Dipale v Segaole (CA 34/2003) [2003] ZANWHC 16 (27 March 2003)

CA 34/2003

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

KGOMOTSO DIPALE

VS

BENNY

SEGAOLE

REVIEW JUDGMENT

PISTOR AJ:

In this matter one Kgomotso Patricia Dipale (the Applicant) applied to the Maintenance Court at Lehurutshe for an increase in the amount of maintenance that the respondent (Benny Segaole) was liable to pay to her in respect of a minor child of which the respondent was the father. The application was for an increase from R250-00 per month to R500-00 per month. The maintenance court heard the evidence of the applicant, of the respondent and of other witnesses. At the end of the enquiry the magistrate grated “absolution from the instance”.

Subsequent thereto the applicant filed a hand written letter to the clerk of the court, Lehurutshe in which, according to the magistrate Lehurutshe, the applicant complained about the fact that her application for an increase was not granted.

The clerk of the Court, Lehurutshe thereafter submitted the matter to the Registrar of this Court with the following remarks;- “This matter is hereby forwarded to the honourable Judge for Special Review”. The matter was put before me for consideration and I directed the following query to the magistrate:- “Could the learned presiding magistrate please indicate why, and in terms of what authority or statutory powers, this matter was forwarded for review? The magistrate has now returned the record with inter alia the following remarks:- “After the judgement was given, the applicant Ms. Dipale registered her dissatisfaction and wrote a letter to the Clerk of the Court.

Letter is attached to the record. It was therefore to obtain the Judge’s view on the matter to satisfy Ms. Dipale. The presiding magistrate’s stand point is that as a general rule a judgment of “absolution from the instance’ does not constitute a bar to a subsequent action. (See Grimwood v Balls (1835) (3) Meuz 448 and Thwaites vs Van Der Westhuizen (1888) 6 SC 259). Although it was explained to the applicant that she could always proceed de novo if she discovers fresh evidence, the understanding is that “subsequent action” inter alia means the placing of the matter before the Honourable Judge in order to review the proceedings and to give legal guidelines on special grounds”. Although the magistrate did not give reasons for his finding it seems apparent from the evidence that the finding was reached because of the fact that it was not proved on a balance of probabilities that the respondent was financially in a position to pay the proposed increase.

The clerk of the Court, Lehurutshe thereafter submitted the matter to the Registrar of this Court with the following remarks;-

“This matter is hereby forwarded to the honourable Judge for Special Review”.

The matter was put before me for consideration and I directed the following query to the magistrate:-

“Could the learned presiding magistrate please indicate why, and in terms of what authority or statutory powers, this matter was forwarded for review?

The magistrate has now returned the record with inter alia the following remarks:-

“After the judgement was given, the applicant Ms. Dipale registered her dissatisfaction and wrote a letter to the Clerk of the Court.

Letter is attached to the record. It was therefore to obtain the Judge’s view on the matter to satisfy Ms. Dipale.

The presiding magistrate’s stand point is that as a general rule a judgment of “absolution from the instance’ does not constitute a bar to a subsequent action. (See Grimwood v Balls (1835) (3) Meuz 448 and Thwaites vs Van Der Westhuizen (1888) 6 SC 259).

Although it was explained to the applicant that she could always proceed de novo if she discovers fresh evidence, the understanding is that “subsequent action” inter alia means the placing of the matter before the Honourable Judge in order to review the proceedings and to give legal guidelines on special grounds”.

Although the magistrate did not give reasons for his finding it seems apparent from the evidence that the finding was reached because of the fact that it was not proved on a balance of probabilities that the respondent was financially in a position to pay the proposed increase.

In the normal cause of events a party who is dissatisfied with the outcome of proceedings such as this, would not be entitled to have the matter reviewed by merely filing a letter indicating his or her dissatisfaction.

I could detect nothing in the record of this matter justifying this court to deal with the matter differently. In my view there is no basis for interference on review by this court.

The Registrar is therefore directed to return the record to the magistrate together with these remarks.

JHF PISTOR

ACTING JUDGE OF THE

HIGH COURT

I agree

H.N. HENDLER

JUDGE

OF THE HIGH COURT

DATED: 27 MARCH 2003