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2022
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[2022] ZALMPPHC 46
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Muller N.O. and Another v Taljaard (HCA07/2022) [2022] ZALMPPHC 46 (17 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCA07/2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUGDES: NO
REVISED.
DATE:
17/08/2022
In
the matter between:
JOHANNES
ZACHARIAS HUMAN MULLER N.O.
FIRST APPELLANT
LARISSA
ARENDS
N.O.
SECOND APPELLANT
and
JAN
DIRK JOHANNES TALJAARD
RESPONDENT
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
This is an appeal to the Full Bench of this Division against the
order
of the court a
quo
wherein a special plea of
jurisdiction was upheld. The grounds of appeal are as per the notice
of appeal.
[2]
From the onset it needs to be mentioned that shortly prior to the
hearing
of the matter, counsel for the Respondent in the appeal
became medically unfit to proceed with the argument in opposition of
the
appeal. The Appellants and the Respondent agreed that the appeal
may proceed and be adjudicated on the papers filed without hearing
any oral argument. It is on this basis that this court therefore
proceeds to deal with the appeal.
Application for
Condonation:
[3]
The Appellants filed an application for condonation for the late
filing
of the Appellants' notice of appeal. The application does not
contain any prayer seeking the reinstatement of the lapsed appeal.
The fact that the Appellants attempt to have the appeal reinstated by
their application for condonation is however inferred from
the
application filed. The application for condonation is opposed.
[4]
The approach adopted in determining whether or not to grant
condonation
is well known. In
Oengetenge Holdings (Pty) Ltd v
Southern Sphere Mining and Development
Company
Ltd
and
Others
(619/12)
[2013]
ZASCA
5
;
[2013]
2
All SA 251
(SCA) at para 11,
Ponnan
JA
held that factors relevant to the discretion to grant or
refuse condonation include
'the degree of non-compliance, the
explanation therefor, the importance of the case,
a
respondent's
interest in the finality of the judgment of the court below, the
convenience of this court and the avoidance of unnecessary
delay in the administration of justice.'
[5]
Fleshing out the aforementioned general considerations,
Plewman JA
in the
Carries v Sheriff Magistrate's Court, Wynberg and
Another
[1998] ZASCA 18
; 1998(3) SA 34 (SCA) at 40H-41E,
stated the following:
'Condonation
of the non-observance of
the
rules
of
this court
is not
a
mere
formality. In all cases,
some
acceptable
explanation,
not only
of,
for example,
the delay
in noting
the
appeal,
but
also,
where
this
is
the
case,
any
delay
in
seeking condonation,
must
be given. An appellant
should whenever
he
realizes that
he has not complied
with
a
rule of court
apply for condonation
as
soon
as
possible. Nor should it simply be assumed
that, where non-compliance was due entirely to the neglect of the
appellants' attorney
that condonation will be granted. In
applications of this sort the applicants' prospects of success are in
general an important
though not decisive consideration. When
application is made for condonation it is advisable that the petition
should set forth
briefly and succinctly such essential information
as
may enable the Court to assess the appellant's prospects of
success. But appellant's prospect of success is but one of the
factors
relevant to the exercise of the court's discretion,
unless
the cumulative
effect
of the other
relevant
factors in
the case
is such
as
to
render
the
application
for
condonation
obviously
unworthy
of consideration.
Where
non-observance
of
the
Rules
has
been
flagrant
and
gross
an application
for
condonation
should
not
be
granted,
whatever
the
prospects
of
success might be.'
[6]
In the present matter, the Appellants have given an acceptable
explanation of the delay in noting the appeal.
The Appellants did not
unordinary delay in seeking condonation either. Having considered the
explanation given by the Appellants,
the degree of non-compliance,
the explanation therefor, the importance of the case, the
Respondent's interest in the finality of
the judgment of the court a
quo,
the convenience of this court and the avoidance of
unnecessary delay in the administration of justice, this court is of
the view
that condonation should be granted, and the lapsed notice of
appeal be reinstated.
The
Merits of the Appeal:
Background
Facts:-
[7]
The Appellants instituted action against the Respondent in the court
a
quo
for payment of monies pursuant to certain provisions of
the
Insolvency Act, 24 of 1936
. The Appellants act in their
capacities as the joint liquidators of the insolvent estate of Love
and Let's Live (Pty) Ltd (in liquidation).
