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[2011] ZASCA 33
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Zwelibanzi Utilities (Pty) Ltd Adam Mssion Services Centre v TP Electrical Contractors CC (160/10) [2011] ZASCA 33 (25 March 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 160/10
In the matter between:
ZWELIBANZI UTILITIES
(PTY) LTD
t/a ADAMS MISSION
SERVICE CENTRE
.........................................................
Appellant
and
TP ELECTRICAL
CONTRACTORS CC
........................................................
Respondent
Neutral citation
:
Zwelibanzi Utilities v TP Electrical Contractors
(160/10)
[2011] ZASCA 33
(25 March 2011)
Coram:
CLOETE,
HEHER, SNYDERS, MAJIEDT JJA and PLASKET AJA
Heard:
8 March
2011
Delivered:
25
March 2011
Updated:
Summary:
Magistrates’
courts – practice – jurisdiction – objection to –
cannot be raised after
litis contestatio.
____________________________________________________________________________________
ORDER
On appeal from:
KwaZulu-Natal High Court
(Pietermaritzburg) (Gorven and Mnguni JJ sitting as court of appeal):
The appeal is dismissed
with costs.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (CLOETE,
SNYDERS, MAJIEDT JJA AND PLASKET AJA concurring):
[1] Heads of argument
signed by counsel on behalf of the respondent were received in this
appeal. But when the appeal was called
in court senior counsel
representing the appellant informed the court that the respondent’s
attorney had not received a notice
of set-down (apparently due to a
fault in the registrar’s office) and that the attorney
requested a postponement of the appeal
as he wished his client to be
legally represented.
[2] The court
nevertheless heard the appeal, on the understanding that should it
appear at any time before judgment that the respondent
might be
prejudiced, the matter would be postponed sine die and argued by both
sides. Counsel for the appellant agreed to this
procedure. The
attorney was notified by the registrar that the appeal had proceeded
on this basis and that judgment had been reserved.
As will appear the
respondent has not been prejudiced and this judgment is accordingly
delivered.
[3] This appeal concerns
the effect of a special plea to the jurisdiction of a magistrate’s
court first raised after
litis contestatio
.
[4] In August 2004 the
respondent issued summons against the appellant in the magistrates’
court at Durban for payment of
the balance of an agreed price for the
installation of certain electrical services. In June 2005 the
appellant pleaded to the merits
of the claim and filed a claim in
reconvention seeking damages for breach of contract. Issue was joined
after the respondent pleaded
to the claim in reconvention in June
2005. During November 2006 the court declined an application by the
appellant to deal separately
with its so-called ‘special plea’
based on an ‘estoppel’ and ordered that it be left for
decision during
the trial of the matter. In April 2007 the appellant
gave notice of its intention to amend its plea by the addition of a
special
plea that the court lacked jurisdiction to try the action
because the appellant neither resided nor carried on business within
its area of jurisdiction. No written objection was delivered and the
appellant formally amended its plea. The respondent replicated
that
the appellant had, both in convention and reconvention, appeared and
taken no objection to its jurisdiction. The magistrate,
asked to rule
in limine
on the special plea, dismissed it. He ruled that the
defendant had acquiesced in the jurisdiction of the Durban court. On
appeal
the full bench of the High Court at Pietermaritzburg dismissed
the appeal with costs and confirmed the magistrate’s ruling.
With its leave this appeal is before us.
[5]
Section 28
of the
Magistrates’ Courts Act 32 of 1944
provides:
‘
(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-
.
. .
(f)
any defendant (whether in convention or reconvention) who appears and
takes no objection to the jurisdiction of the court; .
. .’
[6] The
meaning of this provision was discussed in
William
Spilhaus & Co (M.B.) (Pty) Ltd v Marx
1963
(4) SA 994
(C) in the context of the common law and its legislative
history. Van Winsen J was prepared to allow the possibility of a
defendant
being permitted to raise an objection to the jurisdiction
even as late as the trial of the action (at 999A-D) but added (at
999D-E):
‘
In
my view, however, if the defendant was aware of the facts, or must in
all the circumstances be taken to have been aware of the
facts, upon
which a plea to the jurisdiction could have been founded, and he was
so aware at the time that he filed his plea to
the merits and he
fails to plead to the jurisdiction of the court, he should not be
accorded leave at a later stage to amend his
plea so as to raise a
defence to the jurisdiction. By failing with such knowledge, to file
a plea to the jurisdiction of the court
he must be taken to have
assented to that court’s jurisdiction, and he cannot thereafter
be permitted to withdraw such assent.
