Lovius Block Incorporated v Makae and Others (1279/2021) [2021] ZAFSHC 230 (8 October 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no. 1279/2021

In the matter between:

LOVIUS BLOCK INCORPORATED Applicant

and

B P MAKAE First Respondent

KZ MAKAE Second Respondent

MAGISTRATE L MZANA Third Respondent

CORAM: MATHEBULA, J et DE KOCK, AJ

HEARD ON: 8 October 2021

JUDGMENT BY: DE KOCK, AJ

DELIVERED: 8 October 2021

[1] The Applicant filed a review application in terms of which the following orders are sought: -

1. Reviewing and setting aside the decision of the Third Respondent to alter the Court order of 19 February 2021, dismissing the rescission application with costs (“he court order”) to reflect that the matter was postponed to the 5 March 2021.

2. Declaring the Third Respondent’s original Court order dismissing the rescission application of the First and Second Respondents with costs stands.

3. That the costs of the review application be paid by the First and Second Respondents on an attorney and own client scale.

[2] The First and Second Respondents did not oppose the application. The Third Respondent filed a notice to abide. No answering affidavits disputing the allegations made in the Applicant’s founding affidavit were filed. Therefore, the averments stated in the Applicant’s affidavit stands uncontested.

[3] When the matter was called on the morning of 19 February, neither the first and/or second respondent nor their attorney appeared before the third respondent. Satisfied that the matter was properly placed before her, she granted an order dismissing their application with costs. Later on the same day, with attorney L.M. Mokhele present and this time without the attorney for the applicant, the third respondent revoked the earlier order and substituted it with an order postponing the application to 5 March 2021 and the first and second respondents liable to pay the wasted costs. These are the facts upon which the application turns on.

[4] Section 22(1) of the Superior Courts Act stipulates that the grounds upon which the proceedings of any Magistrate’s Court may be brought under review before a Court or a division include:

(1)(a) Absence of jurisdiction on the part of the Court;

(1)(c) Gross irregularity in the proceedings.

[5] A gross irregularity in civil proceedings in the Magistrate’s Court comprises an irregular act or omission by the Presiding Judicial officer in respect of the proceedings of such a gross nature that it was calculated to prejudice the aggrieved litigant and upon proof of which the High Court would set aside such proceedings unless satisfied that the litigant had in fact not suffered any prejudice. See: Magistrate Pangaker v Botha 2014 (1) SA 503 (SCA) at 509 B – D.

[6] In order to discharge the necessary onus, the Applicant must prove the existence of the irregularity and that it was so gross that it was calculated to prejudice him/her. See: Hip Hop Clothing Manufacturing CC v Wagener and Another 1996 (4) SA 222 (CPD) at 230 D – E.

[7] In Firestone South Africa (Pty) Ltd v Genticuro AG 1970 AD (4) SA 298 (A) at 306 F – G the court said the following: -

“The general principle, now established in our law is that once a Court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.”

See also: Van Loggerenberg et all: Erasmus Superior Court Practice at D1 – 561.

[8] Section 36(1) of the Magistrate’s Court Act 32 of 1944 provides that:

“The Court may, upon application, by any person affected thereby or in cases falling under paragraph (c), suo motu –

Section 36(1)(c) of the Magistrate’s Court Act 32 of 1994 refers to correcting patent errors in any judgment in respect of which no appeal is pending.”

[9] According to the definition of “apply” Magistrate Court Rule 2(1)(b) an application made under this section will have to be on motion with notice to the persons affected thereby. Suo motu only applies in cases falling under paragraph (c). In the other cases, to act suo motu, would be a gross irregularity giving grounds for review.

[10] In Ramodike v Mokeetsi Trading Store 1955 (2) SA 169 (T) at 171 H, the court clearly stated that:

“Until properly attacked and rescinded a judgment of Court of record even if obtained by default must stand and be presumed binding. A Magistrate has no power mero motu to set aside a judgment of his Court except where there are patent errors therein …”

[11] With respect the reliance on Section 36 of the Magistrate’s Court Act 32 of 1944 by the third respondent is misplaced. The Court’s order made in Court on 19 February 2021 became final and binding.

[12] The Third Respondent persisted to proceed with the court proceedings in the absence of the First and Second Respondent’s attorney. The Third Respondent’s contention that she was misled and that the order in court was obtained fraudulently by Mr. Lennox, does not correspond with the true factual position as set forth in the transcribed record. It is regrettable that she will go to such great length to make misleading statements which are not supported by evidence before me. She has been less than frank in explaining what transpired. She was very impatient to wait for the respondent’s attorney and made conceited remarks before proceeding to grant an order sought by the applicant

[13] The Third Respondent was functus officio and the Third Respondent did not have any justification to alter the Court order as no formal application for variation or rescission was brought on notice to the affected parties by the First and Second Respondents.

[15] There evenly existed no patent error which required correction in the Court order. It was therefore grossly irregular for the First Respondent to purport to “change the Court order” after it became functus officio, in the absence of any justification and only after hearing submissions from Mr Mokhele in chambers in the absence of the Applicant or its representatives. It also bothers on unethical conduct on the part of the attorney to approach the third respondent in Chambers and move an application in the absence of his colleague. This type of conduct must be frowned upon and should not only be discouraged but eradicated.

[16] The Third Respondent therefore committed a gross irregularity and the Applicant is prejudiced by the conduct of the Third Respondent, in that it was arbitrarily deprived of a final order without any due justification. As such the Court order is reviewable in terms of Section 22 of the Superior Courts Act.

[17] The Applicant seeks a cost order on an attorney and own client scale is sought against the First and Second Respondents.

[18] It is trite that cost orders are in the discretion of the court. The court is not convinced that a punitive cost order is justified against the First and Second Respondents. I intend sticking to the general rule that the costs follow the event.

[19] Therefore the following orders are made:

1. The order of the third respondent dated 19 February 2021 postponing the matter to 5 March 2021 is reviewed and set aside.

2. The aforementioned order of the court a quo is substituted with the following: -

“The application is dismissed with costs.”

3. The first and second respondents, the one paying the other to be absolved, must pay the costs of this application.

D. DE KOCK, AJ

I agree and it is so ordered

M.A. MATHEBULA, J