Judge sets aside magistrate's order

This followed an application by Ernest Mngomezulu in which he sought an order rescinding that of Manzini Magistrate Lucky Groening.

Mngomezulu said Magistrate Groening had ruled against him without granting him a fair hearing because he rejected submissions by his attorney.

He claimed that the magistrate refused to hear submissions by his attorney and granted an order to Langeni Dlamini to pay maintenance for their two children.

Mngomezulu was represented by Themba Macilongo Ndlovu. He submitted before court that Magistrate Groening did not grant him a fair hearing. He claimed that Magistrate Groening refused to listen to the submissions of Thembumenzi Bhembe, a candidate attorney sent by Ndlovu to stand in for him. He also said the magistrate told Bhembe he had seen Ndlovu in court on the morning of that day. He said the magistrate gave an audience to Dlamini’s lawyer and issued an order. He also stated that, despite the fact that opposing papers had been filed, Magistrate Groening heard the matter as if it was not opposed.

Judge Ota said a fair hearing implies that every reasonable and fair-minded observer who watches the proceedings should be able to conclude that a court has been fair to all parties. She said when she viewed the record of proceedings of Magistrate Groening’s court when he dealt with the case, it was clear that he dealt with the case while ignoring the presence of Mngomezulu’s lawyer.

She said Magistrate Groening stripped Mngomezulu of his constitutional right to a fair hearing, with the way he dealt with the case.

"I hold the view that the learned magistrate a quo (of the original court), was obliged, even in the absence of any representation for the applicant, to consider the opposing papers, before arriving at a decision. I have also held that this state of affairs violated the applicant’s (Mngomezulu’s) constitutional right to a fair hearing," she said, adding that, "In conclusion and by reason of the facts adumbrated upon ante (first outlined), I hold the firm view that gross irregularity and illegality attached the order a quo and same ought to be set aside."

She also ordered Dlamini to pay costs of the application.

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