Masina v Nkosi (2334/2017) [2020] ZAMPMHC 4 (11 May 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(LOCAL SEAT)

CASE NO: 2334/2017

In the matter between:

FIKIE

MASINA APPLICANT

and

JABULANI

NKOSI RESPONDENT

JUDGMENT

BRAUCKMANN

AJ

INTRODUCTION

[1] This matter was referred to this Court by Mr PJ De Beer (“The Commissioner”), as a “review” of a judgement by the Commissioner of the Small Claims Court (“The Court”), Msukaligwa held at Ermelo. The referral follows a judgment made by the Commissioner in favour of the respondent in this matter, on 16 August 2017 (“The Judgment”).

[2] The Respondent purchased a car from the Applicant. In consequence of the transaction the Respondent paid the full purchase

price of R13 900.00 to the respondent, and thereafter cancelled the agreement for reasons not relevant for the purpose of this judgment. The action instituted in the Small Claims Court was for restitution of the amount of R13 900.00. The Applicant, on becoming aware of the judgment, wrote a letter to the Clerk of the Small Claims Court (“The Clerk”) stating:

“I apply to have the matter revierwed (sic) for the reasons:

(a). I never had the chance to put my side

(b). Documents were not served on me and I was Piet Retief or Middelburg at the time working

(c). I have a defance (sic) against the claim

Yours Faithfully”

[3] This letter, received by the Clerk of the Small Claims Court (“The Clerk”) on 16 November 2017, spurred the Commissioner, and the Clerk, to refer this matter as an application for review (“Hersieningsaak”) to his court on 13 February 2018.

[4] Masango AJ addressed a letter to the Clerk of the Criminal Court, Magistrate’s Court, Ermelo on 5 March 2018 through his

secretary stating:

“In order for the court to deal with this matter, kindly provide us with the reasons for judgment.”.

On 7 May 2018 the Commissioner provided reasons for his judgment.

[5] Having received the Commissioner’s reasons for judgment, I addressed a letter through the Registrar’s office to the Commissioner and the Clerk of the Court on 14 February 2019. The letter was couched as follows:

“1. Please note that the judgment annexed hereto is not reviewable in terms of the Criminal Procedure Act 51 of 1977.

2. The Commissioner can also not refer the matter for review in terms of section 46 of the Small Claims Court Act.

3. See in this regard: Old Mutual Finance (Pty) Ltd v Makalapetlo 2018 (3) 258 (LP) paragraphs 18 t0 22.”

[6] The matter was then, again submitted to this Court by the Clerk of the Court (or Commissioner) and allocated to me to review the Commissioner’s judgment. I therefore decided to pen this judgment to serve as precedent for all Small Claims Court Commissioners, and Clerks, in Mpumalanga in this context.

[7] The following aspects seems to be common cause:

[i] A dispute was referred to the Small Claims Court by the Respondent;

[ii] A letter of demand was sent to the applicant by serving it on applicant’s nephew, NV Kubheka, a person “older than 16 years and a resident or employed at the defendant’s given address”.

[iii] No payment or reaction was received from the applicant which caused the respondent to approach the Clerk of the Court, who issued a Summons. The Summons was served on the applicant on 6 July 2017 by the Acting Sherriff PJ Williams when a copy of the Summons was handed to applicant’s wife, Sizana Masina, “a person older than 16 years of age and resident or employed at the defendant’s given address, being Stand 7043 Extension 6, Thusi Village, Ermelo”. The date of trial was communicated to the Applicant’s wife as 16 August 2017.

[iv] On 16 August 2017 the Applicant was absent in court and the Commissioner granted default judgment.

THE

APPLICABLE LAW

[7] The Small Claims Court is not a court of record[1] and a presiding officer is only required to record or cause to be recorded the verdict, judgment or order of the court, and sign it. A judgment of the Small Claims Court is also final and no appeal lies from it.[2]

[8] A judgment of such court may however be taken on review by an aggrieved party on the grounds specified in Section 46 of the Act.[3]

[9] The Act also provides for rescission of certain judgments of the court. Amongst others, a judgment may be rescinded by a Commissioner

if it was granted in the absence of a person against whom that judgment was granted, provided the application for rescission is made on a date within six weeks after the Applicant obtains knowledge of the judgment.[4]Judgments may also be rescinded if it appears to be void ab origine, or was obtained by fraud or as a result of a mistake common to the parties, provided that such application is made not later than one year from date the Applicant first had knowledge of the said voidness, fraud or mistake.[5]

[10] In criminal matters review applications may, and in certain instances, must be referred to the High Court by a Magistrate in

terms of Section 302 to 304 of the Criminal Procedure Act[6]. The clerk, may not refer a civil judgment by a Commissioner of the Small Claims Court for “review”. Such procedure is not competent in terms of the Act.