[8]
In the Appellants' combined summons the Appellants' sought to
establish jurisdiction in the court a
quo
by pleading as
follows:-
"This
Court
has
jurisdiction
to
adjudicate
this
matter
as
the
Defendant
resides, alternatively
is employed, within the Court's jurisdiction."
[9]
The Respondent raised a special plea alleging that the court a
quo
did not have the requisite jurisdiction to adjudicate the claim.
The Respondent pleaded as follows:
"Special
Plea
The
defendant denies that the above Honourable Court has jurisdiction to
entertain this matter as the defendant is not resident
within the
area of jurisdiction of the above Honourable Court.
In
the event that the above Honourable Court finds that it has
jurisdiction the defendant pleads to the particulars of claim as
follows:..."
[10]
The special plea was heard on 19 October 2021. At the hearing of the
special plea, the
legal representative for the Respondent applied in
terms of
Section 111 of the Magistrate's Court Act, 32 of 1944 (as
amended),
that the special plea be amended to read as follows:-
“
The
Defendant denies that the above Honourable Court has
jurisdiction to entertain this matter,
as
the Defendant is
neither employed nor resides within the area of jurisdiction of the
above Honourable
Court."
[11]
The legal representative for the Respondent also applied in terms of
Section 111 of the Magistrate's Court Act, 32 of 1944 (as amended)
that paragraph 2 of the Respondent's plea be amended to read as
follows:-
"The
contents
of
this
paragraph
are
denied
as
if
specifically
traversed
as
the Defendant is neither employed nor resides within the
jurisdiction of the above Honourable Court."
[12]
The Appellants' legal representative did not object to the above
amendments being made
and in the result the court a
quo
effected
the amendments as aforestated in terms of
Section 111 of the
Magistrate's Court Act, 32 of 1944 (as amended).
The
Evidence
[13]
The Appellants called one witness to prove jurisdiction. Mr. Claassen
confirmed that the
Respondent does not work, nor reside within the
area of jurisdiction of the court a
quo
as he is stationed on
a farm, Rietgat situated in the area of Dikgale (Morobeng) as farm
manager. Mr. Claassen further confirmed
that the Respondent is
employed by Bertie Van Zyl (Pty) Ltd, t/a ZZ2. The head office of ZZ2
Farm is situated on the farm Boekenhout
Bult, Modjadjiskloof,
Tzaneen.
[14]
Mr. Taljaard (the Respondent) testified in support of his special
plea of jurisdiction
raised. Mr. Taljaard confirmed that he is
employed by Bertie Van Zyl (Pty) Ltd t/a ZZ2 as a farm manager of the
farm Rietgat in
the area of Dikgale. Mr. Taljaard further testified
that the head office of ZZ2 is in Moketsi.
The
Law:
[15]
Section 28(1)(a) - (d) of the Magistrate's Court Act, 32 of 1944
stipulates as follows:-
"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, 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;
(b)
any partnership which has business premises situated or any
member whereof resides within the district or regional division;
(c)
any person whatever, in respect of any proceedings incidental
to any action or proceeding instituted in the court by such person
himself or herself,·
(d)
any person, whether or not he or she resides, carries on
business or is employed within the district or regional division, if
the
cause of action arose wholly within the district or regional
division;..."
[16]
Jurisdiction should be determined by common law and/or the relevant
statute. (See Bisonboard
Ltd v K Braun Woodworking Machinery (Pty)
Ltd
[1990] ZASCA 86
;
1991 (1) SA 482
(A) at 486H-J).
Consideration of the
question of jurisdiction involves a two-stage enquiry. Firstly, it
should be determined if the Court is, as
matter of principle,
competent to take cognisance of the particular case (whether a
recognised jurisdictional ground exists -
ratio jurisdictionis).
Secondly, whether the defendant is subject to the Court's
authority (whether an effective judgment can be given). In
Estate
Agents
Board
v Lek
1979
(3)
SA
1048
(A)
at 1063 F-H
Trollip JA
set out the general principles of our
law in determining jurisdiction as follows:
"That
depends on (a) the nature of the proceedings, (b) the nature of the
relief claimed
therein,
or
(c)
in
some
cases,
both
(a)
and
(b).
...
