The meaning of “taking a point of law only” in terms of Uniform Rule 6(5)(d)(iii)

The meaning of “taking a point of law only” in terms of Uniform Rule 6(5)(d)(iii)

Rule 6(5)(d)(iii) of the Uniform Rules of Court states:

“(d) Any person opposing the grant of an order sought in the notice of motion must-

(iii) if such person intends to raise any question of law only, such person must deliver a notice of intention to do so, within the time stated in the preceding sub-paragraph, setting forth such question.”

A rather peculiar practice has reared its head in the High Court where respondent-litigants in motion proceedings who wish to raise a point of law only in terms of Rule 6(5)(d)(iii) do so by way of filing it in the form of a separate self-standing application supported by a founding affidavit. The roles then become reversed and the applicant in the main application becomes the respondent in the Rule 6(5)(d)(iii) application. In effect the respondent in the main application is usurping the role of the applicant to become dominus litis for purposes of the Rule 6(5)(d)(iii) application.

This recently occurred in Organisation Undoing Tax Abuse NPC v Bakwena Platinum Corridor Concessionaire (Pty) Ltd 2023 JDR 1626 (GP). The applicant in the main application launched an application in terms of the Promotion of Access to Information Act (“PAIA”) where certain documents and information were requested pertaining to national toll roads. Instead of filing an answering affidavit, one of the respondents filed a notice in terms of Rule 6(5)(d)(iii) in the form of a separate self-standing application consisting of a notice of motion supported by a founding affidavit together with annexures.

The applicant brought an application in terms of Uniform Rules 30 and 30A to set aside this application as an irregular step and on the basis that the Rules of Court do not make provision for the raising of a legal point by way of a separate self-standing application.

The question that essentially arose was: what form should a notice in terms of Rule 6(5)(d)(iii) take where a point of law only is raised?

In Minister of Finance v The Public Protector 2022 (1) SA 244 (GP) the court stated at paragraph 15 of the judgment that “…since a Rule 6(5)(d)(iii) notice is neither a pleading nor an affidavit, it is impermissible for the respondent to plead facts or produce evidence in support of the law points raised, which should have been placed before the court in an answering affidavit”. This reinforces the notion that an affidavit in support of a legal point taken cannot be filed together with a notice in terms of Rule 6(5)(d)(iii).

In the OUTA matter the court went further and stated in that an applicant in such circumstances will be prejudiced as it will lose its status as the dominus party and a point of law raised in this manner will cause the application to be heard in a piecemeal fashion, which is contrary to the intention of the Rule. Consequently, the Court found that such a process whereby a Rule 6(5)(d)(iii) notice is filed by way of a self-standing separate application is irregular and does not comply with the Rules of Court.

From the two authorities referred to above coupled with a proper interpretation of Rule 6(5)(d)(iii), it follows that a respondent in motion proceedings who wishes to oppose the application has one of three options available after a notice of intention to oppose has been delivered:

file an answering affidavit; or
if the respondent wishes to raise a point of law, file a notice in terms of Rule 6(5)(d)(iii) to raise a point of law only. No further facts may be deposed in support of such a point of law. A typical example such a pure point of law would be where a court lacks jurisdiction. If a respondent chooses this option, the notice is filed in lieu of an answering affidavit and after the filing of such notice the matter can proceed to be set down on the opposed roll; or
file a notice in terms of Rule 6(5)(d)(iii) together with an answering affidavit. Where a point of law is taken and the respondent also wants to challenge the merits, this route should be taken as a respondent does not have an automatic right to file an answering affidavit on the merits if the point of law raised is unsuccessful, and will only be allowed to do so with the leave of the court.

A Rule 6(5)(d)(iii) notice brought as a separate self-standing application does not fall within any of the above permissible options. It would accordingly be appropriate for applicants in motion proceedings to challenge Rule 6(5)(d)(iii) notices that fall outside these options as irregular and in non-compliance with the rules, and follow the procedure laid down by Rules 30 and 30A of the Uniform Rules of Court.

Adv S Mentz

Groenkloof Chambers

Pretoria

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