[11] A Commissioner having realised that the judgment could not be set aside or varied, may not mero motu submit the matter to the High Court for “review”. Although sections 21 and 22 of the Superior Courts Act[7] (“The SCA”) provides the power and jurisdiction of the High Court to review inferior court’s’ judgements and orders, it does not provide for a procedure whereby the High Court would handle the review applications. Section 21 and 22 of the SCA provide for the jurisdiction of the High Court in respect of persons over whom and matters in relation to which the court has jurisdiction. Section 21 of the SCA stipulates that:

“21 (1) A Division has jurisdiction over all persons residing or being in, A and in relation to all causes of action arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power —

(a) to hear and determine appeals from all Magistrates' Courts within its area of jurisdiction;

(b) to review the proceedings of all such courts; . . . .”

The grounds for review of proceedings of the magistrates' court are set out in section 22 of the SCA as:

“22 (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.”

In terms of s 22(1) (c) of the SCA, proceedings of any magistrates' court may be brought under review before the High Court on the ground of gross irregularity in the proceedings.

[12] The High Court does not have the inherent power to conduct any civil review referred to it by a Magistrate or the Clerk, as provided for in criminal matters. A matter can be referred for review to this Court only in terms of Rule 6 (5), read with Rules 53 (1) and (2) of the Uniform Rules of Court (“The Rules”) read with Section 21 of the SCA. An application by notice of motion, supported by an affidavit provides for giving notice to the respondent, calling upon the latter to give reasons for the decision taken, or show cause why the decision should not be reviewed and set aside. This is in conformity with the legal principle of the audi alteram partem rule. The procedure “created” by the Commissioner, and the Clerk, whereby they mero motu submit judgments to the High Court for review without knowledge and/or participation of the erstwhile plaintiff and defendant is clearly not in accordance with the audi alteram partem rule.

[13] It must be borne in mind that erstwhile plaintiffs and defendants are interested parties in the purported review proceedings. The Commissioner and Clerk cannot be interested parties in the proceedings and assume the role of the applicant. The guidance this

court can provide to Commissioners faced with an irregular judgment, as the present case seems to be, is:

[13.1] the irregularity should be pointed out to the interested or affected parties (plaintiff or defendant); and

[13.2] to advise them that the matter is reviewable by the High Court in terms of the Act and that Rules 6 and Rule 53 prescribes the applicable procedure.

[14] There is no room for a magistrate to simply submit the case to the High Court for review. If the Applicant was of the opinion that the judgment granted by the Commissioner was final in nature, and cannot be rescinded should he apply for such rescission in terms of Rule 36 of the Small Claims Court’s Rules, he is free to launch an application for review of the Commissioner’s

judgment on the limited grounds set out in Rule 46 of the Act.

[15] In Old Mutual Finance (Pty) Ltd v Makalapetlo[8] a full court of the Limpopo Division was faced with almost similar facts, albeit that the matter in that Division concerned referrals,

mero motu, by Magistrates in civil matters, of cases for review where they were of the opinion that there were some irregularities involved.

The referral by the Commissioner and/or the Clerk of the judgment to this court for review is not based on Sections 302 to 304 of the Criminal Procedure Act[9]. In civil proceedings the procedure created in Section 302 and 304 of the Criminal Procedure Act does not exist.

[16] A High Court may not use its inherent jurisdiction to create a right for a party which does not exist. It follows that a High Court can only exercise its inherent jurisdiction in relation to the regulation of its own process when confronted with a case over which it already has jurisdiction, and when faced with procedures and rules of the court which do not provide a mechanism to deal with an instant problem. A court will, in that case, be entitled to fashion the means to deal with the problem to enable it to do justice between the parties[10].

[17] There are rules of court in the form of Rules 6 and 53 which provide a mechanism to implement the provisions of sections 21 and 22 of the SCA, and allows the High Court to exercise its right, or jurisdiction to review the proceedings of the lower courts. There is no need for this court to exercise its inherent powers in this case[11]. Although judgments by Commissioners in the Small Claims Court can be reviewed by the High Court under certain circumstances, such reviews would always be initiated, and prosecuted by an aggrieved party to the litigation in such court in terms of Rule 6[12] read with Rule 53[13] of the Uniform Rules.

