THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 10537/ 2024
In the matter between:
KIEMAHL HENDRICKS Applicant
(Defendant a quo)
and
NIKITA PETERSEN Respondent
(Plaintiff a quo)
COMMISSIONER BARNES Second Respondent
(Small Claims Court Commissioner, Kuil’s River)
Summary: “Review” of Default Judgment – Non Appearance – Monies
Owed – Application Dismissed
Coram: Wille, J et Louw, AJ
Heard: 24 April 2026
Delivered: 30 April 2026
JUDGMENT
WILLE, J:
INTRODUCTION
[1] This is an application to ‘review’ a default judgment and subsequent ruling by the
second respondent at the instance of the applicant, who is now the judgment debtor. The
review appears to have been launched in accordance with Rule 53 of the Uniform High
Court rules, read with section 46 of the Small Claims Courts Act.1
[2] Rule 53 provides, inter alia, as follows:
‘(1) save where any law otherwise provides, all proceedings to bring under review the decision or
proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial
or administrative functions shall be by way of notice of motion directed and delivered by the party
seeking to review such decision or proceedings to the magistrate, presiding officer or chairperson of
the court, tribunal or board or to the officer, as the case may be, and to all other parties affected -
(a) calling upon such persons to show cause why such decision or proceedings should not be
reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding off icer, chairperson or officer, as the case may be, to
dispatch, within fifteen days after receipt of the notice of motion, to the registrar the record of
such proceedings sought to be corrected or set aside, together with such reasons as he or
she is by law required or desires to give or make, and to notify the applicant that he has done
so…’2
1 Act 61 of 1984 (“SCCA”).
2 Uniform Court Rule 53 – Reviews.
[3] Section 46 of the SCCA provides for the following grounds of review;
‘(a) absence of jurisdiction on the part of the court;
(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 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and
Combating of Corrupt Activities Act, 2004, on the part of the commissioner; and
(c) gross irregularity with regard to the proceedings…’3
[4] The grounds in the circumstances of this review are thus limited to bias, malice
and/or a gross irregularity. Both the applicant and the respondent appear in person, and the
second res pondent has regrettably failed to file a n affidavit in response as an interested
party, which may or may not have been of assistance to this court.4
BACKGROUND
[5] The review papers before me for consideration consist of the founding papers and
the respondent's answering affidavit. There are no replying papers by the applicant. At the
heart of this dispute (on motion) is the applicant's review of the refusal of the rescission of
the judgment chartered by the applicant, as no appeal is permitted from the decision of th e
second respondent.5
[6] In order to consider the applicant ’s primary ground of review (which has not been
formulated with any precision) , it is necessary to delve into some of the background that
resulted in this legislative intervention.6
[7] A Commission of Enquiry was established to enquire into and advise the government
on the desirability or otherwise of establishing a Small Claims Court (SCC). The
Commission made far-reaching recommendations concerning the establishment of the SCC
and, most importantly, recommended several informal procedural issues to be employed.7
3 The applicant contends for a gross irregularity in the proceedings.
4 The second respondent has filed a document to abide by the decision of this court.
5 This in terms of section 45 of the SCCA.
5 This in terms of section 45 of the SCCA.
6 Assented to on 19 April 1984 and thereafter becoming operative on 24 August 1985.
7 This resulted in the SCCA.
[8] Some of these recommendations and procedures would permit a judicial innovation
with many novel features, some of which would run counter to conventional legal concepts of
our civil trial procedure.8
[9] What was envisaged (and rightly so) was that a less formal procedure was to be
adopted, akin to an ‘arbitration’ conducted in an informal atmosphere by the adjudicator, who
would assume an active inquisitorial role rather than the traditional adversarial role in that the
adjudicator would be allowed to adopt ‘any method of procedure ’ considered to be
convenient to afford a fair and equal opportunity for each party to present his or her case.9
[10] The rules of evidence a re accordingly relaxed, provided the adjudicator maintain s
an actively inquisitorial role in the proceedings , resulting in an easier and speedier fact -
finding process. In this connection, the SCCA provides for the following:
‘…Subject to the provisions of this chapter, the rules of the law of evidence shall not apply in
respect of the proceedings before a court, and a court may ascertain any relevant fact in such
manner as it may deem fit…’10
THE GROUNDS OF REVIEW
[11] The grounds of review are challenging to understand. I say this because they are, in
essence, disguised and camouflaged grounds for appeal. The review grounds are these:
(a) An alleged gross irregularity regarding the proceedings.
(b) That the second respondent erred and misdirected himself in the finding that the
applicant did not contact the Clerk of the SMCC to ascertain the next appearance
date.
