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[2018] ZAWCHC 160
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Apleni v African Process Solutions (Pty) Ltd and Another (15211/17) [2018] ZAWCHC 160 (27 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 15211/17
In
the matter between:
ANDILE
ALBERT
APLENI
Plaintiff
and
AFRICAN
PROCESS SOLUTIONS (PTY)
LTD
First
Defendant
ZANE
SALIE
Second
Defendant
JUDGMENT:
27 NOVEMBER 2018
HENNEY
J:
Introduction
[1]
During or about 2016 and in
Cape Town, the Plaintiff and the First Defendant, alternatively, the
Second Defendant or both the First
and Second Defendants, concluded
an oral agreement (“the agreement”), in terms of which
the express, alternatively
the tacit, further alternatively, the
implied and material terms of the agreement included the following:
1.1 That the Plaintiff
would perform certain building works (“the works”) on a
building site being operated by the First
Defendant, alternatively,
the Second Defendant, or both at Hyper Psaro Dasani Warehouse,
situated in Avenue Des Scieries, Lubumbashi,
in the Democratic
Republic of Congo, (“the building site”);
1.2 That the Plaintiff
would perform the works at the building site as an independent
contractor, and would be remunerated for his
services by the First
Defendant, alternatively, the Second Defendant, in an amount of
approximately R4080 per week, while the works
endured.
[2]
The Plaintiff further alleges
that it was an implied term of the agreement that the First
Defendant, alternatively the Second Defendant,
or both, jointly and
severally would ensure that the building site was kept safe in order
that the Plaintiff would be able to perform
the works on the building
site without endangering himself, by taking steps:
2.1 that would have
ensured that the ceiling on which the Plaintiff was required to
perform the works at the building site was properly
secured so as to
enable the Plaintiff to traverse it in safety;
2.2 by ensuring that
appropriate scaffolding was provided in order to afford him safe
access to the ceiling of the building site;
2.3 by providing
appropriate equipment in the form of harnesses and/or other safety
devices to ensure the Plaintiff’s safety
whilst working on the
ceiling of the building site;
2.4 that appropriate
briefing sessions were conducted with a duly qualified safety officer
before the Plaintiff commenced
with the work and or had access
to the building site; and
2.5 lastly, by ensuring
that the building site complied with all the relevant and applicable
legislation and regulations pertaining
to the safety of building
sites.
[3]
As far as the alternative
delictual claim is concerned, the Plaintiff alleges that the First
Defendant, alternatively, the Second
or both jointly and severally
had a legal duty to ensure that the works and the building site were
kept safe, in order for him
(or anyone else working on works and/or
the building site with the knowledge and consent of the Defendants)
to carry out work on
the building without endangering himself, by
taking steps that included the following:
3.1 to ensure that the
ceiling upon which the Plaintiff was required to perform the works at
the building site was properly secured
so as to enable the Plaintiff
to traverse it in safety;
3.2 by ensuring that the
appropriate scaffolding was provided in order to afford the Plaintiff
safe access to the ceiling of the
building site;
3.3 by providing
appropriate equipment in the form of harnesses and/or safety devices
to ensure that the Plaintiff’s safety
whilst he was working on
the ceiling of the building site;
3.4 by conducting
appropriate briefing sessions with a duly qualified safety officer
before the Plaintiff commenced with the works
and/or had access to
the building site; and
3.5 lastly, by ensuring
that the building site complied with all the relevant and applicable
legislation and regulations pertaining
to the safety of the building
sites.
[4]
On 14 July 2016, the Plaintiff
was injured while engaged in the building works on the building site,
when the ceiling on which he
was working at the time collapsed.
[5]
In the result therefore, the
Plaintiff alleges that the incident and the injuries sustained by him
as a result of the incident were
occasioned by the Defendants jointly
and severally breaching the agreement as set out in paragraph 3
above.
[6]
Alternatively, that the
incident and the injuries sustained by the Plaintiff as a result,
were occasioned by the Defendants jointly
and severally in breach of
a legal duty in that it was reasonably foreseeable that the ceiling
on which the Plaintiff was working
could collapse and thereby injure
persons working thereon. As a result of this, the Defendants jointly
and severally wrongfully
acted contra
diligens
paterfamilias
by
negligently omitting to take steps to prevent such injury. And
as a result of this, the Plaintiff’s injuries are
due solely to
the negligence of the Defendants jointly and severally in that they
failed to take steps as set out in paragraph
3 above.
[7]
The Plaintiff claims damages in
the amount of R1 400 000 from the Defendants following an
incident that occurred during 2016
in the Democratic Republic of the
Congo. The Plaintiff’s claim is based on contract, and in the
alternative, on delict.
[8]
The First Defendant has taken
exception to the Particulars of Claim on the following two grounds:
a)
an action for damages is not
maintainable in delict if the negligence relied on by the
Plaintiff consists in the breach of
a term of the contract; and
b)
as far as delictual claim is
concerned, the Particulars of Claim lack averments to show that this
Court has jurisdiction to adjudicate
the Plaintiff’s claim.
