The headquarters of the Gauteng Division of the High Court of South Africa, Pretoria. (Wikimedia)
  • The Commercial Court has been revived in the Gauteng Division of the High Court of SA.
  • It was established 15 years ago, but was never fully operational.
  • The court sets out to resolve company disputes faster and more efficiently.

The Commercial Court was established 15 years ago, but was never operational, according to Grégor Wolter and Jac Marais, partners at Adams and Adams. The court has now just been revived.

Here's what you need to know: 

1. It should resolve company disputes faster


SA's court roll is notorious for its huge backlogs. The new court will only focus on business cases, with judges who have specific commercial expertise.

2. A case manager will help speed up the process 


A case manager (who is a judge) will, depending on availability, according to Wolter and Marais, be appointed to a commercial case in its early stage.

The case manager is specifically tasked with holding a conference with the parties involved - to hash out preliminary admin issues such as the filing of affidavits, heads of argument, and the date and length of the actual hearing - prior to the case being heard in the Commercial Court.

This is to help speed up the case by preventing parties from stalling the process later on with administrative issues like late filings and submissions, or requests for change of dates, as these would've been agreed on in the early case management conference.

3. It should save costs 


Firstly, parties can lodge urgent cases in the Commercial Court based on commercial urgency which includes, for example, potential loss of income or profit of a company. This was previously not a ground that could be relied upon when approaching the general Court on an urgent basis, according to Roxanne Wellcome, associate at Cliffe Dekker Hofmeyr.

Matters enrolled at the Commercial Court are less likely to be postponed on the date of the actual hearing since there are various steps in place to ensure that matters are ready for trial, including case management and holding frequent pre-trial conferences.

This can save a lot of money, lawyer court fees can go as high as R300,000 per day in SA - even in instances where the court appearance was a few minutes then postponed. 

4. This will be one of the Commercial Court's first cases


Already on the Commercial Court's to-do list is deciding the legal issues that arise from lawsuits lodged by bond creditors (mostly the commercial banks) to repossess homes of defaulting customers, then sold for a fraction of the market price to recover what's owed. 

5. It will only handle Gauteng cases for now

North Gauteng High Court (Photo by Gallo Images / Netwerk24 / Deaan Vivier)

Since the directive reviving the Commercial Court and setting out how it will operate was issued by the Judge President of the Gauteng Provincial Division, the court will only be established in the Pretoria and Johannesburg High Courts for now. Other High Courts will follow suit, says Wellcome. Especially Pretoria's roll was overwhelmed with commercial cases. 

6. Should you bring your legal dispute to the Commercial Court

Any case that has a commercial transaction and/or relationship as its foundation will be considered. For the case to be considered by the Commercial Court, any claims made must, however, arise from or relate to the following:

  1. the export or import of goods;
  2. the carriage of goods by land, sea, air or pipeline;
  3. the exploitation of oil and gas reserves or other natural resources that do not involve Administrative Law;
  4. insurance and reinsurance;
  5. banking and financial services;
  6. the operation of markets and exchanges;
  7. the purchase and sale of commodities;
  8. medical scheme matters;
  9. commercial matters arising out of business rescue and insolvency cases;
  10. all commercial matters affecting companies arising out of the Companies Act 71 of 2008 and its interpretation;
  11. arbitration;
  12. delictual cases that take place in a commercial context for, e.g. unlawful competition cases;
  13. generally, appropriate contractual matters; and
  14. intellectual property cases.

7. Transferring a commercial matter from the general court roll to the new court


Parties wishing to transfer their matter to the Commercial Court must apply by way of a letter to the Judge President or Deputy Judge President, listing reasons why their matter is commercial or should be considered as such.

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