Old Mutual Finance (Pty) Ltd v Makalapetlo (REV152/2017) [2017] ZALMPPHC 40; 2018 (3) SA 258 (LP) (6 December 2017)

Old Mutual Finance (Pty) Ltd v Makalapetlo (REV152/2017) [2017] ZALMPPHC 40; 2018 (3) SA 258 (LP) (6 December 2017)

The Full Bench held that there is no statutory or procedural basis for a magistrate in civil proceedings to refer a judgment or decision to the High Court for review mero motu. The procedures for review in criminal matters do not apply to civil proceedings. In civil matters, review of magistrates’ court judgments must be initiated by an interested party (plaintiff, defendant, judgment creditor, or judgment debtor) through a formal application in terms of Rule 53 of the Uniform Rules of Court, which requires notice to all affected parties and compliance with the audi alteram partem rule. The magistrate’s role is limited to advising the parties of the irregularity and the available review...

Citation
[2017] ZALMPPHC 40
Parties
Plaintiff: Old Mutual Finance (Pty) Ltd; Defendant: Motlatso Joyce Makalapetlo
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
6 December 2017
Case Number
REV152/2017
Procedural Posture
Review Application / Full Bench Review of Magistrate's Referral
Outcome
The review application was not properly before the High Court and was struck from the roll.
Judges
E M Makgoba, F E Mokgohloa, G C Muller
Legal Topics
Magistrates Court Review, Default Judgment, Audi Alteram Partem, National Credit Act, Rescission of Judgment
Civil Procedure Magistrates Court Review Default Judgment Audi Alteram Partem National Credit Act Rescission of Judgment

Case Brief

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Parties

Old Mutual Finance (Pty) Ltd

Plaintiff

Motlatso Joyce Makalapetlo

Defendant

Procedural Posture

Review Application / Full Bench Review of Magistrate's Referral

Legal Issues

  1. 1 Whether a magistrate in civil proceedings may mero motu refer a judgment or decision to the High Court for review as is permitted in criminal proceedings.
  2. 2 What procedure should be followed when a civil judgment is null and void and requires setting aside by the High Court.

Ratio Decidendi

The Full Bench held that there is no statutory or procedural basis for a magistrate in civil proceedings to refer a judgment or decision to the High Court for review mero motu. The procedures for review in criminal matters do not apply to civil proceedings. In civil matters, review of magistrates’ court judgments must be initiated by an interested party (plaintiff, defendant, judgment creditor, or judgment debtor) through a formal application in terms of Rule 53 of the Uniform Rules of Court, which requires notice to all affected parties and compliance with the audi alteram partem rule. The magistrate’s role is limited to advising the parties of the irregularity and the available review...

Court Disposition

The review application was not properly before the High Court and was struck from the roll.

Orders

  • The matter from Morebeng Magistrate Court (Case No 52/2017) is struck from the roll.