REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

                                                                    APPEAL CASE NO:HCAA07/2016
                                                                 COURT A QUO CASE NO:1386/2015
In the matter between:

MASWANGANYI, PATRONACIA THEMBI
Obo MACHIMANE, TEBOGO MAIMELE                         Appellant

                                     and

ROAD ACCIDENT FUND                                                       Respondent

                                                        
                                                        APPEAL JUDGEMENT

MULLER J:

[1] The appellant issued an application in terms whereof the following relief were claimed.
(a)    Calling off the part-heard trial in the matter which      
         Commenced on Wednesday 14 September 2016 and     
         postponed for continuation on Wednesday 12  October 2016    
         at 10h00 in the forenoon.
 	(b)   That the said trial be and is hereby forthwith annulled.
(c) 	Declaring that the lis between the applicant and the    
     		respondent which was to be the subject matter of the trial   
 which was to commence on Wednesday 14 September 2016 at 10h00 in the forenoon before this court under case number 1386/2015 to have been fully and finally settled between the parties in terms of the agreement and resultant draft order made and prepared by the parties and bearing the same date of Wednesday 14 September 2016.
(d)	That the draft order in para C above is hereby made an order of the Court.
(e) 	That the costs payable by the defendant in terms of paragraph C of the said draft order shall include travelling costs, the costs of this application and the hearing of Wednesday 12 September 2016, as well as the costs of senior counsel where employed.
(f)	Further and /or alternative relief.

[2] To fully understand the unusual relief claimed in the notice of motion the background leading to the application being launched must briefly be set out. The following facts are common cause:

(a)	action was instituted on behalf of a minor against the Road Accident Fund which was set down for trial on 12 September 2016.
(b)	the trial was allocated to the learned deputy judge President on 14 September 2016.
(c)	when the matter was called the parties requested the trail to stand down to discuss settlement thereof.
(d)	when the matter was called again later that day the learned judge was informed by both counsel appearing for the parties that a settlement had been reached.
(e)	a draft order which contained their agreement was handed up.
(f)	the learned judge indicated after receipt of the draft order that she is not satisfied with its contents, more particularly, with the liability of respondent being 100%.
(g)	she indicated to counsel that when she prepared for the trial she had sight of the pleadings and witness statements filed and therefore required evidence to be adduced.
(h)    the plaintiff called a witness Mahlenhle David Maake.
(i)     the trial was postponed sine die before conclusion of his     
         evidence.
(j)     the appellant then launched a substantive application    
        in which the relief referred to in this judgement was claimed.
(k)   on 12 September 2016 counsel approached the learned deputy    
      judge president in chambers. Two suggestions were made to     
      her:
(i)  That the learned judge call off and annul the part-heard     
trial  proceedings before her and make the draft an order of court, adjusted in accordance with the relief listed in  the said application; or
(ii)  alternatively, to hear the application and the pronounce     
      judgment on the application.
(l) the learned deputy judge president elected to proceed with the    
     application and commenced with argument.
        (m) after argument by the parties was concluded she dismissed the      
             application with costs.
(n) she granted leave to appeal to the full bench of this division.

[3] The appeal is against the dismissal of the main relief that the pending trial proceedings before her is a nullity and that the lis between the parties has been settled. There is therefore in my judgment, no need to decide whether the court ought not to have taken cognizance of the witness statements in the court file or that the order to continue with the trial despite the settlement, was correct.  The appeal before us is not against that order. See Cape Empowerment Trust v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA) at par 39. The learned deputy judge president, was called upon in the motion proceedings, to reconsider her earlier decision and to declare her order to continue with the trial after some evidence had been adduced, a nullity. The decision to continue with the trial and to hear evidence, despite a settlement between the parties are the underlying facts upon which the application before the Deputy Judge President is founded.

[4] It is practice, and it is a practice that is certainly to be encouraged, that parties settle their disputes out of court where it is possible. A transactio is a substantive contract entered into with the object of preventing avoidance or terminating litigation and has the effect of res judicatia. See Gollach & Gomperts (1967) Pty Ltd v Universal Mills of Produce Co (Pty) Ltd and Others 1978 (1) SA 914 (A) at 921D and 922B. It is possible, and it often happens, that the parties in litigation settle their dispute on the steps of the court. However, in this instance the court was, after having regard to witness statements contained in the court file, of the view that the parties should adduce evidence notwithstanding being informed by the parties that they entered into a contract of settlement. 

[5] Mr Shakoane SC, who appeared for the appellant, in supplementary heads of argument filed at the request of the court, argued that the order is void as the court proceedings have been terminated before conclusion of the trial by reason of the settlement. He contended that the process of annulment may vary depending on the reason for the annulment.  In this instance, the order void for the lack of jurisdiction. He relied on Communication Worker Union v Telkom SA Ltd 1999 (2) SA 586 (TPD) at 593F-599B. This case is of no assistance to the appellant. The court, in that case, was called upon to review and set aside a decision by the respondent to demote certain employees and to declare them entitled to all benefits. The respondent objected to the jurisdiction of the court at the commencement of the proceedings. Southwood J correctly, with respect, held that a court must have jurisdiction for its judgment or order to be valid. The learned Judge expressed himself as follows at 593H-J:
“The crucial time for determining whether a court has jurisdiction is the time when proceedings are commenced and, once jurisdiction is established it continues to exist to the end of the proceedings even though the grounds upon which it was established has cease to exist: Thermo Radiant Oven Sales (Pty) v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) at 310D. For purposes of the objection it must be established therefore whether this Court had jurisdiction when the proceedings commenced, ie when the application was served on the respondents.”

