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Jury still out on new Commercial Court

by Jan-Hendrik Gous on 2 July 2019

The Gauteng Division of the High Court issued a practice directive on 3 October 2018 providing for the operation of a specialist Commercial Court.  The court will for now only be established in the Pretoria and Johannesburg High Courts, but the idea is for other High Courts to follow suit.

Action and application proceedings

The directive provides for both action and application proceedings to be brought before the court.  Provision is further made for an application to be brought on an urgent basis, in which case it is required of the applicant to provide sufficient reasons as to why the matter should be considered as urgent.  Potential loss of income or profit by a company can for example be argued as grounds for bringing an urgent application.  Commercial urgency previously did not constitute valid grounds to approach a court on an urgent basis.  

Application to court

A party must apply to have a matter adjudicated by the court by delivering a letter to the Judge President or Deputy Judge President.  The letter must provide a "broad and uncontroversial description" of the case, as well as motivation as to why the case warrants treatment under the directive as a "commercial case".  The application can be brought unilaterally, provided that the application letter be sent to the opposing party who is allowed to make representations to the court with regards to the matter.

What constitutes a "commercial case"?

A "Commercial Court case" is defined in the directive as "ordinarily a substantive case that has as its foundations a broadly commercial transaction or commercial relationship".  Certain transactions are listed as examples of possible commercial cases.  The list serves however as a guideline only and should not be construed as a closed list.

Intellectual property matters are included in the list.  It is hoped that the Commercial Court will streamline intellectual property litigation, including most notably trade mark oppositions.  Optimism exists that cases will be presided over by judges with experience in intellectual property matters.  Higher quality judgements should consequently lead to a reduction in the number of cases required to go on appeal.

Case management

An important feature of the directive is that all cases are to be subject to case management.  A judge is to be allocated to a case before trial in order to accelerate the determination of administrative issues.  Case management conferences are to be convened for purposes of addressing preliminary issues such as the filing of affidavits and heads of argument, establishing the number of witnesses to be called, and determining trial dates.  

The case management process may furthermore lead to an increased likelihood of settlements being concluded.

Purpose of the court

The court has as its purpose the promotion of efficiency and the limitation of costs and time associated with protracted litigation.  It is believed by some that the court will lead to higher-quality decision making and that uniformity in judgements will be enhanced.  Sceptics warn that due to the exclusive focus on commercial matters, judges may develop too narrow an interpretation of the cases before them.  This may lead to less flexibility in the development of commercial law, particularly if judgements are consistently delivered by the same people.  


Only time will tell whether the Commercial Court enhances jurisprudence in commercial law.  Should the court prove to be a success, then one can only hope that similar courts will be established elsewhere without delay.

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