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2024
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[2024] ZAECQBHC 38
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Nel v Larsen N.O. (1217/2020) [2024] ZAECQBHC 38 (14 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
NOT
REPORTABLE
Case
No.: 1217/2020
In
the matter between:
TREVOR
NEL
Applicant
and
MAGISTRATE
LARSEN
NO
First Respondent
MARITZA
BARNARD
Second
Respondent
JUDGMENT
ELLIS
AJ:
[1]
This is an opposed review of the proceedings
before the first respondent in the Domestic Violence Court held in
the Magistrate’s
Court for the district Gqeberha, which
culminated in a final protection order against the applicant in
favour of second respondent,
in the applicant’s absence.
[2]
On the morning of the hearing, I was approached
in chambers by the parties’ legal representatives, with Ms Nel
appearing on
behalf of the applicant and Ms Ntsepe on behalf of the
first respondent. Ms Nel suggested a postponement at the
request of
the applicant, and Ms Ntsepe indicated that any
application for a postponement would be opposed. I instructed the
legal representatives
to address me on that issue in open court.
[3]
When the matter was called at number one on the
roll, there was no appearance on behalf of the applicant.
Despite the applicant
being legally represented, I requested that his
name be called outside court, without response. I considered
the absence
of the applicant to be wilful as he was without a doubt
aware that the matter was on the roll for hearing, given the presence
of
Ms Nel and as I had specifically advised Ms Nel to bring her
application for postponement in open court. In the absence of an
application
for postponement and the failure of Ms Nel to appear when
the matter was called, the matter proceeded, and the first respondent
argued for dismissal of the review.
[4]
The proceedings forming the subject matter of the
review may be summarised as follows.
[5]
Following a notice to show cause why a protection
order should not be issued in terms of
s 5(4)
of the
Domestic
Violence Act, 116 of 1998
, issued on 24 October 2019, the applicant
and the second respondent appeared before the first respondent on 21
November 2019.
The applicant filed his opposing affidavit, and
the matter was referred for oral evidence. The second
respondent commenced
her testimony. The matter was postponed to
5 December 2019 for the second respondent to obtain the assistance of
Legal Aid.
On 5 December 2019 the matter was again postponed as
the second respondent required further time to procure legal
assistance.
On 19 December 2019 the matter was postponed to 29
January 2020, at which date the continuation of the part-heard matter
was set
down for 3 March 2020. At that point, the second
respondent was represented by Mr Jonas from the Law Clinic.
[6]
The proceedings continued on 3 March 2020, with
the applicant cross-examining the second respondent. Due to the
expiry of
the court’s hours and before the cross-examination
was concluded, the matter had to be postponed again. The date
of
10 March 2020 was agreed to, and both the applicant and second
respondent were warned by the first respondent to be present on 10
March 2020 at 10:00, failing which the matter would either be removed
from the roll, if the second respondent failed to appear,
or an order
granted in the absence of the applicant if he failed to appear.
[7]
When the matter was called on 10 March 2020, the
applicant was absent. His name was called three times outside
court, and
the second respondent’s legal representative moved
for a final protection order in his absence. The first
respondent
granted the protection order and as is customary in these
matters, issued a warrant for the applicant’s arrest.
[8]
On 12 March 2020 the applicant delivered an
application to set aside the protection order, in terms of
s 10(1)
of
the
Domestic Violence Act, colloquially
known as a “Form 12”
application. The Form 12 application was dismissed by the first
respondent on the grounds
that no good cause had been established.
[9]
The applicant then instituted these current
review proceedings on 12 June 2020, listing no less than 18 grounds
of review in his
founding affidavit, alleging that the first
respondent had committed gross irregularities in the proceedings and
was biased against
the applicant. The applicant alleges that he
had listed sufficient grounds for the setting aside of the order
granted on
10 March 2020.
[10]
It is apparent that the applicant was
dissatisfied with the outcome of the proceedings, being the granting
of the protection order
as well as the outcome of his Form 12
rescission application. The applicant alleges that the order of 10
March 2020 stands to be
set aside, so that he could continue with his
cross-examination of the second respondent and proceed with the
merits of the matter
before the Domestic Violence Court.