[6] A settlement, if the argument of the appellant is correct, will bring an end the proceedings the moment it is concluded. The court, therefore, will not have jurisdiction make the settlement an order of court. The argument cannot be sustained in the light of clear authority to the contrary. There is no suggestion that the court had no jurisdiction when the summons was served and when trial commenced. 

[7] I consider it necessary also to mention, in passing, that the court, as the upper guardian of all minor children, could not have acted as a mere rubber stamp of the parties. It is indeed obliged in terms of the common law to approve a proposed settlement. It is usual that where a minor is awarded damages that the money be paid into the guardians fund or that a curator bonis be appointed with power to invest the money until the child attains majority. See Ex Parte Visser NO In Re Khoza 2001 (3) SA 524 (TPD) at 527H-I; Ex Parte Bloy 1984 1984 (2) SA 410 at 413A. Provisions along those lines are absent from the proposed draft order presented to the learned judge.

[8] The proceedings before the deputy judge president have not been concluded and are still pending. A court, who is seized with the action may exercise its inherent power to protect and regulate its own process. See also Universal City Studios Inc and Others v Network Video (Pty) Ltd 1986 (2) SA 735 (A) at 754G-H. In terms of section173 of the Constitution, a court, in addition to the aforesaid power, has the power to develop the common law in the interests of justice.  

[9] However, as I see it, the learned deputy judge president was called upon to review her own decision in the motion application. The primary means to correct a judicial error by a judge who has made a final decision, leaving aside an order granted ex parte by a judge which may be corrected by another single judge through the ordinary processes of court, is by way of an appeal to a higher court. 

In Pretoria Portland Cement Co Ltd v Competition Commission 2003 (2) SA 385 SCA at para 35 Schutz JA said: 
“Review is not directed at correcting a decision on the merits. It is aimed at the maintenance of legality, at the administration of the ‘law which has been passed by the Legislature’ as Bell J put it on the same page of Meintjies’s case. And throughout it has been the High Court, and only the High Court, acting through its Judges, that has enjoyed the general, inherent jurisdiction to entertain reviews. It is not itself subject of review – see the cases cited in para [29]. There are other means, quite sufficient means, to which I will come, by which the judgement of a Judge may be corrected.”

Courts are, also subject to the rule of law on which our constitutional dispensation rests. Section 2 of the Constitution regulates all public power. When judges erred in the performance of their judicial duties the subject affected by the defective order has the right to be afforded a proper hearing by means of an appeal on whether the order should be set aside. Proper process must therefore be followed to set court orders aside because they, even if defective, have legal consequences. See Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC) at par 74. 

[10] It is, of course, open to an appellant to raise in an appeal the grounds which would have been grounds for review in another tribunal. Section 16(1)(a)(i)  of the Superior Courts Act 10 of 2013 states:
 “Subject to section 15(1) of the Constitution and any other law-
(a)	an appeal against any decision of a Division as a court of first instance lies, upon leave having been granted-
(i)	if the court consisted of a single judge, either to the Supreme Court of Appeal or to a full court of that Division, depending on the direction issued in terms of section 17(6);”
There can be no doubt that no other process than an appeal is prescribed if a party is dissatisfied with a final decision of a high court in a civil case. 

[11] Mr Shakoane SC did not suggest that there is a common law right that allows a court to declare proceedings before it a nullity if an irregularity was committed by the judge during a trial. This court may only do what the law permits. To allow such a process, where hitherto none existed, will, have a profoundly negative effect on the orderly administration of justice and will render section 16 of the Superior Court Act and the fair trial rights contained in section 34 of the Constitution, nugatory. 

[12] Because of the view I have taken of the appeal, I need say no more than that it is unwise to comment on whether the learned deputy judge president was correct or not in approaching the matter the way she did.

The appeal falls to be dismissed. The appeal is not opposed and therefore no costs order is warranted.

ORDER:

The appeal is dismissed.

                                                           _______________
                                                                 G.C MULLER
                                           JUDGE OF THE HIGH COURT LIMPOPO  
                                                                 DIVISION: POLOKWANE     

I concur              
                                                          
                                                   	 __________________
                                                                      M.G PHATUDI
                                                                JUDGE OF THE HIGH COURT LIMPOPO 
                                                                DIVISION: POLOKWANE

I concur

                                                      __________________               
                                                                    M.V SEMENYA
                                                               JUDGE OF THE HIGH COURT LIMPOPO
                                                                DIVISION: POLOKWANE

APPEARANCES

For Appellant:		G. Shakoane SC
For Respondent:		No appearances
Date heard:		21 April 2017
Date of judgement:	18 May 2017