Swart Redelinghuys Nel & Partners INC v Theron Jordan & Smit INC (HC1/2022) [2022] ZANWHC 1 (11 February 2022)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: HC1/2022

In the matter between:

SWART REDELINGHUYS NEL &

PARTNERS INC

Applicant

and

THERON JORDAN & SMIT INC

Respondent

CORAM: PETERSEN J AND MTEMBU AJ

Considered in Chambers

Judgment handed down: 11 February 2022

SPECIAL REVIEW JUDGMENT

MTEMBU AJ

[1] This is a special review in which Magistrate Mofokeng seeks, through a covering letter or memorandum, an order from this Court reviewing and setting aside his judgment delivered on 13 December 2021, under case number 4882/2019. The Magistrate also seeks an order authorising him to deliver a competent judgment.

[2] The reasons which triggered this special review are summarised as follows:

[2.1] On 09 November 2021, the Magistrate had, before him, an application for Exception to determine. On 13 December 2021, the Magistrate delivered a judgment in respect of the aforesaid Exception.

[2.2] During that time of the year, December 2021, the Magistrate became busy and had many outstanding judgments. His ultimate goal was to deliver all the outstanding judgments on or before the end of 2021, prior to the closure of law firms. As a result of this eagerness and tenacity, he mistakenly confused the facts of different cases, and consequently disorder became an order of the day. As a result of this episode of overlapping of facts, an incompetent judgment was delivered on 13 December 2021.

[2.3] On 15 December 2021, upon noting that a wrong judgment had been delivered, the learned Magistrate called the parties, but the parties could not be found. On 17 January 2022, the Magistrate successfully managed to summon the parties to appear in chambers for the explanation of his incompetent judgment. The Magistrate advised both parties that he will refer this matter on special review. Both parties had no objection. The Magistrate contends that he was still new and a mistake of this nature shall not happen again.

[3] In Old Mutual Finance (Pty) Ltd v Makalapetlo 2018 (3) SA 258 (LP) at paragraph 8 the Full Court of the Limpopo Division had to consider a similar review application. The Court had to consider the following issues:

(i) whether in Civil Proceedings a Magistrate can mero motu send a judgment or decision to the High Court for review as in criminal proceedings where the review procedure is laid down in sections 302 to 304 of the Criminal Procedure Act 51 of 1977; and

(ii) what Magistrates should do when faced with a situation where a civil judgment is null and void and needs to be set aside by the High Court.

[4] It is trite that the review procedure laid down in section 304(4) of the Criminal Procedure Act allows a Magistrate to submit the record of the proceedings to the Registrar of the High Court with a covering letter requesting a Judge to set aside the proceedings in the Magistrate’s Court. At paragraph 11 of Makalapetlo supra, it was held that:

“It should be pointed out that in civil proceedings there is no such a procedure as set out in sections 302 and 000000">304 of the Criminal Procedure Act. In my view this is where the confusion arises. Our Magistrates seem to assume that the review procedure in criminal proceedings is equally applicable in civil proceedings.”

[5] I agree with the views expressed in Makalapetlo. There is no procedure provided in the Rules of Court where a Magistrate can mero motu refer a judgment or proceedings of the lower Court to the High Court for review. The proper procedure is provided for in Rule 53 of the Uniform Rules of Court.

[6] In terms of section 22(1)(c) of the Superior Courts Act 10 of 2013, proceedings of any Magistrate Court may be brought under review before a High Court on the ground of gross irregularity in the proceedings. This provision is relevant to the issue before me in this matter where an incompetent judgment from the Magistrates’ Court is sought to be reviewed and set aside by this Court.

[7] The Makalapetlo[1] decision gives clear direction how Magistrates should deal with reviews of this nature. This salutary approach is enunciated as

follows:

“[20] The guidance this Court can give to the magistrate faced with irregular judgment like in the present case is that the irregularity should be pointed out to the interested or affected parties (plaintiff or defendant, judgment creditor or judgment debtor) and advise them that the matter is reviewable by the High Court under Rule 53.

There is no room for the magistrate to simply submit the case to the high Court for review.

[21] The alternative procedure whereby a judgment which is void ab origine can be set aside is an application for rescission of judgment in terms of Section 36(1) (b) of the Magistrates’ Court Act, 1944 read with Rule 49 of the Magistrates’ Court Rules. This application is brought in the Magistrate Court by any of

the interested parties except the magistrate. I need not go further into the aspect of rescission of judgment assuming that all

magistrates are conversant with the procedure”. (my emphasis)

[8] For the reasons stated above, the incompetent judgment of the Magistrate cannot be reviewed in the manner in which the special review was submitted to this Court.

[9] Consequently, the following order is made:

(i) The special review application is struck off the roll;

(ii) The matter is remitted to Magistrates’ Court to be dealt with in accordance with paragraph [7] of this judgment.

A.M MTEMBU

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

I agree and it is so ordered.

A.H. PETERSEN

JUDGE OF THE HIGH COURT

[1] See also See also Masina v Nkosi [2020] JOL 47183 (ML) at para 15; Jacobs v Van Der Merwe [2020] JOL 48422 (FB) at para 5 -6