Diamond Hill Trading 97 CC t/a The Fish and Chips Co and Another v Regional Magistrate Sihlahla: Mthatha and Another (1829/2019) [2021] ZAECMHC 9 (4 March 2021)

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[2021] ZAECMHC 9
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Diamond Hill Trading 97 CC t/a The Fish and Chips Co and Another v Regional Magistrate Sihlahla: Mthatha and Another (1829/2019) [2021] ZAECMHC 9 (4 March 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE LOCAL
DIVISION: MTHATHA]
CASE NO. 1829/2019
In
the matter between:
DIAMOND HILL TRADING
97 CC
t/a
THE FISH AND CHIPS
CO.

1
st
Applicant
OLUGBENGA
JONH AKINBOHUN

2
nd
Applicant
And
REGIONAL
MAGISTRATE SIHLAHLA: MTHATHA

1
st
Respondent
ARNOLD
PROPERTIES (PTY) LTD

2
nd
Respondent
JUDGMENT
JOLWANA J
[1] The applicants seek
the review and setting aside of the decision or order of the
magistrate for the regional court, Mthatha
made on 10 April 2019 in
case no. EC/MTHA/RC/97/2014.  The presiding magistrate issued a
punitive costs order against the
applicants consequent upon the
postponement of the trial which had been set down to commence on that
day between the applicants
who are the defendants in those
proceedings and the second respondent which is the plaintiff.
It is that costs order that
is sought to be reviewed and set aside on
the basis that the court a quo committed gross irregularity when it
made the order.
Only the second respondent opposes this
application and has filed opposing papers, the first respondent
having not participated
at all.
[2]
The applicant approached this Court in terms of rule 53(1)(a) and (b)
of the Uniform Rules of Court
[1]
read with
section 22(1)(c)
of the
Superior Courts Act 10 of 2013
.
[2]
The alleged grounds for the review application are that the first
respondent exercised his judicial discretion in granting
the costs
order against the applicants improperly and capriciously, and that
the costs order itself constitutes a fundamental error
of law.
The applicants further allege that the order was made without the
presiding officer having applied his mind to the
relevant issues and
the material before him.  In exercising his discretion in those
circumstances and in the manner he did,
so contend the applicants,
the first respondent allowed himself to be influenced by gratuitous
accusations against the applicants
made by the second respondent’s
legal representative from the bar.  The upshot of all of this is
that that exercise
of judicial discretion by the first respondent,
was, in all those circumstances, grossly irregular and so
unreasonable and improper
that no reasonable judicial officer could
have exercised it in that manner.
[3] The issues raised by
the applicants arose in the context of a pending case between the
applicants and the second respondent
in the regional court Mthatha in
respect of case no. EC/MTHA/RC/97/2014.  That matter was set
down by the respondent for trial
for 10
th
April 2019.
The relevant notice of set down was served on applicants’
attorneys on 27 February 2019 and filed of record
with the registrar
on 28 February 2019.  The applicants promptly started their
preparations for trial.  They also, on
26 March 2019, filed a
request to the registrar for a pre-trial conference to take place
before the commencement of the trial in
terms of
rule 25(1)
and (2)
of the magistrates’ court rules read with section 54(1) of the
Magistrates Court Act 32 of 1944
[4] Rule 25 reads:
(1)
The request in writing referred to in
section 54(1) of the Act shall be made in duplicate to the registrar
or clerk of the court
requesting the court to call a pre-trial
conference and shall indicate generally the matters, which it is
desired should be considered
at such conference.
(2)
The registrar or clerk of the court shall
place a request referred to in subrule (1) before a judicial officer
who shall, if he
or she decides to call a conference, direct the
registrar or clerk of the court to issue the necessary process.
(3)
The process for requiring the attendance of
parties’ legal representatives at a pre-trial conference shall
be by letter signed
by the registrar or clerk of the court together
with a copy of the request, if any, referred to in subrule (1), which
letter shall
be delivered by hand or registered post at least 10 days
prior to the date fixed for the said conference.”
[5] The applicants’
attorneys followed up their rule 25(1) request for a pre-trial
conference telephonically with a registry
staff member Ms Lukas
bringing to her attention the provisions of rule 25(2).  They
were advised by Ms Lukas to ask their
local correspondents JA Le Roux
Attorneys to attend to the registry with the pre-trial conference
request for the apparent purposes
of taking the court file to the
presiding judicial officer in compliance with rule 25(2).
[6] Furthermore, the
relevant practice note applicable in the regional court provides that
all civil case files must reach a judicial
