Setlai v Road Accident Fund (A206/2006) [2007] ZAFSHC 70 (30 August 2007)

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[2007] ZAFSHC 70
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Setlai v Road Accident Fund (A206/2006) [2007] ZAFSHC 70 (30 August 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No. : A206/2006
In
the appeal between:
SABATA
JOHANNES SETLAI
Appellant
and
ROAD
ACCIDENT FUND
Respondent
_____________________________________________________
CORAM:
H.M.
MUSI J
et
VAN
ZYL J
_____________________________________________________
HEARD
ON:
20
AUGUST 2007
_____________________________________________________
DELIVERED
ON:
30
AUGUST 2007
_____________________________________________________
Summary:
Civil
procedure in the Magistrate’s Court – fatally defective
proceeding – Clerk of Court’s powers limited to magisterial
district for which he/she is appointed – where he/she purports to
issue summons for a different court, such issue is a nullity
and
ineffectual.
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M. MUSI, J
[1] This
is an appeal against the judgment of the Magistrate’s Court at
Harrismith delivered on 12 October 2005, in terms of which
the
Magistrate’s Court held that the summons issued in this matter was
invalid. The order of the court reads as follows:
“
Daar is dus geen geldige
dagvaarding voor hierdie hof nie en word die aangeleentheid van die
rol verwyder. Onder die omstandighede
is ek van mening dat die eiser
verantwoordelik moet wees vir die koste en word dit so beveel.”
[2] The
notice of appeal was served on the respondent’s attorneys in
Harrismith and so was the notice in terms of Rule 51(4) of
the
Magistrates’ Courts Rules. The respondent gave no indication
whether it wished to oppose the appeal and appointed no correspondent
in Bloemfontein whereat the documents in this court could be served
on it. As a result the appellant sent the notice of set down
of the
appeal to the respondent’s instructing attorneys in Durban by
registered post, but they have not responded and no heads
of argument
have been filed on behalf of the respondent. We must therefore
accept that the respondent does not oppose the appeal
and will abide
by the decision of this court.
[3] The gist of the
problem is that the summons was issued by the clerk of the court of
the Magistrate’s Court at Phuthaditjhaba
which is a completely
different magisterial district. Thereafter someone realised that the
summons was supposed to be issued in
the Magistrate’s Court for the
district of Harrismith. It was then, before service, presented to
the clerk of the court at Harrismith
who duly endorsed the same with
his official stamp, signed it and allocated a Harrismith case number.
The Phuthaditjhaba court case
number was simply cancelled off.
Thereafter the summons was served. The respondent entered an
appearance to defend and the normal
exchange of pleadings took place
whereafter the matter was duly enrolled for trial.
[4] On
the date of trial, the presiding magistrate
mero
motu
raised the question of whether he had in front of him a valid summons
on the basis of the above developments. He gave the parties
an
opportunity to address him on the issue and written submissions were
duly filed. At the conclusion of argument, the learned magistrate
granted the order now appealed against.
[5] It
has to be mentioned that the respondent at no stage raised an
objection to the validity of the summons and never pleaded any
prejudice. And in raising the point, the learned magistrate was
aware of the provisions of Rule 17 of the Magistrates’ Courts
Rules
which limit the grounds upon which exception may be taken and he
specifically noted that the respondent had not excepted to
the
summons. However, the learned magistrate was of the view that this
is not a case of an irregular step to which an exception
can be
taken, but rather the instance of a null and void summons. He
referred to the matter of
DUSHEIKO
v MILBURN
1964 (4) SA 648
(AD). This judgment makes it clear at page 655 E –
G that a plaintiff who relies on the fact that the cause of action
arose within
the area of jurisdiction of the court in order to
establish jurisdiction, must make such averments as are necessary to
establish
this, failing which the summons would be defective and
excipieble. It is an example of an irregular proceeding that can be
condoned
by the court.
[6] There
is ample authority on the difference between an irregular proceeding
that can be cured by either amendment or the grant
of condonation and
one that is fatally defective and cannot be condoned. See
inter
alia
MYNHARDT
v MYNHARDT
1986 (1) SA 456
(TPD);
VON
ZAHN v CREDIT CORPORATION OF SOUTH AFRICA LTD
1963 (3) SA 554
(TPD);
WELKEN,
N O v NASIONALE KOERANTE BPK
1964 (3) SA 87
(OPD);
MINISTER
VAN WET EN ORDE v MOLAOLWA
1986 (3) SA 900
(NKA). An irregular step that is regarded as a
nullity cannot be saved by the grant of condonation. This will be
the case, for
instance, where the defect relates to a basic component
of an action as was stated in
MINISTER
OF PRISONS AND ANOTHER v JONGILANGA
1985 (3) SA 117
(AD) at 123H. A typical example of an irregular
proceeding that amounts to an irreparable nullity is to be found in
the case of
REPUBLIKEINSE
PUBLIKASIES (EDMS) BPK v AFRIKAANSE PERS PUBLIKASIES (EDMS) BPK
1972 (1) SA 773
(A), where it was held that a summons that has not
been issued by the Registrar of the High Court is a nullity and
service thereof
would be ineffectual. See also
BARENS
EN 'N ANDER v LOTTERING
2000 (3) SA 305
(CPD), where irregular service of a summons by the
sheriff, was held to be fatally defective.
