S v Malumane and Another (A92/13) [2013] ZAGPPHC 38 (7 February 2013)
- Citation
- [2013] ZAGPPHC 38
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- LI Vorster, Makgoba EM
- Case number
- A92/13
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- LI Vorster, Makgoba EM
- Case number
- A92/13
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The applicant's absence due to medical treatment does not constitute a ground for review under Section 46 of the Small Claims Court Act. The applicant failed to allege any of the statutory grounds for review, such as lack of jurisdiction, bias, malice, commission of an offence, or gross irregularity. The proper remedy for a party absent at the time of judgment is to apply for rescission or variation under Section 36(a) of the Act, not review. The application for review is therefore dismissed.
Court disposition
Application for review dismissed.
Orders
- The application for review is dismissed.
02
Material facts
Parties
The State
ApplicantMfana Lanios Malumane
RespondentKlaas Jan Mahlangu
RespondentAmounts and remedies
- Default Judgment Amount: ZAR 3,000
- Sheriff's Costs: ZAR 120
03
Procedural history
Posture
Review Application / High Court Review of Small Claims Court Default Judgment
04
Questions and positions
Legal issues
- 01
Whether absence of the applicant at the hearing due to medical treatment constitutes a valid ground for review of the default judgment.
- 02
Whether the grounds for review as set out in Section 46 of the Small Claims Court Act were met.
- 03
Whether the applicant's remedy lies in review or in rescission under Section 36 of the Small Claims Court Act.
Party arguments
- Applicant
- The applicant contends that the default judgment was granted in his absence due to medical treatment and requests that his version be put before the court. He relies solely on the fact that he was not present at the hearing.
- Respondent
- No formal respondent argument is recorded; the court considered the statutory grounds for review and found none were alleged or present.
05
Court’s reasoning
Legal principles
- 01
Section 46 of the Small Claims Court Act 61 of 1984
A review of a Small Claims Court judgment may only be brought on specific grounds: absence of jurisdiction, bias, malice, commission of certain offences, or gross irregularity in proceedings.
- 02
Section 36(a) of the Small Claims Court Act 61 of 1984
A party against whom a judgment has been granted in absence may apply to rescind or vary the judgment within six weeks of obtaining knowledge of it.
06
Ratio, limits and disposition
Ratio decidendi
The applicant's absence due to medical treatment does not constitute a ground for review under Section 46 of the Small Claims Court Act. The applicant failed to allege any of the statutory grounds for review, such as lack of jurisdiction, bias, malice, commission of an offence, or gross irregularity. The proper remedy for a party absent at the time of judgment is to apply for rescission or variation under Section 36(a) of the Act, not review. The application for review is therefore dismissed.
Obiter and limits
- The court expressed uncertainty as to whether the rescission remedy under Section 36(a) remains available to the applicant, given the lapse of time since the judgment.
Court disposition
Application for review dismissed.
- The application for review is dismissed.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
MagistrateKWA-MHLANGA
Case No: SC47\2011
High Court Ref No:
CASE NUMBER:A92/13
DATE:07/02/2013
THE
STATE V MFANA LANIOS MALUMANE
AND
KLAAS JAN MAHLANGU
REVIEW
JUDGMENT
LI VORSTER (AJ)
1. The applicant applies for the review of a judgment granted by default in the small claims court for the District of Kwa- Mhlanga. The judgment was granted on 21 June 2011 for the amount of R 3000.00 , and the costs of the Sheriff in the amount of R 120,00.
2. It appears that the applicant was not present at court at the date of court as the applicant was absent at court due to medical treatment on that date.
3. The sole ground of which the applicant relies on is the fact that he was not at court, judgment was granted in his absence by default and that he wants his version to be put to the court.
4. That is not a ground for review which the applicant can rely on.
That is clear from the provisions of Section 46 of the Small claims Court Act 61 of 1984.
5. The grounds upon which a decision or proceedings of the small claims court can be taken on review to this court are:-
(a) absence of jurisdiction on the part of the court, are :
(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 of Chapter 2 of the Provision and Combating of Corrupt Act, 2004, on the part of the commissioner, and
(c) Gross irregularity with regard to the proceedings.
6. None of these grounds of review are alleged. Consequently, the review cannot succeed. The correct remedy of the applicant is Section 36 of the Small Claims Court Act which provides in Section 36 (a) for an application to rescind or vary any judgment granted in the absence of the person against whom that judgment was granted. That application must be set down for a hearing on a date within six weeks after the applicant obtained knowledge of the judgment.
7. I am uncertain whether that remedy is still available to the applicant, given laps of the period of time between the date of the judgment and today.
8. Consequently the application for a review is dismissed.
LI
VORSTER
ACTING
JUDGE OF THE HIGH COURT
I AGREE,
MAKGOBA
EM
JUDGE
OF THE HIGH COURT
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