Nqayana v Ndengezi and Another (1674/2022) [2023] ZAECMHC 24 (21 April 2023)

Nqayana v Ndengezi and Another (1674/2022) [2023] ZAECMHC 24 (21 April 2023)

The court held that the first respondent, as presiding magistrate, failed to comply with Uniform Rule 53(b) by not furnishing the record of proceedings. The applicant is prima facie entitled to an order compelling compliance. The second respondent's contention that the record had already been filed in a related matter was factually incorrect, as the applicant was not a party to that matter. The presiding officer remains legally obliged to file the record in the present proceedings. The second respondent unnecessarily opposed the application on unsustainable grounds and must bear the costs of her opposition. No costs order is made against the first respondent, as he did not oppose the...

Citation
[2023] ZAECMHC 24
Parties
Applicant: Mkhangeli Nqayana; Respondent: Dumisani Shylock Ndengezi; Respondent: National Director of Public Prosecutions
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
21 April 2023
Case Number
1674/2022
Procedural Posture
Review Application / Interlocutory Application to Compel Production of Record
Outcome
Application granted; first respondent ordered to furnish the record; second respondent ordered to pay costs.
Judges
JE Smith
Legal Topics
Uniform Rule 53, Compelling Production of Record, Costs Award
Civil Procedure Uniform Rule 53 Compelling Production of Record Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Mkhangeli Nqayana

Applicant

Dumisani Shylock Ndengezi

Respondent

National Director of Public Prosecutions

Respondent

Procedural Posture

Review Application / Interlocutory Application to Compel Production of Record

Legal Issues

  1. 1 Whether the first respondent, as presiding magistrate, is obliged to furnish the record of proceedings under Uniform Rule 53.
  2. 2 Whether the applicant is entitled to an order compelling production of the record despite the record having been filed in a related matter.
  3. 3 Whether the second respondent's opposition to the application warrants a costs order against her.

Ratio Decidendi

The court held that the first respondent, as presiding magistrate, failed to comply with Uniform Rule 53(b) by not furnishing the record of proceedings. The applicant is prima facie entitled to an order compelling compliance. The second respondent's contention that the record had already been filed in a related matter was factually incorrect, as the applicant was not a party to that matter. The presiding officer remains legally obliged to file the record in the present proceedings. The second respondent unnecessarily opposed the application on unsustainable grounds and must bear the costs of her opposition. No costs order is made against the first respondent, as he did not oppose the...

Court Disposition

Application granted; first respondent ordered to furnish the record; second respondent ordered to pay costs.

Orders

  • The first respondent is ordered to furnish or dispatch to the Registrar of this Court, within 15 days from the date of this order, the complete record of proceedings under case number RCCU 31/2021 heard on 30 March 2022.
  • The second respondent is ordered to pay the costs of the application on the party and party scale.