Mjongile v Magistrate Zwelitsha and Others (406/16; 407/16) [2017] ZAECBHC 22 (23 February 2017)

Mjongile v Magistrate Zwelitsha and Others (406/16; 407/16) [2017] ZAECBHC 22 (23 February 2017)

Both judgments were set aside due to gross irregularities in the proceedings. The second respondent failed to comply with the National Credit Act by issuing notices and demands before the debts were due, and consents to judgment were signed prematurely. The required letters of demand were either misleading or absent, and there was no evidence of compliance with statutory procedures. The clerk and magistrate could not have been satisfied that the requirements of sections 129 and 130 of the NCA were met, nor was there proper judicial oversight or supporting affidavits as required by the Magistrates' Court Rules. The orders included costs and interest not properly consented to, and the...

Citation
[2017] ZAECBHC 22
Parties
Applicant: Themba Mjongile; Respondent: Magistrate Twani, Zwelitsha; Respondent: Wilberforce Trading CC trading as Buntu Mxenge; Respondent: The Clerk of the Civil Court, Zwelitsha; Respondent: Minister of Justice and Constitutional Development
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
23 February 2017
Case Number
406/16; 407/16
Procedural Posture
Review Application / Review of Two Magistrates' Court Judgments
Outcome
Both applications for review succeed. The judgments and orders granted against the applicant under Zwelitsha case numbers 4980/13 and 3801/14 are set aside. Costs are awarded against the second respondent.
Judges
I.T. Stretch, D. Van Zyl
Legal Topics
Magistrates Court Act Section 58, National Credit Act Compliance, Gross Irregularity, Consent to Judgment, Emoluments Attachment Order
Civil Procedure Banking and Finance Magistrates Court Act Section 58 National Credit Act Compliance Gross Irregularity Consent to Judgment Emoluments Attachment Order

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Parties

Themba Mjongile

Applicant

Magistrate Twani, Zwelitsha

Respondent

Wilberforce Trading CC trading as Buntu Mxenge

Respondent

The Clerk of the Civil Court, Zwelitsha

Respondent

Minister of Justice and Constitutional Development

Respondent

Procedural Posture

Review Application / Review of Two Magistrates' Court Judgments

Legal Issues

  1. 1 Whether the judgments granted under section 58 of the Magistrates' Court Act were grossly irregular and should be set aside.
  2. 2 Whether the procedures required by sections 129 and 130 of the National Credit Act were complied with before enforcement of the debt.
  3. 3 Whether the clerk and magistrate acted ultra vires in granting judgment without proper compliance with statutory requirements.

Ratio Decidendi

Both judgments were set aside due to gross irregularities in the proceedings. The second respondent failed to comply with the National Credit Act by issuing notices and demands before the debts were due, and consents to judgment were signed prematurely. The required letters of demand were either misleading or absent, and there was no evidence of compliance with statutory procedures. The clerk and magistrate could not have been satisfied that the requirements of sections 129 and 130 of the NCA were met, nor was there proper judicial oversight or supporting affidavits as required by the Magistrates' Court Rules. The orders included costs and interest not properly consented to, and the...

Court Disposition

Both applications for review succeed. The judgments and orders granted against the applicant under Zwelitsha case numbers 4980/13 and 3801/14 are set aside. Costs are awarded against the second respondent.

Orders

  • The judgment and order granted by the Zwelitsha clerk of the civil court against the applicant on 28 October 2013 under case no. 4980/13 are set aside.
  • Wilberforce Trading CC trading as Buntu Mxenge is directed to pay the applicant's costs.