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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

 

 CASE NUMBER: CIV APP MG 09/2022

Magistrate Court Case Number: 29/2020

Reportable: YES

Circulate to Judges: YES

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

 

In the matter between:                                                 

 

MOROKE ELIJAH TSHABALALA                                          Appellant

 

and

 

MINISTER OF SOUTH AFRICAN

POLICE SERVICES                                                                 Respondent

 

AND

 

 CASE NUMBER: CIV APP MG 11/2022

Magistrate Court Case Number: 43/2020

 

In the matter between:

 

KGAOGANO PATRICK SAKU                                                Appellant

 

and

 

MINISTER OF SOUTH AFRICAN

POLICE SERVICES                                                                 Respondent

 

CIVIL APPEAL

 

CORAM: PETERSEN J AND REDDY AJ

 

ORDER

 

(i)         The appeals under case numbers CIV MG 9/2022 and CIV MG 11/2022 are upheld.

 

(ii)       The orders of the Magistrate in both matters are set aside.

 

(iii)      The matters are remitted to the Magistrates’ Court Atamelang, to be presided over by a Magistrate other than Magistrate S J de Beer, to afford the appellants an opportunity to furnish to the court with evidence either oral or by affidavit of the nature and extent of their claims.

 

(iv)      No order as to costs.

 

JUDGMENT

 

PETERSEN J

 

Introduction

 

[1]        On 10 February 2022, the appeal under case numbers CIVAPP MG 11/2022 (Magistrate Court Case Number: 43/2020) came before myself and Reddy AJ. Judgment was reserved. CIVAPP MG 09/2022 (Magistrate Court Case Number: 29/2020) was allocated to myself and a different Acting Judge and set down for hearing on 24 February 2023. In preparation for the appeal it became clear to me that the grounds of appeal raised in appeal CIVAPP MG 11/2022, were exactly the same as those in CIVAPP MG 09/2022. I accordingly proposed to the Judge President that the bench be constituted by myself and Reddy AJ, as we had already heard arguments on the same issues. Save for the fact that there are two different appellants, the grounds of appeal relate solely to a question of law and the appeals would best be disposed of in one judgment.

 

[2]        Both appeals are unopposed, having emanated from default judgment applications by the appellants in the Magistrates’ Court, Atamelang and Setlagole, which served before Magistrate S.J de Beer on 9 June 2021.

 

Background

 

[3]        In both matters, the appellants delivered requests for default judgment on 3 June 2021 with the Clerk of the Court. In the requests for default judgment the appellants applied for similar relief as follows:

 

 “THE PLAINTIFF HEREBY APPLIES THAT:

 

(a)       Defendants having entered appearance to defend;

(b)       The time for filing their Plea having expired;

(c)       Defendants not having filed their Plea; and

(d)       Defendants having been barred from filing their Plea;

 

Judgment be given against Defendants for:-

 

1.         Payment in the sum of R125 000-00;

2.         Interest at the rate of 10.26% per annum;

3.         Costs of suite to be taxed between party and party scale.”

 

[4]        Rule 12(4) of the Magistrates’ Court Rules provides that:

 

“The registrar of clerk of the court shall refer to the court any request for judgment for an unliquidated amount and the plaintiff shall furnish to the court evidence either oral or by affidavit of the nature and extent of the claim, whereupon the court shall assess the amount recoverable by the plaintiff and give an appropriate judgment.”

 

 The requests for default judgment for unliquidated amounts was duly referred to the court (the Magistrate) by the clerk of court with accompanying draft orders.

 

[5]        The Magistrate on 9 June 2021 in both matters, proceeded to grant default judgment in the absence of the appellants and their legal representative, as per the draft orders (as amended by the Magistrate), in the following terms:

 

“After having perused the documents filed on the record, the following is made an Order of Court.

 

Defendant is ordered to pay the Plaintiff the following amounts:

R25 000.00

 

1. Capital in respect of the claim R125 000.00

2. Plaintiff’s costs

 

2.1      Summons R505.60

2.2      Judgement R383.50

2.3      Sheriff’s fees R253.58

SUBTOTAL R1 142.68

 

3. Further costs to be taxed on party and party scale. TOTAL R26 142.68.”

 

[6]        On 24 June 2021 the appellants sought to withdraw the requests for default judgment by way of notice delivered to the clerk of court on 25 June 2021, when the judgments came to their attention. Judgment was already granted at this stage. The appellants were unsuccessful in their attempt at withdrawing the requests for default judgment as the Magistrate had allegedly informed the clerk of court to inform the appellants legal representative to follow due process by applying to have the judgments set aside or rescinded.

