About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2017
>>
[2017] ZAGPJHC 381
|
|
Holloway and Another v Padi Emea Limited (38785-2014) [2017] ZAGPJHC 381; 2020 (5) SA 172 (GJ) (8 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 38785/2014
8
March 2017
In
the matter between:
MARK
HOLLOWAY
1
ST
APPLICANT
TWIN
PALMS SCUBA
CC
2
ND
APPLICANT
And
PADI
EMEA
LIMITED
RESPONDENT
J
U D G M E N T
VICTOR
J
:
[1]
The applicants in this matter seek to review a decision made by an
international body of the respondent. This international
body which
is a global voluntary recreational diving association expelled the
applicants from the organisation and posted this
fact on the
respondent’s website as well as in the undersea journal
following upon the death of Mr Bellingham while diving
under their
auspices. The respondent is Padi Emea Ltd (Padi) is abbreviation for
a Professional Association of Diving Instructors
situate in the
United Kingdom.
[2]
The application that serves before me is to compel the Padi in
terms of rule 53 (1)(b) of Uniform Rules of Court to dispatch
to the
Registrar of this Court the full record, documents and evidence of
the proceedings comprising of the materials that were
used in coming
to the decision which they seek to impugn on 24 June 2013 to expel
the first applicant in terms of the respondent’s
General
Standards and Procedures 2002, revised version, and its decision on
24 June 2013 to terminate the second applicant’s
membership in
accordance with those standards.
[3]
The central issue for determination is whether a South African court
has jurisdiction to adjudicate this matter. This is a preliminary
issue and whether this issue can be disposed of finally by this court
and not be traversed at hearing of the main application.
[4]
The general background facts to this matter are important, although
today I really only have to deal with the jurisdictional
issue that
has been raised. The respondent is an affiliate company of PADI
Worldwide Corporation, a Global Voluntary Recreational
Diving
Association. Its territories include Europe, Middle East and
Africa It is responsible for the management of
PADI Membership
and all related activities including in South Africa.
Membership of PADI is voluntary and is governed by
the PADI’s
general standards.
[5]
The applicants contend that the general standards constitute an
agreement between PADI and its members. They submit that jurisdiction
can be founded on the fact that PADI has a footprint in South Africa.
On the website some of its addresses reflect the United States
of
America. There are also other addresses that are referred to on
the website. The applicants contend that in South
Africa PADI
through Scuba.co.za has a business address. It is its new
distributor’s address in Beyers Naude Drive,
Fairland
Johannesburg. In South Africa it also trades through Kewe Sales
International at 2 Perth Place in Buccleuch, Sandton
Gauteng.
[6]
PADI is represented in South Africa by its regional manager, Mr
Pieter Driesel who is responsible for the management of PADI
membership and all relevant activities in Africa including South
Africa. Driesel is the regional manager and operates from
3
Ballymore Eastwood Avenue, Randburg, Gauteng.
[7]
The applicants rely on the PADI website concerning PADI’s
international relationship with South Africa. I will say
more
of this. PADI’s main activities include diver education
based on progressive training that introduces skills,
safety related
information, local and environmental knowledge to student divers in
stages. PADI professionals make underwater
exploration and
scuba diving adventures possible.
[8]
The jurisdictional point is really based on the fact that Mr Driesel
has an employment contract with the respondent. That
employment
contract, although concluded in England, his work is carried out in
South Africa. In fact, in relation to this
point, the first
affidavit signed on behalf of PADI made it clear that Mr Driesel was
based in South Africa. More particularly,
PADI alleges
that he was the person in charge in South Africa and that it was from
South Africa that the Africa operation
was run. In a further
affidavit by PADI all that was changed was that because the
employment contract was concluded in England
the laws of that country
would prevail.
Background
[9]
The late Mr Bellingham was diving under the auspices of the
applicant. At some stage during the dive at the Aliwal Shoal
in
Durban Bay, Mr Bellingham indicated that his oxygen supply was
running out. This was in relation to the person on behalf
of
the applicants who was supervising and controlling the dive, Mr
Holloway. Mr Holloway gave the instruction to Bellingham to
proceed
to terminate the dive and go to the surface. This happened at a
depth of approximately 25 metres. Mr Holloway
was detained at
that level momentarily because he too was experiencing a difficulty
with his equipment. The deceased at that
stage helped him to
correct the situation and it was approximately 35 minutes after that
incident that the deceased approached
him and said there was a
problem with his equipment. Soon after that, the remaining divers
continued to explore the wreck and this
took 30 to 40 minutes and it
was at that stage that the remaining divers saw the deceased, Mr
Bellingham, lying on the floor of
the ocean. Netcare 911 was
waiting on the beach. They administered CPR on the deceased for
about 40 minutes before
declaring him dead. The applicants did
everything in their power to cooperate in the inquiry and it also
bears mention that
the deceased’s symptoms were classical of an
embolism and the autopsy report in that regard was inconclusive.
All the
necessary reports were filled in.
[10]
There is ample evidence that the applicants cooperated with PADI but
notwithstanding that, it published the fact that the applicants
were
negligent and that their membership to PADI had been terminated.
