S.H.G v T.S.P and Others (1622/23P) [2023] ZAKZDHC 82 (31 August 2023)

S.H.G v T.S.P and Others (1622/23P) [2023] ZAKZDHC 82 (31 August 2023)

The court found that the applicant's allegations of bias and collusion against Magistrate Ngubane and other court officials were unsubstantiated, vague, and based on conjecture. The conduct complained of, such as private discussions and use of adjoining offices, did not amount to bias or impropriety. The applicant failed to bring a recusal application before the magistrate and did not provide sufficient factual detail to support her claims. The court held that a discharged interim protection order cannot be revived except by a fresh application, appeal, or review, and that the applicant's remedy lay in those procedures. The application was found to lack merit and was prosecuted on...

Citation
[2023] ZAKZDHC 82
Parties
Applicant: S[...] H[...] G[...]; Respondent: T[...] S[...] P[...]; Respondent: Magistrate Ellen Gropp; Respondent: Magistrate B M Masuku; Respondent: Magistrate B E Ngubane
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
31 August 2023
Case Number
1622/23P
Procedural Posture
Urgent Application / Interlocutory Application Seeking Rule Nisi and Reinstatement of Interim Protection Order
Outcome
Application dismissed with punitive costs.
Judges
WAJ Nicholson
Legal Topics
Domestic Violence Act, Interim Protection Order, Recusal of Magistrate, Rule Nisi, Costs Punitive, Bias and Impartiality
Family and Children Civil Procedure Domestic Violence Act Interim Protection Order Recusal of Magistrate Rule Nisi Costs Punitive Bias and Impartiality

Case Brief

Summary, issues, holding and outcome

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Parties

S[...] H[...] G[...]

Applicant

T[...] S[...] P[...]

Respondent

Magistrate Ellen Gropp

Respondent

Magistrate B M Masuku

Respondent

Magistrate B E Ngubane

Respondent

Procedural Posture

Urgent Application / Interlocutory Application Seeking Rule Nisi and Reinstatement of Interim Protection Order

Legal Issues

  1. 1 Whether the interim protection order granted to the applicant can be reinstated after being discharged.
  2. 2 Whether Magistrate Ngubane's conduct gives rise to a reasonable apprehension of bias warranting recusal or review.
  3. 3 Whether the applicant's allegations of bias and collusion against the magistrates and court staff are substantiated.

Ratio Decidendi

The court found that the applicant's allegations of bias and collusion against Magistrate Ngubane and other court officials were unsubstantiated, vague, and based on conjecture. The conduct complained of, such as private discussions and use of adjoining offices, did not amount to bias or impropriety. The applicant failed to bring a recusal application before the magistrate and did not provide sufficient factual detail to support her claims. The court held that a discharged interim protection order cannot be revived except by a fresh application, appeal, or review, and that the applicant's remedy lay in those procedures. The application was found to lack merit and was prosecuted on...

Court Disposition

Application dismissed with punitive costs.

Orders

  • The interlocutory application dated 23 August 2023 is dismissed.
  • The applicant is directed to pay the costs of the interlocutory application on an attorney and client scale, including the costs of senior counsel.