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[2011] ZAGPPHC 93
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Durofin (Pty) Limited v Henque 4257 CC and Another (A676/2008) [2011] ZAGPPHC 93 (15 June 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
/ES (-REPUBLIC OF SOUTH AFRICA)
CASE
NO: A676/2008
DATE:
15/06/2011
IN
THE MATTER BETWEEN
DUROFIN
(PTY)
LIMITED
.....................................................................................
APPELLANT
AND
HENQUE
4257
CC
.....................................................................................
1st RESPONDENT
DE
VILLIERS VAN DER
MERWE
...........................................................
2nd RESPONDENT
JUDGMENT
PRINSLOO.
J
[1]
When this appeal came before us, the appellant applied for
condonation, in terms of two substantive applications, for the late
filing of the record and also for the late filing of the appellant's
heads of argument. The applications were unopposed and an
order was
made granting condonation on both counts and ordering the appellant
to pay the costs of the condonation applications.
[2]
Before us, Mr Higgins appeared for the appellant and Mr Strydom
appeared for the respondents.
Introduction
and background
[3]
On 20 November 2001, and at Pretoria, the appellant and the first
respondent entered into a written instalment sale agreement
in terms
of which the appellant sold certain equipment to the first
respondent. The equipment was to be used to equip and run a
bakery in
Marble Hall in terms of a franchise agreement also entered into
between the first respondent and Butterfield Holdings
(Pty) Ltd which
is the franchisor of a series of well-known "Butterfield"
bakeries. It appears that the appellant is
associated, from a
corporate point of view, with Butterfield Holdings (Pty) Ltd.
[4]
It is common cause that the first respondent, through its member, the
second respondent, started conducting the bakery at the
Cotton Fields
Centre, cnr Railway and First Streets. Marble Hall.
[5]
When the instalment sale agreement was entered into in November 2001,
the second respondent also bound himself, in terms of
a written deed
of suretyship, as surety and co-principal debtor with the first
respondent as security for compliance with the latter
of its
obligations in terms of the agreement.
[6]
It appears that, at all relevant times, the second respondent was the
sole member of the first respondent and actively involved
in the
running of the bakery.
[7]
In terms of both the instalment sale agreement, and the deed of
suretyship, the first and second respondents, respectively,
chose as
their domicilium cilandi et executandi domicilium address") the
business address of the bakery, namely Cotton Fields
Centre, cnr
Railway and First Streets. Marble Hall.
[8]
It is common cause that payment of the instalments in terms of the
instalment sale agreement, fell in arrears. It is not clear
from the
papers when the breach occurred, but it seems that a demand was sent
to the respondents by the attorney of the appellant
in June 2005.
[9]
When payments were not forthcoming, the appellant instituted action
against the respondents in the Pretoria magistrate's court.
Summons
was served on the second respondent at his residential address in
Meyerspark, Pretoria. I assume that summons was served
on the first
respondent at the domicilium address. The returns of service do not
form part of the record.
[10]
It is common cause that the plaintiff then withdrew the Pretoria
action. This was not before the respondents filed a plea and
instituted a counter-claim in the Pretoria action. It appears that
the counter-claim was never withdrawn and is. at least in theory,
still pending.
[11]
On a general reading of the papers, it seems that the appellant's
decision to withdraw the Pretoria action was inspired by
a conclusion
that the Pretoria court did not have jurisdiction to entertain the
claim. It is not necessary to comment any further
on this subject,
except for remarking that the Pretoria court would, at least, have
had jurisdiction to entertain the claim against
the second
respondent, because of his residence in Pretoria and in terms of the
provisions of
section 28(l)(a)
of the
Magistrates' Courts Act 32 of
1944
.
[12]
Thereafter, and, it appears, in January 2006, the appellant
instituted the action, forming the subject of this appeal, out
of the
Groblersdal magistrate's court. Although it was not stated in so many
words, it appears that Marble Hall falls inside the
area of
jurisdiction of the Groblersdal magistrate's court ("the
Groblersdal court").
[13]
When the respondents entered an appearance to defend, the appellant
applied for summary judgment. This application was successfully
resisted when the respondents filed an opposing affidavit.
[14]
In August 2007, the trial came before the learned magistrate of
Groblersdal. Mr Van der Walt.
[15]
At the conclusion of the plaintiffs case, the respondents, as
defendants, applied for absolution from the instance on the ground
that the plaintiff (appellant) had failed to prove that the
Groblersdal court had jurisdiction to entertain the claim.
[16]
By agreement between all the parties, written heads of argument were
filed. This took place in December 2007. and January 2008.
[17]
On 23 July 2008, the learned magistrate, concluding that "dit is
duidelik dat eiser nie daarin geslaag het om te bewys
dat hierdie hof
jurisdiksie oor die persone van die verweerders het nie en dus nie
oor die aangeleentheid kan beslis nie",
granted absolution from
the instance with costs.
