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[2023] ZAECMKHC 37
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Kamupungu v Road Accident Fund (1795/2020;1792/2021) [2023] ZAECMKHC 37; [2023] 3 All SA 176 (ECG); 2023 (4) SA 627 (ECM) (24 March 2023)
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FLYNOTES:
REMOVAL OF MATTER TO CIRCUIT COURT
CIVIL
PROCEDURE – Removal of proceedings – To another seat
of that Division – Convenience – Removal
sought from
Eastern Cape Division of the High Court in Makhanda to the East
London Circuit Court – Meaning of “a
seat of the
division” – Purpose of circuit courts – Court of
a division having authority to order the removal
of a civil matter
to a circuit court –
Superior Courts Act 10 of 2013
,
s
27(1)(b).
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, MAKHANDA)
REPORTABLE
Case no: 1795/2020
In
the matter between:
GILBERT
KAMUPUNGU
Applicant
AND
THE
ROAD ACCIDENT FUND
Respondent
Case no: 1792/2021
and
in the matter between:
SINESIPHO
LUKHANYO MADUBELA
Applicant
AND
THE
ROAD ACCIDENT FUND
Respondent
Coram:
D van Zyl DJP
,
T V Norman and V P Noncembu JJ
Heard:
2
December 2022
Delivered:
24 March 2023
JUDGMENT (FULL COURT)
D VAN ZYL DJP:
[1]
Two applications serve before this court. The primary question
for decision,
in both applications, is whether a circuit court is a
seat of a division of the High Court for purposes of section 27(1)(b)
of
the Superior Courts Act
[1]
(the Act). The applicants are applying for an order
transferring their actions for damages against the Road Accident
Fund
(the RAF) from the seat of the Eastern Cape Division of the High
Court in Makhanda, to the East London Circuit Court.
Section 27
of the Act gives the High Court the authority to order, upon
application by a party to civil proceedings before it,
that the
proceedings be removed from one division to another division, or from
one seat to another seat in the same division.
The section
reads as follows:
“
27
Removal of proceedings from one Division to
another or from one seat to another in same Division.
(1)
If any proceedings have been
instituted in a Division or at a seat of a Division, and it appears
to the court that such proceedings-
(a)
should have been instituted in
another Division or at another seat of the Division; or
(b)
would be more conveniently or
more appropriately heard or determined-
(i)
at another seat of that Division; or
(ii)
by another Division.
that court may upon
application by any party thereto and after hearing all other parties
thereto, order such proceedings to be removed
to that other Division
or seat, as the case may be.”
[2]
The applications are based on sub-paragraph (b) in that it is
contended by the applicants
that it would be convenient and
cost-effective to remove the proceedings from this court to the East
London Circuit Court.
According to the interpretation given to
a similar provision in the Supreme Court Act, 1959 (the Supreme Court
Act)
[2]
and the Interim
Rationalisation of Jurisdiction of the High Courts Act (the Interim
Rationalisation Act),
[3]
which
must logically also apply to section 27(1)(b), this section deals
with the situation “
where
the transferring court has jurisdiction to determine the main
dispute. Yet it is asked to transfer the matter to the
transferee court for the sake of convenience and it matters not
whether the transferee court has original jurisdiction to determine
the main dispute.”
[4]
Section 27(1)(a) on the other hand deals with the situation where the
proceedings should have been instituted in the transferee
court, with
the result that it is that court that must have original
jurisdiction, and not the transferring court.
[5]
The crisp issue raised by the applications before us is whether
section 27(1)(b) gives the High Court the discretionary power
to
order the transfer of civil proceedings from a seat of the division
to a circuit court of that division for reasons of convenience,
and
if so, whether this Court must, on the facts placed before it, and in
the exercise of its discretion, order the transfer of
the applicants’
actions against the RAF to the East London Circuit Court.
[3]
The jurisdiction
[6]
of the court
to order the removal of proceedings from one court to another is
based on statute
[7]
. In
Voko
v The Road Accident Fund
[8]
(Voko) this Court, sitting as a single judge, dealt with an
application in terms of section 27(1)(b) of the Act, and found that
it must be accepted that the repeal of the Supreme Court Act, by the
legislature and in crafting the provisions in the Act relating
to
circuit courts differently to those which previously existed, it was
done so intentionally. The differences in the relevant
sections
of the two pieces of legislation referred to by the Court are that a
circuit district as envisaged in the Supreme Court
Act is now called
a circuit court of the division in question, and the deeming
provision in the repealed Supreme Court Act that
resulted in a
circuit court for the district being regarded as a local division, is
now not part of the Act. It held
that on a reading of
section 27(1)(b) of the Act, the power of a court to transfer civil
proceedings is restricted to the removal
of such proceedings to
“
another
seat”
of a division and that a seat is a seat of a division as established
by the cabinet member responsible for the administration of
justice
(the Minister)
[9]
in terms of
section 6(3)(c) of the Act. In the result, this Court concluded
that because the East London Circuit Court was
not established in
terms of section 6(3)(a), it is not a seat of the Eastern Cape
Division, and accordingly it lacked the authority
to transfer civil
proceedings to that court.
