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[2023] ZAFSHC 209
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U'Fezela Security Services (Pty) Ltd t/a Senforce v Zenzile and Another (6008/2022) [2023] ZAFSHC 209; 2024 (3) SA 608 (FB) (30 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 6008/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
U’FEZELA
SECURITY SERVICES (PTY) LTD
t/a
SENFORCE
Applicant
and
ARNOLD
ZONDANE ZENZILE
First
Respondent
R
MOTSAMAI N.O.
Second
Respondent
CORAM:
MHLAMBI, J
et
OPPERMAN, J
HEARD
ON:
22 May 2023
DELIVERED ON:
30 May 2023. The judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email and release to SAFLII on 30 May 2023. The
date and time for hand-down is deemed to be 30 May 2023 at 16h00
JUDGMENT
BY:
OPPERMAN, J
SUMMARY:
Review – Small Claims Court – section
46(c) of the Small
Claims Court Act 61 of 1984 – alleged gross irregularity in the
proceedings & the resultant violation
of the rules of natural
justice by the Commissioner – reasons for judgment in terms of
Rule 53 of the Uniform Rules of Court
JUDGMENT
[1]
The review
lies before this court in terms of section 46(c)
[1]
of the Small Claims Court Act 61 of 1984 (the Act)
[2]
and unopposed.
[3]
[2]
The grounds of review are that the Commissioner
ignored the
submissions made by the applicant, failed to apply her mind to the
issues which had been raised on behalf of the applicant
and failed to
reflect on it before reaching her conclusion. It was further
submitted that these serious transgressions in the proceedings
also
constituted a violation of the rules of natural justice.
[3]
Crucial is that t
he applicant attacks the method
or process used during the proceedings by the Commissioner.
[4]
Factually;
the applicant that
is
a private security services provider and that employs more than four
hundred registered security officers,
relies
on the following:
[4]
16.
The matter
came before the Commissioner on 25 October 2022. The applicant was
represented by its director, Mr Wilhelm Hoffman (Mr
Hoffman).
[5]
17.
Upon being
requested to clarify the substance of his claim, the first respondent
informed the Commissioner that the matter concerned
the disparity
between what he was paid and the payment rates to which he should
have been entitled as a Grade C security officer.
Additionally, he
complained that the applicant had never provided him with
payslips.
[6]
18.
In response
to the Commissioner’s inquiry regarding the applicant’s
rebuttal to the allegations, Mr Hofmann (sic) informed
the
Commissioner that he had a copy of the first respondent’s
payslips, his learnership registration form, the learnership
agreement and the workplace-based learning programme agreement with
him and that these documents dismantled any notion that there
was any
merit in the first respondent’s claim.
[7]
19.
Mr Hofmann
(sic) then asked the Commissioner for leave to hand the documents to
her so that he could explain, with reference to
the documents, why
the first respondent’s claim was unsustainable.
[8]
20.
The
Commissioner declined to receive the documents and, without further
deliberation, proceeded to grant judgment against the applicant
for
the amount claimed by the first respondent
[9]
in circumstances where the first respondent was never a registered
security officer, much less a grade C security officer. The
rates
that the first respondent based his claim on did not apply to him,
but only applied to PSiRA Registered security officers.
[10]
[5]
On
19 May 2023
[11]
the
Commissioner filed her reasons for the verdict, judgment and order.
This is five months after the reasons were due in terms
of Rule
53(1)(b) and as the Commissioner was invited to do in the applicant’s
notice of motion. This is unacceptable.
[12]
Be that as it may; the Commissioner maintained in conclusion on the
application and relevant to the issue, that:
[13]
§ Applicant
was supposed to furnish the Commissioner (second respondent) with
deposit slip proof or electronically transfer
proof that shows that
the money was deposited into the bank account of the first respondent
in full on a monthly basis and furthermore
was supposed to show
Second respondent (sic) the Contract of employment that shows as to
how much was the first respondent supposed
to receive on a monthly
basis (sic) a salary to enable the second respondent to check as to
whether indeed there is an outstanding
salary or not.
o
Evaluation
of the conflicting versions
§ The
Applicant version was not supported enough by documentary proof
however the version of the first respondent was
supported enough by
the bank statement.
§ In
consideration of the evidence before Court, second respondent finds
that the first respondent was a credible witness.
o
An
assessment of the legal position
§ Second
respondent (Commissioner) did not commit a gross irregularity in
terms of Section 46(c) of the Act. The proper
procedure was followed.
