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[2019] ZAECMHC 49
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Transnet Soc Limited Acting Through its Transnet Freight Rail Division v Learned Magistrate M Douws and Others (2008/2018) [2019] ZAECMHC 49 (10 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO 2008/2018
Reportable
Yes/ No
In
the matter between:
TRANSNET
SOC LIMITED
ACTING
THROUGH ITS TRANSNET
FREIGHT
RAIL
DIVISION
Applicant
and
THE
LEARNED MAGISTRATE M DOUWS
1
st
Respondent
FIKILE
MBALEKI
2
nd
Respondent
TYSON
MQOBOLI
3
rd
Respondent
AKHONA
MNQAMBI
4
th
Respondent
JUDGMENT
NQUMSE
AJ:
INTRODUCTION
[1]
The
applicant herein is second respondent in the court
a
quo
(here in after referred to as
the second respondent), has approached this court following an order
made by the first respondent
in case number 485/2017, for an order in
the following terms:
1.1
to
review and set aside the judgment delivered by the first respondent
(The presiding Magistrate in the court a quo) hereinafter
referred to
as the Magistrate in the Butterworth Magistrate's Court on 22 March
2018;
1.2
directing
the first respondent to show cause why the judgment
should not be reviewed and set aside;
1.3
that
the first respondent dispatch to the Registrar of this Honourable
Court the record of proceedings, together with reasons, and
to notify
the applicant that she has done so;
1.4
that
the matter be referred back to the Butterworth Magistrate's Court for
hearing by a different Magistrate, and in accordance
with fair
procedure;
1.5
granting costs of suit against any party
who opposes this application.
[2]
The
first respondent herein is the presiding magistrate (hereinafter
referred to as the magistrate ), against whose judgment this
application 1s launched. Notwithstanding having been duly
served with the notice of motion, she elected not to
react to the application neither did she file a notice to abide the
decision of this court. Similarly, no opposition was filed
in respect
of third and fourth respondents.
COMMON
CAUSE FACTS
[3]
The
applicant in the court
a quo
is
the second respondent herein (hereinafter referred to as the
applicant), together with the first respondent in the court
a
quo
and who is the third respondent
herein (hereinafter referred to as third respondent) are tenants in
the property owned by the second
respondent. They both entered into
lease agreements with the second respondent to occupy business spaces
it owns at the Butterworth
Railway Station. Each tenant would
identify a space within the perimeters of the premises of the second
respondent and would
be allowed to put up a structure that will
be suitable for his/her business needs.
[4]
This
unsupervised self-allocation of space led to a conflict between the
tenants which culminated in the launching of an
ex
parte
application by the applicant
against the first respondent to remove his container which he had put
up in the space allegedly occupied
by the applicant.
[5]
On
11 July 2017 the
ex parte
application
was granted in favour of the applicant with an order that the first
respondent must show cause why the order should
not be made final.
[6]
On
17 August 2017 the applicant moved an application to join Transnet as
the second respondent. The application for joinder
was granted
as per the Order of
Court of 8 September 2017. Pursuant to its notice to
oppose the application, the second respondent filed its answering
affidavit
in which it raised points in
limine.
[7]
At
the hearing of the matter in the court
a
quo,
the parties were represented as
follows: Mr Mapenzela for the applicant (here in after ), Mr Duze for
the first respondent (hereinafter
) and Mr Anderson for the second
respondent (hereinafter).
[8]
In
light of the points in
limine
that
were raised by the second respondent, the presiding magistrate ruled
that the second respondent should address its points in
limine.
At this juncture I find it necessary
to refer to the actual words used by the magistrate which reads as
follows:
'.
. . then in that case I think it would then be proper that the second
respondent addresses the court on their points in
limine
and
because the court would want to take into consideration the fact that
you are coming from Johannesburg and for you to only argue
the
point in
limine
and then come back again to argue on
everything else would be a costly exercise"
(sic
).