(c) That the second respondent failed to apply his mind to the applicant’s failure to
attend the proceedings on 25 June 2023.11
8 A speedy and uncomplicated procedure was envisaged.
9 This was precisely the procedure adopted by the second respondent in this case.
10 Sections 26 (1) and (2) of the SCCA.
11 The default judgment was granted on 25 May 2023 and not 25 June 2023.
THE CAUSE OF ACTION
[12] The cause of action by the first respondent is uncomplicated and supported by
documentary evidence. The first respondent secured his fees and disbursements for the
labour-related services he performed for the applicant in writing, by way of emails together
with a written agreement. Ultimately, the applicant requested a payment plan from the first
respondent in respect of the amount he owed. What is even more challenging to understand
is that the applicant made at least two payments on account to the first respondent after the
judgment had been entered against him.12
CONSIDERATION
[13] This review highlights the SCC's importance as an institution of equity and
underscores its critical role in providing access to justice for the public. The SCC exercises
equitable sui generis jurisdiction, premised on fairness, reasonableness and justice. It is
unique in that a wider range of factors is taken into account in executing its mandate. In this
context, it is paramount to protect the interests of the poor, marginalised and vulnerable
sectors of our society.13
[14] To this end, the procedures in the SC C are distinguishable from those of the H igh
Court or a Magistrate’s Court. Its procedures are both flexible and informal. The ordinary
rules of procedure do not apply to proceedings at the SCC.14
[15] The purpose of the SCC is to enable the public with small claims to have their
disputes tried speedily and cheaply, without a lawyer and without all the hassle and
procedural technicalities usually involved in the trying of cases in the ordinary courts of the
land…’15
12 There are receipts in the record dated 15 June 2023 and 24 July 2023
13 It provides an opportunity to access to justice.
14 Evidence to prove or disprove any fact in issue, may be submitted in writing or orally.
15 SAS Strauss: “You in the Small Claims Court – A practical guide”; Second Ed 1990, at 1& 56 - 57.
[16] The latitude and flexibility provided for in the SCCA should, however, not be used as
a mechanism or reason to usurp the fundamental principles of natural justice and fairness,
but rather in the interest of achieving them.16
[17] In my view, the conduct of the second respondent in granting a judgment against
the applicant for the non-payment of his debt to the first respondent did not compromise the
fairness of the proceedings, to the extent that the proceedings were unreasonable,
procedurally unfair, and thus amounted to a gross irregularity.17
[18] Furthermore, the findings by the second respondent that the applicant’s defences
(as currently formulated) had no prospects of success and that no valid reasons had been
advanced for the applicant’s no n-appearance at the SCC on 25 May 2023 were not
irregular.18
[19] I say this because the applicant's defences to the first respondent’s claims are
mutually destructive. The applicant contends that he paid the first respondent in full. In the
same breath, the applicant alleges that he does not know what amount the first respondent
is claiming from him. Then he avers that he has paid the first respondent in full for what the
first respondent did for him. The applicant made two payments to the first respon dent after
judgment had been granted against him. Finally, the applicant requested a repayment plan
from the first respondent.19
[20] The reason for bringing proceedings under review or on appeal is usually the same,
namely, to have a judgment set aside. Where the reason for wanting this is that a court
came to an incorrect conclusion on the facts or the law, the appropriate procedure is an
appeal. Where the grievance is against the method, the procedure is under review.20
16 Smit v Seleka en Andere 1989 (4) SA 157, Hancke AJ (at 164 D)
17 There was nothing irregular about the procedure adopted.
18 This was rather an issue for appeal.
19 This is not engaged with by the applicant.
18 This was rather an issue for appeal.
19 This is not engaged with by the applicant.
20 Nunn v Pretoria Rent Board 1943 TPD 24 at 26.
[21] In this case, the applicant attacks the result and not the method. As a matter of pure
logic, the method of adjudication will be attacked on review only when the result is regarded
as unsatisfactory. Thus, under this test, the rendering of a judgment not justified by the
evidence would be a matter of appeal, not of review.21
[22] Put another way, the essential question in review proceedings is not the correctness
of the decision under review, but its validity. A gross irregularity must also be prejudicial
before review proceedings will succeed.22
[23] The applicant avers that the judgment was granted against him on 25 June 2023. It
was not. His entire case is predicated on this mistaken fact. The judgment was granted
against him on 25 May 2023. The applicant had been in const ant email communication with
the SCC clerk during this time. The applicant chose this method of email communication
when he requested that the matter be postponed on 2 May 2023 due to his alleged
incapacitation. This is an issue to which I now turn.23
COSTS
[24] The record reflects that the initial issue the applicant had with his erstwhile employer
concerned his absence from the workplace. He was required to work 377 shifts while he
was employed by his former employer, and he was absent from work for 22 4 days during
this period. When he was due to appear at the SCC on 2 May 2023, he sent in a medical
certificate via email, recording that he was suffering from a ‘Medical Condition’. This is
completely unsatisfactory. The first respondent has been waiti ng to be paid for nearly 3
years due to the applicant's delaying ‘Stalingrad’ approach. I would not ordinarily be inclined
to award costs to either party in matters involving review proceedings from the SCC.
However, the facts of this matter are exceptio nal and warrant some type of censure
regarding costs.24
21 Judicial review is concerned not with the decision, but rather with the decision-making process.
22 Jordaan v Penmill Investments CC 1991 (2) SA 430 (E) at 441 B-C.
23 This issue concerns the applicant’s non-appearance and the issue of costs.
24 This despite the fact that the parties appear in person.
[25] As the parties are self -represented, the only costs order that may follow is in
connection with the disbursements incurred by the first respondent. I intend to exercise my
discretion and grant a costs order to compensate the first respondent for his disbursements
incurred in connection with this review application.25
ORDER
[26] The following order is granted:
1. The application for review is dismissed.
2. The applicant (Kiemahl Hendricks) is ordered to pay all the reasonable
disbursements and photocopy costs incurred by the first respondent in these
proceedings to be taxed by the Taxing Master of the High Court, Cape Town
on the scale as between attorney and client.
________
WILLE, J
I agree:
_________
LOUW, AJ
25