About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2018
>>
[2018] ZAECMHC 54
|
|
Jojwana v Regional Court Magistrate and Another (5435/17) [2018] ZAECMHC 54; 2019 (6) SA 524 (ECM) (11 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case
No:5435/17
REPORTABLE
In
the matter between:
MXOLISI
JOJWANA
Applicant
and
THE
REGIONAL COURT MAGISTRATE
MR
MENE
First
Respondent
RNE HOLDINGS (PTY)
LTD
Second
Respondent
JUDGMENT
TOKOTA
J:
INTRODUCTORY
BACKGROUND
[1]
The applicant in this matter instituted an action for recovery of
damages against the second respondent before the regional
magistrate,
Mthatha. The details of that suit are not germane to the issue before
this court.
[2]
After the pleadings were closed, and on 20 June 2017, the applicant
applied to the registrar of the regional court for a trial
date. The
registrar allocated 1 November 2017 as the date of trial. On 10
August 2017 the applicant’s attorneys duly served
a notice on
the second respondent’s attorneys setting down the matter for
hearing on 1 November 2017. On 27 October 2017,
three days before the
hearing date, the applicant addressed a letter to the second
respondent’s attorneys in the following
terms:
“
We refer to
this matter and to the summary of your expert in terms of Rule
24(9)(a) & (b).
In the light of the
fact that the expert can only be refuted by another expert evidence,
we have taken receipt of report from our
expert. Consequently the
matter will not proceed on 01 November 2017. We shall furnish you
with our expert summary very soon.
With regard to the
photographs intended to be used during trial, we request colour
copies thereof as some things are illegible in
the photos.
We trust that you will
find the above in order.
Yours faithfully
A S ZONO &
ASSOCIATES”
[3]
The above quoted letter was delivered together with a notice
purporting to remove the matter from the roll of cases set down
for 1
November 2017. On the same day (27
October 2017), the
second respondent’s attorneys addressed a letter to the
applicant’s attorneys in which they stated,
inter
alia
,
that the expert notice referred to in their letter had been delivered
timeously, and insisted that the matter proceed on the hearing
date.
They stated that if the applicant was still persisting with the
removal of the matter he would have to make a substantive
application
for postponement.
[4]
On 31 October 2017 once again the second respondent’s attorneys
addressed another email to the applicant’s attorneys
wherein it
was pointed out that the notice of removal was irregular and that the
respondent would not agree to a postponement of
the matter. It was
pointed out further in that email that the notice did not address the
question of costs to be occasioned by
the purported removal. It was
persisted that a substantive application be filed, failing which the
second respondent would attend
court on the hearing date and apply
for the dismissal of the claim. The relevant portion of the letter
reads thus:
“
Your notice is
therefore irregular and the matter remains on the roll until the
Court has agreed that the matter either be removed
or postponed as
provided in Rule 31(1). We therefore reiterate that you should comply
with the Rules by delivering a formal application
for postponement
and advance reasons for the request and more importantly tender our
wasted costs herein, such costs to include
preparation, the travel
and accommodation of our expert witness, Counsel’s fees at the
bar council tariff on an attorney
and client scale and to be taxable
and payable immediately
.” These letters were ignored.
[5]
On 1 November 2017 neither the applicant nor his attorney attended
court. The second respondent’s Counsel attended court
and
submitted that the claim be dismissed, alternatively, that the matter
be struck from the roll with costs but the magistrate
struck the
matter from the roll and ordered the applicant to pay costs including
costs of employment of Counsel which costs were
to be taxed
immediately.
THE
PRESENT PROCEEDINGS.
[6]
On 17 November 2017 the applicant launched these proceedings seeking
an order reviewing and setting aside the order of the magistrate.
The
magistrate has, quite properly in my view, elected to abide the
decision of this court. The applicant contended that the magistrate
committed an irregularity in striking the matter from the roll
primarily on two grounds. First, it was submitted that there is
no
provision in the magistrates’ Rules for the striking of the
matter from the roll. For this reason, so it was argued, the
magistrate exceeded his powers. Second, the magistrate breached the
audi alteram partem
rule by making an order of costs against
the applicant in his absence. The applicant contended that a
substantive application for
a cost order should have been made so as
to afford him an opportunity to oppose it.
[7]
Ms du Toit, who appeared for the second respondent, on the other
hand, submitted that, first, the matter is not reviewable as
the
proceedings in the magistrate’s court have not yet been
finalised and there are no exceptional circumstances justifying
interference at this stage. Second, the applicant was not entitled to
unilaterally remove the matter from the roll. Consequently
the
removal was irregular and liable to be ignored. Therefore the
magistrate committed no irregularity in striking the matter from
the
roll.
