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2024
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[2024] ZAECELLC 9
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Dr V.N v Magistrate Z. Mjali District Court Magistrate EL and Others (EL246/2024) [2024] ZAECELLC 9 (20 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION: EAST LONDON CIRCUIT DIVISION)
CASE
NO: EL246/2024
In
the matter between:
DR
V. N
APPLICANT
and
MAGISTRATE
Z. MJALI, DISTRICT COURT
MAGISTRATE,
EL
1
ST
RESPONDENT
I.T.N
2
ND
RESPONDENT
MINISTER
OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT
3
RD
RESPONDENT
JUDGMENT
NORMAN
J:
[1]
This
is the return day of the Rule Nisi . On 14 February 2024 the
applicant sought and was granted on an urgent basis the
following
Order:
“
1.
A rule nisi do hereby issue calling upon the first, second and third
respondent to show cause, if any, on 05 March 2024 why the
following
order should not be made final :
1.1
The
applicant’s non – compliance with the Uniform Rules of
Court, the deviation with/ from the forms and service provided
for
the Rules be condoned and directing that the matter be heard as an
urgent matter as envisaged in Rule 6 (12) of this Court’s
Rules.
1.2
The
execution of the garnishee order granted by the first
respondent, Magistrate Z Mjali on 6 February 2024 be stayed
pending the outcome of the review proceeding instituted as Part B of
the application.
2.
The
relief set out in prayer 1.2 above shall operate as an interim
interdict pending the finalization of Part A and/ or B of this
application.”
[2]
The
parties are divorced. The applicant is a specialist plastic surgeon.
The parties have three children. Two of the children are
at boarding
school in one of the affluent catholic schools in Makhanda. The
applicant is responsible for their boarding and school
fees. The
first and third respondent decided to abide the decision of the
court. The second respondent opposed the application.
[3]
What
grounds the application was a garnishee order issued by the
Magistrate sitting in the district court in East London on 6 February
2024 in the amount of R80 000.00 from the salary of the
applicant with effect from 1 March 2024. The applicant
brought
the application in two parts where in Part A he sought an order to
stay the execution of the garnishee order pending finalization
of the
review application in Part B. The stay of the execution is premised
on two grounds , namely , that the amount of garnishee
of
R80 000.00 exceeds his income of R78 000.00 and would leave
him with no means at all to sustain himself. The
second ground
is that the magistrate who granted the order had recused herself from
a maintenance enquiry involving the parties
as a result of a
complaint raised by the applicant against her which was informed by
her conduct and utterances made during the
maintenance enquiry.
As a result thereof the applicant believed that she was biased in
favour of the second respondent and
through her attorneys requested
the Chief Magistrate to intervene. The magistrate recused herself
from the matter when the complaint
was raised with the Chief
Magistrate. The applicant contends that the magistrate should not
have presided over the maintenance
enquiry and grant the impugned
order due to her attitude displayed when she recused herself.
[4]
I
hasten to state that the applicant has now realized that Part B of
the application cannot be heard by a single Judge, in terms
of the
Joint Rules of this Division which provides that : Two
Judges will hear reviews from the Magistrate’s
Court.
[1]
Mr Skoti who appeared for the applicant also conceded that at the
time of filing of the application the applicant was not aware
of that
rule and that he was intending to bring an application for the
transfer of the application to Makhanda inorder to comply
with both
Rules 19 (b) (ii) and 18(c)
[2]
.
[5]
Mr
Nzuzo who appeared for the second respondent submitted that the court
must dismiss the application on that basis. Having made
that
submission he submitted that this Court has jurisdiction to entertain
Part A because it relates to the stay of the execution
of the order.
The second respondent delivered a notice in terms of Rule 6 (8)
seeking to anticipate the return date. She
also brought an
application to rescind the rule nisi. She contended that the
application was brought
ex parte
as she only became aware of
the application a few minutes before the court heard it. The
anticipation served before Zono AJ on
20 February 2024. He
removed the matter from the roll and directed that it should remain
on the roll of 05 March 2024.