[9]
The Second Defendant plays no
role in the exception proceedings.
[10]
Adv R Van Wyk appeared for the
Plaintiff and Adv D J Coetsee appeared on behalf of First Defendant.
The
excipient (First Defendant’s) case
The
existence of a delictual claim based on the breach of a term in
contract (“the first exception”)
[11]
According to the excipient
under the heading ‘THE AGREEMENT’, the Plaintiff pleads,
in paragraphs 4 and 5 of the Particulars
of Claim, that he concluded
a contract with the First and/or Second Defendant. Under the heading
“THE LEGAL DUTY”,
the Plaintiff pleads, in paragraph 6 of
the Particulars of Claim, that a legal duty rested on the First
and/or Second Defendant.
[12]
In the Particulars of Claim,
the Plaintiff’s reliance on the legal duty is introduced or
described as follows in the introductory
part of paragraph 6 thereof,
where he states the following “…
In
the alternative, and in any event, at all material times, and by
reason of what is pleaded herein above, the First Defendant…
had a legal duty to…”
[13]
Then, according to the
excipient under the heading ‘THE BREACH OF THE AGREEMENT’
the Plaintiff pleads that the First
and/or Second Defendant/s
breached the terms of the agreement. And under the heading ‘THE
BREACH OF A LEGAL DUTY’ the
Plaintiff alleges that the First
and/or Second Defendant/s breached the legal duty and acted
negligently. According to the excipient,
the Plaintiff’s
reliance on a breach of a legal duty is in the alternative to its
reliance on a breach of the agreement.
[14]
The
excipient submits that in the case of
Lillicrap,
Wassenaar & Partners v Pilkington Brothers SA (Pty) Ltd
[1]
the
then Appellate Division found that no claim is maintainable in
delict, where the negligence relied on consists in the breach
of a
term in a contract. They further submit that this principle was
confirmed by the Supreme Court of Appeal in 2008 in
Holtzhausen
v Absa Bank Ltd.
[2]
[15]
They further submit that
although it is accepted that our law acknowledges a concurrence of
actions where the same set of facts
can give rise to a claim for
damages in delict and in contract, it is important to recognise that
in this particular case that
the breaches of contract relied on by
the Plaintiff are
in casu
identical to the alleged breaches of the legal duty. According to the
excipient, they are in fact word for word identical. Furthermore,
it
seems that the Plaintiff does not rely on a right arising from a
legal duty owed to him that exists independently of the contract.
And
that it is clear from the pleadings that the Plaintiff relies on the
existence of a contract which contains the very same right/s
he
alleges to form part of the duty of care owed towards him. In
other words, the conduct on the part of the First Defendant,
which
the Plaintiff alleges to have been negligent, constitutes the
breaches of the terms of the contact as alleged in paragraphs
8.1 to
8.5 of the Particulars of Claim.
[16]
It is therefore the excipient’s
submission that the following sentence from the
Holtzhausen
case, where the Court states that “
Lillicrap
decided that no claim is maintainable in delict where the negligence
relied on consists in the breach of the contract”,
finds
application in this case, and based on this, the first exception
should be upheld.
Lack
of jurisdiction (“the second exception”)
[17]
The First Defendant further
alleges that as per the Particulars of Claim, the Plaintiff alleges
that he was injured while engaged
in the building works on a building
site, which is located in Lumbumbashi, in the Democratic Republic of
Congo. Ordinarily,
such as in this case, the existence or
otherwise of a court’s jurisdiction to consider the case before
it will appear from
the Particulars of Claim and in those cases, the
challenge to jurisdiction could be raised by way of an exception. The
First Defendant
alleges that the Plaintiff’s claim that this
Court has jurisdiction is without merit as the allegations made by
the Plaintiff
do not disclose facts on the basis of which it can be
found that this Court has jurisdiction. In this regard, the First
Defendant
refers to section 21 (1) of Superior Courts Act 10 of 2013
(‘the Act’), which reads as follows:
“
A Division has
jurisdiction over all persons residing or being in, and in relation
to
all causes arising
and of all offences triable
within,
it’s area of jurisdiction…”
[18]
For this
submission, the First Defendant relies on the matter of
Gallo
Africa Ltd v Sting Music (Pty) Ltd
,
[3]
where the Supreme Court of Appeal considered the wording of the
predecessor of section 21 of the Act and as far as interpretation
of
the wording of the section is concerned, Harms DP found as
follows:
[4]
‘
However, our
courts have for more than a century interpreted it to mean no more
than that the jurisdiction of the High Court is
to be found in the
common law. For the purposes of effectiveness the defendant must be
or reside within the area of jurisdiction
of the court…
Although effectiveness “lies at the root of jurisdiction”
and is the rationale for jurisdiction,
“it is not necessarily
the criterion for its existence”. What is further required is a
ratio jurisdictionis. The ratio
in turn, may, for instance, be
domicile, contract, delict and, relevant for present purposes,
ratione rei sitae. It depends on
the nature of the right or claim
whether the one ground or the other provides a ground for
jurisdiction.
