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[2015] ZAGPJHC 169
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Malherbe Rigg & Ranwell Incorporated v Pretorius (19133/2014) [2015] ZAGPJHC 169 (29 July 2015)
REPUBLIC
OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
19133/2014
DATE: 29
JULY 2015
In the matter
between:
MALHERBE
RIGG & RANWELL
INCORPORATED
......................................................
Applicant
And
ANDREA
PRETORIUS
........................................................................................................
Respondent
MAGISTRATE’S
COURT CASE NO: 4871/2013
SUMMARY
Review
– taxation of attorney and own client bill of costs –
sections 80 and 81 of the Magistrates’ Courts Act 32 of
1944
(“
the Act
”),
and Rule 35 framed under the Act – review of decision of
judicial officer – whether proceedings under the
Domestic
Violence Act 116 of 1998
, costs and services rendered thereunder fall
within purview of clerks of the magistrates’ courts –
taxation of bill
of costs by clerk of the court by agreement between
the parties – appearance by candidate attorney on behalf of
client during
taxation – error in interpreting rules of court
as to nature of taxation – costs on review by high court.
REVIEW
JUDGMENT / TAXATION
MOSHIDI,
J
:
[1]
This taxation matter was placed before me on review in terms of Rule
35(5) of the Magistrates’ Courts Rules. The matter
emanates
from the Magistrate’s Court at Boksburg. It involves the
taxation of an attorney and own client bill of costs.
THE
PARTIES
[2]
The applicant is a firm of attorneys in Boksburg, whilst the
respondent, the dissatisfied party, is the applicant’s
erstwhile
client. I shall henceforth, and for the sake of
convenience, refer to the parties as they were in the court
a
quo
, i.e. the applicant and the
respondent, respectively.
THE
PROVISIONS OF RULE 35(5
)
[3]
Rule 35(5) provides that:
“
The
judicial officer shall lay the case together with the written
contentions submitted and his own report not later than 15 days
after
receipt of such contentions, before a judge of the court of appeal
who may then –
(a)
decide
the matter upon the case and contentions so submitted, together with
any further information which he may require from the
judicial
officer; or
(b)
decide
if after hearing the parties or their counsel or attorneys in
chambers; or
(c)
refer
the case for decision to the court of appeal.
”
Sub-rule
(6) enjoins this Court in deciding the matter, to make such order as
deemed fit, including an order that the unsuccessful
party pays the
opposing party a sum fixed as to costs.
THE
BACKGROUND CIRCUMSTANCES
[4] From the papers available, the background circumstances giving
rise to the taxation, can be described briefly as the following.
During May 2013, the respondent, in a pending matrimonial feud,
instructed the applicant to obtain against her husband, a protection
order under the
Domestic Violence Act 116 of 1998
(“
the
domestic violence proceedings
”). This out of the
Boksburg Magistrate’s Court. Thereafter, the applicant
presented the respondent with
an attorney and client account for
services rendered (the invoice), which she challenged. The
applicant was required to have
the bill taxed. The impugned attorney
and own client bill of costs (“
the bill of costs
”),
includes items such as, receiving instructions, perusing documents,
consultations, and attending court with respondent.
The applicant’s
mandate was terminated subsequently.
[5]
In the end, and on 29 August 2013, the bill of costs was taxed by the
clerk of the court in the amount of R7 732,07. This
amount
appears to be much more than the original attorney and client
invoice. Both parties enjoyed legal representation during
the
taxation. In fact, the parties could not reach agreement on the
contents of the bill of costs initially enrolled for
1 August 2013.
According to the affidavit of the clerk of the court, Mr D Mdungwana
(“
Mdungwana
”),
“
the matter was postponed on
numerous occasions in order for the parties to attempt to settle the
bill of costs. On all of those
occasions Mrs Pretorius was
represented by the same legal representative
”.
This is not disputed. Reference to Mrs Pretorius is to the
respondent.
THE
PERCEIVED DISPUTE
[6]
There is some dispute as to what exactly transpired during the
eventual taxation on 29 August 2013. However, this perceived
dispute
is not insurmountable in the light of the view which I take in this
matter, as shown later below.
