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THE EROSION OF THE PRINCIPLE OF ORALITY IN
SOUTH AFRICAN CIVIL PROCEDURE: FACT OR
FICTION?
Theo Broodryk*
Lecturer, University of Stellenbosch
1 INTRODUCTION
The principle of orality is the principle that parties are entitled to present their cases by means
of oral evidence and oral arguments.1 It entails that evidence on disputed questions of fact
should be given by witnesses called before the court to give oral testimony of matters within
their own knowledge. It enables the parties to confront through cross-examination those
witnesses who testify against them.2 The application of the principle enables the court to
observe the demeanour of a witness for the purpose of assessing his or her credibility. It is
assumed that the effectiveness of cross-examination depends upon an unprompted oral
response to an oral question in the presence of an adjudicator of the dispute.3 The importance
of the principle of orality in the common law of evidence is evinced inter alia by the fact that,
in the South African law of evidence, much greater weight is attached to answers given by
witnesses in court on oath or affirmation than to written statements previously made by
them.4
This article considers the origin and development of the principle of orality from the
perspective of the English law of evidence and civil procedure. It also reflects on the
incorporation and development of the principle in the South African law of evidence and civil
procedure. After having dealt with English reforms that have resulted in the erosion of the
principle in its civil system, it concludes by examining the South African position in order to
determine whether there has been a similar decline in orality in civil proceedings.
* BA LLB. I would like to thank Prof S E van der Merwe and Prof J E du Plessis for their input; however, the
usual caveat applies. 1 De Vos “Civil Procedural Law and the Constitution of 1996: An Appraisal of Procedural Guarantees in Civil
Proceedings” 1997 J S Afr L 444 457. 2 Dennis The Law of Evidence (1999) 12.
3 Hoffmann and Zeffertt The South African Law of Evidence 3 ed (1986) 352; Schmidt Bewysreg 3 ed (1989)
278-279; Homburger “Functions of Orality in Austrian and American Civil Procedure” 1970-1971 Buff L Rev
9. 4 See, for example, S v Adendorff 2004 2 SACR 185 (SCA); S v Mbata 1965 1 SA 560 (N); S v Rhamahila en
Andere 1966 2 SA 315 (T); S v Molefe 1975 3 SA 495 (T); Tapper Cross & Tapper on Evidence 12 ed (2010)
314; Van der Merwe “Refreshing the Memory of a Witness” 1991 Stell LR 62.
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2 ORIGIN AND DEVELOPMENT OF THE PRINCIPLE OF ORALITY
The English law of evidence, of which orality is a principal feature, serves as the common
law of the South African law of evidence.5 It may, accordingly, be instructive to consider the
historical origin and development of the principle of orality as part of the English law of
evidence.
The early stages of the development of the English law of evidence were characterised by the
dominance of religious and formalistic attitudes. Until the twelfth century, archaic modes of
proof were an important aspect of court activity.6 These archaic modes of proof were,
essentially, ordeals and oaths; both were appeals to the supernatural to determine the guilt or
innocence of a party.7 There was no rational adjudication process. It has been alleged that
the foundation of the accusatorial model can be found in the „trial by battle‟ – it was imported
as an ordeal after the Norman occupation of England and entailed that parties settled disputes
by way of a dual.8
In 1215, Pope Innocent through the Fourth Lateran Council forbade the administration of
ordeals. This contributed to the dissolution of the religious phase, created an opportunity for
the rational adjudication of evidence and resulted in the popularisation of oath-helpers (later
called “compurgators”).9 Even though an opportunity was created for the rational
adjudication of evidence, compurgation manifested a transition from the religious phase to a
formalistic one.10
Compurgators were people with personal knowledge of the facts who were prepared to state
under oath that the oath of one of the parties to the dispute should be believed.11
They did not
testify – compurgators were required to repeat a set oath in precise terms and penalties for
false swearing were severe.12
5 Schwikkard & van der Merwe Principles of Evidence 3 ed (2008) 2.
6 Van Caenegem The Birth of the English Common Law 2 ed (1988) 64.
7 Pollock A First Book of Jurisprudence for Students of the Common Law 4 ed (1918) 44-45; Pollock The History of English Law Before the Time of Edward I 2 ed (1898) ch IX s 4.
8 Schwikkard & van der Merwe Principles of Evidence 3. The physical confrontation (associated with trial by
battle) would later develop into verbal confrontation (cross-examination). 9
Van der Merwe “Die Evolusie van die Mondelinge Karakter en Uitsluitingsreëls van die Engelse Gemene
Bewysreg” 1991 Stell LR 281 292-293. 10
Murphy Murphy on Evidence 8 ed (2003) 5. 11
Van Caenegem The Birth of the English Common Law 66. 12
Murphy Murphy on Evidence 5.
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The sixteenth century was the transitional period and in the following century the function of
the jury as adjudicators of fact became crystallised and the importance of the calling of
witnesses was confirmed.13
The view, at the time, was that compurgators could make a
contribution of increased significance; consequently, compurgators were not merely called to
express a belief in the veracity of a party‟s oath, but also to act as adjudicators. A very basic
form of jury trial developed. However, the trial was still not a fact-finding forum as jurors
were people who already knew the circumstances of the accusation.14
As a result of the personal knowledge possessed by compurgators regarding the disputed
facts, the need arose to constitute a jury who did not possess knowledge of the facts. The jury,
at this point in time, acquired its distinctive character – the very thing that had previously
qualified a man (women were not called) for jury service, at a much later date disqualified
him. It was declared that a witness swears to what he has heard or seen and that a jury
member swears to what he can infer or conclude from the testimony of such witness.15
In
other words, the function of the jury changed – jurors had previously based their decisions
upon their own knowledge; now they were required to base their decisions on the evidence
put before them by the witnesses.16
In this regard, according to Emmett,17
the materials on
which jury members had to base their decisions of questions of fact in a time of widespread
illiteracy was primarily through word of mouth and this is, in itself, sufficient to explain the
marked preference in common law systems for orality in civil proceedings.
