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[2017] ZALMPPHC 7
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Maswanganyi OBO Machimane v Road Accident Fund (HCAA07/2016) [2017] ZALMPPHC 7 (18 May 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
APPEAL
CASE NO:HCAA07/2016
COURT
A QUO
CASE
NO:1386/2015
In
the matter between:
MASWANGANYI,
PATRONACIA THEMBI
Obo
MACHIMANE, TEBOGO
MAIMELE
Appellant
and
ROAD
ACCIDENT
FUND Respondent
APPEAL
JUDGEMENT
MULLER
J:
[
1]
The appellant issued an application in terms whereof the following
relief were claimed.
(a)
Calling off the part-heard trial in the matter which
Commenced
on Wednesday 14 September 2016 and
postponed
for continuation on Wednesday 12 October 2016
at
10h00 in the forenoon.
(b)
That the said trial be and is hereby forthwith annulled.
(c)
Declaring that the
lis
between the applicant and the
respondent which was to be the subject matter of
the trial which was to commence on Wednesday 14 September 2016 at
10h00 in the
forenoon before this court under case number 1386/2015
to have been fully and finally settled between the parties in terms
of the
agreement and resultant draft order made and prepared by the
parties and bearing the same date of Wednesday 14 September 2016.
(d) That the draft order
in para C above is hereby made an order of the Court.
(e) That the costs
payable by the defendant in terms of paragraph C of the said draft
order shall include travelling costs, the
costs of this application
and the hearing of Wednesday 12 September 2016, as well as the costs
of senior counsel where employed.
(f)
Further and /or alternative relief.
[2]
To fully understand the unusual relief claimed in the notice of
motion the background leading to the application being launched
must
briefly be set out. The following facts are common cause:
(a)
action was instituted on behalf of a minor
against the Road Accident Fund which was set down for trial on 12
September 2016.
(b)
the trial was allocated to the learned
deputy judge President on 14 September 2016.
(c)
when the matter was called the parties
requested the trail to stand down to discuss settlement thereof.
(d)
when the matter was called again later that
day the learned judge was informed by both counsel appearing for the
parties that a
settlement had been reached.
(e)
a draft order which contained their
agreement was handed up.
(f)
the learned judge indicated after receipt
of the draft order that she is not satisfied with its contents, more
particularly, with
the liability of respondent being 100%.
(g)
she indicated to counsel that when she
prepared for the trial she had sight of the pleadings and witness
statements filed and therefore
required evidence to be adduced.
(h) the plaintiff called
a witness Mahlenhle David Maake.
(I)
the trial was postponed
sine die
before conclusion of his
evidence.
(j)
the appellant then launched a substantive application
in
which the relief referred to in this judgement was claimed.
(k) on
12 September 2016 counsel approached the learned deputy
judge
president in chambers. Two suggestions were made to
her:
(i) That the
learned judge call off and annul the part-heard trial proceedings
before her and make the draft an order of court,
adjusted in
accordance with the relief listed in the said application; or
(ii)
alternatively, to hear the application and the pronounce
judgment on the application.
(l)
the learned deputy judge president elected to proceed with the
application and commenced with argument.
(m)
after argument by the parties was concluded she dismissed the
application with costs.
(n)
she granted leave to appeal to the full bench of this division.
[3]
The appeal is against the dismissal of the main relief that the
pending trial proceedings before her is a nullity and that the
lis
between the parties has been settled.
There is therefore in my judgment, no need to decide whether the
court ought not to have taken
cognizance of the witness statements in
the court file or that the order to continue with the trial despite
the settlement, was
correct. The appeal before us is not
against that order. See
Cape Empowerment
Trust v Fisher Hoffman Sithole
2013 (5)
SA 183
(SCA) at par 39. The learned deputy judge president, was
called upon in the motion proceedings, to reconsider her earlier
decision
and to declare her order to continue with the trial after
some evidence had been adduced, a nullity. The decision to continue
with
the trial and to hear evidence, despite a settlement between the
parties are the underlying facts upon which the application before
the Deputy Judge President is founded.
[4]
It is practice, and it is a practice that is certainly to be
encouraged, that parties settle their disputes out of court where
it
is possible. A
transactio
is a substantive contract entered into with the object of preventing
avoidance or terminating litigation and has the effect of
res
judicatia.
See
Gollach
& Gomperts (1967) Pty Ltd v Universal Mills of Produce Co (Pty)
Ltd and Others
1978 (1) SA 914
(A) at
921D and 922B. It is possible, and it often happens, that the parties
in litigation settle their dispute on the steps of
the court.
However, in this instance the court was, after having regard to
witness statements contained in the court file, of the
view that the
parties should adduce evidence notwithstanding being informed by the
parties that they entered into a contract of
settlement.
[5]
Mr Shakoane SC, who appeared for the appellant, in supplementary
heads of argument filed at the request of the court, argued
that the
order is void as the court proceedings have been terminated before
conclusion of the trial by reason of the settlement.
He contended
that the process of annulment may vary depending on the reason for
the annulment. In this instance, the order
void for the lack of
jurisdiction. He relied on
Communication
Worker Union v Telkom SA Ltd
1999 (2)
SA 586
(TPD) at 593F-599B.