[4]
Consequent upon the decision in Voko, the Judge President, acting in
terms of Section
(4)(1)(b) of the Act, referred the present two
applications for hearing to the Full Court. The RAF elected not
to oppose
the applications. At the outset, I wish to extend our
gratitude to counsel for the applicants and the two
amici curiae
nominated by the Society of Advocates at the request of the Court for
their valuable assistance in deciding the issues raised.
[5]
The primary question for decision is one of interpretation. It
essentially requires
a determination of the meaning and effect of the
words “
at another seat of that Division”
in
section 27(1)(b) of the Act. A seat is not defined in the Act.
Simply put, the question is whether a seat of the division
must be
confined to a main or local seat as established for a division by the
Minister in terms of section 6(3)(a) of the
Act, or whether it
must be given the wider meaning of the statutorily determined
location where a court of a division exercises
the jurisdiction of
that division as determined by the Act. It was submitted by
both counsel for the applicants and the
amici curiae
that the
latter interpretation is more consistent with the ordinary
grammatical meaning of the word “
seat”
, the
context in which it is used, and the purpose of section 27 of the
Act.
[6]
What the proper approach to the interpretation of a statute or any
other document
is, was dealt with by the Supreme Court of Appeal in
Natal
Joint Municipal Pension Fund v Endumeni Municipality (Endumeni)
,
[10]
and received the approval of the Constitutional Court in
Cool
Ideas 1186 CC v Hubbard
.
[11]
Aptly described as a “
unitary
endeavour”
in
Betterbridge
(Pty) Ltd v Mosilo
,
[12]
it is the process of attributing meaning to the words used in the
legislation by giving consideration to the “
nature
of the document, …
the
language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears, the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one meaning
is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A
sensible meaning is to be preferred to one that leads to insensible
or unbussinesslike results or undermine the apparent purpose
of the
document.”
[13]
This approach accords with the second of the two approaches mentioned
by Schneiner JA in
Jaga
v Dönges NO and Another; Bhana v Dönges NO and Another
(Jaga
),
[14]
namely that from the outset one considers the context and the
language together, and not the one after the other. Of further
importance, particularly so in the context of the present matter, is
the point emphasised by Schreiner JA in Jaga that “
the
context”
is not limited “
to
the language of the rest of the statute regarded as throwing light of
a dictionary kind on the part to be interpreted.
Often of more
importance is the subject matter of the statute, its apparent scope
and purpose, and, within limits, its background.”
[15]
[7]
The interpretation suggested by counsel is in my view the preferred
meaning to be
attributed to the words “
at
another seat of that Division”
in section 27, as opposed to it being given a meaning that is
primarily focused on the drawing of a distinction between a seat
of
the Division and a circuit court as envisaged in sections 6 and 7 of
the Act. The words used in the section are grammatically
capable of
the wider meaning that counsel argued it should be given. It is a
construction that accords more with the present structure
of the High
Court; the purpose of circuit courts; the purpose of section 27; its
background; and the constitutional imperative
that “
all
courts, including their structure composition, functioning and
jurisdiction, and all relevant legislation, must be rationalised
with
a view to establishing a judicial system suited to the requirements
of the new Constitution.”
[16]
[8]
What follows are my reasons for reaching this conclusion. The
court in Voko
considered the legislative framework that deals with
the establishment of the divisions of the High Court,
[17]
the main and local seats of a division and the circuit courts, and
the legislation that preceded the present dispensation.
The
history of the structure of the High Court is therefore a good
starting point. Before 1994, the judicial authority of
the
Republic was vested in a supreme court known as the Supreme Court of
South Africa. It consisted of an Appellate Division
and such
provincial and local divisions as may be prescribed by law.
[18]
In terms of the Supreme Court Act the provincial and local divisions
each had a defined territorial area of jurisdiction
and a seat.
[19]
There were in addition, three permanent local divisions each with a
seat and its own territorial area of jurisdiction placed
within the
jurisdictional area of a provincial division.
[20]
The provincial divisions exercised concurrent jurisdiction in the
areas of jurisdiction of the local divisions.
[21]
[9]
Circuit courts were dealt with in section 7 of the Supreme Court
Act. It gave
authority to the Judge President to divide the
area of jurisdiction of such division into circuit districts, or
alter the boundaries
of such districts from time to time. A
court, which was to be presided over by a judge of the division, in
which the district
was situated, was to be held at least twice a
year. Such a court was known as a circuit local division, and
importantly,
was “
for all purposes deemed to be a
local division.”
[10]
Acting in terms of section 7(3) of the now repealed Supreme Court
Act, the Judge President of
the then Eastern Cape Division of the
Supreme Court in 1988 divided the area of jurisdiction of the
division into a number of circuit
districts.
[22]
This included the East London Circuit District with its territorial
area confined to the magisterial district of East London.