officer at least 6 days
before the date of the hearing.  It was therefore, so contend
the applicants, important that they
take the steps that they did to
ensure that the trial would proceed on 10 April 2019 as scheduled.
Their intention was that
before the trial commenced, there would be a
pre-trial conference hence their cautious steps of ensuring not only
that they complied
with rule 25 but also that the said rule was
complied with by the office of the registrar.  They also set
down special pleas
that would also need to be dealt with on 10 April
2019.
[7] On or about 5 April
2019 the applicants’ attorneys made enquiries to the registrar
and were told that the matter was not
enrolled for the 10 April
2019.  The reason they were given was that there was no notice
of set down of the trial for that
day.  On 8 April 2019 the
applicants’ attorneys received correspondence from their local
correspondent attorneys to
the effect that they would not be able to
attend court on 10 April 2019 because of other commitments and
requested the applicants’
attorneys to make other arrangements
for court attendance.  This development prompted them to request
their correspondent
attorneys to formally withdraw as their local
correspondents so that they could appoint alternative correspondents
to attend court
on 10 April 2019.
[8] Their understanding
was that in any event the matter would not proceed on 10 April 2019
because the matter was not on the roll
according to what they were
told at the registrar’s office on 5 April 2019.  To then
travel to Mthatha from their offices
in Welkom to attend a trial they
had been informed was not on the roll did not make sense to them.
On a previous occasion
on 16 May 2018 the matter could not proceed
because of the failure of the second respondent or its attorneys to
properly index
and paginate the court file.  On that occasion
the applicants and their legal representatives including counsel had
attended
court and were ready for the hearing of the matter which did
not proceed.
[9] On 09 April 2019 JA
Le Roux Attorneys withdrew as the applicants’ attorneys’
local correspondents and on 10 April
2019 Luzipho Attorneys came on
record as their correspondent attorneys.  Even before they came
on record formally Luzipho
Attorneys were requested on 9 April 2019
and indeed they attended court to confirm if the matter was on the
roll for the 10
th
April 2019 or not.  It was
confirmed to Mr Luzipho that the matter was not on the roll.  On
10 April 2019 Mr Luzipho
attended court and found the second
respondent’s legal representatives in court.  The second
respondent’s attorneys
had, on discovering that the matter was
not on the roll, gone to see the first respondent and showed him a
notice of set down bearing
the registrar’s date stamp in
confirmation of filing.  The file was for the first time,
brought to the first respondent
on the date of the hearing.  The
first respondent first dealt with matters that appeared on the roll
and ultimatey the matter
between the applicants and the second
respondent was called.  Mr Luzipho was present obviously in his
capacity as the local
correspondent of the applicants’
attorneys.
[10] The applicants point
out that the first respondent, due to no fault of his own, had not
read the file in preparation for the
hearing of the matter.  It
was the fault of the registrar’s office that the notice of set
down which had clearly been
filed, was not placed in the court file.
The applicants also allege that the second respondent’s
attorneys should have
ensured that the notice of set down found its
way into the court file.  Furthermore, the registrar ought to
have complied
with the peremptory provisions of rule 25(2) as she had
been requested to do so by the applicants’ attorneys some
twelve
days earlier.
[11] Essentially, the
applicants make three central contentions on which they impugn as
being grossly irregular the conduct of the
first respondent when he
made the costs order that is sought to be reviewed and set aside.
First, they contend that the matter
was not properly or at all before
the first respondent.  This was illustrated by the fact that he
had not read the court file
as it had not been brought to him
timeously.  In this regard they argue that a matter cannot be
said to be on the roll or
properly before court only on the basis of
a notice of set down that bears both proof of service with the
opponents and proof of
filing with the registrar.  The delivery
of a notice of trial provided for in rule 22 is the placing of the
notice of set
down in the court file and as this did not happen the
notice of set down for the 10 April 2019 was not delivered, so went
the submission.
[12]
Second, the applicants submit that the first respondent, instead of
exercising his judicial discretion referred to in rule
33(1)
[3]
properly, he merely rubber stamped the argument made by second
respondent’s counsel.  In essence the second respondent’s