§ Second
respondent stand by her judgment that Applicant must pay the first
respondent R8 900.
[6]
The peculiarity of this review is that there does not exist a record
to guide the
court to the truth.
There is not any record
because it is the law; section 3 of the Act finds application:
3. Nature of
courts and force of process. —
(1) Subject to the
provisions of subsection (2),
a court shall not be a court of
record
. (Accentuation added)
(2) The presiding officer
shall record or cause to be recorded the verdict, judgment or order
of the court and shall sign it.
(3) The process of
a court shall be served or executed in the prescribed manner.
(4) Every process
of a court shall be of force throughout the Republic.
[7]
The record of proceedings is an important element of the review as it
is an important
tool in determining objectively what considerations
were probably operative in the mind of the decision-maker when he or
she made
the decision sought to be reviewed.
[14]
The Legislature might have to consider, in our constitutional ethos,
to cause Small Claims Courts to become courts of record.
[8]
The adjudication of the review must, now and here, be made on the
evidence placed
before the court in the applicant’s founding
affidavit and the Commissioner’s reasons for judgment. The
Commissioner
does not deny the legally inappropriate conduct alleged;
not in the reasons for judgment nor by way of opposing the review
under
sworn statement. The evidence adduced by the applicant must
consequently be decisive and conclusive of the issue.
[9]
The
Legislature intended to give Commissioners a
fairly free hand in order to effect speedy and inexpensive
adjudication of cases. However,
this object should not be so
predominant that the quality of the administration of justice is
prejudiced.
Counsel for the applicant is correct when he
pointed out in their heads of argument that:
1.
Although
the process in the Small Claims Court is informal and inquisitorial,
the approach to be adopted is essentially no different
to that in any
other civil court. The Commissioner is required to listen to the
relevant evidence, weigh it to determine what is
probable and reach a
conclusion according to the law.
[15]
2.
The
rules of natural justice are applicable in proceedings in the Small
Claims Court
[16]
and a court
on review may intervene in cases where the rules of natural justice
have not been observed.
[17]
3.
Broadly
speaking, two basic principles are said to form the rules of
natural justice.
[18]
The
first is that the affected individual should, as a rule, be given the
opportunity to state his or her case before the
intended prejudicial
action is taken (the so-called
audi
alteram partem
rule).
This includes the right to present and refute evidence. The second
principle is that of impartiality (the so-called
nemo
iudex in sua causa
principle).
Its purpose is to ensure the absence of bias and of any interest,
whether pecuniary or personal, on the part of the
decision-taker.
[10]
The fact that the Commissioner ignored and refused the applicant’s
request to provide documents
and an explanation of the applicant’s
defence, is a gross irregularity and constitute a reviewable
violation of the rules
of natural justice.
[11]
ORDER
1.
The decision of the second respondent on 25 October 2022 in
case
number: 417/2022 in the Small Claims Court, Bloemfontein and in terms
of which judgment was granted in favour of the first
respondent
against the applicant for payment of the sum of R8 900.00; is
reviewed and set aside.
2.
Leave is
granted to the first respondent to apply on the papers in this
application (supplemented insofar as may be necessary) for
an order
that the proceedings in the Small Claims Court, Bloemfontein under
case number: 417/2022 be reopened; provided that notice
of such
application shall be given to the applicant and the second respondent
not later than 15 days from the date of this order.
[19]
3.
The first respondent to pay the costs of the application for
review.
M OPPERMAN, J
I
concur,
JJ MHLAMBI, J
APPEARANCES
On
behalf of the applicant
ADVOCATE
WA VAN ASWEGEN
Free
State Society of Advocates, Bloemfontein
Phatshoane
Henney Attorneys
BLOEMFONTEIN
On
behalf of the first & second respondents
Unopposed
[1]
46. Grounds of review. —
The
grounds upon which the proceedings of a court may be taken on review
before a provincial or local division of the Supreme
Court of South
Africa are—
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice, or the commission of an
offence referred to in Part 1 to 4, or section
17, 20 or 21 (in so
far as it relates to the aforementioned offences) of Chapter 2 of
the
Prevention and Combating of Corrupt Activities Act, 2004
, on the
part of the commissioner; and
[Para.
(b) substituted by
s. 36
(1) of Act No. 12 of 2004.] Wording of
Sections
(c)
gross irregularity with regard to the proceedings.