REVIEW
BY RESPONDENT IN TERMS OF
RULE 35(1
)
[7]
The respondent, feeling aggrieved by the allocatur to the bill of
costs, lodged an application through her attorneys, to review
the
taxation in terms of Rule 35(1) of the Magistrates’ Courts
Rules. In the review, dated 18 September 2013, the respondent
advanced several grounds. These included that, the clerk of the court
is empowered to tax a bill of costs only in a civil action
in the
Magistrate’s Court; that the clerk of the court is empowered to
tax a bill of costs only where costs and expenses
were awarded to any
party by the court as envisaged in Rule 33(15) and/or Rule 33(19) of
the Rules of the Magistrates’ Courts.
The taxation of the bill
of costs by the clerk of the court was pursuant to domestic violent
proceedings which do not fall within
the ambit of a civil action as
defined in the
Magistrates’ Courts Act and
the Rules; that the
clerk of the court erred in taxing the bill of costs in accordance
with a fee agreement, which agreement was
disputed by the respondent;
that the allocatur to the bill of costs contained services not
rendered by the applicant over and above
the original attorney and
client account; and that although the respondent admitted that
she was accompanied by a member
of the applicant’s firm (a
candidate attorney), on 3 May 2013, the presence of such staff member
was either not necessary
or of no assistance to the respondent.
The same contention was made in regard to a consultation between the
applicant and
her husband on 8 May 2013.
Rule 33(15)
seems
inapplicable to this matter, whilst
Rule 33(19)
relates specifically
to the taxation of a bill of costs in respect of an attorney’s
services to his own client.
THE
REASONS OF THE ADDITIONAL MAGISTRATE’S RULING
[8]
The additional magistrate, in due course ruled on the review, and
found that it had no merit at all. This, after hearing
argument
from the legal representatives of both parties. This finding
was condensed as follows:
“…
having
regard to an affidavit filed by the clerk of the court it became
clear that the taxation was by agreement and that no objections
were
lodged with the clerk of the court. The objections initially raised
were about the fee structure but the parties did agree
to the amounts
when the matter was taxed. Opportunity was granted to the
correspondent attorney of the applicant
[
sic
]
to
place an affidavit before me disputing the agreement. An
affidavit was filed and the attorney concluded that she agreed
to the
bill on the assumption that it was subject to review. Subsequently
she realised the assumption was erroneous. Unfortunately
there
is no basis in law for this court to review the proceedings because
of an erroneous assumption by a legal representative
of a pending
review. The bill was agreed on by the representatives and as such
there is no decision made by the clerk of the court
to review. In the
light of the above the application in terms of
rule 35(3)
was
dismissed with costs.
”
The
additional magistrate was then requested, and she stated a case for
the decision of this Court, acting in terms of
Rule 35(3).
THE
CRISP ISSUES FOR DETERMINATION
[9]
Based on the submissions made to the clerk of the court during
taxation of the bill on 29 August 2013, and indeed, those before
the
additional magistrate subsequently, at least three issues arise for
determination and consideration in this review. These
issues
are:
(1)
Whether
domestic violence proceedings could be regarded as “
civil
proceedings in the magistrates’ courts
”;
(2)
Whether
the clerk of the court, in taxing the bill of costs, erred in
accepting that the parties agreed to the taxation; and
(3)
Whether
certain items on the impugned bill of costs, such as consultations
and court attendance by the applicant’s firm were
justified in
the circumstances.
THE
POWERS AND DISCRETION OF THE CLERK OF THE COURT
[10]
The starting-point is
sec 80(2)
of the
Magistrates’ Courts Act
(“
the
Act
”)
which provides that, ‘
costs
to be in accordance with scale and to be taxed
’,
“
(2)
as between attorney and client, the clerk of the court may, in his
discretion (subject to the review hereinafter mentioned)
allow costs
and charges for services reasonably performed by the attorney at the
request of the client for which no remuneration
is recoverable as
between party and party and for which
no
provision is made in the rules
”
(emphasis
added). I shall revert later to the subject as to what is
entailed in attorney and client costs.
