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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASEN0: 2006/17657

In the matter between:

LEZMIN 3509 CC Plaintiff

And

HOLLARD INSURANCE COMPANY LIMITED Defendant

________________________________________________________________

JUDGMENT

GOLDSTEIN J:

[1] On 19 March 2007 the Registrar of this Court gave written notice to the plaintiff’s then attorneys of record in Johannesburg that the case between the parties “will be called for hearing on: 12 November 2007”. The notice went on to refer to Rule 7 (5) of the Transvaal Rules and instructed the attorneys “forthwith” to “inform all the parties involved about the trial date”. On 26 March the plaintiff’s Port Elizabeth attorney, who still acts for it, instructed the plaintiff’s then Johannesburg attorney “to file a Notice of Set Down ..” The Johannesburg attorney failed to do so and ceased practicing, after which the Port Elizabeth attorney received a letter from Engela & Gibbens Attorneys to say that the file concerned had been “allocated to them by the Law Society …”

[2] The latter attorneys were thereafter appointed by the Port Elizabeth attorney to represent the plaintiff. Meanwhile, however, and before such appointment they served a notice of set down of the matter on the defendant’s attorneys on 15 August 2007.

[3] At a pre-trial conference, held between an attorney for the plaintiff and counsel and attorney for the defendant, on 4 October 2007, the defendant’s representatives conveyed the following which is minuted:

“The Defendant was prejudiced as a result of the Plaintiff not complying

with Rule 7(5) of the Transvaal Rules in enrolling the matter for trial. The

Defendant does not have sufficient time to prepare for the trial as a result

of the Plaintiff’s non-compliance with the Rules of Court. The Plaintiff is

requested to admit that the matter has not properly been enrolled and can

immediately apply for a new trial date.”

[4] Thereafter, and by notice of motion (headed “Notice of Application”), dated 16 October 2007 and served on the defendant’s attorneys on 19 October, the plaintiff sought an order condoning its “failure to comply with Rule 7 (5) of the Transvaal Rules relating to the formal enrolment … for hearing on 12 November 2007 …”, and, in the alternative, for the set down of 15 August to be declared sufficient compliance with rule 7 (5).

[5] The matter, indicated to be an opposed application, came before Mailula J on 29 October in terms of the direction in the Practice Manual of this Division that such matters are to be heard on a Monday. There was no appearance for the plaintiff but the defendant was represented and the learned Judge struck the matter off the roll, reserving costs. No good reason has been proffered for the lack of appearance and the plaintiff must accordingly be ordered to pay the wasted costs of the defendant’s appearance before Mailula J.

[6] Transvaal Rule 7 currently reads as follows:

“SET DOWN OF CIVIL CASES

7 (1) When the pleadings in any trial action have been closed the plaintiff or, if he fails to do so within six weeks after the close of pleadings, the defendant may set down the case on the roll by entering the required particulars in the register kept by the registrar in the form set out in Schedule D (1), and such a plaintiff or defendant or his attorney shall forthwith give the other party written notice that this has been done. If the party concerned is represented by an attorney, the entry shall be effected by such attorney or a candidate attorney of such attorney.

(2) The registrar shall set down as many cases for hearing on any court day as he considers can be tried on that day, in the chronological order in which the entries are made in terms of subrule (1).

(3) The registrar shall notify each party or his attorney of the date on which the action is set down for hearing. Notice shall be given by registered post dispatched to the address given as the address for service of pleadings. If a party or his attorney gave a telefax number the notice may be sent by telefax, provided that the telefax equipment used for the purpose indicates that the notice was received.

(4) The registrar may set down further cases for hearing on any court day if so authorised by the Judge President or a deputy judge president, or if he deems it advisable owing to the withdrawal or postponements of cases which have already been set down.

(5) Every party to an action who receives notice of the trial date shall forthwith, and in any event not later than seven days after receipt of such a notice, give notice in writing to every other party or his or her attorney of the date which was allocated by the registrar for the hearing: Provided that the party receiving notice from the registrar need not give such notice to a party who is represented by the same attorney as the party who is obliged to give notice.

[Sub-r. (5) substituted by GN R191 of 2002.]