IS
THE MATTER REVIEWABLE?
[8]
It is by now well established that, generally, a High Court will not,
by way of entertaining an application for review, interfere
with
uncompleted proceedings in a lower court.
[1]
It has been stated that a Superior Court should be slow to
intervene in unterminated proceedings in the court below, and
should,
generally speaking, confine the exercise of its powers to
'rare
cases where grave injustice might otherwise result or where justice
might not by other means be attained
.'
[2]
[9]
Ms du Toit submitted that the civil action is still pending in the
magistrate’s court and there are no exceptional circumstances
to justify interference at this stage. Accordingly, she submitted
that this court should dismiss the review on this ground alone.
Mr
Zono, for the applicant, on the other hand, submitted that the
proceedings in the magistrate’s court have been terminated.
He
submitted that the striking of the matter from the roll has had the
effect of terminating the proceedings. In this regard he
relied on
the cases of
Zuma v Democratic Alliance and Others
2018 (1) SA 200
(SCA)
and
Thint Holdings (Southern Africa) (Pty) Ltd v
National Director of Public Prosecutions; Zuma v NDPP
[2008] ZACC 14
;
2009 (1) SA 141
(CC). In the latter case it was stated:
“
[41] There are
two obstacles in the way of this argument. First, once a case is
struck from the roll, the case terminates and is
no longer pending.
There is no guarantee that the criminal proceedings will be
reinstated. Removal of a matter from the roll is
therefore abortive
of the currency of the trial proceedings. Should the trial ever be
re-enrolled, it would start anew.
[42] As soon as the
criminal matter had been struck from the roll by Msimang J,
therefore, the criminal proceedings were terminated
and the
proceedings were no longer pending. At the time, Mr Zuma had not yet
pleaded to the charge. Even if there might have been an intention
on the part of the NDPP at that stage to reinstitute proceedings,
there was no guarantee that he would actually do so. But it would not
matter even if the probabilities were that he would do so.”
[10]
In my view the above cases do not lay down a general rule that if a
matter is struck from the roll it is thereby terminated
and may not
be re-enrolled. The striking of the matter from the roll has nothing
to do with the merits of the case. In civil matters
it often happens
that if a party has either failed to comply with practice directives
such as pagination, filing of heads of argument
etc, or that the
applicant or plaintiff failed to appear when the matter was called,
the matter is struck from the roll. In practice
where the matter has
been struck from the roll under those circumstances it may be
re-enrolled upon the delivery of an affidavit
explaining the reasons
for the failure to comply with the practice directive and/or failure
to appear when the matter was called.
In this context therefore
striking of the matter from the roll is not aimed at terminating the
proceedings but merely suspends
the hearing thereof pending an
application for re-instatement.
[3]
Furthermore the cases relied on by Mr Zono were decided in the
context of criminal proceedings. In any event, even in those cases
the criminal proceedings were not terminated against Mr Zuma hence he
is presently standing trial for the same charges. The word
“terminate” was not used in the context of its general
meaning, namely, to ‘bring to an end’; to ‘close’;
to ‘conclude’; or to ‘discontinue’. In my
view when the courts said the proceedings were ‘terminated’
they meant suspension thereof pending any decision to reinstate them.
[11]
Furthermore my interpretation of the word “terminate” in
the context of civil matters is fortified by the fact
that even
appeals which have been struck from the roll for failure to prosecute
the same can still be reinstated. The appellant
can simply apply for
condonation for failure to prosecute it.
[4]
The failure to prosecute such appeal can be condoned and the appeal
reinstated notwithstanding the fact that the striking thereof
from
the roll has the effect of discontinuing it.
[12]
Consequently I find that when the magistrate struck the matter from
the roll he did not thereby bring to an end the litigation
between
the parties. Accordingly the case is still pending before the
magistrate and it is up to the applicant to re-instate it.
[13]
The striking of the matter from the roll does not have the effect of
res judicata
. The proper procedure which should have been
followed by the applicant was to apply for the re-enrolment of the
matter in the magistrate’s
court and explain why he was not
present in court on the hearing date. On this ground alone the
application cannot succeed.
DID
THE MAGISTRATE COMMIT AN IRREGULARITY BY TRIKING THE MATTER FROM THE
ROLL?
