15 January 2020 by Cliffe Dekker Hofmeyr Dispute Resolution Alert

Not as speedy as its predecessor: The new Rule 32

1 July 2019 marked the end of an era. An era where Rule 32 of the Uniform Rules of Court could be used as a “speedy” relief. In this article we will refer to the unamended Rule 32 as the old Rule 32 and the amended Rule 32 as the new Rule 32.

Legal practitioners know that there are three remedies available to them to obtain a judgment without any undue delay: (i) Default judgment; (ii) Summary judgment; and (iii) Consent and confession to judgment. Summary judgment is provided for in terms of Rule 32 of the Uniform Rules of Court. Unlike a default judgment where the defendant fails to file an opposition, the old Rule 32 dealt with situations where an opposition is filed, however, the court proceeds to grant judgment against the defendant on the plaintiff submission that the defendant’s only reason for opposition is to delay the matter. In other words, judgment is granted without hearing the version of the defendant.

Naturally, for a lawyer the audi altarm partem (“listen to the other side”) bells starts to ring. The audi alteram partem principle emphasises the importance of giving each party an opportunity to respond to the evidence against them. Some would argue that the audi alteram partem principle is the secret ingredient to natural justice. Be that as it may, the old Rule 32 was extraordinary and was permitted in very limited circumstances as will be discussed below. The new Rule 32 seems to show more reverence to the audi alteram partem principle by the introduction of the plea of the defendant prior to the plaintiff making an application to court for summary judgment.

The legal position under the old Rule 32

Importantly, the old Rule 32 was designed as an extraordinary measure which circumvented the audi alteram partem principle in that a defendant was not afforded an opportunity to place his/her version before the court prior to judgment being obtained. The old Rule 32 was indeed a “quick fix” relief. That being said, there were various mechanisms in place to prevent injustices and/or prejudice to the defendant. For instance, under the old Rule 32(1) a plaintiff was only permitted to apply for summary judgment if his/her claim was: (i) based on a liquid document; (ii) for a liquidated amount of money; (iii) for delivery of specified movable property; or (iv) for ejectment.

Based on these grounds a court would grant a summary judgment if satisfied that the plaintiff had a very clear case and the defendant had no bona fide defence. Under the old Rule 32 the plaintiff was required to apply for summary judgment within 15 days after the defendant gave notice of intention to defend. Crucially, the plaintiff was not permitted to request summary judgment when he/she was already aware of a bona fide and reasonable defence. The defendant also had other avenues at its disposal such as:

(i)    filing an affidavit in which the defendant discloses the nature and grounds of his/her defence;

(ii)    raising a technical legal point; or

(iii)   raising a counter claim (whether liquidated or unliquidated, provided it contained a full disclosure of the nature and grounds thereof as well as the material facts upon which it relies).

Under the old Rule 32 the defendant’s defence was dealt with on an ad hoc basis provided there was a valid and/or bona fide defence. Put differently, being provided an opportunity to raise a defence was allowed in limited circumstances - but it was not part and parcel of the “main” procedure.

Way forward under the new Rule 32

The new Rule 32 is anchored in two strict principles: Certainty and audi alteram partem. Under the new Rule 32 a plaintiff cannot make an application to court for a summary judgment prior to the defendant delivering his/her plea. Unlike the old Rule 32, the new Rule 32 sets a defendant’s plea as a prerequisite before the plaintiff can proceed with an application for summary judgment. This requirement attempts to give a court the last say in determining whether a defence is entered simply to delay proceedings. Previously this decision was with the plaintiff. In other words, if the plaintiff believed that the defendant filed a notice of intention to defend for the sole reason of delaying the proceedings, the plaintiff was at liberty to approach a court for summary judgment.

In terms of the new Rule 32, after receipt of the defendant’s plea the plaintiff may approach a court within 15 days for an application for a summary judgment. Two things are evident: (i) The defendant is given an opportunity to state his/her case as a matter of procedure; and (ii) the plaintiff is not left to speculate whether there is a valid bona fide defence. The essence of time evidently plays second fiddle to certainty and audi alteram partem under the new Rule 32. This hierarchy is confirmed by the extension of days in which the plaintiff can set down the application: The old Rule 32 required set down within 10 court days, the new Rule 32, 15.

Conclusion

The doctrine of stare decisis is a long-standing doctrine in South African law primarily concerned with creating certainty and uniformity in judicial decisions. The new Rule 32 strives to create a regime where certainty prevails rather than prioritising a speedy relief. Albeit the procedure under the new Rule 32 may be longer, the advantage is in its certainty. The plaintiff is not left to speculate whether the defendant has a valid bona fide defence. The prerequisite of a plea by the defendant puts the plaintiff in a better decision-making position as to whether to proceed by way of summary judgment or employ a different legal strategy.

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