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[2016] ZALMPPHC 10
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Janse van Rensburg and Another v Additional Magistrate, Tzaneen and Another (REV29/2016) [2016] ZALMPPHC 10 (25 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: REV 59/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In the matter between:
DAVID
SCHALK JANSE VAN RENSBURG N.O FIRST
APPLLICANT
(
In
his capacity as a Trustee of the
Dawie
Van Rensburg Family Trust IT: 3504/1997)
CYNTHIA
RAE JANSE VAN RENSBURG N.O SECOND
APPLICANT
(In
her capacity as a Trustee of the Dawie Van
Rensburg
Family Trust IT: 3504/1997)
and
THE
ADDITIONAL MAGISTRATE, TZANEEN
FIRST
RESPONDENT
PHETOLE
FREDDY
RAMOLETA SECOND
RESPONDENT
JUDGMENT
CHIDI AJ
INTRODUCTION
[1]
This is an application to review and set aside the decision of the
Magistrate Tzaneen, the First Respondent, which decision
was made on
09 December 2015 upholding the exception of the Second Respondent.
[2].
The First Respondent is not opposing this application and has filed
the Notice to Abide. The application is only opposed by
the Second
Respondent. The Second Respondent was the Defendant (excipient) in
the matter before the Magistrate’s Court, Tzaneen.
COMMON
CAUSE ISSUES
[3].
The Applicants issued summons against the Second Respondent in the
Magistrate Court Tzaneen for payment in the sum of R99 206-16
being the outstanding balance of the purchase price. The Second
Respondent entered appearance to defend and filed a notice of
exception raising the following exceptions:
(a).
It
is unclear from the particulars of claim as to the basis upon which
this Honourable Court has jurisdiction to entertain this
matter as
required in terms of the rules of this court;
(b).
It is unclear whether the Defendant has complied with the provisions
of the Section 7 of the Alienation of Land Act as required
in terms
of Rule 5(7) and if so, how was the notice sent to the Defendant;
(c).
It is unclear whether the Plaintiff has performed in terms of the
agreement or not, and if so, how;
(d).
It is unclear as to which specific provision of the agreement the
Defendant is in breach of the agreement and to what extent
is the
Defendant in breach;
(e).
It is unclear in terms of the attached agreement why, how, when and
by whom was the first valid initial agreement which has
not been
attached to the particulars of claim, cancelled;
(f).
It is unclear as to be documentary proof under which the Plaintiff’s
claim is based;
(g).
The summons were served to the Defendant without a case number and
were not signed by clerk of the civil Court.
[4].
The exception was set down for hearing on 2 September 2015 and the
decision was made by written judgment on 09 December 2015.
The
decision of the Magistrate was to the effect, in part, that:
“
I
agree with the argument by the excipient that this court has no
jurisdiction as the agreement annexed to the particulars of claim
is
sold for an amount beyond the jurisdiction of the court. The
Defendant will be prejudiced in pleading to the numerical
figure
without the material terms to which those figures were found.
Therefore the particulars are vague and embarrassing and are
struck
out”(sic).
ISSUES
IN DISPUTE
[5].
The Applicants brought this application in terms of Rule 53 read with
Section 22(1)(c) of the Superior Courts Act,
[1]
( herein after referred to as the Act) on the basis that the
Magistrate failed to apply her mind to the minimal requirements
for an exception, consequently she did not adjudicate on the matter
fairly and properly.
[6].
The Second Respondent is avers that this application is not proper
before this Court as the Applicants should have appealed
the decision
of the Magistrate and not taken it on review. Counsel for the Second
Respondent concedes that the Magistrate committed
an error of law but
that that is an issue of appeal. Counsel for the Second Respondent
submits further that there is no compliance
with Section 22(1) (c) of
the Act which requires a mention of the ground of review being gross
irregularity in the founding affidavit.
GROSS
IRREGULARITY
[7].
In
ERASMUS SUPERIOR COURT
PRACTICE
[2]
defines gross irregularity of civil proceedings as:
“
An
irregularity or omission by the presiding judicial officer or
(possibly some other official of the court) in respect of the
proceedings of so gross a nature that it was calculated to prejudice
the aggrieved litigants, 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”.
[8].