However, the jury was not completely trusted as adjudicators of fact. Exclusionary rules were
developed to ensure that certain categories of information were withheld from the jury.
Common law judges, as adjudicators of matters of law, feared that the jury, as adjudicators of
matters of fact, might place undue weight upon certain types of evidence considered
untrustworthy – this is, essentially, why the English common law of evidence is characterised
by its rigid exclusionary rules. These exclusionary rules contributed to the calling of
witnesses and the oral presentation of evidence (the hearsay rule, for example, to a large
13
Noakes An Introduction to Evidence 4 ed (1967) 19 states that, although witnesses were called to testify to the
jury in the fifteenth century, the practice was uncommon until the sixteenth century. 14
18. 15
Van der Merwe 1991 Stell LR 296-298. 16
Emmett “Towards the Civil Law: the Loss of „Orality‟ in Civil Litigation in Australia” 2003 UNSWLJ
447 449. 17
463-464.
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degree precluded the presentation of written evidence). It has, therefore, been said that the
jury indirectly contributed to the oral character of the English common law of evidence.18
During the latter part of the eighteenth century, the English law of evidence was characterised
by the development of the adversarial system of civil procedure. The concept of cross-
examination was developed – the concept being premised on the belief that verbal
confrontation between the parties and witnesses should be promoted. As the principle of
orality is central to the adversarial system – it is one of the traditional foundations of the
contested trial in common law systems of adjudication – this development contributed to an
increase in the manifestation of the principle of orality in English civil procedure.19
Sir Jack
Jacob20
states as follows in relation to the principle of orality as an integral part of English
civil justice:
“Another fundamental feature of English civil justice is embodied in the „principle of orality.‟ This
principle dominates the conduct of civil proceedings at all stages both at first instance, before and
at the trial, and on appeal, and in all courts both superior and inferior as well as in tribunals. Its
origins stretch back to the earliest days of the common law system of trial by jury, as this is the
obvious manner of the conduct of such a trial. It is a deeply ingrained habit of the English legal
process. It affords the medium for a litigant in person to take part in the proceedings and to present
his own case. It runs in parallel with the principle of publicity, and both orality and publicity are
crucial to the proper functioning of the adversary system. Even in instances where written material
is produced to the court, as where written pleadings or other documents such as affidavit evidence
or the correspondence between the parties, are referred to or reports of cases are cited to the court,
the actual hearing of the proceedings in court is conducted orally: there is the oral reading of the
relevant written material, the oral arguments, the oral exchanges between the court and the lawyers
or the parties if acting in person, the oral evidence at the trial, the oral judgment of the court.”
3 DEVELOPMENT OF THE SOUTH AFRICAN LAW OF EVIDENCE AND
CIVIL PROCEDURE
From 1652 until 1806, the law in force in the Cape of Good Hope was mainly that of the
province of Holland. Civil procedure was based on the civil21
ordinance of Philip II.22
18
Van der Merwe 1991 Stell LR 300. 19
302, 399; Emmett 2003 UNSWLJ 450. 20
Jacob The Hamlyn Lectures: The Fabric of English Civil Justice (1987) 19-20. 21
„Ordonantie op „t stuk van de Justitie binnen de Steden en ten platte landen van Holland en West Friesland‟ of
1580 (applicable to civil proceedings). 22
Edwards The History of South Africa: An Outline (1996) 73.
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Evidence was presented through the testimony of witnesses and in writing.23
The procedure
still differed from the present-day South African civil proceedings in that the adjudicator
(typically a judge or commissioner) played an active role in questioning witnesses while the
parties or their representatives played a less prominent role. There were no strict admissibility
rules and, consequently, the presentation of hearsay evidence was not prohibited, but merely
qualified by the requirement that evidence had to be relevant.24
After the second British occupation of the Cape in 1806 the existing legal system of the
colony was retained but, for two decades thereafter, there was increasing criticism of the
judicial system. This resulted in the investigation and reporting by English commissions of
enquiry – a report of one of the commissions resulted in the first Charter of Justice in 1827.
This Charter abolished the entire system of courts and created a new Supreme Court and
inferior courts staffed by resident magistrates and civil commissioners.25
This changed the
continental character of the South African law of evidence and procedure at the time. English
common law prevailed. This effectively meant that the inquisitorial system was replaced by
an adversarial system.26
In this regard, Erasmus27
states that:
“The forms of procedure devised under the Charters of Justice display the fundamental features
characteristic of proceedings at common law, namely the adversary character of the system; the
predominant role of the parties in the conduct of litigation; the passive and neutral role of the
Court, and the orality, immediacy and publicity of its proceedings.”
In relation to the influence of English law on the development of the South African law of
evidence and civil procedure, Schwikkard and van der Merwe28
state as follows:
“The nineteenth and twentieth centuries witnessed a large number of statutory reforms in England
as well as in South Africa. The South African legislature has in the past been inclined to base its
own legislation on principles contained in English legislation. Statutory reform has to a large
extent been aimed at relaxing the strict evidential rules which owe their existence to trial by jury.
The exact extent of the jury‟s influence on the historical development and modern rules of the
Anglo-South African law of evidence is debatable. At the same time, however, it is equally true
23
These witnesses were heard and examined in civil proceedings, although the concept of cross-examination
was still unknown. 24
Schmidt & Rademeyer The Law of Evidence (RS 10 2012) 1-13–1-14. 25
Hoffmann & Zeffertt The South African Law of Evidence 5. 26
Schmidt & Rademeyer The Law of Evidence 1-14. 27
Erasmus “The Law of Civil Procedure” in Van der Merwe & Du Plessis (eds) Introduction to the Law of
South Africa (2004) 432-433. 28
Schwikkard & van der Merwe Principles of Evidence 5.