Domicile
on its own, for instance, may not be enough
.’
[19]
Mr Coetzee,
in his submission, also made reference to the case of
Veneta
Mineraria Spa v Carolina Collieries (Pty) Ltd
[5]
where the then
Appellate Division quoted, with approval, a particular passage from
the decision of an earlier case of 1912 of the
same division, where
it was said:
‘
The
presence
of a contemplated defendant would of course be an important element
in the enquiry; but the question in each instance would
be whether a
particular “cause” was one of which the court concerned
could, according to the principles of law, rightly
take cognisance…
The claim being based upon tort and the Provincial Division being
neither the forum loci delicti nor the
forum rei, it is clear that,
apart from the machinery of arrest, the enquiry would have to be
answered in the negative.’
[6]
[20]
Mr Coetzee,
submits that in this case that the
forum
loci delicti
of the delict by the Plaintiff referred to as ‘tort’ in
Veneta
Mineraria
is not this court. He further relied on the Eastern Cape decision of
Burchell
v Anglin,
[7]
where the court
had to consider the question of jurisdiction in respect of the claim
based on information which arose when publication
of defamatory
remarks took place in Nebraska, USA. In that case, the Court referred
to the connecting factor in a delictual claim
as the place where the
delict was committed.
[8]
[21]
The First Defendant submits
that in this particular case, the delict was not committed anywhere
other than in Lumbumbashi, in the
Democratic Republic of Congo, which
is where the connecting factor occurred. The First Defendant
submits that in considering
the five elements of a delictual claim,
the
locus
of four of the elements are the following:
a)
the conduct complained of by
the applicant, being several instances of omission, is the First
Defendant’s conduct in the Democratic
Republic of Congo;
b)
the fault, or
culpa
,
on the part of the First Defendant, occurred in the Democratic
Republic of Congo;
c)
if the First Defendant acted
wrongfully, it could not have done so anyway but where the
incident occurred, namely the Democratic
Republic of Congo; and
d)
as far as the factual causality
is concerned, the facts giving rise to the Plaintiff’s alleged
damages occurred in the Democratic
Republic of Congo.
[22]
They therefore argued that if
the Court were to consider the respective elements of the delict, on
which the Plaintiff relies, most
of the elements, and more
importantly, the connecting factor (where the delict was committed),
were present or occurred outside
the jurisdiction which justifies a
finding that this Court does not have jurisdiction to adjudicate the
claim based on delict.
The First Defendant therefore argues the
exception should be upheld with costs.
The
Plaintiff’s case
[23]
The Plaintiff submitted that
the First Defendant’s understanding of the
Lillicrap
case, and more
particularly its application to the facts of the current case, are
misplaced. According to the Plaintiff, the quoted
passages from the
Lillicrap
case referred to by the Defendant cannot be seen isolation and must
be seen in the context of the facts of that particular case.
In that
particular case, the respondent based its claim in delict only and
the Appellate Division was reluctant to extend delictual
liability
into areas with there was an existing contractual relationship.
[24]
According to the Plaintiff, the
effect of
Lillicrap
,
as confirmed in the matter of
Holtzhausen
,
is that concurrence of actions can only occur where the independent
requirements of the contractual and delictual actions are
satisfied.
And, thus that the delict claim should be founded independently of
the contract, even though it would not exist but
for the contract.
[25]
The
Plaintiff further submitted with reference to the case of
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd,
[9]
that the
understanding should be that parties to a contract are usually in a
position to regulate their affairs and to protect themselves
against
harm and that the law of delict should not be extended beyond those
cases except where harm is considered prima facie wrongful.
And
further submitted that in such instances where concurrence is
present, they may choose to claim damages either in contract
or in
delict and can, of course, claim in the alternative.
[26]
I will at a later stage during
the course of this judgment come back to the applicable passages
which were referred to in the
Holtzhausen
case. According to the
Plaintiff, the First Defendant’s characterisation of his case
where it submitted that the breaches
of contract constitutes the
negligent conduct alleged and that the negligent conduct on which the
delict is based constitutes the
breaches of the contractual duties
alleged, is not correct. This is not so because the Plaintiff clearly
sets out that the claims
based on contract and delict as alternative
claims to one another.
[27]
The Plaintiff admits that the
words used by him in paragraph 6 of these Particulars of Claim, which
is… “
In the
alternative, and in any event, at all material times and by reason of
what is pleaded herein above…”
may
appear to be vague, but it most certainly is not of such a nature so
as not to sustain an independent cause of action upon which
the
delict is based.
