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Form vs Fairness: Why Courts Won't Let Procedure Trump Justice
Court rules are vital in ensuring consistency and fairness within the judicial process. However, there is a thin line between careful compliance with the rules and abuse of process.
As per the case of SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O), Rule 30 of the Uniform Rules of Court was intended as a procedure whereby a hindrance to the future conduct of the litigation, whether created by a non-observance of what the Rules of Court intended, or otherwise, is removed.
In a recent judgment of the Johannesburg High Court, namely, Standard Bank of South Africa Limited v Moloisane (2019/38095) [2025] ZAGPJHC 203 (5 March 2025), the Court took a clear substance-over-form approach to an application to strike out a self-drafted urgent application by a layperson to stay the execution of, and to rescind an order declaring his immovable property specially executable.
In this case, Standard Bank attempted to take a procedural point by bringing an application to strike out the applicant's urgent application as the application was not accompanied by a notice of motion setting out the relief sought.
The Court held that Standard Bank had not demonstrated that it had suffered any prejudice as a result of the irregularity, and the applicant's relief and case was clear enough as the respondent was already aware of all the other particulars that would have appeared in the notice of motion.
Interestingly, the Court emphasised that "the equal application of the rules does not mean treating every litigant identically" and that lay litigants are entitled to careful and sensitive treatment.
The Court also granted costs in favour of the lay litigant, which were limited to disbursements incurred in preparing and presenting the case.
This case clearly shows that courts will not entertain an overly technical approach by litigants, especially when the matter involves an unrepresented litigant.
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