The matter dealt with an appeal in which the respondent had commenced proceedings in the Local Court against the appellant and his mother for trespassing in a forest. The appellant denied the trespass and claimed that the forest had belonged to his father and that he was the heir. The court delivered a very confusing judgement which was hard to comprehend and so the respondent sought an appeal that would see the Magistrate’s Court revisit the matter.
The magistrate reviewed and set aside the matter issuing a new judgement. The principal question was if the magistrate had the power to review the matter from the local court.
Section 26 of the Central and Local Courts Proclamation granted magistrates the power to review matters but that such a magistrate must not constitute himself a court of appeal and arbitrarily interfere with the working of the lower court. He was empowered to ensure that there were no irregularities on the face of the proceedings or prejudice or bias in a decision given by the President of a Local or Central Court only.
The court in this matter therefore, found that the magistrate, by setting aside the decision of the local court and delivering an alternative judgment was exercising an appellate function which was beyond its authority. The court found that it could not consider issues of law in the present matter and referred the matter back to the local court for review as should have been done by the magistrate.
CIV/A/11/1980
In the Appeal of:LAKA MOETSANA AppellantvCHIEF TLHABELI TSIKOANE RespondentJUDGMENTDelivered by the Hon. Mr. Justice F.X. Rooney On the 28th day of September, 1981
Mr. A. Mda for the AppellantMr. G. Kolisang for the RespondentThe present respondent commenced the proceedings in the Motjoka Local Court against the appellant and his mother for trespass in a forest. The appellant denied the trespass and claimed that the forest had belonged to his father and that he was the heir.In its judgment the Local Court discussed the evidence and the arguments placed before it. It is a very obscure document and it concludes with the words "The part that the boundary was made in 1945 cannot belong to the plaintiff, but he said it belongs to the State. The question is by whom can the state use because the chief is in dispute with his subject. In as far as the second defendant is concerned she could have been left aside like on the previous case. The plaintiff should bear their own cases".
Section 26 of the Central and Local Courts Proclamation provide as follows :"26. Every Magistrate, in his capacity as a holder of a Subordinate Court, shall at all times have access to all Central and Local Courts in his district or the district in which he is serving, and to the records of such Courts, and may of his/own motion
-2-own motion or on the application of the accused in a criminal case or of either of the parties in a civil cause or matter-(a) revise any of the proceedings of a Central or Local Court, whether of first instance or appellate and whether civil or criminal, and make such order or pass such sentence therein as the Central or Local Court could itself have made or passed: Provided that a magistrate shall not alter an acquittal to a conviction or increase any sentence of fine or imprisonment or other sentence in any criminal proceeding, or make any order in any civil proceeding to the prejudice of any party in such proceeding, without first giving the accused or such party, as the case may be, an opportunity to be heard: Provided further that if an acquittal be altered to a conviction, or if any sentence shall be increased, or if, in a civil proceeding, an order to the prejudice of any party in such proceedings shall be made under the provisions of this section, the accused or such party may within thirty days from the date of such order or sentence appeal therefrom to the High Court;(b) order any case to be re-tried either before the same Central or Local Court or before any other Central or Local Court of competent jurisdiction;(c) transfer any cause or matter, whether civil or criminal, either before trial or at any stage of the proceedings, whether before or after sentence passed or judgment given, to any
In a recent case Notsi v. McPherson CIV/A/2/8l(unreported)Mofokeng ACJ said :"This section gives the magistrate powers of revision. As Cotran J, (as he then was) stated in the case of 'Matau Makhetha v. Rex, 1974-75 L.L.R. 431 at 432, these powers are certainly very wide. But, continued the learned Judge in the case of T. Malope v. M. Tlale, CIV/APN/5/75 (quoted in Makhetha's case(supra) at page 432E);' a magistrate should not under thesection, constitute himself a court of appeal and arbitrarily interfere with the working of the lower Court. But he is
irregularity on the face of the proceedings or prejudice or bias in a decision given by the President of a Local or Central Court*.Again in the words of Evans, J, in the case of 'Makhoana Tlale v. Tseko Malope. CIV/A/8/72(unreported)
/Court
-3-Court or President had a personal interest in the case, malafides by him or gross irregularity in the conduct of the proceedings'".The magistrate had a right to revise the proceedings in the Local Court and in view of the obscurity which surrounded the decision of the Local Court he should have made an order under sub-section (b) that the case be re-tried. Instead he called the parties before him on the 11th May 1980, heard their evidence and acted in the matter as if he were exercising appellate functions. In the result he made the following decision :"The Local Court findings are set aside. Substituted by one that Plantation in-question is vested into the administration of the Chief of Ha Tsikoane as a Public Plantation without prejudice to any person who might claim a better title of the plantation in the family of Laka Moetsana but residing at Ha Tsikoane under Chief Tlhabeli Tsikoane."In his notice of appeal to this Court, the appellant raises issues of fact and law which go to the merits of the dispute between the parties. He is thus asking this Court to adopt the roll which,had the magistrate not intervened, would have fallen to the lot of the court of the Judicial Commissioner.The magistrate should have confined himself to the exercise of his revisionary powers. This Court does not wish to compound his error by another consideration of the merits.The decision of the magistrate on review and of the Motjoka Local Court are hereby set aside. The case is referred back to the Local Court for re-trial. In the course of the re-trial the Local Court may consider the evidence already placed before it and such additional evidence as either party may seek to adduce. The Local Court is required in any event to give a clear and unambiguous decision in favour of one or other of the parties to the dispute.I make no order as to the costs of this appeal.JUDGE 28th September 1981Attorney for Appellant:Mr.A.P.S. Mda Attorney for Respondent:Mr.G.M. Kolisang