Mosoeu v Learned Magistrate - Mohale's Hoek and Another (CIV/APN/320/2003)

Case No: 
Media Neutral Citation: 
[2003] LSHC 103
Judgment Date: 
16 September, 2003




In the matter between:





For the Applicant : Mr. Ramakhula

For the Respondent : No appearance


Delivered by the Honourable Mr. Justice T. Monapathi on the 16th September 2003

The Applicant who was Plaintiff before the Magistrate's Court of Mohale's Hoek applied for review of the learned magistrate's decision in his refusal to enter a default judgment against one Thabiso Makibinyane and one Tankiso Monyooe who were Defendants in the Court a quo.

The two mentioned defendants were not cited in the present proceedings. I concluded that no justice would be served by non-suiting the Applicant on that ground following on the order that I will make in the judgment. Applicant had applied for default judgment which was refused on the grounds or queries


shown later in the judgment

I agree that the Court a quo had only to grant default judgment more so where there was evidence from the Plaintiff that the cattle were his and where he had not been a party at all in the said proceedings nor a judgment debtor in CC 6/97 of Ketane Local Court. His cattle were erroneously executed on the Applicant, as he contended, by the said Thabiso Makibinyane in favour of one Tankiso Ramphalile after an appeal judgement in JC 145/99 in favour of the latter. Then Applicant had not been a party to any of the proceedings that gave rise to the appeal.

While the learned magistrate when dealing with the default judgment may have been entitled to raise procedural queries, but all he could do was to enable the Applicant to correct the procedural errors in those Court queries. This he could have done with a view to ultimately granting default judgment which was within his jurisdiction. This was moreso when there had not been any opposition at all, and where there had been service on all parties concerned. It would have been different if the learned magistrate had been of a view that he was being asked to grant relief where a claimant would have had no such right in law.

To the extent that the learned magistrate went about investigating the matter the way he did, this amounted to a gross irregularity. He may have correctly discovered that the messenger who actually attached the cattle was one Lenkoe as he says he did. This was the basis of the learned magistrate's dissatisfaction. He may have had a myriad suspicions. But then the best he could do was to ask that the said Lenkoe be served.


Secondly, there may have been absence of inventory of sale in which case he must have asked the Clerk of Court to be cited. The absence of the inventory appears to be the learned magistrate's second complaint. It was descending into the arena, which the learned magistrate did, so to speak, by venturing roughshod into that unilateral investigation. He wrongly returned a judgment of absolution in the end. A lot of things suggest that he should have entered judgment as prayed by the Plaintiff. The following consideration bound him to do so.

That opposition has not been in the minds of any Respondents in the Court a quo is confirmed by the fact that none of the Respondents have filed opposition in that Court. Indeed that is sure basis for granting a default judgment.

I therefore direct that this matter be tried de novo before another magistrate and that magistrate will endorse judgment in terms of Subordinate Court Rules in the manner prescribed by those rules.

The just thing that the magistrate may do is that he may order that the Respondents or judgment debtors be given notice of the judgment and so as not to delay execution. This should or may only be done by post, this being for purposes of informing them that there is judgment against them. Then Respondents may do the necessary things or

respond as they may wish.



16th September, 2003