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[2014] ZASCA 78
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Pangarker v Botha (446/13) [2014] ZASCA 78; [2014] 3 All SA 538 (SCA); 2015 (1) SA 503 (SCA) (29 May 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 446/13
In the matter
between:
MAGISTRATE
M
PANGARKER
...........................................................................................
Appellant
and
ARNOLD
BOTHA
.......................................................................................................
First
Respondent
CHRISTINA MAGDALENA
BOTHA
...................................................................
Second
Respondent
Neutral
citation
:
Magistrate M Pangarker
v
Botha
(446/13)
[2014] ZASCA 78
(29 May 2014)
Coram:
Mthiyane DP, Lewis, Mhlantla and Wallis JJA and Legodi AJA
Heard:
6 May 2014
Delivered:
29
May 2014
Summary:
Civil
Procedure – review of divorce proceedings – no gross
irregularity was committed by the regional magistrate for
not
postponing the trial
mero motu
and proceeding with the divorce
trial in the absence of the first respondent – orders of the
high court set aside.
ORDER
On appeal from:
Western Cape High Court, Cape Town (Goliath J and
Cloete AJ sitting as
court of first instance):
1 The appeal is
upheld with costs.
2 The first
respondent is ordered to pay the costs of appeal.
3 The order of the
high court is set aside and replaced with:
‘
The
application is dismissed with costs.’
JUDGMENT
Mhlantla JA
(Mthiyane DP, Lewis and Wallis JJA and Legodi AJA concurring):
[1] This appeal
arises from the divorce proceedings in the Southern Divorce Court
between the first respondent (Mr Arnold Botha)
and the second
respondent (Mrs Christina Botha). The proceedings came before
magistrate M Pangarker, (the appellant) an acting
regional magistrate
at the Regional Court, Western Cape. For the sake of convenience, I
shall refer to the appellant as the magistrate.
In circumstances that
will be described later, the divorce trial proceeded in Mr Botha’s
absence. A divorce order was granted
together with an order for the
partial forfeiture of the benefits of the marriage. Mr Botha then
launched an application in the
Western Cape High Court, Cape Town to
review and set aside the proceedings and the judgment.
[2] The high court
(Goliath J and Cloete AJ) upheld the application for the review of
the divorce proceedings between Mr and Mrs
Botha. Save for the decree
of divorce, the high court set aside the proceedings as well as the
judgment issued by the magistrate.
It ordered that the matter be
referred back to the regional court for trial
de novo
before a
regional magistrate other than the appellant. Regarding costs, the
magistrate and Mr Botha were ordered to pay Mrs Botha’s
costs
jointly and severally on the scale as between party and party.
Furthermore, they had to bear their own costs in the review
application. The magistrate appeals against this decision with the
leave of this court.
[3] This appeal
turns on two issues. First, whether the magistrate committed a gross
irregularity by not postponing the trial
mero motu
and
proceeding with the trial in the absence of Mr Botha when she was
aware that the attorney he wished to engage was not available
on the
days allocated for the hearing. Mr Botha alleged that his rights to
be heard and to be afforded a fair trial were violated.
Second,
whether, in the event that this constituted a gross irregularity, the
magistrate should be held liable for the costs of
the review
application in her personal capacity.
Background
[4] This dispute
commenced in August 2008 when Mr Botha, who was married to Mrs Botha
out of community of property in terms of an
antenuptial contract,
instituted a divorce action against her in the Southern Divorce
Court, Cape Town. The divorce action was
opposed by Mrs Botha who was
represented by Werksmans Attorneys, whilst Mr Botha was represented
by different attorneys. The divorce
proceedings came before the
magistrate and the matter was postponed on numerous occasions, either
to allow Mr Botha to engage a
new legal representative or to enable
the attorney concerned an opportunity to apprise himself or herself
of the facts of the matter.
[5] It is apposite
at this stage to outline the history of Mr Botha’s legal
representation. Initially, he was represented
by Mr Vermaak, an
attorney. A dispute arose between him and his attorney. During
November 2009, Mr Botha terminated his mandate.
