Minister of Safety and Security v Jonas NO and Another (2786/2012) [2012] ZAECGHC 93 (19 November 2012)

Minister of Safety and Security v Jonas NO and Another (2786/2012) [2012] ZAECGHC 93 (19 November 2012)

The magistrate erred by relying on Rule 60A to condone the second respondent's failure to give notice as required by section 3(2)(a) of Act 40 of 2002. Only section 3(4) of the Act empowers the court to grant condonation, and this requires a substantive application and satisfaction of statutory requirements. The...

Source-derived case information.

Citation
[2012] ZAECGHC 93
Parties
Applicant: Minister of Safety & Security; Respondent: Mrs Jonas N.O.; Respondent: MC Dyanti
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
19 November 2012
Case Number
2786/2012
Procedural Posture
Review Application / Application for Review and Setting Aside of Magistrate's Decision
Outcome
Application for review and setting aside of the magistrate's decision is granted.
Judges
J M Roberson, J D Pickering
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Condonation, Irregular Proceedings, Special Plea
Civil Procedure Administrative Law Institution of Legal Proceedings Against Organs of State Act Condonation Irregular Proceedings Special Plea

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Summary, issues, holding and outcome

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Parties

Minister of Safety & Security

Applicant

Mrs Jonas N.O.

Respondent

MC Dyanti

Respondent

Procedural Posture

Review Application / Application for Review and Setting Aside of Magistrate's Decision

Legal Issues

  1. 1 Whether the magistrate was empowered to condone the second respondent's failure to give notice in terms of section 3(2)(a) of Act 40 of 2002 without a substantive application for condonation.
  2. 2 Whether reliance on Magistrates' Courts Rule 60A was proper in the circumstances.
  3. 3 Whether the order for wasted costs against the applicant was justified.

Ratio Decidendi

The magistrate erred by relying on Rule 60A to condone the second respondent's failure to give notice as required by section 3(2)(a) of Act 40 of 2002. Only section 3(4) of the Act empowers the court to grant condonation, and this requires a substantive application and satisfaction of statutory requirements. The magistrate's order amounted to a gross irregularity, prejudicing the applicant by allowing the trial to proceed without compliance with the prescribed procedure. The order for wasted costs against the applicant flowed directly from this irregularity and must also be set aside. The correct procedure was not followed, and the applicant was justified in seeking a review.

Court Disposition

Application for review and setting aside of the magistrate's decision is granted.

Orders

  • The decision of the first respondent condoning the second respondent's failure to give notice in terms of section 3(2)(a) of Act 40 of 2002 is reviewed and set aside.
  • The first respondent's order that the applicant pay the wasted costs occasioned by the postponement of the trial is set aside and substituted with an order that the plaintiff is to pay the wasted costs occasioned by the postponement of the trial.