IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
In the matter between:
RAMAKOKOBOPETERSAMUEL
And
CAMEL ROCK TRADING 1 i 7 CC
VAN ROOYEN FRANCOIS STEPHEN
THF,: MAGISTRATE FOR THE DISTRICT
OF iSHWANE NORTH
(MR A MOOS N.O)
! {1) ~ RE?ORTABLI;: ~NO . . , . ~-- • . .
I i2) OF INTEREST TO OTH!;R JUDGES: YES/NO I (3j REVISED.
i a.1,£1.LJ.:i. !)ATE
I I I
..__ _________ ~----- · --:-- .... _- ~---=.-.,;--::-~-"\'C: . ...-_ ... -- ;d
CASE NO: 60222/2016
APPLICANT
FIRST RESPONDENT
Sl;COND RESPONDENT
THIRD RESPONDENT
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JUDGMENT
MOKOENA A.J _. .. c . _ -. , .:_"°' .... _ :s: 1
[1] Thi~ is an ijpplicatlon for ti'ie review of l~1e proceedings of the Tshwane North
Magistrate's Court situated at PretoFia North under Ca$~ No: Q0781 8/2014. In those
proc-.eec;lmgs, the First arid ~econci R~spor,dente. who were the First and Second
Applicants respe~~tively, brought {:tr1 ~p~lic~t!~n for the following relief:-
(a) Condonation for the late filing of the application for Rescission of Judgment;
(b) Rescission of the Default Jµdgment granted by "die'' (sic) Clerk of the[. . .] Court in
favour of the Respondent against the First and Second Applicants, which Judgment
wa~ granted on oi December 2015; and
(c) Condonation for the late filing t2f the filing of the First and Second Applicants' Plea.
[2] The Applicarit in those proceedings was the Respondent and the Third Respondent
is the Magistrate who pr~sided evf;r the matter and delivered his Judgment on 02
June 2016 in favour of the First ~nd Second Respondents. The Applicant being
aggrieved by that deci$ion is ~eekin9 this Court to review and set-aside that
decision.
[3] The Applicant initially relied on three grounds for his review application. He
contended that shortly before the hearing of that application, the Third Respondent
has shown to be bias in favour of the First and the Second Respondents; he
committed an act of gross irregularity ~nd that he rejected admissible or competent
evidence. ! n-,ust state from the onset that the Applicaflt located these grounds in
the repe~led Supreme Cowrt Ae:t B.9 of 1959, That in my view is not vita! to his
application in that th~ very ~ame grm.mds are restrJt~d in S~ctio11 2i of the $uperior
Courts Act 10 of ;2013 and they are alsc;> 9rounds of review in terms of the common
law. In addition, the Third Respondent raised a point in limine pertaining to that
aspect and never pursued it during the hearing of the review application.
[4] Dufing argument, the Applicant's Couri$el, Mr Reseng~, focus~d his argument on
two grounds only. He contended thai the Third Respondent was biased and he
rejected admissible or competent evidence in arriving at his decision. Mr. Resenga
abandoAed the ground of §ross irregularity.
[SJ The Respondent~ opposed the Applicant's application contending that the ground of
bias relied upon by the Applicant for his review application, was based on
sp1.3oulation arid not supported Py facts. Secondly, they submitted that when the
Third Re$ponqent arrived at hi$ dec!ilon, h~ was exercising discretion and in doing
so he evaluated the evidenc~ th~t wa$ pre~ent.ed before him.
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[6] The question that arises for aetermination from the aforesaid, is whether the
allegations relied upon by the Applicant to support his grounds of review have
merits or not.
[7] To answer to this question, ! deem it neeessary to consider first what constitutes a
review of th~ proceedings o'f the inferior Courts. In Rustenburg Platinum Mines
Ltd (Rustenbur9 Section) v Commission for Conciliation, Mediation and
Arbitration 1 . Cameron JA st~ted that with review-: "the focus is on the process, and
on the way in which the decision-.maker cf;tme to the challen[Jed conclusion".
Following from those r~marks, review is not about the merits of the case to whether
the challenged conclusion of the decision-maker is right or wrong. It concerns itself
with iss1.,1es of impartially of the decision-maker and his admission of inadmissible
evidence or rejection of admissible evidence amongst others. [See: Cora Hoexter
"Administrative Law of South AfricEJ ~ d Edition at p108'1
[8] From the aforegoing, it is instructive to examine the process and the way in which
the Third Respondent arrived at his decision and, his conduct prior to and during his
adjudication of the First and SeGond Respondents' application. I shall first deal with
the complaint about his conduct prior to and during adjudication process. That is the
~!legation of bias.
[9] The Applicant in his Founding Affidavit alleged that shortly before the matter
proceeded, the Third Respondent's conduct created a perception of bias and/or
appearance of bias in that the Third Respondent allowed the Respondents'
attorneys into his office for discussion of the matter in the absence of the
Applicant's representatives despite being aware that the m~tter was opposed.
[1 O] In his answer, the Third Respondent admitted to have met the legal representatives
of the First and $econd RespondeRts prior to hearing of their matter in his office but
denied that during that meeting he cHscussed their matter with them. The
explanation h~ offered for their meeting w~$ that the legal representatives of the
First and Second Respondents came t!J introduce themselves.