counsel had argued that costs should be paid by the applicants on an
attorney and client scale as provided for in the contract
between the
parties.  The said contract was and still is the subject matter
of the lis between the parties still to be ventilated
during trial.
[13]
Third, the first respondent acted contrary to rule 33(3)
[4]
,
in ordering the second respondent’s bill of costs to be taxed
and paid immediately, only because the second respondent’s

legal representatives had asked for that relief.  The
applicants’ contention in this regard is that the first
respondent
should have found that it was the registrar and the second
respondent who were to blame for the matter not being on the roll of

the 10
th
April 2019.  Had he made this finding he would not have made an
adverse costs order against them.
[14] They further
submitted that it would be a travesty of justice or even judicial
misconduct for any judicial officer to continue
with a trial of such
magnitude which needed thorough preparation without reading the
pleadings in the court file.  In those
circumstances court
attendance by the applicants would have aided and abated the said
injustice.  They would have applied
for and insisted on the
recusal of the first respondent were he to insist on presiding and
continuing with the trial when he had
had no time to read the file
contents.  They, as the applicants, were not to blame in a
manner that justified any costs order
against them.  This
therefore, so went the submission, flouted the fundamental principle
that costs should be ordered against
a party either seeking
indulgence or the one bearing the blame for the postponement as
provided for in rule 33(1).
[15]
A record in terms of rule 53 of the Uniform Rules of Court was filed
consisting of basically the entire contents of the court
file of the
regional court with most or all of the pleadings, notices as well as
other documents and the transcribed record of
the proceedings of 10
April 2019.  On receipt of the transcribed record the applicants
filed a supplementary affidavit in
terms of rule 53(4)
[5]
in augmentation of the averments contained in the founding affidavit.
[16] In their
supplementary affidavit, the applicants point out with reference to
the record that the presiding magistrate said
that he was not ready
to deal with the matter because he had not read the file in
preparation for the hearing on that day.
On this basis, even if
they were present and in attendance in court, that would not have
changed the fact that the court was not
ready to deal with the
matter.  Secondly because of the ineptitude of the registry
staff in that court which the first respondent
referred to on record
the first respondent had not read the pleadings.  This was
because the notice of set down was not placed
in the court file.
For this reason, even if the applicants were in court, nothing would
have changed and the presence in
court of the second respondent did
not alter the position in which the court found itself.  By the
same token court attendance
by the applicants and their legal
representative would not have changed this situation.
[17] The applicants
contend that on the face of the situation for which they were not to
blame and based on the second respondent’s
counsel’s
gratuitous accusations made from the bar, the first respondent, not
only made an unjustified order that costs must
be borne by the
applicants but mulcted them with costs on an attorney and own client
scale with no factual or legal basis.
Their presence on that
day would not have made a difference and it is unclear why it was
said that they should have been there.
They ask, they should
have been there to do what when the matter would have been postponed
for the reasons already mentioned in
any event.  The applicants
further make the point that they deserved all the praise for acting
responsibly in ascertaining
whether or not the matter was on the roll
for that day and once advised that it was not, for asking a local
attorney to verify
if indeed the matter was not on the roll.
[18]
In its answering affidavit deposed to by the second respondent’s
attorney of record the second respondent contends that
the first
respondent exercised his discretion judiciously in light of the
background of how the matter was set down for trial.
First, the
second respondent, as plaintiff had set the matter down for trial by
serving and filing a notice of set down in compliance
with rule 22 of
the magistrates’ court rules.
[6]
The notice of set down was served on the applicants’ local
correspondents on 27 February 2019 and filed at court on
28 February
2019.
[19] The applicants as
defendants served two significant notices, one setting the matter
down for a pre-trial conference which the
applicants wanted held on
the day of the trial before the commencement of the trial.  The
second notice was a notice in terms
of which the applicants
themselves set down separated issues for determination at the trial.
The above facts are common cause
and are also adumbrated in the
applicants’ founding affidavit in these proceedings.
[20] On the day of the
trial neither the applicants nor their attorneys attended court.
However, Mr Luzipho, their new correspondent
attorney after the
withdrawal of JA Le Roux attorneys attended court and in addressing
court, indicated that he was the applicants’
attorneys’
correspondent attorney.  It was apparent that he had limited
instructions armed with nothing more than his
letter of appointment
and a notice of acting.  His instructions were merely to argue
that the matter was not properly before
court and he had not yet, for
obvious reasons, been placed in a position to run the trial nor could
he deal with the issues set
down by his instructing attorneys
themselves, namely the pre-trial conference and the special pleas.
[21] In this regard the
second respondent makes reference to the transcribed record in which
Mr Luzipho’s submissions in court
are reflected.  In those
submissions Mr Luzipho argued that the matter was not properly before
court and this is obviously
the issue that he required the court to
rule on.  He had obviously been instructed to persuade the court
that for various
reasons the matter ought not be heard as it was not
properly before court.  In his submissions he was careful to
point out
that he was not asking for the adjournment of the matter as
in his views there was nothing to adjourn.  It follows by
operation
of logic that the court could rule in one of two ways.
First, that indeed the matter was not properly before court and on

