Failure to Know or Follow the Rules of Court: A Civil Procedure Pitfall for Legal Practitioners

A judgment from the High Court of South Africa, Eastern Cape Division, Bisho, serves as a timely reminder for legal practitioners to diligently consult the rules of court before instituting proceedings to avoid the pitfalls that may arise from failing to follow a rule correctly.

The applicant sued the first and second respondents, seeking damages for alleged defamation. The applicant claims that on or about 6 April 2022, at a wholesaler in Peddie, Eastern Cape, the first respondent wrongfully and maliciously defamed the applicant while acting within the course and scope of her employment with the second respondent.

The respondents filed a special plea, asserting that the applicant did not comply with the requirements outlined in the Institution of Legal Proceedings Against Certain Organs of State Act, which requires litigants who intend to institute legal proceedings against an organ of state to give notice to the organ of state in a prescribed manner and within a specified time before instituting such proceedings.

In response, the applicant filed a replication containing the requisite statutory notices addressed to the National and Provincial Commissioners of the South African Police Service, along with proof of their delivery via registered mail.

The respondents, satisfied that the applicant had met the statutory requirements, gave notice of their intention to amend their plea. This ultimately resulted in the withdrawal of the special plea without a tender for the applicant’s costs.

Feeling aggrieved, the applicant gave notice of her intention to seek an order requiring the respondents to pay the costs arising from the withdrawal of their special plea, purportedly in accordance with Rule 41(1)(c) of the Uniform Rules of Court.

The respondents’ failure to tender the applicant’s costs escalated into a full-blown opposed application, despite the costs being relatively minor in the grand scheme of things.

Rule 41(1)(c) provides a mechanism for a successful litigant to recover the costs associated with proceedings when an action or application is withdrawn in its totality. This differs from the situation following the withdrawal of a special plea, where the balance of the dispute between the parties remains very much alive and will need to be adjudicated by the court seized with the hearing of the matter. In such circumstances, the court seized with the hearing is best placed to deal with the costs associated with the withdrawal of a special plea as part of its inquiry into costs at the conclusion of the proceedings.

Consequently, the court ruled that the applicant wrongly relied on Rule 41(1)(c) and dismissed the application.

Article written by:

Jean-Paul Rudd

Partner, Adams and Adams

10.05.2024