[6] In December 2010
Mr Botha instructed Mr Jennings to act for him. The case was enrolled
for trial on 12 August 2011,which gave
him about eight months to
prepare for trial. Unfortunatetly, Mr Jennings did nothing towards
preparation for the trial. Mr Botha
reported the attorney to the Law
Society only to discover that Mr Jennings had been interdicted from
practising as an attorney.
He immediately terminated his mandate. On
12 August 2011 Mr Botha appeared in court without a legal
representative. The trial was
postponed to 21 October 2011 to enable
him to engage a new legal representative.
[7] Due to lack of
funds he approached the Law Society for assistance: Mr Gert Etzebeth,
an attorney, was appointed to act for him
on a
pro bono
basis.
On 21 October the case was again postponed to 15 December 2011 to
allow Mr Etzebeth to prepare for trial. Mr Botha alleged
that Mr
Etzebeth did nothing to prepare for the case and did not contact him.
During November 2011, he contacted Mr Etzebeth and
made an
appointment. They consulted on 1 December 2011. He sought an
amendment of his particulars of claim, to deal with the issue
of his
wife’s claim for forfeiture of patrimonial benefits. He and Mr
Etzebeth could not agree on the procedure. This led
to the withdrawal
of Mr Etzebeth as attorney of record. A notice of withdrawal
was filed on 6 December 2011, a few days
before the trial date. Mr
Etzebeth explained the grounds for his withdrawal in an email to Mrs
Botha’s attorney as being
that ‘Mr Botha does not
understand what it is to conduct a trial. His judgment is clouded,
therefore we are unable
to make him see what is required.’
[8] On 15 December
2011, Mr Botha appeared in person. He applied for a postponement of
the trial. The case was postponed to 8 and
9 March 2012. This was a
third postponement at his instance. The magistrate ordered that this
would be a final postponement and
that the matter would proceed
on those days whether Mr Botha had legal representation or not. This
was at the request of Mrs Botha,
who only reluctantly conceded that
an adjournment should be granted. A pre-trial conference was set down
for 22 February 2012.
Mr Botha was ordered to pay the wasted
costs occasioned by the postponement.
[9] Mr Botha
thereafter approached the Law Society, which appointed Ms Davidson to
act on a
pro bono
basis. Her appointment took effect on 25
January 2012. Ms Davidson arranged for an advocate, Mr Heese, to
represent Mr Botha. They
represented him at the pre-trial conference
on 22 February but he was dissatisfied with their approach at the
conference. He formed
the view that the magistrate was biased against
him and was referred to the Department of Justice and Constitutional
Development
to whom he made a complaint. This apparently came to the
attention of Ms Davidson who was left with the impression that Mr
Botha
was accusing her of being incapable of handling his case. This
lead her to withdraw as his attorney of record.
[10] Thereafter, Mr
Botha approached numerous attorneys to assist him. On 28 February
2012 Mr Derris accepted instructions to act
for him. Mr Derris,
however, was not available to attend to the trial on 8 March and
informed Mr Botha accordingly. Mr Derris
undertook to apply for a
postponement of the trial. In this regard he communicated directly
with the magistrate, without reference
to Mrs Botha, by telephoning
the magistrate and writing to her. He sought the court’s
indulgence for a short postponement.
Mr Derris requested the
court not to deny Mr Botha the right to legal representation. The
magistrate quite properly referred these
communications to Mrs
Botha’s legal representative and made it clear that she would
not entertain
ex parte
communications. Mrs Botha was not
amenable to a further postponement and indicated that she would
oppose any application to that
effect.
[11] The magistrate
responded to Mr Derris’ email and request for a postponement,
and stated:
‘
There is now
a request by Mr Derris that the legal representatives see me in
chambers to reach some amicable solution regarding
a postponement of
the matter on the 8
th
. Note that as both parties are
represented, I can and will only see all the representatives together
by prior arrangement.