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that a proper appreciation of some of the rules of evidence is only possible if these rules are
constantly seen and evaluated within the context of trial by jury – despite the fact that trial by jury
no longer exists. Trial by jury in civil and criminal cases was respectively abolished in South
African in 1927 and 1969, but we have retained an evidentiary system designed for jury trials.
Most of our exclusionary rules – and even some of our rules pertaining to the evaluation of
evidence – can be attributed directly to trial by jury. It may be said that the jury was perhaps the
single most significant factor in shaping the law of evidence. But the adversarial method of trial,
the principle of orality, the oath, the doctrine of precedent and the so-called best evidence rule
collectively contributed to our present intricate system in terms of which facts should be proved in
a court of law.”
The adversarial system and the principle of orality have been dominant characteristics of the
South African system of civil litigation. However, the English civil system has, to some
extent, moved away from the adversarial model. In this regard, inter alia, a comprehensive
reform of English civil procedure29
has severely curtailed the power of parties and
strengthened the authority of courts in respect of the exercise of control over proceedings,
resulting in a decline in orality in civil proceedings.30
4 ENGLISH REFORMS
On 26 July 1996, Lord Woolf, after having been instructed to report on options to consolidate
the existing rules of civil procedure, published his Access to Justice Report.31
Consequently,
in April 1999, wide-ranging reforms were introduced into the civil courts of England and
Wales. New Civil Procedure Rules were introduced as a result of the problems identified by
Lord Woolf in his review of the civil justice system, particularly the problems of cost, delay
and complexity brought about by a culture of excessive adversarialism. His
recommendations, known as the Woolf reforms, included the retention of the best aspects of
the adversarial approach and an increasingly active and inquisitorial management role for the
courts.32
29
Aimed at reducing the duration of judicial proceedings. 30
Zekoll “Comparative Civil Procedure” in Reimann & Zimmermann (eds) The Oxford Handbook of
Comparative Law (2006) 1330. 31
Access to Justice Final Report by The Right Honourable the Lord Woolf, Master of the Rolls, July
1996, Final Report to the Lord Chancellor on the civil justice system in England and Wales. 32
Murphy Murphy on Evidence 9 mentions inter alia that, in the continental law systems, there are relatively
few legal rules of evidence – any apparently relevant evidence tends to be admitted. The trial is inquisitorial
rather than adversarial. The court is proactive in supervising the investigation of the case as well as the
evaluation of evidence. The trial is conducted by one or more professional judges sitting without a jury as the
finders of fact and the judges of law.
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As a result of the Woolf reforms, there was a movement away from party control towards
greater court regulation of the conduct of litigation. Further evidence of the transition towards
a more inquisitorial approach to English civil procedure was the increasing measure of
control exercised by courts over excessive use of documents and expert witnesses, the
replacement of oral examination in chief by the submission of written witness statements and
the fact that hearsay have ceased to be inadmissible in civil proceedings.33
According to J A Jolowicz,34
changes in English procedural law can be divided into three
groups. The first group are those changes that have resulted in the informed judge with the
virtual abolition, for civil cases, of the rule against hearsay evidence. The second group
pertains to the changes brought about by the introduction of the Civil Procedure Rules. These
changes substantially increase the powers of the judge. Thirdly, there are those that are
intended to keep out of the courts as many as possible of the disputes which may prove
susceptible to resolution by means other than litigation.
According to Glasser,35
the adversary system and the principle of orality, as dominant
characteristics of the English system of civil litigation, have come under sustained attack and
the character of the system has changed to that of “a quasi-adversary system of civil
procedure”. Specifically, in relation to the decline in the principle of orality in the English
civil procedure, Glasser36
states as follows:
“In recent years English procedure has witnessed an erosion of the adversary and orality
principles, marked by increasing intervention by the court in the interlocutory process in
order to force the parties to trial and in a greater reliance on the use of written materials.
With the recent promulgation of the new Rules relating to the compulsory exchange of
witness statements, the English system has entered a new phase involving a redefinition of
the ability of the parties to control the progress of their own cases.”
33
Bailey, Ching, Gunn and Ormerod Smith, Bailey & Gunn on the Modern English Legal System 4 ed (2002)
1024. 34
Jolowicz “Adversarial and Inquisitorial Models of Civil Procedure” 2003 Int’l & Comp L Q 281 286-287. 35
Glasser “Civil Procedure and the Lawyers – The Adversary System and the Decline of the Orality Principle”
1993 Mod L Rev 307. 36
308.
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Further, in Lilly Icos Ltd v Pfizer Ltd,37
it was held that:
“Although the principle of the orality of the English trial remains untouched, practice has
moved greatly in the direction of the presentation of evidence and arguments in writing;
the use of documents by reference to them in those writings rather than by their being
read out in open court; and the consideration by the judge of a large part of that material
before the trial opens, so that it is not necessary to make specific reference to it during the
trial itself.”38
5 ORALITY IN SOUTH AFRICAN LAW
English law was central to the development of the South African law of evidence and civil
procedure. English civil procedure has, however, witnessed a decline in orality attributable
inter alia to diminished party-control and increased court-intervention as well as greater
reliance on the use of written materials. South African civil procedure has not undergone a
reform similar to that of England consequent upon inter alia the introduction of its Civil
Procedure Rules. However, notwithstanding the apparent lack of large-scale reform of South
African civil procedure, it may be worth considering whether there have been any
developments on a smaller scale evincing a decline in orality in South African civil
proceedings.