The
Chief Justice subsequently issued court rules which
inter
alia
serve to regulate the issue of process in a circuit court, and making
the Uniform Rules of Court, “
in
so far as they are appropriate and can be applied
mutatis
mutandis
”
applicable to civil proceedings before any circuit court. The
seat of the circuit court is defined in the Rules as “
any
place determined in terms of section 7(2)”
of the Supreme Court Act. These rules survived the repeal of
the Supreme Court Act owing to the transitional provisions in
section
51 of the Act.
[11]
In accordance with section 7(3) of the Supreme Court Act, the circuit
district for East London
was known as the East London Local Circuit
Division with its seat in East London. Its continued existence
post the Constitution
and the repeal of the Supreme Court Act by the
Act was ensured by the transitional provisions in Schedule 6 to the
Constitution,
and in section 50(3) of the Act. The latter
section provides that any circuit court in existence at the time of
the coming
into operation of the Act “
shall be deemed to
have been duly established in terms of this Act as a Circuit Court of
the Division concerned.”
This subsequently
necessitated the renaming of the East London Local Circuit Division
to the East London Circuit Court.
[12]
The starting point under the new dispensation is the Constitution.
It provides for a single
High Court of South Africa.
[23]
The structure of the Superior Courts is dealt with in Chapter 8 of
the Constitution. Section 169 provides that the High Court
shall
consist of such divisions that are to be established by an Act of
parliament, “
with
one or more seats in a Division,”
[24]
and
a Division and its seats must be assigned a territorial area of
jurisdictions.
[25]
Following a
number of amendments to the Supreme Court Act over the years and the
introduction of the Interim Rationalisation Act,
the Act was finally
assented to in August 2013. As stated in Nedbank v Norris,
[26]
the Act marked “
a
significant step in the reorganisation and renationalisation of
Superior courts in the post-1994 constitutional democratic order,
“
and
was of “
particular
moment to the Eastern Cape since, prior to the enactment of the
Superior Courts Act, the
superior courts in the province
exhibited all of the characteristics of a fragmented structure
and jurisdiction.”
[27]
In compliance with the Constitution, the Act repealed the Supreme
Court Act, and in section 6(1), established a division for each
of
the nine provinces with a main seat in each division.
[13]
Section 6(3)(c) of the Act gives the Minister the power, after
consultation with the Judicial
Service Commission, “
to
establish one or more local seats for a Division, in addition to the
main seats referred to in subsection (1), and determine
the area
under the jurisdiction of such a local seat,”
In
terms of section 50(1) of the Act, and at its commencement, the High
Court of Makhanda became the main seat of the Eastern Cape
Division,
and the High Courts of Bhisho, Mthatha and Gqeberha became local
seats of the Eastern Cape Division.
[28]
The area of jurisdiction of each of those courts became the area of
jurisdiction or part of the area of jurisdiction of the
Division.
Section 50 must be read with section 21(1), which provides that a
division has jurisdiction over all persons residing
or being in, and
in relation to all causes arising or offences triable, within its
area of jurisdiction. In
Thembani
Wholesalers v September,
[29]
this Court held that the territorial area of the main seat
encompasses the whole of the area of jurisdiction of the Eastern Cape
Division; and that the local seats have concurrent jurisdiction over
smaller areas than that enjoyed by the main seat.
[14]
Like the Supreme Court Act, the Act provides for the creation of
circuit courts. A circuit
court is established in terms of
section 7 of the Act.
[30]
For the most part, the wording of the section is similar to that of
Section 7 of the Supreme Court Act. Subsection
(1) gives the
Judge President of a division the power to, by notice in the gazette,
establish circuit districts within the area
of jurisdiction of that
division for the adjudication of civil and criminal matters. In
terms of subsection (2) “
a
circuit “court”, which must be presided over by a judge
of that Division,”
must sit in each circuit district at least twice a year at such times
and places as may be determined by the Judge President of
that
division. Subsection (3) provides that a court referred to in
the section will be called a circuit court of the division
in
question. Subsection (3) presents a departure from its
equivalent in section 7(3) of the Supreme Court Act, in that a
court
sitting as a circuit district is no longer known as a circuit local
division and deemed to be a local division. It
is now simply
called a “
circuit
court of the Division in question.”
In paragraph 16, I deal with the reason for the change in the wording
of the section.
[15]
In
Mhlongo
and Others v Mokoena N O and Others (Mhlongo),
[31]
the Supreme Court of Appeal had the opportunity to deal with section
7 of the Act. It made two findings. The first
is that the
authority of a Judge President to establish circuit districts is
circumscribed by the section, and he cannot exercise
more power than
that given to him by the section. The second finding relates to
the status of circuit districts. The
court found that circuit
districts are not self-standing divisions of the High Court.
The result, in the context of the issues
raised in
Mhlongo
,
is that the division retains its territorial jurisdiction over the
whole of the area determined by the Minister in terms of section
6(3)
of the Act, inclusive of the area, which the Judge President
determined to be the boundaries of the circuit district in question.
It is accordingly not open to a court of the division to decline to
hear matters in respect of which it has concurrent jurisdiction
with
a circuit court.
[16]
The nature of the court structure created by the Constitution and the
Act, removed any significance that may be attached to
the differences
in the wording of section 7(3) of the Act and the Supreme Court Act.