[18]
It is this judgment that came before us on appeal.
The
provisions of
section 28
of the
Magistrates' Courts Act [19
] It is
convenient to quote the wording of the above section: "28.
Jurisdiction in respect of persons
(1)
Saving any other jurisdiction assigned to a court by this Act or by
any other law. the persons in respect of whom the court
shall have
jurisdiction shall be the following and no other-
(a)
any person who resides, carries on business or is employed within the
district;
(b)
any partnership which has business premises situated or any member
whereof resides within the district;
(c)
any person whatever, in respect of any proceedings incidental to any
action or proceeding instituted in the court by such person
himself;
(d)
any person, whether or not he resides, carries on business or is
employed within the district, if the cause of action arose
wholly
within the district;
(e)
(it deals with interpleadings proceedings) ...
(f)
any defendant (whether in convention or reconvention) who appears and
takes no objection to the jurisdiction of the court;
(g)
any person who owns immovable property ..."
[20]
Where
section 28
deals with jurisdiction in respect of persons, it is
appropriate to note that, in terms of the Interpretation Act, No 33
of 1957
(section 2) "person" includes "any company
incorporated or registered as such under any law" and "any
body of persons corporate or unincorporate".
It
follows, from the aforegoing, that the first respondent is also "a
person" as intended by the provisions of
section 28
of the
Magistrates' Courts Act.
[21]
In the summons, the appellant, as it was obliged to do, alleged that
the Groblersdal court had jurisdiction to entertain its
claim. This
allegation was denied in the plea. On these pleadings, the onus was
on the appellant to prove that the Groblersdal
court had jurisdiction
- see Buys v Roodt (nou Otto) 2000 1 SA 535 (0)at 539E-G.
[22]
It appears that even if a special plea denying jurisdiction
("exceptio fori declinaloria) had been raised, the onus to
prove
that the court had jurisdiction would remain on the plaintiff - see
Lieherman v Van der Stel Furniture Manufacturers (Pty)
Ltd 1963 1 SA
769 (T) at 771A-772D.
[23]
I mention this, because, although he did not argue that the appellant
did not have the onus. Mr Higgins submitted that the
respondents, in
their plea, ought to have raised their objection to jurisdiction in
the form of a special plea. In this regard
he referred us to the case
of Purser & Another v Sales & Another 2001 3 SA 445 (SCA) at
452A-D. I do not consider this
judgment to provide authority for an
argument that it is incumbent on a defendant, denying that the court
has jurisdiction, to
raise that point in the form of a special plea.
In any event, nothing turns on this, as the appellant, either way,
bore the onus
as I have illustrated. No argument to the contrary was
presented to us.
[24]
In the end, barring an argument presented to us by Mr Higgins with
reference to
section 45
of the
Magistrates' Courts Act, which
I will
briefly refer to later, the main issue for decision before us was
whether or not the Groblersdal court had jurisdiction
as intended by
the provisions of
section 28(1
)(a). namely whether or not the
appellant had succeeded in proving that the court had jurisdiction
over the respondents because
they resided, carried on business or
were employed within the Groblersdal district where the action was
instituted. This was also
the crux of the finding of the learned
magistrate, supra namely that this onus had not been discharged.
[25]
It is convenient to add, at this point, that it was not disputed that
the court did not have jurisdiction in terms of the provisions
of
section 28(1
)(d) because the contracts were signed in Pretoria, and
it was common cause before us that the whole cause of action did not
arise
within the Groblersdal district.
The
section 45
argument
[26]
Before us, Mr Higgins raised an argument based on the provisions of
section 45
of the
Magistrates' Courts Act.
[27
]
Section 45(1)
reads as follows:
"45.
Jurisdiction by consent of parties
(1)
Subject to the provisions of
section 46
, the court shall have
jurisdiction to determine any action or proceeding otherwise beyond
the jurisdiction, if the parties consent
in writing thereto: Provided
that no court other than a court having jurisdiction under section
twenty-eight shall, except where
such consent is given specifically
with reference to particular proceedings already instituted or about
to be instituted in such
court, have jurisdiction in any such
matter."
[28]
The argument of Mr Higgins, which he described as his best argument
goes like this: shortly after instituting the action, the
appellant,
on an ex parte basis, obtained an order for the attachment of the
equipment in the bakery, pending the outcome of the
case. The
attachment was aimed at protecting the appellant's rights in so far
as guarding against further loss or damage to the
equipment was
concerned. On the return date of this ex parte interim order, which
was 22 February 2006. and well after the action
was instituted, a
final order was obtained by agreement between the parties. This final
order does not form part of the record.