[14]
Section 173 of the Constitution of the Republic of South Africa, Act
1996 provides that the Constitutional Court, the Supreme
Court of
Appeal and the High Court of South Africa each has the inherent power
to protect and regulate their own process, and to
develop the common
law, taking into account the interests of justice. The magistrate’s
court does not have such powers. Its
powers are therefore derived
from Statute.
[15]
The Rules of procedure are devised for the purpose of administering
justice and not for hampering it; where the Rules are deficient
the
Judge would go as far as he/she can in granting orders which would
help to further the administration of justice. If there
is a
construction of the Rules which would assist in this respect the
Judge would be disposed to adopt it. The variety of its inherent
power has to do purely with the conduct of litigation, with procedure
- "
where the rules are deficient"
- not with
substantive law.
[16]
Mr Zono submitted that the magistrate exceeded his powers in striking
the matter from the roll in that there is no provision
either in
Statute or in the Rules of the magistrate’s court permitting
such course. He contended that this conduct constituted
an
illegality. We were referred to Rules 31 and 32 of the magistrate’s
court Rules (the Rules): I quote these Rules in full
hereunder:
Rule 31 “
Adjournment
and postponement
“
(1) The trial
of an action or the hearing of an application or matter may be
adjourned or postponed by consent of the parties or
by the court,
either on application or request or of its own motion.
(2) Where an
adjournment or postponement is made sine die, any party may by
delivery of notice of reinstatement set down the action,
application
or matter for further trial or hearing on a day generally or
specially fixed by the registrar or clerk of the court,
not earlier
than 10 days after delivery of such notice.
(3) Any adjournment or
postponement shall be on such terms as to costs and otherwise as the
parties may agree to or as the court
may order.
32 Non-appearance
of a party - withdrawal and dismissal
(1) If a plaintiff or
applicant does not appear at the time appointed for the trial of an
action or the hearing of an application,
the action or application
may be dismissed with costs.
(2) If a defendant or
respondent does not so appear, a judgment (not exceeding the relief
claimed) may be given against him or her
with costs, after
consideration of such evidence, either oral or by affidavit, as the
court deems necessary.”
[17]
It is true that there is no express provision in the Rules for the
striking of the matter from the roll. By the same analogy
there is
also no provision for removal of matters already set down for trial
in the Rules. This much was conceded by Mr Zono. In
my view
notwithstanding the absence thereof, Rule 31 must be interpreted to
have impliedly included removals and striking off.
The effect thereof
would be tantamount to an adjournment or postponement. When a matter
has been postponed
sine die
Rule 31(2) provides that “
any
party may by delivery of notice of reinstatement set down the action,
application or matter for further trial or hearing on
a day generally
or specially fixed by the registrar or clerk of the court, not
earlier than 10 days after delivery of such notice.”
It
follows that the same procedure would be applied if the matter is
removed or struck from the roll.
[18]
Consequently, in my opinion, the removal and striking from the roll
is implied in Rule 31. Rule 31(1) provides that the matter
may be
postponed by consent of the parties or on application in court. This
implies that no party may unilaterally postpone the
matter. I hold
therefore that whenever a party seeks a removal of the matter from
the roll such party cannot unilaterally do so
without the consent of
the other party or leave of the court.
[19]
In this matter the applicant neither got the consent of the second
respondent nor the leave of the court to remove the matter
from the
roll. He was repeatedly informed by way of letters that the matter
would be placed before the magistrate and the second
respondent would
proceed with it. It was therefore incumbent upon the applicant to
attend court and make the necessary application
for postponement or
removal. I therefore find that since the applicant did not get
consent from the second respondent to remove
the matter from the roll
such unilateral removal did not affect the trial date and the second
respondent was entitled to ignore
it especially that the applicant
did not even tender wasted costs.
[20]
In the absence of agreement for the removal the applicant ought to
have made an application in court for either the removal
or
postponement of the matter. Application means application on
motion
[5]
in terms of Rule 55.
However, where a party realises its inability to proceed with the
matter at short notice such party may
attend court and may make oral
application at the trial court without notice to the other party.
There is also nothing preventing
the party to bring a formal
application at short notice to the other party and seek a condonation
from court for non-compliance
with the Rules.
[6]
[21]
If the applicant/plaintiff fails to appear on the trial date properly
set down and the court orders the application or action
to be struck
from the roll such an order is not equivalent to one of either
dismissal or absolution from the instance but merely
suspends the
original notice of set down until the case is placed on the roll
again.