A sound basis for such rule is
to be found in the common law authority, namely, that
litis
contestatio
having
been effected without the plea to the jurisdiction having been raised
by the defendant, the latter must be taken to have
assented to the
court’s jurisdiction. Moreover it accords with the balance of
convenience between the parties and similarly
serves the convenience
of the court.’
[7] Theron J was less
inclined to indulge a late amendment which introduced a plea to the
jurisdiction. He said (at 1001G-1002G):
‘
Leaving
aside, for the moment, all questions as to whether the position has
possibly been affected by any Rules promulgated to govern
the
practice and procedure in relation to a particular court, I can see
no reason for thinking that our Courts in general would
fail to give
effect to the rule of the common law, as it is to be gathered from
Voet
,
2.1.20, as read with 2.1.18, 26 and 27, that a defendant who has
pleaded to the plaintiff’s main claim without objecting
to the
jurisdiction must, at any rate after the stage of
litis
contestatio
has
been reached, be considered to have bound himself irrevocably to
accept the jurisdiction of the court – and this even
in a case
where his failure to raise the question of the jurisdiction might
have been due to some mistake on his part. According
to my
understanding, an objection or plea to the jurisdiction has always
been considered to be in a rather special position even
amongst those
pleas which are normally required to be taken
in
initio litis
.
Not only do our Roman-Dutch writers appear to allocate a special
position to it, but so do modern authors. Thus in Beck
Theory
and Principles of Pleading
,
2nd ed. at p. 132, one finds that the plea to the jurisdiction is the
only plea described as a plea in bar; and in Pollak on
The
South African Law of Jurisdiction
at
p. 88, it is stated to be a defence which must be raised before any
other plea. Bearing in mind the manifest inconvenience and
wastage of
costs which must almost inevitably result if a defendant were to be
allowed to advance a defence so fundamental in nature
as a plea
declinatory of the jurisdiction for the first time after
litis
contestatio
(and
a
fortiori
after
commencement of the very trial itself, as in the present case), it
would therefore be surprising if the Courts were to fail
to give full
effect ─ wherever possible ─ to the rule propounded by
Voet
.
In these days of rapid communication and ready facilities for
journeying from one place to another there appears to be even better
reason than in
Voet’s
time
for expecting a defendant to abide by a jurisdiction which he was
initially prepared to accept when he pleaded to the plaintiff’s
claim on the merits. From a practical point of view and also as a
question of legal principle there do not appear to be any
considerations
of any importance requiring the rule in question to be
confined in its operation to the Superior Courts and not applied in
statutory
courts such as our magistrates’ courts: it was
certainly not so confined in
Voet’s
day.
It is interesting to note that there are decided cases in England
(including cases dealing with the procedure in inferior,
statutory
courts) in which it has been held that a defendant residing outside
the jurisdiction of a court which has material or
“contingent”
jurisdiction is not entitled to object to the jurisdiction of such
court after entering upon the merits
of an action instituted against
him in it. It seems to me that these decisions are probably based
ultimately on the same considerations
of inconvenience and wastage of
costs as I have mentioned above and which, I think, underlie our
common law rule.’
[8] In
relation to whether the operation of the principles governing the
prorogation of jurisdiction in the common law had been
affected by
the
Magistrates’ Courts Act or
the Rules made under that Act,
the learned judge examined the question in depth. He said
inter
alia
,
‘
In
my view the probability is that when the Legislature brought about
this change – dropping the special rules and time limits
which
applied to special defences – from the position obtaining under
Act 32 of 1917, it intended to leave the common law
rules applicable
to the prorogation of jurisdiction to hold full sway once more in the
magistrate’s court, in the same way
as in the Supreme Courts.’
(At
1003C.)
[9] In
Lubbe
v Bosman
1948 (3) SA 909
(O) Van den Heever
JP enunciated the general principle of the common law that ‘where
a defendant without having excepted
to the jurisdiction, joins issue
with a plaintiff in a Court which has material jurisdiction, but has
no jurisdiction over defendant
because he resides outside the
jurisdiction of that Court, the defendant is deemed to have waived
his objection and so as it were
conferred jurisdiction upon the
Court’. The learned Judge referred to a number of common law
authorities and then added (at
914, obiter, but it seems to me,
correctly) that:
‘
This
rule in regard to tacit prorogation of jurisdiction has not been
altered in the rules and is incompatible with the notion that
after
joinder of issue without objection the plaintiff is still charged
with the
onus
of
proving that the court has jurisdiction’.