SECTION
1 OF THE ACT
[11]
Section 1 of the Act defines “
court
”,
as to mean “
a magistrate’s
court
”. Section 13(1) provides
that:
“
There
shall be appointed for every court by the magistrate of the district
for which the court is situated so many clerks of the
court and
assistant clerks of the court as may be necessary.
”
The
general duties of the clerk of the court in civil matters, over and
above the taxation of bills of costs, are set out in Rules
3 and 4
framed under the Act. The refusal by the clerk of the court to
perform any act which he or she is by any law empowered
to perform,
“
shall
be subject to review by the court
”.
[1]
All civil proceedings, whether actions or applications, referred to
in sec 80(1) of the Act, are initiated through the clerk
of the clerk
by for example, opening files and the allocation of case numbers. The
civil proceedings contemplated, are plainly
proceedings in which
there is a
lis
between parties. From this brief exposition, as well as other case
law mentioned later below, it is readily plain and indeed trite
that,
the clerk of the court at Boksburg in the present matter, was obliged
to entertain the taxation of the bill of costs.
The contentions
of the respondent to the contrary are truly unfounded.
[12]
The same applies to the contention that the taxation of the bill of
costs, pursuant to domestic violence proceedings, was
incompetent.
The argument being that such proceedings do not fall under a
civil action as defined in the Act and the Rules.
In terms of
Rule 55 under the Act, a variety of applications can be instituted
out of the magistrate’s court.
[2]
These include interlocutory matters, and interdicts. Rule
55(9), in particular, provides that:
“
All
interlocutory matters may be dealt with upon application, and any
application which may be made ex parte may at the applicant’s
election be made on notice.
”
In
addition, Rule 56(1) makes provision for interdict-related
applications. For what may become relevant later in the
judgment,
it is also significant that sec 1 of the Act, defines
‘
practitioner
’
as ‘
an
advocate, an attorney, an articled clerk such as is referred to in
section 21 or an agent as referred to in section 22
’.
[3]
THE
DOMESTIC VIOLENCE ACT 116 OF 1998
[13]
Furthermore, sec 1 of the Domestic Violence Act 116 of 1998 (“
the
1998 Act
”),
defines “
clerk
of the court
”
as “…
a
clerk of the court appointed in terms of section 13 of the
Magistrates’ Courts Act, 1944 (Act No 32 of 1944), and includes
an assistant clerk of the court so appointed
”.
Similarly, the sec defines ‘
court
’
as, “
any
magistrate’s court for a district contemplated in the
Magistrates’ Courts Act, 1944
…
”.
[4]
Section 4 of the 1998 Act deals with applications for protection
orders.
[5]
Section 5(2) of the 1998 Act provides that:
“
If
the court is satisfied that there is prima facie evidence that –
(a)
the
respondent is committing, or has committed an act of domestic
violence; and
(b)
undue hardship may be suffered by the complainant as a result of such
domestic violence if a protection order is not issued
immediately,
the court must, notwithstanding the fact that the respondent has not
been given notice of the proceedings contemplated
in sub-section (1),
issue an interim protection
order against the respondent
,
in the prescribed manner.
”
(emphasis
added)
On
the papers before me in the instant matter, the respondent gave
instructions to the applicant to obtain a protection order,
apparently against her husband, in contemplated divorce proceedings,
as envisaged in sec 4 of the 1998 Act. The latter Act
succeeded
the Prevention of Family Violence Act,
[6]
of 1993 (“
the
1993 Family Violence Act
”).
In the case of
Rutenberg
v Magistrate, Wynberg and Another,
[7]
the
applicant had applied
ex
parte
for
an interdict against the second respondent in terms of the 1993
Family Violence Act. It was granted. The review
in the
high court concerned the interpretation and implementation of certain
provisions of the 1993 Family Violence Act.