[28]
The Plaintiff further submits
that the claim for damages is made out in the alternative, and on any
reasonable interpretation any
possible confusion is cleared up in
paragraph 9 and 11 of the Particulars of Claim, which states…
“
In the
alternative, the incident and the injuries… were occasioned by
[the Defendants’] breach of the legal duty pleaded
above….”;
and
“
As a result of
the breach of agreement,
alternatively
,
the breach of the legal duty…”
[29]
The Plaintiff further submits
that it is evident that even though the alleged terms of the
agreement, legal duties and its respective
breaches stem from the
same set of facts or conduct, each alternative claim sustains a cause
of action in its own right when viewed
independently, as it should.
[30]
According to the Plaintiff, the
conduct of the First and Second Defendants could, after evidence has
been led and every fact has
been proven, constitute both an
infringement of the Plaintiff’s rights
ex
contractu
and the rights
which he has independently of the contract, which in casu is his
right to bodily integrity, dignity and/or personality.
Lack
of Jurisdiction
[31]
The
Plaintiff submits that the Court has jurisdiction based on the
provisions of section 21 of
Superior Courts Act. According
to
the Plaintiff, this Court has jurisdiction because a High Court has
jurisdiction over all persons residing or being in and,
in relation
to all causes arising and all offences triable with in its area of
jurisdiction. Both the First and Second Defendants
reside within the
area of jurisdiction of this Court, which clothes this Court with
jurisdiction. In support of this submission,
the Plaintiff relies on
the judgment of
Bid
Industrial Holdings (Pty) Ltd v Strang and Another
[10]
where it was held
that “
for
the purposes of
s 19
(1) (a) the court’s jurisdiction depends
on nothing short of residence, and the Defendant’s residence
within the jurisdiction
is one situation in which a ‘cause
arises’…”.
[32]
The Plaintiff submits that the
cases on which the First Defendant relies do not find application in
this particular matter. The
First Defendant’s reliance on the
case of
Venetia Mineraria
Spa
is distinguishable
from the present matter, because in that case all the parties were
peregrinus
of that Court, where as in this particular case the parties to the
delictual claim are
incolae
of this Court, which not only results in
section 21
and the common
law principle of residence and/or
ratio
domicili
having been
satisfied and an effective and conveniently enforceable judgment may
be given.
[33]
The Plaintiff moreover submits
that the relief claimed is monetary and against the First and Second
Defendant
in personam,
where no third party is involved. According to the Plaintiff, it is
therefore enforceable in South Africa and particularly in this
Division, where all the parties and their resources are situated. It
will be furthermore, convenient in respect of time, travelling
and
expenses.
[34]
According to the Plaintiff, the
First Defendant’s reliance on the
Veneta
Mineraria Spa
matter,
is incorrect, because in that matter, the question was not whether
the
ratione delicti
commissi
,
is the only applicable jurisdictional ground for delictual claims,
but whether consent and arrest to confirm would be necessary
because
both parties are
incolae
.
The Plaintiff submits that the Defendant conveniently neglected to
mention the following passage from
Veneta
Mineraria Spa
supra,
where it was said:
“
According to
our common law and practice under it, the Court will exercise
jurisdiction upon any one of the following grounds, viz
(1) Ratione
domicile (2) res gestae…”
[11]
[35]
According to the Plaintiff, the
First Defendant’s reliance on the decision of
Gallo
Africa Limited
supra
is also not applicable for the purposes of this matter, because in
that matter, although both the appellant and the respondents
were
incolae
of the court
a quo
,
the right sought to be enforced was a foreign intellectual property
right and therefore considered an immovable intangible, for
which the
common law principle of
forum
res sitae
was found to apply. The delictual claim that the Plaintiff seeks to
enforce,
inter alia
,
is a personal right of the Plaintiff which vests where the person of
the Plaintiff is found.
[36]
The
Plaintiff’s additional note argues that, based on the work of
CF Forsyth
Private
International Law,
[12]
this Court will
have jurisdiction to determine the delictual claim as long as the
Defendants are
incolae
.
According to the Plaintiff, it is abundantly clear, in terms of
private international law principles, that when determining
jurisdiction, the first enquiry to make is where the parties
(particularly the Defendant(s)) are resident. Only thereafter if it
is established that the Defendants are
not
resident within the area of the court’s jurisdiction, does the
question pertaining to the place where the cause of action
arose
become relevant.
Evaluation
The
existence of a delictual claim based on the breach of a term in
contract (“the first exception”)
[37]
I do not agree with the First
Defendant’s submission that the negligence relied on in the
delictual claim consists in the
breach of a term in the contract. In
my view, both claims exist independently of each other. I agree with
the Plaintiff’s
contention that the
Lillicrap
case is not authority that an action cannot be brought in delict if
the contractual claim is competent. In this regard, the Plaintiff
relied on the case of
Holtzhausen
,
where it was held at paragraph 7 that:
“
Lillicrap is
not authority for the more general proposition that an action cannot
be brought in delict if the contractual claim
is competent. On the
contrary, Grosskopf JA, was at pains to emphasise (at 496D-I) that
our law acknowledges a concurrence of actions
with the same set of
facts can give rise to a claim for damages in delict and in contract
and permits the plaintiff in such a case
to choose which he wishes to
pursue. Thus in Durr v ABSA Bank Ltd
1997 (3) SA 448
(SCA), a case
which concerned the duties of an investment advisor recommending
investment in debt-financing instruments, Schutz
JA found no
difficulty in saying (at 453G):
‘
The claim
pleaded relied upon contract, alternatively delict, but as the case
was presented as one in delict, and as nothing turns
upon the precise
cause of action, I shall treat it as such.’”
[38]
I furthermore agree with the
Plaintiff that in paragraph 6 of its Particulars of Claim, which
states the following “…
In
the alternative, and in any event, at all material times and by
reason of what is here in above…”
may
appear to be vague, but is not of such a nature so as not to sustain
an independent cause of action. And I furthermore agree,
that in any
event, on any reasonable interpretation if there was any confusion as
to the precise nature of what is stated in the
Particulars of Claim,
the Plaintiff, in paragraphs 9 and 11 of the Particulars of Claim,
states that the incident and the injuries
were occasioned by the
Defendants’ breach of the legal duties pleaded above.
[39]
In my view, it is clear that
the claim based on delict was clearly pleaded in the alternative to
the claim based on contract. It
is up to the evidence to show whether
the contractual claim would succeed or whether the delictual claim
would succeed. The
Plaintiff’s case is not that it should
succeed both on a breach of contract and delict, but on either the
one or the other.
I am therefore of the view, that the
delictual claim exists independently and in the alternative to the
claim based in contract
and that it fully sustains a cause of action.
In the result therefore, I would dismiss this exception.
Lack
of jurisdiction
[40]
In the determination of the
question whether the Plaintiff has made out a case as to whether this
court has this jurisdiction, the
starting point would be to look at
the provisions of
section 21
of the
Superior Courts Act 10 of 2013
:
‘
Persons over
whom and matters in relation to which Divisions have jurisdiction
(1)
A Division has
jurisdiction over all persons residing or being in, and in relation
to all causes arising and all offences triable
within, its area of
jurisdiction and all other matters of which it may according to law
take cognisance…’
[41]
It is based on the provisions
of this section that the Plaintiff submitted that this Court has the
necessary jurisdiction, because
of the fact that both the Defendants,
as well as the Plaintiff resides in this Court’s area of
jurisdiction. This,
however, is not necessarily determinative
as noted in
Erasmus:
Superior Court Practice
:
‘
The position
under this section materially corresponds with the position under s
19(1) of the Supreme Court Act 59 of 1959 prior
to the repeal of that
Act on the commencement of the
Superior Courts Act 10 of 2013
on 23
August 2013. As was the case with
s 19
of the now repealed Supreme
Court Act 59 of 1959, this section does not contain a ‘codification’
of the jurisdiction
of the High Court. In fact, it has been said that
s 19 was deliberately couched in ‘indefinite wording’
because the
intention of the legislature obviously was to interfere
with the common law as little as possible. It is submitted that this
also
applies to s 21 of the Act.’
[13]
[42]
And it was held that regard is
to be had to the principles of common law relating to jurisdiction
when dealing with the interpretation
of the provisions of this
section, or at least its predecessor, as will be referred to
hereunder.
[43]
In
Veneta
Mineraria Spa
supra,
the Court was called upon to determine whether consent alone was
sufficient to confer jurisdiction on the High Court which was
faced
with two peregrini: a local Defendant and a foreign Plaintiff. In the
course of this judgment, the Appellate Division remarked
on the
traditional reasons and grounds upon which jurisdiction is
established:
‘
Insofar as
South African Courts are concerned, their jurisdiction is the right
or authority of entertaining actions or other legal
proceedings which
is vested in them by the State.
[14]
…
In view of the
indefinite wording of s 19(1) of the Act and its predecessors, no
doubt deliberately so couched because the intention
of the
Legislature obviously was to interfere with the common law as little
as possible, recourse must be had to the principles
of the common law
to ascertain what competency each of the Supreme Courts in the
Republic of South Africa possesses to adjudicate
effectively and
pronounce upon a matter brought before and heard by it.
[15]
…
A Court can only be
said to have jurisdiction in a matter if it has the power not only of
taking cognisance of the suit but also
of giving effect to its
judgment.’
[16]
[44]
The Court, at 890E,
quoted
Brooks v Maquassi
Halls Ltd
1914 CPD 371
,
where Kotzé J said at 376-7:
‘
'According to
our common law and practice under it, the Court will exercise
jurisdiction upon any one of the following grounds,
viz: (1) ratione
domicilii; (2) ratione rei sitae; (3) ratione contractus; that is,
where the contract has either been entered
into or has to be executed
within the jurisdiction.’’
[45]
In
Bisonboard
Ltd v K Braun Woodworking Machine (Pty) Ltd
,
[17]
the Appellate Division held that the nature of the inquiry into
whether a court has jurisdiction ‘
is
a dual one: (1) is there a recognised ground of jurisdiction; and, if
there is, (2) is the doctrine of effectiveness satisfied
- has the
Court power to give effect to the judgment sought? See Hugo v Wessels
1987 (3) SA 837
(A)
’
[18]
[46]
In
Forbes
v Uys
1933 TPD 362
, the
Court was faced with an
incola
defendant who raised an objection to jurisdiction on the grounds that
the action for damages arose out of trespass on foreign land.
Therein, the Court held that:
‘
No authority in
our law has been quoted to us to the effect that the Court will not
entertain an action for damages merely because
those damages have
been caused to the Plaintiff in respect of his ownership of foreign
land. Nor does it seem to me that there
is any principle for so
holding.
The
guiding principle is that our Courts will not exercise jurisdiction
unless effect can be given to the judgment, and there is
nothing to
prevent the Court giving effect to a judgment for damages where the
Defendant is resident within its jurisdiction.
The position may be different if the action is in substance one for
the purpose of determining the title to the land, but in the
present
case I have come to the conclusion that the action is merely an
action for damages for trespass and therefore the objection
is not a
sound one.’
[19]
[47]
Similarly, the Appellate
Division in
Bisonboard
Ltd
supra also held
that:
‘
A judgment
sounding in money may be put into effect anywhere. From this it
follows (see Pollak The South African Law of Jurisdiction
(1937) at
22) that in an action for the payment of money “it is a
sufficient basis for jurisdiction that the State in whose
court the
action is brought has power over the Defendant”.’
[20]
…
‘
In my view the
legal position is correctly summarised thus by Forsyth Private
International Law 2nd ed (1990) at 175-6:
'Provided that the
Defendant is an incola of the court's area of jurisdiction, the court
will be prepared to hear the case.... Accordingly,
if the Defendant
is either domiciled or resident in the area, this will be a
sufficient jurisdictional connecting factor.’
[21]
[48]
In
Gallo
Africa Ltd
(supra)
,
the Supreme Court of Appeal was ceased with a case concerning an
incola
defendant facing a copyright infringement claim arising in South
Africa and in 19 other countries. The Court discussed jurisdiction
generally, noting that:
‘
Section
19(1)(a) of the Supreme Court Act provides that a High Court has
jurisdiction “over all persons residing or being
in and in
relation to all causes arising . . . within its area of jurisdiction
and all other matters of which it may according
to law take
cognizance”. The section has a long history, which need not be
related. However, our courts have for more than
a century interpreted
it to mean no more than that the jurisdiction of High Courts is to be
found in the common law. For purposes
of effectiveness the Defendant
must be or reside within the area of jurisdiction of the court (or
else some form of arrest to found
or confirm jurisdiction must take
place). Although effectiveness “lies at the root of
jurisdiction” and is the rationale
for jurisdiction, “it
is not necessarily the criterion for its existence”. What is
further required is a ratio jurisdictionis.
The ratio, in turn, may,
for instance, be domicile, contract, delict and, relevant for present
purposes, ratione rei sitae. It
depends on the nature of the right or
claim whether the one ground or the other provides a ground for
jurisdiction. Domicile on
its own, for instance, may not be enough.
As Forsyth (at 164) rightly said:
“
First
there is the search for the appropriate ratio jurisdictionis; and
then the court asks whether it can give an effective judgment
. . . .
[and] neither of these is sufficient for jurisdiction, but both are
necessary for jurisdiction
.”’
[22]
[49]
The Court
went onto hold that intellectual property rights, including
copyright, are immovable intangibles and that the principle
forum
rei sitae
determines jurisdiction as held in
Eilon
v Eilon
1965 (1) SA 703
(A) at 726H - 727B.
[23]
Thus, this case is
distinguishable from the present matter which is a delictual action
sounding in money.
[50]
In
Caterham
Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
,
[24]
the Court was faced with a claim in delict for passing-off where the
defendant was an
incola
.
In that matter, the court
a
quo
“
accepted
as correct a statement by Webster and Page South African Law of Trade
Marks 3rd ed at 420 to the effect that, since the
ordinary rules
relating to jurisdiction apply to an action for passing-off, it is
essential for the Plaintiff to prove that the
goodwill he seeks to
protect extends to the area of jurisdiction of the Court in which he
sues.
”
The Court criticised this position, stating that:
‘
It is necessary
to pause and consider whether the statement in Webster and Page does
not conflate two different matters, namely
the elements of the delict
of passing-off and the requirements for jurisdiction. The Court below
had jurisdiction, I would suggest,
because the Defendants reside
within its area. Had they not been residents of that Court, the
question would have been whether
the claim in delict had arisen
within its jurisdiction (cf Thomas v BMW South Africa (Pty) Ltd
1996
(2) SA 106
(C) at 127G--H).
