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[2021] ZAGPPHC 57
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South African Securitization Programme (RF) Limited and Others v Specialised Auto Center (Pty) Ltd and Others (16971/18) [2021] ZAGPPHC 57 (26 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE NO: 16971/18
In
the matter between:
SOUTH
AFRICAN SECURITISATION PROGRAMME (RF)
LIMITED
1
ST
APPLICANT/PLAINTIFF
SASFIN
BANK LIMITED
2
ND
APPLICANT/PLAINTIFF
SUNLYN
(PTY)
LTD
3
RD
APPLICANT/PLAINTIFF
and
SPECIALISED
AUTO CENTRE (PTY) LTD
1
ST
RESPONDENT/DEFENDANT
ALBERT
AGEMA
2
ND
RESPONDENT/DEFENDANT
BEUKES,
JACOBUS JOHANNES
3
RD
RESPONDENT/DEFENDANT
BEUKES,
EUGENE TERTIUS
4
TH
RESPONDENT/DEFENDANT
THE
CLERK OF THE MAGISTRATES’
COURT,
PRETORIA CENTRAL
5
TH
RESPONDENT/INTERESTED
PARTY
REASONS JUDGEMENT
LUKHAIMANE
AJ:
1.
This matter is an application for the variation of a court order in
terms of Rule 42(1)(b) of the Rules of Court. The court order was
granted by Justice Molopa-Sethosa on 13 May 2019 in response
to an
application for default judgement against the first and third
respondents.
2.
The court order reads as follows:
“
HAVING HEARD
counsel(s) for the party(ies) and having read the documents filed of
(sic) record
IT IS ORDERED THAT
1.
The matter is removed from the roll, must be
issued at the Magistrate’s Court
2.
No cost order.”
3.
This is the extent of the order.
4.
The transcribed proceedings held on 13 May 2019 are just as brief.
“
COURT
:
Yes
COURT
CLERK
: As
the court pleases, M’Lady. May I refer you to matter 8 on Page
2. The matter of South
African Securitisation versus Specialised …
[Intervened]
COURT
:
Did you see my smile?
Because this seems a matter for the
magistrate’s court.
COURT
CLERK
: I
saw the quantum, M’Lady. As the court pleases, M’Lady.
COURT
:
Mm. So this matter
…[Intervened]
COURT
CLERK
: Is
removed from Your Ladyship’s roll.
COURT
:
Is removed. It must
be taken to the magistrate’s court.
COURT
CLERK
: As
the Court pleases, M’Lady.
COURT
:
No cost, no. Matter
removed, to be taken to be issued in the
magistrate’s court, no costs. …[Vernacular]
COURT ADJOURNS
”
5.
The amounts being claimed against the respondents were R11 694.11
under claim A and R64 134.11 under claim B arising from the
breach of two separate written rental agreements. Only the second
respondent had delivered a notice of intention to defend.
6.
Rule 42(1)(b) states as follows:
“
1. The
court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind
or vary:
…
b.
an order or judgement in which there is an
ambiguity
or
a
patent error
or omission, but only to the extent of
such ambiguity, error or omission; (emphasis added)”
7.
In this regard, the applicant seeks to have the word “issued”
in the order granted by Molopa-Sethosa J amended to “transferred”
as this was a patent error or leads to ambiguity
provided for by Rule
42(1)(b).
8.
The monetary values of the claims are clearly within the jurisdiction
of a magistrate’s court. A full bench decision of this
division, (Nedbank Ltd v Thobejane & Similar Matters 2019(1) SA
594 (GP)) at paragraph 96 states as follows:
“
(1)
To promote access to justice, as from 2 February 2019 civil actions
and/or applications, where
the monetary value claimed is within the
jurisdiction of the magistrates’ courts, should be instituted
in the magistrates’
court having jurisdiction, unless the High
Court has granted leave to ear the matter in the High Court.
(2)
It is declared that a High Court is entitled to transfer a matter
mero motu to another
court, ie magistrates’ court and/or local
provincial divisions, if tis is in the interests of justice to do
so.”
9.
The transcript is clear and so is the intention of Molopa-Sethosa
J.
The words “to be taken” in the transcript were the ones
being clarified with the next part of the sentence “to
be
issued in the magistrate’s court”; hence they do not
appear in the final order. Reference to the transcript bears
this
out, hence the applicants had to come back to court with this
supplication instead of the amendments they sought to effect
with the
Judge’s Registrar.
10.
Further to this, if it was the intention of Molopa-Sethosa J to
transfer the
matter to the magistrate’s court, then the
honourable judge was under an obligation to consider the interests of
justice,
which would have included amongst other things an order as
to costs, given what has transpired in the matter thus far. The
second
respondent has incurred costs in this court defending this
matter, opposing an unnecessary summary judgement and taking
interlocutory
steps against the irregular transfer of this matter to
the magistrate’s court at the behest of the applicants. It is
the
applicant as
dominus litis
who chose the incorrect forum
to institute its action. It cannot be said that Molopa-Sethosa J
would have transferred this matter
to the magistrate’s court,
in the absence of the second respondent who had clearly chosen to
defend the matter and incurred
costs in that regard.
11.
Apart from reliance on the
Nedbank v Thobejane
matter, no case
is made out in terms of Rule 42(1)(b) to illustrate that there was
indeed a patent error, omission or ambiguity.
12.
It was on this basis that the application was dismissed with costs as
the applicant
had failed to illustrate that the court order granted
by Molopa-Sethosa J did not reflect the court’s intention,
M A LUKHAIMANE
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Appearances:
On
behalf of the Applicant
:
Adv C
Cothill
Instructed
by
: Smit
Jones & Pratt Attorneys
On
behalf of the 2
nd
Respondent
: Adv KA
Wilson
Instructed
by
:
Christie Briel Attorneys
Date
of hearing
:
1 December 2020
Date
of judgment
:
26 January 2021