In the course of
dismissing the review application, the Court said:
“
Now,
the Act under which the magistrates’ courts of South Africa are
constituted is, of course, the
Magistrates’ Courts Act 32 of
1944
, and not the Prevention of Family Violence Act. As I have
said, in my judgment, a magistrate, in granting, setting aside or
amending an interdict under the Act, acts in his judicial capacity as
the officer presiding over his court. The jurisdiction,
powers
and procedure of that court, are to be found, then, in the first
instance, not in the provisions of the Prevention of Family
Violence
Act and its regulations, but in those of the
Magistrates’
Courts Act and
the Magistrates’ Courts Rules. The latter
provisions do not, in my view, cease to apply to a magistrate simply
because,
in a particular case, he is applying the Prevention of
Family Violence Act and its regulations: he is basically
governed
by the relevant provisions of the
Magistrates’ Courts
Act and
the Magistrates’ Courts Rules which apply to and
regulate the proceedings in his court. It is only where these are
expressly
or by clear implication extended or departed from in the
Act and regulations that they will not apply. This is aptly
illustrated,
to my mind, if regard is had to the matter of
geographical jurisdiction.
”
[8]
Sections
14 and 15 of the 1998 Act deal with the issues of legal
representation and costs awards, respectively, in domestic violence
proceedings.
[9]
From all of the above, its is readily apparent that domestic violence
proceedings are not only competent in the magistrates’
courts,
but also that, “
the
court may only make an order as to costs against any party if it is
satisfied that such party has acted frivolously, vexatiously
or
unreasonably
”.
[10]
It follows therefore, in my view, that domestic violence proceedings
in the magistrates’ courts are competent, and
may even attract
an adverse costs order, which the clerk of the court is empowered to
tax, if so requested by a successful party.
The word
“
proceedings
”,
could be very wide, as was described in
Assistant
Taxing Master v Shanker and Gross.
[11]
The provisions of sec 4(1) of the 1998 Act make it clear that, “
any
complainant may, in the prescribed manner apply to the court for a
protection order
”.
Rule 2 of the Magistrates’ Courts Rules defines ‘
apply
’
as “
means
apply on motion and ‘application’ has a corresponding
meaning
”.
[14]
Although the Act (Magistrates’ Courts Act) does not
specifically define the words “
action
”
or “
proceedings
”,
in Erasmus,
Superior Court Practice
,
B1-8 (Service 41, 2013), it is stated that, “
As
to the interpretation of the meaning of the word ‘action’
in statutory provisions in general, it has been held that
form must
give way to substance, and that the relief sought in an application
may be such that all the elements of an action are
present. …
On ‘action’ and application; see further Rembrandt
Fabrikante en Handelaars (Edms) Bpk v Gulf
Oil Corporation
1962 (3)
SA 158
(T) at 159, cited with approval in Joh-Air (Pty) Ltd v Rudman
1980 (2) SA 420
(T) at 427
”.
In
Rembrandt Fabrikante Bpk, supra
,
at 159E-F, the Court said:
“
The
word ‘application’, where not used in this context, has a
wide meaning and includes any form of request to a Judge
or Court in
legal proceedings. In the case of International Financial Society v
City of Moscow Gas Co.,
(1877) 7 Ch.D. 241
at p. 246, Baggalay L.J.,
saw no ground whatever in the ordinary grammatical construction of
the rule he was then considering,
to give the word ‘application’
a limited meaning. He referred to the fact that in the other
portions of the order
and several Rules under the orders, the word
‘application’ and the word ‘apply’ were
constantly used with
reference to every class of application.
”
For
these reasons too, the respondent’s contention that domestic
violence proceedings are not competent for taxation in the
magistrates’ courts, are misplaced.
WHETHER
THE BILL OF COSTS WAS TAXED BY AGREEMENT BETWEEN THE PARTIES
?
[15]
However, the remaining essential issue in the present matter is
whether the clerk of the court taxed the disputed bill of costs
by
agreement between the parties. The additional magistrate, save for
her order as to costs, found this to have been the case.
