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[2017] ZALMPPHC 40
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Old Mutual Finance (Pty) Ltd v Makalapetlo (REV152/2017) [2017] ZALMPPHC 40; 2018 (3) SA 258 (LP) (6 December 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: REV 152/2017
Reportable
Of
interest to other judges
Revised.
6
December 2017
In
the matter between:
OLD
MUTUAL FINANCE (PTY)
LTD
PLAINTIFF
(JUDGMENT
CREDITOR)
and
MOTLATSO
JOYCE MAKALAPETLO
DEFENDANT
(JUDGMENT
DEBTOR)
JUDGMENT
MAKGOBA
JP
[1]
A default judgment in this matter was entered by the Clerk of the
Court in Polokwane Magistrates’ Court on 12 November
2013.
After judgment the matter was transferred to the Magistrates’
Court, Morebeng, it being the district in which the judgment
debtor
was employed, to enable the judgment creditor to institute
proceedings in terms of Section 65A(1) of the Magistrates Court
Act
32 of 1944 in order to recover the judgment debt.
[2]
The Magistrate at Morebeng, Ms Raborife-Nchabeleng could not proceed
with the Section 65A (1) proceedings as she, correctly
so, discovered
that the judgment granted in Polokwane Magistrate’s Court was
invalid in that it was entered by the clerk
of the Court contrary to
the provisions of Rule 12(5) of the Magistrates’ Court Rules.
Magistrates’
Court Rule 12(5) provides that –
“
The
registrar or clerk of Court shall refer to the Court any request for
judgment on a claim founded on any cause of action arising
out of or
based on an agreement governed by the National Credit Act, or the
Credit Agreement Act, 1980 (Act No 75 of 1980), and
the Court shall
thereupon make such order or give such judgment as it may deem fit.”
It
is common cause that the cause of action in the default judgment in
issue arose out of, or was based on an agreement (being money
lent
and advanced) governed by the
National Credit Act 34 of 2005
.
[3]
The Magistrate, having realized that she could not set aside or vary
the default judgment,
mero
motu
submitted
the matter to the High Court for review. At the High Court the matter
came to the attention of Judge President who expressed
the view that
there is no procedure in the Rules of Court in terms whereby a
Magistrate can
mero
motu
refer a judgment or proceedings of the lower Court to the High Court
for review. That the proper procedure to be followed should
be in
terms of Rule 53 of the Uniform Rules of Court.
[4]
It would appear that our Magistrates have been following a precedent
laid down in two Review Judgments emanating from the Limpopo
Division
of the High Court. I am indebted to Magistrate Raborife-Nchabeleng
for having brought to my attention those decided cases.
[5]
The first case is a judgment by Raulinga J (Vorster AJ concurring) in
case number 86/2013 date 30 July 2013. In this case the
Magistrate of
Dzanani simply submitted fifteen default judgments to the Limpopo
High Court with a request that they be reviewed
and the judgment were
indeed reviewed and set aside.
The
second case is that of A M Alberts (Pty) Ltd t/a Progress Milling
versus M S Masutha t/a Makepies Store General Dealer also
emanating
from the Magistrate’s Court of Morebeng. The review judgment in
the Limpopo High Court, Case No 02/2015 was handed
down by Legodi J
(with Kgomo J concurring). The learned Judge in this matter also
reviewed and set aside the default judgment as
submitted by the
Magistrate.
[6]
Realising that there is a precedent and that our Magistrates are
compelled to follow the
stare
decisis
principle
in their judgments, the Judge President found it prudent to
constitute a Full Bench of the Limpopo Division to look into
the
correctness of the aforementioned decisions in the same Division.
[7]
It is against this background that a Full Bench of this Division
consisting of Makgoba JP, Mokgohloa DJP and Muller J has been
constituted to come up with a decision that will guide the Magistracy
in matters of this nature.
[8]
This judgment will look into the following issues:
8.1. Whether in Civil
Proceedings a Magistrate can
mero motu
send a judgment or
decision to the High Court for review just like in Criminal
Proceedings where the review procedure is laid down
in Sections 302
up to 304 of the
Criminal Procedure Act 51 of 1977
.
8.2.
What Magistrates should do when faced with a situation where a civil
judgment is null and void and needs to be set aside by
the High
Court.
[9]
The
Criminal Procedure Act 51 of 1977
in
Sections 302
up to 304
provides for a procedure in relation to the review of the
Magistrates’ Court proceedings by the High Court.
Section 302
deals with sentences subject to review in the ordinary course. This
is what is usually called “automatic review”.
[10]
Section 304(4)
provides that –
“
304(4)
If in any criminal case an in which a magistrate’s court has
imposed a sentence which is not subject to review in the
ordinary
course in terms of
section 302
or in which a regional Court has
imposed any sentence, it is brought to the notice of the provincial
division having jurisdiction
or any judge thereof that the
proceedings in which the sentence was imposed were not in accordance
with justice, such court or
judge shall have the same powers in
respect of such proceedings as if the record thereof had been laid
before such court or judge
in terms
section 303
or this section.”
