Manyasha v Minister of Law and Order

• Jurisdiction: South Africa

Manyasha v Minister of Law and Order
1999 (2) SA 179 (SCA)

1999 (2) SA p179

Citation	1999 (2) SA 179 (SCA)
Case No	113/97
Court	Supreme Court of Appeal
Judge	Smalberger JA, Scott JA, Zulman JA, Melunsky AJA, Farlam AJA
Heard	November 17, 1998
Judgment	November 27, 1998
Counsel	MJ Lowe for the appellant; EAS Ford for the respondent

Flynote : Sleutelwoorde

Magistrate's court — Civil proceedings — Practice — Pleadings — Summons — Lapsing of — Rule 10 of Magistrates' Courts Rules — Applies to both defended and undefended actions. I

Magistrate's court — Civil proceedings — Practice — Pleadings — Summons — Lapsing of — Revival of lapsed summons — Rule 10 of Magistrates' Courts Rules providing for time limit of 12 months, after which summons lapsing if no further steps taken — Rule 60(5) permitting extension of 12 month-period, either with written consent of opposite party or in exercise of court's discretion — Lapsed summons thereupon revived. J

1999 (2) SA p180

Headnote : Kopnota

Rule 10 of the Magistrates' Courts Rules provides that '(i)f a summons in an action be not served within 12 months A of the date of its issue or, having been served, the plaintiff has not within that time after service taken further steps in the prosecution of the action, the summons shall lapse', subject to the possibility of an extension of that period under certain exceptional circumstances. Rule 60(5) provides that 'any time limit prescribed by these Rules, B except the period prescribed in Rule 51(3) and (6), may at any time, whether before or after the expiry of the period limited, be extended - (a) by the written consent of the opposite party; and (b) if such consent is refused, then by the court on application'. In an appeal from a decision in a Provincial Division the following questions were raised: (1) whether Rule 10 of the Magistrates' Courts Rules applied to both defended and undefended actions, or C only the latter; and (2) whether Rule 60(5) of the Magistrates' Court Rules could be invoked to revive a summons that had lapsed in terms of Rule 10.

Held, as to the first question, that Rule 10 applied to both defended and undefended actions. (At 187F—F/G.)

Held, further, as to the second question, that, on a proper interpretation of Rule 60(5), it permitted of an extension D of the period of 12 months in Rule 10, either with the written consent of the opposite party or in the exercise of the court's discretion, and the corresponding revival of the summons that had lapsed. (At 190I—J.)

The decision in the Eastern Cape Division in Manyasha v Minister of Law and Order [1997] 1 B All SA 729 (E) reversed. E

Cases Considered

Annotations

Reported cases

Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A): dictum at 278B—D applied F

Arprint Ltd v Gerber Goldschmidt Group South Africa (Pty) Ltd 1983 (1) SA 254 (A): dictum at 261B—D applied

Chasfre Investments (Pty) Ltd v Majavie and Others 1971 (1) SA 219 (C): dictum at 223G—H applied

Dawood v Abdoola and Another 1955 (2) SA 365 (N): referred to G

Die Trustees Indertyd van M & L Trust v Jason Lucas h/a Lucas Quality Thatchers [1996] 4 B All SA 237 (E): not approved

Kagan and Co v Gunter's Store 1955 (2) SA 618 (O): referred to

Kinsman AG v Two Core Walling and Driveways 1994 (2) PH F 40 (T): not approved

Langenhoven v Comyn t/a Rags to Riches 1998 (1) SA 710 (T): approved H

Manjra v Desai and Another 1968 (2) SA 249 (N): referred to

Manyasha v Minister of Law and Order [1997] 1 B All SA 729 (E): reversed on appeal

Minister of Law and Order and Others v Zondi 1992 (1) SA 468 (N): approved in part and overruled in part

Pietermaritzburg Corporation v Union Government 1935 NPD 36: referred to I

Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd 1947 (2) SA 1269 (A): dictum at 1279 applied

Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others 1990 (1) SA 925 (A): dictum at 942I—J applied

R v Shole 1960 (4) SA 781 (A): dictum at 787B applied

Sibiya v Minister of Police 1979 (1) SA 333 (T): approved. J

1999 (2) SA p181

Rules Considered

Rules of Court A

The Magistrates' Courts Rules, Rules 10(1), 60(5): see Eramsus and Barrow The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1944 11th ed (1997) Part B at 91, 144.

Case Information

Appeal from a decision in the Eastern Cape Provincial Division (Jennett J and Leach J). The facts appear from the B judgment of Smalberger JA.

M J Lowe SC for the appellant (from the summary of contentions on appeal): The issues on appeal are (1) whether Rule 10 of the Magistrates' Courts Rules applies only to undefended actions or whether it applies to both defended and undefended actions; (2) whether Rule 60(5) of the Magistrates' Courts Rules can be invoked to C revive a summons which has lapsed due to the operation of Rule 10; and (3) whether on the facts of this matter, and in the event of Rule 60(5) being able to be invoked to revive a summons, the appellant made out a proper case for such revival.

