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[2015] ZAGPPHC 282
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Molekwa and Another v Seloba (A285/15) [2015] ZAGPPHC 282 (4 May 2015)
IN
THE GAUTENG DIVISION, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Magistrate: Phalala
Review Case no:
SC28/2013
Magistrate’s
Serial no: SC28/2013
High Court Ref no:
167/14
Date: 4 May 2015
Case number: A285/15
JESIA MOLEKWA
& MONENE ZACHARIA
VS
MPHO SELOBA
REVIEW JUDGMENT
MSIMEKI. J
INTRODUCTION
[1] The matter
served before me as a stated review case. The plaintiffs are Mr
Molekwa (Molekwa) and Mr (Monene) while the defendant
is Mr M G
Seloba (Seloba).
BRIEF FACTS
[2] The matter
concerns a building contract which the defendant concluded with the
government. It is unfortunately unknown whether
the other party is
the National, Provincial or Local government. This is not disclosed.
The defendant after getting the contract,
employed the two plaintiffs
who had to assist him in the project. It appears that the plaintiffs
were not paid in full and this
resulted in the action which the two
plaintiffs brought against the defendant. The allegations seem to be
that Molekwa is owed
R4100.00 and Monene R1200.00. The defendant
denied owing the two plaintiffs as alleged.
[3] Both the
plaintiffs testified. It is, however, not clear if they called
witnesses. The defendant testified and called a witness.
[4] The matter
appears to have been before the court a number of times the last of
which was 21 November 2013 when judgment was
granted in favour of the
plaintiffs.
[5]
The defendant, on 4 December 2013, applied for the review of the
matter. His application was based,
inter
alia,
on
the following grounds:
1. That he was not
given an opportunity to cross examine the plaintiffs.
2.
That the principle of
audi
alteram parten
was
not followed.
3. That the
conclusion reached “was based on sympathy than justice”.
This would seem to be conveying that there was
bias on the part of
the commissioner.
[6] The
commissioner, on 4 February 2014, responded to the defendant’s
application. The response is as follows:
“
RE:
APPLICATION FOR REVIEW OF THE CASE OF MR SELOBA MG V/S MR MOTSWAI
MOLEKWA & OTHER. CASE NUMNER: 28/2013
The above matter was
partly heard on 14 March 2013 and postponed to 20 June 2013 for
witnesses Lebiso Zero and Elias Segabetla after
evidence heard in the
matter.
In order to obtain
further information the case was postponed until 20 June 2013 for
evidence of the abovementioned witnesses.
After further
postponements the matter was finalized on 21 November 2013.
The defendant was
given ample opportunity for stating his case and cross examined the
plaintiff’s during the final hearing
after the defendant had
also opportunity during the previous occasion on 14 March 2013 to
cross examine the plaintiffs.
During the hearing
on 21 November 2013 the defendant was not able to prove any case
against the plaintiffs and a ruling was given
on the matter after
considering all the facts available and granted judgment in favour of
the plaintiffs.
The defendant at his
own peril just continued to repeat what was already on record in the
matter and not of any use.
The defendant has to
be silenced after judgment due to his disrespect to accept the
judgment”
[7] Upon receipt and
perusing the documents presented before me, I realised the need to
engage the commissioner by asking him to
respond to my request for
information in order for me to do justice to the matter. My request
was as follows:
“
The
Commissioner is requested to respond to the following questions
within 7 days of receipt of the request.
1. It is not clear
as to what transpired in court. There is no evidence or
understandable summary. Can this be attended to.
2. It is difficult
to follow what transpired following the notes made available. Could
the Commissioner furnish understandable summary
or evidence which
will enable us to deal with the matter.
3. The defendant
claims that he was not allowed to cross examine the plaintiff(s).
Kindly comment.
4. Kindly let us
know:
1. Who testified on
behalf of which plaintiff?
2. Was the defendant
allowed to cross examine those who testified?
3. Kindly provide us
with the sequential list of how the witnesses testifies, what was
said and the cross examination.
4. Did the defendant
call witnesses? if so, what was their evidence?".
The commissioner,
whom I am indebted to for his responses, responded as follows:
“
RE:
REQUEST FOR INFORMATION BY THE REVIEWING HONOURABLE JUDGE M W
MSIMEKI:
AD
PARAGRAPH 1:
Evidence was heard
of both plaintiffs and the defendant on 3 October 2013.
The
defendant testified that he obtained a building contract with the
government and employed
inter
alia
the
plaintiffs to work in the project.