That inquiry did not take place in South Africa. Because
of the
enormous prejudice resulting from the expulsion the applicants have
been prejudiced and it is for this reason that they
seek to review
the decision of the Tribunal that heard the matter and ordered the
expulsion.
[11]
Mr Cassim SC argued on behalf of the applicants that the case law has
developed in regard to the question of jurisdiction.
That
jurisdiction is now a far more relaxed form of determination and in
this regard referred extensively to the
Multi-Links
Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd
2014
(3) SA 265
(GP) where Fabricius J summed up the principles of
jurisdiction in actions against foreign entities, even in the absence
of an
attachment order to found or confirm jurisdiction. Previously a
foreigner could be arrested if there was no other form of founding
jurisdiction. All this changed in the Strang case, (
Bid
Industrial Holdings (Pty) Ltd v Strang and Another (Minister
of
Justice and Constitutional Development, Third
Party
)
2008 (3) SA 355
(SCA)) and a different test, or a
more flexible test for jurisdiction was made. The two provisos were
that the summons must have
been served in South Africa. Well in
this case, the summons has been served in South Africa on PADI’s
offices.
[12]
There must be an adequate connection between the suit and the Court’s
area of jurisdiction. This principle will extend
to corporate foreign
defendants and the adequacy of the connection would be established by
suitability and convenience. In
this regard reference was made
to the fact such as background facts, convenience and the law
governing the relevant transaction
or action and the place where the
parties reside or carry on their business.
[13]
Mr Troskie on behalf of PADI referred to a case in the Cape Court
where it was found that in terms of the new
Companies Act No 71 of
2008
jurisdiction can only be effective if the insolvency proceedings
are served at the registered office and submits for this fact that
the provides that the principle place of business must be the same as
the registered office, thus introducing a more stringent
approach to
jurisdiction. It was submitted that the registered office is
abroad and irrespective of the location of the trading
entity in
Fairland, Johannesburg, the Court could not recognise the
jurisdiction since these application papers were served in
South
Africa and not at the registered head office abroad.
[14]
Fabricius J in the
Multi-Links
case also referred to the
former provisions of section 19 (1) of the Supreme Court Act and in
this regard the question of cause
of action as opposed to causes
arising had to be discerned. It is in that context that the question
of forum of convenience arose
and the question whether there were
sufficient links between the suit and this country to render
litigation appropriate here rather
than in the Court of the
defendant’s
domicile
. The question of appropriateness
and convenience was clearly a factor to be taken into account and in
this regard the Spiliada
decision of the House of Lords that
principle was introduced into our jurisprudence in the Strang case.
In this regard I
refer to the textbook of Andrew S Bell Forum
Shopping and Venue in Trans-National Litigation at pages 94 –
95, where Lord
Goff at the House of Lords in dealing with the
Spiliada case says the following and bearing in mind that he did not
approve of
the language of the word convenience but he nevertheless
stated the following:
‘
It
is most important not to allow it [the latin
forum
non conveniens
] to
mislead us into thinking that the question at issue is one of mere
practical convenience. It is evident that the indicia of
the ‘natural
forum’ which he identified will point to a venue that is
convenient both for the parties and the Court.
The natural
forum is primarily a neutral venue and secondly, a convenient one.
This must not be viewed as an end in itself
of English jurisdictional
rules but rather as the means to a different end. In this
light, in England and countries that
have adopted the Spiliada, the
undoubted administrative efficiency and judicial convenience that
follow from the process of identifying
the natural forum are
consequential benefits rather than the reason for the search for such
forum.’
Now
this was fully adopted into our law and of course has its origin in
the doctrine of the natural forum.
[15]
In this matter it is clear that the accident happened in South
Africa. The question of the suspension or cancellation of membership
is a decision that was made abroad. However, the effects of that
decision are very much a tribal issue in this jurisdiction and
Fabricious J said that the question of jurisdiction ought to be
finally decided by the Trial Court and referred to another SCA
decision that is of Hay Management Consultants (Pty) Ltd v P3
Management Consultants (Pty) Ltd
2005 (2) SA 522
(SCA) and in this
regard the legal principles were made clear that it is better to
determine the question of jurisdiction during
the trial.
[16]
The Supreme Court Act 59 of 1959 has been repealed by the Superior
Court’s Act 10 of 2013 which for the most part came
into
operation on 23 August 2013 and section 21 (1) reads as follows:
(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.
Jurisdiction
means the power vested in a Court by law to adjudicate upon determine
and dispose of a matter. See
Veneta Mineraria Spa v Carolina
Collieries (Pty) Ltd (In Liquidation)
1987 (4) SA 883
(A
) at
886D.”
[17]
The question for determination by me is whether there is a sufficient
connecting factor to found the relief in this interim
application
which the applicants seek. They seek the disclosure of all the
documents that served before the Tribunal which made
the decision to
expel it. It was submitted on behalf of the applicants that Mr
Driesel’s employment in South Africa,
although the employment
contract was concluded in England, does supply a sufficient
connecting factor and that the area of jurisdiction
must now be
determined by the wider test and that is the question of
appropriateness and convenience.