This case is of
no assistance to the appellant. The court, in that case, was called
upon to review and set aside a decision by the
respondent to demote
certain employees and to declare them entitled to all benefits. The
respondent objected to the jurisdiction
of the court at the
commencement of the proceedings. Southwood J correctly, with respect,
held that a court must have jurisdiction
for its judgment or order to
be valid. The learned Judge expressed himself as follows at 593H-J:
“
The
crucial time for determining whether a court has jurisdiction is the
time when proceedings are commenced and, once jurisdiction
is
established it continues to exist to the end of the proceedings even
though the grounds upon which it was established has cease
to exist:
Thermo Radiant Oven Sales (Pty) v
Nelspruit Bakeries (Pty) Ltd
1969 (2)
SA 295
(A) at 310D. For purposes of the objection it must be
established therefore whether this Court had jurisdiction when the
proceedings
commenced, ie when the application was served on the
respondents.”
[6]
A settlement, if the argument of the appellant is correct, will bring
an end the proceedings the moment it is concluded. The
court,
therefore, will not have jurisdiction make the settlement an order of
court. The argument cannot be sustained in the light
of clear
authority to the contrary. There is no suggestion that the court had
no jurisdiction when the summons was served and when
trial commenced.
[7]
I consider it necessary also to mention, in passing, that the court,
as the upper guardian of all minor children, could not
have acted as
a mere rubber stamp of the parties. It is indeed obliged in terms of
the common law to approve a proposed settlement.
It is usual that
where a minor is awarded damages that the money be paid into the
guardians fund or that a
curator bonis
be appointed with power to invest the money until the child attains
majority. See
Ex Parte Visser NO In Re
Khoza
2001 (3) SA 524
(TPD) at 527H-I;
Ex Parte Bloy
1984
1984 (2) SA 410
at 413A. Provisions along those lines are absent from
the proposed draft order presented to the learned judge.
[8]
The proceedings before the deputy judge president have not been
concluded and are still pending. A court, who is seized with
the
action may exercise its inherent power to protect and regulate its
own process. See also
Universal City
Studios Inc and Others v Network Video (Pty) Ltd
1986
(2) SA 735
(A) at 754G-H. In terms of section173 of the Constitution,
a court, in addition to the aforesaid power, has the power to develop
the common law in the interests of justice.
[9]
However, as I see it, the learned deputy judge president was called
upon to review her own decision in the motion application.
The
primary means to correct a judicial error by a judge who has made a
final decision, leaving aside an order granted
ex parte
by a
judge which may be corrected by another single judge through the
ordinary processes of court, is by way of an appeal to a
higher
court.
In
Pretoria Portland Cement Co Ltd v Competition Commission
2003
(2) SA 385
SCA at para 35 Schutz JA said:
“
Review
is not directed at correcting a decision on the merits. It is aimed
at the maintenance of legality, at the administration
of the ‘law
which has been passed by the Legislature’ as Bell J put it on
the same page of Meintjies’s case.
And throughout it has been
the High Court, and only the High Court, acting through its Judges,
that has enjoyed the general, inherent
jurisdiction to entertain
reviews. It is not itself subject of review – see the cases
cited in para [29]. There are other
means, quite sufficient means, to
which I will come, by which the judgement of a Judge may be
corrected.”
Courts
are, also subject to the rule of law on which our constitutional
dispensation rests. Section 2 of the Constitution regulates
all
public power. When judges erred in the performance of their judicial
duties the subject affected by the defective order has
the right to
be afforded a proper hearing by means of an appeal on whether the
order should be set aside. Proper process must therefore
be followed
to set court orders aside because they, even if defective, have legal
consequences. See
Economic Freedom
Fighters v Speaker, National Assembly and Others
2016 (3) SA 580
(CC) at par 74.
[10]
It is, of course, open to an appellant to raise in an appeal the
grounds which would have been grounds for review in another
tribunal.
Section 16(1)(a)(i)
of the
Superior Courts Act 10 of 2013
states:
“
Subject
to section 15(1) of the Constitution and any other law-
(a)
an appeal against any decision of a
Division as a court of first instance lies, upon leave having been
granted-
(i)
if the court consisted of a single judge,
either to the Supreme Court of Appeal or to a full court of that
Division, depending on
the direction issued in terms of section
17(6);”
There
can be no doubt that no other process than an appeal is prescribed if
a party is dissatisfied with a final decision of a high
court in a
civil case.
[11]
Mr Shakoane SC did not suggest that there is a common law right that
allows a court to declare proceedings before it a nullity
if an
irregularity was committed by the judge during a trial. This court
may only do what the law permits. To allow such a process,
where
hitherto none existed, will, have a profoundly negative effect on the
orderly administration of justice and will render section
16 of the
Superior Court Act and the fair trial rights contained in section 34
of the Constitution, nugatory.
[12]
Because of the view I have taken of the appeal, I need say no more
than that it is unwise to comment on whether the learned
deputy judge
president was correct or not in approaching the matter the way she
did.
The
appeal falls to be dismissed. The appeal is not opposed and therefore
no costs order is warranted.
ORDER:
The
appeal is dismissed.
_______________
G.C
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
I
concur
__________________
M.G
PHATUDI
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
I
concur
__________________
M.V
SEMENYA
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
APPEARANCES
For
Appellant:
G. Shakoane SC
For
Respondent: No
appearances
Date
heard:
21 April 2017
Date
of judgement: 18 May 2017