The differing operating procedures in the high courts of each province of South Africa and the effect on practicing lawyers and attorneys. Time of submission of the advocate's practice note filed under Rule 43 applications.
Each high court in South Africa has its own way of operating, although the court rules will no doubt remain the same throughout the country. When I have a matter in a different province, I often appoint an advocate based in that province than where I practice, in the Western Cape. The local advocate would know better its way of doing things.
In the Western Cape High Court the attorneys, when it comes to a Rule 43 applications, must index and paginate the court file (number each page in the file with an index) so that the judge can read the file like a book. In a Rule 43 application, the actual application must be in the court file with the opposing affidavit of the respondent, as well as any other papers which need to be filed (such as for example the set down and any possible supplementary affidavit).
In the Western Cape it is not a requirement for attorneys or advocates to file a so-called “practice note”. This is however a requirement of the South Gauteng Practice Directive, for example. The South Gauteng Practice Directive directs as follows: “Every Rule 43 application set down for hearing shall be accompanied by a practice note, which practice note shall be filed by counsel for each party”. The Registrar’s office in the South Gauteng High Court apparently refuses to allocate a trial date for hearing of a matter on the opposed roll until both parties’ counsel have filed their practice notes.
What is a practice note exactly? A practice note would indicate the date of hearing, the number on the court roll, the name and telephone number of the applicant’s counsel and of the respondent’s counsel, as well as the nature of the application (for example “Opposed Rule 43 application”).
The practice note would have a comparative table of relief sought in respect of maintenance. This table would reflect what the applicant contends is a reasonable maintenance amount and what the respondent in their view contends to be reasonable. It would also reflect what each party contends to be reasonable as a contribution towards legal costs.
The practice note would have a further table dealing with the relief sought by each party, for example on the table it would reflect what amount of maintenance the applicant seeks and what amount the respondent is offering. If the applicant seeks other relief, for example that a vehicle be provided to them by the respondent, and no mention is made of the vehicle on the respondent’s opposing affidavit to the Rule 43, there must be stated on the table that the respondent is mute.
The practice note usually ends off with a paragraph which indicates the estimate of probable duration of the hearing, e.g. 45 minutes and an answer as to whether the papers are required to be read (the answer to this is usually “Yes”). The advocate who drafted the practice note must sign it at the bottom.
The practice note is an important part of the completion of the court file in Rule 43 applications. It is also important for the client to know and understand what a practice note is so that the client is on the same page as his/her legal representative(s) when it comes to ensuring that the court file is complete and that the Rule 43 date is ready to be allocated.
article written by Cape Town divorce attorney, Peter M Baker
Efficiency of South African Magistrates
Importance of Indexing and Paginating
Postponement of Rule 43 hearings