I agree with
the finding in this regard, for a number of reasons. As to what
correctly constitute attorney and client costs,
see
Hawkins
v Gelb.
[12]
[16]
The equivalent of Magistrates’ Courts Rule 35 regarding review
of taxation in the high court is Uniform Rule 48.
Subsection
(1) of this Rule provides:
“
(1)
Any party dissatisfied with the ruling of the taxing master as to
any item or part of an item which was objected to or disallowed
mero
motu by the taxing master, may within 15 days after the allocatur by
notice require the taxing master to state a case for
the decision of
a judge.
”
[13]
In
regard to the duties of the taxing master (and it can be assumed
safely that this principle applies with equal force to the clerk
of
the court), the court in
Malcolm
Lyons and Munro v Abro and Another
,
[14]
said:
“…
Although
it is true that a bill of costs as between an attorney and his own
client is taxed on a basis different from that on which
a party and
party bill is taxed – or even different from that upon which an
attorney and client bill is taxed when it is
to be paid by the
opposing litigant, the Taxing Master
was
empowered – and indeed in duty bound
–
to
satisfy himself that the fees claimed related to work specifically
authorised by the client and that the fees charged were reasonable.
(See Cambridge Plan AG v Cambridge Diet (Pty) Ltd and Others 1990 (2)
SA 574 (T).)
”
[15]
(emphasis added)
See
also
Nel
v Waterberg Landbouersvereniging.
[16]
It is also trite that over and above being duty-bound to tax bills of
costs presented, the clerk of the court also has a
discretion as to
what to allow or not, but the discretion should not be followed
slavishly. See in this regard,
Law
Society of the Cape of Good Hope v Windvogel,
[17]
and
Whittlesea
v Clerk of the Civil Court, Pietermaritzburg.
[18]
[17]
With the above principles in mind, it is readily plain that the
clerk of the court was duty-bound to tax the bill of costs,
using
his/her discretion. This was so particularly in the
circumstances where the evidence shows overwhelmingly too, that
the
bill was presented for taxation by agreement of the respective legal
representatives. For, in his affidavit, the clerk
of the court,
Mdungwana, states that:
“
On
the 29
th
August 2013 another legal representative attended Court on behalf of
Mrs Pretorius (respondent) and indicated that the matter could
not be
settled and that the bill had to be taxed. The only issue that was
brought to me for consideration and determination was
whether the fee
tariff in the bill of costs was in accordance with the fee mandate
between the parties. I was presented with
an affidavit of
Jeffrey Mathee on behalf of Malherbe Rigg & Ranwell Incorporated
confirming that service were rendered on behalf
of Mrs Pretorius in
terms of their agreed fee tariff, a copy of which was attached to his
affidavit … Mrs Pretorius
however did not indicate what
fee arrangement was agreed and which tariff should be allowed.
”
[19]
(my insertions)
[18]
The fact that the candidate attorney, Latoya Jansen, who attended the
taxation on behalf of the respondent, now states in her
affidavit,
that:
“…
Following
our discussion certain items were deducted as is annotated on the
Bill. Mr Montepara and I then calculated the total
of the
Bill.
I agreed to this
on the assumption
that
the Bill
as agreed
to
was subject to review. I have subsequently been advised that my
assumption was erroneous. The Bill was thereafter not taxed
by Mr
Mdungwana but was signed by a female official in the Clerk’s
office.
”
(emphasis
added),
is
not advancing the respondent’s cause at all. The
probabilities strongly show that the taxation of the bill was by
consent. In any event, the courts have consistently adopted the
approach of reluctance to interfere in matters of this nature.
See in this regard, for example,
Paton
v Santam Insurance Co Ltd
;
[20]
and
Engel
v Engel;
[21]
and
Majola
v Union South West Africa Insurance Co Ltd;
[22]
Visser
v Gubb;
[23]
and
Ocean
Commodities Inc v Standard Bank of SA Ltd
.
[24]
Even if the clerk of the court was wrong, this Court cannot simply
set aside the taxation. See in this regard
Benson
v Union National South British Ins Co Ltd.