As to (1): The appeal in this matter relates to a defended action in the magistrate's court in respect of which no D steps were taken by the plaintiff for more than one year after the issue of summons. Contrary to the finding of Coetzee J in Sibiya v Minister of Police 1979 (1) SA 333 (T), the provisions of Rule 10 apply only to undefended actions. Properly interpreted according to its context, Rule 10, which is subordinate legislation, is clearly applicable E only to undefended actions. Were it otherwise, there are numerous anomalies that would arise and it is difficult to understand the inclusion of the proviso to the Rule. See Kinsman v Two Core Walling and Driveways 1994 (2) PH F 40 (T); Trustees, M & L Trust v Lucas h/a Quality Thatchers (ECD, case No 522/94). As to the interpretation of statutes, see Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd F and Others 1990 (1) SA 925 (A) at 943; Venter v R 1907 TS 910 at 913, 914—15; Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A) at 662; Consolidated Diamond Mines of South West Africa v Administrator, SWA and Another 1958 (4) SA 572 (A) at 599; Aetna Insurance Co v G Minister of Justice 1960 (3) SA 273 (A) at 284; S v Thole 1962 (2) SA 90 (D) at 92; S v Kiley 1962 (3) SA 318 (T) at 321; S v Nokwe and Others 1962 (3) SA 71 (T) at 74; S v Beyleveldt and Others 1964 (1) SA 269 (T) at 272; Hopkinson v Bloemfontein District Creamery 1966 (1) SA 159 (O) at 163; Welkom Bottling Co (Pty) Ltd v Belfast Mineral Waters (OFS) (Pty) Ltd 1967 (3) SA 45 (O) at 48; Community Development Board v H Revision Court, Durban Central, and Another 1971 (1) SA 557 (N) at 565; Ebrahim v Minister of the Interior 1977 (1) SA 665 (A) at 677; Stellenbosch Farmers' Winery Ltd v Distillers Corporation (SA) Ltd 1962 (1) SA 458 (A) at 476; Volschenck v Volschenk 1946 TPD 486 at 487—8; New Rietfontein Gold Mines Ltd v Mismun 1912 AD 629 at 634; Union Government v Tonkin 1918 AD 533; South African Railways and Harbours v I Smith's Coasters (Pty) Ltd 1931 AD 113 at 127; South African Transport Services v Olgar and Another 1986 (2) SA 684 (A) at 697D; Harris v Minister of the Interior and Another 1952 (2) SA 428 (A) at 459—60; S v Ncokazi 1980 (3) SA 789 (Tk); Principal Immigation Officer v Bhula 1931 AD 323 at 337; Transvaal Investment Co v Springs J

1999 (2) SA p182

Municipality 1922 AD 337 at 347. As to the effect of the omission of the term 'undefended' in Rule 10, see Port A Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd 1947 (2) SA 1269 (A) at 1279; R v Shole 1960 (4) SA 781 (A) at 787B; Sekretaris van Binnelandse Inkomste v Lourens Erasmus (Edms) Bpk 1966 (4) SA 434 (A) at 443F—H.

As to (2): Having regard to the structure of Rule 60(5) and having regard to the proper meaning to be given to the B word 'lapsed', it is competent to revive a summons on a proper application in terms of Rule 60(5). The word 'lapsed' does not convey the idea of finality and is the equivalent of 'shall fall into abeyance' or 'shall be discontinued'. Any time limit prescribed by the Magistrates' Courts Rules other than those specifically excluded in C Rule 60(5) may be extended. An extension of time may be granted either before or after the period has expired. The reasoning of Thirion J in Minister of Law and Order and Others v Zondi 1992 (1) SA 468 (N) is incorrect. See also Claude Neon Lights (SA) Ltd v Bourbon-Leftley 1971 (1) SA 345 (C) at 348A; Dawood v Abdoola and Another 1955 (2) SA 365 (N) at 368; Snyman v Crouse 1980 (4) SA 42 (O); Vleissentraal v Dittmar 1980 D (1) SA 918 (O); Chasfre Investments (Pty) Ltd v Majavie and Others 1971 (1) SA 219 (C) at 223; Epol (Edms) Bpk v Landdros, Vryburg 1987 (1) SA 821 (NC) at 825; Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654.

As to (3): On the facts sufficient reason was given for relief in terms of Rule 60(5). E

E A S Ford for the respondent: It is not disputed that the Magistrates' Courts Rules are subordinate legislation and must accordingly be construed in the same way as any legislative enactment. Chasfre Investments (Pty) Ltd v F Majavie and Others 1971 (1) SA 219 (C) at 223G—H. It is trite that the primary rule in the construction of statutory provisions is to ascertain the intention of the legislature. Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others 1990 (1) SA 925 (A) at 942I—J. It is appropriate when construing subordinate legislation to apply to the terms used therein the same interpretation as is applied to like terms in the G relevant statute. Kellaway Principles of Legal Interpretation at 374. The word 'action' is used in both the Magistrates' Courts Act 32 of 1944 and in the...