[18]
It is submitted by Mr Cassim that the address on the internet
regarding Kiwi Sales International and Scuba.co.za is reflective
of
the connecting factor and that this will go further to demonstrate
that South Africa is the appropriate forum for the review
the
decision of the Tribunal despite that Tribunal being abroad.
[19]
The applicants have been members of the respondent since 20 September
2004 and this is common cause. It is also not denied
that the
respondent does considerable business in South Africa and has a
substantial turnover in excess of R20 million. The respondent
accepts
that it does business in South Africa but denies the quantum.
Be that as it may, the respondent does have a bank
account in South
Africa and there is a turnover whether it is R20 million or less
nonetheless it is operating in South Africa.
[20]
The respondent also has an emergency first response, a subsidiary of
its subsidiary which distributes CPR and first aid programs
for
divers and non-divers in South Africa and this is not disputed. The
respondent’s opposition to the jurisdiction is really
based on
the fact that it itself does not have an office or branch in South
Africa and that management of the PADI membership of
South African
members is governed by the respondent’s office is Bristol,
United Kingdom. The respondent admits that
it is a foreign
company and as such an external company in terms of our law and that
it is required to register in terms of the
provisions of section 23
of the Company’s Act 71 of 2008.
[21]
It is common cause that the respondent is registered for VAT and
although his working conditions are governed by the foreign
employment contract nonetheless, in terms of the
Labour Relations Act
66 of 1995
an employee is defined in
section 213
as any person
excluding an independent contractor who works for another person or
for the State and who receives or is entitled
to receive any
remuneration and any other person who in any manner assisting,
carrying on or conducting the business of an employer.
In this regard
the respondent submitted that Mr Driesel is in fact paid abroad.
However, upon a proper application of
section 213
of the Labour
Relations Act Mr Driesel would be protected by the provisions of our
Labour Relations Act. See
Board of Executives Ltd v McCafferty
1997 (7) BLLR 835
(LAC).
[22]
Mr Cassim submitted that there was a further jurisdictional fact for
the jurisdictional point taken by the respondents and
that it should
fail. In
Ngqula v South African Airways (Pty) Ltd
2013 (1)
SA 155
(SCA)
the Court found that an order in terms of
section 3
of the Interim Rationlisation of Jurisdictions of High Court’s
Act 41 of 2001 led to the jurisprudence developing to the
extent that
the jurisdiction of different High Courts in South Africa can be
interpreted as being procedural in character and therefore
a dispute
can be transferred to any division of the High Court of South
Africa.
[23]
In the
Multi-Links
case Fabricius J was the case manager and
heard the argument on jurisdiction. I too am of the view, with
respect, that the approach
taken in the
Multi-Links
case, that
a jurisdictional point can be heard as a preliminary issue is the
correct one. I can decide on a preliminary basis
whether this
Court does have jurisdiction. This does not preclude the trial court
or the opposed motion court hearing the matter
in due course to
finally deal with that point. I have already indicated that the
submission PADI that this preliminary step
is not appropriate in this
particular circumstance must fail. This is not an insolvency
matter.
[24]
PADI makes the further submission that it is common cause that it is
a foreign company and that it does have a main place of
business in a
foreign country and therefore cannot simultaneously reside in this
country. In addition the foreign Tribunal will
not subject itself to
the jurisdiction of this Court. The respondents contend that
because of PADI’S limited presence
within this division the
order sought compelling the production of the record of the
International Tribunal cannot be effected.
If the order cannot be an
effective since the Tribunal would not be obliged to provide the
record and there is very little that
a South African Court could do
in this regard.
[25]
The reference in
rule 53
(1), extends to proceedings of any
inferior Courts and of any Tribunal, Board or officer performing
judicial or quasi-judicial
or administrative functions also extends
to the disciplinary proceedings of which the applicant seeks the
record.
[26]
In other words, PADI submit that the reference to a Tribunal in
Rule
53
can only be wide enough to refer to a domestic Tribunal of
contractual origin. There is no contractual nexus, so PADI
submits,
between the applicants and the foreign Tribunal that heard
the matter. The further submission is that
rule 53
clearly
contemplates proceedings that at the very least took place within the
Republic of South Africa and it does not extent to
disciplinary
proceedings that took place in the United Kingdom. In the
result, the parties are at diametrically opposed ends
of this
jurisdictional point.
[27]
I, however, am satisfied that based on the adoption of the Spiliada
case into South African jurisprudence and the acceptance
that
jurisdiction is now a much wider concept than simply the question of
founding jurisdiction or arresting someone to found jurisdiction,
the
applicants succeed in proving jurisdiction.
[28]
The applicants have succeeded in demonstrating that on a proper
interpretation of the jurisdictional facts they have oroved
jurisdiction. Tthis Court does have the power to order the production
of the record. A draft order was prepared. Both parties
had two
counsel. The matter is important and is complex. Therefore a costs
order including the costs of two counsel is justified.
Order:
I
make an order in terms of the draft marked X where I order the
respondents to comply and provide the record in accordance with
the
draft.
M. VICTOR
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION