Setlai v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Musi J, Van Zyl J
• Judgment Date: 30 August 2007
• Citation: 2008 JDR 1065 (O)
• Hearing Date: 20 August 2007
• Court: Orange Free State Provincial Division
• Docket Number: A206/2006

H.M. Musi, J

[1]

This is an appeal against the judgment of the Magistrate's Court at Harrismith delivered on 12 October 2005, in terms of which the Magistrate's Court held that the summons issued

2008 JDR 1065 p2

H.M. Musi, J

in this matter was invalid. The order of the court reads as follows:

"Daar is dus geen geldige dagvaarding voor hierdie hof nie en word die aangeleentheid van die rol verwyder. Onder die omstandighede is ek van mening dat die eiser verantwoordelik moet wees vir die koste en word dit so beveel."

[2]

The notice of appeal was served on the respondent's attorneys in Harrismith and so was the notice in terms of Rule 51(4) of the Magistrates' Courts Rules. The respondent gave no indication whether it wished to oppose the appeal and appointed no correspondent in Bloemfontein whereat the documents in this court could be served on it. As a result the appellant sent the notice of set down of the appeal to the respondent's instructing attorneys in Durban by registered post, but they have not responded and no heads of argument have been filed on behalf of the respondent. We must therefore accept that the respondent does not oppose the appeal and will abide by the decision of this court.

2008 JDR 1065 p3

H.M. Musi, J

[3]

The gist of the problem is that the summons was issued by the clerk of the court of the Magistrate's Court at Phuthaditjhaba which is a completely different magisterial district. Thereafter someone realised that the summons was supposed to be issued in the Magistrate's Court for the district of Harrismith. It was then, before service, presented to the clerk of the court at Harrismith who duly endorsed the same with his official stamp, signed it and allocated a Harrismith case number. The Phuthaditjhaba court case number was simply cancelled off. Thereafter the summons was served. The respondent entered an appearance to defend and the normal exchange of pleadings took place whereafter the matter was duly enrolled for trial.

[4]

On the date of trial, the presiding magistrate mero motu raised the question of whether he had in front of him a valid summons on the basis of the above developments. He gave the parties an opportunity to address him on the issue and written submissions were duly filed. At the conclusion of argument, the learned magistrate granted the order now appealed against.

2008 JDR 1065 p4

H.M. Musi, J

[5]

It has to be mentioned that the respondent at no stage raised an...