If any party is
unhappy with my presiding in the matter, as I advised in last week’s
email to Ms Davidson, and earlier to
Mr Derris, a formal application
for my recusal from the matter would have to be brought in court.
The matter cannot be
enrolled for an earlier date to deal with a potential postponement by
Mr Botha or Mr Derris on his behalf as
I am in Court everyday, in
various Regional Courts, as well as my colleague Mr Yuill.’
[12] Mr Derris did
not respond to this email. He did not make any attempts to engage Mrs
Botha’s attorneys with a view
to reaching an agreement on
the postponement of the trial. There is no reason to doubt that
the magistrate and her colleague
were not available to hear an
application for a postponement prior to 8 March due to their court
engagements.
[13]
On 8 March 2012, Mr Botha appeared in court without a legal
representative. He launched an application for the recusal of the
magistrate that had been served electronically on her and Mrs Botha
the previous afternoon.
He informed the
magistrate that on Mr Derris’ instruction, he would read the
recusal application into the record and then
leave the court without
answering any questions. Prior to him doing so, the magistrate
explained the potential consequences of
absenting himself from the
proceedings. In this regard, she stated that the counsel representing
Mrs Botha would be allowed to
present her argument in opposition and
that due to his absence there would be no replication from him; the
trial would be postponed
in the event the application for her recusal
was granted. However, in the event of a refusal, Mrs Botha could
request that the
divorce action proceed on her plea and counterclaim
and she as the magistrate might continue with the trial in his
absence and
finalise the divorce proceedings without hearing his side
of the case.
[14] Mr Botha
confirmed that he understood the potential consequences and that Mr
Derris had advised him that in the event of the
matter proceeding in
his absence, he would deal with it on his return from Johannesburg.
The magistrate furthermore invited him
to remain in court and sit in
the gallery as an observer. He declined that invitation. Mr Botha
thereafter read the application
into the record and then left the
court. At no stage did he make a formal application for the
postponement of the trial.
Mrs Botha’s counsel opposed
the application for the magistrate’s recusal and made
submissions in that regard. The recusal
application was dismissed
with costs. In the high court it was conceded that the recusal
application was devoid of merit.
[15] The divorce
trial commenced in the absence of Mr Botha. The testimony of Mrs
Botha and an expert valuer, in respect of the
immovable property in
which the parties lived, was adduced. On 9 March 2012 neither Mr
Botha nor Mr Derris appeared in court. The
magistrate handed down
judgment and granted a decree of divorce. A partial forfeiture order
in terms of
s 9
of the
Divorce Act 70 of 1979
was granted in favour
of Mrs Botha. Mr Botha was ordered to pay the costs of the action.
[16] Aggrieved by
the outcome, Mr Botha launched an application in the high court. He
sought an order reviewing and setting aside
the divorce proceedings
that took place on 8 and 9 March 2012 as well as the judgment issued
by the magistrate on 9 March 2012.
The review application was based
on the ground that the magistrate had continued and finalised the
divorce proceedings in his absence
and as a consequence had violated
his right to be heard and to legal representation as enshrined in the
Constitution.
[17] The high court
upheld the application. It found that the magistrate had implicitly
refused to grant a postponement in her email
response to Mr Derris.
It concluded that the magistrate should have
mero motu
postponed
the matter to enable Mr Botha to obtain a legal representative of his
own choice and that failure to do so resulted in
him not getting a
fair trial. It further held that it was grossly irregular for the
magistrate simply to decide to proceed with
the matter without
considering the issue of the postponement and that it was
unreasonable to deny Mr Derris an opportunity to facilitate
a
postponement of the matter. The high court thus concluded that the
magistrate had committed a gross irregularity by not postponing
the
matter and refusing Mr Botha a legal representative of his own
choice. It accordingly set aside the proceedings. The high court
ordered that the divorce action and in particular the question
relating to the claim for forfeiture of benefits be dealt with afresh
before a different magistrate. The magistrate and Mr Botha were
ordered to pay Mrs Botha’s costs.
