5 November 2012 – Law Firm News – By Siboniso Mncwango associate at Norton Rose in SA – Parties whose court papers are not properly presented risk having an adverse cost order issued against them. This is a decision that a court will not have difficulty reaching as attempts to reform our courts continue to ensure that matters go through the courts quicker than is currently the case.
There have been many occasions where a judge has in detail and in scolding terms expressed irritation with disorderly, disorganised and irrelevant pleadings that are submitted by legal practitioners in matters that they handle on behalf of their clients. In the same manner there have been instances where a judge has remarked quite favourably on how it was relatively easy to refer to and navigate through a particular legal practitioner’s papers and the importance of this in assisting the court in reaching its decision quicker.
In Netstar (Pty) Ltd v Competition Commission South Africa and Another the presiding judge of the Competition Appeal Court stated that he found it necessary to make some comment for the future guidance of practitioners in regard to the production of records and heads of argument. In particular the judge complained that excessive and irrelevant volumes of thousands of pages were submitted as part of the record. Yet no significant reference was made to these volumes in written or oral argument.
The judge emphasised the fact that documents referred to must be in a chronological order. The references were not easy to follow and the court had to try to figure out who or what was being referred to. The reason references are required to be in the record of the evidence is to make finding documents relatively easy. That purpose is defeated when disorderly and irrelevant documents are submitted as part of the record.
This difficulty in navigating through the record makes in exceptionally difficult to read the record and results in a far greater expenditure of time than would have been necessary had the rules been followed. This largely compounds the problem of delays experienced in the delivery of justice and expedient redress by our courts. The judge stated that in future if there is non-compliance with the requirements laid down for the preparation of pleadings practitioners must be aware that an adverse cost order may follow.
It is therefore important for practitioners to ensure that they provide practice guidelines in their practices and also to provide guidance to their junior practitioners regarding proper and acceptable practices to be followed in preparing court documents. It is advisable that this should form part of core training that is provided to candidate attorneys during the time that they are serving their legal articles with the firm. They are the ones who are usually tasked with indexing and paginating and other processes that are necessary in the litigation and adjudication process. It is easier for judges to produce a well-reasoned judgment where legal practitioners have been helpful in the manner in which they have presented their documents.