About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 890
|
|
Mutale v Bronkhorstspruit Magistrate and Another (82407/2014) [2016] ZAGPPHC 890 (4 October 2016)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.:82407/2014
4/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
CONSTANCE
MUTALE APPLICANT
and
BRONKHORSTSPRUIT
MAGISTRATE FIRST
RESPONDENT
MR
KLAUS
HOCH SECOND
RESPONDENT
Heard:
24 March 2016
Delivered:
4 October 2016
JUDGMENT
A.A.LOUW
J
Introduction
[1]
In case number 109004/09 in the magistrate court for the district of
Pretoria judgment was granted in favour of a judgment creditor
Mr
Hoch against a judgment debtor Mr Wahab.
[2]
In execution of that judgment and in the district of Bronkhorstspruit
movable goods which the present applicant alleged to have
been hers
were attached by the Sherriff.
[3]
The applicant notified the Sheriff of her claim to ownership of the
relevant goods and an interpleader hearing was held before
the first
respondent, Mr MJ Kruger, on 10 December 2010. He dismissed the
applicants interpleader claim.
[4]
It is that decision which the applicant now wants to have reviewed
and set aside. This case was heard in the unopposed motion
court on
24 March 2016. During argument before me, the applicant who appeared
in person, said that she wanted to have the judgment
reviewed in
order that she can claim compensation from the Department of Justice
for the loss of her property, which since the
judgment of the first
respondent have been sold. Her goods were sold on auction in early
2011.
[5]
All the papers herein were also drafted by the applicant personally
and she has no legal knowledge. I have tried my best to
figure out
what her case against the first respondent is and how she can obtain
compensation from the Department of Justice for
the decision in the
interpleader proceedings. The applicants case is not clear to me.
[6]
In the absence of
ma/a tides
a decision by a judicial officer
does not give rise to a damages claim.
[7]
The applicant has a further more fundamental -problem. This is the
extent of her delay in instituting this review after the
judgment in
December 2010. This application was issued by the registrar on 11
November 2014. That is nearly four years after the
decision by the
first respondent.
[8]
In
OUTA,
[1]
the SCA summarised the principles that apply to delay under PAJA:
"At common law application of
the undue delay rule required a two stage enquiry. First. whether
there was an unreasonable delay
and. second. If so,
whether the delay should
in all the circumstances be condoned
.
Up to
a
point,
I think, s 7(1) of PAJA requires the same two stage approach. The
difference lies,
as
I
see
it,
in the legislature's determination of
a
delay exceeding 180
days as per
se
unreasonable.
Before
the effluxion of 180 days. the first enquiry in applying s 7(1) is
still whether the delay (if any) was unreasonable.
But after the 180 day period
the issue of unreasonableness is pre-determined by the legislature;
it is unreasonable per
se.
It follows that the court is
only
empowered
to entertain the review application if the interest of justice
dictates an extension in terms of s 9. Absent such extension
the
court has no authority to entertain the review application at all.
Whether or not the decision was unlawful no longer matters.
The
decision has been 'validated' by the delay. That of course does not
mean that, after the 180 day period, an enquiry into
the reasonableness of the
applicant's conduct becomes entirely irrelevant. Whether or not the
delay was unreasonable and, if
so,
the extent of that
unreasonableness is still a factor to be taken into account in
determining
whether
an extension should be granted or not.”
[2]
(our underlining)
[9]
I find the delay of the applicant to have been extreme, that is, the
period of nearly four years. Especially so, if one considers
that the
purpose of the review is not an end in its self but, as applicant
sees it, the first step in claiming compensation for
the loss of her
goods against the Department of Justice. I have already above pointed
out the problems that she has in that regard.
[10]
The applicant has not provided reasons and set out any facts which
show that the delay was reasonable in all the circumstances.
[11]
I therefore order as follows:
"The application is dismissed
with costs."
_____________________
A.A.
LOUW
Judge
of the High Court
[1]
Opposition to Urban Tolling Alliance and Others v The South African
National Roads Agency Ltd and Others (2013] 4 All SA 639
(SCA)
[2]
OUTA (supra) at para 26