[2]
It is trite that a judgment of the Small Claims
Court cannot be appealed against, so no litigant can appeal
against
the judgment of the Commissioner; this in terms of section 45 of the
Act.
[3]
In the instance the notice of motion, founding
affidavit and annexures thereto were filed on the Commissioner,
personally, on 5 December 2022. The same was served on 6 December
2022 on the first respondent in terms of Rule 4(1)(a)(ii) of
the
Uniform Rules of this court. There was no reply in any form
whatsoever from any of the respondents until the registrar of
this
court inquired about a possible record of the proceedings on 18 May
2023. I was informed, as is the law, that there was
not any record.
[4]
Heads
of argument for the applicant.
[5]
Review
application: page 12 at paragraph 24.
[6]
Review
application: page 12 at paragraph 25.
[7]
Review
application: page 13 at paragraph 30.
[8]
Review
application: page 13 at paragraph 31.
[9]
Review
application: page 13 at paragraph 32.
[10]
Review
application: page 12 at paragraph 26.
[11]
The review was heard on 22 May 2023 in the High Court.
[12]
In
Maepa
v Minister of Police
(63797/2020) [2022] ZAGPPHC 469 (4 July 2022) it was correctly ruled
that:
[4] The primary purpose
of rule 53 is to facilitate and regulate review applications. Rule
53 implores a decision-maker to deliver
the record of proceedings
sought to be corrected or set aside. Van Loggerenberg,
explains
that rule 53(1) is primarily intended to operate in favour and to
the benefit of an applicant in review proceedings,
and that an
applicant should not be deprived of the benefit of this procedural
right unless there is clear justification therefor
. In
General Council of the Bar of South Africa v Jiba and Others
it was held that
compliance with rule 53 regarding timeframes
and providing a complete record is not just a procedural process,
but a substantive requirement that serves to ensure that the
substance of the decision is properly put to the fore at an early
stage
. Legodi J explained that the availing of the record to
an applicant is to ensure that a party aggrieved by the decision:
“
is properly
informed as to the route to follow. The rule serves as a tool to
ensure that any challenge to the proceedings sought
to be reviewed
is well considered and properly pleaded. For this purpose, the
applicant or aggrieved party is under subrule (4)
given an
opportunity, by delivery of a notice and accompanying affidavit, to
amend, add to or vary the terms of his notice of
motion and
supplement the supporting affidavit if need be.
Similarly, the
decision-maker is, in terms of subrule (5)(b), given the opportunity
to deliver an affidavit he or she may desire
in answer to the
allegations made therein and any further reasons contemplated in
subrule (1)(b).
(
Accentuation added)
[13]
The
pages and paragraphs in the document: “REVIEW REASONS”
were not numbered.
[14]
Joffe, MM
et
al,
LexisNexis,
Civil Procedure,
High
Court Motion Procedure
,
1. Uniform Rule of Court, 1.18 Reviews (Rule 53), last updated:
July
2022 - SI 15 with reference to
Helen
Suzman Foundation v Judicial Services Commission and Others
[2017] 1 All SA 58
(SCA);
2017 (1) SA 367
(SCA) at paragraph 13;
2018 (4) SA 1
(CC),
Jockey
Club of South Africa v Forbes
[1992] ZASCA 237
;
[1993] 1 All SA 494
(A);
1993 (1) SA 649
(A) at 660D–F,
Afrisun
Mpumalanga (Pty) Ltd v Kunene NO and Others
1999 (2) SA 599 (T)
and
Fizik
Investments (Pty) Ltd t/a Umkhombe Security Services v Nelson
Mandela Metropolitan University
2009
(5) SA 441
(SE), https://www.mylexisnexis.co.za/Index.aspx
on 26 May 2023.
[15]
At paragraph 22 of the heads of argument with reference
to
Nationwide
Car Rentals (Pty) Ltd v Commissioner, Small Claims Court, Germiston,
and another
1998 (3) SA 568
(W) at page 569.
[16]
At
paragraph 24 of the heads of argument with reference to
Kele
v Trafalgar Garage
1989 (4) SA 1011 (E).
[17]
At paragraph 25 of the heads of argument with reference
to
Smit
v Seleka en Andere
1989 (4) SA 157 (O).
[18]
At paragraph 26 of the heads of argument with reference
to
Baxter,
Administrative Law
,
(Juta, 1984) at pages
542
to 568.
[19]
Da Silva v Pillay NO and another
[1997] 2 All SA 217 (D).