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[2013] ZAGPPHC 38
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S v Malumane and Another (A92/13) [2013] ZAGPPHC 38 (7 February 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
MagistrateKWA-MHLANGA
Case
No: SC47\2011
High
Court Ref No:
CASE
NUMBER:A92/13
DATE:07/02/2013
THE
STATE V MFANA LANIOS MALUMANE
AND
KLAAS JAN MAHLANGU
REVIEW
JUDGMENT
LI
VORSTER (AJ)
1.
The applicant applies for the review of a judgment granted by default
in the small claims court for the District of Kwa- Mhlanga.
The
judgment was granted on 21 June 2011 for the amount of R 3000.00 ,
and the costs of the Sheriff in the amount of R 120,00.
2.
It appears that the applicant was not present at court at the date of
court as the applicant was absent at court due to medical
treatment
on that date.
3.
The sole ground of which the applicant relies on is the fact that he
was not at court, judgment was granted in his absence by
default and
that he wants his version to be put to the court.
4.
That is not a ground for review which the applicant can rely on.
That
is clear from the provisions of Section 46 of the Small claims Court
Act 61 of 1984.
5.
The grounds upon which a decision or proceedings of the small claims
court can be taken on review to this court are:-
(a)
absence of jurisdiction on the part of the court, are :
(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 of Chapter
2 of
the Provision and Combating of Corrupt Act, 2004, on the part of the
commissioner, and
(c)
Gross irregularity with regard to the proceedings.
6.
None of these grounds of review are alleged. Consequently, the review
cannot succeed. The correct remedy of the applicant is
Section 36 of
the Small Claims Court Act which provides in Section 36 (a) for an
application to rescind or vary any judgment granted
in the absence of
the person against whom that judgment was granted. That application
must be set down for a hearing on a date
within six weeks after the
applicant obtained knowledge of the judgment.
7.
I am uncertain whether that remedy is still available to the
applicant, given laps of the period of time between the date of
the
judgment and today.
8.
Consequently the application for a review is dismissed.
LI
VORSTER
ACTING
JUDGE OF THE HIGH COURT
I
AGREE,
MAKGOBA
EM
JUDGE
OF THE HIGH COURT