About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2011
>>
[2011] ZAGPPHC 170
|
|
Afgri Operations Ltd v Botha (A235/10) [2011] ZAGPPHC 170 (16 September 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. A235/10
DATE:16/09/2011
AFGRI
OPERATIONS
LTD
...........................................................................................
Appellant
V
BOTHA,
FREDERIK
JACOBUS
...............................................................................
Respondent
Appeal:
from Magistrates' Court
Coram: Louw J & Sapire AJ
JUDGMENT
Sapire
AJ
This
is judgment on an appeal against the order of a magistrate rescinding
a judgment entered in favour of the Appellant, against
the Respondent
in accordance with the provisions of section 57 of the Magistrates
Court Act. The section reads "57 Admission
of liability and
undertaking to pay debt in instalments or otherwise (1) If any person
(in this section called the defendant) has
received a letter of
demand or has been served with a summons demanding payment of any
debt, the defendant may in writing-
(a)
admit liability to the plaintiff for the amount of the debt and costs
claimed in the letter of
demand or summons or for any other
amount;
(b)
offer to pay the amount of the debt and costs for which he admits
liability, in instalments or otherwise;
(c)
undertake on payment of any instalment in terms of his offer to pay
the collection fees for which the plaintiff is liable in
respect of
the recovery of such instalment; and
(d)
agree that in the event of his failure to carry out the terms of his
offer the plaintiff shall, without notice to the defendant,
be
entitled to apply for judgment for the amount of the outstanding
balance of the debt for which he admits liability, with costs,
and
for an order of court for payment of the judgment debt and costs in
instalments or otherwise in accordance with his offer,
and
if the plaintiff or his attorney accepts the said offer, he shall
advise the defendant of such acceptance in writing by registered
letter.
(2)
If, after having been advised by the plaintiff or his attorney in
writing that his offer has been accepted, the defendant fails
to
carry out the terms of his offer, the clerk of the court shall, upon
the written request of the plaintiff of his attorney accompanied
by-
(a)
if no summons has been issued, a copy of the letter of demand;
(b)
the defendant's written acknowledgment of debt and offer and a copy
of the plaintiffs or his attorney's written acceptance of
the offer;
(c)
an affidavit or affirmation by the plaintiff or a certificate by his
attorney stating in which respects the defendant has failed
to carry
out the terms of his offer and, if the defendant has made any
payments since the date of the letter of demand or summons,
showing
how the balance claimed is arrived at-
(i)
enter judgment in favour of the plaintiff for the amount or the
outstanding balance of the amount of the debt for which the
defendant
has admitted liability, with costs; and
(ii)
order the defendant to pay the judgment debt and costs in specified
instalments or otherwise in accordance with his offer and
such order
shall be deemed to be an order of
the court mentioned in section
65A (1).
(3)
When the judgment referred to in subsection (2) has been entered and
an order made, and if the judgment debtor was not present
or
represented when the judgment was entered by the clerk of the court
and the order made, the judgment creditor or his or her
attorney
shall forthwith advise the judgment debtor by registered n letter of
the terms of the judgment and order.
[Sub-s.
(3) substituted by s. 2 of Act 81 of 1997.]
(4)
Any judgment entered in favour of the plaintiff under subsection (2)
shall have the effect of a judgment by default."
The
Appellant claimed to be a creditor of the Respondent and following
the procedure of the section just quoted, applied for, and
obtained
entry of judgment, against the Respondent without the issue of
summons. After paying the bulk of the amount of the judgment,
but
leaving a substantial amount unpaid, the Respondent applied for its
rescission. Despite opposition by the Appellant the magistrate
rescinded the judgment and ordered that costs be taxable on a scale
between attorney and own client. Against this order, and ancillary
orders made by the magistrate, appellant gave notice of this present
appeal.
The
notice of appeal enunciated a number of arguably serious reasons, why
the magistrate should not have rescinded the judgment.
In heads of
argument filed shortly before the time appointed for the hearing of
the appeal, the appellant gave notice conceding
that no appeal lay
against the magistrate's order rescinding the judgment entered in
terms of the section. The rationale for this
apparently was that the
order rescinded was a default judgment, against an order for the
rescission of which no appeal lay. In
view of this concession,
logically the appeal fell away. The appellant did not seek during the
hearing of the appeal to go back
on, the concession so made.
In
making, the concession however appellant gave notice that it would
seek an order that the court of appeal attach riders to the
magistrate's order rescinding the judgment. The riders, the appellant
urged, the court a quo should have attached to its order
rescinding
the judgment. There is no ground upon which this court can accede to
this request. If, as conceded by the Appellant,
no appeal lies
against the rescission of the judgment, the Court of appeal has no
jurisdiction to alter or vary the order of the
magistrate.
On
receiving notice of appellant's concession, the Respondent abandoned
all the subsidiary or ancillary orders, which the magistrate
had made
in connection with the rescission. These unlike the order for
rescission itself had been appealable. With Respondent's
abandonment,
nothing remained for adjudication by this court.
The
matter should have ended there, with the parties removing the matter
from the roll. This did not happen, principally, because
the
Appellant pressed for the addition of the riders to the rescission
order, which remained intact.
Respondent
largely succeeded in these proceedings and the Appellant must pay the
costs.
I
propose the following order,
1.
The Appeal is dismissed
2.
Appellant is to pay the Respondent's costs
Sapire
AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
Louw
J
JUDGE
OF THE HIGH COURT