The
magistrate continued and said:
"The
court will then allow you to argue on everything . You raise your
points in
limine ,
the court does not make a ruling
immediately on that rather the court would look at the matter in
total, okay"
(sic).
The
magistrate concludes by saying:
"Then
you can make you submissions in response to the point in
limine
and as well as in the whole application and then
maybe you could also file your heads of arguments and the
court
will make its decision based on all submiss ions that have been made.
I think that would save a lot of costs"
(sic).
[9]
It is significant to note that both
representatives of the first respondent and the second
respondent agreed with the process
suggested by the magistrate.
However, after Mr Anderson raised his concern on the opportunity to
reply to the responses that
would
have been made by the applicant and
third respondent, the magistrate suggested as follows:
".
. . if its going to suit all of you having filed your
heads of argument or submissions
as they are
(sic).
After they have then filed
theirs okay, they communicate that
with
you, but then I put a date within which you would have
exchanged . . . you exchange and you finalise all that
(sic).
By the time all submissions with your
supplementary submiss ion , of cause,
because
you
will
have to supplement in
response to what would have been said in
their papers and then
you can then file
supplementary submissions.
(sic)
".
. . and then I will have written arguments before me and I would
consider the whole matter based on that. Unless you want
to come back
to the Eastern Cape again, you are welcome to do so".
It
is worthy to note Mr Anderson's response which is as follows:
"No,
I am indebted to you your worship. I am very happy with that process.
"
The
net result of the arrangement was for the parties to file their
submissions and heads of argument by 8th of December 2017, with
the
understanding that the ruling of the magistrate can only be expected
around January 2018.
[10]
As soon as the parties had agreed on the process
outlined above, in a
strange twist of events, Mr
Anderson proposed that he be allowed
there and
then to argue his points in
limine
in order to test whether they have merit or not. When the
representatives of the applicant and first
respondent
agreed to Mr Anderson's proposal,
the magistrate ruled that he should
proceed
and argue his points in
limine.
[11]
The
points in
limine
were
ostensibly that there was a clear dispute of fact on the papers
which could not be resolved without the matter being
referred for
oral evidence, alternatively to convert the motion
proceedings to action proceedings.
Mr Anderson
further submitted that the applicant was aware or ought to have been
aware of the fact that the first respondent was
laying a similar
claim on the same allocated space, especially that the applicant had
allegedly placed two containers in the second
respondent's premises .
After a lengthy argument around this point, Mr Anderson implored the
court to convert the application to
action proceedings. Mr Duze
aligned himself with Mr Anderson, maintaining that there are certain
issues which will require to be
ventilated in oral evidence.
[12]
In
his reply, Mr Mapenzela argued in the main that the dispute of fact
is not
bona fide.
He
based his argument on the exchange of correspondence between the
second respondent and the applicant, which was to the effect
that
applicant is the
one who has the right to the use of the piece of land on
which the first respondent had placed its containers.
[13]
Subsequently the magistrate went on in
great detail to debate with the legal representatives, whether the
second respondent would
allocate a space or spot to a tenant or the
tenant would choose a spot and advise the second respondent of the
spot he or she has
chosen. Unfortunately that engagement became so
protracted that it caused the representatives not to only argue but
also proffer
evidence from the bar. Needless to say that the debate
that ensued was no longer confined to the points in
limine
but it went into the merits of the
application as well.
[14]
After a lengthy discussion the
magistrate indicated that the point to be determined was those raised
in
limine.
This
is borne out in the following remarks:
"
look what I would suggest is that I think we all need to carefully
look at the point in
Zimine
that you raise d. You look at your
submissions as far as that point in
/;mine
is concerned. We
then come to a conclusion in your submissions because otherwise we
are going to . . . Because unfortunate, I'm
not . . . i don' t think
it will be fair for us to go as we are because in one way or another
it would be as if we coming to a
decision of the matter in the
exchange that you are doing in trying to . . . we' re trying to . . .
we' re trying to eliminate
issues but at the same time, we may
also
unintentionally get into the finality of the matter with
no intention. So r would rather have
us look
at what has been pointed out by ... then and then the
respondent, first respondent also have an opportunity
of making his
submissions on everything that has been said now."
