In his article titled, “THE JURISPRUDANCE OF ADVERSARIAL JUSTICE” [http://dx.doi.org/10.4314/og.v15i1.2] Prof IKENGA K.E ORAEGBUNAM (PhD (Law), PhD (Phil), PhD (Rel & Soc), Med, BL (Reader and Head, Dept of International Law & Jurisprudence, Faculty of Law, NAU, Nigeria) gives an abstract of the adversarial justice system in the following words:-

“the adversarial system of justice works to resolve cases in court by pitting partial advocates for each side against one another with a judge who works to ensure that the rules of court and law are followed."

He goes on to state the major criticism for this system of litigation by stating as follows :-

“. . . this system of justice delivery has been criticized for its [emphasis on] value of winning over truth . . . .”]

Having read the above article at sitting at Clifton Beach, Cape Town, South Africa, I could not help but reflect on the Biblical verse in Proverbs 18 : 17 (American Standard Version) which states:-

“He that pleadeth his cause first seemeth just; But his neighbor cometh and searcheth him out”

“The First to speak in court sounds right – until the cross examination begins”

The above reflections aptly summarizes the process of and approach to litigation in this country and all other common law countries following the adversarial system of justice. Those of us taking pride in decades in the practice of law, can easily see how the above sentiments reflects in our courts approach to the drafting of pleadings and the conducting of trials in court.

In the context of motion proceedings the rule has taken root that the Applicant (Proverbially the one to state his cause first) stands or falls on his founding papers. By Founding papers is meant the Notice of Motion, the Founding Affidavit and the Draft Order. Nothing more.

To give effect to the above, Uniform Rule 6 (1) of the Uniform Rules of Court Regulating Proceedings in the Several Divisions of the High Court of South Africa deals with the approach expected of a litigant in opposed motion proceedings. Rules 6 (1) provides as a general rule that :-

“ . . . every application shall be brought on Notice of Motion supported by an Affidavit as to the facts upon which the Applicant relief for relief. . . “

Beyond the affidavit referred to in Uniform Rule 6 (1), normally called the Founding Affidavit, the Applicant has no further or other opportunity to place facts upon which he or she relies for relief. He, otherwise, stands or falls on his founding papers.

Having filed the founding papers, that is the Notice of Motion and Founding Affidavit, the Applicant should know and expect that the opponent, true to the word and command in Proverb 18 : 17, shall “cometh and searcheth him out.” In practice the opponent shall come and question and cross-examine the applicant’s version, which, on first glance proverbially seemed right.

For the above reason litigants deciding to approach and accuse others of anything should set their case straight and convincing in the Founding Affidavit lest, when question, their version would be reduced to kindergarten plaything when the neighboring opponent stands in accordance with the book of Proverbs 18 verse 17 reduced into Uniform Rule 6 (5) (d).

Uniform Rule 6 (5) (e) allows an applicant to file a Replying Affidavit as to the facts and in response to the issues raised in the Opposing Affidavit as per Uniform Rule 6 (5) (d). Litigants and attorneys in the practice of law should note that Uniform Rule 6 (5) (e) is not and has never been an opportunity for the Applicant to supplement his or her case. His only opportunity to place facts relied upon for relief is as per the founding papers referred to in Uniform Rule 6 (1) and not in the Replying Affidavit.

The Replying Affidavit is not an opportunity for a litigant to build (or rebuild) his case. Its only purpose is to respond to what is stated in the Answering Affidavit and not to introduce new material. Uniform Rule 6 (5) (e) only allows the filing of further affidavits, only with leave of the court and for such leave to be granted, good cause ought to have been shown. Authors Stephen Pete et al Civil Procedure, A Practical Guide, Second Edition, 2017 (Oxford University Press) refers to the decisions in Pountas Trustees –v- Lahanas 1924 WLD 67 at page 68 and the decision in Director of Hospital Services –v- Ministry 1979 (1) SA 626 (A) and conclude as follows:-

“The purpose of Replying Affidavit is to rebut any averments made in the answering affidavit. New matter may not be introduced at this stage, and the court will strike out any new matter contained in the replying affidavit, which should have been contained in the founding affidavit”

In Minister of Environmental Affairs and Tourism –c- Phambili Fisheries (Pty) Ltd and Another matter 2003 (6) SA 407 SCA at page 439 G-H Schuts JA wrote as follows in relation to litigants and attorneys seeking to build their cases in long and prolix replying affidavit after realizing that they failed to make out their cases in founding papers :-

“ . . . there is one other matter that I am compelled to mention – replying affidavit. In the great majority of cases replying affidavits should be far the shortest It is time that the court declare war on unnecessary prolix replying affidavits and upon those who inflate them.”

The Supreme Court of Appeal above went further in relation to the approach to be adopted when a court is faced with a prolix reply in which the applicant seeks to make out his case through the reply:-

“ . . . a reply in this form is an abuse of court process and instead of wasting judicial time by analyzing it sentence by sentence and paragraph by paragraph, such affidavits should not only give rise to adverse costs orders but should be struck out as a whole . . . mero motu”

On the point of deciding to partake and dine in litigation, always reflect on the beautiful piece of literature coined by Alexander Pope, many moons ago when he wrote : “A little learning is a dangerous thing: drink deep, or taste not the Pierian Spring” [see https://www.poetsgraves.co.uk/.../Pope/a_little_learning.htm]

The above prose is descriptive of many papers that are filed through our court registries and allocated case numbers. Many such papers so filed reflects a little learning, which is surely a dangerous thing.

Practitioners and litigants are advised to drink deep otherwise don’t dare taste the Pierian Spring. In litigation, just like in combat, you don’t strike to preserve, you strike to win, otherwise don’t strike at all, lest you invoke judicial fury.

By Counsel : ADV I MURERIWA.

+27 71 151 9000,

advmureriwa@yahoo.com

CAPE TOWN, SOUTH AFRICA.

07 FEBRUARY 2021

Reference

Oraegbunam K.E. The jurisprudence of adversarial justice. https://www.ajol.info/index.php/og/article/view/187809