[18] Even if the review procedure was to be followed, and in casu it was the appropriate procedure to follow, the grounds provided by the applicant for the review of the Small Claims Court’s

judgment do not fall within one of the grounds stated in Section in 46 of the Act. In the application to the Small Claims Court the applicant he does not allege that any procedural irregularity took place when the matter was heard by the Commissioner. He only laments about the fact that he was not present when the matter was heard, and judgment handed down against him. That does not constitute a reviewable irregularity in terms of Section 46 of the Act.

[19] In casu the Applicant should have applied for rescission of judgment in terms of Section 36 (a) or (b) of the Act. It is apparent that applicant was not present when the case was called, heard and adjudicated on. The applicant’s explanation is that he was in Piet Retief or Middelburg when the matter was heard, alternatively the Summons was served, and he was not aware of the trial date. This is clearly a case where the judgment was made in his absence and is rescindable in terms of the Act and rules in terms

thereof.

CONCLUSION

[20] In the light of the principles as laid down in Old Mutual Finance (supra)[14] I am therefore of the opinion the procedures followed by the applicant and the Clerk of the Small Claims Court (Commissioner included) is not the appropriate procedure and that this court accordingly does not have the inherent power to conduct a review as required by the Clerk of the Court and/or the Commissioner.

[17] I accordingly make the following order:

1. The case before me from the Msukaligwa (Ermelo) Small Claims Court case number SC23/17 is not subject to review by this court and therefore struck from the roll.

______

HF

BRAUCKMANN

ACTING

JUDGE FOR THE HIGH COURT

I

AGREE AND IT IS SO ORDERED

_________

AM

KGOELE

ACTING

DEPUTY JUDGE PRESIDENT

[1] Section 3 (1) of the Small Claims Court Act 61 of 1984 (“The Act”)

[2] Section 54 of the Small Claims Court Act

[3] “46. The grounds upon which the proceedings of a court may be taken on review before a provincial or local division of the Supreme Court of South Africa are- (a) absence of jurisdiction on the part of the court; (b) interest in the cause, bias, malice, or the commission of an offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004, on the part of the commissioner; and (c) gross irregularity with regard to the proceedings.”

[4] Section 36 (a) of the Small Claims Court’s Act

[5] Section 36 (b)

[6] Act 51 of 1977.

[7] Act no 10 of 2013.

[8] Old Mutual Finance (Pty) Ltd v Makalapetlo 2018 (3) SA 258 (LP) at, paras 19-21

[9] Act 51 of 1977

[10] Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA)

[11] Old Mutual, supra, para22 & 23

[12] Rule 6(5)(a) Every application other than one brought ex parte shall be brought on notice of motion as near as may be in accordance with Form 2(a) of the First Schedule and true copies of the notice, and all annexures thereto, shall be served upon every party to whom notice thereof is to be given. (b) In such notice the applicant shall . . . subject to the provisions of section 27 of the Act, set forth a day, not less than five days after service thereof on respondent, on or before which such respondent is required to notify the applicant, in writing, whether he intends to oppose such

application, and shall further state that if no such notification is given the application will be set down for hearing on a stated day, not being less than 10 days after service on the said respondent of the said notice. . . . (d) Any person opposing the grant of the order sought in the notice of motion shall — (i) within the time stated in the said notice, give applicant notice, in writing, that he intends to oppose the application '(1) Save where any law 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 B 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) C 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

[12] Rule 6(5)(a) Every application other than one brought ex parte shall be brought on notice of motion as near as may be in accordance with Form 2(a) of the First

Schedule and true copies of the notice, and all annexures thereto, shall be served upon every party to whom notice thereof is to be given.

(b) In such notice the applicant shall . . . subject to the provisions of section 27 of the Act, set forth a day, not less than five days after service thereof on

respondent, on or before which such respondent is required to notify the applicant, in writing, whether he intends to oppose such

application, and shall further

state that if no such notification is given the application will be set down for hearing on a stated day, not being less than 10 days after service on the said

respondent of the said notice.

. . .

(d) Any person opposing the grant of the order sought in the notice of motion shall —

(i) within the time stated in the said notice, give applicant notice, in writing, that he intends to oppose the application '(1) Save where any law 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 B 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) C 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

[13] '(1) Save where any law 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 B 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) C 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 the applicant relies to have the decision or proceedings set aside or corrected.

[13] '(1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or

(b) C 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

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 the applicant relies to have the decision or proceedings set aside or corrected.

[14] Old Mutaul, supra, paragraph 25 to 28