the erosion of the principle of orality in south...

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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.

THE EROSION OF THE PRINCIPLE OF ORALITY IN SOUTH AFRICAN CIVIL

PROCEDURE: FACT OR FICTION?

182

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.



183

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.



184

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.



185

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.



186

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.



187

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.



188

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.



189

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.



191

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.



192

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).



193

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.



194

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.



195

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.



196

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.



197

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.



198

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.



199

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.



200

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.



201

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.

the erosion of the principle of orality in south...

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