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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