Ishmail v G L Events Oasys Consortium and Another (19126/18) [2021] ZAGPPHC 384 (18 June 2021)

Ishmail v G L Events Oasys Consortium and Another (19126/18) [2021] ZAGPPHC 384 (18 June 2021)

The court found that, although the Applicant delayed in applying for a trial date and the Rule 38 application may have been unnecessary given the prevalence of virtual hearings, her advanced age and ill-health justify accommodating her request to record evidence on commission. The court exercised its inherent jurisdiction to prevent injustice and ensure fairness, taking into account constitutional values such as ubuntu. The order was granted to allow the Applicant to lead evidence before an experienced advocate, with procedural safeguards for the Respondents, and costs regarding the commission reserved.

Citation
[2021] ZAGPPHC 384
Parties
Plaintiff: Zoolakha Ishmail; Defendant: G L Events Oasys Consortium; Respondent: ZL Cleaning Services CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 June 2021
Case Number
19126/18
Procedural Posture
Civil Procedure Application / Interlocutory Application for Evidence on Commission Under Rule 38
Outcome
Application granted: Applicant authorised to record evidence on commission under Rule 38.
Judges
Tsatsi
Legal Topics
Evidence on Commission, Rule 38 Application, Virtual Hearings, Inherent Jurisdiction, Ubuntu Principle
Civil Procedure Evidence on Commission Rule 38 Application Virtual Hearings Inherent Jurisdiction Ubuntu Principle

Case Brief

Summary, issues, holding and outcome

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Parties

Zoolakha Ishmail

Plaintiff

G L Events Oasys Consortium

Defendant

ZL Cleaning Services CC

Respondent

Procedural Posture

Civil Procedure Application / Interlocutory Application for Evidence on Commission Under Rule 38

Legal Issues

  1. 1 Whether the Applicant should be permitted to record her evidence on commission due to age and ill-health.
  2. 2 Whether the use of virtual hearings under Covid-19 renders a Rule 38 application redundant.
  3. 3 Whether the Court should exercise its inherent jurisdiction to accommodate the Applicant's circumstances.

Ratio Decidendi

The court found that, although the Applicant delayed in applying for a trial date and the Rule 38 application may have been unnecessary given the prevalence of virtual hearings, her advanced age and ill-health justify accommodating her request to record evidence on commission. The court exercised its inherent jurisdiction to prevent injustice and ensure fairness, taking into account constitutional values such as ubuntu. The order was granted to allow the Applicant to lead evidence before an experienced advocate, with procedural safeguards for the Respondents, and costs regarding the commission reserved.

Court Disposition

Application granted: Applicant authorised to record evidence on commission under Rule 38.

Orders

  • The Applicant is authorised and directed to lead evidence as Plaintiff and record the evidence in terms of Rule 38 (3) read with Rule 38 (4), (5), (6), (7) before an advocate of at least ten years' experience, agreed upon by the parties within thirty days, or appointed by the Chairperson of the Pretoria Bar Council...
  • Respondents are entitled and authorised to have a legal representative present when the Applicant gives evidence.