[15]
When
Mr Anderson wanted to confirm whether the presiding magistrate
referred them to focus on the disputes of fact that he had complained
about. He responded as follows:
"
not necessarily the dispute of fact but as I have said at the end of
the day the crux of the matter is that there is a portion
that was
allocated to a person and that portion was not identified by
Transnet. This is what I was saying when we adjourned
okay".
[16]
Immediately
after the explanation above, the presiding magistrate continued in
another lengthy discussion of the matter with Mr
Anderson, contrary
to her earlier ruling that they should deal with the points in
limine
first.
This caused the magistrate to further remark as follows:
"so
we would be wasting a lot of time if we were going to go to whether
. . . what the facts and everything
. . . instead
of going exactly to what the problem is here.
The problem is that a person has been given
a spot to be a tenant on
and as to whether the second person who has been given
that same spot has informed Transnet
if that spot is occupied
already of not"
(sic)
[17]
After those remarks Mr Duze sought an
opportunity to make few submissions. After seeking the approval of Mr
Anderson the presiding
magistrate allowed Mr Duze the opportunity
to make his submissions.
[18]
Mr Duze's submissions were focused
mainly on whether it was a vacant space or not in which the first
respondent had placed his structure
of bricks. His submissions went
so far as to suggest an alternative to the impasse, that they should
be moved to an alternative
space on condition that Transnet will bear
the costs thereof. The magistrate sponteneously agreed with Mr Duze
on the basis that
it was Transnet's duty to know how many tenants
they have as well as the available spaces.
[19]
Mr
Mapenzela cautioned the court to the fact that the submissions of Mr
Duze are not covered in their answering affidavit. Despite
the
caution, the magistrate allowed both Mr Anderson and Mr Mapenzela to
reply to the submissions of Mr Duze. Once again the appetite
of the
magistrate was stirred up to enquire from second respondent on the
number of spaces that were available at the time and
their sizes.
[20]
When
the magistrate finally realised that the debate was becoming
unstructured and uncontrollable, she remarked that she was not
going
to allow anybody to make further verbal submissions; she wants them
to make written submissions. It is then not surprising
that Mr
Anderson sought clarification on whether their submissions should be
on the whole application or should only deal with
the points in
limine
that
he had raised. The magistrate replied as follows:
"Look,
I don' t want to restrict but if it was me, r
would
deal with the point in
limine
because you have raised that it has
to be addressed , okay? And then the directions of the court because
they deal directly with
the issue in question".
(sic)
The magistrate continued and said: "
but in dealing with these submissions obviously it would go through
the whole case
because the letters
is contained in the whole case, the letters that will be
referred to. The applications that will be referred to which will
deal with how that piece or that space was acquired has to do with
the whole case. This is what is contained so I don't know.
It's up to you, how really want to deal with
it. You want to first deal with my directives and the point
in
limine
and after I have responded
to that, you then deal with the whole case or do you want to deal
with everything.
But I am saying if you deal with,
especially my d
ir
ectives
or my concerns that I have raised, they have the
potential of killing the case right
there.
Do you understand what I'm saying? They
have the potential of
killing the case right
there as to whether in terms of the dispute
of fact raised
of whether the application will be converted
into an action or
viva voce
evidence
being called would be neither here nor there if you deal with what I
have concerns about which r wanted
clarity on or
which I wanted you deal with . Because that has the
potential of killing
it right there. I have
heard your submissions that tbjs is what Transnet
bas said and
you may want to hold Transnet
responsible for your loss , we can
look at that,
even from that
perspective but you can deal with everything " .
