Sithole v Minister of Police and Another (76865/2019) [2020] ZAGPPHC 464 (13 August 2020)
The High Court found that the Magistrate's postponement of the matter without setting a trial date or declaring it trial ready was unjustified. The conduct of the State Attorney, who repeatedly failed to attend pre-trial meetings and did not respond to the application, was criticized as flippant and unacceptable....
Source-derived case information.
- Citation
- [2020] ZAGPPHC 464
- Parties
- Applicant: Wilson Sithole; Respondent: Minister of Police; Respondent: Magistrate Mr Thekiso N.O. Pretoria
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 76865/2019
- Procedural Posture
- Review Application / High Court Review of Magistrate's Postponement Ruling
- Outcome
- Application for review and mandamus granted; Magistrate's postponement ruling set aside; trial date to be set within ten days; costs to be considered by trial court.
- Judges
- Van der Westhuizen
- Legal Topics
- Mandamus, Review of Magistrate Decision, Trial Readiness, Costs Orders
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Sithole
Applicant
Minister of Police
Respondent
Magistrate Mr Thekiso N.O. Pretoria
Respondent
Procedural Posture
Review Application / High Court Review of Magistrate's Postponement Ruling
Legal Issues
- 1 Whether the Magistrate's postponement of the pre-trial conference without setting a trial date was lawful and justified.
- 2 Whether the applicant is entitled to a mandamus compelling the Magistrate's Court to set a trial date.
- 3 Whether the conduct of the State Attorney warrants an adverse costs order.
Ratio Decidendi
The High Court found that the Magistrate's postponement of the matter without setting a trial date or declaring it trial ready was unjustified. The conduct of the State Attorney, who repeatedly failed to attend pre-trial meetings and did not respond to the application, was criticized as flippant and unacceptable. The applicant established a proper case for a mandamus, as the delays were prejudicial and appeared intended to frustrate the applicant. The Court rescinded and set aside the Magistrate's ruling, ordered that a trial date be set within ten days, and directed the trial court to consider an appropriate costs order against the respondents due to the applicant's need to approach the...
Court Disposition
Application for review and mandamus granted; Magistrate's postponement ruling set aside; trial date to be set within ten days; costs to be considered by trial court.
Orders
- The ruling under case number 35397/18 given on 11 July 2019 by Magistrate Thekiso is rescinded, reviewed and set aside.
- The applicant is to be provided with a trial date by a magistrate of the Magistrate's Court, Tshwane Central, for case 35397/18 within ten days from the date of this order.
Full Case Text
Judgment text and source record
37 paragraphs
(Inlexso Innovative Legal Services) - gs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 76865/2019
DATE: 2020/07/06
In the matter between
WILSON SITHOLE
and
THE MINISTER OF POLICE
THE MAGISTRATE MR THEKISO N.O. PRETORIA
J U D G M E N T
VAN DER WESTHUIZEN, J:
In matter number 76865/19 I deliver an ex tempore judgment as follows:
The applicant applies in terms of the provisions of Rule 53 of the Uniform Rules of Court to review and set aside the ruling that was given by the Magistrate, Mr Thekiso, on 11 July 2019, under case number: 35397/18, in the Magistrate’s Court in terms whereof the matter, which was enrolled before him on that date for the holding of a pre-trial conference, was merely postponed and a trial date was not set, nor was the matter declared to be trial ready.
The matter has some history. An incident occurred during March 2017 when an on-duty police officer was driving an official police vehicle, apparently lost control thereof and collided into the border wall and vehicle of the applicant and damage was caused thereto.
The applicant subsequently issued the required summons to claim damages. Despite the matter being opposed by the Minister of Police, and the exchange of pleadings having occurred, the matter seemed not to move forward one inch.
It appears from the application before me that the first respondent, being the Minister of Police, intentionally delays the proceedings for whatever reason. In my view the only inference is to frustrate the applicant/plaintiff to such an extent that he relinquishes his claim.
The amount is not a large amount. However, for an unemployed person it is a huge amount, especially having to renovate and cause repairs to his property caused by the negligent actions of a third party.
I must record my frustration, anger and surprise by the conduct of the State Attorney in this matter. Numerous pre-trials were set down before the honourable Magistrate for the purpose of certifying, as required in terms of the Magistrate Court Rules, that the matter is ready for trial and to provide a trial date.
Despite receiving timeous notice of each of the pre-trial meetings, the State Attorney simply does not attend. It is a flippant attitude which cannot be endorsed, nor can it be accepted or entertained.
This application was again served on the Minister of Police and through the State Attorney and on the magistrate that is cited as the 2nd respondent, the aforesaid Mr Thekiso. No response of any notice was received from the State Attorney in respect of the present application.
The learned magistrate has indicated some reasons for his approach in merely postponing the matter and not granting a trial date. Apparently his thought is that if a party does not pitch the matter is not right for hearing.
That in a nutshell is the inference that I draw from the magistrate’s reasons. The stated reasons are no reason not to proceed and not to certify the matter trial ready and not to determine a trial date.
Had there been some representation on the part of the State Attorney today, I would have been able to grant an appropriate cost order and even a de bonis cost order against the relevant official.
However, it will add additional costs for the applicant/plaintiff should I issue a rule nisi in that regard calling upon the State Attorney and the relevant official, tasked with dealing with this matter, should I intend
granting an adverse cost order.
I am of the view that this is a matter that can be dealt with appropriately by the Court hearing the main action and I would therefore issue a directive that that Court consider granting an appropriate cost order due to the plaintiff/applicant having to approach the High Court to obtain a mandamus in getting the matter closer to finalisation.
In my view the plaintiff/applicant has made out a proper case for a mandamus to be issued and I grant the following order:
1. The ruling under case number 35397/18 given on 11 July 2019 by Magistrate Thekiso in the Magistrate’s Court is hereby rescinded, and reviewed and set aside.
2. It is ordered and directed that the applicant be provided with a trial date by a magistrate of the Magistrate’s Court, Tshwane
Central, for the matter under case 35397/18 within ten (10) days from today.
3. It is directed that the Trial Court hearing the main action under case 35397/18 considers the costs occasioned by the bringing of this application in the High Court under case number 76865/19 and consider the granting of an appropriate cost order against the first and second respondents.
4. This judgment is to be transcribed and to be made available to the trial court when considering the issue of an appropriate cost order in respect of this application in the High Court.
………………………………....
VAN DER WESTHUIZEN, J
JUDGE OF THE HIGH COURT
DATE: ………………………