Sancho v Mngoma N.O and Another (AR124/2019) [2019] ZAKZPHC 77 (29 November 2019)

Sancho v Mngoma N.O and Another (AR124/2019) [2019] ZAKZPHC 77 (29 November 2019)

The magistrate committed a gross irregularity by granting absolution from the instance before the applicant had closed his case and completed his evidence. This procedural error deprived the applicant of a fair hearing and justified review and setting aside of the order. The court found that it would be inappropriate for the same magistrate to continue with the matter, given her prejudgment of the issues. The matter should be heard de novo before another magistrate to ensure impartiality and fairness.

Citation
[2019] ZAKZPHC 77
Parties
Applicant: Vishal Sancho; Respondent: Magistrate P Mngoma N.O.; Respondent: Minister of Correctional Services
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
29 November 2019
Case Number
AR124/2019
Procedural Posture
Review Application / Review of Magistrate's Order of Absolution From the Instance Before Close of Plaintiff's Case
Outcome
The application for review is granted. The order of absolution from the instance and the costs order are reviewed and set aside. The matter is remitted for hearing de novo before another magistrate.
Judges
Govindasamy, Nkosi
Legal Topics
Absolution From the Instance, Gross Irregularity, Review of Magistrates Court, Procedure Under Rule 53
Civil Procedure Absolution From the Instance Gross Irregularity Review of Magistrates Court Procedure Under Rule 53

Case Brief

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Parties

Vishal Sancho

Applicant

Magistrate P Mngoma N.O.

Respondent

Minister of Correctional Services

Respondent

Procedural Posture

Review Application / Review of Magistrate's Order of Absolution From the Instance Before Close of Plaintiff's Case

Legal Issues

  1. 1 Whether the magistrate committed a gross irregularity by granting absolution from the instance before the applicant closed his case.
  2. 2 Whether the order of absolution from the instance should be reviewed and set aside.
  3. 3 Whether the matter should be remitted to another magistrate for hearing de novo.

Ratio Decidendi

The magistrate committed a gross irregularity by granting absolution from the instance before the applicant had closed his case and completed his evidence. This procedural error deprived the applicant of a fair hearing and justified review and setting aside of the order. The court found that it would be inappropriate for the same magistrate to continue with the matter, given her prejudgment of the issues. The matter should be heard de novo before another magistrate to ensure impartiality and fairness.

Court Disposition

The application for review is granted. The order of absolution from the instance and the costs order are reviewed and set aside. The matter is remitted for hearing de novo before another magistrate.

Orders

  • The trial court’s order of absolution from the instance, including its order as to costs, is reviewed and set aside.
  • The trial under case number 14944/2015 in the Magistrates’ Court for the District of Pinetown is to be placed de novo before another magistrate for hearing.