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?007 (1) SA 076 SCA at p31
[11] He went further to state that the allegations by the Applicant of what transpired in
his office were not supported by Q!'ly objective facts . He argued further that the
Applicant was not present in his office when the Respondent's legal representatives
came to introduce themselves. He therefore contended that those allegations were
hearsay. This contention was never disputed by Mr. Resenga nor was it denied by
the Applicant in his answering affidavit filed in opposition to the First and Second
Respondents' application before the Third Respondent. Ms. Rantho, on behalf of
the Third Re$pondent, then made e suornission, and quite correctly so, that those
allegations were hearsay and were base<;! on ~peculation.
[12] During argument Mr Resenga sought to support the Applicant's unsubstantiated
allegations of bias by contending tll(lt the First and Second Respondents filed their
Plea two days before the Third Respondent could deliver his Judgment. He feit very
stron9, abol.Jt hi$ argument a9 it is e,,vid('nt in his S\Jbmission when he said:- '·the last
str€}w in the matter was when on the 31st May 201$, the Applicant's attorney was
se.tved with a plea before Judgment". On perusing the pleadings filed of record, I
noticeg that in fact the Fiist ~nd Second Respondents df?/ivered their plea on 04
June 2015, as it is evident from the Court stamp on the filed Plea and the Third
Respond~nt's judgment wa~ delivered on 02 June 2016.
[13] In addition, Mr Rasenga conceded during my en9s:1gement with him th2t the
explan~tion off~red by the First and Second R~spondents in filing their plea was
acceptable and had the Applicant known about those reasons before, he would
have withdrawn his review application. Quite strangely, those are the very same
reasons provi<:.led by the First and Second Respondents during their application
before the Third Respondent. In any event Mr. Resenga accepted that the Third
Respondent was correct in graAting the First and Second Respondent leave to file
their ?lea out of time.
[14] I tMer~fore deem it not necessary to coAsider the Parties' further arguments on this
ground in th~t they will not change the fact that the Applicant failed to set out facts
to svpport his ~l!egatlons of bias. Furthermore, the Applicant cannot make out or
present hi$ case from the bar. SU.b$tantive facts ought to have been set out in his
Founding Affidavit and he failed to do so.
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[15] I now turn to consider the second ground relied upon by the Applicant. That is, the
failure by the Third Respondent to take into account that the First and Second
Respondents did not raise a bona fide defence and that they were in wilful default
by failing to file. their plea on time. I shall not deal with the latter one on the basis
that it has already been addressed. I shall focus on whether the First and Second
Respondents did raise a bona fid~ defence or not. In doing so, I shall refer to the
records of the proceedings before the Third Respondent which are filed in these
proceedings.
[16] The records of those proceedings from that Magistrate's Court revealed that the
Applicant is suing three defendants. Those defendants are the First and Second
Respondents and the employee of the First Respondent being one Senong Tebogo
Tukudu (''Senong'J . Senong is the Third Defendant in those proceedings. The
cause of aetion relied upon by the Applicant is that Senong caused damage to the
property of the Applicant and at a time he was acting within the cause and scope of
his employment with the First Respondent.
[17] The First and Second Respondents denied those allegations. They amplified their
denial by alleging that when Senong caused damage to the property of the
Applicant, he was aeting on the instruction of an unknown person from Vharenani
Contractors. Their second defence was that the Applicant failed to allege why the
Second Respondent must be held liable for the conduct of the First Respondent.
[18] In his answer to the aforesaid defence rai$ed by the First and Second
Respondents, Applicant offered ~ bare denial and further alleged that the Second
Respondent was s1,1ed jointly and severally with the First Respondent for merely
bein9 the sole and managing member of the First Respondent. Such an answer will
not overcome the defence of the First and Second Respondents in the face of the
provisions of Section 63 of the Close Corporations Act 69 of 1984 ("the Act'? read
with Section 2(3) of the Act. Without meeting the requirements set out in those
provisions of the Act, the defence raised by the First and Second Respondents is
sound in~law anEJ therefore constitlJtes ~ bona fide defence.
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[19] A$ a result, for the Applicant to Qllege in his review application that the Third
Respondent granted the Order rescinding the default Judgment in the absence of a
bona fide defence is without basis.
[20] Based on these reasons. I am of the view that the Applicant's application is without
merits.
I accordingly make the following Order; ..
1. The application is dismissed.
2. The Applicant to pay the costs of all the Respondents.
Date of Hearing
J~dgment Q~liv~red
APPEARANCE$
For the Applicant
Instructed By
ACTING JUDGE OF THE HIGH COURT
19 June 2017
2~ Mar~h 2018
ADV. RESENGA, SC
Ndubane Attorneys
259 Pretorius Street
JSL Towers
PRETORIA
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For the 1st and 2 nd Respondents
lnstr!Jcted By
For the 3rct Respondent
Instructed 8y
ADV.KRUGER, SC
Ham~nn & Botha Prokureurs
Braam Pretorius Street
161 WONDERBOOM
AQV. M.R RANTHO, SC
Stite Attorney. PRETORIA
31£$ SALU Building
Cnr Thabo Sehum~ & Francis Baard Street
PRETORIA
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