One of the findings of the court
was that the second respondent was served prior to the urgent
application being heard . The court
also found
, inter alia
,
that on that basis Rule 6 (8) was not available to the second
respondent because the application was not an
ex parte
application and the order was not granted
ex parte
. She
contends that she was seriously prejudiced by the granting of the
interim relief because her children will suffer as the applicant
will
not pay their school fees. The second ground is that the applicant
earns more that what he receives as his salary . She contends
that
his total income was found by the magistrate who presided over the
enquiry to be R138 409.61. On this basis , Mr
Nzuzo
submitted that this court must discharge the rule to curb
prejudice to the childen. Mr Skoti submitted that the applicant
was
not seeking a final order due to the fact that the applicant was
going to bring an application for the transfer of the matter
to
Makhanda. The applicant was seeking an extension of the Rule pending
filing of that application. Mr Nzuzo persisted that
the court
should discharge the Rule Nisi.
[6]
Mr
Nzuzo submitted that the applicant failed to satisfy the
requirements for an interdict as laid down in Setlogelo v
Setlogelo
[3]
. He submitted that
the applicant must show that he has good prospects of success in the
review. In this regard he relied on
Eriksen Motors ( Welkom)
Ltd v Protea Motors , Warrenton
[4]
.
He submitted that in determining a prima facie right this court
must not only look at the applicant’s allegations
but also at
the respondent’s affidavits as set out in Webster v Mitchell
[5]
. He argued that the applicant failed to satisfy the
requirements for an interdict.
Discussion
[7]
The
allegations made by the applicant that at the time the garnishee
order was issued by the magistrate he had paid the arrears
due to the
school have not been controverted by the second respondent. The
applicant had conceded that at some point he fell
behind with
payments due to matters such as Covid 19. Infact the second
respondent attached statements from the school which
reflected that ,
for example, on 06 December 2023 an amount of R245 000.00
was paid to the school.
It also reflects an amount
of R110 000.00 was paid in January 2024. Both
parties contend that payment of
fees is the applicant’s
responsibility. These payments are not consistent with a parent who
is recalcitrant. It is
therefore incorrect to suggest that
because one is a parent one has no right to challenge a garnishee
order. This is an order made
against his salary and he contends that
it was not an issue that was before the magistrate. That is a matter
for the review court
to consider once it has had regard to the entire
record.
[8]
In
National
Treasury v Opposition to Urban Tolling
Alliance
[6]
, the Constitutional Court held that the test on interdicts
must be applied cognizant of the normative scheme and democratic
principles that underpin the Constitution. Having considered the
status of the children’s fees at this point and the rights
of
the applicant in relation to the garnishee order I am satisfied that
the interim order does not trump the interests of the children.
[9]
The
applicant in the review relies on bias on the part of the
magistrate, particularly on the fact that she had recused herself
previously from the maintenance enquiry involving the parties. The
second respondent confirms that the magistrate did recuse
herself
from their maintenance enquiry. That fact alone suggests that there
may be merit in the review and it is not hopeless.
[10]
For
all the above reasons the application by the second respondent to
have the rule discharged must fail. This matter involves
children and it is for that reason that it must be dealt with by the
parties urgently so as to enable a speedy determination of
the
issues.
[11]
I
accordingly make the following Order :
1.
The
application for the discharge of the Rule Nisi is refused.
2.
The
Rule Nisi is extended to 16 April 2024.
3.
The
applicant is directed to bring the contemplated application for the
transfer of the application to Makhanda High Court within
two weeks
hereof.
4.
The
costs of this application shall be costs in the review application.
T.V.
NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
FOR
THE APPLICANT :
ADV SIKOTI
Instructed
by :
V. FUNANI INC.
c/o
MS GINYA INC.
LANCASTER
ROAD
VINCENT
EAST
LONDON
REF:
NOGAGA
TEL:
083 538 8545
For
the 2
ND
RESPONDENT:
ADV NZUZO
Instructed
by :
MASETI INC.
NO.12
BELL ROAD
VINCENT
EAST
LONDON
TEL:
043 726 7442
REF:
PLCM/msb/MEL4644
Matter
Heard on
:
19 March 2024
Judgment
Delivered on :
20 March 2024
[1]
Joint
Rules of Practice for the High Court of the Eastrn Cape Province
Rule 19 (b) (ii)
[2]
Rule
18 (c ) of the Joint Rules provides that : “ No application
opposed or unopposed may be enrolled for hearing in the
East London
Circuit Local Division where a quorum of two or more judges will be
required.
[3]
S
etlogelo
v Setlogelo
1914 AD 221
at 227
[4]
1973 (3) SA 685
and also Marinpine Transport ( Pty )
Ltd v Local Road Transportation Board , Pietermaritzburg
1984
(1) SA 213
(N) at 234 C.
[5]
1948
(1) SA 1186
(W) at 1189
[6]
OUTA
2012 (6) SA 223
( CC) at 231 C-E