The
review procedure laid down in
section 304(4)
is what is colloquially
called “Special review”. Herein the magistrate simply
submits the record of the proceedings
to the registrar of the high
Court under a covering letter or memorandum requesting a Judge to set
aside the proceedings in the
Magistrate’s Court.
[11]
It should be pointed out that in civil proceedings there is no such a
procedure as set out in
sections 302
and
304
of the
Criminal
Procedure Act. In
my view this is where the confusion arises. Our
Magistrates seem to assume that the review procedure in criminal
proceedings is
equally applicable in civil proceedings.
[12]
Section 21
of the
Superior Courts Act 10 of 2013
provides for the
jurisdiction of the high Court in respect of persons over whom and
matters in relation to which the Court has
jurisdiction. The relevant
portion reads:
“
21(1)
A Division has jurisdiction over all persons residing or being in,
and in relation to all causes of action arising and all
offences
triable within, its area of jurisdiction and all other matters of
which it may according to law take cognizance, and has
the power –
(a)
to
hear and determine appeals from all Magistrates Courts within its
area of jurisdiction;
(b)
to
review the proceedings of all such Courts.”
[13]
The grounds for review of proceedings of the Magistrates’ Court
are set out in
Section 22:
1.
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“
22(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.
In
terms of
Section 22(1)
(c) proceedings of any Magistrate Court may be
brought under review before the high Court on the ground of gross
irregularity in
the proceedings. This provision is relevant to the
issue before us in this matter wherein an irregular judgment from the
Magistrates’
Court is sought to be reviewed and set aside by
this Court.
[14]
It should be noted that whilst
sections 21
and
22
of the
Superior
Courts Act provide
for the powers and jurisdiction of the high Court,
they do not lay down the procedure whereby the high Court would
handle the review
proceedings.
In
this regard the Uniform Rules of Court would come into the picture.
This is unlike in criminal proceedings where
sections 302
to
304
of
the
Criminal Procedure Act, 1977
establish the right of review and
the procedure thereof. In civil proceedings the relevant rules of
procedure for review applications
are
Rule 6
and
Rule 53.
[15]
Uniform
Rule 6(5)
(a) (b) and (d) of the Rules governing the
proceedings in the high Court provides that:
“
(5)
(a) Every application other than the one brought ex parte shall be
brought on notice of motion as near as may be in accordance
with Form
2(a) of the First Schedule and true copies of the notice, and all
annexures thereto, shall be served upon every party
to whom notice
thereof is to be given.
(b)
In such notice the applicant
shall
…. Subject to the
provisions of section 27 of the Act,
set forth a day
, not less
than five days after service thereof on respondent,
on or before
which such respondent is required to notify the applicant
, in
writing, whether he intends to oppose such application,
and shall
further state
that if no such notification is given the
application will be set down for hearing
on a stated day
, not
being less than 10 days after service on the said respondent of the
said notice.
(d)
Any person opposing the grant of the order sought in the notice of
motion shall –
(i)
within the time stated in the said notice
, give applicant
notice in writing, that he intends to oppose the application……”
(
Underlining
is
mine for emphasis only)
[16]
Uniform Rule 53(1) and (2) provides:
“
53(1)
Save where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of any inferior Court
and of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of notice
of motion directed
and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer
or chairperson of
the Court, tribunal or board or to the officer, as the case may be,
and to all other parties affected –
(a)
calling
upon such persons to show cause why such decision or proceedings
should not be reviewed and corrected or set aside, and
(b)
calling
upon the magistrate, presiding officer, chairperson or officer, as
the case may be, to dispatch, within fifteen days after
receipt of
the notice of motion, to the registrar the record of such proceedings
sought to be corrected or set aside, together
with such reasons as he
or she is by law required or desires to give or make, and to notify
the applicant that he or she has done
so.
(2)
The notice of motion shall set out the decision or proceedings sought
to be reviewed and shall be supported by affidavit setting
out the
grounds and the facts and circumstances upon which the applicant
relies to have the decision or proceedings set aside or
corrected.”
[17]
As I have already stated, the default judgment which is sought to be
reviewed herein was granted by the clerk of the Court.
Section 58A of
the Magistrates’ Court Act 32 of 1944 provides that any
judgment by default entered in terms of this Act by
the clerk of the
Court, shall be deemed to be a judgment of the Court. The effect of
this provision is that a magistrate is precluded
from varying the
judgment by the clerk of the Court and must enforce it despite its
irregularity unless it is set aside by the
high Court. Therefore
where Rule 53 refers to a review of decisions of a magistrate, this
will include review of the judgments
entered by the clerk of the
Court.
[18]
The notice of motion in both Rule 6 and Rule 53 makes provisions for
giving notice to the respondent, calling upon the latter
to respond.
Furthermore the respondent is called upon to give reasons for the
decision taken and / or show cause why the decision
should not be
reviewed and set aside. This is in conformity with the legal
principle of
audi
alteram partem rule
.
[19]
The procedure adopted by our Magistrates whereby they would
mero
motu
submit judgments to the high Court for review without knowledge and /
or participation of the erstwhile plaintiff and defendant
is clearly
not in accordance with the
audi
alteram partem rule
.