that basis, refuse to hear it.  Second, the court could rule
against those submissions and decide to hear the matter despite
the
fact that its own rules may not have been compiled with in every
detail.  It is unclear what the applicants’ intentions
or
plans were in the event that the court ruled against Mr Luzipho’s
submissions and therefore against the applicants as
it was entitled
to do.
[22] Quite surprisingly
the applicants, in their replying affidavit have submitted that it is
false to say that Mr Luzipho was instructed
to apply for an
adjournment on the basis that if the matter is not on the roll there
was no reason to apply for an adjournment.
This begs the
question why was Mr Luzipho there making the submissions that he
made.  It might very well be that Mr
Luzipho was not there to
apply for an adjournment because in their view there was no reason
for that. However, the court thought
differently.  Mr Luzipho
took some time arguing, trying to convince the court that because of
various reasons which he articulated
the matter was not on the roll.
The court debated the matter with Mr Luzipho at length about all the
aspects pertaining to
the main issue of whether or not the matter was
properly before court.  The court ruled that the matter was
properly before
it.  The basis on which the decision of the
court on a matter that both parties debated before it extensively
could be said
to be a gross irregularity escapes me.
[23] It was common cause
that the second respondent had served and filed the notice of set
down.  What had not happened was
that the clerk of the court had
not placed the said notice of set down in the court file.  The
applicants’ attorneys
knew about the date for the hearing of
the matter and confirmed in writing that they had received the notice
of set down served
on them by the second respondent’s
attorneys.  They themselves had also set down a pre-trial
conference for that day
to take place before the trial commenced
together with special pleas which also needed to be dealt with by the
court.  None
of that could take place because the applicants
were not there.
[24] In their heads of
argument the applicants have quoted the first respondent’s
remarks that were made on record in dealing
with the matter in which
the court said:
“
I
am very much worried because I wish the court was ready with this
matter the court would make a different ruling to what the court
is
going to make.  The court believes that it has to be ready with
the case so that if there are some issues that are dealt
with or are
ventilated, the court would be very much
au
fait
with that”
[25] It appears that on
the basis of this remark the applicants contend that whether or not
the applicants and the second respondent
were in attendance on the 10
April 2019 was immaterial.  This is because their presence would
not have changed the fact that
because the notice of set down had not
been placed in the court file by the registrar the magistrate had not
read the bulky file,
nor prepared for trial.  Therefore, so
submit the applicants, it was grossly unfair for the court and an
inappropriate exercise
of its judicial discretion to make an adverse
costs order against the applicants in circumstances in which the
magistrate himself
had not read the file.
[26] In framing their
case as they have done the applicants have unfortunately been
selective with regard to the first respondent’s
remarks.
For instance the first respondent also said that because the second
respondent and its attorneys were not aware
about the fact that there
was a problem of the registrar who had not taken the file to the
magistrate they were before court and
there was a witness that had
come to give evidence.  The court further made it clear that the
issue of the notice of set down
not being in the court file resulting
in the court not having read the file was caused by the clerk of the
court.  He then
concluded that in his view the matter was
properly before him despite the fact that he had not read the file.
The magistrate
went on to say that despite all of that he was
prepared to proceed with the matter even if just to hear the evidence
of the witness
who was available.  He could not do so not
because he had not read the pleadings but because the applicants had
elected not
to come to court, after discovering and getting
confirmation that the matter was not on the roll.
[27] They first made this
discovery that the office of the registrar had not placed the notice
if set down in the court file which