[7] In
dealing with the question whether the Magistrate’s Court was
correct in holding that the summons herein was a nullity, counsel
for
the appellant indicated that he could find no direct authority on the
point, but suggested that guidance can be found in the
cases dealing
with condonation of irregular steps and cited
inter
alia
TRANS-AFRICAN
INSURANCE CO LTD v MALULEKA
1956 (2) SA 273
(AD) at 278 D – F;
NORTHERN
ASSURANCE CO LTD v SOMDAKA
1960 (1) SA 588
(AD) at 595 A – B;
BRITS
v STADLER
1963 (3) SA 551
(OPD) at 553. Counsel submitted that the alleged
defect in the issuing of the summons could have been condoned given
the fact that
the respondent had not suffered any prejudice. The
problem is that there is no provision in the Magistrates’ Courts
Rules that
is equivalent to Supreme Court Rules 27(3) and 30 that
confer general powers of condonation. See
BARENS
EN 'N ANDER v LOTTERING
,
supra
at 311. It stands to reason that if the summons herein was not
validly issued, the Magistrate’s Court could not have saved it.
[8] To my mind the
learned magistrate missed one crucial point. The summons clearly
indicates that it relates to the Magistrate’s
Court for the
district of Harrismith held at Harrismith and paragraph 4 of the
particulars of claim annexed to it makes it clear
that the cause of
action arose within the area of jurisdiction of such court. At the
top of the summons is inscribed the words “Uitgereik
deur die Klerk
van die Hof”. That can be no reference to any clerk of the court
other than that of the Harrismith court and he
is the one who is
empowered to sign the document and it “shall bear the date of issue
by him” as required by Rule 5(2) of the
Magistrates’ Courts
Rules. Rule 3(1) requires the clerk of the court to number the
document with “a consecutive number for the
year during which it is
filed”. This means that he must allocate the case number that
follows on the case immediately issued before
it. Only the clerk of
the court of the Harrismith court could issue such a number for a
Harrismith case. In terms of
section 13(1)
of the
Magistrates’
Courts Act, No. 32 of 1944
, clerks of court are appointed by the
magistrate of the district in which such court is situated and for no
other court. It stands
to reason that the powers of a clerk of the
court are limited to his magisterial district and he can have no
power to issue a summons
for another court.
[9] The
position of the clerk of the court is similar to that of the sheriff
of the court. The latter is appointed for a specific
magisterial
district and can only serve process in that area. If he serves
outside his area, the service is regarded as a nullity.
See
BARCLAYS
NATIONAL BANK LTD v WENTZEL
1978 (3) SA 976
(O) at 978 A – B. Therefore I come to the
conclusion that the clerk of the court at Phuthaditjhaba had no
competence to issue
the summons herein and whatever he did on it was
ineffectual. That being the case, the clerk of the court for
Harrismith was entitled
to ignore the earlier endorsements and to
himself sign the summons, bring a date on it and allocate a case
number as is required
by
Rule 5(1).
He did all that was required by
the Rules of the Magistrates’ Courts to issue the summons.
[10] It will be noted
that the appellant was ordered to pay the costs of suit in the
proceedings in the Magistrate’s Court, ostensibly
on the basis that
the point raised was decided against him. He has, however, been
successful on appeal and notwithstanding that
the appeal was not
opposed, he is entitled to his costs in this court. In view of our
finding on the point in dispute, the costs
order made by the
Magistrate’s Court has to be set aside. In this regard, account
must be taken of the fact that the respondent
never raised any
objection and although it ultimately argued that the summons was
invalid, it did so only in response to the invitation
by the
presiding officer to address him on the issue. Besides, the problem
arose out of the failure on the part of the appellant’s
attorneys
to properly apply their mind to their work. There can be no excuse
for having issued the summons out of a wrong court.
And once the
blunder was discovered, they could simply have drawn a fresh summons
for issue by the proper court. In the premises,
I would order that
costs be costs in the cause.
[11] The
appeal succeeds with costs and the decision of the Magistrate’s
Court is set aside and replaced with the following:
The summons in this case
was validly issued by the clerk of the court for Harrismith. Costs
shall be costs in the cause.
___________
H.M. MUSI, J
I concur.
____________
C. VAN ZYL, J
On
behalf of appellant: Adv. S.J. Reinders
Instructed by:
H
W Smith & Marais
c/o
Saffy & Partners
BLOEMFONTEIN
On
behalf of respondent: None
/sp