(sic)
(own
underlining for emphasis)
[21]
Finally,
the matter was postponed for the ruling of the magistrate. In her
ruling the magistrate summarised the issues to
be determined as the
following:
(i)
The
court has to determine as to who is the rightful tenant of the said
property in question and has make an order either
in favour of
the prayers in the Notice of Motion. (sic)
(ii)
Has
the applicant made out a good case and if so, what is the first
respondent's fact and against whom does he have records if the
court
confirming the Rule Nisi {sic)
[22]
What
is clearly left out in the issues for determination is the
application of the second respondent to refer the matter for
oral evidence owing to the dispute of fact that is alleged.
[23]
In deciding the matter the presiding
magistrate made the following order:
(i)
Second respondent (Transnet) to
provide an alternative space I properly for the first
respondent.
(ii)
Second
respondent to pay for the removal of the first respondent's container
to the alternative space.
(iii)
Whatever other recourse the first
respondent seeks it be against the second respondent.
(iv)
The legal costs incurred to
oppose the application, be borne by the second respondent.
[24]
The
essence of the review before us is premised on the averments
made in the founding affidavit, which is briefly that
the
applicant instituted legal proceedings on an urgent basis
and he subsequently joined the second respondent who
in its answering
affidavit raised two points in
limine
.
[25]
It is further stated that during the
course of the hearing of the points in
limine,
the presiding magistrate committed
an act of gross irregularity in one or more of the following
respects:
25.1
she
failed to give the second respondent legal representative an
opportunity to present their case without interruption;
25.2
she
failed to set a procedure allowing each of the parties to present
their case unhindered and without undue interruption, resulting
in
the proceedings descending into chaos;
25.3
she failed to take cognisance of the
submissions made by the second respondent's legal representative
particularly with regard to
the two points in
limine,
which were fatal to
the second respondent's case; and
25.4
the magistrate made an order
which
was not rationally connected
to
the
prayers in the Notice of Motion
and
her order is
so open-ended rendering
its implementation subject to numerous interpretations and giving
rise to great uncertainty and major prejudice
to
the second respondent. (own emphasis)
[26]
The second respondent avers that the
magistrate committed a
gross
irregularity which resulted in the prejudice to the second respondent
and a miscarriage of justice.
(own
emphasis)
[27]
The
second respondent further filed a supplementary affidavit in which
she further submitted that the magistrate interjected continuously
during legal submission by the legal representative of the second
respondent. The interjection is borne out in asking questions
unrelated to the points in
limine
that were raised but instead
the magistrate asked points that dealt with the merits of the case.
She goes further to state the lack
of the magistrate to appreciate
the procedure to be followed constituted an affront to both the
magistrate's court as well as the
High Court procedures, thereby
denied the second respondent's legal representative a fair
opportunity to address the court.
[28]
The
second respondent further contends that, the confusion created by the
presiding magistrate bad conflated the submissions on
the points in
limine
and
the full hearing of the case. In so doing the magistrate compromised
the submissions made by the legal representatives of the
second
respondent.
[29]
It also alleged that the magistrate's
lack of understanding of the pleadings had the net result of throwing
the second respondent's
legal representatives of course. The remarks
of the matter being
'killed'
if
certain submissions were made demonstrates that the magistrate had
already made up her mind even before the parties concluded
their
submissions. It is contended that the conduct of the presiding
magistrate did not instil confidence that she was impartial.
According to the second respondent, this is evident in the tone and
demeanour directed towards the second respondent's representative
which was intimidating, condescending, discourteous and rude. (own
emphasis)
[30]
Before
this court, the applicant submitted that the judgment of the
presiding magistrate is not reviewable on the grounds relied
upon by
the second respondent. He contends that the two
points
in
limine
which are contended by the second
respondent were sufficiently dealt with and consequently, the
magistrate made rulings albeit unsatisfactory
to the second
respondent. Applicant further submitted that the presiding magistrate
was applying her discretion when she engaged
the parties. He contends
that the judgment and the order of the presiding magistrate is
well-reasoned, clear and requires no other
interpretation.
[31]
In its heads of argument, the second
respondent repeated in great detail what is stated in its founding
and supplementary affidavits.