had evidently been filed after
which they sought and received confirmation from the clerk of the
court that the matter was not
on the roll.  Having sought and
received confirmation that there was this problem they did not bring
this discovery to their
opponents’ attention.  This is
important because that date had been reluctantly accepted by the
applicants’ attorney
as it did not suit them.  Second the
notice of set down had been served with the requisite acknowledgement
of receipt by them
and therefore service of the notice of set down as
between the parties was not in issue.  Third, it was common
cause that
the notice of set down had been filed with the clerk of
the court and had been date stamped.  Fourth, the applicants
themselves
had served and filed a notice pertaining to a pre-trial
conference that they required to be dealt with first before the
commencement
of the trial as well as special pleas.
[28] In my view there was
nothing more in terms of the rules that the second respondent’s
attorneys needed to do in order
to ensure that the matter was brought
to the attention of the presiding officer.  In fact the whole
issue of the notice of
set down, having been served and filed, but
not having been placed in the court file was clearly a failure on the
part of the office
of the registrar and not anything done or not done
by the second respondent.
[29] I feel that it is
necessary to say that there are some troubling aspects in how the
applicants’ attorneys dealt with
this matter a few days before
the date of the hearing.  First, they are the ones who
discovered that the matter did not appear
on the roll and sought and
obtained confirmation that the matter was not on the roll.  They
failed to communicate this information
to their opponents for no
apparent or discernible reason.  Second, it cannot be ignored
that a few days before trial, they
were told by their erstwhile
correspondent attorneys that they would not be able to assist them
with the matter on the date of
the trial.  The applicants’
attorneys asked their erstwhile correspondent attorneys to serve and
file a notice of withdrawal
so that they could appoint new
correspondent attorneys and this was done.
[30] Mr Luzipho’s
inability to be ready for trial on that day, though clearly available
was, it appears, because he had not
yet been furnished with the file
by the applicants’ erstwhile correspondent attorneys or had an
opportunity to familiarise
himself with the matter.  The
applicants’ attorneys who elected not to inform the second
respondent’s attorneys
that the matter was not on the roll
clearly had some difficulties after being dropped on the eleventh
hour by their correspondent
attorneys.  If, regardless of
whether or not their correspondent attorneys were available, they had
intended to come themselves,
it is difficult to understand why they
did not come.  They, at the very least, could and should have
ascertained what posture
their counterparts were taking in light of
the fact that the matter did not appear to be on the roll.  It
is even more difficult
to understand why they did not communicate
their intention not to come to their opponents.  The second
respondent’s
attorneys had earlier, in writing, warned them
that their client would attend court on the 10
th
April
2019 and that if the applicants did not attend, they would apply for
a default judgment.
[31] The trial readiness
of the presiding judicial officer is always ideal and its value
should never been underestimated especially
in a complex matter.
However, the suggestion that where a court file has just been placed
before the presiding judicial officer
who has not had time to go
through the pleadings, that on its own must result in the matter not
proceeding, is a foreign concept
in our procedural law.  It is
not only foreign but also inimical to the speedy finalisation of
court cases for matters that
are otherwise properly set down.
The reality is that the fact that the court file is timeously placed
before a magistrate
does not necessarily mean that he has in fact
prepared for trial and has had time to read the pleadings.  It
is precisely
for this reason that it happens sometimes that the
matter starts later than expected because the presiding officer needs
time to
read the pleadings.  Whether or not the trial will
actually proceed does not always depend on whether the procedural
rules
have been fully complied with.  Sometimes they are merely
substantially compiled with.  It is the presiding officer who