[11]
As a rule, if the complaint is against the result
of the proceedings of the Magistrate’s Court, the appropriate
remedy is
by way of appeal. If the method of the proceedings is
attacked, the remedy is to bring the matter on review.
Section
22
of the
Superior Courts Act, 10 of 2013
, deals with the grounds
upon which the proceedings of a Magistrate’s Court may be
reviewed. On appeal the appellant
is bound by the record and
must argue thereon, but in review proceedings the applicant may
traverse matters not appearing on the
record since in review
proceedings the irregularity complained of usually does not appear on
the record. Therefore, evidence
outside the record will be
considered by the review court.
[12]
Ms Ntsepe argued that the application is
incompetent, as the relief sought by the applicant amounted to an
appeal, which is irreconcilable
with review proceedings.
Alternatively, Ms Ntsepe argued that the applicant failed to meet the
requirements for a review.
[13]
Even if I
accept that the applicant is entitled to pursue the review
proceedings, instead of an appeal, I am of the view that the
applicant has failed to establish any gross irregularity in the
proceedings, which would prejudice the applicant.
[1]
A careful perusal of the grounds listed, individually and
cumulatively reveals that they are a misstatement of the record,
the
allegations are factually and contextually inaccurate and in most
instances contain frivolous, vexatious and irrelevant matter.
The irregularities complained of by the applicant are not supported
by the record nor the available evidence on affidavit before
me.
Absent in the founding affidavit are any allegations that the conduct
complained of were calculated to prejudice the applicant
and had in
fact been to his detriment.
[14]
As to the allegation of bias, the applicant
alleges that it was at the behest of the first respondent that the
applicant sought
legal advice. The record reflects that the first
respondent explained the right to legal representation to both
parties. The Constitution
guarantees the right to access courts, a
fair hearing and legal representation. The record reflects that the
first respondent did
no more or less than to ensure just that.
[15]
Having said that, I am in agreement with Ms
Ntsepe that the appropriate remedy would have been to prosecute on
appeal. In the circumstances,
the review must fail.
[16]
Ms Ntsepe
requested me to make a cost order to include counsel fees to be taxed
in accordance with Scale B, as set out in rule 69(7)
of the Uniform
Rules of Court read with rule 67A(1)(c), citing the length of the
record, the various grounds of review that had
to be carefully
considered, the complexity of the matter and the importance of the
relief sought in support thereof. Moreover,
the conduct of the
applicant and his legal representative and their failure to attend
roll call, failure to file heads of argument
and the prolix drafting,
containing vexatious and irrelevant matter warrants Scale B.
Following the reasoning of Wilson J in
Mashavha
v Enaex Africa (Pty) Ltd
[2]
Scale A is the appropriate scale on which to make an award unless
application of a higher scale has been justified by careful reference
to clearly identified features of the case that mark it out as
unusually complex, important, or valuable. Run-of-the-mill cases,
which must be the vast majority of cases in the High Court should not
attract an order on the B or C scales.
[3]
[17]
In the present case, the issues were
uncomplicated, and the matter was dealt with in the absence of the
applicant within a relatively
brief time. The first respondent at no
stage sought a punitive costs order against the applicant, and I am
not inclined to order
costs on a scale contrary to the default
position under Uniform Rule 67A(3)(c).
[18]
In the result, the following order will issue:
1.
The application is dismissed with costs.
L
ELLIS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
No appearance
Instructed
by:
Janice Nel
GQEBERHA
For
1
st
Respondent:
Adv Ntsepe
Instructed
by:
State Attorney
GQEBERHA
For
2
nd
Respondent:
No appearance
Law Clinic – Nelson
Mandela University
GQEBERHA
Date
heard
: 02 May 2024
Date
delivered
: 14 May 2024
[1]
Absa
Bank Ltd v De Villiers and Another (
146/09)
[2009] ZASCA 140
;
[2010] 2 All SA 99
(SCA).
[2]
(2022/18404)
[2024] ZAGPJHC 387 (22 April 2024)
[3]
Mashavha
para
[16]