The second respondent' s argument is
that its legal representative was not afforded a fair opportunity to
present its case. The
failure by the presiding magistrate to take
into cognisance the second respondent' s point in
limine
and failure to refer the dispute of
fact to oral evidence, all constitute an irregularity. It further
argued that the decision of
the presiding magistrate is not
rationally connected to the evidence that was before her and that
amounted to flouting of the court's
processes.
[32]
In
the supplementary heads of argument, the second respondent submitted
that the promotion of the Administrative Justice Act
[1]
( PAJA) is not applicable in this application, since the
decision of a magistrate is specifically excluded by PAJA.
[33]
The reliance on PAJA by the applicant is
borne clearly out in its heads of argument where the following is
stated:
"It
is accepted that the first respondent' s decision constitutes an
administrative action within the meaning ascribed thereto
by section
1 of the Promotion of Administrative Justice Act and that the
provisions of PAJA apply to this application".
[34]
From here onwards the submissions in the
heads of argument of the applicant were along the lines,
whether the magistrate's
conduct complied or not with the provisions
of PAJA. However, before us, Mr James for the applicant abandoned
this line of argument
conceding that to have premised its argument on
PAJA was misplaced.
THE
LAW
[35]
I
find it necessary, to reiterate that PAJA is not applicable to
decisions made by judicial officers, as their decisions are not
an
administrative action but constitute judicial functions as
referred to in section 166 of the Constitution
[2]
which includes the Magistrates' Courts.
[3]
That being the position of the law, I shall now deal with the grounds
of review of proceedings from the Magistrate's Court.
[36]
The
grounds for review of proceedings of the Magistrates' Court are set
out in the Superior Court's Act.
[4]
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;
(d)
The admission of inadmissible or
incompetent evidence or the rejection of admissible or
competent evidence-"
[37]
If any of the grounds above have been
established, an aggrieved party is entitled to bring an application
for review.
[38]
Since the second respondent's complaint
is not premised on the lack of jurisdiction by the court and also
conceded that there is
no evidence to suggest that the presiding
magistrate was biased, or malicious , it can be accepted that the
thrust of the complaint
turns predominantly on the grounds envisaged
in section 22(1)(c).
[39]
A
gross irregularity in civil proceedings in a magistrate's court means
an irregular act or omission by the presiding judicial officer
in
respect of the proceedings, if so gross a nature that it was
calculated to prejudice the aggrieved litigant, on proof of which
the
court would set aside such proceedings, unless it
was satisfied that the litigant had in fact not suffered
any
prejudice.
[5]
[40]
A scrutiny of the proceedings as well as
the judgment of the presiding magistrate, does not bear out evidence
that her conduct in
the proceedings was calculated to prejudice the
aggrieved party. Neither does the evidence show that the presiding
magistrate acted
in a high handed manner preventing the second
respondent to present its case. In fact the opposite is true, in that
the reading
of the record shows that the presiding magistrate
afforded each party a fair opportunity to present its case and
address the magistrate
on any points that required further
clarification.
[41]
Whilst
it is patently clear that the magistrate was extremely interruptive
in her discussions with the legal representatives,
and at times
appearing to have been argumentative, that does not translate denying
the parties, particularly the legal representative
of the second
respondent the opportunity to present its case. In fact, the
reading of the record
shows that
the magistrate had allowed the
legal representatives multiple times
to address the court and reply
even to the extent of disregarding the rules of practice.
[6]
[42]
The judgment of the presiding magistrate
does not in itself show overtly that she dealt with the points in
limine.
Even
if it were to be accepted that she may have implicity
decided against referring the matter to oral evidence, unfortunately
this is something that required to be explicitly expressed and
decided upon. It is not something that the parties
should infer from the judgment whether she elected to deal with the
merits as they appear on the papers or she indeed made a decision
on
the points in
limine.
The
point raised by the second respondent, that the presiding
magistrate failed to take cognisance of the submissions
made in
respect of the points in
limine
is justified, due to this failure to
explicitly state that she was dismissing the points in
limine
and advance reasons for such
determination.
