About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 381
|
|
Nads Stationers CC and Others v Finwood Papers (Pty) Ltd and Others (35467/13) [2014] ZAGPJHC 381 (15 October 2014)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 35467/13
DATE: 15 OCTOBER 2014
In the matter between:
NADS STATIONERS
CC
...........................................................
First
Applicant
SHASHIKA
RAGOVAL
........................................................
Second
Applicant
YEGAMBARAM
RAGOVAL
.................................................
Third
Applicant
And
FINWOOD PAPERS
(PTY)
...................................................
First
Respondent
MOYO
INCORPORATED
................................................
Second
Respondent
SIPHO
PHALATSE
..............................................................
Third
Respondent
ADDITIONAL MAGISTRATE JOHANNESBURG
C J COLLIS
N.O
.................................................................
Fourth
Respondent
JUDGEMENT
CARSTENSEN AJ:
1. This is an application to review the
proceedings of the Johannesburg Magistrate’s Court held on the
6th of September 2012
on the basis that the Applicant’s
representative, Mr M Phalatse is neither an admitted attorney nor an
Applicant.
2. The review was launched on the 20th
of September 2013, judgement having been handed down on the 1st of
March 2013.
3. The ground of the review is solely
the basis set out above and no replying affidavit was filed, neither
did the Applicants supplement
their papers after receiving the
transcript of the record.
4. Notwithstanding this fact, the
Applicants then launched an application for the postponement of this
application. In the application
for a postponement, they were
represented by Advocate Erasmus who was briefed by Du Toit Attorneys
who had their correspondent
attorneys as Bieldermans Inc.
5. Erasmus, however, advised that he
was only briefed on the postponement application and although he
dealt with both the founding
affidavit and the answering affidavit in
the review application, he did not have instructions to represent the
Applicants in the
review or main application.
6. Consequently, once the postponement
application was refused, he took no further part in the proceedings.
7. On the facts, it appears that both
the deponent to the review application, S Ragoval, gave evidence at
the trial as did R Ragoval,
who filed a confirmatory affidavit in the
review application.
8. They do not state in the founding
affidavit that the fact that Mr Phalatse was not an attorney or
advocate, affected in any way
the outcome of the trial, neither do
they complain of his conduct during the trial.
9. They do state, however, that their
attorney Mr Moyo was present during the trial, although they say the
trial was not conducted
by him.
10. The review papers include a
transcript of the trial in the Johannesburg Magistrate’s Court
and that transcript reflects
the fact that attorney Moyo himself
conducted the trial on behalf of the Applicants and that he was
repeatedly called Moyo by the
Magistrate, without objection or
question from the either the representative of the Applicant or from
the Applicants themselves.
11. The fact that Moyo, the Applicant’s
attorney, conducted the trial is confirmed by:
11.1. The transcript of the record of
proceedings, annexure AA4, which appears at page 83 of the papers;
11.2. Annexure SR8, page 45, being a
letter from Moyo Inc. who expressly states that he personally
represented the Applicants at
the trial and conducted proceedings;
11.3. The deponent to the answering
affidavit, who appeared at the trial on behalf of the First
Respondent;
11.4. The Magistrate who, as stated
above, refers to the Applicants’ representative as “Moyo”
and is not corrected;
11.5. The Applicants’ legal
representative Mr R Blewett, who attended at the trial and who
attaches a confirmatory affidavit.
12. Consequently, on this basis alone
and taking into account that there is no replying affidavit or
supplementary affidavit, that
indeed I am satisfied that Mr Moyo
indeed represented the Applicants and not Mr Phalatse.
13. Even if this is not so, as was
argued by Mr Erasmus during the postponement application, it is not a
matter of course that if
a representative of a party who conducts
proceedings who is not an admitted attorney or advocate, the
proceedings must be set aside
on the basis of irregularity, but the
court must have regard to the effect of that irregularity and if the
court finds that the
irregularity affected the outcome, the court
should set aside the proceedings.
14. In neither the transcript of the
record nor the judgement, is there any evidence that the manner in
which the representative
of the Applicants conducting the proceedings
caused any prejudice, actual or probable, to the Applicants.
(Stemmer v Sabina and
Sub Commissioner for Natives Johannesburg,
1910
TPD 479)
15. It is clear from the record and the
judgement of the Magistrate that this is not the case. Thus, even
applying the test suggested
by the Applicants’ counsel albeit
in the postponement application, the Applicants cannot succeed.
16. In the result, there are no merits
in the review application and the application is consequently to be
dismissed with costs.
17. In the result, I grant the
following order:
17.1. The review application is
dismissed;
17.2. The Applicants are jointly and
severally, the one paying the other to be absolved, to pay the First
Respondent’s costs
of this application.
P L CARSTENSEN
ACTING JUDGE OF THE
HIGH COURT
HEARD: 14 OCTOBER 2014
DELIVERED: 15 OCTOBER 2014
COUNSEL FOR APPLICANTS:
INSTRUCTED BY:DU TOIT ATTORNEYS
COUNSEL FOR RESPONDENTS: D L
WILLIAMS
INSTRUCTED BY: HUTCHEON ATTORNEYS
(jmt.15.10.14)