A central characteristic of the principle of orality is the requirement that evidence be adduced
orally, under oath, in the presence of the public and the parties to the dispute and subject to
examination, specifically cross-examination. Where a departure from the aforegoing
requirement occurs towards one in which greater reliance is placed on the use of written
materials in civil proceedings, it could conceivably be argued that such a departure
constitutes a departure from the principle of orality.39
South African civil procedural law contains numerous departures from the above requirement
that evidence be adduced orally and subjected to cross-examination. These departures are
primarily intended to simplify and expedite the proceedings and, for the most part, operate as
37
2002 1 All ER 842. 38
Par 7. 39
Section 42 of the Civil Proceedings Evidence Act 25 of 1965 incorporates the general common law provision
that a witness should give oral evidence in civil proceedings.
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supplementary, technical, procedures which are only used in exceptional circumstances. They
are essentially aimed at ensuring the effective functioning of a civil trial.40
One of the foremost departures from the requirement that evidence must be adduced orally,
under oath, in the presence of the public and the parties to the dispute and subject to
examination is that, during a civil trial, if the consent of the opposing party is obtained, it is
permissible to dispense with the requirement that witness testimony must be given orally.41
A further departure is contained in section 34 of the Civil Proceedings Evidence Act42
–
section 34 provides that, where a person is dead or unfit to attend as a witness or is outside
the Republic and it is not reasonably practical to secure his or her attendance or all reasonable
efforts to find him or her have been made without success, a written statement made by such
a person establishing an admissible fact, would be admissible as evidence on the production
of the original document. Section 35 deals with the weight that would be attached to such
statement if admitted as evidence.
Section 22 of the Civil Proceedings Evidence Act43
contains a further departure in providing
as follows:
“(1) Whenever any fact ascertained by any examination or process requiring any skill in
bacteriology, biology, chemistry, physics, astronomy, anatomy or pathology is or may become
relevant to the issue in any civil proceedings, a document purporting to be an affidavit made by a
person who in that affidavit alleges that he is in the service of the Republic or of a province or in
the service of or attached to the South African Institute for Medical Research or any university in
the Republic or any other institution designated by the Minister for the purposes of this section
by notice in the Gazette, and that he has ascertained such fact by means of such examination or
process, shall, subject to the provisions of subsections (2) and (3), on its mere production by any
party in such proceedings be admissible in evidence to prove that fact. [Sub-s. (1) amended by ss.
46 and 47 of Act 97 of 1986 and by s. 1 of Act 49 of 1996.]
(2) No such affidavit shall be so admissible unless a copy thereof has been delivered by the party
desiring to avail himself thereof to every other party to the proceedings at least seven days before
the date of production thereof.
40
Schmidt & Rademeyer The Law of Evidence 9-22. 41
9-23. 42
25 of 1965. 43
25 of 1965.
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(3) The person presiding at such proceedings may, upon the application of any party thereto,
order that the person who made such affidavit be called to give oral evidence in the proceedings
or that written interrogatories be submitted to him, and any such interrogatories and any reply
thereto purporting to be a reply from such person, given on affidavit, shall likewise be admissible
in evidence in such proceedings.”
According to Supreme Court Rule 38(2), the witness at the trial of any action must be
examined orally, but a court may at any time, for sufficient reason, order that all or any of the
evidence to be adduced at any trial be given on affidavit, or that the affidavit of any witness
be read at the hearing, on such terms and conditions as the court deems fit. The evidence
must be of such a nature that it is unlikely to be contested by the opposing party – when it
appears that the opposing party reasonably requires the attendance of the witness at trial for
the purpose of contesting the evidence by cross-examination and the witness can attend the
proceedings, the evidence of the witness may not be given by way of an affidavit.44
The
court‟s discretion must be exercised judicially and upon consideration of all the facts – there
must be clear evidence that a sufficient reason exists. The relevant factors that will be taken
into account by the court include “lack of means, distance from the court and serious illness
problems”.45
Supreme Court Rule 38(3) provides that a court may, where it appears convenient or
necessary for the purposes of justice, make an order for the taking of evidence before a
commissioner. Similarly, in terms of section 53(1) of the Magistrates‟ Court Act 32 of 1944,
a court may in any case which is pending before it, where it may be expedient and consistent
with the ends of justice to do so, appoint a person to be a commissioner to take evidence of
any witness, whether within the Republic or elsewhere, upon the request of one of the parties
and after due notice to the other party. Subsection (2) provides that the person so appointed
must put to the witness concerned such questions as have been transmitted to him or her on
agreement between the parties or must otherwise allow the parties to examine the witness. He
may himself or herself examine such witness as if the witness was being examined in court
and must record the evidence to be read over to the witness and to be signed by him or her.
Subsection (3) states that the record shall (subject to all lawful objections) be received as
evidence in the case. This departure from orality will, therefore, only be permitted where it
44
Theophilopoulos, Van Heerden and Boraine Fundamental Principles of Civil Procedure 2 ed (2012) 306. 45
Erasmus & Van Loggerenberg Erasmus: Superior Court Practice (RS 40 2012) B1-277.
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has been shown „necessary for the purposes of justice that the ordinary way of taking
evidence should be departed from‟.46
The court has a discretion to grant or refuse a
commission, which discretion is not absolute and must be exercised judicially and upon
consideration of all the facts. There must be clear evidence that a sufficient reason exists.
