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Rule 37 Pre-trial minute


High Court Rule 37(7) pre-trial minute hearing. Benefits of attending and the consequences of failure to attend.

In terms of the high court rules there must first be a pre-trial hearing before a matter is ripe to be heard. The court would send you the date for a pre-trial conference, and the rules require a so-called “pre-trial minute” to be filed, or else the court may not entertain the pre-trial hearing. 

The pre-trial minute in terms of Rule 37(7) of the court rules must be signed by both attorneys in order to be complete. The pre-trial minute would deal with the meeting held between the attorneys. The attorneys could even agree that this meeting be held telephonically. The pre-trial minute would consist of paragraphs dealing with aspects of the meeting between the attorneys. Usually in the high court there would be an advocate appointed to attend court at the hearing of the pre-trial. It would usually be up to the attorney however to draft the pre-trial minute, and not up to the advocate.

The pre-trial minute would reflect the date of the meeting, which attorney represented the plaintiff and which attorney represented the defendant. It would also need to reflect the location of the meeting. If the meeting was done telephonically, the minute would need to indicate that it was done telephonically. The length of the meeting would also need to be reflected in the minute, e.g. 15 minutes, half an hour, etc. The minute would also reflect what further aspects of the case were discussed, for example if the plaintiff has requested that the defendant make a settlement offer. In the minute you would also go into detail as to how the two attorneys are going to take the case forward.

It happens sometimes that one of the attorneys does not co-operate in attending a meeting and the minute cannot be properly drafted. It could be for various reasons that the attorney does not co-operate. It may be because that attorney has not received proper instructions from his or her client. He or she may not have been paid by that client for example, or the client is not co-operating as he or she wants to delay the divorce. In such a situation, the attorney can draft a minute, and in that minute set out his or her attempts to get the other attorney to sign the minute, and annex emails proving his or her attempts to get the other attorney to sign the minute. The attorney would then hand the minute to his or her advocate with instructions to hand it up to the judge and explain to the judge that every attempt has been made to get the other attorney to sign the minute, but to no avail.

In a situation where only one of the attorneys has signed the minute, it is in the court’s discretion to decide whether to go ahead with the pre-trial or to postpone it. That would no doubt depend on whether the other attorney suddenly pitches up at court and explains why he or she did not sign the minute. If it is the first hearing of the pre-trial, the court may well grant a postponement for a proper meeting to be held and a proper minute to be signed by the legal representative of each party.

It is essential that a proper meeting is held between the legal representatives before there can be a successful pre-trial which is held in the open court. The pre-trial meeting is a very important part of the whole trial process. Very often the whole matter gets settled at the pre-trial during settlement discussions between the legal representatives of both parties, although this is not always the case.



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