[7]
Notwithstanding
the provisions of Rule 32 the court is not obliged to dismiss the
action or the application if the plaintiff/applicant
fails to appear
on the date of set down. The court has a discretion either to
postpone the matter or even strike it from the roll
and make an
appropriate order as to costs.
[22]
On the date of hearing (1 November 2017) Counsel for the second
respondent applied for dismissal of the matter, alternatively,
submitted that the matter be struck from the roll with costs. The
magistrate struck the matter from the roll with costs. The nub
of the
argument of Mr Zono was that since there is no provision in the Rules
the magistrate exceeded his powers and therefore acted
illegally.
Ms
du Toit, on the other hand, submitted in her heads of argument that
the magistrate was entitled to strike the matter from the
roll.
[8]
She referred to
Jones
and
Buckle:
The Civil Practice of The Magistrates’ Courts in South Africa
.
The authors in the tenth edition state that “(
i)f
the plaintiff fails to appear on the day of set down of an
application and the court orders the application to be struck from
the roll, such order is not equivalent to one either of dismissal or
absolution, but merely suspends the original notice of set-down
until
the case is placed on the roll again. The court is not obliged to
dismiss the action or application if the plaintiff or applicant
does
not appear on the day of set-down: It is entitled to postpone the
case and to make an appropriate order as to costs.”
The learned authors go further and state that the Rules are not
exhaustive and the magistrate can “
fairly
”
act upon the analogy of the Superior Court where the Rules are
silent. The magistrate is entitled to exercise implied powers
in
order to attain the object of the Act and the Rules.
[23]
Mr Zono submitted that in the cases relied on by Ms du Toit this
point was not pertinently raised. It is true that upon a reading
of
those cases it does not appear that the point was raised. In my view
it was correctly not raised and I do not think the courts
overlooked
it.
I
have already found that the striking of cases from the roll is
implied in the Rules. Therefore the magistrate is entitled to
exercise not only powers expressly conferred on him by legislation
but also those powers that are implied in the Rules in order
to give
effect thereto. I therefore hold that the magistrate was entitled to
strike the matter from the roll.
[24]
In any event even if there has been an irregularity on the part of
the magistrate (and I find that there has not been such
an
irregularity) this court has a discretion to review such conduct. If
the irregularity was calculated to prejudice the applicant
the court
must set aside the impugned decision unless it is satisfied that the
applicant has not been prejudiced thereby. It was
never argued by any
of parties that the conduct of the magistrate was prejudicial to the
applicant.
[9]
WAS
THE MAGISTRATE ENTITLED TO MAKE AN ORDER OF COSTS WITHOUT FIRST
HEARING THE APPLICANT?
[25]
In terms of Rule 31(3) the magistrate may make an order of costs in
the event of a postponement. In terms of Rule 33 when the
court gives
judgment or makes any order, including any adjournment, it may make
an award of costs. If a party wishes to oppose
such an order such
party must attend the proceedings. In
casu
the applicant was,
by way of correspondence, afforded ample opportunity not only to
avail himself in court and make an application
for postponement but
also to tender costs. The letters were ignored. The second
respondent’s attorneys forewarned him what
they would do if he
failed to attend court. He still did not attend court to oppose the
application for dismissal with costs.
[26]
When the matter was argued before us there was no explanation by Mr
Zono as to why he did not attend court on the day in question
to make
an application for the postponement of the matter or to oppose the
second respondent’s application for dismissal
of the matter.
The above quoted letter from the second respondent’s attorneys
is clear regarding what the second respondent
intended to do in court
on 1 November 2017. Mr Zono was adamant that the matter had been
removed from the roll and even referred
to the registrar’s
diary in which it was indicated that it had been scratched. He also
did not proffer any explanation about
the correspondence which he
received from the second respondent’s attorneys.
[27]
Mr Zono argued that the magistrate committed an irregularity by
awarding costs in his absence and without hearing the applicant.
In
Estate
Garlick v Commissioner for Inland Revenue
[10]
the
learned Judge of Appeal stated that when a court has made an order as
to costs, without having heard any argument on costs,
the court is
not
functus
officio.
The mulcted party is entitled thereafter to contend that the order
should be altered by the same court. The court may alter it
if it
later takes a different view. This principle applies to all courts
and is not peculiar to the Supreme Court of Appeal only.
This
principle applies even where the parties were present in court and
had in fact addressed no argument on costs, even though
it may not be
strictly correct to say that they had no opportunity to do so.
