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[2016] ZAGPJHC 108
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Investec Property Fund Limited v Viker X (Pty) Limited and Another (2016/07492) [2016] ZAGPJHC 108 (10 May 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2016/07492
DATE:
10 MAY 2016
In the matter
between:
INVESTEC
PROPERTY FUND
LIMITED
..............................................................................
Plaintiff
And
VIKER X (PTY)
LIMITED
...........................................................................................
First
Defendant
BUCHNER:
MARKUS
...............................................................................................
Second
Defendant
JUDGMENT
ADAMS AJ:
[1].
This
is an application by the plaintiff for summary judgment against the
first and second defendants. The application against the
first
defendant, which is at present under
Business
Rescue,
is unopposed and the plaintiff
is only proceeding with the application against the first defendant
for eviction from the leased
premises. As regards the second
defendant, he is opposing the application for summary judgment on the
basis that service of the
summons on him was defective and therefore
of no force and effect. Also, second defendant contends that this
court does not have
the necessary jurisdiction over him as he is
presently resident in Italy, which means that he is a
peregrinus.
[2].
Plaintiff’s
claim is based on a written agreement of lease in terms of which the
plaintiff let to the first defendant commercial
premises. It is
alleged by the plaintiff that the first defendant breached the lease
agreement by failing to make payment of the
monthly rental and
related charges. In this application for summary judgment, the
plaintiff’s claim is for eviction from
the leased premises,
arrear rentals and a refund of the tenant installation allowance,
arising from the first defendant’s
breach of contract.
[3].
The
lease agreement was signed by the second defendant on behalf the
first defendant, and the second defendant also bound himself
as
surety and co – principal debtor to the plaintiff for the due
and proper fulfilment of all the obligations of the first
defendant
in respect of the lease agreement.
[4].
According
to the Sheriff’s return of service, the summons was served on
the second defendant at his place of employment in
Bryanston, which
falls within the geographical area of jurisdiction of this court,
upon a person, who is described in the return
as an employee of the
second defendant. This is the same person who accepted service on
behalf of the first defendant, and who,
in the sheriff’s return
of service, is also described
vis-a-vis
the first defendant as an employee.
[5].
Notice
of service of the summons clearly came to the attention of the second
defendant, because approximately 18 days after service
of the summons
was effected, his attorneys of record delivered notice of appearance
to defend.
[6].
In
his affidavit resisting summary judgment, the second defendant denies
that he is employed at the address at which the summons
was served.
He is not employed at the said address, so it is alleged by the
second defendant, nor does he carry on business there.
He goes on to
say that at the time that the summons was served and at the time that
he deposed to the resisting affidavit he was
resident in Italy.
Therefore, so the second defendant contends, this court does not have
jurisdiction as there has not been an
attachment of his assets to
find or confirm jurisdiction.
‘
IRREGULARITY’
–
SERVICE OF THE SUMMONS
[7].
It
is contended on behalf of the second defendant that the service of
the summons and the subsequent legal proceedings (the action
instituted against him) are fatally defective and a nullity. The
summons ought to have been served on him by edictal citation with
the
leave of the court as he is resident outside of the Republic of South
Africa. The rules of the Court relating to service of
the summons, so
it is submitted, have not been complied with, and the service of the
summons stands to be set aside.
[8].
No
prejudice to the second defendant appears to have resulted from the
alleged defective service, and Mr Winterton, who appeared
on behalf
of the second defendant, was unable to direct my attention to any
possible prejudice suffered by the second defendant
occasioned by the
non – compliance with the letter of the Rule of Court relating
to service of the summons.
[9].
At
the outset let me say that I associate myself entirely with the
following remarks by the court in the matter of
Viljoen
v Federated Trust Ltd,
1971 (1) SA 750
(O):
‘
The Rules of Court, which constitute
the procedural machinery of the Courts, are intended to expedite the
business of the Courts.
Consequently they will be interpreted and
applied in a spirit which will facilitate the work of the Courts and
enable litigants
to resolve their differences in as speedy and
inexpensive a manner as possible’.
[10].
‘
It
is a cornerstone of our legal system that a person is entitled to
notice of legal proceedings against such person’
.
See
Steinberg v Cosmopolitan National
Bank of Chicago
,
1973 (3) SA 885
(RA)
at 892B – C.
[11].