It must be borne in mind that the judgment creditor and judgment
debtor are the interested parties in the purported review
proceedings.
I am unable to see how the magistrate can be an
interested party in the proceedings and assume the role of the
applicant.
[20]
The guidance this Court can give to the magistrate faced with
irregular judgment like in the present case is that the irregularity
should be pointed out to the interested or affected parties
(plaintiff or defendant, judgment creditor or judgment debtor) and
advise them that the matter is reviewable by the High Court under
Rule 53.
There
is no room for the magistrate to simply submit the case to the high
Court for review.
[21]
The alternative procedure whereby a judgment which is void
ab
origine
can
be set aside is an application for rescission of judgment in terms of
Section 36(1) (b) of the Magistrates’ Court Act,
1944 read with
Rule 49 of the Magistrates’ Court Rules. This application is
brought in the Magistrate Court by any of the
interested parties
except the magistrate. I need not go further into the aspect of
rescission of judgment assuming that all magistrates
are conversant
with the procedure.
[22]
The Magistrate in bringing this matter to this Court for review
submitted that this Court has inherent powers to review any
matter
before it wherein an irregularity is noted and it should not be left
to the judgment debtor to institute proceedings to
set aside such a
judgment. Whilst appreciating the learned magistrate’s noble
idea in this regard, we are not persuaded that
this matter calls for
the exercise of the High Court inherent powers.
[23]
A high Court may not use its inherent jurisdiction to create a right.
It follows that a high Court can only exercise its inherent
jurisdiction in relation to the regulation of its own process when
confronted with a case over which it already has jurisdiction
and
when faced with procedures and rules of the Court which do not
provide a mechanism to deal with an instant problem. A Court
will, in
that case, be entitled to fashion the means to deal with the problem
to enable it to do justice between the parties.
See:
Oosthuizen
v Road Accident Fund
2011 (6) SA 31
(SCA)
at
[20]
.
[24]
In
casu
there
are rules of Court in the form of Rule 6 and Rule 53 which provide a
mechanism to implement the provisions of
sections 21
and
22
of the
Superior Courts Act, 2013
and allowing the high Court to exercise its
right or jurisdiction to review the proceedings of the lower Courts.
There is no need
for this Court to exercise its inherent powers in
this case.
[25]
It is indeed so that Courts have exercised inherent jurisdiction when
justice required them to do so. However, Botha J, in
Moulded
Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis &
Another
1979 (2) SA 457
(W) at 462H – 463B
sounded the
following caution:
“
I
would sound a word of caution generally in regard to the exercise of
the Court’s inherent power to regulate procedure. Obviously,
I
think, such inherent power will not be exercised as a matter of
course.
The
rules are there to regulate the practice and procedure of the Court
in general terms and strong grounds would have to be advanced,
in my
view, to persuade the Court to act outside the powers provided for
specifically in the Rules. Its inherent power, in other
words, is
something that will be exercised sparingly…… I think
the Court will exercise an inherent jurisdiction whenever
justice
requires that it should do so…. The Court will only come to
the assistance of an applicant outside the provisions
of the Rules
when the Court can be satisfied that justice cannot be properly done
unless relief is granted to the applicant.”
[26]
The legal principles laid down in this judgment should not be
misconstrued to mean that the high Court cannot or should not
review
and set aside the judgments or proceedings of the lower Courts.
Sections 21
and
22
of the
Superior Courts Act, 2013
clearly provide
for such review powers. This judgment is concerned with the
procedural aspects of how to implement
sections 21
and
22
of the
Superior Courts Act,2013.
Parties
are at liberty to bring under review by the high Court the
proceedings or judgments of the lower Courts as long as the correct
procedures as laid down in
Rule 6
or
Rule 53
are followed and
complied with. In
casu
the
appropriate procedure to be followed in reviewing the judgment or
proceedings in the magistrate Court is
Rule 53.
[27]
It is trite law that a magistrate has no jurisdiction to
suo motu
rescind a judgment entered by the clerk of the Court under
section 58 of the Magistrates’ Court Act. See:
Laduma
Financial Services v De La Bat NO and Others
1999 (4) SA 1283
(O)
.
It would appear that since the judgment in
casu
has been
granted on 12 November 2013 none of the parties in that case
approached the Court with an application to rescind or vary
same. The
result is that the judgment as granted by the clerk of the Court,
albeit null and void, stands as judgment until there
is an
application to the Court to rescind it.
In
Ramodike
v Mokeetsi Trading Store
1955 (2) SA 169
(T) at 171H it was stated
:
“
Until
properly attacked and rescinded a judgment of Court of record, even
if obtained by default, must stand and be presumed binding.
A
magistrate has no power mero motu to set aside a judgment of his
Court except where there are patent errors therein….”
[28]
In the light of what is set out in this judgment we are of the view
that the precedents as established in the aforementioned
judgments of
Raulinga J and Legodi J are clearly wrong and should not be followed.
[29]
The case before us from Morebeng Magistrate Court (Case No 52/2017)
is accordingly not subject to review by this Court and
is therefore
struck from the roll.
________________________
E
M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
________________________
F
E MOKGOHLOA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
________________________
G
C MULLER
JUDGE
OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE