The Challenge Of Setting Aside A Small Claims Court Judgment

In Magill v Ma Ipser and Widevision Travel, the Western Cape High Court ("HC") handed down judgment in an opposed review application in terms of section 46 of the Small Claims Act 61 of 1984 ("the Act").The HC considered the limited grounds on which a judgment of the Small Claims Court ("SCC") may be reviewed.

Factual background

Magill contracted with Widevision Travel ("Widevision") to provide services as a hiking guide at an agreed upon fee structure. After two clients cancelled due to food poisoning, Widevision offered to pay Magill 50% of the agreed upon amount. Magill initially refused but later accepted the proposal and confirmed that he would continue providing his services. After failing to arrive at the appointed place on time, Magill repudiated the contract and cancelled the mountain hike. Despite this, Magill invoiced Widevision for ZAR2 050, of which Widevision made payment of R800 and withheld the balance for damages caused by Magill's tardiness. As a result, Magill instituted proceedings in the SCC for the balance.

Widevision filed a counterclaim for damages but failed to serve Magill with the counterclaim before the initial hearing. The Commissioner nevertheless proceeded to hear the matter and reserved judgment. Before delivering judgment, the Commissioner reconvened the parties, ensured service of the counterclaim and afforded Magill an opportunity to respond. Notwithstanding this, Magill elected not to lead further evidence.

On 12 December 2025, the SCC dismissed Magill's claim and found in favour of Widevision. This led to Magill instituting review proceedings in the HC in terms of section 46 of the Act on the basis of the following:

1. Bias on the part of the Commissioner;
2. Gross irregularity in the SCC proceedings;
3. Irrationality; and
4. The Promotion of Administrative Justice Act 3 of 2000 ("PAJA").

Alleged bias of the Commissioner

Magill alleged that the Commissioner acted with bias by allowing the counterclaim to be considered despite the initial lack of service on Magill. The HC reaffirmed the presumption of impartiality and held that without any objective showing of bias, the presumption of impartiality remains intact and the right to a fair and equitable hearing is deemed satisfied.

The Commissioner explained that she was unaware of the procedural defect during the initial hearing and rectified it before handing down judgment by ensuring proper service and allowing further submissions. The HC found that the Commissioner's conduct reflected a commitment to substantive justice rather than bias. Thus, Magill's right to a fair and equitable hearing was not infringed.

Gross irregularity and PAJA

Magill argued that by allowing Widevision to present evidence on the counterclaim, even though he was not properly served constituted a gross irregularity. However, Magill conceded that he had been given an opportunity to consider the counterclaim and he agreed to proceed. This created the reasonable impression that Magill was content with the regularity of the proceedings and he effectively waived any objection to the hearing of the counterclaim. The HC noted that Magill failed to raise any objection at the time and only complained after an unfavourable judgment was delivered by the Commissioner.

The HC found that the remaining grounds of review were devoid of merit and lacked substantive legal basis. Notably, the HC held that the functions of an SCC Commissioner are not administrative in nature and are therefore not reviewable under PAJA. Accordingly, the HC dismissed the review application with no order as to costs. The judgment emphasises the need for substantive evidence to support a claim for the review and setting aside of a Small Claims Court Commissioner's judgment.

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