[25]
[51]
In the last
mentioned case of
Thomas
v BMW South Africa (Pty) Ltd
,
[26]
the Plaintiff sued the Defendant in delict for damages arising out of
a motor vehicle accident. The Defendant, a local peregrinus,
raised a
special plea that the Court lacked jurisdiction and thus another
jurisdictional ground had to be established. It was for
this reason
that the Court was seized with the question whether the cause of
action arose within the Court’s jurisdiction
and proceeded to
examine each element of the delict in question.
[52]
The First
Defendant appeared to argue that where the delict occurred together
with
lex
loci delicti
(“
the
law of the place where the delict occurred
”)
[27]
would be
determinative of the jurisdictional issue.
Lex
loci delicti
has found application in choice of laws matters (see
Burchell
above) but does not appear to be directly applicable when examining
jurisdiction.
[28]
As noted by
Forsyth in
Private
International Law
:
[29]
“
There are, of
course, good reason for keeping jurisdiction and choice of law as
separate categories and, if we keep to this principle,
there can be
no question of applying a foreign system of law to ascertain where
the ground of jurisdiction is located.”
[53]
Furthermore,
the First Defendant’s reliance on
Burchell
appears to be misplaced as the Court in that matter was of the view
that it did not need to decide the issue of jurisdiction as
“
[t]he
parties were in agreement that I have jurisdiction to hear the
matter.
”
[30]
The Court discussed
lex
loci delicti
in order to determine whether South African or Nebraskan law applied
i.e. a choice of laws issue.
[54]
Nevertheless,
Forsyth, after having discussed the rationale behind the
lex
loci delicti
states the following:
[31]
“
But, of course,
the lex loci delicti is not without its own difficulties. In the
first place, the locus delicti maybe uncertain,
Quid si in suo
territoria saggitam emisirit, in alio per eam occiderit? must have
seemed an academic question postulating a rare
fact complex at the
time Paulus Voet asked it,
[32]
but today with
the growth of international trade and communications cases analogous
to the arrow over the border fact complex are
commonplace. Products
manufactured in one country cause damage when consumed in another:
which country is the locus delicti?”
[55]
Then the
learned author proceeds to state the following:
[33]
“
In the second
place, there are other cases in which it is quite clear where the
locus delicti is, but it is equally plain that the
application of the
lex loci delicti rule is inappropriate. A car registered and insured
in New York, with driver and passengers
resident and domiciled in New
York, leaves the road in Ontario during an over-the-border drive. One
of the passengers is injured
and sues the driver for recompense.
Surely it is inappropriate to apply the law of Ontario (which in fact
denies recovery) rather
than the New York law? The fact that the
accident took place in Ontario is, if not fortuitous, less
significant than the common
residence and domicile of the parties as
well as registration of the vehicle. Here the lex loci delicti rule
fails to assign an
appropriate law. As we have seen, the lex loci
delicti rule will not work at all in some cases, and in other cases
will not work
well. It can clearly not be adopted as a rigid rule,
applicable in all cases; but it would be wrong to attempt to
formulate a rule
without having close regard to it.”
[56]
And after
the author has done a comparative study of the application of the
lex
loci delicti
rule with regards to the appropriateness thereof in all cases, he
comes to the following conclusion:
[34]
“
It is equally
clear… that the lex loci delicti will not do for all cases.
Sometimes the locus delicti will be uncertain...
at other times it
will be inappropriate. In such cases, a displacement of the lex loci
delicti rule will be in order. Whether this
takes place after a
search for the proper law or after determination that there is ‘no
sufficient link’ with the locus
delicti appears to be
immaterial. This will introduce some uncertainty, but with time –
and litigation – in this area,
the occasions on which the court
will deviate from the general rule will become clearer.
For
the time being it is sufficient to remark that where the plaintiff
and defendant have common residence, domicile or nationality,
and
have some other link between them – such as travelling in the
same vehicle – the case for deviation from the lex
loci
delicti is strong . But in the absence of such a common link the
court should be slow to displace the lex loci
:
there is real value in being able to predict in advance the law that
will be applied in any particular case”. (
Emphasis
added)
[57]
In my view, and after having
regard to all the authorities cited, it is clear that the Court
should follow a pragmatic approach
in order to determine whether it
would have jurisdiction over a matter when the delict was caused in a
foreign country. The overwhelming
wealth of authority seems to
suggest that the court may deviate from the
lex
loci delicti
rule in cases
where there is common link between the parties, which link seems to
be that the Plaintiff and Defendant have a common
residence, domicile
or nationality and some other link between them.