(6) Any case not reached on the day for which it was set down shall be tried on completion of the case immediately preceding it, but always subject to the direction of the court, the Judge President or a deputy judge president.

(7) If any trial case which has been set down for hearing is settled or if the parties agree that the case be postponed, the party who caused the matter to be set down, or his attorney, shall forthwith notify the registrar thereof, and forthwith cause a notice of removal or post ponement to be filed.

(8) (a) A case which has been set down may be withdrawn from the roll on such conditions as may be agreed upon by the parties by means of a written notice to the registrar signed by all the parties or their attorneys.

(b) Subject to the provisions of paragraph (a) a case may be withdrawn from the roll only with the leave of the court and on such conditions as the court deems fit.”

(My Italics)

[7] In Reitmann v Jansen Van Rensburg 1984 (2) SA 174 (W) Coetzee J (as he then was) was concerned with Transvaal Rule 47 as it then read, in the following terms recorded at 178 E–H and introduced in 1964:

“(1) When the pleadings in any trial action have been closed, the plaintiff, or if he fails to do so within six weeks after the close of pleadings, the defendant may set down the case on the roll by entering the required particulars in the register kept by the Registrar in the form set out in schedule Dl and such plaintiff or defendant or his attorney shall give notice in writing to the opposite party that this has been done. If the party concerned is represented by an attorney, the entry shall be effected by such attorney or an articled clerk of such attorney.

(2) The Registrar shall compile a list which shall be called the weekly list of cases to be tried in each week during each civil term and shall enter into therein so many cases he considers can be tried during the week to which the lists relates for trial on specific dates in such week in chronological order in which the entries were effected in terms of subrule (1).

(3) The Registrar shall publish the weekly list not less than six weeks before the commencement of the week to which it relates by posting it on the notice board provided for this purpose in the entrance hall of the Court and by sending a notice by registered post to the attorney of each of the parties concerned or, if a party is not represented by an attorney, to the party at the address furnished by him to the Registrar as his address for service, informing him of the date of the trial. Provided that the Regis­trar may, should he consider that as a result of a case withdrawn or post­poned, there are insufficient cases on the weekly lists for trial, and if at least 14 days’ notice is given as aforesaid place further cases on the lists for trial.

(4) When a party receives from the Registrar the notice referred to in sub-rule (3) he shall forthwith and in any event not later than seven days after receipt of such notice, give notice in writing to every opposite party or his attorney that the case has been placed on the roll for hearing on the date appointed by the Registrar.”

[8] At 177G – 178B the learned Judge quoted the previously applicable Rule 47, and Rule 48, introduced in 1960, and the italics are his:

“47 (1) The Registrar shall keep a roll for the allocation of trial dates for civil cases. After pleadings have been closed, the plaintiff may forth­with set down the case on the said roll and for that purpose he shall give notice in writing to the Registrar and, if the plaintiff shall neg­lect to do so for six weeks after the pleadings have been closed, the defendant shall be allowed to set down the case on the said roll in like manner. The party who sets down the case on the said roll shall forthwith give notice to the opposite party that he had done so.

(2) (a) The Registrar shall compile and publish lists of the cases to be tried, which shall be called the weekly list.

(b) The weekly list shall be the list of cases which will be tried during the week to which the lists relates. A weekly list shall be com­piled and published relating to the cases commencing on the Monday of the week for each week during term. The Registrar shall set down for trial and shall enter in the weekly list as many cases as will be tried during the week to which the lists relates and shall set down the cases for trial on specified dates in the said week. The weekly lists shall be published on Friday six weeks before the commencement of the week to which it relates or, if the said Friday is a holiday, on the following, save that the Regis­trar may set down cases on at least 14 days’ notice, if any with­drawals should occur on any of the said list.

