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Article by listed Cape Town attorney:   NICOLENE SCHOEMAN-LOUW





On 15 October 2010 the Rules Regulating the Conduct of the Proceedings of the Magistrate’s Courts of South Africa (generally referred to as the magistrates’ courts rules and referred to here as the ‘new rules’) came into effect. The new rules repealed the rules published in 1968 (‘old rules’). The changes were designed to align the High and Magistrates’ courts as far as possible.

In the old rules, rule 10 read:

“…If summons in an action be not served within 12 months of the date of its issue or, having been served, the plaintiff has not within that time after service taken further steps in the prosecution of the action, the summons shall lapse.

This has been omitted in the new rules.

According to Tinus Boonzaaier (published in the De Rebus of October 2011), the omission is based on public demand. The change is also based on the web page of an individual attorney, which said:

the lapsing of a summons after 12 months in terms of rule 10 may be fatal, especially in a demanding law firm, because of the unavailability of clients, failure of clients to provide instructions and prescription laws.

Despite the omission of rule 10, there is a question over whether the apparent reasoning leading up to the omission is legally sound. Section 54 of the Consumer Protection Act 68 of 2008 ensures a customer’s right to good quality service. In that context, if a firm is unable to issue summons, then that could constitute poor service delivery and the firm could be subjected to the provisions of the Consumer Protection Act.

Then there is the issue of prescription. The purpose of prescription in the litigation process and in protecting the rights of litigants (debtors specifically) is an important one which aims to promote legal certainty and order. The court considered in Road Accident Fund and Another v Mdeyide 2011 (1) BCLR 1 (CC), whether prescription of claims in Road Accident Fund matters is constitutional. Section 34 of the Constitution provides that:

“‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court.

The court decided that time limits play an important role in exercising the constitutional right to be heard at court. Time limits bring about certainty and stability and maintain the quality of adjudication. Rule 1(1) of the magistrates’ courts rules further amplifies this principle:

.... to promote access to the courts and to ensure that the right to have disputes that can be resolved by the application of law by a fair public hearing before a court is given effect to.

More specifically, section 11(d) of the Prescription Act 68 of 1969 provides that debt shall prescribe after a period of three years, unless the Act or another piece of legislation specifies otherwise. Section 15(1) of the Act states the prescription shall be interrupted when the creditor claims payment of the debt from the debtor — regardless of how the debtor is served. Prescription and the old rule 10 limits the time on which to bring the action and sets time lines for proceedingafter bringing it. This restriction helps to promote certainty in legal affairs.

Omitting rule 10 means that a passive plaintiff can effectively interrupt prescription for an indefinite period. This can potentially be abused, leading to much uncertainty.

The new magistrates’ courts rules should be amended. However, in the meantime, litigants should seek legal advice to ensure that plaintiffs issuing process do not intentionally delay actions so they can pursue them indefinitely as set out above.

Nicolene Schoeman, Schoeman Attorneys (Cape Town)

Tel: 0214255604