[18] On appeal it is
accordingly necessary to determine whether a failure to consider a
postponement
mero motu
constituted a gross irregularity
sufficient to ground a review application.
Grounds of review
[19] Section 24 of
the Supreme Court Act 59 of 1959
[1]
outlines the grounds upon which the proceedings of inferior courts
may be brought under review before a provincial division as
follows:
‘
24 Grounds
of review of proceedings of inferior courts
(1) The grounds upon
which the proceedings of an inferior court may be brought under
review before a provincial division or before
a local division having
review jurisdiction, are –
(a) . . . ;
(b) interest in the
cause, bias, malice or the commission of an offence . . . on the part
of the presiding judicial officer;
(c) gross
irregularity in the proceedings; and
(d) . . .’
Interest
in the cause, bias or malice
[20] At the
commencement of the appeal, Mr Botha’s counsel confirmed that a
concession had been made in the high court that
there was no merit in
the recusal application and that such application was correctly
dismissed. It follows that the only issue
on appeal relates to the
finding of the high court that the magistrate had committed a ‘gross
irregularity’.
Gross irregularity
[21] Van
Loggerenberg
et
al
[2]
interpret the ‘gross irregularity’ ground of review to
refer to ‘an irregular act or omission by the presiding
judicial officer . . . in respect of the proceedings of so gross a
nature that it was calculated to prejudice the aggrieved litigant,
on
proof of which the court would set aside such proceedings unless it
was satisfied that the litigant had in fact not suffered
any
prejudice’.
Legal Principles in
respect of postponements
[22] A starting
point is Rule 31(1) of the Magistrates’ Court Rules which
provides:
‘
The trial of
an action or the hearing of an application or matter may be adjourned
or postponed by consent of the parties or by
the court, either on
application or request or of its own motion.’
[23]
Where
a postponement is sought, it is determined at the court’s
discretion. A party seeking a postponement must demonstrate
‘a
full and satisfactory explanation of the circumstances’
grounding the indulgence’.
[3]
A magistrate is empowered to grant a postponement
mero
motu
where the ‘circumstances justify it and the further time
required by the applicant is fully and adequately explained [and]
refusal of the postponement should lead to an injustice being done to
the party seeking it’. In
Momentum
Life Assurers Ltd
v
Thirion
[4]
the court outlined the circumstances under which such an order may be
granted:
‘
Rule 31(1)
clearly provides for an unfettered judicial discretion by furnishing
the magistrate with the power to adjourn or postpone
a matter
mero
motu
. There is no suggestion that he may exercise this power only
under prescribed circumstances. There may, in fact, be any number of
reasons for his decision to follow this route. It may be for personal
reasons or in response to the demands of public interest,
for example
as a result of the state of the court roll or because of an emergency
situation. An unassailable reason would be if
it should appear to be
in the interests of justice that he do so.’
[24] Van Zyl J in
Thirion
said:
5
‘
Of course no
court would feel the urge to come to the assistance of a litigant who
has been the author of his own misfortune and
has suffered injustice
by his own conduct. Cognisance must, therefore be taken of all the
relevant facts and circumstances giving
rise to such misfortune and
injustice. If he has been careless, dilatory or in bad faith (
mala
fide
), he cannot expect the courts to come to his assistance.’
[25]
The
legal principles governing the grant and refusal of postponements are
well-established. In
Carephone
(Pty) Ltd
v
Marcus
NO and Others,
[5]
Froneman DJP held:
‘
In a court of
law the granting of an application for postponement is not a matter
of right. It is an indulgence granted by the court
to a litigant in
the exercise of a judicial discretion. What is normally required is a
reasonable explanation for the need to postpone
and the capability of
an appropriate costs order to nullify the opposing party’s
prejudice or potential prejudice.’
