Samuel and Others v Seedat

• Jurisdiction: South Africa
• Judge: Selke J and Broome J
• Judgment Date: 28 February 1949
• Court: Natal Provincial Division

Selke, J.:

This is an appeal from the magistrate's court for Durban. The respondent, who was the plaintiff in the court below, sued, originally, the first and second defendants for an order of ejectment, and, later, the third defendant who had intervened by leave of the court. The pleadings thereupon became rather complicated. All the defendants filed pleas, and the third defendant filed a claim in reconvention. The case first came on for hearing on the 7th October, 1947, before a magistrate named Fowler, who then heard some evidence given by one Ahmed Suleman Kathrada, the plaintiff's husband. The magistrate duly made a record of that evidence, and the record discloses that at 3.45 p.m. the case was adjourned to a date to be fixed. Thereafter, it seems, Mr. Fowler became ill, and there were a number of adjournments until, ultimately, the case came on on the 12th July, 1948, before Mr. Wilmot, another magistrate. The record discloses that on that occasion, Mr. Driman appeared for the plaintiff and Mr. Burne for the defendant, and that, by consent, the evidence given before Mr. Fowler was to form part of the record. The record discloses that Ahmed Suleman Kathrada thereupon continued his evidence in chief, and that he was cross-examined on the whole of his evidence, and presumably, re-examined. According to the record, at the conclusion of Kathrada's evidence, Mr. Driman closed his case on condition that he was allowed to call an official from the Durban Health Department, to which condition Mr. Burne agreed. Thereupon the defence evidence began, and the case proceeded in the usual way, and ended in the magistrate's giving judgment for the plaintiff with costs and for the defendant in reconvention with costs. The appellants have appealed against the magistrate's judgment on a number of grounds, but with the merits of the appeal this Court is not at the moment concerned because Mr. Holmes, for the respondent, has taken a preliminary point. He submitted that the magistrate's judgment is, in effect, no more than an award of an arbitrator, and therefore cannot be attacked on grounds other than those applicable to such an award. He based this submission on the fact that the case started before Mr. Fowler, who heard some evidence, and was then taken over by Mr. Wilmot, who heard the rest of the evidence and decided the case. He acknowledged that Mr. Wilmot did this

Selke J

by the consent of the parties, but he submitted that, nevertheless, it followed as a matter of law, that the magistrate's decision had the status merely of an award, and not of a judgment properly so called. Mr. Holmes referred to sec. 53 of the Magistrates Courts Act, 32 of 1944, which deals with the grant by the Court of Commissions de bene esse...