[10] In
Purser v Sales; Purser and Another v Sales and
Another
2001 (3) SA 453
(SCA) this Court was
concerned with an appellant, who, while neither domiciled or resident
in the United Kingdom at the time of
commencement of proceedings in
England, had, in an action instituted against him by service in South
Africa, filed a plea on the
merits and participated fully in the
proceedings and then resisted enforcement of the judgment obtained
against him in those proceedings
on the ground that the English court
was not a court of competent jurisdiction because he had not
submitted to its jurisdiction.
Mpati AJA referred to
Lubbe
v Bosman
,
William
Spilhaus & Co (MB) (Pty) Ltd v Marx
and
Voet
2.1.18 and 19. He agreed
with the conclusion of Theron J (at 1001H-1002A) in
William
Spilhaus
that a defendant who pleads to the
main claim without objecting to the jurisdiction must, after
litis
contestatio
, ‘be considered to have
bound himself irrevocably to accept the jurisdiction of the court’
even when failure to raise
the question of jurisdiction derives from
a mistake on his part.
[11] The learned judge
considered the interrelationship of submission and the principles of
waiver, acquiescence and election and
said (at 453H):
‘
A
defendant who raises no objection to a court’s jurisdiction and
asks it to dismiss on its merits a claim brought against
him is
invoking the jurisdiction of the court just as surely as the
plaintiff invoked it when he instituted the claim. Such a defendant
does so in order to defeat the plaintiff’s claim in a way which
will be decisive and will render him immune from any subsequent
attempt to assert the claim. Should he succeed in his defence, the
doctrine of
res
judicata
will
afford him that protection. Should his defence fail, he cannot
repudiate the jurisdiction of the very court, which he asked
to
uphold it. In my view the facts point overwhelmingly to the appellant
having submitted to the jurisdiction of the English Court.’
[12] Of
course,
Purser v Sales
had
nothing directly to do with
s 28(1)(f)
of the
Magistrates’
Courts Act and
the approval by the learned judge of the general
principle of the common law in relation to the case before him does
not of itself
bind us in relation to the interpretation of the
section or the preference accorded to the view of Theron J.
Nevertheless I am
persuaded by the reasoning of Theron J that his was
the interpretation which accorded with the legislative intention and
should
be applied by us. There is the additional factor of the
presumption that the legislature in enacting legislation intends to
depart
as little as possible from the common law;
s 28(1)(f)
contains
no indication to the contrary. Indeed, in
Van
Heerden v Muir
1955 (2) SA 376
(A) at 379D-F
Centlivres CJ, in relation to
s 28(1)
, invoked the principle of
construction which requires a statute to be construed in conformity
with the common law rather than against
it except where and in so far
as the statute is plainly intended to alter the common law and
continued:
‘
In
the present case the Legislature plainly intended to alter the common
law excepting in the case of a defendant who appears and
takes no
objection to the jurisdiction (para (f) of
sec 28).
’
[13]
Furthermore the approach of Mpati AJA in
Purser’s
case to the question of implied waiver finds
direct resonance in the facts of this case. The appellant pleaded to
the claim in the
Durban court though it carried on business in
Amanzimtoti. It pleaded to the merits and asked the court to dismiss
the case against
it after adjudicating the merits. It chose not to
plead to the allegation in the particulars of claim that it carried
on business
in Amanzimtoti but in a counterclaim filed on its behalf
it repeated that allegation and asked the court to adjudicate its
claim
for damages and grant judgment in its favour. These were still
the limits of the action when the pleadings closed. On the
authorities
to which I have referred and of which I have approved
that was the end of any possible reliance on an absence of
jurisdiction.
And, I should have thought, the end of this appeal.
That the appellant, after close of pleadings, sought a hearing on the
validity
of its estoppel defence simply compounded its difficulties.