[43]
Undoubtedly, the failure by the
presiding magistrate constitutes an irregularity which had the effect
of compromising the case for
the second respondent.
[44]
Similarly,
the order of the presiding magistrate is disjunctive of the prayers
that were sought in the Notice of Motion in the court
a
quo.
The order that was sought was
in essence to order the first respondent to remove his container and
to allow the applicant to regain
his full occupation of his rented
space. The applicant had further prayed that the first
respondent should bear the
costs of the removal of his containers as
well as costs that may have been occasioned by the storage of the
respondent's container
by the sheriffs.
[45]
For sake of completeness, I shall
restate the order of the presiding magistrate which reads as follows:
45.1
Second respondent to provide an
alternative space / property for the first respondent.
45.2
Second respondent to pay for the removal
of the first respondent' s container to the alternative space.
45.3
Whatever other recourse the first
respondent seeks it to be against the second respondent.
[46]
It shall be noted that none in the
relief ordered by the presiding magistrate was sought in the
Notice of Motion. She
also appears to have either
misconstrued or failed to appreciate why the second respondent
was joined in the proceedings
before her. The purpose of joining the
second respondent was spelt out clearly in the affidavit of
applicant in support of
his application for joinder. In
paragraph 8.2 it was stated that the second respondent is
joined to answer and to clarify
as to who is the rightful owner of
the property and what should happen to the applicant since he wants
immediate possession of
his property.
[47]
Instead the order of the magistrate is
not directed at the first respondent but to the second respondent and
despite that there
were no grounds for the presiding magistrate to do
so.
[48]
I therefore agree with the second
respondent that the order of the presiding magistrate is not
rationally connected to the prayers
set out in the Notice of Motion
and is so open-ended that its implementation is subject to numerous
interpretations and gives rise
to great uncertainty, causing major
prejudice to the second respondent.
[49]
Accordingly
the second respondent has demonstrated adequately that there has been
a gross irregularity on the part of the presiding
magistrate
entitling it to have the judgment reviewed and set aside.
[50]
The applicant opposed this application
despite no substantive relief being sought against him herein and
proceeded to raise irrelevant
issues in his heads of argument. He
could just as well have stated his grounds of disagreement in an
affidavit and filed a notice
to abide. He however, chose to actively
oppose this application and has not advanced any reason why he should
not be ordered to
pay costs in circumstances where he was aware that
costs were being sought against parties opposing the application.
[52]
ORDER
a)
The
judgment of the presiding magistrate (first respondent herein)
delivered on 22 March 2018 under case number: 458/2017 is reviewed
and set aside.
b)
The
matter under case number: 458/2017 is referred back to the
Butterworth Magistrate's Court to commence
de
novo
before another magistrate.
c)
The
applicant in the court a quo, being the second respondent in these
proceedings is directed to pay the costs of this
application.
VM
NQUMSE
ACTING
JUDGE OF THE HIGH COURT
I
agree
F
DAWOOD
JUDGE
OF THE HIGH COURT
Counsel
for the Appellant: Mr M Phukubje
Instructed
by:
Pule
Incorporated
c/o
Brauns Nyembezi Inc. Flat No. 2, Phyllis Court
Cnr
Leeds and Comer Cumberland Street
MTHATHA
REF:
18/00772/06/0N
For
the Respondent: Mr
N James
Instructed
by: Fihla
& Associates
No
12 Avalon Court
ECDC
Building
BUTTERWORTH
REF:MN/X01/BT
DATE
HEARD:
09May2019
JUDGEMENT
DELIVERED:
10
September 2019
[1]
Act
3 of 2000.
[2]
Act
108 of 1996.
[3]
See
definition of administrative action in s I of the Promotion of
Administrative Justice Act.
[4]
Act
10 of 2013
[5]
Van
Loggerenberg Wet al, Erasmus: Superior Court Practice
(2015) A2-134.
[6]
See
Civil Practice of the Magistrate's Courts in South Africa,
Ninth edition vol 2 Rule 29(14).