Interrogatories may be approved in civil cases in terms of Supreme Court Rule 38(5) and
section 39 of the Superior Courts Act10 of 2013. Similarly, in terms of section 52 of the
Magistrates‟ Court Act,47
whenever a witness resides or is in a district other than that wherein
the case is being heard, the court may approve of such interrogatories as either party shall
desire to have put to a witness and, together with any further interrogatories framed by the
court may subpoena the witness to appear take his or her evidence in manner and form as if
he or she were a witness in a case pending before that court. The court must then put to the
witness the interrogatories and such other questions as may seem to it necessary to obtain full
and true answers to the interrogatories and must record the evidence of the witness and must
transmit the record to the court in which the case is pending. The record shall (subject to all
lawful objections) be received as evidence in that case. The essential difference between
sections 52 and 53 is that section 52 permits taking evidence in the form of specific questions
(i.e. in the form of a „questionnaire‟) whereas section 53 pertains to the procurement of
general evidence. Also, section 52 can only be used where a witness is outside the district
than the one where the case is being heard.48
A further possible basis upon it could conceivably be contended that there has been a
departure from the principle of orality in South African civil proceedings, is the utilisation of
application proceedings rather than trial action proceedings in pursuing court-sanctioned
relief. According to Cilliers, Loots and Nel, it has become increasingly apparent that parties
are, in an attempt to obtain court-sanctioned relief in the swiftest and most cost-effective
manner, choosing to utilise application proceedings rather than trial action proceedings. They
specifically state that a “noticeable procedural development in more recent times has been the
increasingly extensive use of the application procedure in the High Courts”.49
46
Van Loggerenberg Jones & Buckle: The Civil Practice of the Magistrates’ Court in South Africa (RS 2 2012)
Act 351. 47
32 of 1994. 48
Van Loggerenberg Jones & Buckle: The Civil Practice of the Magistrates’ Court in South Africa Act 352. 49
Cilliers, Loots and Nel Herbstein and Van Winsen: The Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa 5 ed (2009) 292.
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Where there is a choice that must be made between the institution of proceedings by way of
motion or trial action proceedings, Cilliers, Loots and Nel50
state as follows:
“It is clearly undesirable in cases in which the facts relied upon are disputed to endeavour to settle
the dispute of fact on affidavit, for the ascertainment of the true facts is effected by the trial judge
on considerations not only of probability, which ought not to arise in motion proceedings, but also
of the credibility of witnesses giving evidence viva voce. In that event it is more satisfactory that
evidence should be led and that the court should have the opportunity of seeing and hearing the
witnesses before coming to a conclusion. „But where the facts are really not in dispute, where the
rights of the parties depend upon a question of law, there can be no objection, but on the contrary a
manifest advantage in dealing with the matter by the speedier and less expensive method of
motion‟ [Per Innes CJ in Frank v Ohlsson’s Cape Breweries Ltd 1924 AD 289 at 294]…there
appears to be no reason why, according to present practice, motion proceedings should not be
adopted generally in all classes of dispute other than those specifically excepted.”
Various reasons have been provided to explain the increasingly extensive use of the
application procedure as opposed to trial action proceedings. In Room Hire Co (Pty) Ltd v
Jeppe Street Mansions (Pty) Ltd,51
reference was made to application proceedings being less
expensive and time consuming as trial action proceedings and are therefore preferable where
there is no real dispute of fact . The court held that “Where no real dispute of fact exists, there
is no reason for the incurrence of the delay and expense involved in a trial action and motion
proceedings are generally recognised as permissible”.52
Apart from considerations of efficiency, the increase in the institution of application
proceedings at the expense of the trial action can also be attributed to the courts‟ growing
willingness to, rightly or wrongly, adopt a “robust common sense” approach by deciding
disputes of fact on affidavit without reference to oral evidence. In Sewmungal & Another
NNO v Regent Cinema,53
after having referred to Room Hire, Leon J (for a Full Bench) stated
that:
“there has been a tendency in recent years for Courts to decide disputed questions of fact on the
probabilities emerging from the affidavits without having any or any proper regard to the
50
293. 51
1949 3 SA 1155 (T) 1162. 52
In Corin NO v McKeever 2001 JOL 8135 (C) it was stated that there is nothing sacrosanct about a summons –
if the facts are not in dispute, there seems to be no logical reason for insisting on procedure by way of
summons if there is a more expeditious method of bringing the dispute to finality. 53
1977 1 SA 814 (N).
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advantages of viva voce evidence. ... I suspect that this tendency owes its origin to the remarks of
PRICE, J.P…”54
The remarks of Price JP to which Leon J, in Sewmungal, was referring to can be found in the
judgment of Soffiantini v Mould,55
where Price JP held as follows:
“It is necessary to make a robust, common-sense approach to a dispute on motion as otherwise the
effective functioning of the Court can be hamstrung and circumvented by the most simple and
blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely
because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by
an over-fastidious approach to a dispute raised in affidavits.”56
Similarly, in Carrara & Lecuona (Pty) Ltd v Van der Heever Investments Ltd and Others,57
Colman J held that there is a “duty to avoid fastidiousness and to make a robust approach to
the matter, applying as much common sense to the problem as I [Colman J] may happen to
command". Specifically referring to „farfetched or clearly untenable denials‟ in an affidavit
enabling a court to reject it on the papers (without referring the matter for viva voce
evidence), Cameron JA for the Supreme Court of Appeal in SA Veterinary Council and
Another v Szymanski58
held that supreme court practice (specifically the practice of the
provincial divisions of the High Court) “may sometimes be robust (in my [Cameron JA‟s]
view often rightly so)”.59
According to Erasmus, “changes in civil procedural law tend to be made slowly in piecemeal
fashion, the legal profession on the whole being resistant to change and „prepared to tolerate
gross anomalies and archaic procedures‟”. He mentions that “in almost every common law
jurisdiction steps have been taken to improve the machinery of civil justice by means of
reforms in procedure and court administration and to address the problems of delay, cost and
54
819F. 55
1956 4 SA 150 (E). 56
154G-H. See also Reed v Wittrup 1962 4 SA 437 (D) 443G; Western Bank Bpk v Trust Bank van Afrika Bpk
1977 2 SA 1008 (O) 1017E-H; Gemeenskapontwikkelingsraad v Williams 2 1977 3 SA 995 (W) 962F-G;
Jonker v Ackerman 1979 3 SA 575 (O) 599D-E; Wiese v Joubert and others 1983 4 SA 182 (O) 202F; The
Free Press of Namibia (Pty) Ltd v Cabinet of the Interim Government of South West Africa 1987 1 SA 614
(SWA) 621C-E; Rössing Stone Crushers (Pty) Ltd v Commercial Bank of Namibia 1994 2 SA 622 (NmHC)
627H-628A; Minister of Health v Drums and Pails Reconditioning CC 1997 3 SA 867 (N) 827C-J; Truth
Verification Testing Centre v PSE Truth Detection CC 1998 2 SA 689 (W) 698H-I; Rosen v Ekon 2001 1 SA
199 (W) 215B-D; Tecmed (Pty) Ltd v Hunter 2008 6 SA 210 (W) 217I-218B. 57
1973 3 SA 716 (T) 719G. 58
2003 4 BCLR 378 (SCA). 59
Par 23. See also Wightman t/a JW Construction v Headfour (Pty) Ltd and another 2008 3 SA 371 (SCA)
375F-376B and Buffalo Freight Systems (Pty) Ltd v Castleigh Trading (Pty) Ltd 2011 1 SA 8 (SCA) 14D-F.