[26]
In
Take
and Save Trading CC
v
Standard
Bank of SA Ltd,
[6]
Harms JA said:
‘
One of the
oldest tricks in the book is the practice of some legal
practitioners, whenever the shoe pinches, to withdraw from the
case
(and more often than not to reappear at a later stage), or of clients
to terminate the mandate (more often than not at the
suggestion of
the practitioner), to force the court to grant a postponement because
the party is then unrepresented. Judicial officers
have a duty to the
court system, their colleagues, the public and the parties to ensure
that this abuse is curbed by, in suitable
cases, refusing a
postponement. Mere withdrawal by a practitioner or the mere
termination of a mandate does not, contrary to popular
belief,
entitle a party to a postponement as of right.’
[27] The
Constitutional Court held in
Lekolwane & another
v
Minister of
Justice
and Constitutional
Development
:
[7]
‘
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as a right. An applicant for a postponement
seeks
an indulgence from the court. A postponement will not be granted,
unless this court is satisfied that it is in the interests
of justice
to do so. In this respect the application must ordinarily show that
there is good cause for the postponement, whether
a postponement will
be granted is therefore in the discretion of the court. In exercising
that discretion, this Court takes into
account a number of factors,
including (but not limited to) whether the application has been
timeously made, whether the explanation
given by the applicant for
postponement is full and satisfactory, whether there is prejudice to
any of the parties, whether the
application is opposed and the
broader public interest.’
[28] It is against
this background that I proceed to consider the issues in the appeal,
commencing with the question whether the
magistrate was obliged to
postpone the trial
mero motu
after refusing the recusal
application. The enquiry requires us to consider any prejudice
suffered by the parties, the history
of the proceedings, Mr Botha’s
numerous struggles with his legal representation and the
circumstances and competing rights
of Mrs Botha.
[29] Counsel for Mr
Botha submitted that the magistrate should have postponed the trial.
This argument is devoid of substance and
falls to be rejected. The
approach by the magistrate was appropriate under the circumstances
and she acted properly. She was faced
with a trial that had already
been postponed three times to accommodate Mr Botha and Mrs Botha
clearly wished to achieve finality.
She considered what was fair to
both parties, including the possibility of a postponement, and
decided that the matter should proceed.
The record shows that she
deliberated anxiously before reaching that decision. Her conduct
cannot be faulted.
[30] The judgment of
the high court in finding that the failure to postpone the trial
constituted a gross irregularity is disturbing
as it is not supported
by the facts. First, the high court erred when it interpreted the
magistrate’s response to Mr Derris
as a refusal to grant the
postponement. She merely indicated that there were only two
magistrates presiding in the divorce court
and their roll was full.
The attack is further unjustified as all she did was to explain the
state of affairs in that court. Nothing
prevented Mr Botha and his
legal representative (either Mr Derris or another attorney) from
launching a formal application for
a postponement on the first day of
the trial or an urgent application for a postponement. They did not
do so.
[31] Second, the
high court failed to appreciate the principles applicable in respect
of postponements and recusal applications.
There was only one
application before the magistrate – this was for her recusal -
which was properly dismissed. In the present
matter, Mr Botha read
into the record his application for the recusal of the magistrate.
She warned him of the consequences.
He stated in unequivocal
terms that he had been instructed by Mr Derris to leave the court
room after reading the application into
the record. He elected not to
participate in the proceedings and left the court of his own
volition. There could have been no doubt
that he knew of the
consequences. It must be emphasised that throughout this saga, Mr
Derris remained on record. The unavailability
of a legal
representative is not necessarily a basis for a postponement of a
matter. On the facts of the matter there was no basis
for the
magistrate to postpone the trial in
vacuo
.
[32] Third, the high
court failed to consider Mrs Botha’s competing right to have
the dispute settled swiftly. It did not
take into account the history
of the matter. There had already been two prior postponements on
similar grounds where Mr Botha’s
interests were accommodated.
It is evident that he had ample opportunity to attain a legal
representative and prepare for trial.