The existence of the deeming provision
in section 7(3) of the Supreme
Court Act must be seen in the context of the fact that the repealed
Supreme Court consisted of provincial
and local divisions, each with
its own seat. The distinction between provincial and local divisions
was reflected in the provisions
of the Supreme Court Act. The
equivalent provision to section 27 that made provision for the
removal of proceedings, was
section 9 of the Supreme Court Act.
[32]
In line with the structure of the Supreme Court, it restricted the
authority of a court to order the removal of proceedings
which were
“
instituted
in any provincial or local division
”
to another “
division
”.
As a circuit court is not a division or local division, the deeming
provision enabled the transfer of a matter to
a circuit court, or
from a circuit court to another division within the province, and to
another division in another province.
[17]
It is evident from the court structure envisaged in the Constitution,
and given effect to by
the Act, that the erstwhile distinction
between a “
provincial”
and a “
local”
division is done away with. A “
division”
consists
of the Judge President, one or more Deputy Judges President and so
many other judges as may be determined by the President
of the
Republic, each with headquarters within the area of jurisdiction of
the division.
[33]
In
terms of section 14 of the Act, a “
court
of the Division”
must
be constituted before a single judge when sitting as a court of first
instance for the hearing of any civil matter.
[34]
For the hearing of a criminal matter as a court of first instance, a
court of the division must be constituted in the manner
prescribed in
the applicable law relating to procedure in criminal matters.
[35]
[18]
A court sitting at a location in a circuit district as established in
the manner provided in
section 7 of the Act, is presided over by a
judge of the division in which the circuit district is situated.
[36]
Subject to the limitation in relation to territory and the matters it
may or may not hear, a court sitting as a circuit court
in a circuit
district at a location determined by the Judge President, is a court
of similar status to any of the other courts
of the division, and
cannot be anything other than a “
court
of the Division”
as envisaged in the Act. As correctly stated in
Nedbank
v Norris
,
the effect of the court structure created by the Act “
is
to create a single unitary division in which … the courts of
the division exercise the jurisdiction of the division, subject
only
to territorial limitation based on their location at a seat of the
division.”
[37]
In
Murray
NNO and Others v African Global Holdings (Pty) Ltd and Others
[38]
the Supreme Court of Appeal also emphasised, with reference to
the seats of the division, that: “
They
are not separate courts and it is no longer appropriate to refer to
them as such or to describe them as local divisions.”
[39]
[19]
A seat referred to in section 6 is therefore not a separate court of
the division. In the
scheme of the Act the creation of a seat
of the division in section 6, and a circuit district in section 7,
primarily serves to
determine the location where the courts of the
division as contemplated in the Act must sit to entertain civil or
criminal proceedings,
and the jurisdiction of such a court when
sitting at that location. In my view, there exists no logical
reason to distinguish
between a court of a division sitting at one of
the seats determined by the Minister in section 6, and a court of a
circuit district
sitting at a location determined in terms of section
7 by the Judge President, a function delegated to him as a person who
is better
placed to determine the location where there is a need for
a court of the division to sit occasionally at a place away from its
principal seats. As is evident from the decision in
Mhlongo,
circuit courts are an integral part of the court structure created by
the Act. It is a conclusion that is consistent with the
constitutional imperative that the court structure “
must
be rationalised with a view to establishing a judicial system suited
to the requirements of the Constitution.
”
[40]
The court structure envisaged in the legislative framework gives
effect to the right of access to justice in Section 34
[41]
of the Bill of Rights by making the courts more accessible to the
people who reside in the division. It is achieved by creating,
in
addition to a main seat, a number of local seats and circuit courts
at locations in a division that reduces travel and costs
by bringing
the courts of the division closer to the people.
[20]
The notion that proceedings may be transferred
from one court to another, based on considerations of convenience
of
the parties, is consistent with
the
primary
purpose of circuit courts of settling disputes at locations that are
conveniently proximate to the litigants. The practice of judges
of
superior courts travelling from one venue to another to hear cases
away from the permanent seat of the court is based in legislation
and
has a long history. Circuit courts were first established in
1811 by proclamation in what was then known as the Cape
Colony.
This was later replaced by circuit courts established under the First
Charter of Justice in 1827, a provision that
was repeated in later
legislation.
[42]
Menzies
J explained the purpose of the introduction of circuit courts as
follows: “
To
bring the administration of criminal and civil justice by superior
tribunals of the colony as near to the residences of the inhabitants
as the extent and circumstance of the colony would permit; and that
it was considered that the institution of the circuit courts
was
highly expedient, as it would necessarily give a very great part of
the population an opportunity of witnessing the administration
of
justice by the superior tribunals which they could not possibly
otherwise have had; and that a knowledge of the rules and principles
in which civil and criminal jurisdiction was administered by Great
Britain, would thus be generally communicated to the great benefit
and advantage of the colony; and also that a closer and more
effectual check over the inferior tribunals would thus be kept up
than could otherwise be had, besides the advantage the inferior
judges themselves would obtain by witnessing the proceedings of
the
circuit courts.”