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complexity”. He further states that steps taken to resolve these problems, such as inter alia
increased judicial involvement in the pre-trial phase of litigation, tend to undermine the very
foundations of the adversary system in that “the role of the judge in the civil process is vitally
affected and the central position of the orality principle is eroded”.60
It is possible to argue
that, what Erasmus had in mind, was something more substantial – something similar to the
English Civil Procedure Rules, the introduction of which has resulted in an erosion of the
adversary and orality principles, marked by increasing intervention by the court in the pre-
trial process and a greater reliance on the use of written materials. Where a departure from
the aforegoing requirement occurs towards one in which greater reliance is placed on the use
of written materials in civil proceedings, it could conceivably be argued that such a departure
constitutes a departure from the principle of orality.61
However, such a change has not yet
been effected to the South African civil justice system resulting in an erosion of the orality
principle.
As mentioned, one of the dominant characteristics of the principle of orality is the
requirement that evidence be adduced orally, under oath, in the presence of the public and the
parties to the dispute and subject to examination, specifically cross-examination. However,
the principle of orality encompasses somewhat more than the presentation of viva voce
evidence – it entails the oral conduct of proceedings in court, including inter alia the oral
reading of written materials, oral arguments, oral exchanges between the court and the parties
to a dispute, or their legal representatives, and so forth. Further, the procedures embodied in
the rules and sections referred to above have, for the most part, been part of South African
procedural law since the implementation of the Civil Proceedings Evidence Act 25 of 1965
and they mostly operate as supplementary, technical, procedures which are only used in
exceptional circumstances; for example, when a subpoenaed witness cannot appear at trial on
good cause shown. These are minor exceptions that constitute a negligible departure from
orality for obvious practical reasons – these departures are nothing more than trivial at best.
Furthermore, the increased tendency by parties to institute motion proceedings as opposed to
trial action proceedings is not something that is new to South African civil proceedings.
60
H J Erasmus “Civil Procedural Reform – Modern Trends” 1999 Stell L R 1 3-6, 14. 61
Section 42 of the Civil Proceedings Evidence Act 25 of 1965 incorporates the general common law provision
that a witness should give oral evidence in civil proceedings.
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Findlay, more than 60 years ago, stated as follows in relation to the increase in the institution
of application proceedings (as opposed to trial action proceedings):
“As compared with trial procedure, an application consists of the summons, declaration and
evidence of the plaintiff all rolled into one. That is its distinguishing feature. It invites the
Respondent also to amalgamate his plea and his evidence. In advancing the evidence in this
fashion the parties, at least at the outset, eliminate cross-examination, and there seems to be little
harm in that until their factual differences are localised. Moreover, in preparing the affidavits the
parties are less hampered by the personal idiosyncrasies and demeanours of their witnesses and
they avoid the enquiring interventions of the learned Judge. In effect, they close their cases before
presenting their matter to the court at all. This is an obvious economy both of expense and time.
The scale is heavily weighted in favour of applications, which thus enjoy increasing popularity”.62
Findlay also proffered various reasons to explain the increasingly extensive use of the
application procedure as opposed to trial action proceedings; for example, he mentions that
the reasons for the procedural change in favour of applications are premised in economy of
costs and economy of time.63
These reasons echo those referred to in the judgment of Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd,64
the latter judgment having been
rendered in 1949. It therefore appears that the statement by Cilliers, Loots and Nel65
that
there has been a noticeable procedural development in the increasingly extensive use of the
application procedure in the High Courts is a reference to a procedural development that had
been recorded more than half a century ago.
In practice, the choice of a party to utilise application proceedings rather than trial action
proceedings is not really one that can be made freely. Where there is a material dispute of fact
and the matter was instituted by way of motion, the party who instituted proceedings inter
alia runs the material risk of having its matter transferred to an action court or, even worse,
having its case thrown out by the court. In relation to minor factual disputes, a motion court
judge has the discretion either to call for oral evidence or to proceed to solve the minor
dispute on the papers where this is possible – this discretion is an ancient one and the fact that
the discretion is applied robustly in certain, limited, circumstances is not necessarily
indicative of a decline in orality in South African civil proceedings. Rather, the robust
62
Findlay “Application versus Trial” 1951 SALJ 20 25-26. 63
25. 64
1949 3 SA 1155 (T) 1162. 65
Cilliers et al. Herbstein and Van Winsen: The Civil Practice of the High Courts and the Supreme Court of
Appeal of South Africa 292.
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exercise of the discretion is informed inter alia by practical considerations, such as the fact
that a court should be astute to prevent an abuse of its process by an unscrupulous litigant
who, by making bare and ambiguous denials in an answering affidavit, is intent only on delay
or embarking on a fishing expedition to ascertain whether there might be a defence without
there being any credible reason to believe that there is one.66
6 THE IMPACT OF CIVIL PROCEDURAL REFORM
An essential characteristic of the common law system of civil litigation is its adversarial
nature. It is, for the most part, a voluntary system in which the parties actively control the
pace of the litigation. The court is generally passive, neutral and inactive. Case management
is, however, seen to reduce adversarialism by shifting the control of the litigation process
from the parties to the court.