[33] Fourth, the
criticism of the magistrate is unjustified. There is no doubt that Mr
Botha engineered an application for a postponement
under the guise of
a recusal application. This application was a transparent and
dishonest strategy to obtain a postponement. The
decision of this
court in
Take and Save
referred to in para 26 above is
instructive. He fell foul of the principles espoused in that case. It
is incomprehensible how it
could be said that the magistrate had
committed a gross irregularity under these circumstances.
Legal representation
[34] The right to
legal representation is a corollary of the right of access to
justice. The denial of this right has wide-ranging
consequences for
the nature and experience of justice. Nevertheless, a litigant may
not benefit from his own misconduct or otherwise
careless approach to
legal proceedings. It is apparent from the record that Mr Botha had
ample time to avail himself of a legal
representative who was both
well-apprised of the dispute and available to attend the court
proceedings. Despite this, he failed
to secure such. Mr Botha
insisted that he would not have any legal representative other than
Mr Derris. The high court took the
view that he was entitled to an
attorney of his own choice. This was an incorrect approach when
regard is had to the history of
the matter and the rights of the
other party. The trial had been postponed three times at his
instance. Mrs Botha’s rights
were completely disregarded by the
high court.
[35] Mr Botha’s
failure in this regard and any prejudice he has suffered must be
weighed against that of Mrs Botha as a result
of the delay in the
resolution of the divorce proceedings between them. The scales
inevitably tip in her favour. Accordingly his
lack of legal
representation cannot be a basis for a finding of any ‘grossly
irregular’ conduct on the part of the
magistrate. Her decision
to proceed with the divorce trial in his absence or that of his legal
representative has to be viewed
in the broader context of the matter,
which context negates his claim that the prejudice he suffered must
now prevail. It follows
that the high court should have dismissed
this ground of review as well. The failure of the high court to
consider the appropriate
principles, set out above, resulted in a
grave injustice to the magistrate. It may well have prejudiced her
professional life and
must have caused her great discomfort and
embarrassment. That court’s approach is to be deprecated.
Conduct of Mr Derris
[36] The conduct of
Mr Derris is relevant to our consideration of this appeal. It
deserves censure. He approached the magistrate
directly without
reference to the other party. Before us, Mr Botha’s legal
representative conceded that Mr Derris’
conduct was improper. I
agree. It is inappropriate for a legal representative or party to
communicate directly with a judicial
officer without reference to and
the prior consent of the other party. In this case it was not
competent for Mr Derris to seek
a postponement of a matter by
directing a letter to a magistrate.
His behaviour
constitutes improper conduct.
[37] Mr Derris’
failure to appear in court due to double booking is equally
unacceptable. He was aware when he accepted the
instructions that he
would not be available on 8 March 2012. The fact that a trial date
does not suit the legal representative
of a party is not a good
ground for allowing a postponement. It is so that the Rules of
the Law Society of the Cape of Good
Hope do not preclude an attorney
from having more than one matter on a particular day. This, however,
must be read in the context
of the case law. It is unacceptable to
have an attorney who has accepted two matters set down for trial in
different courts on
the same day where he or she is appearing. That
attorney cannot expect one of the courts to grant him a postponement
on the basis
that he or she is not available where he had taken the
second matter fully aware of his unavailability.
[38]
An
attorney is subject to a code of ethics and has a duty to the court
to conduct himself or herself in a proper manner. He or she
has a
responsibility to act honestly and openly towards his or her
colleagues. In
Brenner’s
Service Station and Garage (Pty) Ltd
v
Milne
& another,
[8]
the court held that the proper function of the courts is to try
disputes between litigants and that attorneys should not allow
themselves to descend to the level of manipulating the court’s
procedures so that their true purpose is frustrated. In this
case, Mr
Derris attempted to manipulate the court and force a postponement of
the trial due to his unavailability. It was inappropriate
for him to
instruct Mr Botha to read the application for recusal into the record
and thereafter leave the court. His conduct is
deplorable and
unbecoming of an officer of the court. We have been advised that Mr
Derris has been appointed as a magistrate. This
judgment shall be
sent to the Magistrates’ Commission for information.
