On 3 October of 2018 a commercial court practice directive was published by the judge president of the Gauteng divisions of the high court of South Africa (“High Court”) which created a commercial court as part of the High Court (“Directive”)
The commercial court is now one of the several specialised courts in South Africa and aims to promote efficient litigation in the High Court and resolve commercial disputes, quickly, cost effectively and fairly. Other existing specialised courts worth mentioning include the competition appeal court, electoral court, land claims court, labour court and the labour appeal court.
This article sets out the matters which can be brought to the before the commercial court, how a trial is brought to the commercial court, the case management conferences which must be held and how the commercial court deals with urgent matters in terms of the Directive.
Which matters bay be brought before the commercial court?
The commercial court is available to litigants in commercial matters which have as their foundation a broadly commercial transaction or commercial relationship.
The commercial matters which may be brought before the commercial court include, but are not limited to, claims relating to –
- export or import of goods;
- carriage of goods by land, sea air or pipeline;
- exploitation of oil and gas reserves or other natural resources not involving administrative law;
- insurance and reinsurance;
- banking and financial services;
- operation of markets and exchanges;
- purchase and sale of commodities;
- medical scheme matters;
- matters arising out of business rescue and insolvency;
- matters affecting companies arising from the Companies Act No. 71 of 2008 and its interpretation;
- arbitration (Such as disputes regarding matters referred to arbitration or the validity of arbitration clauses);
- delictual cases occurring in a commercial context;
- contractual matters; and
- intellectual property matters.
Bringing a trial to a commercial court:
Once a summons has been issued out of the High Court, any party to the dispute may apply to the judge president or the deputy judge president of such court to have the case allocated as a commercial court case.
The application is made by way of delivering a letter to the judge president or deputy judge president of the High Court setting out a description of the case and why the party believes the case is a commercial case or should be considered as such and therefore dealt with in terms of the Directive.
Once the application is made, the other parties to the dispute are allowed to make representations in response to the applicant’s representations within the prescribed time period and thereafter the judge president or deputy judge president determines whether or not the case should be allocated as a commercial court case.
If the case is allocated as a commercial case, one or two judges are allocated to the case to manage the case, determine interlocutory proceedings and hear the trial.
The case management conferences:
As soon as possible after the case is allocated as a commercial court case and judges are allocated thereto, a first case management conference must be held within 15 days of such allocation to determine a timetable for the filing of affidavits (if necessary), date for filing of heads of argument, date for hearing and the length of the hearing.
After a timetable has been agreed to by the parties or determined by the court, a second case management conference is held at which –
- parties present their agreed list of triable issues;
- upon request, the dates for filing of witness statements are fixed; and
- judges may allow for targeted disclosure of documents which replaces ordinary discovery.
Urgent commercial cases:
Applicants can also bring applications to the commercial court on an urgent basis by way of a written or telephonic request to the judge president or deputy judge president setting out, in addition to the information required for a non-urgent commercial case, the reasons for which the applicant deems the matter urgent.
Judges allocated to hear urgent commercial cases will issue directives in respect of the filing of papers on a truncated basis in accordance with the matter’s degree of urgency.
The specialised nature of the commercial court, and the manner in which matters are brought to and dealt with in the commercial court, provide litigants with a streamlined process which can potentially lead to time and cost efficiencies.
Considering the negative effects of the recent unrest and the Covid-19 pandemic has had on many businesses, litigants in commercial matters are encouraged to make use of the commercial court to potentially resolve disputes, quickly, cost effectively and fairly.
VDMA’s team of experts is at your disposal for any assistance that you may require with your commercial disputes.
Published 16 August 2021