Recent legal reform in some Anglo-American jurisdictions
indicates a move towards a more inquisitorial system of civil litigation by adopting case
management as a non-adversarial device.67
In this regard, a new electronic court filing and
case management system, devised in an attempt to increase the efficiency of the courts, was
recently implemented in South Africa.68
It may accordingly be prudent to consider what
impact, if any, the implementation of a system of case management will have on the principle
of orality.
Whereas a judge in the classical adversarial system is largely passive and inactive, case
management transforms the role of a judge to one that is more active and managerial. The
latter entails the active involvement of the judicial officer in the pre-trial stage of a case and a
shift from party-control to judicial-control.69
Case management enables courts to properly
track the progression of cases dealt with under its auspices, thereby allowing the court to
adopt an increased interventionist management role in the litigation process. It also facilitates
the production, amendment and analysis of written material. Case management is effectively
aimed at eliminating unnecessary delays in litigation through the overriding power of the
judiciary to control to pace of the litigation. Case management could be a useful tool to
66
Minister of Land Affairs & Agriculture & others v D & F Wevell Trust & others 2008 2 SA 184 (SCA)
205A-B. 67
According to Hurter 2007 J. S. Afr. L. 240 and 256, in virtually all American and Australian courts' some or
other form of case management takes place. England has embraced case management as its primary instrument
for regulating civil litigation. 68
The implementation of the system was the result of recommendations made by a group of judges in a report
prepared by Kenneth Mthiyane JA, Steven Majiedt J and Eberhard Bertelsmann J. 69
Hurter 2007 J. S. Afr. L. 256-259.
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address the problems of the increasing cost, delay and complexity which beset the South
African civil litigation system with depressing consistency.70
As mentioned, the question that arises is what the impact of civil procedure reform,
specifically the introduction of a system of case management, will have on the principle of
orality, if any. It has been submitted that the implementation of a system of case management
results in a decline in the principle of orality. In this regard, Erasmus states that case
management tends to undermine the very foundations of the adversary system in that the role
of the judge in the civil process is vitally affected and the central position of the orality
principle is eroded. 71
Similarly, Glasser states that the adversary system of civil litigation of
which orality is a central part is bound to further lose its importance as court management of
procedure increases.72
The Superior Courts Act73
assigns judicial administration responsibilities, including case flow
management functions, to the Chief Justice and to the heads of the various divisions of the
High Court of South Africa. The aforementioned assignment of judicial administration
responsibilities also includes making provincial judge presidents responsible for the co-
ordination of judicial functions of magistrate‟s courts within the area of jurisdiction of the
respective divisions.74
Specifically, the Chief Justice is responsible for developing policies,
norms and standards for case management and to monitor and evaluate the performance of
the courts. In this regard, a case management pilot project is currently underway in the
Gauteng divisions, the Kwazulu Natal division and the Western Cape division of the High
Court of South Africa. If the pilot project proves successful, it is envisaged that the system
will be rolled out to all divisions of the High Court of South Africa and, thereafter, to the
Magistrates' Courts. Both the North West and the Eastern Cape divisions of the High Court
have, as a result of the success of the pilot project to date, volunteered to function as
additional pilot sites. In essence, the case management model takes control of the pace of
70
The introduction of case management and court-annexed mediation are primarily concerned with the effective
allocation of court time. 71
Erasmus 1999 Stell L R 110 Stellenbosch L. Rev. 14. 72
Glasser 1993 Mod L Rev. 317. 73
10 of 2013. 74
Section 8.
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litigation from legal representatives and restores it to judicial officers in both criminal and
civil matters.75
Linked to the implementation of a case management system are court modernisation and
automation. This includes electronic filing and record keeping aimed at facilitating the
efficient management of cases and their speedy finalisation and to alleviate the disappearance
of court records. The Chief Justice is, apart from effectively being responsible for case
management, also responsible for information technology and knowledge management.
According to Chief Justice Mogoeng Mogoeng, an Information Technology Committee
assisted by the Information Technology Directorate of the Office of the Chief Justice,
identified the need for the Judiciary to have a server that is separate from that of the Justice
Department to eliminate the possibility of inadvertent and premature access to draft
judgments and to alleviate the burden of the already over-laden Justice server. He states that
electronic filing and record keeping on- and off-site will facilitate the efficient management
of cases and their speedy finalisation and prevent the disappearance of records of
proceedings.76
The Judiciary and the Office of the Chief Justice have accordingly identified
various projects to enable court modernisation and automation, which projects are currently
being implemented.77
Further, according to Chief Justice Mogoeng Mogoeng:
“The leadership of the Judiciary at all levels has resolved to begin a massive project of
overhauling all the Rules of the High Court and Magistrates' Courts with the view of doing away
with archaic Rules, progress- and efficiency-retarding Rules, to inject flexibility, facilitate the
full scale implementation of electronic filing and electronic record-keeping, video conferencing,
judicial case management harmonisation or streamlining of all Court Rules”.78
Although a case management and electronic court filing system is necessary to address the
problems inherent in the civil justice system, such as the problems of the increasing costs,
75
Mogoeng Mogoeng, Chief Justice of the Republic of South Africa, 2013 Annual Human Rights Lecture of the
Stellenbosch Law Faculty, University of Stellenbosch, "The Implications of the Office of the Chief Justice for
Constitutional Democracy in South Africa". 76
Under the new system, every judge and magistrate must have access to a computer in accordance with the
planned shift from a paper-based court to an electronic system. 77
Mogoeng Mogoeng, Chief Justice of the Republic of South Africa, 2013 Annual Human Rights Lecture of the
Stellenbosch Law Faculty, University of Stellenbosch, "The Implications of the Office of the Chief Justice for
Constitutional Democracy in South Africa". 78
Ibid.