[58]
In this particular case, there
was an employment relationship that came into existence between the
Plaintiff and the Defendants
in this country and in this Court’s
area of jurisdiction. In terms of this employment relationship, the
Plaintiff was required
to perform services for the First Defendant in
the Democratic Republic of Congo, based on an agreement that was
concluded between
them, within the borders of this country and within
the area of jurisdiction of this court. Apart from rendering the
services in
terms of the employment contract in the Democratic
Republic of Congo for the Defendants, there was no other business
between the
Plaintiff and the First Defendant, and no other link or
connection they had with that country. The Plaintiff could very well
have
rendered the services inside this country or inside the area of
jurisdiction of this Court.
[59]
The alleged harm, which the
Plaintiff suffered and which resulted in the institution of these
proceedings, occurred in the course
and scope of his employment with
the First Defendant based on the contractual agreement concluded in
this country and in this Court’s
area of jurisdiction. And it
was inextricably linked to the exercise of his functions in terms of
the agreement between them, when
he climbed onto the ceiling of the
building site in the Democratic Republic of Congo that collapsed and
which resulted in his injuries.
[60]
The
scenario and factual situation that existed between the Plaintiff and
the Defendants apart from the fact that they have common
residence,
domicile and nationality is the “
other
link
“which would justify a deviation from the
lex
loci delicti
.
It would be grossly unfair, to expect an ordinary working class
person, like the Plaintiff who rendered his services as a labourer
to
a South African company, to institute his claim in a foreign country.
This is clearly a case where the application of the
locus
delicti
rule is inappropriate and would result in injustice and undue
hardship to the Plaintiff. It would also deprive the Plaintiff of
his
right to have access to a court in this country, and would violate
his right in terms of the provisions of section 34 of the
Constitution of the Republic of South Africa,1996.
[35]
Accordingly, the
second exception is also dismissed.
[61]
In the result therefore, I make
the following order:
1.
The first and second
exceptions are dismissed with costs.
________________________
R.C.A
HENNEY
Judge
of the High Court
[1]
1985 (1) SA 475
(A) at 499A-501H.
[2]
2008 (5) SA 630
(SCA) at 633B (para 6).
[3]
2010 (6) SA 329
(SCA).
[4]
Ibid
at 333A-C (para 10).
[5]
1987 (4) SA 883
(A).
[6]
Ibid
at 893I-J.
[7]
2010 (3) SA 48
(ECG).
[8]
Ibid
at 70I-71A (para 116).
[9]
2006 (3) SA 138
(SCA) at par 25.
[10]
2008 (3) SA 355
(SCA) at para 53.
[11]
Veneta
Mineraria Spa
(supra)
at 890F.
[12]
CF Forsyth
Private
International Law
(5ed) 2012 (JUTA) at 169-89; and 202-23.
[13]
Erasmus
at
RS 6, 2018, A2-88.
[14]
Veneta
Mineraria Spa
at
886E.
[15]
Ibid
at
886I.
[16]
Ibid
at
893E.
[17]
1991 (1) SA 482
(A)
[18]
Bisonboard Ltd
at 499F.
[19]
Forbes
at
369 (Own emphasis).
[20]
Bisonboard Ltd
at 484F.
[21]
Bisonboard Ltd
at 488B. See also Forsyth
Private
International Law
(5ed) Juta (2012) at 169:
‘
For instance,
no High Court will hear a dispute between a peregrine (or
peregrinus) plaintiff and a peregrine defendant in respect
of a
breach of contract if the transaction had not been entered into
locally and the cause of action (the breach of the contract)
had,
likewise, arisen outside of South Africa. But if the defendant is an
incola, then the local court will hear the dispute
even if it arose
beyond South Africa.’
[22]
Gallo Africa
Ltd
(supra) at para 10.
[23]
There it was held
that: ‘
The
immovable property situated in Israel is, however, on a different
footing. In the case of Rosa's Heirs v Imhambane Sugar Estates
Ltd.,
1905 T.H. 11
, MASON, J., decided that in respect of real actions
directly raising the title to property the forum rei sitae is the
only Court
which has jurisdiction…. I incline to the view
preferred by MASON, J.’
[24]
1998 (3) SA 938
(SCA).
[25]
Ibid
at para 13.
[26]
1996 (2) SA 106
(C).
[27]
See Burchell
(supra) at para 101.
[28]
See LAWSA, Vol
2(2) at 341: “…
today
it is generally accepted that choice of law is to be kept distinct
from choice of jurisdiction.”
[29]
Forsyth (supra)
at 216.
[30]
Burchell (supra)
at para 86.
[31]
Forsyth (supra)
at 354.
[32]
This is
translated, according to Forsyth, at 354 fn 234, to mean “
what
if an arrow is let loose in one territory and kills in another?
”
[33]
Ibid
at 355.
[34]
Ibid
at 364.
[35]
Section 34
states: “
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court,
or where appropriate, another independent and impartial tribunal or
forum”.