The plaintiffs
agreed to the work at R20 per 4 m
2
.
AD PARAGRAPH
2:
The contract
obtained by the defendant was terminated by government after a period
on account of not being able to stick to time
frames.
The plaintiffs
worked at the project of the defendant for 3 months where after the
plaintiffs was told to stop work.
The amount still
outstanding and due to the plaintiffs amounted to R4106.00 for J
Molekwa and R1200.00 for Z Monene.
The defendant
indicated that there was no paper work available to assist his
version that the plaintiffs in fact received full payment
for their
word done over a period of 3 months.
The defendant
indicated that he wanted to call George Molefe and Elias Lebise as
witnesses.
The matter was then
postponed to allow the witnesses as requested.
The
aforesaid witnesses were of no assistance to take the matter further.
AD
PARAGRAPH 3:
The defendant was in
fact fully allowed to cross examine the plaintiff which has become of
no use to reach any other conclusion
for a finding.
AD PARAGRAPH
4.1
The plaintiffs
testified personally on behalf of each and were allowed cross examine
all witness called;
AD PARAGRAPH
4.2
The
defendant was in fact allowed to cross examine all witnesses called;
AD
PARAGRAPH 4.3
The sequential list
of witnesses was Jesia Molekwa, Zacharia Monene, Mpho Seleba and
Lucas Lebese.
AD PARAGRAPH
4.4
The defendant has
called witnesses as recorded above.
This matter was
heard in March 2013 which makes it more difficult to remember details
of the proceedings without proper recording
equipment.
I hope that the
contents of the information recorded above will be of assistance.”
[8] It is important
to refer to two sections of the Small Claims Courts Act No. 61 of
1984 (The Act) before one deals with the matter.
These are sections 3
and 46.
Section 3 provides:
“
3
Nature of courts and force of process. _ (1) Subject to the
provisions of subsection (2), a court shall not be a court of record.
(2) The presiding
officer shall record or cause to be recorded the verdict, judgment or
order of the court and shall sign it”.
Section 46 provides:
“
46
Grounds of review ._The grounds upon which the proceedings of a court
may be taken on review before a Provincial or Local division
of the
Supreme Court of South Africa are -
(a ).........
(b) Interest in
the cause, bias, malice or the commission of an offence referred to
in Part 1 to 4, or section 17, 20 or 21 (in
so far as it relates to
the aforementioned offences) of chapter 2 of the
Prevention and
Combating of Corrupt Activities Act, 2004
on the part of the
commissioner; and
(c) Gross
irregularity with regard to the proceedings.”
THE ISSUES
[9] The issues to be
determined are:
1. whether the
matter was properly handled and in accordance with justice.
2. whether the
defendant has produced evidence demonstrating the presence of any of
the grounds mentioned in section 46 of the Act.
[10]
Section 3 specifically states that the court is not a court of
record. There appears to be no proper recordal of the proceedings
of
the court. This no doubt creates a huge problem. The commissioner,
inter alia,
said:
“
This
matter was heard in March 2013 which makes it more difficult to
remember details of the proceedings without proper recording
equipment”.
One can understand
the commissioner’s difficulties. No one, without a proper
record, can be expected to remember what transpired
in a case in
2013. This, indeed, has created a huge challenge.
[11] Without a
proper record it is almost impossible for me to see and understand in
the clearest perspective what transpired in
this matter. I hardly can
say that the defendant has or has no justiciable case. I can also not
say that the proceedings were or
were not in accordance with justice.
One would be in a better position to adjudicate upon the matter if
the record of the proceedings
existed.
[12]
Justice, in my view, and in the circumstances of this matter, demands
that the matter be heard
de
novo
and
before a different commissioner.
I hold the view that
the proceedings in the Small Claims Courts also ought to be properly
recorded. Without a proper record it becomes
unfair to expect the
commissioner to remember what transpired in his court in 2013. A
proper record of the proceedings, in my view,
should also be
generated and properly kept in the Small Claims Courts. A proper
adjudication of cases such as this is impeded by
the absence of the
necessary records.
[13] I, in the
result, make the following order:
1. The judgment and
order of the commissioner of 21 November 2013 is hereby set aside.
2.
It is ordered that the matter be heard
de
novo
before
a different commissioner who must ensure that a proper record is
generated and kept.
M.W.MSIMEKI
JUDGE OF THE
GAUTENG DIVISION
PRETORIA
I agree
And it is so
ordered.
N.M.MAVUNDLA
JUDGE OF THE
GAUTENG DIVISION
PRETORIA