48. The weekly lists will be published by being posted on a board in the Registrar’s office. On the day upon which the weekly list is published, the Registrar shall give notice of trial by registered post to the parties in each case in the list by posting a written notice to the attorneys for each party or, if the parties have no attorneys, to the parties at their addresses of service. The said notice shall inform the parties of the date upon which the case has been set down for trial … ”

[9] Immediately thereafter at 178 C–D Coetzee J said the following of the then previous Rule 47:

“It is immediately apparent from the wording of Rule 47 and the first part of Rule 48, which, taken together, were really the predecessors of the present Rule 47 (1), (2), (3) and (4), that the regime introduced by this new Rule was, as far as the existence of a trial roll is concerned, a simple one whereby the Registrar not only kept the roll, but set down cases on that roll. The parties only set the ball rolling or put the machinery in motion, but the act of set down occurred purely in the Registrar’s office. Notification of that act or compilation of the Court’s roll took place thereafter.”

[10] And then at 178 in fin – 180A the learned Judge proceeded as follows to discuss the 1964 rule quoted in para [7] above:

“ I am informed by the Registrar of the Court that there is kept in his office basically only two documents, one the register, in the form of schedule Dl, for the purposes of subrule (1) and then the list. On this list the Registrar allocates a date for trial and he sends off this list to the attorneys concerned. The matters published on this list appear on the daily roll which is compiled and typed on the morning of the trial, to which the weekly list relates. Unless a matter is withdrawn, and regardless of what the parties do or do not do under subrule (4), these cases on the weekly list find their way on to the daily roll of trial cases in this fashion.

I am also informed by a very senior official on his staff, who has spent well over 20 years in this Division, that under the old regime before 1964, it happened on occasion that default judgments were granted against parties who did not turn up on the morning of the trial, who subsequently applied for rescission thereof when it appeared that the list which the Registrar forwarded to that party was not delivered by the Post Office and it is thought by this official that, as a result of that difficulty, the Rules were changed into their present form and that subrule (4) was then introduced.

This of course may be part of the explanation for subrule (4), but reading the Rule as a whole and comparing it with its 1960 coun­terpart, I think there is more to it than that.

It is perfectly possible that this kind of problem arose and that it was necessary to deal with that. But it is significant that subrule (4) was not simply added. What is more significant is that the whole wording of the Rule was changed. Whereas before the Registrar solely kept the rolls, the registers and placed matters on the roll, meaning enrolling them and giving notice of trial, now there is no suggestion in the Rule as reframed that the Registrar, merely by keeping the list, or compil­ing the list and publishing it, thereby enrolls a matter for hearing on the particular day indicated in the list. There are no phrases to be found in the Rule as reframed, such as appear in the 1960 Rule (which I have already italicised and there are a number of them) indicative of the Registrar setting the case down for trial and giving notice of this set down. It seems to me, therefore, that it could very well have been the intention when the new Rule was framed in 1964, not only to add a rider, as it were, that the parties should ex abundanti cautela inform each other of the fact that the Registrar had placed the matter on the roll, but also to create slightly different machinery which now, in its totality, contained the fourth component, namely the notice, at least by the party who acted in terms of subrule (1) to enroll the matter by entering the required particulars in the register.

Although BOSHOFF JP did not say this, this could very well have been his reasoning and, if that is his reasoning, I cannot say that it is wrong. On the contrary, with respect, it is probably the only way of giving a sensible meaning to subrule (4) of Rule 47. To treat this Rule as merely some kind of unnecessary adjunct is not satisfactory. Rules are made to be followed and Rules are there so that rights and duties flow; in the event of non-compliance legal results flow. If however this Rule is read absolutely literally, it would mean that both plaintiff and defendant are obliged forthwith to give notice to each other. If both parties received their notices from the Registrar, and the one who was not responsible for placing it on the roll initially, then omits to give the notice under subrule (4), can the result possibly be that the matter is not on the roll? Obviously not. To read the Rule literally really leads to an absurdity which should be avoided. It seems to me that what was really intended to be said in subrule (4) is not ‘When a party receives from the Registrar’ but ‘When that party referred to in 47 (1) receives a notice ... ‘. That makes sense and also makes the Rule as a whole understandable and workable.”