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delay and complexity of civil litigation, the implementation of the above civil procedure
reforms is currently in its infancy. It would, accordingly, be premature to conclude that these
developments constitute a departure from orality. Our judicial officers, specifically in the
various divisions of the High Court, remain largely inactive and passive. Parties continue to
set the pace of the litigation, with minimal intervention by the court in the progress of the
case. Judges lack enhanced judicial authority to promote settlement and pre-trial adjudication
– the role of the judge in non-trial procedure has not evolved from courtroom umpire to that
of a caseload manager. Everything points towards the fact that South African civil procedure
has not witnessed a decline in orality similar the decline witnessed in other jurisdictions as a
result of the introduction of a system of case management. Orality continues to dominate the
conduct of civil proceedings at all stages both at first instance, before and at the trial, and on
appeal, and in all courts both superior and inferior as well as in tribunals.
A further recent civil procedural development is the introduction of a court-annexed
mediation process to be implemented after a pilot-period of at least three years.79
In this
regard, the South African Rules Board approved a set of draft mediation rules (Mediation
Rules) to be used in court-referred mediation pilot projects. The Mediation Rules were
published on 18 March 2014 and they provide for the voluntary submission of civil disputes
to mediation in selected courts.80
It is possible that the introduction of court-annexed
mediation will result in an upturn in the number of disputes settled outside of the litigation
process without the need to resort to the expensive and time-consuming trial action to resolve
factual disputes. However, it remains to be seen whether the introduction of court-annexed
mediation into the South African civil justice system will result in a decline in orality. Insofar
as the status of alternative dispute resolution as a mechanism for resolving the problems
associated with the civil justice system cannot be regarded as settled, it would be premature
to conclude that the implementation of a mandatory court-annexed mediation system in South
Africa will result in a decline in the principle of orality in civil proceedings. 81
It is possible that the successful implementation of the case management and electronic filing
system and court-annexed may result in a decline in orality in civil proceedings. However, in
79
The Department of Justice and Correctional Services will be launching court-annexed mediation on a pilot
basis at certain courts across the country on 1 August 2014. 80
R.183 Rules Board for Courts of Law Act (107/1985): Amendment of Rules Regulating the Conduct of the
Proceedings of the Magistrate‟s Courts of South Africa GN R 3 in GG 37448. 81
255.
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so far as implementation is limited to various pilot projects with no full-scale implementation
in the immediately foreseeable future, the concern is that it would be very difficult, bordering
on impossible, to accurately measure the resultant decline in orality, if any. The reality is that
the available data is inadequate to give any insight into the real operation of South African
civil courts and, consequently, any impact that a change in civil procedural law may have on
the current system of civil litigation. In this regard, Erasmus states that:
“We do not, for example, know how many civil cases of a particular nature are instituted in a
particular court in a given year; we do not know how many of such cases are determined at a trial
and what the median time is for determination at a trial and what the median time is for
determination at a trial; we do not know what percentage of cases are settled and at what stage of
the proceedings they are settled. We have no figures which would enable us to draw the
distinction between so-called “lawyers induced delay” and “court induced delay”. We do not
even know what the real cost of litigation in this country is – the only true indication of the real
cost of litigation is the amount paid by the client to his own attorney and this has not been the
subject of any comprehensive study. We do not know how we compare with other
jurisdictions…Where do we stand? The little information we do have is insufficient.”82
In the absence of comprehensive research and empirical evidence regarding the functioning
of the South African civil justice system, it is unlikely that one will be in a position to
evaluate the impact that the aforementioned civil procedural changes may have on the
principle of orality. It therefore appears that, in determining the effect that the proposed
changes may have on inter alia the predominant role of the parties in the conduct of litigation
and the passive and neutral role of the court, potentially resulting in a decline in orality in
civil proceedings, one would, in the absence of proper research relating to the conduct of
South African civil proceedings, effectively be forced to resort to speculation.
8 CONCLUSION
Although English reforms have resulted in the erosion of the principle of orality in its civil
system, orality remains one of the cornerstones of the South African civil justice system. The
instances referred to above in terms of which it could conceivably be argued that South
African civil proceedings have witnessed a similar decline in orality, are insufficiently
indicative of a change to the adversary character of the South African civil justice system, of
which orality is central. The parties largely remain the dictators of the form, content and pace
82
Erasmus 1999 Stell L R 110 Stellenbosch L. Rev.18.
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of proceedings.83
The principle of orality dominates the conduct of civil proceedings at all
stages of proceedings – that is, before and during trial, on appeal and so forth – and it remains
crucial to the proper functioning of the adversary system. Even in those instances referred to
above where written material is produced to the court, as where written pleadings or other
documents such as affidavit evidence or the correspondence between the parties, the actual
hearing of the proceedings in court is conducted orally. Accordingly, although the
introduction of the Civil Procedure Rules in England makes it inter alia permissible for a
witness‟s statement to be presented as his or her evidence-in-chief, with the consequence that
the parties are no longer able to confront through cross-examination those witnesses who
testify against them, De Vos states that the future of cross-examination is more secure in
South Africa than in England. This is because “the principle of orality is still firmly in place
and, in addition, the right to cross-examination is by implication protected under the
constitutional guarantee of a fair trial”.84
Orality is a tradition of South African civil litigation. It remains a fundamental feature of
South African civil justice; it is deeply ingrained in the South African legal process and it
continues to be crucial to the proper functioning of its adversary system. Any contention
that South African civil proceedings have witnessed a decline in the principle of orality is one
that must be treated with caution – in the absence of a factual basis such a contention is, at
least for the time being, one that is premised on fiction.
83
Hurter 2007 J S Afr L 240 243. 84
De Vos “Civil Procedural Law and the Constitution of 1996: An Appraisal of Procedural Guarantees in Civil
Proceedings” 1997 TSAR 457.