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IN THE HIGH COURT OF SOUTH AFRICA
FREE STA TE DIVISION, BLOEMFONTEIN
In the matter between
DUMISANI VUYISILE TSOBO
and
MAGISTRATE SEBE
MINISTER OF JUSTICE
BRIDGITTA MATSELISO TSOBO
Not reportable
Case no: 6010/2022
APPLICANT
· FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
Neutral citation: Tsobo v Magistrate Sebe and Others (6010/2022) [2026] ZAFSHC 336
(8 June 2026)
Coram: NAIDOO J
Heard: 13 November 2025
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 11 h00 on 8 June 2026.
Summary: Application to compel magistrate to furnish reasons in terms of
Magistrates Court Rule 51 - opposed - reasons furnished after application to compel
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served - costs in dispute - applicant acknowledged misjoinder of second defendant
- costs order against first defendant impermissible - applicant to pay costs of
application.
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ORDER
1 The application is moot, as the first respondent has complied with the notice in
term of Magistrate's Court Rule 51;
2 The application against the second respondent is dismissed, as the second
defendant was mis-joined to these proceedings;
3 The applicant shall pay the costs of the application.
JUDGMENT
Naidoo J
[1] This is an application, in terms of Magistrates Court Rule 51, to compel the first
respondent to furnish written reasons for a judgment he handed down on 5 August 2019.
This was a judgment in respect of an application to vary an interim maintenance order
made by the High Court in terms of Uniform Rule 43. The first respondent summarily
dismissed the application, without providing reasons. This application was launched on
30 November 2022, after numerous attempts, which the applicant alleges it made, to
obtain the written reasons from the first respondent. The first respondent filed his reasons
in terms of rule 51 on 28 November 2023, rendering the application moot. However, the
parties have not been able to agree on the issue of costs, and seek the court's intervention
in this regard. The rule 51 application was opposed by the first and second respondents,
although the second respondent, the Minister of Justice, did not file an answering affidavit.
The third respondent, who is the former spouse of the applicant, also did not oppose or
participate in these proceedings, presumably because she was cited only because of any
interest she may have in this matter and because no relief was sought against her.
[2] The applicant sought, in essence, an order as follows:
a. The first respondent be ordered to provide, within 15 days of the date of this
order, written reasons for the judgment given on 5 August 2019 as requested in the
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applicant's notice in terms of Magistrates Court Rule 51 (1) dated 8 August 2019;
b. The second respondent be ordered to pay the costs of this application.
[3] The applicant's case is that after the first respondent handed down his judgment
on 5 August 2019, the applicant filed a notice in terms of rule 51 (1) on 8 August 2019,
requesting reasons for that judgment. No response was received and the applicant's
attorneys wrote a letter dated 1 September 2019, but served on 13 September 2019,
addressed to the first respondent. By April 2020, when there was still no response by the
first respondent to the rule 51 (1) notice, the applicant brought another application to vary
the rule 43 order. Before the latter-mentioned application could be heard in the
Magistrate's Court, the divorce action pending in the High Court was finalized by the
granting of a decree of divorce on 6 October 2020, which order incorporated the deed of
settlement entered into between the parties. The deed of settlement recorded that the
maintenance in respect of the minor child shall be in accordance with the High Court's
order in terms of rule 43, pending the finalization of the application for variation in the
Magistrate's Court
[4] The applicant continued to pursue the issue of the variation of the rule 43 order,
which was dismissed in the Magistrate's Court. He then brought the application in the
High Court and that application was also dismissed. After obtaining an opinion from
counsel, he allegedly realized that the only option for him was to pursue an appeal against
the first respondent's order. To this end, he once more approached the Magistrate's Court
by addressing a letter to the Chief Magistrate on 27 May 2022. The letter bears the stamp
of the clerk of the civil court and is dated 6 June 2022. The letter explained the purpose
thereof and requested the intervention of the Chief Magistrate. The applicant alleges that
this letter was delivered by hand to the Clerk of the Magistrate's Court, and that he did
this letter was delivered by hand to the Clerk of the Magistrate's Court, and that he did
not receive any response thereto.
[5] The first respondent's version is that he did not receive the rule 51 notice. Had
he received it, he would have furnished his reasons at that time. When the letters were
allegedly served on the magistrate's court, they were not brought to his attention. He first
gained knowledge about this application around January 2023, when the sheriff
attempted to serve the application on him, after the date for the hearing of the matter had
already passed. He refused to accept service and heard nothing further from that date
until later that year, around or about October/November 2023, when the sheriff returned
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with the same application. He thereafter proceeded to furnish his reasons for his order.
The first respondent also opposed the application and deposed to the answering affidavit.
He raised as a point in limine, the misjoinder of the second respondent, on the basis the
first respondent enjoys judicial independence and the second respondent does not have
authority over the first respondent in the latter's performance of his duties. The second
respondent cannot, therefore, be held vicariously liable for the actions of the first
respondent. The first respondent also gave a detailed exposition of the incorrectness of
the approach adopted by the applicant and what would have been the correct approach.
I do not propose to traverse those allegations, as the details are not relevant for present
purposes. I will mention it, if necessary, later.
