and order have been read or read to and understood by the said person and he has availed himself of his rights thereunder should he wish to do so. Where necessary, the services of an interpreter are to be called for.

    3. The 'supervising attorney' referred to in the notice and draft order should be an attorney whom the court considers suitable in the circumstances and who is not a member or an employee of the firm acting for the applicant. The application shall include information as to the identity and experience of the proposed supervising attorney.

    4. Where the premises concerned are likely to be occupied by an unaccompanied woman and the supervising attorney is a man, at least one of the persons attending on the service of the notice and order should be a woman.

    5. The order and the accompanying notice are to be served by the sheriff and the contents explained by the supervising attorney in whose presence and under whose supervision the provisions of the order are to be carried out. The supervising attorney shall ensure that no items are removed from the premises until a list of items to be removed hasbeen prepared, and a copy thereof has been supplied to the applicant's attorney and the person served with the order, if present, and such person has been afforded a reasonable opportunity to check such list. The supervising attorney shall not permit the premises to be subjected to a search for items not appearing on the schedule of listed items referred to in paragraph 2 of the order.

    6. The supervising attorney shall file with the registrar, by no later than noon on the day but one preceding the return day of the order, a concise report describing the manner in which the order was complied with. The supervising attorney shall ensure that a copy of his/her report is delivered to applicant's attorney and to respondent (or his/her attorney, if represented).

25. Hague Convention Matters⁵³

    1. Ail applications brought pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 will ordinarily be treated as urgent, subject to the right of any party to argue that it should not be so treated in any given case.

    2. It will be the responsibility of the applicant's legal representa­tives to ensure that the court file is clearly endorsed so as to indicate that it is a 'Hague Convention' matter. Where an applicant is not represented, the Registrar should assist litigants insofar as is possible.

    3. The relevant court file must be placed before the duty judge at the earliest opportunity.

    4. Should the matter not be disposed of by the judge in the urgent court during the course of that particular week, the judge that dealt with the matter or another judge designated by the Judge President will ordinarily be seized with the matter and will continue to manage the case procedurally, with due regard to the urgency thereof, until it is ripe for hearing, the aim being to ensure finalisation within a maxi­mum of 6 weeks from date of issue of the application.

26. Chamber Book Applications⁵⁴

    Applications may be brought through the Chamber Book in the following matters; -

1. to authorise the issue of process on Saturdays, Sundays, public holidays and outside the times specified in Rule 3;

2. for directions as to the set down of applications referred to in Rule 6(11);

3. for judgment on confession as provided for in Rule 31 (1);

4. for judgment following acceptance of an offer or tender and failure to pay or perform within the period specified in Rule 34(7);

5. for an order for payment of unpaid costs following acceptance of an offer or tender made in terms of Rule 34(9);

6. for an order as to the conditions for the conduct of an examination as provided for in Rule 36(3);

7. for an order to resolve a dispute as contemplated in Rule 36(7);

8. for an order for the transcription of a record (see Rule 39(19));

9. for an order by consent of the parties for the transfer of a trial to the magistrate's court, subject to the proviso in Rule 39(22);

10. for leave, in an in forma pauperis matter, to withdraw, settle or compromise the proceedings or to discontinue assistance therein and for the giving of directions as to the appointment of a substitute(s) (see Rule 40(5));

11. for directions for service in applications involving the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) 19 of 1998;

12. for an order on a case submitted by the taxing master (including an award as to costs) in terms of Rule 48(2);

13. for an order by consent of the parties for the promotion of a matter on the roll, such matter to be decided by the Judge President or, in his or her absence, by the senior duty judge;

14. for an order by consent of the parties removing a matter to another division of the High Court or to a circuit court or for the removal of a matter from the circuit court to the court sitting in Cape Town or for the removal of a matter to the Divorce Court;

15. for an order for the substitution of a curator ad litem;

16. for an order referring any matter concerning the welfare, custody or maintenance of minors to the Family Advocate for investigation and report;

17. for the grant of an interdict (or the amendment or the setting aside thereof) by consent of the parties pursuant to the provisions of the Prevention of Family Violence Act, 1993;

18. applications by minors for leave to marry or to enter into apprenticeships or other contracts where the court's sanction is sought;

19. applications to compel the filing of opposing papers where a notice of opposition has been filed, but no further steps have been taken by the respondent, failing which the matter may be enrolled on the unopposed roll;⁵⁵

20. for any order which is required to be brought in Chambers by reason of the provisions of any Act or law or these Practice Notes.

