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2026
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[2026] ZAGPJHC 323
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Misra v Randburg Magistrates Court and Others (Reasons) (2025/246166) [2026] ZAGPJHC 323 (30 March 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
JOHANNESBURG
Case
No: 2025/246166
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
In
the matter between:
ROHIT
MISRA
Applicant
and
THE
RANDBURG MAGISTRATES COURT
1
ST
Respondent
CLERK
OF THE COURT RANDBURG
2
nd
Respondent
NAZIRA
MOOSA
3
rd
Respondent
MINISTER OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT
4
TH
Respondent
REASONS
Mia J,
Introduction
[1]
This
application arrived on the urgent roll clothed in the language of
constitutional grievance but, upon scrutiny, reveals itself
to be a
procedurally defective attempt to review the Magistrates’ Court
proceedings conducted under the Domestic Violence
Act (DVA).
[1]
Reasons were furnished
ex
tempore,
notwithstanding the furnishing of reasons, the applicant herein
insists on further reasons. It noteworthy to mention that the matter
first appeared on the urgent roll of my sister Modiba J on 27 January
2026. The matter was opposed by the third respondent and
was removed
from the roll. The court furnished directions for the further conduct
of the matter. The applicant enrolled the application
for hearing
once again in the urgent court on 10 February 2026 adding a fourth
respondent, the Minister of Justice and Constitutional
Development.
There is no record of service on the fourth respondent. The
matter proceeded on 11 February when the applicant
made submissions
on the papers.
[2]
The applicant seeks to set aside an interim protection order granted
in his absence. He appeared before the Magistrate in the District
Court and complains that he was muted and could not participate
meaningfully in the proceedings when the court adjourned. The
gravamen of his complaint is that the respondent allegedly committed
perjury by declaring herself unmarried, whereas she is his
spouse. On
that premise, he contends that his rights have been infringed and
insists that this court review the proceedings and
that the
protection order be set-aside forthwith failing which he is gravely
prejudiced.
[3]
The application is fundamentally misconceived, on urgency and on
procedure.
Urgency
[4]
Rule 6(12)
is not an indulgence for the disorganised litigant. It is a narrow
procedural gateway reserved for cases where immediate
judicial
intervention is indispensable. The governing principles are settled.
In
Luna
Meubels Vervaardigers (Edms) Bpk v Makin,
[2]
it was held that urgency must be real, not self-generated. That
principle has been consistently applied in this Division, including
in East
Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd.
[3]
[5]
This
approach has been reinforced, urgency is not established by mere
assertion of prejudice; it requires a demonstration that substantial
redress in due course is unattainable.
[4]
Where alternative remedies exist and are adequate, urgency is absent.
The applicant was given directions for the further conduct
of the
matter when it served before Modiba J. It is not clear that the
directives were complied with.
[6]
This application where the applicant seeks to proceed on the basis of
urgency once again does not meet that standard of urgency
required.
It does not come close to it.
A
review without a record
[7]
The relief
sought is, in substance, a review. That has consequences. Review
proceedings are record driven.
[5]
This is not a matter of form; it is the essence of review
jurisdiction. The court must examine what transpired in the tribunal
below. Here, there is no record. None.
[8]
This court has repeatedly underscored that a review cannot be
entertained in the absence of a proper record. The absence of a
record is not a curable inconvenience; it is fatal to the cause of
action. The applicant’s attempt to bypass this foundational
requirement by invoking urgency is impermissible. Urgency does not
license evidential deficiency.
The
perjury allegation
[9]
The applicant alleges perjury. The allegation is grave. It is
attached as an annexure and unmarked. It is not evident that this
supplementary affidavit was served on the respondents.
[10]
Motion proceedings are decided on evidence, not indignation. The
invocation of criminal terminology, absent proof, is not a substitute
for a case. The applicants assertion that the respondent has
committed perjury ought to be been determined at the hearing
in the
District Court to allow for the review thereof. The allegation in
this regard carries no weight in the determination of
urgency or
relief in relation to the review.