[14] Appellant’s
counsel sought, however, to save his client’s bacon by resort
to the following argument. When the application
for amendment was
applied for (to introduce the special plea to the jurisdiction) the
respondent did not oppose and the amendment
was accordingly granted
by consent. The consequence, so counsel submitted, was that the
respondent was bound to submit to the trial
of the merits of the
jurisdictional plea. Counsel also contended that the effect of the
amendment to the plea was retrospective
in operation to the stage of
the original plea, preceding the filing of the counterclaim and,
therefore, negating the effects of
the apparent reliance upon the
jurisdiction of the court to decide the merits of the claim and
counterclaim. These arguments are,
however, specious.
[15] The
appellant relied, in the first mentioned regard, on
Presto
Parcels v Lalla
1990 (3) SA 287
(E). It was
there held, in relation to a special plea to the jurisdiction of the
magistrate’s court that:
‘
Once
the pleadings have been amended, by what is in effect consent, and
once the amendment has been incorporated therein, then the
magistrate
was obliged to hear the special plea on its merits and to adjudicate
thereon. It is not open to a litigant who has consented
to an
amendment and allowed it to be incorporated in the pleadings
thereafter to argue that the court should disregard it without
going
into the merits.’ (
‘
Merits’,
in the context, means ‘the merits of the special plea’.)
I respectfully disagree. The effect would be
that a party who elects
not to oppose an amendment of pleadings thereby waives his right to
raise and rely on an argument that
would otherwise have been open to
him, in this case, in relation to the substance of the amendment,
invocation of the terms of
any subsection of
s 28
which would meet
the reliance on the special plea. There is in my view no logical or
practical reason why such an objection must
be taken before the plea
is amended or why it cannot with equal force be raised
in
limine
after
amendment and before its merits are traversed. With that alternative
open to the litigant, the language of waiver, which is
only
appropriate to unequivocal conduct, is misplaced.
[16] That an
amendment operates retrospectively is a procedural consequence. It
does not affect accrued rights. So, for example,
a right already
extinguished by prescription cannot be revived by subsequent
introduction of a claim by amendment. See
Cordier
v Cordier
1984 (4) SA 524C
at 533B-C, 533F-G
and
Churchill v Standard General Insurance Co
Ltd
1977 (1) SA 506(A)
at 516G-517A. Nor can
jurisdiction already vested by the appellant’s failure to
object to its absence before
litis contestatio
be rendered non-existent by subsequent
amendment, as in this case. Since the establishing of jurisdiction in
this manner gives rise
to an objective fact without the intervention
of the plaintiff in the action, the latter’s inaction in
opposing the amendment
is of no consequence. Absence of jurisdiction
on the ground that the defendant was a peregrinus in the magisterial
area of Durban
was no longer a potential issue in the case once it
had been so established.
[17] The submissions I
have addressed were reflected in the appellant’s heads of
argument, drafted by junior counsel. At the
hearing Mr Kemp SC,
leading for the appellants, without pressing or abandoning the
arguments, added a further contention. This
was, in short, that when
the
Magistrates’ Courts Act 32 of 1944
was passed and the fixed
time periods for raising an objection to the jurisdiction of the
court under the 1917 Act were jettisoned,
the legislature intended
not to reinstate the common law but rather to regulate the pleading
of objections to the jurisdiction
according to the terms of s 111(1)
of the new Act, which read then, and still reads, as follows:
‘
(1)
In any civil proceedings, the court may, at any time before judgment,
amend any summons or other document forming part of the
record:
Provided that no amendment shall be made by which any party other
than the party applying for such amendment may (notwithstanding
adjournment) be prejudiced in the conduct of his action or defence.’
Thus, so ran the
argument, the objection to the jurisdiction could be raised by a
defendant by way of an application for amendment
at any time until
judgment with the prospect that the court would grant the
application. That, said counsel, was how the magistrate
should have
approached the application of the appellant.
[18] Section
111 is a procedural provision. It affirms the power of the court to
entertain applications for amendments of, inter
alia, pleadings at
any time until judgment. It does not confer substantive rights on the
parties. The fact that a court may grant
an amendment does not mean
that it must do so but merely that it has a discretion in the matter,
to be exercised according to established
principles. One such
principle is that the discretion will not be exercised in the
applicant’s favour if the resulting amendment
will be
excipiable (for example, because it will be bad in law). Thus, if an
objection to the jurisdiction is raised by the amendment
but it is
clear that jurisdiction does vest in the court the amendment will
properly be refused:
Muller v Möller and
Another
1965 (1) SA 872
(C) at 877H-878A.
