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
>>
2015
>>
[2015] ZAGPJHC 229
|
|
Matlhasa v Makda and Another (2015/17438) [2015] ZAGPJHC 229 (4 September 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2015/17438
DATE: 04 SEPTEMBER 2015
In the matter between:
WILLIAM
MATLHASA
..........................................................................................................
Applicant
And
MR E. A.
MAKDA
........................................................................................................
First
Respondent
RAFH MOTORS CC t/a AUTO
WHOLESALERS
.............................................
Second
Respondent
JUDGMENT
MPHAHLELE J
[1] This is an application for review
and setting aside of the decision of the 1st respondent, a magistrate
for the district of
Vereeniging.
[2] The applicant instituted an action
against the 2nd respondent in the regional court, Vereeniging for
damages. The matter became
defended. On 13 June 2013 and by agreement
between the parties, the court granted an application in terms
section 35(1) of the
Magistrate’s Courts Act 32 of 1944 (“the
Act”) for the transfer of the matter to the district court,
Vereeniging.
The file contents were then duly transferred from the
regional court to the district court as per the court order. The
district
court refused to allocate a trial date in the matter as it
was contended that the matter was not properly transferred to that
court.
Upon application, the 1st respondent on 18 March 2015 made the
following findings:
1. “There is no provision in our
law specifically allowing any matter to be transferred from a
regional court to a district
court; and
2. Since the matter was already
instituted in the regional court, the matter cannot be transferred
subsequently to a district court
according to section 45.”
[3] The question in this review is
whether the 1st respondent was correct in its conclusion.
[4] In its judgment, the 1st respondent
simply stated the background and the law and thereby failed to apply
the legal principles
to the merits of this case. It is therefore
difficult to appreciate the reasoning for the order granted.
[5] It is trite that magistrate's
courts are creatures of statute and are therefore bound by the Act.
Section 35 (1) of the Act
states as follows:
“[A]n action or proceeding may,
with the consent of all the parties thereto, or upon the application
of any party thereto,
and upon its being made to appear that the
trial of such action or proceeding in the court wherein summons has
been issued may
result in undue expense or inconvenience to such
party, be transferred by the court to any other court.”
[6] The Act defines ‘court’
as “a magistrate’s court for any district or for any
regional division”.
It is very clear that this definition
encompasses both the regional and district courts. It is further
clear that where parties
have consented to transfer of the matter
there is no need to show that undue expense or inconvenience may
result if the action
is not transferred. Therefore, in casu, the
regional court was correct in transferring the matter to the district
court based
on the consent thereto by the applicant and the 2nd
respondent.
[7] In his judgment, the 1st respondent
cited the decision of the Supreme Court of Appeal in the matter of
Oosthuizen v Road Accident
Fund (258/10) ZASCA 118 (06 July 2010).
The Oosthuizen decision is distinguishable from the present case as
it deals with section
50 of the Act. Section 50 provides for the
removal, under certain circumstances, of actions from a Magistrate’s
Court to
the High Court. Clearly the 1st respondent’s reliance
on the Oosthuizen decision is misplaced.
[8] It is therefore evident that the
finding of the 1st respondent that there is no provision in our law
specifically allowing any
matter to be transferred from the regional
court to the district court is unfounded and therefore incorrect.
[9] As intimated before, the 1st
respondent’s judgment lacks detail; therefore it is unclear as
to why he made reference to
section 45 of the Act in his judgment. It
is apparent from the record of the proceedings that the regional
court granted the order
in terms of section 35(1) of the Act.
[10] A disconcerting fact is that the
applicant’s main case is in limbo. The regional court has
granted an order for the case
to be transferred to the district
court; however the 1st respondent has, without good cause, refused
the case to be heard in the
district court. Further the 1st
respondent’s order failed to provide a directive on the further
handling of the matter. In
the result, the applicant is unreasonably
being denied the right to be heard.
[11] In the end, I hereby make the
following order:
1. That the decision of the 1st
respondent made on the 18th of March 2015 is hereby set aside.
2. The applicant is granted leave to
proceed with the main case in the district court, Vereeniging as per
the order granted by the
regional court on 13 June 2013.
S S MPHAHLELE
JUDGE OF THE HIGH COURT
Appearances:
Counsel for applicant: Mr A. S.
Marais
Instructed by: HW Smith & Marais
Attorneys
Counsel for the respondent: No
appearance
Date of hearing: 25 August 2015
Date of judgment: 4 September 2015