 

[7]        The appellants consequently submitted a request for reasons for judgment to the Magistrate in terms of Rule 51 of the Magistrates’ Court Rules which was delivered to the clerk of the court on 30 July 2021. Rule 51(1) provides as follows:

 

“51 Appeals in civil cases

 

(1)       Upon a request in writing by any party within 10 days after judgment and before noting an appeal the judicial officer shall within 15 days hand to the registrar or clerk of the court a judgment in writing which shall become part of the record showing—

 

(a) the facts he or she found to be proved; and

(b) his or her reasons for judgment.”

 

[8]        Notably the appellants request for reasons was not submitted in writing within ten days after judgment. Notwithstanding, the Magistrate obliged, and on 20 August 2021 provided a judgment in writing. Rule 51(2) provides that:

 

“The registrar or clerk of the court shall on receipt from the judicial officer of a judgment in writing supply to the party applying therefor a copy of such judgment and shall endorse on the original minutes of record the date on which the copy of such judgment was so supplied.”

 

According to the legal representative of the appellants, a copy of the Magistrate’s judgment was supplied to him on 25 August 2021 by the clerk of the court.

 

[9]        The appellants noted their respective appeals late in non-compliance with Rule 51(3) which provides that:

 

“An appeal may be noted within 20 days after the date of a judgment appealed against or within 20 days after the registrar or clerk of the court has supplied a copy of the judgment in writing to the party applying therefor, whichever period shall be the longer.”

 

Condonation

 

[10]      The principles applicable in an application for condonation are trite. In Mulaudzi v Old Mutual Life Assurance company (SA) Limited,[1] Ponnan JA re-affirmed the factors to be considered in respect of an application for condonation as stated in Melane v Santam Insurance Co. Ltd:

 

“Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.”

 

[11]      In Grootboom v National Prosecuting Authority[2] the Constitutional Court re-affirmed the trite principle that:

 

“It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default.”

 

[12]      The main reason for the delay in noting an appeal against the judgments is that the legal representative of the appellants rather than follow the route of an appeal, filed an application for rescission of default judgment on 17 September 2021. The application for rescission of judgment was enrolled on 30 September 2021. The Magistrate advised the legal representative that the affidavit in support of the application was defective and postponed the application for rectification of the affidavit. A further affidavit was consequently deposed to on 14 October 2021. The application was re-enrolled for 21 October 2021 but due to a family emergency, the legal representative could not attend court. On 20 January 2022, the application for rescission served before another Magistrate, who struck the application from the roll on the basis that reasons had been furnished in terms of the appeal procedure envisaged by Rule 51. Hence the present appeals.

           

[13]      The appeals were delayed as a result of the fact that the appellants legal representative could not secure counsel who was prepared to work on a contingency basis. Funds therefore had to be raised to brief counsel, which the appellants only managed to secure around April 2022.

 

[14]      I am satisfied that there are reasonable prospects of success on appeal and that good/sufficient cause has been shown why the appeal should be entertained by this Court. Condonation for the late noting of the appeal should accordingly be granted.

 

Rescission, review or appeal – the effect of the orders of the Magistrate in granting default judgment?

 

[15]      In Firstrand Bank Limited t/a First National Bank v Makaleng (034/16) [2016] ZASCA 169 (24 November 2016), Shongwe JA extensively discusses the issue of appealability of a judgment or order with reference to inter alia Zweni v Minster of Law and Order  1993 (1) SA 523 (A). The following sentiments are apposite:

 

“[11]       The question of appealability of a judgment or order has, under the Supreme Courts Act, been the subject of a large number of judgments over many years. In Zweni v Minster of Law and Order  1993 (1) SA 523 (A), Harms AJA (as he then was) summarised the general proposition pronounced in various judgments as follows (at 531H-533F):

 