Under the Magistrates’ Courts Act 32 of 1917 s 105 provided in
substantially similar terms (‘the
court may, at any time before
judgment amend any summons or other document forming part of the
record. . .’) for the same
procedural relief as s 111 has
covered since the Magistrates’ Court Act 32 of 1944 came into
operation.
[19] Under the earlier
statute, and despite the broad power conferred by s 105, the
procedural right to amend at any time was curtailed
by Order XIII r1
which laid down time limits within which objections had to made, in
relation inter alia to an objection that the
court sued in had no
jurisdiction in respect of the defendant, although the court was
vested with a residual discretion under r
1(2) ‘on application
after notice to the plaintiff’ to allow such an objection to be
raised. Order XIII was also concerned
with procedure and a court
approached to exercise the residual discretion would have been
obliged to have regard to the substantive
rights of the parties at
the time the application was made.
[20] Section
28(1)(f) – in the same terms in the 1917 and 1944 Acts –
as I have pointed out earlier, reflects the common
law:
Van
Heerden v Muir
at 379E-F;
Muller
v Möller at 879B
.
[21] The
effect of the common law relating to objections to the jurisdiction
is stated by
Voet
2.1.18
in these terms (Gane’s translation):
‘
Tacit
consent may be in error. In this case
litis
contestatio
required
to complete jurisdiction.
─
But
if this has been clearly done in mistake, extension cannot be deemed
to have taken place. In the case of a person under mistake
all
consent is entirely lacking. All the same the final supervening of
litis
contestatio
produces
in the case of persons under mistake the same effect as the mere
approach produces in the case of persons who know that
yon magistrate
has no jurisdiction and yet purposely approach him with a view to
their suit. We must only add, as we said above,
that approach has
been made to a person to whom the parties are not forbidden to extend
jurisdiction in yon matter by expressed
intention also. I mean that
law then supplies the want of that consent which is required for
extension, in that it fictionally
conceives that the legal proceeding
creates a quasi-contract, and thus that consent has intervened by the
very fact of
litis
contestatio
,
just as in other quasi-contracts also law presumes that a consent
which is physically lacking has been present.’
And in
2.1.20,
A defendant summoned before an
incompetent court against his will does not consent to the
jurisdiction unless he joins issue─
‘
So
far we have dealt with the law of extension when together and
voluntarily, whether with knowledge or in error, both plaintiff
and
defendant have approached an incompetent judge. But if the plaintiff
has with a view to testing his right solemnly summoned
an unwilling
defendant before one who was not competent in that business, but was
yet a fit subject for extension ─ then
I consider that we must
lay down one rule for the plaintiff and another for the defendant. As
regards the defendant, he is only
to be deemed to have extended the
jurisdiction if he has joined issue by pleading to the plaintiff’s
main claim, and so has
as it were made a quasi-contract with his
opponent in a judicial proceeding, on the lines of what was said
above.’
[22] It is
clear from these passages that jurisdiction is established as an
objective fact by the joinder of issue and is thereupon
irreversible.
A substantive right is thereby conferred on the plaintiff to pursue
his action in the previously incompetent court
without the threat
that jurisdiction may be declined at the instance of the other party.
This was a right which any court approached
for an amendment under
Order XIII r 1(2) would have been bound to recognise and give effect
to. When Act 32 of 1944 was passed
without the equivalent of r 1, any
court to which application was made under s 111 would have been bound
to do likewise. The common
law as stated by
Voet
was not abrogated by either r 1 or s 105
although the opportunity to resort to it would seldom have occurred.
Since Act 32 of 1944
has been in operation its relevance has
continued to be the negation of pleas to the jurisdiction brought
after
litis contestatio
.
[23] Resort to the terms
of s 111 was accordingly of no help to the appellant’s case.
The magistrate was therefore correct
to refuse the amendment sought
by the appellant.
[24] It follows that the
court a quo was correct in dismissing the appeal to it. This appeal
is likewise dismissed with costs.
____________________
J A Heher
Judge of Appeal
APPEARANCES
APPELLANT: K J Kemp SC
(with him E S Crots)
Ngwenya & Zwane,
Durban
McIntyre & van der
Post, Bloemfontein
RESPONDENT: No
appearance. (Heads of argument drafted by O A Moosa SC)
Haralambous Attorneys,
Durban North
Claude Reid Inc,
Bloemfontein