[25]
See
also
Buonanno
v Taxing Master.
[26]
WAS THE
ERROR OF THE CANDIDATE ATTORNEY EXCUSABLE
?
[19]
The respondent’s legal representative at the taxation, Latoya
Jansen, says she made an error based on an incorrect assumption.
In the circumstances of this matter, this can hardly constitute a
valid excuse. In the context of condonation for the late
prosecution of an appeal, in
Kgobane
and Another v Minister of Justice and Another
,
[27]
the Court said:
“
The
attorney for the applicants attributed his neglect to observe the
Rules of this Court and to ensure that his instructions were
carried
out to his working under pressure and being away from office.
When an attorney tells this Court, in effect, that
he is too busy to
study the Rules of this Court and to supervise the prosecution of an
appeal, his explanation is quite unacceptable.
In my view this
is one of the worst cases of disregard of the Rules of this Court
that have come before it.
”
Although
courts are generally reluctant to penalise an innocent litigant on
account of his or her attorney’s negligence, as
was stated in
Reyneke
v Incorporated General Insurance Co Ltd
,
[28]
the then Appellate Division qualified this approach in
Sallojee
and Another NNO v Minister of Community Development.
[29]
In that case it was said:
“
There
is a limit beyond which a litigant cannot escape the result of his
attorney’s lack of diligence or the sufficiency of
the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the rules of this court.
Considerations ad miseracordiam should not be allowed to become an
invitation to laxity … The attorney, after all,
is the
representative whom the litigant has chosen for himself.
”
In
my view, these principles apply with equal force to the circumstances
of the present matter. The taxation of bills of costs is
a rather
mundane and run-of-the-mill part of an attorney’s practice,
generally. That is why there was a candidate attorney
involved
in this matter on behalf of the respondent.
CONCLUSION
[20]
For all the above reasons, I conclude that the finding and
conclusion of the additional magistrate were, save as indicated
above, correct. The finding makes it unnecessary to consider
the merits of the respondent’s other challenges relating
to
individual items contained in the bill of costs, such as certain
consultations and attendances. It is trite that candidate
attorneys are permitted to appear on behalf of their principals, and
charge for such services. See for example,
Venter
v Carr
,
[30]
and sec 21 of the Act. The review clearly had no reasonable
prospects of success, and pursuing it, as did the respondent’s
attorneys, could, in these circumstances, be interpreted as an abuse
of court process, as found by the additional magistrate with
reference to
Madlala
v South Insurance Association Ltd.
[31]
The taxed bill of costs is endorsed with the inscription “
as
agreed
”,
and signed by the taxing master of the court. This is contrary
to the respondent’s unsubstantiated allegations
to the
contrary. No grounds have therefore been set out for
interference by this Court.
COSTS
[21]
I deal briefly with the issue of costs, which is a discretionary
matter. The additional magistrate dismissed the review
with
costs. This costs order was clearly wrong and contrary to the
provisions of sec 81 of the Act, which provide that:
“
Taxation
by the clerk of the court shall be subject to review free of charge
by a judicial officer of the district and the decision
of such
judicial officer may at any time within one month thereafter be
brought in review before a judge of the court of appeal
in the manner
prescribed by the rules.
”
The
incorrect approach was conceded, and quite correctly so, in my view
by the additional magistrate. However, as pointed out in
Madlala
v Southern Insurance Association Ltd supra
,
this Court on review, has a discretion to make a costs order.
Section 48(7) of the Uniform Rules provides that:
“
The
judge or court deciding the matter may make such order as to costs of
the case as he or she or it may deem fit, including an
order that the
unsuccessful party pay to the successful party the costs of review in
a sum fixed by the judge or court.
”
When
I took over this matter, which had been placed before a colleague,
who became unavailable subsequently, I invited the parties
to file
heads of argument, if they so wished. There was no response to
the invitation. Consequently, the matter had to be
decided on the
papers presented, including the submissions made to the additional
magistrate. I mention this purely to illustrate
that the parties
plainly did not incur further costs beyond the proceedings before the
additional magistrate. For this reason,
and despite the
unmeritorious nature of the review, as stated above, and the general
rule that costs should follow the result,
I am however, inclined to
make an order that each party ought to bear their own costs.