If
proceedings have begun without due notice to the defendant, the
subsequent proceedings are null and void, any judgment is of
no force
and effect and may be disregarded without the necessity of a formal
order setting it aside. If a summons had not been
served on a
defendant, a subsequent judgment may be set aside in terms of rule
42(1)(a). Mere knowledge of issue of summons does
not constitute
service and cannot relieve a plaintiff of the obligation to follow
the prescribed rules.
[12].
However,
in the present matter the second defendant suffers no prejudice. The
service of the summons was effective.
[13].
The
second defendant received the summons and the particulars of claim
and was able to enter an appearance to defend. The fact that
the
second defendant entered an appearance to defend is indicative of the
fact that he received and has knowledge of the summons
and was able
to defend it. The inference to be drawn from this is that the service
was effective. Moreover, in his affidavit resisting
summary judgment,
the second defendant’s attorney confirms that he, presumably on
behalf of the second defendant, has read
the summons and the
particulars of claim. In these circumstances I cannot begin to see in
what respects the second defendant can
possibly suffer prejudice. I
just cannot see any possible prejudice. The simple fact of the matter
is that the second defendant
is not in a different position than the
one he would have been in had the summons been served on him by
edictal citation.
[14].
The
purpose of rule 4 is to provide for a mechanism by which relative
certainty can be obtained that service has been effected upon
a
defendant. If certain minimum standards are complied with as set out
in the rule, then the assumption is made that the service
was
sufficient to reach the defendant's attention and his failure to take
steps is not due to the fact that he does not have knowledge
of the
summons. The converse is not true — namely that if service is
not effected as required by the rule, the service is
not effective —
in that the purpose for which service is required was fulfilled,
namely the defendant came to know of the
summons. The rules, as was
pointed out by Roux J in
United
Reflective Converters (Pty) Ltd v Levine
,
1988 (4) SA 460
(W), set out procedural steps. They do not create
substantive law. Insofar as the substantive law is concerned, the
requirement
is that a person who is being sued should receive notice
of the fact that he is being sued by way of delivery to him of the
relevant
document initiating legal proceedings. If this purpose is
achieved, then, albeit not in terms of the rules, there has been
proper
service.
[15].
In
the present matter the non-compliance with the rules accordingly does
not result in prejudice to the second defendant since the
purpose of
the substantive law has been fulfilled, namely that he be given
notice of the process.
[16].
The
second defendant alleges that the summons was not served on him.
Therefore, summary judgment should not be granted against him
on the
basis of the plaintiff’s failure to comply with the rules. In
my view, this is an improper approach. I say so for
the simple reason
that the second defendant had knowledge of the summons and was able
to enter an appearance to defend timeously.
[17].
There
should not be a rigorous and formalistic approach to the rules. The
court should take into account the true intention of the
fairness of
the rules of court and the realities of the situation. See:
Protea
Assurance Co Ltd v Vinger
,
1970 (4) SA
663
(O);
Wiehahn Konstruksie
Toerustingmaatskappy (Edms) Bpk v Potgieter
,
1974 (3) SA 191
(T); and
Northern
Assurance Co Ltd v Somdaka
,
1960 (1) SA
588
(A) at 595.
[18].
In
addition, if a service is set aside on the basis of the irregularity,
no consideration is given to the question of whether or
not the
service was effective. The effectiveness issue is the central
underlying purpose of the rule.
[19].
In
that regard, I am in agreement with the following views expressed by
Lamont J in the matter of
Prism Payment
Technologies (Pty) Limited v Altech Information Technologies (Pty)
Ltd t/a Altech Card Solutions and Others,
2012
(5) SA 267
(GSJ) at page 272I – J:
‘
On the face of it a summons served in
any manner, but which is served effectively, is regularly served.
Great injustice may follow
if the service is set aside on the basis
of irregularity without applying the effectiveness test since it may
then be argued that
prescription has not been interrupted. In my view
it is doubtful that rule 30 is the proper procedure to follow. By
reason of my
finding supra, there is no need to decide this issue’.
[20].
I
would accordingly dismiss the first legal point raised by the second
defendant.
jurisdiction
[21].
The
whole cause of action arose within the geographical area of
jurisdiction of this Court, which would therefore have jurisdiction
to hear this matter if the second defendant is an
incola
of the Republic. If he is a
peregrinus
,
the Court would not have jurisdiction over the second defendant in
the absence of an attachment of his assets to found or confirm
jurisdiction.
[22].
The
central issue which I am required to decide therefore relates to
whether or not the second defendant is a
peregrinus
of the Republic of South Africa.
[23].
The
second defendant alleges in his affidavit resisting summary judgment
that he ‘
does not reside within
the jurisdiction of this court’.
