Geldenhuys en Ander v Kommissaris van die Hof van Klein Eise en Anders (1750/2010) [2012] ZANCHC 46 (7 September 2012)

Geldenhuys en Ander v Kommissaris van die Hof van Klein Eise en Anders (1750/2010) [2012] ZANCHC 46 (7 September 2012)

The commissioner was previously the applicants' attorney in the same matter and was actively involved in the merits, which created a real possibility of bias and absolutely disqualified him from presiding over the action. His participation constituted a gross irregularity under section 46 of the Small Claims Courts Act. The third respondent, as judgment creditor, abandoned the judgment, and the applicants were entitled to have the judgment set aside on that basis alone. The applicants could have pursued a simpler procedure for setting aside the judgment based on abandonment, but instead proceeded with a full review application, unnecessarily involving other respondents and escalating...

Citation
[2012] ZANCHC 46
Parties
Applicant: W J W Geldenhuys; Applicant: H E Geldenhuys; Respondent: Kommissaris van die Hof van Klein Eise (W Viljoen); Respondent: W Viljoen; Respondent: P J Cilliers; Respondent: Landdros vir die distrik van Richmond
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
7 September 2012
Case Number
1750/2010
Procedural Posture
Review Application / Judgment Delivered After Hearing on Merits and Costs
Outcome
Judgment against the applicants in the Small Claims Court is set aside. No order as to costs.
Judges
C J Olivier, F D Kgomo
Legal Topics
Recusal of Presiding Officer, Irregularity in Proceedings, Abandonment of Judgment, Costs Order, Small Claims Court Procedure
Civil Procedure Administrative Law Recusal of Presiding Officer Irregularity in Proceedings Abandonment of Judgment Costs Order Small Claims Court Procedure

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Parties

W J W Geldenhuys

Applicant

H E Geldenhuys

Applicant

Kommissaris van die Hof van Klein Eise (W Viljoen)

Respondent

W Viljoen

Respondent

P J Cilliers

Respondent

Landdros vir die distrik van Richmond

Respondent

Procedural Posture

Review Application / Judgment Delivered After Hearing on Merits and Costs

Legal Issues

  1. 1 Whether the commissioner was disqualified from presiding due to prior involvement as attorney for the applicants.
  2. 2 Whether the judgment against the applicants should be set aside due to irregularity.
  3. 3 Whether costs should be awarded against any respondent.

Ratio Decidendi

The commissioner was previously the applicants' attorney in the same matter and was actively involved in the merits, which created a real possibility of bias and absolutely disqualified him from presiding over the action. His participation constituted a gross irregularity under section 46 of the Small Claims Courts Act. The third respondent, as judgment creditor, abandoned the judgment, and the applicants were entitled to have the judgment set aside on that basis alone. The applicants could have pursued a simpler procedure for setting aside the judgment based on abandonment, but instead proceeded with a full review application, unnecessarily involving other respondents and escalating...

Court Disposition

Judgment against the applicants in the Small Claims Court is set aside. No order as to costs.

Orders

  • The judgment against the applicants in the Small Claims Court, Richmond under case number Sc 2/2009 is set aside.
  • Each party is to bear their own costs.