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
>>
2015
>>
[2015] ZAGPPHC 447
|
|
Botha v Singh and Others (30761/14) [2015] ZAGPPHC 447 (21 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 30761/14
DATE: 21 MAY 2015
In the matter between:
LETETIA LOUISE
BOTHA
....................................................................................................
Applicant
And
MAGISTRATE PL
SINGH
…......................................................................................
1
ST Respondent
ROAD ACCIDENT
FUND
...........................................................................................
2ND
Respondent
MAGISTRATE W
LOUW
...........................................................................................
3RD
Respondent
MINISTER OF JUSTICE &
CONSTITUTIONAL DEVELOPMENT
..................
4TH
Respondent
JUDGMENT
KGANYAGO. AJ
[1 ] This is an application brought by
the applicant seeking an order to compel the first respondent a
senior magistrate in the
Pretoria Civil Regional Court to allocate a
trial date in case number 518/2011. The first, third and fourth
respondents are opposing
the applicant’s application. The
second respondent did not enter an appearance to oppose.
[2] The applicant has instituted an
action against the second respondent in the district magistrate
court. The action against the
second respondent in the district
magistrate court was instituted before the Jurisdiction of Regional
Courts Amendment Act, 31
of 2008 (“the Regional Court of Act”)
which empowers regional courts to adjudicate on civil matters came
into operation.
After the Regional Court Act came into operation, the
applicant engaged the services of an actuary to calculate her alleged
damages
which she might have suffered. After the actuarial report was
prepared, it was found that the alleged damages exceeded the
jurisdiction
of the district magistrate court.
[3] The applicant amended her
particulars of claim and the second respondent did not object. The
attorneys for the first and second
respondent consented to the action
been transferred from the district magistrate court to the regional
court.
[4] An application was brought before
the third respondent seeking an order that the applicant’s
action be transferred from
the district court to the regional court.
The third respondent granted the order as prayed for.
[5] The action was duly transferred to
the regional court. However the first respondent informed the parties
that the civil regional
court did not have jurisdiction to hear their
matter and he refused to allocate a date of trial for that matter.
[6] The applicant initiated an
application in the High Court under case no: 63237/2012. The said
application was similar to the
present one. They obtained a default
order which was later rescinded by agreement. However due to some
technicalities the application
was withdrawn and they brought the
fresh application which is presently before this court.
[7] According to the applicant, section
35(1) of the Magistrate Court Act 32 of 1944 provides that if both
parties consent thereto,
an action may be transferred from one court
to another court. They further submit that as long as the order of
the third respondent
has not been set aside, the first respondent
should comply with it. The respondent contend that the Regional Court
Act does not
apply retrospectively. They further submit that the
decision of the third respondent was not an order as it is not
appealable.
[8] Section 35(1) of the Magistrate
Court Act 32 of 1944 (“the Magistrate Court Act”) read as
follows:
“ (1) An action or proceedings
may, with the consent of all the parties thereto, or upon the
application of any party thereto,
and upon its being made to appear
that the trial of such action or proceeding in the court wherein
summons has been issued may
result in undue expense or inconvenience
to such party, be transferred by the court to any other court. ”
[9] The section does not specify which
court must the parties transfer their action or proceedings, but
refers to any other court.
In my view any other court may include a
magistrate court, regional court or high court. What is important is
all the parties must
consent or any other party to the action or
proceeding may bring an application for such purpose.
[10] In this case it is not in dispute
that all the parties have consented to the transfer of the
applicant’s action from
the Magistrate Court to the Regional
Court.
[11] Even though all the parties have
consented to the transfer of the applicant’s action from the
Magistrate Court to the
Regional Court, the applicant brought an
application by way of notice of motion seeking the following orders:
“ 1. Dat die askie order saak
nommer 90485/2009 na die streekhof oorgeplaas word in terme van
Artikel 35 van die wet op Landroshoww,
32 van 1944,
2. Dat die koste van die aansoek deur
die Respondent betaal word, slegs in geval van opponering. ”
[12] It is clear that the applicant has
brought a formal application by way of notice of motion seeking an
order that the applicant’s
action be transferred from the
Magistrate Court to the Regional Court. After hearing the applicant’s
application, the third
respondent gave the following order:-
“ aansoek toegestaan. ”
[13] It is clear that the third
respondent has granted an order as prayed for by the applicant’s
legal representative. That
in my view was a valid order. Therefore
the submission by the respondent’s counsel that the decision of
the third respondent
to transfer the action of the applicant from the
magistrate court to the regional court was not an order has no merit.
[14] The respondent’s counsel has
conceded that the order of the third respondent has not been set
aside. An order of a court
of law stand until set aside by a court of
competent jurisdiction. Until that is done the court order must be
obeyed even if it
is wrong or you dislike it. In Gauteng Province
Driving School Association and Others v Amaryllis Investments (Pty)
Ltd and others
[201
2] All SA 290
(SCA) the court held that respect
for authority of the courts is foundational to the rule of
law. See also Bezuidenhout v Patensie
Sitrus Beherend BPK
2001 (2) SA 224
(E).
[15] It is of paramount importance that
orders of the court are respected and compiled with. As an officer of
the court the first
respondent should be an
exemplary. Disobedience of court orders
by judicial officers will make a mockery of the courts. As a regional
court magistrate,
in my view he is expected to know what procedure to
follow if he is of the view that the
order made is not capable of been
enforced, rather than a blatant refusal to carry out the order.
[16] In my view the first respondent is
acting as if he is a court of competent jurisdiction empowered to
review the order of the
third respondent. He is exercising powers
which he does not have. He is compelled to obey the order of the
third respondent since
that order has been properly obtained and will
remain valid until set aside by a court of competent jurisdiction. It
is not his
terrain to determine whether the order is wrong or not,
and thereafter out of his own and without following the correct
procedures,
refuse to enforce the order.
[17] At this stage it not necessary to
determine whether the Regional Court Act apply retrospectively or not
since this is not an
appeal or review of the order of third
respondent.
[18] Under the circumstances, I am
satisfied that the third respondent has
made a valid order which was never set
aside. As long as that order has not been set aside, the first
respondent is compelled to
respect and enforce it whether he agrees
with it or not.
[19] In the result I make the following
order:
19.1. That the first respondent is
ordered to allocate a trial date under Pretoria Civil Regional Court
case number 518/2011 within
60 days of this order.
19.2. The first, third and fourth
respondents to pay the applicant’s costs jointly and severally,
the one paying the other
to be absolved.
ACTING JUDGE OF THE GAUTENG
DIVISION,(PRETORIA)
MF KGANYAGO AJ
Heard on: 29th April 2015
For the Applicant: Adv Instructed
by:
For the Respondents: Adv Instructed
by:
Date of Judgment:21 MAY 2015