Approach
(a)
was adopted by
Innes Jin
Steytler's
case
1911 AD at 315-16.
The inquiry was, he said, whether, by its nature, the
action was personal, real, or mixed. De Villiers JP adopted approach
(b) at
346-7; and (c) was applied in the
Gulf Oil
case
[Gulf Oil Corporation v Rembrandt Fabrikante en
Handelaars(Edms) Bpk
1963 (2) SA 10
(T)J.
Approach
(b)
is
based
on
the
principle
of
effectiveness
-
the
power
of
the
Court, not only to grant the relief claimed, but also to
effectively enforce it directly within its area of jurisdiction, ie
without
any resort to the procedural provisions in the Supreme Court
Act 59 of 1959 canvassed
above."
[17]
In
Jones & Buckle: Civil Practice of the Magistrate's Courts
in South
Africa
in the commentary to
Section 28
of the Magistrate's Court Act, 32 of 1944 (as amended)
the
following is stated:-
""Or
is employed”
These words cover the case of an
employee who falls outside the phrase 'carries on business'. It is
probable, however, that some
degree of permanence in the employment
will be required, and that
a
defendant habitually employed in
a
workshop in district A will not become subject to the
jurisdiction of the court of district B merely because he is sent to
do
a
two-day job in the latter district. The date of service
of the summons (and not the date of issue) is the date when the
incidence
of
jurisdiction
is
determined
in
respect
of
whether
a
defendant
was employed
within
the jurisdiction.
Consequently,
even
though
he
may
have
been employed
within
the
jurisdiction
when
summons
was
issued,
the
court
has
no jurisdiction over him
in terms of this subsection if
he was not still
employed
there when summons was served."
(footnotes omitted)
Application
of
the
Law
to
the
Facts:
[18]
A special plea of jurisdiction, or the lack thereof, is a declinatory
plea that quashes
the action as far as the court is concerned, but
the merits of the case may still be tried by another court with
jurisdiction.
[19]
In applying the law to the facts, it is clear that in the present
matter, the court a
quo
correctly upheld the special plea and
correctly found that the court a
quo
did not have the
necessary jurisdiction. The Respondent is not resident, nor employed
within the district or area of jurisdiction
of the court a
quo.
The fact that the Respondent is employed as a farm manager at
Dikgale, at the farm Rietgat is indicative thereof that his
employment,
at the place of his employment being the farm Rietgat at
Dikgale, has some permanence despite the fact that he, from time to
time,
has to travel to the Head Office of Bertie van Zyl (Pty) Ltd
t/a ZZ2 Farm to attend meetings or to attend to administrative
related
tasks.
[20]
In respect of the Appellants' argument that the court a
quo
failed
to hear any closing arguments before judgment was handed down and by
doing so infringed on the Appellants' fundamental rights
is without
any merit in the present matter. The parties by agreement introduced
to the court a
quo
that argument shall be made by filing heads
of argument. The heads of argument was to be filed on or before 9
November 2021 and
the matter was postponed for judgment to 14
December 2021.
[21]
The Appellants' legal representative confirmed this agreement and the
dates agreed upon
for the filing of Heads of Argument and Judgment to
be handed down. The fact that the Appellants' failed to file any
heads of argument
was at their own peril. They were the authors of
their own misfortune. In any event, even if the Appellants' filed
heads of argument,
it would not have changed the outcome of the
matter as the court a quo still would have lacked the necessary
jurisdiction. The
appeal should therefore fail.
Order:
[22]
In the result the following order is made:-
1.
Condonation for the late filing of the Appellants' notice of appeal
is granted with
no order as to costs.
2.
The appeal is reinstated.
3.
The appeal is dismissed with costs.
M.
NAUDÈ-ODENDAAL
JUDGE
OF THE
HIGH
COURT, LIMPOPO DIVISION
POLOKWANE
I
AGREE
M.G.
PHATUDI
ACTING
DEPUTY JUDGE PRESIDENT
OF
THE HIGH COURT, LIMPOPO DIVISION
POLOKWANE
APPEARANCES:
HEARD
ON:
5 AUGUST 2022
JUDGMENT
DELIVERED ON: 17 AUGUST 2022
For
the Appellants:
None
Instructed
by:
Mathys Krog Attorneys.
C/O
AH Burger Attorneys
Polokwane
For
the Respondent: None
Instructed
by:
Joubert & May Attorneys
C/O
De Bruin Oberholzer Attorneys
Polokwane