Makotlha v Leolo and Another (02/2022) [2022] ZANWHC 32 (14 June 2022)

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

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

HIGH COURT REF NO: 02/2022

MAGISTRATES CASE NO: 160/19

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

PETER RAMAQAMAKO MAKOTLHA PLAINTIFF

and

KGAHLISO MAGRETT LEOLO 1ST

DEFENDANT

SHERIFF ORKNEY 2ND DEFENDANT

ORDER

(i) The special review application is struck off the roll;

(ii) The matter is remitted to Magistrates' Court to be dealt with in accordance with the paragraph [BJ of this judgment.

SPECIAL REVIEW JUDGMENT

PETERSEN J

Introduction

[1] This matter was sent on special review by the District Magistrate, Orkney with a request to review, set aside and correct an order granted by himself on 02 June 2021.

[2] The letter of the District Magistrate reads as follows:

"Submission of records for special review in terms of the provisions of section 19(1)(a)(ii) read with section 24(1)(a) of the Supreme Court Act 59 of 1959.

"1. Having noticed that I made an error in rescinding an eviction order by Magistrate Maleka dated 15 May 2019 and that I cannot correct it under the circumstances.

2. It is therefore requested that the honourable reviewing judge correct or alternatively alter my order dated 2 June 2021.

On 15 May 2019 the Orkney Magistrate's Court as per Magistrate J Maleka granted an application for eviction in favour of the applicant to the effect that respondent and all other illegal occupants of property, being ERF [....], K[....], North West Province be evicted from such a property. On 02 August 2019 respondents submitted notice of motion to have the said order rescinded in terms of rule 49 of Magistrate's Court Rules, as amended. On 22 April 2021, after applicant's attorney in the rescission application failed to appear and after he was notified of the matter being enrolled by respondent and failed to appear, an order to strike out part 3 and 5 of Mr Pieter Ramaqamako Mokgatla's replying affidavit and his rescission of application of order dated 15 May 2019 was granted by default by myself Magistrate R B Letsholo. This means that the order of eviction by Magistrate Malika dated 15 May 2019 remained in force and was executable.

Respondent attorney approached this court on 2 June 2021 to alert it that the dismissal of their application for rescission was erroneously granted and asked this court to have same reversed mero motu, which application was granted, with the purpose of leaving the application for rescission of order dated 15 May 2019 intact, in doing so I erroneously rescinded an eviction order by Magistrate Malika dated 15 May 2019, when I intended to rescind my order dated 22 April 2021. It is following this background that I submit this matter for special review to have my order dated 2 June 2021 corrected as follows:

1. That an order dated 2 June 2021 rescinding an eviction order by Magistrate Maleka dated 15 May 2019 is corrected as follows:

1.1 That application to dismiss strike out part 3 and 5 of applicant's replying affidavit and to dismiss his rescission for eviction order is rescinded mero muto and his application for rescission of an eviction order dated 15 May 2019 remains until prosecuted.

The Act provides as follows:-

36 What judgments may be rescinded

(1) The court may, upon application by any person affected thereby, or, in cases falling under paragraph (c), suo motu-

(a) rescind or vary any judgment was granted by it in the absence of the person against whom that judgment was granted;

(b) rescind or vary any judgment granted by it which was void ab origine or was obtained by fraud or by mistake common to the parties;

(c) correct patent errors in any judgment in respect of which no appeal is pending; (d) rescind or vary any judgment in respect of which no appeal lies.

(2) If a plaintiff in whose favour a default judgment has been granted has agreed in writing that the judgment be rescinded or varied, a court must rescind or vary such judgment on application by any person affected by it.

[s. 36 substituted bys. 1 of Act 55 of 2002.] Magistrate's Court rules, updated March 2016, echo the same sentiments of section 36 of Magistrate's Court Act above.

Although I intended to rescind an order for which I have the power to do so in terms of the rules and statute above, my error of rescinding an eviction order by Magistrate J Maleka is in my opinion an order for which I had no powers to or business to attend to on 2 June when I intended to mero motu rescind my rescind without having properly dealt with rescission application in terms of rule 49 of Magistrates' Court rules, as amended. I also feel that I am functus officio and cannot visit my order as this error came to my attention on 4 August 2021, sometime after an order was made.

In Proud Heritage Properties (Pty) Ltd and another v Transnet Limited and another Case no: 405/08 the Eastern Cape High Court as per Chetty J, said the following:

"A court's inherent power to rectify its own judgment has authoritatively been dealt with in the case of Firestone South Africa

(Pty) Ltd v Gentiruco A.G. 1977 (4) SA 298 (AD) where Trollip JA stated at 306F- 307G:-

"The general principle, now well established in our law, is that, once a court as duly pronounced a final judgment or order, it has 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 West Rand Estates Ltd. v New Zealand Insurance C. Ltd., 1926 AD. 173 at 00 176, 186-7 and 192; Estate Garlick v Commissioner of Inland Revenue, 1934 AD. 499 at p. 502.