Nevertheless, Mr Higgins
argued that, by consenting to the final order, the respondents
consented to the jurisdiction of the court,
in the spirit of
section
45
, so that later arguments that the court did not have jurisdiction,
as upheld by the magistrate, were futile and without merit. It
was
argued that the final order (which we did not see) constitutes the
necessary "consent in writing" to the court's
jurisdiction,
as required by the provisions of
section 45(1).
In this regard, we
were referred to an extract from a text book containing commentary on
the
Magistrates' Courts Act, and
, in this instance, commentary on the
provisions of
section 45.
I presume that the authority emanates from
work by the learned authors Jones and Buckle, although it was not
identified as such
by Mr Higgins.
It
is useful to consider and quote an extract from what the learned
author had to say:
'"Consent
in writing'. The section does not require the consent to be in the
form of 'an express agreement in writing executed
by the parties'.
The section merely requires that the parties must consent in writing:
each party may separately consent and there
need be nothing in the
form of an agreement between them; it is not even required that any
such consent need be signed by either
party - there must be a writing
or writings which constitute proof that each of the parties has
consented to the jurisdiction.
Thus
the requirement of the section that the parties' consent in writing
is satisfied if the consent is embodied in correspondence
between the
attorneys of the parties, or by the written consent of the defendant
and the issue of summons by the plaintiff alleging
the consent of the
parties ..."
[29]
From the aforegoing, it is clear that some form of writing is
required to satisfy the requirements of
section 45.
Before us, there
was no sign whatsoever of such a
consent
on the part of the respondents. There was no attempt by Mr Higgins to
point out such consent. Indeed, such "writing"
as there
was. displays strong and unequivocal submissions by the respondents
that the Groblersdal court did not have jurisdiction
to hear the
matter: in an opposing affidavit to the ex parte application, dated
21 February 2006, the day before the return date,
the second
respondent, on behalf of both respondents, makes the following
allegations when dealing with the supporting affidavit
to this ex
parte application (I quote extracts without dealing with the full
context of the denials by reference to the particular
paragraphs in
the supporting affidavit):
"Ek
ontken dat die besigheid doen (sic) onder die naam Butterfield Bread
Marble Hall te Cotton Field Centre, h/v Railway- en
Eerste Strate,
Marble Hall. Die respondent doen sedert 1 Mei 2004 nie meer besigheid
nie, en word die besigheid bekend as Butterfield
Bread Marble Hall
vanaf 1 Mei 2004 deur mnr Pieter van Vuuren bedryf";
And
"Ek
ontken dat die agbare hof jurisdiksie het om hierdie aksie te bereg,
aangesien die respondent nie meer besigheid doen binne
die
jurisdiksie van bogenoemde agbare hof nie.";
And
"Ooreenkomstig
die bepalings van artikel 21 van die Wet op Kredietooreenkomste. Wet
no 75 van 1980, het die agbare hof nie
jurisdiksie om hierdie saak te
bereg nie.";
And
"Ek
is tans woonagtig te Simmetriestraat 258, Meyerspark Pretoria en is
dit ook die geregistreerde adres van die respondent
... Die
respondent is nie in besit van die bates waarna verwys word nie,
aangesien mnr Pieter van Vuuren sedert 1 Mei 2004 in besit
is van
hierdie bates.";
And
"Ek
verklaar dat die respondent nie in besit is van die bates nie, maar
dat mnr Pieter van Vuuren sedert 1 Mei 2004 in besit
is van die bates
en die bakkery vir sy eie rekening bedryf met die voile medewete en
kennis van die applikant."
[30]
There are other extracts from this opposing affidavit which clearly
suggests quite the opposite from a consent to jurisdiction.
It is
also clear from the provisional order that it would only operate as
an interim attachment pending the decision of the action.
Where the
respondents clearly indicated their argument that the Groblersdal
court did not have jurisdiction, I fail to see how
an agreement to a
final order which would only be effective pending the outcome of the
action.
where
the question of jurisdiction would be vigorously attacked, could
constitute a "consent in writing" to jurisdiction
as
intended by the provisions of
section 45.
[31]
I add that this argument, based on the provisions of
section 45
, was
not raised in the written heads of argument presented to the learned
magistrate before he gave judgment, so that he did not
deal with the
matter at all. Moreover, this argument was not raised in the notice
of appeal either, so that the learned magistrate,
when furnishing
additional reasons for his judgment upon receipt of the notice of
appeal, did not deal with the
section 45
argument either.
Finally,
I add that the argument was not raised in the heads of argument
presented to us either. The first we heard about it, was
when it was
raised by Mr Higgins.
