Lord, have mercy upon us, and write all these thy laws in our hearts, we beseech thee. - People’s response to the reading of the Ten Commandments: Anglican Book of Common Prayer, 1662
Introduction
Litigation takes place within the procedural boundaries of the courtroom rules. These rules are housed in, among other places, the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa (“Uniform Rules”) [1]. However, if you don’t like the rules, and you’re the State, nothing stops you from changing them. A recent example of this is the deletion of Uniform Rule 49(11).
Why Rule 49(11) was special
Uniform Rule 49 deals with civil appeals from the High Court, in which relief is granted or denied. Provision for appeal is necessary, and it allows for a higher court to reconsider the merits of a matter and to decide whether or not to uphold the lower court’s decision. Ordinarily, the appeal process suspends the original High Court order.
Uniform Rule 49(11) read as follows:
Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs.
Uniform Rule 49(11) thus afforded a party, granted relief by the High Court but which has been appealed against, the opportunity to make an application in which she could ask the court to grant the relief to be rendered before an appeal is concluded. This would be dealt with in the leave to appeal process. The granting of such relief was not automatic. It was considered on a case by case basis.
The Uniform Rule could cause discomfort to the State if it had an obligation to implement the relief. It put a limit on the extent to which a drawn out appeals process could delay the granting of relief, particularly in cases where timely granting of relief was essential to its effectiveness.
In April 2015, the State repealed Uniform Rule 49(11) [2]. The implication is simply that we revert to the default position in all cases. In particular, a High Court order granted against the State will now always be suspended pending the outcome of the appeals process. Since the State has deep pockets, its power has increased to drag out matters which require urgent resolution.
Why would anyone want to remove Uniform Rule 49(11)?
In February 2015, the HSF made use of the Uniform Rule 49(11) application to enforce a finding of the High Court against the Minister of Police, even though the Minister had instituted pleadings in the Supreme Court of Appeal. The High Court had found the Minister of Police’s decision to remove the National Head of the Hawks, Lieutenant General Anwa Dramat, and the subsequent replacement of an acting National Head, Major General Bering Ntlemeza as irrational and unlawful. The application under Rule 49(11) was successful. The Minister’s subsequent appeal to the SCA was dismissed with costs.
Both before and after the appeal outcome, the Minister has ignored the High Court’s order. This is not the only time in the last twelve months that he has failed to comply with court decisions.
Conclusion
Rule 49(11) was just and its abolition has weakened a right. But all is not lost. Our High Courts have inherent jurisdiction. It is this inherent jurisdiction which may enable the content of Uniform Rule 49(11) to emerge in a new form. But the episode goes to show: rights are insecure until they are written on our hearts, as the Anglican Book of Common Prayer teaches.
Chris Pieters
Legal Researcher
chris@hsf.org.za
References
[1] - - GN R48 of 12 January 1965.
[2] - - GN R317 of 17 April 2015.