There are, however, a few exceptions to that rule which are mentioned in old authorities, and have been authoritatively accepted by this Court. Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases:

(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interests on the judgment debt, which the Court overlooked or inadvertently omitted to grant (see the West Rand case, supra)...

(ii) The Court may clarify its judgment or order, if, on the proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter "the sense and substance" of the judgment or order (see the West Rand case, supra at pp 176, 186-7; marks v Kotze, 1946 A.O. 29)...

(iii) The Court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention (see, for example, Wessels & Co. v De Beer, 1919 A.O. 172; Randfontein Estates Ltd v Robinson, 1921 A.O. 515 at p 5201 the West Rand case, supra at pp 186-7).

This exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense or substance. Kotze, JA made this distinction manifestly clear in the West Rand case, supra at pp 186-7, when with reference to the old authorities, he said:

"The Court can, however, declare and interpret its own order or sentence, and likewise correct the wording of it, by substituting more accurate or intelligent language so long as the sense and substance of the sentence are in no way affected by such correction; for to interpret or correct is held not to be equivalent to altering or amending a definitive sentence once pronounced."

As I have stated above looking at the record of 2 June 2021 I could not have intended to rescind the eviction order but by order to dismiss a rescission application. Therefore, I humbly request the honourable judge to correct my order as requested above.

I further wish to apologise for late submission of this matter. I see on my computer I prepared this document on 27 Dec 2021 and could not send it because of festive season and the High Court only on recess. I must further record that I struggled to do so as a due to covid we were understaffed as people were rotating and some including the messenger, the civil court clerk was on leave including my fellow magistrate who were on leave the whole of December until 12 January 2022, that were spend the whole of that period without electricity and our system was also at some stage hacked."

The issues to be decided

[3] The succinct issue in this matter is whether a Magistrate in a civil matter in the Magistrates Court may summarily send a matter on special review and whether the Superior Courts Act 10 of 2013 sanctions such a procedure or alternatively provides a remedy to any party affected by the decision of the Magistrate.

The relevant legislation

General

[4] The Magistrate has referred the matter on special review, with reliance placed on section 19(1)(a)(ii) read with section 24(1)(a) of the Supreme Court Act 59 of 1959. The Supreme Court Act 59 of 1959 has been repealed in toto, through the enactment of the Superior Courts Act 10 of 2013. The review application on that score is accordingly misplaced. Notwithstanding the misplaced reliance on the repealed Supreme Court Act, the question remains whether the referral of a civil matter from the Magistrates

Court is sanctioned by the Superior Courts Act.

[5] The only provision in the Superior Courts Act which deals with the review of proceedings of a Magistrates' Court is section 22, which provides that:

"22 Grounds for review of proceedings of Magistrates' Court

(1) The grounds upon which the proceedings of any Magistrates' Court may be brought under review before a court of a Division are-

(a) absence of jurisdiction on the part of the court;

(b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;

(c) gross irregularity in the proceedings; and

(d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.

(2) This section does not affect the provisions of any other law relating to the review of proceedings in Magistrates' Courts."

[6] Uniform Rule 53 of the Uniform Rules of Court further deals with reviews from a Magistrates' Court as follows:

"53 Reviews

(1) Save where any Jaw otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairperson of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected? -

(a) calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside, and

(b) calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.

(2) The notice of motion shall set out the decision or proceedings sought to be reviewed and shall be supported by affidavit setting out the grounds and the facts and circumstances upon which applicant relies to have the decision or proceedings set aside or corrected.

(3) The registrar shall make available to the applicant the record despatched to him or her as aforesaid upon such terms as the registrar thinks appropriate to ensure its safety, and the applicant shall thereupon cause copies of such portions of the record as may be necessary for the purposes of the review to be made and shall furnish the registrar with two copies and each of the other parties with one copy thereof, in each case certified by the applicant as true copies. The costs of transcription, if any, shall be borne by the applicant and shall be costs in the cause.

(4) The applicant may within ten days after the registrar has made the record available to him or her, by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of his or her notice of motion and supplement the supporting affidavit.

(5) Should the presiding officer, chairperson or officer, as the case may be, or any party affected desire to oppose the granting of the order prayed in the notice of motion, he or she shall -

(a) within fifteen days after receipt by him or her of the notice of motion or any amendment thereof deliver notice to the applicant that he or she intends so to oppose and shall in such notice appoint an address within 15 kilometres of the office of the registrar at which he or she will accept notice and service of all process in such proceedings; and

(b) within thirty days after the expiry of the time referred to in subrule (4) hereof, deliver any affidavits he or she may desire in answer to the allegations made by the applicant.

(6) The applicant shall have the rights and obligations in regarcf to replying affidavits set out in rule 6.

(7) The provisions of rule 6 as to set down of applications shall mutatis mutandis apply to the set down of review proceedings."

