About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2019
>>
[2019] ZAKZPHC 77
|
|
Sancho v Mngoma N.O and Another (AR124/2019) [2019] ZAKZPHC 77 (29 November 2019)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, PIETERMARITZBURG
AR
124/2019
VISHAL
SANCHO
APPLICANT
and
MAGISTRATE P MNGOMA N.O.
1
ST
RESPONDENT
MINISTER OF CORRECTIONAL SERVICES
2
ND
RESPONDENT
ORDER
I make the
following order herein:
1
the trial court’s order of absolution from the instance,
including
its order as to costs, is hereby reviewed and set aside.
2
the trial under case number 14944/2015 in the Magistrates’
Court for
the District of Pinetown is to be placed
de novo
before another magistrate for hearing,
REVIEW JUDGMENT
Delivered on: 29 November
2019
GOVINDASAMY
AJ:
[1]
The applicant, Vishal Sancho, and the plaintiff in the court a quo,
has brought the
review application on the basis that the first
respondent, the magistrate Ms P Mngoma, hearing the trial, committed
a gross irregularity
in granting absolution from the instance before
the applicant closed its case and completed his evidence.
[2]
Section 22
of the
Superior Courts Act 10 of 2013
, as amended,
stipulates the grounds upon which a review is brought in this court
arising from the proceedings in the magistrates
court. It provides as
follows:
“
(1)
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)
The section does not affect the provisions of any other law relating
to the review of proceedings in Magistrates’ Courts.”
[3]
Rule 53 of the Uniform Rules of Court sets out the procedure to be
employed when a
litigant is desirous of bringing review proceedings
in respect of a decision of a magistrate.
[4]
Before I may consider the review application itself, something needs
to be said about
the record. Although the record was referred to in
the applicant’s practice note, regrettably it was not furnished
to me
timeously. I understand that the record was lying in the Durban
Division of the KwaZulu-Natal High Court. The applicant’s
attorneys should have been alive to this fact and should have taken
steps to ensure that the record was lodged with the Registrar
of the
Pietermaritzburg Division of the KwaZulu-Natal High Court. Judges in
this division are very busy. The workload has increased
substantially
and not having the record, hampers the smooth and efficient manner in
which matters such as appeals and reviews,
which are dealt with in
this court almost on a weekly basis. A special costs order will not
be made but the failure or omission,
as has happened, will not be
lightly condoned in future. In this regard, it is important to
emphasize that compliance with Rule
53 of the Uniform Rules of Court
regarding time frames and providing a complete record is not just a
procedural process, but is
a substantive requirement which serves to
ensure that the substance of the decision is properly put to the fore
at an early stage.
[1]
The Constitutional Court in
Turnbull-Jackson
v Hibiscus Coast Municipality
[2]
held that:
‘
Undeniably,
a rule 53 record is an invaluable tool in the review process. It may
help: shed light on what happened and why; give
the lie to unfounded
ex post facto (after the fact) justification of the decision under
review; in the substantiation of as yet
not fully
substantiated grounds of review; in giving support to the
decision-maker's stance; and in the performance of the
reviewing
court's function.’
[5]
What appears to have transpired in the court a quo is that the
plaintiff was giving
evidence before the first respondent and during
cross-examination by the second respondent, the Minister of
Correctional Service
and defendant in the Magistrate’s Court
for the district of Pinetown, applied for absolution from the
instance, which application
was granted.
[6]
Section 48
(c)
of the Magistrate’s Court Act 32 of 1944,
provides that:
‘
The
court may, as a result of the trial of an action, grant —
(a)
judgment
for the plaintiff in respect of his claim in so far as he has proved
the same;
(b)
judgment
for the defendant in respect of his defence in so far as he has
proved the same;
(c)
absolution
from the instance, if it appears to the court that the evidence does
not justify the court in giving judgment for either
party …’
[7]
According to
Jones
and Buckle
[3]
in the commentary in respect of this provision, the following is
said:
‘
In
South African practise the decree of absolution from the instance
fulfils a different function. It is an order, granted either
at the
end of the plaintiff’s case or at the end of the whole case,
dismissing the plaintiff’s claim. Its effect is
to leave the
parties in the same position as if the case had never been brought,
for a judgment of absolution from the instance
does not amount to
res
judicata
and the plaintiff is entitled to proceed afresh.’
