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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

Case no. 3947/12

Date heard: 31/7/14

Date delivered: 7/8/14

Not reportable

In the matter between:

MORE BLOCKS CC                                                                                           First applicant

MARGARET ANN POTGIETER                                                                    Second applicant

GAVIN MELVIN WHITTAL                                                                                Third applicant

and

MAGISTRATE XOLISWA STUURMAN                                                          First respondent

EASTERN CAPE DEVELOPMENT CORPORATION                               Second respondent

Review of magistrate’s decision in terms of s 24 of Supreme Court Act 59 of 1959 – notice of withdrawal of application for summary judgment after lapse of action not irregular proceeding – even if irregular proceeding, not causing prejudice to applicants – application dismissed with costs.

JUDGMENT

PLASKET J

[1] This is an application, brought in terms of s 24 of the Supreme Court Act 59 of 1959,[1] to review and set aside an order of the first respondent, magistrate Xoliswa Stuurman, in which she dismissed (with costs on an attorney and client scale) an application to set aside as an irregular proceeding a notice filed by the second respondent, the Eastern Cape Development Corporation (ECDC), to withdraw a summary judgment application.

[2] The ECDC had instituted an action against the three applicants, as defendants, in the East London Magistrate’s Court. (I shall refer to them in this judgment as the defendants.) Later, it applied for summary judgment against them.

[3] The application for summary judgment was never heard and it was also never postponed or dealt with in any way. This was because the court file went missing and the magistrates in East London apparently have a practice that they do not deal with matters on the basis of a duplicate file. The ECDC apparently took the view that the application for summary judgment had lapsed. This led it to serve, in due course, a notice of bar on the defendants. The defendants objected to the notice of bar being served on them on the basis that an application for summary judgment was pending.

[4] The defendants then brought an application in terms of rule 60A of the Magistrates’ Courts Rules[2] to set aside the notice of bar as an irregular proceeding. This application came before acting magistrate DJ Marais. She identified the issue to be decided as being ‘whether the application for Summary Judgment is pending before this Court and whether the Plaintiff was correct in placing the defendants under bar’. Having stated that the application for summary judgment had been set down for 9 February 2012 and that it was ‘common cause that nothing of a judicial nature took place on this date’ and having referred to authority to the effect that in these circumstances, the ‘case lapses and cannot be revived except by consent’, she concluded as follows:

‘Thus it follows that in this case all legal steps taken by the plaintiff post 9 February 2012 are null and void. Plaintiff, in the absence of consent from the defendants to revive the case, must “adopt the proper course” and apply to this Court for redress and have the case re-opened.’

She then set aside the notice of bar as an irregular proceeding and awarded the defendants costs on an attorney and client scale. The ECDC never appealed against the judgment of acting magistrate Marais.

[5] The parties apparently disagree as to the import of her judgment. The defendants take the view, it would seem, that not only the application for summary judgment but the summons too has lapsed. The ECDC apparently takes the view that the judgment means only that the application for summary judgment has lapsed. It seems to me that acting magistrate Marais must have found that the ECDC’s summons lapsed but I have some difficulty in understanding why a summons should lapse when an application for summary judgment is not dealt with by a court.

[6] The ECDC then filed a notice withdrawing the application for summary judgment. One would be forgiven for assuming that the defendants would have been pleased at this turn of events because, in recognition (at least in part) of the effect of the judgment, the ECDC had taken the unnecessary step of formally withdrawing the application for summary judgment. For reasons that I cannot fathom, the defendants were aggrieved by the notice of withdrawal and attacked it as an irregular proceeding.

[7] The application to have the notice of withdrawal set aside as an irregular proceeding was heard by magistrate Stuurman. She decided that the notice of withdrawal was not an irregular proceeding and it is that decision that is the subject of this review. Having read both magistrate Stuurman’s ex tempore judgment and her subsequent written reasons, it is not clear to me precisely what she considered the import of the judgment of acting magistrate Marais to be. For reasons that follow, that is not important for present purposes.

[8] Magistrate Stuurman, in her ex tempore judgment, held that the rules allow a party to withdraw proceedings[3] and that, as a result, it was not an irregular proceeding for the ECDC to withdraw the application for summary judgment. This may have been an unnecessary formality but, in my view, magistrate Stuurman was correct in concluding that it was not an irregular proceeding. Secondly, she found that the defendants had not established any prejudice arising from the notice of withdrawal of the application for summary judgment. I agree that there could not have been any prejudice to the defendants occasioned by the notice of withdrawal. Prejudice is a requirement for a successful application for the setting aside of an irregular proceeding[4] so even if the notice of withdrawal had constituted an irregular proceeding, it would not have been set aside because of the lack of prejudice. That being so, magistrate Stuurman arrived at the correct conclusion. In these circumstances, it does not matter that some of her reasoning – that concerning the meaning and effect of acting magistrate Marais’ judgment – may have been erroneous.

[9] In the result, no basis for the review of the decision has been established and the application consequently must fail. I make the following order:

The application is dismissed with costs, including the costs reserved on 15 May 2014.

 

_________________________

C Plasket

Judge of the High Court

 

I agree.

 

__________________________

C Mey

Acting Judge of the High Court

 

APPEARANCES

Applicants: N Redpath-Molony instructed by Netteltons

First respondent: No appearance

Second respondent: B Boswell instructed by Wheeldon, Rushmere and Cole  

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