‘1.      For different reasons it was felt down the ages that decisions of a ‘preparatory or procedural character’ ought not to be appealable (per Schreiner JA in the Pretoria Garrison Institutes case supra at 868). One is that, as a general rule, piecemeal consideration of cases is discouraged. The importance of this factor has somewhat diminished in recent times (SA Eagle Versekeringsmaatskappy Bpk v Harford  [1992] ZASCA 42;  1992 (2) SA 786 (A) at 791B-D). The emphasis is now rather on whether an appeal will necessarily lead to a more expeditious and cost-effective final determination of the main dispute between the parties and, as such, will decisively contribute to its final solution (Priday t/a Pride Paving v Rubin   1992 (3) SA 542 (C) at 548H-I).

 

2.       In order to achieve this result, a number of different legislative devices have been employed from time to time. The requirement of leave to appeal is one. Another is to prohibit appeals unless the order appealed against has the effect of a final judgment…

…

4.         The word “judgment” has (for present purposes) two meanings, first the reasoning of the judicial officer (known to American jurists as his “opinion”), and second, “the pronouncement of the disposition” (Garner A Dictionary of Modern Legal Usages v “Judgments”, “Appellate Court”) upon relief claimed in a trial action…

…

7.       In determining the nature and effect of a judicial pronouncement, “not merely the form of the order must be considered but also, and predominantly, its effect” (South African Motor Industry Employers' Association v South African Bank of Athens Ltd  1980 (3) SA 91 (A) at 96H).

 

8.       A “judgment or order” is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and, third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings (Van Streepen & Germs (Pty) Ltd case supra at 586I-587B; Marsay v Dilley [1992] ZASCA 114; 1992 (3) SA 944 (A) at 962C-F). The second is the same as the oft-stated requirement that a decision, in order to qualify as a judgment or order, must grant definite and distinct relief (Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another  [1991] ZASCA 163;  1992 (4) SA 202 (A) at 214D-G).”

(my emphasis)

 

[16]      In Lebatlhabetse Syndicate (Pty) Ltd v Moleko (CA 5/2003) [2003] ZANWHC 47 (4 September 2003), Nkabinde J (as she then was) wrote as follows in the context of “…an appeal against the granting, by the Civil Magistrate for the district of Ga-Rankuwa, of default judgment which was applied for by the respondent (plaintiff) in terms of rule 60(3) of the Magistrate’s Court Rules (“the rules”)”:

 

“The issues

 

[4]          The issues for determination by this Court were the following:

 

(a)     whether the defendant should have proceeded by way of review or appeal;

(b)     whether the plaintiff’s claim was for an unliquidated amount in money or not; and

(c)     whether the magistrate exercised his discretion injudiciously or not.

 

[5]        Mr Griessel, for the defendant, submitted that the plaintiff’s claim, being an unliquidated claim, should have been proved either by oral evidence or evidence by affidavit. He further submitted, correctly in my view, that where the claim is for an unliquidated amount the magistrate cannot exercise a proper discretion in the absence of evidence in respect of the quantum of the plaintiff’s claim and that the magistrate, in the instant case, was obliged to hear evidence in order to exercise his discretion in a proper manner. He submitted further that as the magistrate exercised his discretion injudiciously the defendant was entitled to proceed by way of appeal and that the Court should uphold the appeal and set the magistrate’s judgment aside.

 

[6]          Mrs Gutta, for the plaintiff, contended that the defendant should have approached this Court by way of review proceedings. She further contented that the plaintiff’s claim was based on a liquidated amount in money which had been agreed upon in terms of the agreement referred to in the particulars of claim and that it was therefore not incumbent on the magistrate to hear evidence in respect of the quantum of the plaintiff’s claim. She requested that the defendant’s appeal be dismissed with costs.

…

[9]          Where a claim is for an unliquidated amount in money, the magistrate cannot exercise a proper discretion in the absence of evidence in regard to the quantum of the plaintiff’s claim. He/she is obliged to hear evidence in order to enable him/her to exercise his/her discretion in a proper manner. (Jones and Buckle ‘The Civil Procedure of the Magistrates’ Courts in South Africa’ 9^th edition Vol II at 32-2; Pretoruis ‘Burgerlike Prosesreg’ Vol I 623).

