Maharaj v Phillips

• Jurisdiction: South Africa
• Judge: Broome JP and Milne J
• Judgment Date: 19 April 1955
• Citation: 1955 (2) SA 658 (N)
• Hearing Date: 19 April 1955
• Court: Natal Provincial Division

Milne, J.:

This is an appeal from the decision of the magistrate, Pietermaritzburg, in which he granted a judgment of absolution from the instance and a certain order as to costs. The appellant was the plaintiff in the court below and sued the respondent for £111 2s. 6d., B being the amount of damage which he alleged he had suffered in consequence of the damage caused to a motor bus belonging to him by its running into a motor bus belonging to the defendant, now the respondent.

Mr. Meachin, for the respondent, has taken a preliminary objection to the hearing of the appeal on the ground that there has been a want of C compliance with Rule 47 (10) of the Magistrates' Courts Rules. That Rule provides:

'The clerk of the court shall within seven days after he receives notice that an appeal has been set down for hearing, transmit to the Registrar of the Court of Appeal the record in the action, duly certified.'

Mr. Meachin has referred to the fact that the typed copies of the record D have been certified as true copies only by the appellant's attorney, and he claims that the record cannot be duly certified within the meaning of this Rule unless the certificate is given by the clerk of the court. Mr. James, who appears for the appellant, has pointed out that the certificate attached to the original record is signed by the magistrate, and he claims that that is the only certification which is referred to in the Rule. The Court agreed with him in that interpretation. It does E not refer to the copies of the record, but to the record itself. The Rule does not, in terms, require that the certificate should be made by the clerk of the court. Mr. Meachin referred to the relative form No. 59, which forms part of the annexures to the Rules, indicating that it is the clerk of the court or the shorthandwriter, as the case may be, F who is contemplated as the person who should give the certificate. He has also referred to the case of Botha v Stellenbosch Liquor Licensing Board, 1952 (1) SA 129 (C), where it was said that a certificate signed by the magistrate as chairman of the Liquor Licensing Board to the effect that the minutes were correct, was not one which complied with this Rule of the Magistrates' Courts which, by a provision of the G Liquor Act, is made applicable to proceedings in a case before the Liquor Licensing Board. He pointed out that it was said in that case that, in any event, the certificate was not signed by the clerk of the court. In so far as that judgment purported to say that the certificate contemplated by the Rule must be signed by the clerk of the court, it seems, in the first place, that it was obiter dictum, and in the second place that it went too far. The form No. 59, which Mr. Meachin relies H upon, refers not only to the clerk of the court as the potential signatory but also to the shorthandwriter, if there is one, as an alternative to the clerk of the court. It seems to the Court that if the record has been certified by the magistrate who has been in charge of the proceedings and has made the record, and he

Milne J

certifies that the whole of it is correct, it is duly certified within the meaning of...