[21]
The removal of proceedings in terms of section 27(1)(b) from a main
seat or a local seat to what
is the seat of a circuit court, serves
to facilitate the purpose of circuit courts of bringing the courts
nearer to the people.
A narrow construction of the language used in
the section would not promote the purpose of both the section itself,
and or that
of section 7, including the entrenched right in section
34 of the Constitution. Instead, a construction that is reasonably
available
and would promote the more effective attainment of the
purpose of these provisions must be preferred to an interpretation
that
would otherwise hamper its realisation.
[43]
[22]
Another consideration is that a narrow interpretation of the words “
a
seat of the division”
is problematic in the context of the rest of section 27. It is
unavoidable that any interpretation given to those words in
sub-paragraph
(1)(b) must also find application to the rest of the
section. If that is done, it leads to an anomalous result. To explain
this,
it is necessary to look at what the purpose of sub-paragraph
1(a) is. Sub-paragraph (1)(a) resembles the wording in sections
3(1)(a)
of the now repealed Interim Rationalisation Act.
[44]
In
Road
Accident Fund v Rampukar
[45]
(Rampukar)
the Supreme Court of Appeal found that it was intended to come to the
assistance of a litigant who mistakenly institutes civil
proceedings
in the incorrect court (the transferring court) by granting that
court the discretion to come to his aid and order
the removal of the
proceedings to the correct court (the transferee court). The most
obvious purpose of the section, the court
said, was to deal with the
situation where the court in which the proceedings were instituted
lacked jurisdiction to determine
the dispute between the parties.
[46]
[23]
The introduction of sub-paragraph 1(a) in section 3 of the Interim
Rationalisation Act and its
equivalent in section 27(1)(a) of the Act
was intended to address the situation created by the finding in
several court decisions
that where a court lacked jurisdiction to
determine the dispute raised by the proceedings before it, it also
did not have the jurisdiction,
in the sense of authority or
competence, to transfer the matter to another division or court that
has jurisdiction to deal with
the matter.
[47]
This meant that the proceedings had to be started afresh in the
division having jurisdiction. This had serious implications for
a
plaintiff in that the proceedings instituted in the wrong Court would
not have served to interrupt prescription. Section 27(1)(a)
now
affords the transferring court the limited jurisdiction which it
otherwise would not have had to transfer a matter to the court
that
has jurisdiction to determine it.
[48]
In
Ngqula
v South African Airways (Pty) Ltd
[49]
the Supreme Court of Appeal left the question open whether it must
follow that a defendant who is deprived of the right to object
to the
court’s jurisdiction by the application of sub-paragraph 1(a),
can as a result also not complain about the loss of
any other
advantage that he may otherwise have obtained by the fact that the
proceedings were instituted in the wrong court, such
as a plea of
prescription. However, in
Food
and Allied Workers Union obo Gaoshubelwe v Pieman’s Pantry
(Pty) Ltd
[50]
the Constitutional Court appears to have accepted, as a general
proposition, that prescription is interrupted by the launching
of
proceedings in the wrong forum. The Court, with apparent approval,
referred to
Kruger
v Minster of Health and Others
[51]
where the following was said; “
The
continuation of applicant’s action is governed by the rules
which provide for transfer of a matter from one court to the
other.
It is my view that the institution of proceedings in a court with or
without jurisdiction does interrupt prescription.”
[24]
If a court of a division sitting at the seat of a circuit district is
found not to be a seat
of that division, it would create the anomaly
that proceedings which were wrongly instituted in a circuit district
would, as a
result, not be proceedings instituted “
at a seat
of a division”
that can be removed to another seat of the
same division as envisaged by section 27(1)(a). This, as counsel
correctly in my view
pointed out, would defeat the purpose of
sub-paragraph 1(a) and the intention of the legislature to come to
the assistance of those
litigants who had chosen the wrong court, and
who subsequently seek a transfer of a matter to another seat in a
division that has
jurisdiction to entertain the dispute.
[25]
What is evident from the case law is that the authority of a court of
a division to transfer
civil proceedings to and from the circuit
court has existed for well over a century.
[52]
Where the emphasis post 1994 has been on making justice accessible to
everyone, there simply exists no logical reason for taking
away the
authority of a court of a division to order the removal of a civil
matter to a circuit court for reasons of the convenience
of the
parties. Having regard to the apparent purpose of section 27, and the
context in which it appears in the Act, a meaning
that is available
on the language used that is less restrictive is to be preferred to
one that may otherwise lead to “
impractical,
unbusinesslike or oppressive consequences or that will stultify the
broader operation of the legislation.”
[53]
[26]
That then leaves the question whether an order must be granted for
the removal of the applicant’s
actions to the East London
Circuit Court. Section 27(1)(b) requires the applicants to show
that their actions “
would
be more conveniently or more appropriately”
heard by that court. The party who brings the application has the
burden of proving that the matter would be more conveniently
and
appropriately determined elsewhere.
[54]
As mentioned earlier, the court is asked to exercise a discretionary
power. It is a discretion that must be exercised
upon a
consideration of the facts placed before the court from which it
appears that removal would be convenient or appropriate.