Under
these circumstances, it is doubtful whether the argument should be
entertained at all. The learned author, Erasmus Superior
Court
Practice, says the following at B1-358:
"When
a bona fide effort has been made, in noting an appeal, to state
clearly and specifically the grounds of appeal, and other
or further
grounds of appeal are subsequently found to exist, the court will
allow amplification of the grounds in a proper case,
subject to any
orders as to adjournment and costs rendered necessary by the
inadequacy of the original notice. Such amplification
will be
considered more favourably if the appellant has given timeous notice
to the court and to the respondent.
There
should in the normal course be a formal application for amendment, on
notice of motion with supporting affidavits showing
cause for relief,
but the appeal court may in its discretion allow an amendment of the
grounds at the hearing, without requiring
an affidavit to be filed,
if there has been adequate notice."
Before
us, none of these formalities were complied with. Nevertheless, we
allowed Mr Higgins to make his submissions. For the reasons
mentioned
earlier, I am of the view that there is no merit in the argument,
firstly because there is no "consent in writing"
as
required by the provisions of
section 45(1).
and secondly because,
whatever "writing" there was, contains a clear objection by
the respondents to the Groblersdal
court exercising jurisdiction over
the case.
Selection
of the domicilium address within the Groblersdal district
[32]
One of the points raised in the notice of appeal, although not argued
with any force before us, is a submission that the learned
magistrate
erred in not attaching sufficient significance to the fact that the
respondents chose the Marble Hall address as their
domicilium
address, supra, in the contracts.
[33]
It is clear from the authorities that the choice of a domicilium
address in a contract, within the jurisdiction of the court
in
question, is not enough to establish the jurisdiction of that court -
see Geyser v Nedhank Ltd and Others: In re Nedbank Ltd
v Geyser
[2006] ZAGPHC 50
;
2006
4 SA 544
(WLD) at 546D-E and the other cases there quoted.
[34]
In Mayne v Main
2001 2 SA 1239
(SCA) at 1243B-E it was held that a
person must be sued in the court having jurisdiction at the place
where he is residing at the
time when the summons is served. In the
same judgment, at 1242H, it was reaffirmed that the onus of
establishing jurisdiction based
on the defendant's residence rests on
the plaintiff.
[35]
On the same subject of the domicilium address the learned magistrate,
in his additional reasons, quoted from Jones and Buckle
The Civil
Practice of the Magistrate's Court in South Africa 9th ed vol 1 p45
as follows:
"It
is submitted that the election of an address domicilium citandi et
executandi is not to be equated with residence (may
I add or
'principal place of business') and that the election of such an
address does not confer jurisdiction upon a magistrate's
court over
the person of a defendant."
Some
evidence on the question of jurisdiction
[36]
It is convenient to refer to relevant portions of the evidence
presented by the appellant as plaintiff.
[37]
The first witness was MrFloris van Zyl, financial director of the
appellant. He could not deny that the summons in the Pretoria
case
was already served on the second respondent at his Pretoria address,
supra, in 2005. He did not know of any residential address
which the
second respondent may have had in Groblersdal at the time. He knew
that a meeting had been held with a view to transferring
the business
to Mr Van Vuuren and he knew that the second respondent was, at all
relevant times, no longer involved with the day
to day activities of
the bakery. This is corroboration of the evidence presented by the
second respondent on oath, supra in his
opposing affidavit to the
attachment application and also in his opposing affidavit to the
summary judgment application to which
1 will refer hereunder. The
witness knew that Van Vuuren was running the business. The meeting
already took place in 2005, according
to the witness. He knew that
Van der Merwe, the second respondent, was not involved in the running
of the business from the time
when the Pretoria action was launched
in 2005.
[38]
The following passage of the evidence under cross-examination is
perhaps noteworthy:
"Nou
meneer u sal ook nie kan ontken dat op daardie dag en datum toe
hierdie dagvaarding in 2006 uitgereik is toe het hierdie
besigheid
Henque het nie meer besigheid daar gedoen nie. Mnr Van Vuuren het
daar besigheid gedoen. — Ek kan dit nie beaam
of ontken nie
want ek weet nie wat hulle ooreenkoms was en of hulle uiteindelik by
hulle ooreenkoms gehou het nie. Dit is hoekom
ons tot die dag wat ons
met al ons prosesse begin het mnr De Villiers mnr Van der Merwe
aanspreeklik gehou het vir alles."
[39]
The witness could also not deny that the respondents approached one
Mr Gerrit Prinsloo, of the appellant's business, with a
view to
selling the bakery. This is dealt with in the opposing affidavit to
the summary judgment application.
[40]
The following was also said in cross-examination:
"En
dan ten slotte meneer dat Durofin. ekskuus tog dat Henque die eerste
verweerder het geen besigheid meer gedoen hier by
Marble Hall vandat
mnr Van Vuuren die besigheid hier oorgeneem het nie. Dit wil se Van
Vuuren het hierdie besigheid met sy eie
rekening bedryf hy het
geensins enige oorbetaal (onhoorbaar) die eerste verweerder Henque
gemaak nie. — - Ja ek weet nie
wat hulle ooreenkoms was nie. U
kan dit nie betwis nie? — Nee."
