If my case arose under the old rules, and third party or another procedure would be more cost effective, is there any argument that the new rules may apply?
In http://newmcrules.blogspot.com/2010/12/ever-changing-legal-field.html the opinion was referred to that any cause of action which arose under the old rules, would have to be dealt with under the new rules.
However the point is made that the purpose of the new rules is in line with the constitution whereas the old ones might have “repugnant” aspects which would mean that the Interpretation Act is excluded by the intention of the rules drafter. The opinion is then expressed that the old rules were not repugnant and should be interpreted in line with the Constitution. If the latter is incorrect and a court were to be persuaded of the opposite, then the new rules would apply also to old cases.
Also consider that rule 55(4)(b) indicates that the court has jurisdiction to make orders to make orders for directions as to procedure. Read this with rule 1(2) which expressly states that the rules are to be applied to facilitate expeditious handling of disputes and minimization of costs involved and your case to apply new rules to old matters is strengthened (despite legal opinions and court circulars to the contrary.)
This seems to be contrary to the Curtis v Johannesburg Municipality 1906 TS 308 principle that a law regulating procedure governs the procedure in every suit which comes to trial after the date of its promulgation. The Curtis procedural rule has been approved by the Supreme Court of Appeal (AD as it then was) and in various Constitutional Court judgments.
ReplyDelete"This" in the above comment refers to the position that s12(2) of the Interpretation Act applies. It seems the courts have ruled otherwise.
ReplyDeleteEttienne,
ReplyDeleteCould you be so kind as to let me have the reference of the AD case to which you referred in your posting of 2 April last?
Furthermore, what, in your opinion is the situation at this juncture? Do the old rules apply to a case that was started before the new rules came into effect?
Ettienne,
ReplyDeleteI’m truly sorry. Only after I posted my question did I notice that you dealt aptly with the issue under “The Ever Changing Legal Field”.
Hi Coen
ReplyDeleteNo Problem. The double post can be confusing. However it seems that the Veldman v Director of Public Prosecutions Constitutional Court Judgment approach is helpful. The position appears to be that the distinction between procedural and substantive provisions not always decisive. It depends upon its impact upon existing substantive rights and obligations.
If those substantive rights and obligations are
impaired or cannot be enforced with the new prescribed procedure, new procedure was not intended to apply.