Rules Board for Courts of Law

Proposed Amendments to the Uniform Rule 46A of the Uniform Rules (Execution against residential immovable property)

As part of its rule-making and consultation process, the Rules Board invites your comments on the draft amendment proposed to Uniform Rule 46A.

The Rules Board for Courts of Law (Rules Board) has considered amending Uniform Rule 46A of the Uniform Rules (Execution against residential immovable property) for the reasons hereinafter indicated. Arising out of the operation of the rule in practice and out of certain judgments, the Rules Board considered that the rule should be amended to: (a) provide for instances where the property sought to be executed against is residential but is owned by a judgment debtor which is an artificial entity (such as a trust or company), whereas a natural person has acquired the right to occupy the property as his/her primary residence and the section 26 Constitutional right to have adequate housing is implicated; and (b) to provide clarity on what a court should do where a reserve price which was set by the court has not been achieved at a sale in execution, as well as to provide the procedure for bringing the reconsideration of the reserve price back to court. The amendments are proposed mainly to subrule (1) and subrule (9). The other amendments are ancillary and are intended to align with the main amendments. Regarding subrule (1) and following upon the judgment in P J Bestbier and Others v Nedbank Ltd Case No. 150/2021 [2022] ZASCA 88, the Rules Board considered amending subrule (1) of Uniform Rule 46A so as to extend judicial oversight and protection to property other than residential immovable property where a natural person has acquired the right to occupy the property as his or her primary residence.

Regarding subrule (9) and following upon the judgment in Standard Bank of South Africa Ltd v V N Tchibamba and Another 2022 (6) SA 571 (WCC), the Rules Board considered amending the subrule to provide clarity on what a court should do where a reserve price which was set by the court, has not been achieved at a sale in execution of the attached immovable property; and to provide the procedure for bringing the reconsideration of the reserve price before the court.

Your comments and inputs should be submitted to the Secretariat of the Rules Board by no later than 7 July 2023 and may be sent via hand delivery, post or email to:
Physical: 2nd Floor, Centre Walk East Tower, 266 Thabo Sehume (Andries) Street, Pretoria
Postal: P.O. Box 13106, The Tramshed, 0126
Email: AmSebola@justice.gov.za

Dated: 30 May 2023

---

Invitation to Comment on proposed amendments

Proposed Amendments to the Uniform Rule Uniform Rule 41A of the Uniform Rules (Mediation as a dispute resolution mechanism)

As part of its rule-making and consultation process, the Rules Board invites your comments on the draft amendment proposed to Uniform Rule 41A.

The Rules Board for Courts of Law (Rules Board) has considered amending Uniform Rule 41A of the Uniform Rules (Mediation as a dispute resolution mechanism). Arising out of the operation of the rule in practice and out of certain judgments, the Rules Board considered that certain amendments to the rule are necessary and desirable for the efficacious functioning of the objects of the rule and the process of mediation. The Rules Board had regard to inter alia the following factors: (a) In urgent applications there is no provision for what should occur if a party is unable to comply with the provisions of subrule (2), in particular the notice required, especially in applications launched in terms of the Prevention of Organised Crime Act, 1998 (Act No 121 of 1998); and (b) That in considering costs in terms of subrule (9), the court may consider the notice in terms of subrule (2) as well as any other factor which the court may consider relevant, so as to require parties to give serious consideration to mediation. The Rules Board considered addressing the issue in paragraph (a) above by inserting a proviso to subrule (2) to indicate that “in urgent applications the court or a judge may dispense with compliance with paragraphs (a) and (b).”. In settling on the proviso the Rules Board had regard to subrule (12) of Uniform Rule 6 (Applications) which regulates urgent applications and provides for the court or a judge to dispense with the forms and service provided for in the rules and considered that it would be useful for purposes of clarity to include in subrule (2) of Uniform Rule 41A, a provision that in urgent applications the court or a judge may dispense with compliance with paragraphs (a) and (b) of Uniform Rule 41A(2).

In considering the issue in paragraph (b) above, the Rules Board considered that in considering an appropriate costs order under subrule (9), the court may have regard to any other factor which is relevant to the awarding of costs in favour of or against any party.

Your comments and inputs should be submitted to the Secretariat of the Rules Board by no later than 30 June 2023 and may be sent via hand delivery, post or email to:
Physical: 2nd Floor, Centre Walk East Tower, 266 Thabo Sehume (Andries) Street, Pretoria
Postal: P.O. Box 13106, The Tramshed, 0126
Email: AmSebola@justice.gov.za

Dated: 30 May 2023

---

Invitation to Comment on proposed amendments

Proposed Amendments to the Supreme Court of Appeal Rule 8

The Rules Board for Courts of Law (Rules Board) has considered amending Supreme Court of Appeal Rule 8, which regulates the compiling of an appeal record for the hearing of an appeal in the Supreme Court of Appeal.

Subrule (6)(j) of SCA Rule 8 provides that unless it is essential for the determination of the appeal, colour photographs are not to be included in the record except where the parties agree to include colour photographs. To qualify subrule (6)(j), subrule (9)(a) also provides that where the decision of an appeal is likely to hinge exclusively on part of the record in the court a quo, colour photographs are to be included, by consent, where considered necessary.

The Supreme Court of Appeal has expressed the view that the application of subrule (6)(j) results in the Registrar not accepting a record which does contain colour photographs. This creates practical difficulties where the parties have agreed to include colour photographs.

The Rules Board has considered that since photographs are always necessary for the proper determination of an appeal and that experience has shown that the appeal judges require them, photographs should not be excluded from the appeal record. Regarding colour photographs, subrule 9(a) allows for those to be included by agreement.

The Rules Board has therefore considered that subrule (6)(j) of SCA Rule 8 should be amended by deleting “colour photographs” and “photographs” from the list items which are not to be contained in the appeal record.

As part of its rule-making and consultation process, the Rules Board invites your comments on the draft amendments proposed to SCA Rule 8 (ANNEXURE A).

Your comments and inputs should be submitted to the Secretariat of the Rules Board on or before 30 June 2023 and may be sent via hand delivery, post or email to:
Physical: 2nd Floor, Centre Walk East Tower, 266 Thabo Sehume (Andries) Street, Pretoria
Postal: P.O. Box 13106, The Tramshed, 0126
Email: MuCele@justice.gov.za

Dated: 11 May 2023