[41]
The second witness. Jack Brumler. was a valuator and could not make
any contribution with regard to the question of jurisdiction.
[42]
The third and last witness was the appellant's attorney of record. Mr
Stewart. He confirmed that the second respondent paid
him a visit in
Pretoria in 2005 when the Pretoria action was also launched. He
confirmed that the second respondent's street address
was situated in
Meyerspark at the time. He did not know where the second respondent
was resident in 2006.
[43]
The following was said in cross-examination:
"U
kan ook nie betwis meneer dat hy op daardie stadium nie meer betrokke
was of werk verrig het vir die tweede verweerder hier
by Marble Hall
bakkery nie? — Ek kan dit nie betwis nie maar dit was nog
steeds sy beslote kooperasie waarvan hy die lid
was.
En
meneer kan u betwis dat in 2006 toe hierdie aksie ingeste! het. het
die beslote kooperasie nie meer besigheid gedoen hier in
Marble Hall
nie? — Ek dra nie kennis daarvan nie."
[44]
So much for the evidence tendered during the trial.
[45]
Included in the record, on p80, is a written offer by Pieter van
Vuuren, dated 27 September 2005, addressed to the Butterfield
head
office, containing an offer to buy the Marble Hall bakery. Details of
the purchase price and the tender to pay over proceeds
of sales to
Shoprite are contained in this offer. As I indicated, Van Vuuren did
not give evidence.
[46]
In his affidavit opposing the summary judgment application, dated
April 2006. the second respondent revisited some of the aspects
already covered in his opposing affidavit to the attachment
application, supra. He stated that the arrangement with Van Vuuren,
going back to May 2004, was concluded with the full knowledge of the
appellant. The evidence, in its totality, suggests that this
was
indeed the case.
He
also reaffirmed that at the relevant time he did not stay in the
Groblersdal area neither did the first respondent carry on business
there.
The
test to be applied when absolution is sought
[47]
The following is said in Claude Neon Lights (SA) Ltd v Daniel
1976 4
SA 403
(AD) at 409F-H:
"...
when absolution from the instance is sought at the close of
plaintiffs case, the test to be applied is not whether the
evidence
led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a court,
applying its mind reasonabl}' to such evidence, could or might (not
should, nor ought to) find for the plaintiff
Did
the appellant succeed in discharging the onus of proving that the
Groblersdal court had jurisdiction in terms of the provisions
of
section 28?
[48]
I have referred to the evidence. The appellant could offer no
evidence to the effect that the first respondent was still carrying
on business in Marble Hall at the time when the action was instituted
at the beginning of 2006.
[49]
The weight of the evidence indicates, on the overwhelming
probabilities, that the first respondent was not carrying on business
in Marble Hall at the relevant time. The probabilities indicate that
Van Vuuren was in charge and there is no evidence whatsoever
to
suggest that he ran the business for the first respondent bakery or
while in its employ. The evidence suggests, on the probabilities,
and
this is undisputed, that Van Vuuren had taken over the business with
the blessing of the appellant. This probably happened
in 2004
already. There is also an indication in the evidence that Van Vuuren.
in turn, also abandoned the bakery.
[50]
On the evidence it is clear, and undisputed, that the second
respondent did not reside or do business in Groblersdal at the
relevant time. It is undisputed that he already stayed in Pretoria in
2005.
[51]
The findings of fact made by the learned magistrate, as expressed in
his judgment and additional reasons for judgment, were
that when
summons was issued in January 2006. the respondents were no longer in
Marble Hall and that Van Vuuren was running the
bakery at the time.
In
his additional reasons, the learned magistrate puts it as follows:
"Die
getuienis voor hierdie hof was dat die hoofplek van besigheid
aanvanklik te Marble Hall was maar dat ten tye van uitreiking
van
dagvaarding nie eerste of tweede verweerder nog enige besigheid te
Marble Hall bedryf het nie. Die indruk wat gelaat was, was
dat
besigheid deur 'n sekere mnr Van Vuuren op daardie tydstip bedryf
was.
Die
borgstellingsakte was in Pretoria geteken en nie eerste of tweede
verweerder het meer 'n hoofplek van besigheid gehad in Marble
Hall
-geen besigheid was meer bedryf nie."
[52]
A court of appeal will be slow to interfere with findings of fact
made by the court a quo. The well-known principles are set
out in R v
Dhlumayo and Another
1948 2 SA 677
(AD) at 705-706. On 706, the
learned judge of appeal also pointed out that the same general
principles will guide a court of appeal
both in civil and criminal
cases.