[28]
In this case the respondent on the day in question applied for the
dismissal of the claim on the basis of Rule 32. The magistrate
did
not grant that order but struck the matter from the roll. In so doing
in my view the applicant was not prejudiced because it
could still
reinstate the matter at any time rather than making a lengthy process
of applying for rescission of judgment if the
claim was dismissed.
That was an indulgence granted to the applicant even though he was
not present. The award of costs is a discretion
of the court which
must be exercised judiciously. The exercise of that discretion is,
after all, essentially a matter of fairness
to both sides.
[11]
[29]
The applicant had two options. He could have either applied to the
same court to revisit its decision to award costs or abide
the
decision. It was not necessary to take the magistrate on review
having not exhausted his remedy first. He was afforded an opportunity
to appear in court when there was a clear indication that the
purported removal was not acceptable to the second respondent. He
elected not to avail himself of that opportunity. He has made his bed
with his eyes open; it is not unfair that he should lie on
it. In any
event I am not persuaded that the magistrate breached any
audi
rule. There is therefore no merit in the argument.
[30]
In all the circumstances I am of the view that the applicant has
failed to make out a case for the review.
COSTS.
[31]
The court has a discretion regarding the award of costs. The general
rule is that costs should follow the event. The second
respondent has
asked for a punitive cost order on the basis of the conduct of the
applicant. The applicant has made unsubstantiated
allegations of
dishonesty on the part of the second respondent. He accused the
second respondent of having concealed “
obvious
shortcomings in the case
.”
[32]
It is true that unwarranted accusations of this nature deserve
censure from the court and should generally be visited with
a
punitive cost order. But in the present matter I do not believe that
the applicant would have made these accusations himself.
I am
inclined to think that this conduct is attributable to the legal
practitioner who drew the papers. These are in the form of
argument
and legal opinion not supported by any facts. In motion proceedings
founding affidavits constitute evidence in support
of the relief
sought. That evidence should be confined to the facts relating to the
matter concerned. Legal practitioners should
refrain from using
metaphoric language imputing unwarranted accusations not supported by
any evidence. If they do so courts will
not hesitate to mulct them
with costs
de bonis propriis
. In this case since I am of the
opinion that this conduct is not attributable to the applicant it
will be unfair to punish him.
ORDER
[33]
In the result the following order is made.
1. The application is
dismissed
2. The applicant is
ordered to pay costs on a party and party scale.
_______________________
B
R TOKOTA
JUDGE
OF THE HIGH COURT.
I
agree
N
MLOMZALE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the applicant: Mr A S Zono of Zono and Associates
For
the second respondent: Adv. A du Toit
Date
of hearing: 23 August 2018
Date
Delivered: 11 September 2018
[1]
Ismail
and Others v Additional Magistrate, Wynberg and Another
1963 (1)
SA 1
(A): at 5H - 6A; Wahlhaus and Others v Additional
Magistrate, Johannesburg and Another
1959 (3) SA 113
(A) at
119G,; Sita and Another v Olivier NO and Another
1967 (2) SA 442
(A) at 447E - F; Lombard en 'n Ander v Esterhuizen en 'n Ander
1993
(2) SACR 566
(W) at 569e - f; S v Western Areas Ltd and Others
2005
(5) SA 214
(SCA)
(2005 (1) SACR 441)
in para 20.
[2]
Wahlhous
at 120 footnote 1
[3]
Skhosana
v Roos t/a Roos se Oord
2000 (4) SA 561
(LCC) ([1999]
2 All SA 652)
para.19; Goldman v Stern
1931 TPD 261
at 264;
[4]
Herf v
Germani 1978 (1) SA 440 (T)
[5]
Rule
2(1)
[6]
Momentum Life Assurers Ltd v. Thirion [2002] 2 ALL SA 62 (C) 69h
[7]
Goldman v Stern 1931 TPD 261
[8]
Skhosana v Roos t/a Roos se Oord
2000 (4) SA 561
(LCC) ([1999]
2 All
SA 652)
para 19;
[9]
Jockey
Club of South Africa and Others v Feldman
1942 AD 340
at 359; Le
Roux and Another v Grigg-Spall
1946 AD 244
at 254 and Caxton Ltd and
Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990 (3) SA 547
(A)
at 566. ;
Tao
Ying Metal Industry (Pty) Ltd v Pooe NO and Others
2007 (5) SA 146
(SCA) para.90
[10]
1934 AD
499
[11]
Ward v Sulzer
1973 (3) SA 701
(A) at 706; Gelb v Hawkins
1960 (3) SA
687
(A) at 694