At
the date of service of the summons as well as at the time when the
resisting affidavit was deposed to the second defendant was
residing
at an address in Italy. He also denies that he is at present or was
at the time of service of the summons employed at the address
at
which the summons was served in Bryanston.
[24].
Second
defendant does not say much more than this. I am in the dark as to
whether the second defendant has any proprietary interest
left in the
Republic. I also do not know whether or not he has at present any
movable or immovable property left in South Africa,
or whether he has
any more family ties and / or business relationships remaining here.
No explanation is given by the second defendant,
who is the one who
signed the lease agreement on behalf of the first defendant, as to
his present interest in the first defendant.
The following question
remains unanswered: Is the second defendant at present a shareholder
and / or director in the first defendant?
I just don’t know as
the second defendant did not disclose this essential detail in his
affidavit.
[25].
What
I do know from the certificate of the resisting affidavit is that the
second defendant is a South African national. Also, it
is instructive
to note that nowhere in his affidavits does the second defendant deal
in any way with the issue of his place of
domicile, which, in my
view, is separate and distinct from the concept of residence.
Importantly, the second defendant does not
deny that he is domiciled
within South Africa, nor does he deal with those aspects which
constitute domicile, notably the country,
as between South Africa and
Italy, which he regards as his permanent home.
is the second defendent a
peregrinus
?
[26].
The
legal principles relating to the notion of a
peregrinus
was discussed at length in the matter
of
Tick v Broude and Another,
1973
(1) SA 462
(T). In that matter the evidence showed that when the
respondent came to South Africa, it was his intention at least
initially
to remain for a short time only. The true issue before the
Appeal Court, as in the Court
a quo
,
was whether the respondent was a
peregrinus
in the sense that he was not resident in the Republic of South
Africa. In that matter the Court concluded that the respondent was
a
peregrinus
notwithstanding his
ipse dixit
that he regarded South Africa as his home.
[27].
Galgut
J in the
Tick
case
made reference to the publication by C Pollak’s
The
South African Law of Jurisdiction
, at
p. 23 says, where the learned Author set out the relevant principles
as follows:
'... it would seem that in modern South
African law the term
incola
is
used with reference to a litigant who is either domiciled or resident
in the area to which the court belongs, while the term
peregrinus
is used with reference to a litigant who
is neither domiciled nor resident in such area.'
[28].
He concludes by saying:
'... in modern South African law either
domicile or residence is sufficient to constitute a person an
incola
.
Any person who is not an
incola
is
a
peregrinus
.'
[29].
There
have been a number of decisions and certain general principles have
been laid down in construing the word
'resides'
,
as follows:
29.1
The
question to be considered is not one of domicile but of residence; a
person may have his domicile in one place and his residence
for the
time being at another place.
29.2
A
person may have more than one residence.
29.3
A
person cannot be said to reside at a place where he is temporarily
visiting, nor does he cease to reside at a place even though
he may
be temporarily absent on certain occasions and for short periods.
[30].
In
Hogsett v
Buys
, 1913 CPD at p. 205 Seale J said:
‘
It has never been laid down what
degree of permanence is required in residence; but at all events it
ought to be shown that the
person sought to be brought within the
jurisdiction had some interest in the place where he was served, in
the sense that there
was some good reason for regarding it as his
place of ordinary habitation at the date of service.'
[31].
To
put the matter in another way, the question whether a person resides
at a particular place at any given time depends upon all
the
circumstances of the case read in the light of the general principles
referred to above.'
[32].
In
Kallos and Sons (Pty.) Ltd v Mavromati
,
1946 WLD 312
, De Villiers AJ held that for a person to be regarded
otherwise than as a
peregrinus
and thus to be regarded as an
incola
his residence must be
'of some permanent
or settled nature
'.
[33].
In
Klisser v McGovern
,
1963 (4) SA 483
, Milne JP, at p 486 proceeded on the basis that to be
resident in the Republic it was necessary to show the kind of
residence which
is necessary to characterise an
incola
.
At p 486 he points out that the fact that a person who is living in
this country and who is a British subject and has a British
passport
is not by itself sufficient to prevent him from being an
incola
of this country, and at p 487 he says:
'I take the view, further, that if his
residence in this country had such a character of permanency in a
sufficient degree to make
him an
incola
,
he does not cease to be an
incola
,
or a person who is resident in this country, merely because he
declares his intention of terminating his residence at an early
date.
Ex hypothesi it has not been terminated, there has merely been a
declaration of intention to terminate it.'
[34].