[53]
On the available evidence, and bearing in mind the test to be applied
when absolution is sought at the end of the plaintiffs
case, I can
find no misdirection on the part of the learned magistrate which
would justify this court to interfere with his findings.
Moreover. I
find no indication, on the evidence and the cross-examination, that
the learned magistrate may have come to a different
conclusion if the
trial had run its course.
Yet
another bite at the proverbial cherry
[54]
On the day after this matter came before us, and when the preparation
of this judgment had reached this advanced stage of dictation,
we
received a visit from counsel in chambers. We were informed by Mr
Higgins that he wanted to file further heads of argument,
and raise
further arguments not canvassed in the court a quo or in the notice
of appeal or. for that matter, in earlier heads of
argument.
During
our discussion with Mr Higgins and Mr Strydom. we asked the former
whether he intended applying to re-open the case, because
the
impression was created that he may have been seeking to introduce new
evidence. We were informed that the appellant was not
asking to
re-open the case but only to raise new arguments, as explained. We
gave Mr Higgins leave to file further heads of argument
by the same
afternoon and we gave Mr Strydom the opportunity to file heads of
argument in rebuttal.
[55]
I now to proceed to deal with the further arguments.
(i)The
authority of the appeal court to hear further legal points on appeal
not raised in the lower court
[56]
I already touched on this subject earlier when pointing out that we
allowed Mr Higgins, during the hearing before us, to deal
with the
argument based on the submission that the respondent had consented to
the jurisdiction of the Groblersdal court.
[57]
In his further heads of argument. Mr Higgins developed the submission
further, by referring us to the case of Argus Printing
&
Publishing Co Ltd v Die Pers Korporasie van Suid-Afrika Bpk; Argus
Printing & Publishing Co Ltd v Rapport Uitgewers (Edms)
Bpk
1975
4 SA 814
(A) where the following was said at 822B-C:
"...
dit hoef nouliks gese te word dat dit uiters onbevredigend sou wees
as hierdie hof se bevoegdheid daartoe beperk sou wees
om te beslis of
die uitspraak van COLEMAN R, korrek is op die basis waarop die saak
voor horn beredeneer is, terwyl ons van oordeel
is dat albei partye
in die hof a quo die regsposisie nie juis ingesien het nie en dat ook
die uitspraak van daardie hof van 'n
verkeerde siening van die
regsposisie uitgaan. Dit sou die vreemde gevolg meebring dat 'n
regsdwaling aan die kant van die party
hierdie hof in sy beslissing
oor die aangeleentheid sou kon bind ..."
[58]
I add that in Argus Printing, it appears that counsel for the
appellant raised a new ground of exception relating to the proper
interpretation of the Copyright Act, 63 of 1965. It appears that the
exceptions were raised against pleas filed by the respondents
and
that no evidence had as yet been led in the court below.
[59]
It is also noteworthy, in my view, that the court of appeal, after
upholding the appeal on the strength of the new exception
ground
raised, did not allow the appellant costs of the appeal.
[60]
In developing his argument further, counsel for the appellant also
referred us to Alexkor Ltd v The Richtersveld Community
[2003] ZACC 18
;
2004 5 SA 460
(CC) at 476F-477D. The issue was whether a litigant who had expressly
abandoned a legal contention in the court below, was entitled
to
revive the contention on appeal. The case originated as an
application in the Land Claims Court and ended up in the
Constitutional
Court. It appears that it was a legal point that was
revived.
In
allowing the litigant to revive the point originally abandoned, the
following
was
said by the Constitutional Court:
"The
rationale for this rule is that the duty of an appeal court is to
ascertain whether the lower court reached a correct
conclusion on the
case before it. To prevent the appeal court from considering a legal
contention abandoned in a court below might
prevent it from
performing this duty. This could lead to an intolerable situation, if
the appeal court were bound by a mistake
of law on the part of a
litigant. The result would be a confirmation of a decision that is
clearly wrong. As the court put it:
'If the contention the appellant
now seeks to revive is good, and the other two bad, it means that
this court, by refusing to investigate
it, would be upholding a wrong
order.' (Note: this is a reference to what was said in Paddock Motors
(Pty) ltd v Jgesund
1976 3 SA 16
(A) at 24F.) It is therefore open to
Alexcor and the government to raise in this court the legal
contention which they abandoned
in the SCA. However, they may only do
so if the contention is covered by the pleadings and the evidence and
if its consideration
involves no unfairness to the Richtersveld
community. (Note: this is a reference to Cole v Government of the
Union of South Africa
1910 AD 263
at 272-273.) The legal contention
must, in other words, raise no new factual issues. The rule is the
same as that which governs
the raising of a new point of law on
appeal. In terms of that rule 'it is open to a party to raise a new
point of law on appeal
for the first time if it involves no
unfairness ... and raises no new factual issues'." (Emphasis
added.)
