Jacobs v Van Der Merwe (R55/2020) [2020] ZAFSHC 153 (3 September 2020)

Jacobs v Van Der Merwe (R55/2020) [2020] ZAFSHC 153 (3 September 2020)

The High Court held that there is no legal basis for a magistrate to mero motu refer civil proceedings to the High Court for review. The correct procedure for review in civil matters is governed by Rules 6 and 53 of the Uniform Rules of Court, which require that interested parties be notified and participate. The court rejected the argument that proceedings under the Domestic Violence Act are not civil, finding that such proceedings are indeed civil and subject to ordinary civil procedure. The magistrate's submission of the matter for review was irregular and not in accordance with established legal principles. Consequently, the matter was struck from the roll.

Citation
[2020] ZAFSHC 153
Parties
Applicant: L. Jacobs; Respondent: H. Van Der Merwe
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 September 2020
Case Number
R55/2020
Procedural Posture
Review Application / High Court Review of Magistrate's Referral
Outcome
Matter struck from the roll; review not entertained.
Judges
AF Jordaan, CJ Musi
Legal Topics
Domestic Violence Act, Review Procedure, Magistrates Court Jurisdiction
Civil Procedure Domestic Violence Act Review Procedure Magistrates Court Jurisdiction

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

L. Jacobs

Applicant

H. Van Der Merwe

Respondent

Procedural Posture

Review Application / High Court Review of Magistrate's Referral

Legal Issues

  1. 1 Whether a magistrate may mero motu submit civil proceedings to the High Court for review.
  2. 2 Whether proceedings under the Domestic Violence Act are civil in nature and subject to civil procedure rules.
  3. 3 Whether the procedure followed by the magistrate complies with the audi alteram partem rule.

Ratio Decidendi

The High Court held that there is no legal basis for a magistrate to mero motu refer civil proceedings to the High Court for review. The correct procedure for review in civil matters is governed by Rules 6 and 53 of the Uniform Rules of Court, which require that interested parties be notified and participate. The court rejected the argument that proceedings under the Domestic Violence Act are not civil, finding that such proceedings are indeed civil and subject to ordinary civil procedure. The magistrate's submission of the matter for review was irregular and not in accordance with established legal principles. Consequently, the matter was struck from the roll.

Court Disposition

Matter struck from the roll; review not entertained.

Orders

  • The matter is struck from the roll.