determines what must happen after hearing the parties.
[32]
The real issue in this application is whether it was grossly
irregular for the magistrate to make an adverse costs order against

the applicants.  The award of costs as well as the scale thereof
is all purely and primarily a matter for the discretion of
the court
which must determine the appropriate costs to be awarded and whether
or not in fact any costs should be awarded against
any of the
parties.  The legal position in this regard has been stated and
restated with consistency by our costs over time.
In
Beinash
[7]
the
court stated the legal position as follows:
“
The
issue as to what orders of costs would be appropriate in the
circumstances of any particular case falls primarily within the

discretion of the Court of first instance.  It is trite law that
this Court on appeal will not interfere with a costs order
made by
such a Court unless it has failed to exercise a proper judicial
discretion.”
[33]
The question of how this discretion is to be exercised has received
even the attention of the Constitutional Court.  In
Ferreira
[8]
Ackerman
J had this to say:
“
The
Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first
being that
the award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer, and
the second that the
successful partly should, as a general rule, have his or her costs.
Even this second principle is subject
to the first.  The second
principle is subject to a large number of exceptions where the
successful party is deprived of his
or her costs.  Without
either attempting comprehensiveness or complete analytical accuracy,
depriving successful parties of
their costs can depend on
circumstances such as, for example, the conduct of parties, the
conduct of their legal representatives,
whether a party achieves
technical success only, the nature of the litigants and the nature of
the proceedings.” (Footnotes
have been omitted).
[34] These principles are
in my view all generally applicable and have been applied across the
whole spectrum of litigation.
The overriding principle is that
the award of costs is a matter for determination by the court of
first instance.  The review
court has very limited powers to
interfere with the judicial exercise of the discretion by the court
of first instance especially
on costs.  In this case the
applicants and indeed their attorneys have been unnecessarily
pedantic and sought to point fingers
at the door of the presiding
officer accusing him of not exercising his discretion or improperly
exercising it.  In the process
they failed to take
responsibility for their own conduct and for their wrong decision to
not come to court ready for trial when
in fact they should have done
so.
[35] Once a notice of set
down is served technical procedural non-compliances are dealt with in
court and not unilaterally by a
party deciding to ignore the notice
of set down because of some or other procedural shortcomings.
Furthermore, and even if
the matter would not have proceeded
regardless of their presence as they contend, it was still up to the
presiding judicial officer
to determine how costs should be dealt
with.  The reason for the matter not proceeding plays a hugely
significant role in
determining how costs should be awarded.  In
this regard the court
a quo
made it clear that it would have
proceeded to hear the matter as it was entitled to do so.  It
was precisely because it was,
according to the magistrate, the
ineptitude in the registrar’s office that he decided that he
was going to hear the matter.
This would have ensured the
litigants were not inconvenienced because of an administrative
failure in the office of the registrar.
[36] In this case, there
is no basis for this Court to interfere with the exercise of the
discretion by the presiding officer.
The fact of the matter is
that despite the predicament in which the magistrate found himself in
in not being familiar with the
pleadings, he was nonetheless
prepared, in the interests of justice to hear the matter.  The