The
statutory scheme: domestic violence
[11]
The impugned proceedings arise under the DVA, a statute designed to
provide swift and effective protection to victims of domestic
violence. Section 5 of the Act expressly authorises the granting of
interim protection orders, including in the absence of the
respondent, where there is prima facie evidence of domestic violence.
The respondent is permitted to anticipate the return date
on short
notice.
[12]
The
Constitutional Court has repeatedly emphasised the State’s
obligation to afford effective protection against domestic
violence.
In
Carmichele
v Minister of Safety and Security
,
[6]
the Court underscored the constitutional duty resting on the State to
protect vulnerable persons from harm.
[13]
In
Omar
v Government of the Republic of South Africa
,
[7]
the Court recognised the legitimacy of interim measures that may
operate robustly to secure effective protection, subject to
subsequent
procedural safeguards.
[14]
The DVA
[8]
reflects that constitutional imperative. It creates a regime of
immediate protection, balanced by procedural mechanisms allowing
the
respondent to be heard thereafter.
[15]
Those mechanisms include:
a.
the return date at which
the respondent may oppose confirmation;
b.
the right to seek
variation or rescission; and
c.
recourse to review
proceedings properly constituted.
[16]
Where the applicant is dissatisfied with the outcome after
opposition, the appropriate course is to pursue an appeal. Where the
procedure is questioned, the applicant may opt to review the
proceedings. In both instances this requires a written transcript
of
the proceedings in the court a quo. The applicant has elected to
bypass all of these and instead seeks urgent intervention on
defective papers. That is not what the statute contemplates.
[17]
The applicant has not demonstrated that he will be denied substantial
redress in due course. The remedies available to him are
immediate,
practical, and specifically designed for the context in which he
finds himself. The prejudice alleged is abstract. It
is not shown to
be irreparable. It is not shown to be incapable of redress. The
chronology is opaque. There is no satisfactory
explanation for the
timing of the application or for the failure to pursue available
remedies. The only reasonable inference is
that any urgency is
self-created. The urgent court is not a refuge for litigants
who ignore available procedures and then
demand priority.
Discretion
and structural considerations
[18]
Even if urgency were established, which it is not, the court would be
slow to intervene in the statutory domain of the Magistrates’
Court on such impoverished papers. To do so would undermine the
carefully constructed procedural framework of the DVA and invite
litigants to circumvent it through the urgent roll. Courts must
resist that invitation.
Costs
[19]
The application is ill-conceived and procedurally defective. There
was no opposition as the respondents were not present and made
no
submissions.
Order
[20]
For the reasons above, the following order is made:
1.
The application is struck from the roll for lack of urgency.
2.
No order as to costs.
S C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On behalf of the
applicant:
Rohit Misra
rohit.misra.mail@gmail.com
Instructed
by:
In Person
On behalf of the
respondents:
No appearance
Date of
hearing:
11 February 2026
Date of
judgment:
30 March 2026
[1]
116 of 1998
[2]
1977
(4) SA 135 (W)
[3]
(11/33767) [2011] ZAGPJHC 196 (23 September 2011) para [4] –
[12].
[4]
Id at para [6].
[5]
Turnbull-Jackson
v Hibiscus Court Municipality and Others
(CCT 104/13)
[2014] ZACC 24
;
2014 (6) SA 592
(CC);
2014 (11) BCLR
1310
(CC) (11 September 2014) at para [37].
[6]
[2001]
ZACC 22; 2001 (4) SA 938 (CC); 2002 (1) SACR 79 (CC); 2001 (10) BCLR
995 (CC)
[7]
[2005]
ZACC 17; 2006 (2) SA 289 (CC); 2006 (1) SACR 359 (CC); 2006 (2) BCLR
253 (CC)
[8]
116 of 1998.