[6] By the time the matter was argued in court, the applicant accepted that the
second defendant could not be held vicariously liable for the first defendant's actions. His
focus shifted to the first defendant, even though it was pertinently raised in the answering
affidavit and the respondents' heads of argument that not only does the second defendant
not have jurisdiction over the first defendant in the performance of his duties, but that the
first defendant enjoys delictual immunity in respect of actions performed negligently in the
course of his duties as a judicial officer, unless his actions were male tides, malicious or
fraudulent. This principle has been established in a long line of cases for over 50 years.1
The applicant has not shown that the first respondent acted in such a manner. The stance
taken by the applicant at the hearing of this matter is that the first respondent enjoyed
immunity up to the time that he furnished his reasons for his order. Beyond that, he did
not enjoy immunity. Therefore, his action in opposing the application indicates that he
not enjoy immunity. Therefore, his action in opposing the application indicates that he
went 'on a frolic of his own'. This, in my view, is fallacious reasoning, and is not supported
by any legal principle, statute or the like. The applicant failed to refer this Court to any
such authority. The attorney representing the first and second respondents, made contact
with those representing the applicant after the first respondent filed his reasons, to point
out that the relief sought is moot and to enquire if the applicant still intended to pursue
the costs issue. The applicant answered in the affirmative.
[7] This is what prompted the respondents to oppose the application, firstly because
the second defendant, was misjoined, and secondly because he ran the risk of having a
costs order granted against him. The change in direction from what the applicant claimed
1 See for example Minister of Justice and Constitutional Development and Another v Masia (2021] ZAGPPHC
428; 2021 (2) SACR 425 (GP); Moeketsi v Minister van Justisie en 'n Ander 1988 (4) SA 707 (T) at 713G .
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in the notice of motion is, furthermore untenable. The applicant sought a costs order
against the second defendant. When he realized that he had wrongly joined the second
defendant, he impermissibly changed tack and sought costs against the first respondent.
It was his intransigent and uncooperative behaviour that caused the application to
become opposed, thus escalating costs unnecessarily. He ought to have been correctly
advised by those representing him of the consequences of such an attitude. The court
has a clear impression that the applicant simply wanted to prove a point and sanction the
first defendant for what he believed to be irregular conduct.
[8] I say this because the language and the tone of the replying affidavit makes this
amply clear. I pause to state that although it is not ideal for the applicant to have asked in
his replying affidavit for condonation for the late filing thereof, I, nevertheless, decided to
allow it, in the interests of justice, and for the expeditious finalization of this matter. The
replying affidavit amounts to a personal attack upon the magistrate, without proper
grounds, in my view. If this is the instruction of the applicant, I would have expected his
legal representative, as an officer of this Court, to have been mindful of and reluctant to
embark on that course of action. Whether the applicant or his legal representative
believed that the first respondent received the rule 51 notice or not is irrelevant. The
applicant failed to put forward any cogent evidence to show that the first respondent did
in fact receive the notice or that it was brought to his attention before October/November
2023. The applicant attached two letters to the founding affidavit which were addressed
to the first respondent and the chief magistrate, respectively. These were served on the
clerk of court and there was no evidence that it reached the attention of either the first
respondent or the chief magistrate. In reply, the applicant makes the allegation that there
respondent or the chief magistrate. In reply, the applicant makes the allegation that there
were numerous follow-up efforts which still did not evoke a response from the first
respondent.
[9] He attached to his replying affidavit a copy of an email from his correspondent
attorney, who merely advised the applicant and his attorney that her candidate attorney
followed up with the clerk of the court, at least once a week, during October and
November 2019. It is trite that if a deponent alleges certain actions on the part of another
person, a confirmatory affidavit from that person ought to be filed, failing which no heed
can be paid to such evidence of the other party. This is exactly the position in this matter.
It raises questions about who the alleged candidate attorney is, who he/she spoke to at
the clerk of court's office, and what the outcome of such discussions were. There is no
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indication of whether there was any follow up after November 2019. The logical course of
action would have been to approach the chief magistrate in person and request his/her
intervention directly. This was clearly not done. What appears is that when all the other
applications, which I mentioned earlier, failed, the applicant then decided to pursue the
first respondent. Even at that stage, one would have expected the logical action of writing
to the first respondent or the chief magistrate to furnish those reasons. This was not done.
This court can, therefore, only rely on the version of the first respondent that he did not
receive the notice before October/November 2023
[10] The applicant complains that the respondents set the matter down for hearing.
The respondents correctly assert that they are entitled to have the matter finalized, but
the applicant did nothing to finalise the matter, prompting them to set it down. It is
worrisome that those representing the applicant did not see the need to resolve the issue
of costs, but would rather engage the court to do so, thus escalating the costs even
further. In my view, the applicant ought to have started those discussions immediately
upon receiving the first respondent's reasons in terms of Magistrate's Court Rule 51. In
my view, those discussions became compulsory upon filing of the answering affidavit,
because it was abundantly clear from that affidavit that the applicant was at a dead end
in respect of the application. He however, stubbornly proceeded to file a replying affidavit,
which was replete with unfounded allegations, and angry accusations against the first
respondent. In my view, it is the applicant's behaviour that has escalated the costs,
unnecessarily so. The respondents have asked for a de bonis propriis costs order against
the applicant's legal representative. I would have had a mind to do that. However, I note
that the attorney has not been given an opportunity to say why the court should not do so
that the attorney has not been given an opportunity to say why the court should not do so
and set out the reasons for the matter proceeding the way it did. In those circumstances,
the applicant must bear the costs.
[11] In the circumstances, the following order is made
1 The application is moot, as the first respondent has complied with the notice in
term of Magistrate's Court Rule 51;
2 The application against the second respondent is dismissed, as the second
defendant was mis-joined to these proceedings;
3 The applicant shall pay the costs of the application.
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SNAIDOO
JUDGE OF THE HIGH COURT
Appearances
For the Applicant:
Instructed by:
For the Respondents:
Instructed by:
K Motselebane
Shapiro and Ledwaba Inc
Pretoria
c/o Webber's Attorneys
Webbers Building
96 Charles Street
Bloemfontein
(Ref: M Koller/SHA25/0005)
Ms F Bester
The State Attorney
11th Floor Fedsure Building
49 Charlotte maxeke Street
Bloemfontein
(Ref: 606/202200707/P11 D(T))
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