only reason he could not hear
the matter was not because he had not
read the pleadings and familiarised himself with them.  It was
only because the applicants
did not come to court despite having been
served with a notice of set down.  In deciding not to come to
court they failed
to establish what their opponents’ attitude
was in light of their discovery that the matter was not on the roll.
This
conduct on the part of the applicants’ attorneys was
discourteous in the extreme and was done regardless of the
inconvenience
it caused to the court.  The magistrate must be
commended for not seeking to refuse to hear the matter because of a
fault
that was not attributable to any of the parties but of the
clerk of the court.  He took a pragmatic decision that in his
discretion
the matter could proceed but for the absence of the
applicants and their legal representatives.  This informed,
quite correctly,
his decision on how costs should be awarded.
[37] In the result the
following order shall issue:
1. The application is
dismissed with costs.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
I
agree:
G.N.Z. MJALI
JUDGE OF THE HIGH
COURT
Appearance
Counsel for the
applicant: L. VAN VUUREN
Instructed by: KEMI
AKINBOHUN ATTORNEYS
c/o TL LUZIPHO ATTORNEYS
MTHATHA
Counsel for the
Respondent: A. DA SILVA
Instructed by: KRITZINGER
ELLISH ATTORNEYS
c/o ZILWA ATTORNEYS
MTHATHA
Date heard: 15 OCTOBER
2020
Delivered on : 04 MARCH
2021
[1]
Rule
53(1) reads: Save where any law otherwise provides, all proceedings
to bring under review the decision or proceedings of
any inferior
court and of any tribunal, board or officer performing judicial,
quasi-judicial or administrative functions shall
be by way of notice
of motion directed and delivered by the party seeking to review such
decision or proceedings to the magistrate,
presiding officer or
chairman of the court, tribunal or board or to the officer, as the
case may be, and to all other parties
affected-
(a) calling upon such
persons to show cause why such decision or proceedings should not be
reviewed and corrected or set aside,
and
(b) calling upon the
magistrate, presiding officer, chairman or officer, as the case may
be, to dispatch, within fifteen days
after receipt of the notice of
motion, to the registrar the record of such proceedings sought to be
corrected or set aside, together
with such reasons as he is by law
required or desires to give or make, and to notify the applicant
that he has done so.
[2]
Section
22 reads: 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 or the
rejection of admissible or
competent evidence.
(2) This section does
not affect the provisions of any other law relating to the review of
proceedings in Magistrates’ Court.
[3]
Rule
33(1) reads: The court in giving judgment or in making any order,
including any adjournment or amendment, may award such
costs as it
deems fit.
[4]
Rule
33(3) provides: Unless the court shall for good cause otherwise
order, costs of interim orders shall not be taxed until the

conclusion of the action and a party may present only one bill for
taxation up to and including the judgment or other conclusion
of the
action.
[5]
Rule
53(4) of the Uniform Rules of Court reads: The applicant may within
ten days after the registrar has made the record available
to him,
by delivery of a notice and accompanying affidavit, amend, add to or
vary the terms of his notice of motion and supplement
that
supporting affidavit.
[6]
Rule
22(1) reads: The trial of an action shall be subject to the delivery
by the plaintiff, after the pleadings have been closed,
of notice of
trial for a day or days approved by the registrar or clerk of the
court: Provided that, if the plaintiff does not
within 15 days after
the pleadings have been closed deliver notice of trial, the
defendant may do so.
[7]
Beinash
v Wixley
1997(3) SA 721 (SCA) at page 739 G-H.
[8]
Ferreira
v Levin and Others, Vryenhoek and Others v Powell NO and Others
1996(2) SA 621 (CC) at 624 B-E.