Myers v Greeff

• Jurisdiction: South Africa
• Citation: 1950 (1) SA 105 (E)

Myers v Greeff
1950 (1) SA 105 (E)

1950 (1) SA p105

Citation	1950 (1) SA 105 (E)
Court	Eastern Districts Local Division
Judge	Gardner JP, and Jennett J
Heard	October 25, 1949
Judgment	November 7, 1949

Flynote : Sleutelwoorde

Practice — Judgments and orders — Judgment in default of appearance — Refusal of — Period after demand for plea not yet expired — Removal from Circuit Court to High Court ordered — Whether competent — No jurisdiction in Trial Court to interfere with such order — Postponement — Grounds for — Costs — Successful party deprived of.

Headnote : Kopnota

A Circuit Court, having refused an application for default judgment, on the ground that the period after demand for plea had not yet expired, had granted an application thereupon made by plaintiff for the removal of the case to Grahamstown for hearing on a specified date or as soon thereafter as possible, despite defendant's objection that the pleadings were not closed and that the application for removal was premature. Thereafter defendant in the High Court applied for an order (a) setting aside the removal order on the ground that it was void ab origine, alternatively, (b) removing the matter back to the Circuit Court, or, alternatively, (c) postponing the hearing of the trial by reason of his ill-health.

Held, as to (a), that section 28 of Act 35 of 1896 did not require notice to ail parties and that the removal was in the discretion of the presiding Judge.

Held, further, if notice was necessary, that verbal notice of the application for removal had been given in Court.

Held, further, that it was not incompetent for the Court to have ordered the removal before pleadings were closed.

Held, further, that in any event relief was not within the jurisdiction of this Court.

Quaere: Whether defendant's application was necessary if the order which he was seeking to set aside was indeed a nullity.

1950 (1) SA p106

Held, as to (b), that no sufficient grounds had been advanced to induce the Court to remove the case back to the Circuit Court.

Held, as to (c), that defendant had failed to discharge the onus on him of proving that he was entitled to the special relief claimed.

Held, however, that a postponement should be granted on the ground that the time allowed was too short to enable the defendant to prepare for trial but that, as plaintiff's refusal to consent to a postponement had not been unreasonable in the circimstances, defendant was not entitled to any order for costs in this regard.

Held, accordingly, that applicant should be ordered to pay the costs of the present application.

Case Information

Application to set aside an order made in a Circuit Court and other relief. The facts appear from the reasons for judgment.

N. K. Kinkead-Weekes, for the applicant: The order of removal without notice constitutes an irregularity and is void ab origine because the Circuit Court was not seized of the matter at all. This Court has power to set it aside in terms of Rule of Court 33 read with Rule 52 (a). In any event the Court has inherent jurisdiction to set aside the order as null and void ab origine.

This is not a case of the exceptional re-opening of a final judgment on the ground of fraud or instrumentum noviter repertum, in defended cases where both parties have been heard (see Childesley Estates Stores v Standard Bank (1924 OPD at pp. 168/9)); but a claim by a party for restitutio in respect of a void judgment where he has never been heard at all. See Voet ad Pand. 4. 1.7. (fin), 4.1.8, 4.6.8, 9; Stewart's Assignee v Wall's Trustee (3 J. 243); Meller v Buchanan (2 S. 313). See also Anlaby and Others v Praetorius (20 Q.B.D. 764); Schabort v Pocock (1946 (2), P.H., F. 52), and the analogy in Act 32 of 1944, sec. 36 (b).

An order of removal is interlocutory and not appealable. See United Motor Services v Globe Manufacturing Co. (1937 CPD 284). This inherent jurisdiction provides a remedy. Collett v Priest (1931 AD at p. 303) is distinguishable.

Removal is governed by sec. 14 of Act 27 of 1912, See MacDonald v MacDonald (1930 NPD 148), and application and notice is therefore necessary. As to Steel Murray & Co., Ltd v Hemraj (1931 NPD 306), the Act of 1912 re-states the law and only the proviso is limited to removal between different provinces. See Rainer v Rainer (1941 CPD 391) and Ex parte Putterill (1938 (1), P.H., F. 35) where removal within the same province was dealt with under Act 27 of 1912.

In any event, even if the ratio of Steel Murray & Co v Hemraj

1950 (1) SA p107

applies, the only extant statutory provision applicable here is sec. 28 of Act 35 of 1896 (Cape)...