“
The
court must exercise the right of removal founded upon certain facts
in which the parties to the suit
[are]
interested
and not solely
suo
arbitrio,
however justly followed.”
[55]
[27]
In reaching a decision, the relevant factors the court will consider
are the balance of convenience
of both parties, the convenience of
the court, and the general disposal of the court business.
[56]
These factors are informed by considerations such as that: the
parties and their witnesses are resident at the seat of the
transferee court;
[57]
hearing
a matter at the proposed venue may result in a saving of expenses and
legal costs;
[58]
the
possibility exists that an inspection
in
loco
will be held at the place of the seat of the transferee court;
[59]
or that “
the
issue is a small one; and the parties are not wealthy.”
[60]
[28]
Applications for removal of a civil matter have been refused in
circumstances “
where,
from the nature and circumstances of the question at issue, it
appeared desirable to have the matter tried at the earliest
opportunity; where the applicant failed to show special grounds for
removal; where there was a strong suspicion that the application
was
made for the purpose of delaying the action so as to defeat the
enforcement of the claim; where, even though a great many witnesses
resided at the circuit town, a question of law was involved.
The court has also refused an application for removal to circuit
where it was made so late that the other party would not have had
sufficient time to prepare his case before circuit opened; and
where
it was uncertain whether a circuit and, if it was, when the court
would sit.”
[61]
[29]
The factual basis for the two applications in the present matter,
which is very much lacking
in any detail, is that: the firm of
attorneys who is representing both the applicants has its office in
East London; prosecuting
their claims in Makhanda would result in the
applicants having to incur additional costs by the employment of
correspondent attorneys
and by the filing of court process at a
location other than where their attorney is based; an orthopaedic
surgeon who has his practice
in East London has been instructed by
the applicants to file an expert witness report; and the head office
of the RAF is situated
in East London that would result in it
similarly benefitting from a saving of costs and expenses should the
actions be tried in
East London.
[30]
The applicants failed to deal with and provide any information with
regard to the waiting trial
list and the disposal of cases at the
East London Circuit Court. On the limited factual information
provided, there are a
number of considerations that militate against
the removal of the actions from this Court on the sole basis of
convenience.
The first is that the pleadings have not closed.
In fact, at the date of the launching of the present proceedings the
RAF
had not yet entered an appearance to defend. It is
generally undesirable to grant an order for the removal of a case to
another
court before the close of pleadings. The reason lies in
the fact that it is not clear what the nature and the extent of the
issues are that the trial court will ultimately be asked to
determine, and a compromise may be reached once the pleadings are
closed
.
“In my view it is generally undesirable to do so prior to the
closure of pleadings. In the present case, for
instance, there
may well be a payment into Court which in turn may be accepted –
thus terminating the litigation. Again
it may appear, after
pleadings have been closed, that there is no dispute in regard to the
medical issues. Such considerations
are compelling reasons why
removal to a Division, which would not ordinarily be vested with
jurisdiction in a particular action,
should not be prematurely
granted.”
[62]
[31]
The issues may be of a legal or a factual nature, or a combination
thereof. It is a consideration
that is more accentuated by the
fact that in the majority of claims against the RAF the claims become
settled which would eliminate
the need for witnesses to travel to
Makhanda. Except possibly for the orthopaedic surgeon in
respect of whom the applicants
have apparently gone no further than
to instruct to provide them with an expert evidence report, it is as
a result not possible
to determine with any measure of certainty who
the other witnesses may be that would be required to testify at the
trial, and importantly,
where those witnesses would be located.
Save for stating that the RAF has its head office in East London, a
statement that
is in itself factually incorrect, as it is common
knowledge that the office in East London is a regional office where
claims are
lodged and some are handled, it is not possible for the
applicants at this early stage to state anything that would not
amount
to mere speculation with regard to the number and location of
any witnesses which they or the RAF may elect to call to testify at
the trial.
[32]
The applications for a transfer are therefore premature. It is
consequently not possible
to make a determination of the convenience
that a transfer of the actions may hold for either party, bearing in
mind that a transfer
should not be granted if the result is merely to
shift the inconvenience from one party to another.
[63]
A second consideration that militates against a transfer of the
actions is that a party’s choice of legal representative
is not
a factor that is ordinarily relevant to the exercise of the Court’s
discretion. On the few facts placed before
this Court the
inescapable conclusion is that the applications are primarily
motivated by the fact that the firm of attorneys whom
the applicants
have instructed to represent them, has its practice in East London.
The applicants are not resident in East
London. The one
applicant, Mr Kamupungu, resides at T[...] in the district of
Elliott, and the other, Mr Madubela, at C[...]
A[...] area in
Peddie. These are areas which are not in close proximity to
East London at all.
