Kopanye v I (CA 44/2003) [2003] ZANWHC 18 (3 April 2003)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

CA 44/2003

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

KOPANO

KOPANYE

vs

G. I.

REVIEW

JUDGMENT

PISTOR AJ:

In this matter an interdict was granted (on 17 July 1998) against Mr Kopano Kopanye in terms of the provisions of the prevention of Family Violence Act, 1993 (Act No. 133 of 1993) in the magistrate court for the district of Molopo.

On 17 November 1998 the said Mr Kopanye (herein after referred to as the applicant) applied to the said magistrate court to have the said interdict set aside. The application was opposed by the lady in favour of whom the interdict was granted (G. I. - herein referred to as the respondent).

On 29 June 1999 the latter application came before Mr H. Monageng, additional magistrate in the disctrict of Molopo.

The learned magistrate heard the evidence in chief of the applicant as well as cross examination of the applicant by the respondent.

The matter was then postponed “due to lateness” .

On 11 November 1999 both parties again appeared before the magistrate. The applicant then mentioned that he had been detained at […] Hospital, that he had to go back to the hospital and that he would not be fit to proceed with the application. He requested that the matter be remanded sine die. No objection to the request was raised. The matter was then remanded sine die.

Subsequent thereto, the matter was put before me under cover of a letter of the magistrate Molopo in which the following was stated:-

“The magistrate who presided in the proceedings has been suspended and criminally charged. His return to work seem not possible within a reasonable period. You are humbly requested to submit the proceedings to the Honourable Judge to set aside the proceedings”.

I then and on 16 January 2003 directed the following query to the magistrate Molopo:-

“Could the learned magistrate, Molopo, please indicate whether the parties to this application were informed of the magistrate’s request to have the proceedings set aside and whether they were given an opportunity to make representations with regard to such request. If so, did they make representations? If not, they must please be given an opportunity to make such representations.

Any representations made by the parties or, in the absence of any representations by them, their election not to make representations

should please be attached to the record when it is again forwarded to the registrar of this court”.

The magistrate Molopo has reacted to my query as follows:-

“Attached hereto find correspondence received from Mr Kopanye by the office of The Director General marked “A” and further

correspondence marked “B” from the office of the Director of Public Prosecution.

Mr Kopanye acceded to the setting aside of the proceedings and wishes that the matter be started de novo.

From the correspondence attached to the magistrate’s letter it seems as if the applicant has consented to his application being set aside by a Judge in order to have it heard afresh.

However, when the matter was returned to me, the original letter of the magistrate under cover of which the record was referred to me, was not attached to the documents and I requested a copy thereof. I have now received same.

In the circumstances it seems that the parties to the present litigation might have to wait indefinitely for the finalisation of their litigation if the proceedings before the presiding magistrate are not set aside. In the circumstances I am of the view that it is in the interest of the parties and the interest of justice that the proceedings before magistrate Monageng be set aside and be referred to the magistrate Molopo to be heard de novo before another magistrate. Consequently I make the following order:

ORDER

The proceedings for the recission of an interdict before Mr H Monageng be and are hereby set aside. The application for recission is referred back to the magistrate Molopo to be heard de novo by another magistrate.

J.H.F. PISTOR

ACTING JUDGE OF THE

HIGH COURT

I agree

M.M.

LEEUW

JUDGE

OF THE HIGH COURT

DATED: 03 APRIL 2003