Van der Merwe v Morake NO and Another (4/2010) [2011] ZANWHC 49 (26 August 2011)

Van der Merwe v Morake NO and Another (4/2010) [2011] ZANWHC 49 (26 August 2011)

The court found that the applicant had always intended to bring the review application and took reasonable steps to do so, but was thwarted by administrative delays. The delay was excusable and condonation was granted. On the merits, the Magistrate committed gross irregularities by failing to make and communicate preliminary rulings, misapplying the Rules of Court, and incorrectly finding that the special pleas were unopposed. The Rules do not require a plaintiff to file opposition papers to special pleas, and the Magistrate failed to appreciate the procedural requirements. The judgment delivered by the Magistrate was reviewed and set aside, and the special pleas were ordered to be...

Citation
[2011] ZANWHC 49
Parties
Applicant: Elizabeth Dorothea van der Merwe; Respondent: Iwom Morake NO; Respondent: The Minister of Justice
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
26 August 2011
Case Number
4/2010
Procedural Posture
Review Application / Judgment on Review Application and Condonation
Outcome
Application for condonation granted; Magistrate's judgment reviewed and set aside; special pleas to be re-enrolled before a different Magistrate; costs awarded against respondents.
Judges
A A Landman, N Gutta
Legal Topics
Condonation of Late Filing, Review of Magistrate Decision, Special Plea of Prescription, Institution of Legal Proceedings Against Organs of State
Civil Procedure Land and Property Condonation of Late Filing Review of Magistrate Decision Special Plea of Prescription Institution of Legal Proceedings Against Organs of State

Case Brief

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Parties

Elizabeth Dorothea van der Merwe

Applicant

Iwom Morake NO

Respondent

The Minister of Justice

Respondent

Procedural Posture

Review Application / Judgment on Review Application and Condonation

Legal Issues

  1. 1 Whether condonation for the late filing of the review application should be granted.
  2. 2 Whether the Magistrate committed gross irregularities in the handling of special pleas.
  3. 3 Whether the Magistrate erred in finding the special pleas unopposed and in failing to apply the Rules of Court.

Ratio Decidendi

The court found that the applicant had always intended to bring the review application and took reasonable steps to do so, but was thwarted by administrative delays. The delay was excusable and condonation was granted. On the merits, the Magistrate committed gross irregularities by failing to make and communicate preliminary rulings, misapplying the Rules of Court, and incorrectly finding that the special pleas were unopposed. The Rules do not require a plaintiff to file opposition papers to special pleas, and the Magistrate failed to appreciate the procedural requirements. The judgment delivered by the Magistrate was reviewed and set aside, and the special pleas were ordered to be...

Court Disposition

Application for condonation granted; Magistrate's judgment reviewed and set aside; special pleas to be re-enrolled before a different Magistrate; costs awarded against respondents.

Orders

  • The application for condonation is granted.
  • The respondents are to pay the costs incurred by reason of their opposition to the application for condonation, the one paying the other to be absolved.