[61]
The constitutional court held, at 477D-F. that the legal argument
sought to be revived, did not raise new factual issues and
its
consideration would not involve any unfairness to the Richtersveld
community which had been able to deal fully with this new
point.
Although
counsel for the appellant, correctly, quoted the whole passage in his
new heads of argument, he did not deal with the portion
which I have
emphasised. I will revert to this issue hereunder. I will refer to it
as "the Alexkor proviso".
(ii)
Jurisdiction in regard to
section 45
of the
Magistrates' Courts Act
[62
]
I already dealt with this issue earlier in this judgment, and before
we were approached by Mr Higgins to raise further arguments
in new
heads of argument.
[63]
In the new heads of argument, it does not appear as though the
submissions already dealt with were developed any further. The
main
thrust of the argument is that in consenting to the draft order on
the return date of the ex parte application, the respondent
had
"consented in writing" to the jurisdiction of the
Groblersdal court in the spirit of the provisions of
section 45
,
quoted above. For the reasons already mentioned. I repeat my
conclusion that the appellant had failed to prove such a "consent
in writing" as required by the section and the authorities
already dealt with.
[64]
I add that, given the wording of the Alexkor proviso, supra, it may
not. after all. be open to this court of appeal to entertain
this
argument based on
section 45
at all: in the spirit of the dictum of
the Constitutional Court, it should be observed that the new
contention is not covered by
the pleadings or the evidence and it is
fair to say that to raise it at this late stage may well lead to
prejudice or "unfairness"
to the respondent.
(iii)
Jurisdiction pertaining to
section 28(1
)(a) of the
Magistrates'
Courts Act
- the registered address of the respondent
[65]
It is convenient to again quote
section 28(1
)(a):
"Jurisdiction
in respect of persons - (1) Saving any other jurisdiction assigned to
a court by this Act or by any other law,
the persons in respect of
whom the court shall, subject to subsection (1A), have jurisdiction
shall be the following and no other
-
(a)
any person who resides, carries on business or is employed within the
district or regional division; ..."
[66]
I already pointed out. and this was repeated by Mr Higgins in his
new heads of argument, that "person" is defined
in section
2 of the Interpretation Act, 33 of 1957. to include "any company
incorporated or registered as such under any law".
See also Nel
v Road Accident Fund
2000 1 SA 931
(T)at935B-C.
[67]
Subsection (1A), referred to in the text of section 28(1), does not
apply to the present case.
[68]
Attached to the replying affidavit of the appellant in the ex parte
application, was a search print-out issued by the Companies
and
Intellectual Property Registration Office ("CIPRO") dated
27 February 2006 (shortly after the summons was issued)
reflecting
the registered address of the first respondent as "Marble
Wesstraat 24, Marble Hall". The "status date"
reflected on the print-out is 6 July 2001. which is probably the time
when the first respondent was incorporated under incorporation
no
2001/045626/23.
[69]
This replying affidavit is dated 6 March 2006. I referred, earlier in
this judgment, when dealing with certain allegations
made by the
second respondent with regard to the question of jurisdiction, that
he stated in his opposing affidavit to the ex parte
application,
where jurisdiction was attacked, that "Ek is tans woonagtig te
Simmetriestraat 258, Meyerspark, Pretoria en is
dit ook die
geregistreerde adres van die respondent."
[70]
I also, supra, quoted extensively from allegations made by the second
respondent in both the affidavit under discussion, and
the affidavit
resisting summary judgment, with regard to the question of
jurisdiction.
[71]
The allegation that the registered office of the first respondent was
in Marble Hall at the relevant time, was not pleaded.
The pleadings
are silent on the question of the registered office.
In
the evidence presented by the appellant before the learned
magistrate, no mention was made of the first respondent's registered
office. I have already pointed out that it was put to the witnesses
in cross-examination, on behalf of the respondents, that the
bakery
business of the respondents was closed down long before the summons
was issued, and the business was sold to Mr Van Vuuren
in 2004 or
2005. This was not disputed, as I pointed out, by the appellant's
witnesses during the trial. Indeed, the weight of
the evidence
suggests that the appellant was well aware of the fact that Van
Vuuren had taken over.
[72]
In his opposing heads of argument, Mr Strydom, on behalf of the
respondents, relied heavily on the Alexkor proviso. He pointed
out.
correctly, that the onus is on the appellant to prove that the court
has jurisdiction. He emphasised that the CIPRO print-out,
on which
the appellant now seeks to rely, was never placed before the trial
court. No effort was made to prove the correctness
or authenticity of
the document. The document did not feature at all. Counsel also,
correctly.
pointed
out that the pleadings are silent on the whole issue relating to the
registered address of the first respondent.
