Case management procedures report

Although, as a general rule, a party does not have to inform its opponent of the evidence that it intends to present at trial, the opponent is entitled to be informed of all documentary evidence (including tape recordings) that the other party wishes to use at trial. Accordingly the Rules of Court make provision for a discovery procedure, the purpose of which is to enable parties to prepare for trial, and provide for, amongst others, what, when and how it must be discovered. This procedure requires both parties to depose a Discovery Affidavit containing a list of all documents in their possession. The fact that a document has been listed in such an Affidavit merely indicates that the document may potentially be used at trial.

Unlike Application proceedings, discovery of documents in Action proceedings is mandatory and documents which have not been discovered cannot be relied upon at the trial.

(5) Notice of Expert Evidence

Generally a witness’ opinion will be inadmissible, however, an expert’s opinion will be allowed in circumstances where the expert has specific knowledge in a field that is outside the knowledge of the Court. A party wishing to call a witness to give evidence as an expert must, not less than 15 days before the hearing, deliver a notice of its intention to call such a witness and, not less than 10 days before the hearing, deliver a summary of the expert’s opinion with the reasons therefore to its opponent.

(6) Pre-Trial Conference

(i) General

Under the Uniform Court Rules, the Pre-Trial Conference serves as a case management system in South Africa. In general terms, there is however, less active involvement by Judges in the pre-trial process. In most instances, only the parties and their respective legal representatives are involved in the Pre-Trial Conference.

It is mandatory in all divisions of the High Court for the legal representatives of the opposing parties to attend a Pre-Trial Conference. which must take place no later than 6 weeks prior to the trial date.

At the Pre-Trial Conference parties are encouraged to get rid of many issues as possible by making formal admissions with the purpose of limiting issues that are in dispute. In this way the matter will only proceed to trial where there exist a real dispute thus saving the Courts’ time and costs. The parties may also agree to have the merits and damages to be adjudicated separately.

The purpose of such a meeting is to attempt to negotiate agreement on some of the issues, particularly administrative details, in order to shorten the length of the trial.

(i) After a date for the trial has been set and a notice thereof has been delivered to the Defendant, the Plaintiff is required to deliver a notice to the Defendant indicating the date, place and time for a Pre-Trial Conference,

(ii) Furthermore, in Action proceedings there is a mandatory Pre-Trial Conference. Relevant provisions regulating the Pre-Trial Conference are set out in the paragraphs below.

Each party shall, not later than 10 days prior to the Pre-Trial Conference, furnish every other party with a list of:

(i) the admissions which it requires;

(ii) the enquiries which it will direct and which are not included in a request for particulars for trial; and

(iii) other matters regarding preparation for trial which he will raise for discussion.

The minutes of the Pre-Trial Conference shall be prepared and signed by or on behalf of every party and the following shall appear therefrom:

1. 
   The date, place and duration of the conference and the names of persons present;
   
2. 
   if a party feels that he is prejudiced because another party has not complied with the rules of Court, the nature of such non-compliance and prejudice;
   
3. 
   that every party claiming relief has requested his opponent to make a settlement proposal and that such opponent has reacted thereto;
   
4. 
   whether any issue has been referred by the parties for mediation, arbitration or decision by a third party and, on what basis it has been referred;
   
5. 
   whether the case should be transferred to another Court;
   
6. 
   which issues should be decided separately;
   
7. 
   the admissions made by each party;
   
8. 
   any dispute regarding the duty to begin or the onus of proof;
   
9. 
   any agreement regarding the production of proof by way of an Affidavit;
   
10. 
    which party will be responsible for the copying and other preparation of documents; and
    
11. 
    which documents or copies of documents will, without further proof, serve as evidence of what they purport to be, which extracts may be proved without proving the whole document or any other agreement regarding the proof of documents.
    

In certain divisions such as the South Gauteng High Court (sitting in Johannesburg) no trial date will be allocated without signed minutes of a Pre-Trial Conference.

The practice directive for the South Gauteng High Court has set the following case management standards and procedures applicable within its jurisdiction:

1. 
   Any party to a trial who is of the opinion that by reason of its complexity, long duration or any other reason, the trial requires case management, shall deliver a letter to the registrar marked for the attention of the Deputy Judge President. The letter must set out:-
   

• 
  the names of the parties to the trial and the case number;
  
• 
  the nature of the dispute;
  
• 
  an estimate of the probable duration of the trial,
  
• 
  the reason why that party is of the opinion that the trial requires case management.
  

2. 
   Any party who is in receipt of such letter and who wishes to make representations in respect thereof may do so forthwith delivering a letter to the registrar marked for the attention of the Deputy Judge President. A copy of the letter must be delivered to all other parties to the trial and proof thereof must be provided
   
3. 
   The Registrar will advise the parties of the outcome of the request.
   
4. 
   In the event of the request for case management being granted, the Deputy Judge President shall appoint a Judge to undertake the case management of the trial.
   
5. 
   On the appointment of the Judge aforesaid:
   

• 
  all interlocutory Applications relating to the trial, will, as far as possible, be heard by that Judge.
  
• 
  any party to the trial, on notice to all other parties to the trial, may apply to the Judge for directions as to the conduct of the trial. The Judge may furnish such directions or direct that an interlocutory Application be brought.
  
• 
  the appointed Judge may direct that one or more Pre-Trial Conference be held before him or in his absence.
  

A Judge, who need not be the Judge presiding at the trial, may, if he deems it advisable, at any time at the request of a party or mero motu, call upon the attorneys or counsels for the parties to hold or to continue with a conference before a Judge in chambers and may direct a party to be available personally at such conference.

The Judge may, with the consent of the parties and without any formal Application, at such conference or thereafter give any direction which might promote the effective conclusion of the matter including the granting of condonation.

Although there is lack of uniformity in conducting Pre-Trial Conferences, different division of the Courts encourages – through practice directives – for litigants to approach the Courts for relief with genuine triable issues.

Various commentators are calling for a comprehensive procedural structure with active involvement by the Judges which will allow efficient pre-trial procedures and ultimately fair civil trials.

(iv) Costs Consequences

At the hearing of the matter, the Court shall consider whether or not it is appropriate to make a special order as to costs against a party or his attorney, because he or his attorney:

1. 
   did not attend a Pre-Trial Conference; or
   
2. 
   failed to a material degree to promote the effective disposal of the litigation.
   

The trial process is actively controlled by the parties and their legal counsel. The proceedings are recorded on tape so as to record the evidence, arguments and judgment.

The various phases of the trial are usually:

1. 
   the Plaintiff’s legal representative commences with an opening address, which provides the Judge with an overview of the case;
   
2. 
   examination of witnesses called by the Plaintiff, consisting of examination in chief by Plaintiff, cross-examination by Defendant and re-examination by Plaintiff;
   
3. 
   after the Plaintiff has closed its case, the Defendant’s legal representative is entitled to examination witnesses called by the Defendant, consisting of examination in chief by Defendant, cross-examination by Plaintiff and re-examination by Defendant;
   
4. 
   closing arguments are delivered by both the Plaintiff and the Defendant’s legal representatives; and
   
5. 
   the presiding Judge delivers judgment.
   

8. Appeals

It is possible to appeal a decision from the Trade Marks Registrar to the High Court. A decision in the High Court can be appealed to the Supreme Court of Appeal. In circumstances where there is a possible breach of the Constitution a party can appeal a decision from the Supreme Court of Appeal to the Constitutional Court.

A party may appeal the decision of the High Court by requesting leave to appeal at any time during delivery of the judgment or within 15 Court days after the date of the delivery of the judgment. The Application for leave to appeal is set down by the registrar of the Court, who gives written notice of the date to the parties, and usually heard by the same Judge. If leave to appeal is granted in the High Court, the appeal will be heard by a full bench of the High Court. An appeal is essentially a re-evaluation of the original judgment and the Court of appeal is limited to deciding on the record of the initial proceedings alone.

The Supreme Court of Appeal will only hear appeals where a party is granted leave to appeal a decision of the full bench of the High Court or where a Judge who granted leave to appeal directs that the appeal must be heard directly by the Supreme Court of Appeal. The Supreme Court can receive further evidence, remit the matter for further hearing by the Court whose judgment forms the subject of the appeal as well as confirm, vary or set aside the original judgment or give any other judgment.

9. Urgent Applications

It is possible to make Applications on an urgent basis, where the above time periods are waived. However, it is unusual that the Courts would allow a matter which is based on trade mark infringement to proceed on an urgent basis. The reasons given for urgency must be significant and there should be a clear and dramatic financial implication to the party seeking the urgency before it would be allowed to proceed on this basis.

10. Anti-Counterfeiting proceedings

Measures to prevent trade in counterfeit goods are regulated by the Counterfeit Goods Act 37 of 1997. The purpose of this act is to enable trade mark owners to take speedy Action to protect their brands against counterfeiters. The Act authorises certain officials to obtain a search and seizure warrant prior to formally instituting proceedings in the High Court. Search and seizure raids are conducted based on the warrant and suspected counterfeit goods are seized and detained.

Once the raid has been conducted the complainant can institute High Court proceedings against the suspect- usually by way of a Court Action as outlined above- or lay criminal charges against the suspect.

11. Acknowledgments