The application before the Magistrate was for an exception that the
summons is vague and embarrassing. The issue then is what
is vague
and embarrassing about the summons. A statement is vague and
embarrassing when it is either meaningless or
capable of
more than one meaning or can be read in any one of a number of ways.
The reader is unable to select from the statement
a clear and, single
meaning.
[3]
[9]. In my view the summons of the
Applicants is very much clear as to what the cause of action is and
how the sum claimed is computed
and arrived at. The claim was for the
outstanding balance on the purchase price.
[10].
The Magistrate granted the exception on the ground that the
Magistrate’s Court does not have jurisdiction as the property
was sold for the amount beyond the jurisdiction of the Magistrate’s
Court. However, the cause of action before her was not
for the value
of the property but for the outstanding balance which is the sum of
R99 206-16. The jurisdictional amount in
the Magistrate Court is
R200 000-00 at present; it follows that the claim of the
Applicants falls within the jurisdiction
of the Magistrate Court. On
this finding alone she made an error of law.
[11].
The Magistrate went further in her judgment and stated that the
particulars of claim is vague and embarrassing and are struck
out.
The application before her was not for striking out certain parts of
the particulars of claim but for exception in terms of
Rule 19(1).
[12].
The Court in
Nelson
Mandela Bay v Nobumba NO
[4]
stated that:
“
It
is argued by the municipality that the Magistrate’s
decision amounts to a gross irregularity in the proceedings,
in that
he misinterpreted the NCA and thereby committed a material error of
law. The making by a magistrate of a material error
of law may be a
‘gross irregularity in the proceedings’ in terms of
Section 24(1)(c) of the Supreme Court
Act
[5]
.
The Magistrate’s reasoning seems to amount to the assertion
that, because the majority of debtors in the Port Elizabeth
Magistrate’s Court are indebted to the municipality for
services rendered by it, it would be a travesty of justice if they
were not protected by the NCA, and it should therefore be interpreted
to include them.”
[13].
In my view the findings of the Magistrate in this case by upholding
the exception on the reasons as she did leads to a travesty
of
justice as the Applicants would be left with no particulars of claim
as it was struck out.
[14]. Consequently, the decision of
the Magistrate falls to be reviewed and set aside as it amounted to
gross irregularity.
COSTS
[15].
The First Respondent is not opposing this application. It is trite
that costs are usually awarded against judicial officers
where it has
been shown that their actions were
mala
fide
[6]
.
In
this application it has not been shown that the Magistrate acted in
bad faith. Even though she has just copied the Second Respondent’s
heads of argument and incorporated same into her judgment that cannot
be interpreted to mean that she was
mala
fide;
all what she did was failure to apply her mind to the issues before
her.
[16].
However, presiding officers in the lower courts should be cautious
when adjudicating civil matters as in some cases costs
may be awarded
against them if it can be found that they acted in a inexcusable
manner.
[17].
The Second Respondent opposed this application even though the
grounds for such opposition were untenable. The Second Respondent
chose to ride a tiger unarmed and the consequences are obvious.
Therefore costs should be awarded only against the Second Respondent.
[18]. In the premises, I make the
following order:
ORDER
1.
The
decision of the First Respondent on 09 December 2015 upholding the
exception is hereby set aside and replaced with the following
order:-
“
The
exception is dismissed with costs”.
2.
This
application for review is granted with costs against the Second
Respondent.
____________________________
M.P
CHIDI
AJ
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
REPRESENTATIVES
1. Applicant’s
Counsel
: Adv. J
Horak
Instructed
by
: Pratt
Luyt & De Lange
2. Second
Respondent’s Counsel :
Sebola K.A
Instructed
by
: Maloka
Attorneys
3. Date
Heard
: 24
October 2016
4. Date
Delivered
: 25
October 2016
[1]
.
Act 10 of 2013.
[2]
Van
Loggerenberg DE “
ERASMUS
SUPERIOR COURT PRACTICE
”
2ed (Juta) 2016, A2-134.
[3]
Venter and Others NNO v Barritt.
Venter and Others NNO v Wolfsberg Arch Investments 2(Pty) Ltd
2008(4)
SA 639 (CPD) at para 11.
[4]
2010(1)
SA 579(ECG), 584 paras 8-9
[5]
Act 59 of 1959, as
amended.
[6]
Magistrate
Pangaker v Botha 2015(1) SA 503(SCA), 513 para 39.