D. TRIALS AND OTHER OPPOSED MATTERS

24. Upon the close of pleadings, the plaintiff's attorney, or if he or she fails to do so, any party, may apply for a trial date by entering the relevant particulars as required by the Registrar in a register kept for that purpose.⁵⁶

25. Before applying for a date of set-down, the attorney in question shall collate, number consecutively and suitably secure all pages of the pleadings and documents in the court file. A complete index thereof, together with a questionnaire substantially in accordance with Form "E" in the Schedule hereto, shall also be prepared and delivered.⁵⁷

26. The Registrar will not allocate a trial date in any trial matters until such time as the provisions of Practice Note 39 above have been complied with.

27. Pre-Trial Procedure and Case Management⁵⁸

    1. In order to ensure that it is effective, a pre-trial conference should be held after discovery and after the parties have exchanged documents and further particulars.⁵⁹

    2. At a pre-trial conference the parties must genuinely endeavour to achieve the objects of Rule 37 (by definingtriable issues and curtailing proceedings) and the minute must show this.⁶⁰

    3. A document which purports to be a pre-trial minute but which does not achieve the objects of Rule 37 (e.g. if it is a mere recordal or paraphrase of the agenda items for discussions at a Rule 37 conference), shall not be accepted as a proper pre-trial minute. Proper compliance with Rule 37(4) is required to ensure a meaningful conference.⁶¹

    4. Where any party is of the view that the matter is ready for trial, but no notice of a trial date as contemplated by Rule 37(1) has as yet been received, or that for any other reason a conference as contemplated by Rule 37(8) before a judge in Chambers needs to be convened, such party may apply through the Chamber Book, on notice to all other parties, for an order that such a conference be convened; provided that no such conference will be convened unless the party requesting the conference has complied with the provisions of Practice Note 39 above.

28. Allocation of Opposed Matters

    1. Where a matter set down for hearing on the continuous roll is placed before the Judge President for allocation to a judge, and the provisions of Rule 62(4) have not been complied with, or the signed minute referred to in Rule 37(1)(a) has not been filed, the Judge President may refuse to allocate such matter to any judge and may order that the matter be struckfrom the roll for the date for which it has been set down, and he/she may make such other order or orders as to him/her seems appropriate, including any order as to costs.⁶²

    2. Before 09h30 on the day before a matter on the continuous or opposed motion roll is set down to commence, the plaintiff's / applicant's counsel (or in the event of the plaintiff's / applicant's counsel not being available, his/her instructing attorney) shall advise the secretary to the Judge President in writing (including facsimile and/or e-mail)⁶³ -

       1. whether or not the matter has been settled;

       2. if not settled, what the prospects are of the matter being settled;

       3. of the likely duration of the matter;

       4. the names and telephone numbers of counsel on both sides; and

       5. a brief description of the issues involved.⁶⁴

    3. As soon as possible after counsel becomes aware that in a particular matter on the continuous or motion roll witnesses and/or counsel from out of town will be testifying or appearing, this information shall be conveyed by counsel to the secretary to the Judge President.

    4. If an opposed matter is settled, or is to be withdrawn or postponed, or if any issue raised will not be pursued, the attorney of record shall, without delay, notify the Registrar in terms of Rule 41(3) and, where applicable, shall immediately delete the entry on the continuous roll.⁶⁵

29. Early Allocation of Opposed Matters

    1. If any matter on the continuous roll requires early allocation, the legal representatives for the plaintiff, excipient or applicant (as the case may be), shall after compliance with the provisions of Rule 62(4), deliver to the secretary of the Judge President, not less than ONE WEEK before the date of hearing, the relevant court file, together with a notice to that effect, setting out the case number, the names of the parties and their legal representatives, and the date of hearing.⁶⁶

    2. The notice shall otherwise comply with the provisions of Practice Note 42(2) above and shall include a list enumerating those parts of the record or the heads of argument, if applicable, which, in the opinion of the parties' legal representatives, are not relevant for the determination of the matter.⁶⁷

    3. Matters will be deemed to require early allocation, as contemplated above -

       1. where the papers (including annexures) in the matter exceed 200 pages; or

       2. where the issues are such that the judge allocated to hear the matter would, in order to prepare for the hearing, reasonably need to receive the papers earlier than he or she would normally do so (that is, the day before the hearing).⁶⁸

    4. Failure to comply with the provisions of this notice may result in the matter not being heard on the allocated day.⁶⁹

30. Opposed Motions ⁷⁰

    1. The Registrar shall keep an Opposed Motion Roll, separate from the continuous roll for trials.

    2. The applicant or respondent in an opposed motion shall apply to the Registrar for a date of set-down on the Opposed Motion Roll in terms of Rule 6(5)(r) after complying with the requirements of Practice Note 39 above.

    3. The Registrar shall allocate the first available date of set-down and shall give notice to all parties of such date, which date shall not be less than 25 days from the date of such notice.

    4. The applicant's legal representative shall, together with the applicant's heads of argument, file a short note setting out the name and number of the matter, the names of counselinvolved (if known) and, in brief, the nature of the matter and its estimated duration. If an applicant is not represented, this sub-paragraph shall be complied with by respondent's legal representative.

E. APPEALS & HEADS OF ARGUMENT

24. Leave to appeal ⁷¹

    Whenever an application for leave to appeal to the Supreme Court of Appeal or to the Full Court of this Division is lodged with the Registrar, the following procedure will apply, both to civil and criminal matters:

    1. Counsel or the attorney for the applicant for leave to appeal shall simultaneously therewith deliver a copy of such appli­cation together with the relevant court file to the judge against whose judgment and/or order the application is directed.

    2. Counsel or the attorney for the applicant for leave to appeal shall, after consultation with counsel or the attorney for the respondent, and not later than 10 days after the lodging of the application, approach the judge in chambers in order to arrange for a convenient time and date for the hearing of the application.

    3. Whenever counsel or the attorney for the applicant fails to take the steps provided in para (2) above, the attorney for the respondent may not later than 15 days after the lodging of the application and on 48 hours notice to the attorney for the applicant approach the judge to arrange a time and date for the hearing of the application.

    4. An unrepresented party who lodges an application for leave to appeal shall simultaneously therewith deliver to the Registrar an additional copy of the application which is endorsed for delivery by the Registrar, together with the relevant court file, to the judge against whose judgment / order the application is directed.

    5. Whenever a party in a civil matter is unrepresented, the provision of paragraphs (2) and (3) shall be complied with as if such party was his/her own legal representative save, however, that the unrepresented party and/or the legal representative of any other party shall approach the Registrar who will in turn approach the judge in order to arrange for a convenient time and date for the hearing of the application.

    6. Whenever the applicant for leave to appeal in a criminal matter is unrepresented, the Director of Public Prosecutions or his/her representative shall not later than 15 days after the filing of the application approach the Registrar who will in turn approach the judge in order to arrange for a convenient time and date for the hearing of the application. The Registrar shall give the applicant written notice of the date fixed, which notice shall be posted to the applicant not less than 10 (ten) days before the hearing.

    7. Where counsel and/or the attorney for a party or the party, as the case may be, fails to comply with the provisions afore­said, the judge may take such steps as he/she deems necessary to deal with the application.

25. Civil Appeals ⁷²

^{Heads of argument in all civil appeals to the Full Court of this Division and all civil appeals from the Magistrates' courts shall be delivered in accordance with the provisions of Rules 49(15) and 50(9) respectively.}

24. Criminal Appeals to the Full Court

Heads of argument in all criminal appeals to the Full Court of this Division shall be delivered in accordance with the provisions of Rules 49A (3), (4) and (5).

24. Criminal Appeals from Magistrates' Courts

Heads of argument in all criminal appeals from the Magistrates' courts shall be delivered in accordance with the provisions of Rule 51(4). Pursuant to this rule the Judge President of this Division has determined as follows:

1. The appellant's heads of argument and list of authorities together with two copies thereof shall be delivered not less than 15 days before the date on which the appeal is set down for hearing and the respondent's not less than 10 days before such date.

2. Delivery by the appellant of heads of argument in terms of Rule 51(4), read with Rule 1, shall include service on the Director of Public Prosecutions of such heads of argument in accordance with the time-periods provided for in para (2) above.

3. Not less than 30 days prior to the date on which a criminal appeal from the Magistrates' court is set down for hearing, the attorney of record or advocate for the appellant (or the appellant) shall confirm in writing to the Director of Public Prosecutions that the appeal is to proceed on the date allocated in the notice of set-down for the hearing thereof. Failing timeous receipt by the Director of Public Prosecutions of such confirmation, the appeal will not be heard on the allocated date and will be struck from the roll.⁷³

24. Appeals Generally

    1. Failure on the part of an appellant to comply with the provisions of Rules 49(15), 49A(3) and (5), 50(9) and 51(4) as read with Practice Note 53(1) above may result in the appeal being struck from the roll or dismissed. Failure on the part of a respondent to comply with any of the said provisions will result in the court making such order thereanent as it deems fit, unless in each such instance condonation of such failure is sought on good cause shown on written application, and is granted. In the case of a civil appeal, the court may make such order or orders as to costs as may to it appear appropriate.

    2. 'Heads of Argument' shall mean, in addition to or in lieu of the 'concise and succinct statement of the main points (without elaboration) which he intends to argue on appeal' as provided for in Rules 49(15), 49A(3), 50(9) and 51(4), full heads of argument with, where appropriate, references to the record and to the authorities relied upon, together with a list of such authorities. Appellant or his or her legal representative(s) shall, when delivering the heads of argument and after consultation with the other parties' legal representative(s), file a statement setting out which portions of the record, if any, they regard as irrelevant to the appeal and to which they do not intend to refer.

    3. 'Deliver' in Practice Notes 51, 52 and 53 above shall include the handing in of heads of argument at the office of the Registrar (Room 24 in the case of criminal appeals and Room 5 in the case of all civil appeals) and the entering of the required particulars in the register for heads of argument by the person handling the same.

    4. The Judge President may, in any particular instance when he/she deems it expedient to do so, determine earlier dates than those provided for in this Notice.

25. Heads of Argument in Other Matters⁷⁴

    1. In all matters (except trials and civil or criminal appeals) which have been set down for hearing or argument on a specific date by the Registrar, heads of argument as defined in Practice Note 49(2) above and clearly indicating the names of the parties, the number of the case and the date upon which it is set down on the roll shall be delivered by counsel as follows, viz.

       1. by the delivery of an appropriate number of copies of the heads of argument of plaintiff, applicant, or excipient (as the case may be) to Room 5 of the office of the Registrar and by the entry of the required information in the register of heads of argument by the person who files same not less than 10 days before the date upon which the matter is to be heard;

       2. by like delivery of the heads of argument of defendant or respondent (as the case may be) in like manner not less than 5 days before the said date;

       3. by exchange between the parties' attorneys of a copy of each party's heads of argument on the dates on which same are filed in Room No 24 by Counsel;

    2. The Judge President may in any particular instance determine earlier or later dates than those prescribed in these directions.

    3. Failure on the part of a plaintiff, applicant, excipient or appellant (as the case may be) to comply with the provisions of these directions may result in the matter being struck from the roll or dismissed. Failure on the part of defendant or respondent (as the case may be) to comply with the said provisions will result in the court making such order as it deems fit, unless in each case condonation of such failure is sought on good cause shown by way of written application and is granted; and the court may make such order or orders as to costs as may to it appear appropriate.

^{F. CRIMINAL MATTERS}

24. Pre-trial Conference in Criminal Matters ⁷⁵

    1. The provisions of this rule shall apply to all criminal trials to be heard in the High Court from the beginning of the Second Term, 2008.

    2. All criminal trials shall be preceded by a pre-trial conference conducted in terms of this rule.

    3. The notification of the trial date shall be accompanied by a notice of the date upon which the pre-trial conference is to be conducted in terms of this rule.

    4. The pre-trial conference shall be conducted under the control of the presiding judge.

    5. The pre-trial conference shall in all cases be attended by:

       1. the accused;

       2. the legal representative of the accused;

       3. a representative of the DPP,

    6. The purpose of the pre-trial conference is to consider, and, where appropriate, to address matters such as:

       1. the legal representation of the accused;

       2. admissions sought by the DPP and the accused;

       3. the consideration of plea agreements;

       4. the compliance by the parties of their pre-trial obligations in terms of the Act and the rules;

       5. the state of readiness for trial of the respective parties.

    7. All parties may seek directives from the presiding judge in regard to the implementation of any pre-trial procedures.

    8. The DPP shall be responsible for the preparation of a minute of the conference, to be filed as soon as possible after the conclusion of the conference,

    9. The procedure set forth in this Practice Note is intended as a pilot project to avoid unnecessary delays in criminal trials. Amendments to the procedure may be considered on an ongoing basis in the light of the experience gained by all participants in the course of the application of this rule in practice.

25. Pro Deo / Legal Aid counsel in Third Division

    1. Practitioners acting at the request of the court or upon legal aid instructions in High Court criminal trials will be allowed to retain their briefs to appear in respect of unopposed matters in Third Division on the same day; provided that they shall -

       1. notify in advance the registrars of the respective judges presiding in their criminal trial and in Third Division of the fact;

       2. appear in Third Division at 10h00 when their matters will receive precedence; and

       3. report back to the registrar of the judge presiding in the criminal trial as soon as their unopposed matters have been disposed of.

    2. Save as set out above, such practitioners will not be allowed, without the prior consent of the judge presiding in the criminal trial, to retain any clashing briefs for appearances in any other courts while the criminal trial is running.

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