(My italics)

[11] In Khambule and Another v Moloi and Another 1998 (2) SA 277 (W) Claassen J at 281D–282D, relying upon Reitmann, found that the failure to deliver a notice of set down to the other side by a party receiving notice from the Registrar of enrolment had resulted in the matter not being “properly set down”, since there was a “fourth component” to a proper set down, being service of the notice of set down on the other side. At that stage Transvaal Rule 7 read as it now reads, save for sub-rule (5), which was, however, intended to be superceded by a practice directive of the then Judge President reading substantially in the same terms as the present sub-rule (5). And so Claassen J was interpreting substantially the same Rule as I am confronted with. In my respectful view, Claassen J erred in not taking account of Coetzee J’s reasoning which distinguished between the 1964 wording of the Rule which Coetzee J was called upon to interpret, and the 1960 wording of the Rule, and in the result, Claassen J arrived at an interpretation of the current rule which I believe, with respct to an esteemed colleague, to be clearly wrong, and therefore not binding upon me.

[12] The current rule, which is, in a significant respect, very similar to the 1960 wording of Rule 47, repeatedly, like the 1960 Rule, speaks of “set down” by the Registrar, and sub-rule (5) speaks only of “notice” by the parties. Reading sub-rule (5) in its context of Rule 7 as a whole, it seems clear that its intention was, to borrow a phrase from Reitmann, “only to add a rider, as it were, that the parties were ex abundanti cautela (to) inform each other” of the set down by the Registrar. In my view, Transvaal Rule 7 currently provides that it is the Registrar who sets the matter down, that he then gives notice of such in the prescribed manner to the parties, and that they in turn give each other notice, only as a precaution against the Registrar’s notice not being received. This interpretation gives effect to the clear meaning of the current rule, and renders it less formalistic than it would be if the approach in Reitmann and Khambule were persisted in. Of course, proof that a party, who fails to appear at the trial, in fact has knowledge of the trial date will usually be furnished by the production of the notice in terms of Rule 7(5), since the fact that the Registrar’s notice, dispatched in terms of Rule 7 (3) by registered post or telefax, reached the other side will not be easily accepted. Cf Reitmann at 176F–G, Khambule at 281B–C, H.

[13] Khambule is also distinguishable from the present case in an important respect. In Khambule the applicants received notification of the trial date from the Registrar, but the respondents did not – 281 I–J. in the present case the defendant, whose attorney deposed to a lengthy answering affidavit, did not suggest that his firm did not receive the Registrar’s notice of set down, and it follows therefore that it did.

[14] It follows too that the present application was unnecessary. However, there does appear to be good grounds to condone the plaintiff’s non-compliance with Rule 7(5), although such condonation probably has little, if any, effect. Since the plaintiff sought an indulgence which was opposed on reasonable grounds, it must pay the defendant’s costs. It is clear that the purpose of the application was to achieve a declaration that the matter is enrolled on the trial roll of 12 November, and, in the interest of clarity, I will make such a declaration.

[15] In the result, I make the following order:

1. The plaintiff’s non-compliance with Transvaal Rule 7(5) is condoned.

2. A declaration is made that the trial between the parties is enrolled on 12 November 2007.

3. The plaintiff is ordered to pay the defendant’s costs of the application including the costs reserved by Mailula J.

_________________________________

E L GOLDSTEIN

JUDGE OF THE HIGH COURT

For the plaintiff: S Aucamp

Instructed by: Ungerer Struwig Hattingh P E O (Port Elizabeth) Engela & Gibbens Attorneys (Johannesburg)

For the defendant: E Wessels

Instructed by: Botha & Sutherland

Dates of hearing: 6 November 2007

Date of Judgment: 9 November 2007

Transvaal Rule 7 currently provides that it is the Registrar who sets the matter down, that he then gives notice of such in the prescribed manner to the parties, and that they in turn give each other notice, only as a precaution against the Registrar’s notice not being received.

Proof that a party, who fails to appear at the trial, in fact has knowledge of the trial date will usually be furnished by the production of the notice in terms of Rule 7(5), since the fact that the Registrar’s notice, dispatched in terms of Rule 7 (3) by registered post or telefax, reached the other side will not be easily accepted.

Reitmann v Jansen Van Rensburg 1984 (2) SA 174 (W) distinguished and, Khambule and Another v Moloi and Another 1998 (2) SA 277 (W) not followed.

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