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[2018] ZAGPJHC 609
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Soweto Structural Steel Engineering (Pty) Ltd v Trade Property Ventures No 14 CC (A3071/2018) [2018] ZAGPJHC 609 (29 October 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A3071/2018
In
the matter between:
SOWETO
STRUCTURAL STEEL
ENGINEERING
(PTY)
LTD APPELLANT
AND
TRADE
PROPERTY VENTURES NO.14 CC RESPONDENT
JUDGMENT
TWALA
J
[1]
This is an appeal against the judgment and order of the Magistrate
Court sitting at Springs delivered on the 9
th
of February 2018 which condoned the late filing of the respondent’s
plea and its counter claim.
[2]
The central issue in this appeal is whether the Magistrate has
exercised its discretion judicially when it condoned the late
filing
of the respondent’s plea and counter claim after they were
barred from doing so.
[3]
It is common cause that the appellant has instituted summons
proceedings against the respondent and the respondent failed to
file
its plea and counter claim within the prescribed time frames. It is
further not in dispute that the appellant barred the respondent
from
pleading which bar galvanised the respondent to bring an application
for condonation for the late filing of its plea and counter
claim. It
is not in dispute that the application for condonation is preceded by
a number of other interlocutory applications between
the parties.
[4]
The critical question which begs to be asked is whether the order of
the magistrate condoning the late filing of the respondent’s
plea and counter has the effect of a final order in the matter.
[5]
Section 83 (b) of the Magistrate’s Court Act, 32 of 1944
provides as follows:
“
Appeal
from magistrate’s court
Subject to the
provisions of section 82, a party to any civil suit or proceedings in
a court may appeal to the provincial or local
division of the Supreme
Court having jurisdiction to hear the appeal against –
(a)
…………………………
..
(b)
Any
rule or order made in such suit or proceeding and having the effect
of a final judgment, including any order under Chapter IX
and any
order as to costs:
(c)
…………………………
.
[6]
Every court has a discretion which it exercises in the execution of
its functions. However, the court must exercise its discretion
reasonably and judicially. It is not competent of the appeal court to
interfere with the exercise of the discretion of another
court unless
it is patently clear that the exercise of the discretion was
unreasonable and not judicially.
[7]
Counsel for the appellant contends that the magistrate did not
exercise its discretion judicially by granting condonation for
the
late filing of the plea and counter when the founding papers of the
respondent did not meet the requirements set out for condonation
applications. It is contended further that the respondents should
have applied for the upliftment of the bar instead of applying
for
condonation for late filing of its plea and counter claim.
[8]
I agree that the application for condonation by the respondent did
not deal with the issue of the delay in detail as required.
However,
this is exactly where the discretion of the court becomes relevant.
In my view, when a court entertains an application
for condonation,
it does not only confine itself in the papers before it, but look at
the whole matter at that point and find a
balance which will serve
the interest of justice and exercise its discretion along that path.
An application for condonation is
meant to correct certain shortfalls
of a party in its handling of its case especially where there is
non-compliance with the rules
of court.
[9]
In the present case the parties have been engaged in numerous
interlocutory applications which have caused inordinate delays
in the
hearing of the main issues in the matter. It is undesirable that the
finality of a matter should be unnecessarily delayed
by side issues.
In the result, the magistrate correctly exercised its discretion, in
the interest of justice as it appears on the
record, to grant
condonation even though the respondent’s papers did not meet
the requirements set as a principle in condonation
applications. In
my view, there is no prejudice to be suffered by the appellant in
this regard.
[10]
The
audi
alteram partem
rule is a fundamental principle of our law which is enshrined under
the bill of rights in the constitution of the Republic of South
Africa Act, 108 of 1996 for which the courts have been enjoined to
observe at all times. The removal of the bar, in my view, by
way of
application to the court, would have had the similar result of
allowing the parties an opportunity to ventilate the issues
at the
trial of the matter. It is my respectful view therefore that the
magistrate exercised its discretion reasonable and judicially
under
the circumstances and the appeal falls to be dismissed on this
ground.
[11]
On the other hand, I agree with the submission of counsel for the
respondent that that the judgment of the magistrate appealed
against
is not a final judgment for it does not go to the merits or main
issues of the matter between the parties. The judgment
is on an
interlocutory application which opens the door for the respondent to
plead to the issues in the main action and bring
its counter claim.
The ineluctable conclusion one comes to in this case is that the
judgment is not of a final nature and therefore
it is not appealable.
In the result, I am of the view that the appeal falls to be dismissed
on this ground as well.
[12]
In the circumstances, I make the following order:
The appeal is
dismissed with costs.
_________________
TWALA
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
I
agree.
_______________
MATSEMALA
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 16 October 2018
Date
of Judgment: 29 October 2018
For
the Appellant: ADV. D.Z KELA
Instructed
by: MKIZE ATTORNEYS
TEL:
011 486 0290
For
the Respondent: ADV. H.P WEST
Instructed
by: MALHERBE, RIGG & RANWELL NC
TEL:
011 918 4116