[7] When regard is had to the reasons put forward by the Magistrate why this Court should correct the order granted by him, the only ground under which the act of the Magistrate could resort, on his account, with the misplaced reference to the repealed Supreme Court Act, would be section 22(1)(c) of the Superior Courts Act. In Erasmus: Superior Court Practice, the authors discuss section 22(1)(c) as follows:

"Paragraph (c): 'Gross irregularity in the proceedings.'

The words 'in the proceedings' are not to be interpreted as applying only to manifest departures in court from the rules and principles which regulate the way in which trials (and applications) are to be conducted. A 'gross irregularity' in civil proceedings in a magistrate's court means an irregular act or omission by the presiding iudicial officer (or possibly some other official of the court) in respect of the proceedings of so gross a nature that it was calculated to prejudice the aggrieved litigant, on proof of which the court would set aside such proceedings unless it was satisfied that the litigant had in fact not suffered any preiudice. In certain circumstances it is the cumulative effect that counts; and a case may be so full of irregularities, none of which is gross in itself, that there may be said to be gross irregularity as to the whole proceedings. A finding that a magistrate had committed a gross irregularity should be supported by facts."

[8] In Swart Redelinghuys Nel & Partners INC v Theron Jordan & Smit INC (HC1/2022) [2022] ZANWHC 1 (11 February 2022), this Court was called upon to deal with a review of a civil matter referred mero motu to the High Court by a Magistrate in a similar manner the present review. The following extract from the judgment is apposite:

"[3] In Old Mutual Finance (Pty) Ltd v Makalapetlo 2018 (3) SA 258 (LP) at paragraph 8 the Full Court of the Limpopo Division had to consider a similar review application. The Court had to consider the following issues:

(i) whether in Civil Proceedings a Magistrate can mero motu send a judgment or decision to the High Court for review as in criminal proceedings where the review procedure is laid down in sections 302 to 304 of the Criminal Procedure Act 51 of 1977" and

(ii) what Magistrates should do when faced with a situation where a civil judgment is null and void and needs to be set aside by the High Court.

[4] It is trite that the review procedure laid down in section 304(4) of the Criminal Procedure Act allows a Magistrate to submit the record of the proceedings to the Registrar of the High Court with a covering letter requesting a Judge to set aside the proceedings in the Magistrate's Court. At paragraph 11 of Makalapet/o supra, it was held that:

"It should be pointed out that in civil proceedings there is no such a procedure as set out in sections 302 and 000000">304 of the Criminal Procedure Act. In my view this is where the confusion arises. Our Magistrates seem to assume that the review procedure in criminal proceedings is equally applicable in civil proceedings."

[5] I agree with the views expressed in Makalapetlo. There is no procedure provided in the Rules of Court where a Magistrate can mero motu refer a judgment or proceedings of the lower Court to the High Court for review. The proper procedure is provided for in Rule 53 of the Uniform Rules of Court.

[6] In terms of section 22(1 )(c) of the Superior Courts Act 1O of 2013, proceedings of any Magistrate Court may be brought under review before a High Court on the ground of gross irregularity in the proceedings. This provision is relevant to the issue before me in this matter where an incompetent judgment from the Magistrates' Court is sought to be reviewed and set aside by this Court.

[7] The Makalapetlo[1] decision gives clear direction how Magistrates should deal with reviews of this nature. This salutary approach is enunciated as follows:

"[20] The guidance this Court can give to the magistrate faced with irregular judgment like in the present case is that the irregularity should be pointed out to the interested or affected parties (plaintiff or defendant, judgment creditor or judgment debtor) and advise them that the matter is reviewable by the High Court under Rule 53.

There is no room for the magistrate to simply submit the case to the high Court for review.

[21] The alternative procedure whereby a judgment which is void ab origine can be set aside is an application for rescission of judgment in terms of Section 36(1) (b) of the Magistrates' Court Act, 1944 read with Rule 49 of the Magistrates' Court Rules. This application is brought in the Magistrate Court by any of the interested parties except the magistrate. I need not go further into the aspect of rescission of judgment assuming that all magistrates are conversant with the procedure". (my emphasis)

[8] For the reasons stated above, the incompetent judgment of the Magistrate cannot be reviewed in the manner in which the special review was submitted to this Court.

[9] Consequently, the following order is made:

(i) The special review application is struck off the roll;

(ii) The matter is remitted to Magistrates' Court to be dealt with in accordance with paragraph [7] of this judgment."

Conclusion

[9] The decision in Swart Redelinghuys Ne/ & Partners ING v Theron Jordan & Smit ING is equally applicable to the present matter. The appropriate order in this matter should accordingly accord with the order in that matter.

Order

[10] Consequently, the following order is made:

(iii) The special review application is struck off the roll;

(iv) The matter is remitted to Magistrates' Court to be dealt with in accordance with the paragraph [BJ of this judgment.

A H PETERSEN

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

I agree

J T DJAJE

JUDGE OF THE HIGH COURT

Judgment handed down: 14 June 2022

[1] See also See also Masina v Nkosi [2020] JOL 47183 (ML) at para 15; Jacobs v Van Der Merwe [2020) JOL 48422 (FB) at para 5 -6