There are other reasons as well, such
as, on the papers before me, it
is not apparent whether the applicant indeed successfully applied for
the protection order sought
by the respondent in the court
a
quo
, and upon termination of
applicant’s mandate.
ORDER
[21] In the result the following order is made:
1.
The
review is dismissed.
2.
Each
party shall pay their own costs.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT
NONE
APPLICANT’S
ATTORNEYS
MALHERBE RIGG & RANWELL INC
COUNSEL
FOR THE RESPONDENT
NONE
RESPONDENT’S
ATTORNEYS
IAN RICHARD BAILIE ATTORNEYS
DATE
OF HEARING
IN CHAMBERS
DATE
OF JUDGMENT
29 JULY 2015
[1]
See
sec 13(2) of the Act.
[2]
See
Rule 55(1) and 55(10).
[3]
See
Rule 56(1) to 56(15).
[4]
For
full definition, see sec 1 of Act 32 of 1944.
[5]
“
4.
Application for protection order.–
(1)
Any complainant may in the prescribed manner apply to the court for
a protection order.
(2)
If the complainant is not represented by a legal representative, the
clerk of the court must inform the complainant, in the
prescribed
manner -
(a)
of the relief available in terms of this Act; and
(b) of the right to
also lodge a criminal complaint against the respondent, if a
criminal offence has been committed by the respondent.
(3)
Notwithstanding the provisions of any other law, the application may
be brought on behalf of the complainant by any other
person,
including a counsellor, health service provider, member of the South
African Police Service, social worker or teacher,
who has a material
interest in the well-being of the complainant: Provided that the
application must be brought with the written
consent of the
complainant, except in circumstances where the complainant is –
(a) a
minor;
(b)
mentally retarded;
(c)
unconscious; or
(d) a
person whom the court is satisfied is unable to provide the required
consent.
(4)
Notwithstanding the provisions of any other law, any minor, or any
person on behalf of a minor, may apply to the court for
a protection
order without the assistance of a parent, guardian or any other
person.
(5)
The application referred to in subsection (1) may be brought outside
ordinary court hours or on a day which is not an ordinary
court day,
if the court is satisfied that the complainant may suffer undue
hardship if the application is not dealt with immediately.
(6)
Supporting affidavits by persons who have knowledge of the matter
concerned may accompany the application.
(7)
The application and affidavits must be lodged with the clerk of the
court who shall forthwith submit the application and affidavits
to
the court.
”
[6]
Act
133 of 1993.
[7]
1997
(4) SA 735
(C).
[8]
At
750I-751A-C.
[9]
See
secs 14 and 15 of the Act.
[10]
Supra
,
sec 15.
[11]
1953
(4) SA 281
(T) at 284B.
[12]
1959
(1) SA 703
(W) at 705.
[13]
See
Uniform Rule 48(1) to 48(7).
[14]
1991
(3) SA 464
(W).
[15]
Supra
at 469D-E
[16]
1946
(A) 597 at 607-8.
[17]
1996
(1) SA 1171
(C) at 1176.
[18]
1992
(1) SA 603
(N) at 607E.
[19]
See
paras 5 and 6, annexure “B” (affidavit of Mdungwana).
[20]
1967
(1) SA 98
(E) at 100.
[21]
1975
(1) SA 879
(SWA)
[22]
1978
(2) SA 154
(SE).
[23]
1981
(3) SA 753
(C) at 754-5.
[24]
1094
(3) SA 15
(A) at 17I-18G.
[25]
1979
(3) SA 710
(T).
[26]
1965
(2) SA 653
(N) at 658C-E.
[27]
1969
(3) SA 365
(A) at 369B.
[28]
1974
(2) SA 84
(A) at 92F.
[29]
1965
(2) SA 135
(A) at 141C.
[30]
1963
(1) SA 929
(T).
[31]
1982
(4) SA 280
(D).