[73]
In dealing with the question of prejudice, in the spirit of the
Alexkor proviso, Mr Strydom makes the following submission
in his
heads of argument:
"Die
probleem wat die appellant hier in die gesig staar is dat die punt
wat hulle nou vir die eerste keer voor enige hof, rakende
die aksie
tussen die partye, wil bring nie gepleit of bewys is in die hof a quo
nie, Dit is onregverdig teenoor die respondente
in die sin dat die
appellant hier poog om 'n tweede kans te bekom om getuienis voor die
hof te kry wat nooit vir die hof a quo
se oorweging beskikbaar was
nie."
[74]
In my view, this submission is correct, and in line with the Alexkor
proviso. It follows, that the appellant ought not to be
allowed to
present this argument at this stage of the appeal proceedings.
[75]
In support of the appellant's argument that the Grobiersdal court has
jurisdiction to entertain the action, counsel for the
appellant
referred to the case of Bisonboard Lid v KBraun Woodworking Machinery
(Pty) Ltd
1991 1 SA 482
(AD). At 499C-F, the appeal court endorsed an
earlier decision by ELOFF, J, as he then was, in Dairy Board v John T
Rennie &
Co (Pty) Ltd
1976 3 SA 768
(W) that a South African
domestic company resides at the place of its registered address.
[76]
Bisonboard dealt with the question of jurisdiction in terms of
section 19(l)(a) of the Supreme Court Act 59 of 3959. On a general
reading of the judgment, it appears that it was not in dispute that
the registered address of the particular company was within
the area
of jurisdiction of the court concerned. The decision with regard to
the registered office vesting jurisdiction in the
court, was taken by
a majority of the appellate division.
In
coming to this conclusion, the learned judge of appeal said the
following at 499E-F:
"That
finding, by itself, does not conclude the appeal in favour of the
appellant. The enquiry 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) at
849H-850A."
In
Hugo v Wessels. at the passage quoted, the following is said:
"Die
tweede deel van die ondersoek het betrekking op die onderworpenheid
al dan nie van die verweerder aan die hof se regsmag;
die antwoord
daarop moet gesoek word aan die hand van die sogenaamde leerstuk van
doeltreffendheid of effektiwit.-1: die hof se
bevoegdheid om, indien
hy die regshulp wat die eiser aanvra sou toestaan, uitvoering aan sy
bevel te kan gee."
In
the present case, given the facts which are largely undisputed, it is
doubtful whether the Groblersdal court would have been
able to give
effect to any judgment it may have granted against the first
respondent. The ex parte attachment order, supra, evidently
had to do
with what was left of the bakery after Van Vuuren had also abandoned
it.
[77]
In the present case, as I have pointed out, the issue of where the
first respondent's registered office was at the relevant
time, was
not pleaded or canvassed in evidence. Given the weight of the
evidence that the business had already closed down in Marble
Hall a
year or two before the action was instituted, it is likely, and
indeed probable, that an allegation that the registered
office was
still in Marble Hall at the relevant time would have been hotly
contested in cross-examination. Indeed, in his earlier
affidavit,
supra, the second respondent said that the registered office was in
Meyerspark.
In
Dairy Board, it was also not in dispute that the registered office of
that particular company was within the jurisdiction of
the then
Witwatersrand local division.
[78]
In this respect, therefore, the two authorities relied upon by the
appellant are. in my view, distinguishable from the present
case,
where all indications are, on the weight of the evidence, that the
first respondent and the second respondent had left Marble
Hall years
before the trial commenced. In the spirit of the Alexkor proviso, it
would be unfair and prejudicial to the respondents,
to entertain the
appellant's late argument at this stage, without the issues having
been raised in the pleadings or in evidence.
The prejudice for the
respondents lies in the fact that they, under these circumstances,
neither had the opportunity to deal with
the allegation relating to
the registered office either in their pleadings or when
cross-examining the appellant's witnesses.
[79]
For all these reasons, I have come to the conclusion that the new
arguments raised by the appellant, fall to be rejected.
[80]
In the result, I am of the view that the appellant failed to
discharge the onus of proving that the Grobiersdal court had
jurisdiction to entertain the claim. There is consequently no basis
for interfering with the order made by the learned magistrate,
and
the appeal must fail.
The
order
[81]
I make the following order:
1.
The appeal is dismissed.
2.
The appellant is ordered to pay the costs.
W
R C PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
B
L MOLAMU
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
A676-2008
HEARD
ON: 12 MAY 2011
FOR
THE APPELLANT: H P HIGGINS
INSTRUCTED
BY: E Y STUART INC
FOR
THE RESPONDENTS: C P J STRYDOM
INSTRUCTED
BY: DU RANDT & LOUW INC