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2022
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[2022] ZAFSHC 228
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Gebhardt N.O. and Another v Nicolaas Kotze Boerdery CC and Another In re: Nicolaas Kotze Boerdery CC v Gebhardt N.O. and Another (3049/2021) [2022] ZAFSHC 228 (27 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No: 3049/2021
In
the matter between:
JACOBUS
JOHANNES GEBHARDT N.O.
First Applicant
HENDRINA
JOHANNES GEBHARDT N.O.
Second Applicant
and
NICOLAAS
KOTZE BOERDERY CC
First Respondent
MAGISTRATE
MATLOU EZEKIEL
Second Respondent
In
re:
NICOLAAS
KOTZE BOERDERY CC
Plaintiff
and
JACOBUS
JOHANESS GEBHARDT N.O.
First Defendant
HENDRINA
MARIA EDWARD GEBHARDT N.O.
Second Defendant
CORAM:
REINDERS, ADJP
et
ZIETSMAN, AJ
HEARD
ON:
25 JULY 2022
DELIVERED
ON:
27 JULY 2022
JUDGMENT
BY:
REINDERS, ADJP
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand-down are deemed to be 14:00 on 27 July 2022.
[1]
The applicants are the defendants in the Frankfort Magistrate’s
Court where
the first respondent has instituted an action against
them under case number 308/2019.
[2]
The applicants defended the action and filed a plea thereto.
Simultaneously a counter-claim
was filed. The matter has not been
concluded and is pending before the second respondent who is cited in
his official capacity
as the presiding magistrate.
[3]
Ostensibly a pre-trial conference was held between the parties, but
when the matter
was to proceed the applicants in terms of Magistrate
Court Rule 29(4) requested the second respondent to order a
separation of
issues in that the applicants wanted the magistrate to
make a ruling on claims 2 and 3 of first respondent’s
particulars
of claim which in short boiled down thereto that those
claims were not contractually permitted and should be dismissed at
that
stage and for that reason.
[4]
The matter was postponed by the magistrate and the parties filed
heads of argument.
The magistrate on 27 May 2021 made the following
orders:
“
1).
Plaintiff is granted leave to proceed with claims 2 and 3.
2).
Trial to proceed on merits and quantum as agreed at the parties’
pre-trial conference (par 9)
and
3).
Costs in favour of the plaintiff including counsel’s costs
occasioned by the postponement.”
[5]
Aggrieved with this ruling the applicants embarked on review
proceedings in terms
of Rule 53 of the Uniform Rules for an order as
set out in the notice of motion:
“
1.
Reviewing and setting aside the decision of the Second Respondent
dated 27 May 2021 under case number
308/2019, which was granted
against the First and Second Applicants in the Magistrates’
(
sic)
Court
for the Magisterial district of Frankfort;
2.
That the Second Respondents’
(sic)
decision be
substituted with the following order:
2.1
Claims 2 and 3 of the
Plaintiff are dismissed with costs.
3.
That the costs of this review be granted against any Respondent
opposing this application;
...”
[6]
I have difficulty in understanding how the magistrate’s order
was an order which
constitutes a “gross irregularity” in
that he “refused to dismiss the claims” as averred by the
applicants.
On the contrary, the order of the magistrate did not
dispose of the disputes in respect of claims 2 and 3 of the action
pending
before him and therefore is not an order granted against the
applicants as averred. The magistrate made no finding in respect of
those two claims which by any stretch of the imagination can be
considered to have been disposed of or finalized. It merely stated
that the first respondent can proceed with those two claims and the
magistrate found that the action is to proceed on the basis
as agreed
at the parties’ pre-trial conference. The magistrate will
ultimately still have to conclude or adjudicate claims
2 and 3 and
therefore has to adjudicate the legal points the applicants wish to
raise. This has not been done yet. Should the magistrate
ultimately
agree with the applicants, those claims of the first respondent will
be dismissed. It might even be that those claims
are dismissed on
other grounds – the point being that the magistrate must still
decide those issues and has not done so yet.
What the applicants
therefore wish to attain through this process is to have this Court
to adjudicate the legal points whilst the
magistrate has not done so
yet and at a time when it is the magistrate who is clothed with the
jurisdiction to do so. I need not
say more in this respect.
[7]
It is trite that it is undesirable and a High Court will not by way
of entertaining
an application for review interfere with incomplete
proceedings in a lower court. Obviously the High Court has such
power. It is
however to be exercised sparingly. When a High Court
does so it will use its power in rare cases where grave injustice
might otherwise
result or where justice might not by other means be
attained.
See:
Motata v Nair
N.O. and Another
2009 (2) SA 575
(T)
at 578 and the
authorities referred to therein.
[8]
This matter is certainly not the rarest of cases. The applicants did
not except to
the particulars of claim in respect of claims 2 and 3
as they were entitled to do. On the contrary, they filed pleas in
this respect.
The magistrate has made no final ruling and might
(without me expressing any opinion thereon) ultimately still find in
favour of
the applicants. There is no basis upon which I deem it fit
to review and set aside the order made by the magistrate on 27 May
2021.
There is no reason to deviate from the usual order that cost
should follow the successful party.
[9]
Consequently I make the following order:
The application is
dismissed with costs.
C.
REINDERS, ADJP
I
concur.
P.ZIETSMAN,
AJ
On
behalf of the applicants:
Adv
NMA Muller
Instructed
by:
Corne
Boshoff Attorneys
c/o
Phatshoane Henney Inc.
BLOEMFONTEIN
On
behalf of the first respondent:
Adv AM Jardine
Instructed
by:
Naude
Attorneys
c/o
Bezuidenhouts Inc
BLOEMFONTEIN