Costs award
[39]
As the
magistrate has not committed any gross irregularity, the costs order
issued against her must be set aside. Nevertheless it
is worth
emphasising that, in general, the courts will only grant a costs
order against a judicial officer in a dispute over the
performance of
their judicial functions where bad faith on their part has been
proven.
10
There are, however, certain instances in which costs orders have been
granted against judicial officers where they became party
to the
proceedings and were unsuccessful. In
Regional
Magistrate du Preez
v
Walker
,
[9]
the judicial officer participated in the proceedings in a manner that
warranted additional sanction in the form of the costs order.
In such
proceedings, the court has an overriding discretion to grant a costs
order.
However, such an
order will only be granted in unusual circumstances.
[40] On the facts of
the present matter, the magistrate’s conduct in both
adjudicating the divorce proceedings and participating
in the review
proceedings did not warrant the sanction of a costs order against
her. Her reasons for involving herself are clearly
stated and
objectively justified and reasonable. That, however, cannot be said
of Mr Botha and his legal representative, Mr Derris.
They devised a
plan to compel the magistrate to postpone the divorce proceedings.
When that failed, review proceedings were launched.
Their
conduct is to be deprecated in the strongest possible terms.
[41] In the
circumstances, the appeal must be upheld, which will have the effect
that the order of the trial court dated 9 March
2012 is reinstated.
Regarding costs, the court intends showing its displeasure by
ordering Mr Botha to pay the costs of appeal.
[42] In the result,
the following order is made:
1 The appeal is
upheld with costs.
2 The first
respondent is ordered to pay the costs of appeal.
3 The order of the
high court is set aside and replaced with:
‘
The
application is dismissed with costs.’
_____________________
NZ MHLANTLA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant:
P
Eia
Instructed
by:
Coulters
Van Gend & Kotze, Cape Town
Honey
Attorneys, Bloemfontein
For
First Respondent:
D
Petersen
Petersen’s
Attorneys, Cape Town
Hugo
& Bruwer Attorneys, Bloemfontein
For
Second Respondent:
JL
McCurdie
Instructed
by:
Werksmans
Attorneys, Cape Town
Phatshoane
Henney Attorneys, Bloemfontein
[1]
Now
s 22
of the
Superior Courts Act 10 of 2013
.
[2]
DE
van Loggerenberg, PBJ Farlam, MJ Bishop & JR Brickhill:
Erasmus:
Superior Court Practice
(2013)
at A1-71
[3]
DE
van Loggerenberg
Jones
and Buckle: Civil Practice of the Magistrates’ Courts in South
Africa
(2013)
at 31-2.
[4]
Momentum Life Assurers Ltd
v
Thirion
[2002]
2 All SA 62
(C) paras 16-22 and 25
5
At para 34.
[5]
Carephone (Pty) Ltd
v
Marcus
NO & others
1999
(3) SA 304
(LAC) para 54.
[6]
Take and Save Trading CC
v
Standard
Bank of SA Ltd
2004
(4) SA 1
(SCA) para 3.
[7]
Lekolwane & another
v
Minister
of Justice and Constitutional Development
[2006] ZACC 19
;
2007
(3) BCLR 280
(CC) para 17. See also
National
Police Service Union
v
Minister
of Safety and Security
2000
(4) SA 1110
(CC) at 1112C-F.
[8]
Brenner’s Service Station and Garage (Pty) Ltd
v
Milne & another
1983
(4) SA 233
(W) at 240A.
10
See
DE
van
Loggerenberg:
Jones and Buckle
:
Civil
Practice of the Magistrates’ Courts in South Africa
(2013)
at 33-54. See in particular fn 493 and the cases cited therein.
[9]
Regional Magistrate du Preez
v
Walker
1976
(4) SA 849
(A) at 853B. See also
MacLean
v
Haasbroek
NO & others
1957
(1) SA 464
(A).