[33]
Further, the motor vehicle collisions which gave rise to the
applicants claims for damages occurred
in the areas where the
applicants reside. It is as a result more likely than not that the
two applicants and those witnesses, if
any, who would be required to
testify with regard to the issue of liability, will ultimately have
to travel to the court where
their actions would be tried. It
begs the question why the applicants have chosen to employ an
attorney that is not based
at the court where they have elected to
institute their actions. A final consideration is that it is
not the applicants’
contention that they were constrained by
considerations relating to the territorial jurisdiction of this Court
to launch the proceedings
in Makhanda. The locations where the
collision are alleged to have occurred on the contrary raises the
suspicion that the
actions could also have been instituted at another
seat(s) of the division that may be more proximate to where the
applicants and
their witnesses reside, and where the actions can more
conveniently be tried.
[64]
These are matters that should have been dealt with fully by the
applicants in their applications. Their failure to
do so makes
it impossible to determine where the convenience lies.
[34]
In all the circumstances, I am not satisfied that the requirements of
section 27(1)(b) of the
Act have been met, and the applications for
the removal of the two actions to the East London Circuit Court must
accordingly be
refused. There will be no order as to costs.
D VAN ZYL
DEPUTY JUDGE PRESIDENT
OF THE HIGH COURT
I agree:
T V NORMAN
JUDGE OF THE HIGH
COURT
I agree:
V P NONCEMBU
JUDGE OF THE HIGH
COURT
Appearances:
For
Applicants:
ADV
K WATT
Instructed
by:
MATYESHANA
TOWNLEY INC
C/O
WHITESIDES ATTORNEYS
53
African Street
Makhanda
Amici
Curiae:
ADV A
BEYLEVELD SC
ADV V
MADOKWE
[1]
Act
10 of 2013.
[2]
Act
59 of 1959.
[3]
At
41 of 2001.
[4]
Brand
JA in Road Accident Fund v Rampukar
2008 (2) SA 534
(SCA) at para
[11]. See also Veneta Mineraria Spa v Carolina Collieries
(Pty) Ltd (In Liquidation)
1987 (4) SA 883
(A) at 888 A – B.
[5]
Ibid.
[6]
The
word “
jurisdiction”
is used here in the sense of the power or competence of the court to
entertain proceedings and not the limitations placed thereon
by the
original jurisdiction of the court in the territorial sense of the
word. “
Jurisdiction
means the power or competence of a Court to hear and determine an
issue between parties, and limitations may be put
upon such power in
relation to territory, subject matter, amount in dispute, parties
etc.”
Watermeyer
CJ in Graaf Reinet Municipality v van Ryneveld’s Pass
Irrigation Board
1950 (2) SA 420
(A) at 424.
[7]
See
Ying
Woon and Another v Secretary for Transport and Others (Ying Woon)
[1964] (1) SA 103 (N).
[8]
(06/2022)
[2022] ZAECGHC 33.
[9]
The
Minister of Justice and Correctional Services.
[10]
2012
(4) SA 593
(SCA) at para [18].
[11]
2014
(4) SA 474
(CC) at para [28]. See Also
Municipal
Employees Pension Fund and Others v Natal Joint Pension Fund
(2017)
ZACC 43.
[12]
2015
(2) SA 396
(GP) at para [8].
[13]
Endumeni
supra
fn 10 at para [18].
[14]
1950
(4) SA 653
(A) at 662 G – 663 A.
[15]
At
662 G-H.
[16]
Paragraph
16(6)(a) of Schedule 6 to the Constitution.
[17]
The
history of what is now the Eastern Cape Division of the High Court,
and the status of the seats created by the Act is extensively
dealt
with in
Thembani
Wholesalers v September
2014 (5) SA 51
(ECG).
[18]
Section
94(1) of the Republic of South Africa Constitution Act, Act 32 of
1961.
[19]
Section
2 of the Supreme Court Act.
[20]
The
First Schedule to the Supreme Court Act.
[21]
Section
6(2) of the Supreme Court Act.
[22]
Notice
No 48 of 1988 published in Government Gazette No 11096 dated 15
January 1988.
[23]
Section
166 of the Constitution. The hierarchal structure of the
courts of the Republic is listed as:
“
(a)
the Constitutional Court:
(b)
the Supreme Court of Appeal;
(c)
the High Courts including any high court of appeal that may be
established by an Act of Parliament to hear appeals from High
Courts;
(d)
the Magistrates’ Courts; and
(e)
any other court established or recognised in terms of an Act of
Parliament, including any court of a status similar
to either the
High Courts or the Magistrates’ Courts.”
[24]
Section
169(2) (a).
[25]
Section
169 (2)(b).
[26]
2016
(3) SA 568 (ECP).
[27]
At
paras [11] and [12].
[28]
Section
50(1)(a) to (d) read with subsection (2).
[29]
Supra
fn 17 at para [10]. See also
Standard
Bank of SA Ltd and Others v Thobejane and Others; Standard Bank of
SA Ltd v Gqirana NO and Another
2021 (6) SA 403
(SCA) at para [33].
[30]
It
reads as follows:
“
7.
Circuit Courts
(1) The Judge
President of a Division may by notice in the Gazette within the area
under the jurisdiction of that Division
establish circuit districts
for the adjudication of civil or criminal matters, and may by like
notice alter the boundaries on
any district.
