About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2022
>>
[2022] ZALMPPHC 62
|
|
Ramolotja v Motaung and Others (89/22) [2022] ZALMPPHC 62 (25 November 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Rev
case No: 89/22
REPORTABLE:
YES/ NO
OF
INTEREST TO OTHER JUDGES: YES/ NO
REVISED:
NO
In
the matter between:
MALOPE
ABEL RAMOLOTJA APPLICANT
And
JACKEY
TSELANE MOTAUNG FIRST
RESPONDENT
ALL
OTHER ILLEGAL OCCUPANTS OF
ERF
213 BELA-BELA SECOND
RESPONDENT
BELA-BELA
LOCAL MUNICIPALITY THIRD
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant has instituted an eviction application against the
first and second respondents in Bela-Bela
magistrate court. The
respondents appeared in person and have filed opposing papers. The
matter came before magistrate Montane
on 29
th
June 2022,
and he gave the respondents an opportunity to supplement their
opposing papers with oral evidence. After the respondents
have
testified, the applicant did not tender any evidence. The matter was
postponed to 18
th
August 2022 for closing address and
judgment.
[2]
On 18
th
August 2022 the presiding magistrate proceeded to
deliver his judgment by reading his written judgment into record
without giving
the parties an opportunity to address him on the
merits of the matter. It was only in the middle of him delivering his
judgment
that he realised that he had not given the parties an
opportunity to address him on the merits of the matter. At that
moment the
presiding magistrate stopped delivering his judgment and
gave the parties an opportunity to address him on the merits of the
matter.
After the parties have addressed him, the presiding
magistrate sent this matter on special review for guidance and
directions of
how to handle the matter further.
[3]
Section 22(1) of the
Superior
Courts Act
[1]
provides that the grounds upon which the proceedings of any
magistrates’ court may be brought under review before a court
of a Division are (a) absence of jurisdiction on the part of the
court; (b) interest in the cause, bias, malice or corruption on
the
part of the presiding judicial officer; (c) gross irregularity in the
proceedings; and (d) the admission of inadmissible or
incompetent
evidence and the rejection of admissible or competent evidence. This
section in my view, confers the High Court with
inherent jurisdiction
to review proceedings of whatever nature from the lower courts.
[4]
It is trite that High Courts have supervisory powers over the conduct
of proceedings in magistrates’
courts in both civil and
criminal matters, and this include the power to intervene in
unconcluded proceedings. (See
Magistrate,
Stuttenheim
v Mashiya
[2]
).
In the matter at hand, the eviction proceedings were by way of motion
proceedings. In motion proceedings the affidavits of the
parties
serve as evidence, and when the parties appears in court they
normally do not lead oral evidence, but proceed to present
their
arguments on the matter. In this case the respondents were appearing
in person, and in the interest of justice, the presiding
magistrate
gave the respondents an opportunity to augment their opposing papers
with oral evidence. The applicant did not tender
any oral evidence.
[5]
After the evidence was led, the presiding magistrate postponed the
matter to a specific date for the
parties to address him on the
merits of the application and thereafter deliver his judgment.
However, on the date on which the
parties were supposed to address
the court on the merits of the application, the presiding magistrate
proceeded to deliver his
written judgment by reading it into record,
which the presiding magistrate has stated that he intended to hand
copies of that judgment
to the parties after he had read it into
record.
[6]
As I have already pointed out in paragraph 4 above that this was a
motion proceeding, and the parties
were supposed to have first
addressed the court before a judgment was delivered. In this case,
the presiding magistrate came with
a written judgment which was
prepared before the parties could address him on the merits of the
application. In
De
Lange v Smuts NO and Others
[3]
Mokgoro J said:
“
Everyone
has the right to state his or her own case, not because his or her
version is right, and must be accepted, but because,
in evaluating
the cogency of any argument, the arbiter, still a fallible human
being, must be informed about the points of view
of both parties in
order to stand any real chance of coming up with an objectively
justifiable conclusion that is anything more
than a chance.”
[7]
Section 34 of the Constitution provides that everyone has the right
to have any dispute that can be
resolved by the application of law
decided in a fair public hearing before a court or, where
appropriate, another independent and
impartial tribunal or forum. The
presiding magistrate had finalised his written judgment without
having been informed about the
points of view of both parties. The
presiding magistrate only gave the parties an opportunity to address
him during the middle
of delivering of his judgment after he had
realised the irregularity he had committed. The irregularity
committed is so gross to
the extent that the opportunity that was
granted to the parties to address him at that late stage of the
proceedings will not rectify
that irregularity.
[8]
By the time the presiding magistrate gave the parties an opportunity
to address him on the merits of
the application, he had already made
up his mind about the case, and I doubt whether any argument
presented by the parties will
be able to persuade him to rule
otherwise, than what is contained in his written judgment. It is a
gross irregularity to come to
court with a preconceived judgment
before giving the parties an opportunity to address the court on the
matter. What the presiding
magistrate had done, was not only in
contravention of the
audi alteram
rule, but is in conflict
with section 34 of the Constitution. In my view, the hearing was not
held in a fair manner to the parties.
The irregularity committed by
the presiding magistrate is so gross that it taints the whole
proceedings, and they therefore stand
to be reviewed and set aside.
[9]
In the result the following order is made:
9.1
The proceedings before Additional Magistrate Montane M in
abovementioned are hereby reviewed and set aside
in its entirety.
9.2
The matter is referred back to the magistrate court for a hearing
de
novo
before another magistrate.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
I
AGREE
NAUDE
– ODENDAAL J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
Electronically
circulated on 25
th
November 2022
[1]
10
of 2013
[2]
2003
(2) SACR 106
(SCA) at 111c-d
[3]
[1998] ZACC 6
;
1998
(3) SA 785
(CC) at 836A-B