In
deciding what is meant by
'residence'
one bears in mind that the word
'domicile'
has acquired a well-defined technical meaning. The word
'residence'
has not acquired any technical meaning and is used in law with many
shades of meaning ranging from mere physical presence to domicile.
(See Pollak, p 44). The definition of
'residence'
which is most appropriate in this type of case is the one set out in
Hogsett v Buys
,
1913 CPD 200
, and quoted by Centlivres JA in
Ex
parte Minister of Native Affairs
, supra
at p 59, namely, there must be
'some
good reason for regarding it as his place of ordinary habitation at
the date of service'
.
[35].
The
facts detailed below were urged as showing that the second defendant
was resident in the Republic and thus is an
incola
:
35.1
The
second defendant holds a South African passport and is a South
African National.
35.2
The
second defendant does not give any indication that he is permanently
resident in Italy. He also does not say whether or not
he has any
plans to return to South Africa at any time.
35.3
In
his resisting affidavit he is notably quiet about whether he regards
South Africa or Italy as his permanent home.
[36].
If
one examines all the above grounds, coupled with the fact that as
recently as the 10
th
February 2014, when he signed the Lease Agreement, he was seemingly
still resident in the Republic, it can safely be inferred that
at all
times material to this matter he regarded South Africa as his place
of residence.
[37].
Each
case will fall to be decided on its own facts.
[38].
Having
regard to what the second defendant says in his affidavit resisting
summary judgment as well as what he does not say, I am
left with the
firm impression that the defendant is in fact a person who regards
South Africa as his permanent place of abode.
Moreover, the more one
reads his affidavits the more one finds that one cannot have any
confidence in what he says and that it
cannot be said that there is
'some good reason'
for regarding Italy
'as his place of
ordinary habitation at the date of service'
.
[39].
It
follows, therefore, that the second defendant is an
incola
in the sense that he is domiciled in South Africa. His second point
in limine
therefore also stands to be dismissed.
[40].
In
his resisting affidavit the second defendant has not demonstrated a
defence on the merits of the plaintiff’s claim. In
that event
the plaintiff is entitled to summary judgment.
order
Accordingly, I make the following order:
Summary Judgment is granted against the first and
second defendants, jointly and severally, as follows:
AGAINST THE FIRST DEFENDANT
CLAIM 1
1.
Ejectment
of the first defendant and anyone claiming occupation through the
first defendant from the commercial leased premises
described as
Building 2, Comprising of a Showroom
(measuring approximately 1010m
2
)
and a basement storage (measuring approximately 400m
2
),
Bryanston Boulevard Showroom (situate on Portion 73 of Erf 5597,
Bryanston), William Nicol Drive, Bryanston, Gauteng.
AGAINST THE SECOND DEFENDANT
CLAIM 1
1.
Payment
of the sum of R1,309,773.35 (one million three hundred and nine
thousand and seven hundred and seventy three rand and thirty
five
cents).
2.
Interest
on the said amount of R1,309,773.35 (one million three hundred and
nine thousand and seven hundred and seventy three rand
and thirty
five cents) at the rate of 11.75% per annum from the 2
nd
March 2016 to date of final payment.
3.
Ejectment
of the first defendant and anyone claiming occupation through the
first defendant from the commercial leased premises
described as
Building 2, Comprising of a Showroom
(measuring approximately 1010m
2
)
and a basement storage (measuring approximately 400m
2
),
Bryanston Boulevard Showroom (situate on Portion [7……]
of Erf [5…….], [B……]), [W…..]
[N……] [D……], [B……..],
Gauteng.
4.
Cost
of suit on the attorney and own client scale.
CLAIM 3
1.
Payment
of the sum of R508,928.57 (five hundred and eight thousand nine
hundred and twenty eight rand and fifty seven cents).
2.
Interest
on the said amount of R508,928.57 (five hundred and eight thousand
nine hundred and twenty eight rand and fifty seven cents)
at the rate
of 11.75% per annum from the 2
nd
March 2016 to date of final payment.
3.
Cost
of suit on the attorney and own client scale.
L ADAMS
Acting Judge of the High Court
Gauteng Local Division, Johannesburg
HEARD
ON: 6th May 2016
JUDGMENT
DATE: 10th May 2016
FOR
THE PLAINTIFF: Adv J G Dobie
INSTRUCTED
BY: Reaan Swanepoel Attorneys
FOR
THE SECOND DEFENDANT: Adv D J Winterton
INSTRUCTED
BY: Sim & Botsi Incorporated