(2) In each
circuit district of a Division there must be held, at least twice a
year and at such times and places as may
be determined by the Judge
President concerned, a court which must be presided over by the
Judge of that Division.
(3) A court
referred to in subsection (2) is called a circuit court of the
Division in question.”
[31]
Case
no 723/2020 [2022] ZASCA 78.
[32]
The
relevant part is sub-section (1). It reads:
“
9
Removal of proceedings from the division to
another
(1)
If any civil cause, proceeding or matter has
been instituted in an provincial or local division, and it is made
to appear to the
court concerned that the same may be more
convenient or more fitly heard or determined in another division,
that court may, upon
application by any party thereto and after
hearing all other parties thereto, order such cause, proceedings or
matter to be removed
to that other division.”
[33]
Section
6(2).
[34]
Section
14(1)(a).
[35]
Section
14(2).
[36]
Section
7 (2) of the Act.
[37]
Supra
fn
27 at para [15].
[38]
2020
(2) SA 93 (SCA).
[39]
At
para [18].
[40]
Paragraph
16(6)(a) of Schedule 6 to the Constitution. See also section 2(1) of
the Act.
[41]
“
Access
to courts
34.
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”.
[42]
See
Erasmus, HJ. Circuit Courts in the Cape Colony during the Nineteenth
Century: Hazards and achievements Fundamina (Pretoria)
Unisa
Press [online] 2013 vol.19, n.2. See Ying Woon
supra
fn
3 at 106 C-E.
[43]
Neethling
v Klopper en Andere
1967(4)
SA 459 (A) at 464H.
[44]
It read:
Transfer
of proceedings from one High Court to another
3.
(1) If any civil proceedings have been instituted in any High Court,
and it appears to the Court concerned that such proceedings
-
(a) should have been instituted in another High Court; or 15
(b)
would be more conveniently or more appropriately heard or determined
in the Court may, upon application by any party thereto
and after
hearing all other pades thereto, order such proceedings to be
removed to that other High Court
.
[45]
Rampukar
supra fn 4 at para [10].
[46]
Ibid.
[47]
See
Rampukar
supra
fn 4 at para [8];
Ying
Woon
supra
fn 7 at 108 c –I and
Welgemoed
and Another, NNO v The Master and Another
1976 (1) SA 513
(T) at 523A-D
[48]
Rampukar
fn
4 at paras [10] and [11]. See also Harms Civil Procedure in
the Supreme Court at page A – 35.
[49]
2013(1)
SA 155 (SCA) at para18.
[50]
2018 (5) BCLR 527
(CC).
[51]
[2016]
ZAFSHC 179.
[52]
See for example
Rothman
v Woodrow & Co
1884 (4) ECD 32;
Sapiero
v Lipschitz and Tooch
(1909) 26 SC 493
at 495;
Morgan
v Eskine
1913 EDL 94
;
Raubenheimer
v Smith
18 EDC 476
;
Swanepoel
v De Klerk
1911 CPD 508
;
Jiran
v African Canning & Packing Corp Ltd
10 PH F44; cf
Waberski
v Waberski
1912 EDL 186
;
Swallow
v Swallow
1947 (3) SA 3
(C); and
Radloff
and Another v Union South West Africa Insurance Co Ltd
1972 (4) SA 634
(E). See further Cilliers Loots and Nel op cit
at page 171-172.
[53]
Endumeni
supra
fn
10 at para 26.
[54]
Swallow
v Swallow
1947
(3) SA 3
(C) at 5 and
Mekula
v Road Accident Fund
[2017] ZAECGHC 118 at para [12].
[55]
Johnston
v Byrne & Lamport
(1852)
1 Searle 157
at 160.
[56]
Walters
Brick Industries Ltd v Henkes
1938 WLD 4
;
Thompson
v Thompson
1946 NPD 601
;
Smith
v Wilson
&
Another
1949 (3) SA 537
(D);
Ying
Woon
supra fn 7 at 111
;
Mulder
and Another v Beacon Island Shareblock Ltd
1999 (2) SA 274
(C) at para [19] and Nongovu NO v Road Accident Fund
2007 (1) SA 59
(T) at para [31].
[57]
Morgan
v Eskine
1913
EDC 94
;
Jiran
v African gaming & Packing Corporation
Ltd (1927) 10 PH F44 (E);
Waberski
v Waberski
:
1912 EDC 186
and
Swallow
v Swallow supra
fn .
[58]
Morgan
v Erskine
supra
fn 57.
[59]
Jenkins
v Omdal
[1897]
12 EDC 217.
[60]
Jenkins
v Omdal
supra
fn 59.
[61]
Cilliers,
Loots and Nel op cit at page 773 and the cases cited by the authors
in footnotes 33 to 38.
[62]
Radloff
and Another v Union South West Africa Insurance Co Ltd
supra
fn 52 at 635 A.
[63]
Rothman
v Woodrow & Co supra
fn
52 at 34.
[64]
Section
15(2)
of the
Road Accident Fund Act 56 of 1996
provides that an
action against the RAF may be brought in any competent court within
whose area the occurrence which caused the
injury or death took
place.