[8]
It is clear from the facts in his case, that the applicant was called
to the stand
as the first witness to give evidence. After he was led
in examination in chief, the legal representative for the second
respondent
began his cross-examination of the applicant. The
applicant was asked two questions and thereafter the second
respondent brought
the application for absolution from the instance.
The application was granted with costs by the first respondent.
[9]
Harms JA in
Gordon
Lloyd Page & Associates v Rivera & another
[4]
succinctly set out the correct approach to an application for
absolution as follows:
‘
The
test for absolution to be applied by a trial court at the end of a
plaintiff's case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403
(A) at 409G - H in these terms:
“
.
. . (W)hen absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the evidence
led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (
Gascoyne
v Paul and Hunter
1917 TPD 170
at 173;
Ruto
Flour Mills (Pty) Ltd v Adelson (2)
1958
(4) SA 307
(T)”.
[10]
This approach by the Supreme Court of Appeal as quoted in
Gordon
Lloyd Page
above, in no uncertain terms directs that a court
should exercise its discretion whether or not to grant absolution at
the end
of the plaintiff’s case upon a consideration of all the
facts and not before the close of a plaintiff’s case. Clearly,
the plaintiff in this matter did not close his case. The first
respondent in her explanatory affidavit conceded that she made an
error of law in that the plaintiff’s case was not closed when
she allowed the application for absolution from the instance.
[11]
There is not authority for the view that a mistake in law is an
irregularity justifying a review
of proceedings.
[5]
[12]
In the case of
Hirschhorn
v Reich and another
,
[6]
Matthews J quote the following from
Ellis
v Morgan
,
[7]
with approval that:
‘
an
irregularity in the proceedings does not mean an incorrect judgment:
it refers not to the result but to the methods of the trial,
such as,
for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and
fairly
determined.’
[13]
Both the first and second respondent filed notices to abide the
decision of this court.
[14]
I have no hesitation in granting the relief sought by the applicant
on the basis that the judgment
dismissing the plaintiff’s case
with costs is a gross irregularity and it should therefore be
reviewed and set aside.
[15]
The second respondent submits that the matter should be referred back
to first respondent for
the trial to continue from the point before
the application for absolution was made. This submission is not very
sound. I agree
with the applicant’s contention that it would be
inappropriate for the first respondent, who had clearly formed a view
in
relation to plaintiff’s case, having prejudged the issues,
to proceed with the hearing of the matter.
[16]
The applicant has been substantially successful in his review
application, the second respondent
was not entitled, under the
circumstances of this case, for the order of absolution from the
instance on the grounds on which it
was applied for and granted.
[17]
I therefore make the following order:
1
the trial court’s order of absolution from the instance,
including
its order as to costs, is hereby reviewed and set aside.
2
the trial under case number 14944/2015 in the Magistrates’
Court for
the District of Pinetown is to be placed
de novo
before another magistrate for hearing,.
GOVINDASAMY
AJ
I agree, and it
is so ordered.
NKOSI J
DATE
OF HEARING: 29
November 2019
DATE
OF JUDGMENT: 29 November 2019
FOR
THE APPLICANT: Mr R B Donachie
Instructed by
Henwood Britter & Caney,
locally represented by Tatham Wilkes
Attorneys.
FOR
THE RESPONDENT: Mr A Essa
Instructed by The State Attorney,
Locally represented by Cajee Setsubi
Chetty Incorporated.
[1]
General Council
of the Bar v Jiba
2017 (2) SA 122
(GP) paras 111 – 112.
[2]
Turnbull-Jackson v Hibiscus Coast
Municipality
2014 (6) SA
592
(CC) para 37.
[3]
DE Van
Loggerenberg
Jones
and Buckle: Civil Procedure of the Magistrates’ Courts in
South Africa
10 ed (Revision Service 15 – 2018) at Act-p325.
[4]
Gordon
Lloyd Page & Associates v Rivera & another
2001
(1) SA 88
(SCA) para 2.
[5]
Doyle v Shenker & Co Ltd
1915 AD 233
at 236 – 237.
[6]
Hirschhorn
v Reich & another
(1929) 50 NPD 314
at 317.
[7]
Ellis
v Morgan
(1909) TS 576
at 581.