 

[10]        Where the magistrate has a discretion which he exercises, but wrongly, the defendant/respondent is entitled to proceed by way of appeal (Erasmus ‘Superior Court Practice’ A1-70). Trollip J, in Sparks v David Polliack & Co Pty Ltd 1963 (2) SA 491 (T) at 496D, remarked that a default judgment which is no longer rescindable is appealable.

   …

[14] In Mthanthi case (Mthanthi v Pepler 1993 (4) SA 368 (D))…

 Hurt J remarked further at 374I that:-

 

“In my view, therefore, the magistrate to whom the request for default judgment was referred was required, in deciding whether to grant such judgment, to exercise a discretion which was not simply limited to the assessment of the proof of quantum. It would have included, for its proper exercise, a consideration of the question whether default judgment was ‘appropriate’ in the circumstances.””

(my emphasis)

 

[17]      The reasoning in Lebatlhabetse, albeit in a different context of an application for default judgment, together with the sentiments expressed in Malakeng supra resonate with me. The ratio applies equally to the present appeal. Once the attempt at rescission of the judgments failed when same were struck from the roll, the only remedy left to the appellants was an appeal. This is particularly so where the Magistrate is said to have exercised her discretion in granting default judgment wrongly.

 

[18]      The judgments granted by way of default judgment are clearly final in effect and are not susceptible to alteration by the Court of first instance; are definitive of the rights of the parties; and in fact disposes of the totality of the relief claimed in the main proceedings. This Court is accordingly clothed with the necessary jurisdiction to consider the appeal.

 

The main ground of appeal

 

[19]      The main ground of appeal which is dispositive of both appeals is that the Magistrate erred by granting default judgment and awarding damages on an unliquidated claim without having been presented with evidence, whether viva voce or by affidavit in relation to cause of action and quantum of damages.

 

[20]      The reasons supplied by the Magistrate in both matters are mirror images. The following statements by the Magistrate in the reasons provided, run counter to the peremptory provisions of Rule 12(4) and sets the main basis for upholding the appeal:

 

“FACTS NOT IN DISPUTE AND PLAINTIFF’S CLAIM

1.         Only the Plaintiff’s version is before court.

2.         The Plaintiff did not file an affidavit nor presented oral evidence on merits for he’s (sic) claim for quantum.

3.         The only evidence in front of court is contained/set out as per plaintiff statement material facts as attached to the condoned summons (sic)…”

 

[21]      It cannot be disputed that inherent in a claim for unlawful arrest and detention is a quantum claim for an unliquidated amount. That being the case, a plaintiff “…shall furnish to the court evidence either oral or by affidavit of the nature and extent of the claim,…”. A court shall only then be vested with a discretion in the assessment of “…the amount recoverable by the plaintiff…”. And only then can a court “…give an appropriate judgment.”

 

[22]      The “version” of the plaintiff in the particulars of claim (facta probanda) does not constitute evidence. There was no evidence (facta probantia) from the appellant before the Magistrate to give an appropriate judgment.

 

Conclusion

 

[23]      The appeals which come before this Court on an unopposed basis accordingly stand to be upheld with an appropriate order as to the conduct of the matters further in the Magistrates’ Court. No order as to costs is merited.

 

Order

 

[24]      In the result, the following order is made:

 

(i)         The appeals under case numbers CIV MG 9/2022 and CIV MG 11/2022 are upheld.

 

(ii)       The orders of the Magistrate in both matters are set aside.

 

(iii)      The matters are remitted to the Magistrates’ Court Atamelang, to be presided over by a Magistrate other than Magistrate S J de Beer, to afford the appellants an opportunity to furnish the court with evidence either oral or by affidavit of the nature and extent of their claims.

 

(iv)      No order as to costs.

 

A H PETERSEN

JUDGE OF THE HIGH COURT

 

I agree

 

A REDDY

ACTING JUDGE OF THE HIGH COURT

 

APPEARANCES:

 

For the Appellant                 : ADV O C LEGAE

Instructed by:                       : Tshabalala OJ Attorneys

c/o Ntsamai Attorneys

54 Molopo Road

Golfview

MAHIKENG

 

Date of Hearing                   : 10 February 2023 &

24 February 2023

 

Date of Judgment               : 16 MARCH 2023

 

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