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[2022] ZAECMKHC 15
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Vorster v Clothing City (PTY) Ltd (CA145/2021) [2022] ZAECMKHC 15 (17 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO: CA145/2021
COURT
A QUO: ECPERC 334/2016
Reportable:
Yes/No
Of
interest to other judges: Yes/No
Revised
In
the matter between:
MAGDALENA
JOSINA VORSTER
Appellant
And
CLOTHING
CITY (PTY) LTD
Respondent
JUDGMENT
NQUMSE
AJ
INTRODUCTION
[1]
This is an appeal against the judgment of
the Regional Magistrate (per Reddy) held in Port Elizabeth. The
appeal is with the leave
of the court
a
quo
[2]
The background facts which are common cause
are briefly the following.
[3]
The plaintiff issued summons in a damages
action against the defendant on 19 February 2016, in which the
plaintiff claims damages
suffered by her in consequence of her
injuries suffered as a result of her fall at the defendant’s
premises on 29 September
2015.
[4]
At the time that summons was issued, the
total quantum of damages claimed by the plaintiff amounted to
R255 856.40 as reflected
in the particulars of claim.
[5]
On 21 June 2016 the defendant filed its
plea in which it opposed the plaintiff’s action. This was
followed by filing of its
necessary expert notices in preparation for
the trial.
[6]
On 9 October 2018, an order was granted by
the honourable magistrate in terms of which the defendant conceded
the issue of negligence
on the basis of an apportionment of 75% in
favour of the plaintiff, with the issue of quantum and causality
postponed for hearing
on 6 December 2018.
[7]
For reasons which are not relevant to this
appeal the matter did not proceed on the said date but was eventually
set down for trial
on 24 November 2020.
[8]
On 20 October 2020, subsequent to the
matter having been settled in respect of negligence, the plaintiff
filed a notice of intention
to amend her particulars of claim. The
amendment sought to increase the plaintiff’s quantum from
R255 856.40 to R531 225.02,
by increasing the amounts
claimed for past medical and related expenses. The plaintiff further
sought to apply the apportionment
of 75% in respect of negligence
something which changed the prayers of the plaintiff to reflect an
amount of R394 418.77 plus interest
and costs.
[9]
The defendant not having raised any
objection to the plaintiff’s proposed amendment resulted in the
amendment effected on
2 November 2020.
[10]
For some reason not relevant to this appeal
the matter did not proceed on the trial date of 24 November 2020, it
only proceeded
at the end of March 2021. However, between 2 November
2020 and the end of March 2021 the defendant filed an amendment to
its plea
on 21 January 2021. When it did so, it did not raise any
objection to the issue of jurisdiction.
[11]
However, on 4 March 2021 the defendant
served its notice of intention to amend its plea with the sole
purpose to introduce a special
plea of jurisdiction as a result of
the plaintiff’s amendment to her particulars of claim. Absent
any objection from the
plaintiff defendant proceeded to effect its
amendment by serving on 12 March 2021. The plaintiff replicated to
the defendant’s
amended plea on 24 March 2021, where it alleged
that the relief and judgment sought after all the issues are taken
into consideration,
including apportionment of negligence falls
within the jurisdiction of the
court a
quo
and therefore the defendant’s
special plea stands to be dismissed.
[12]
On 30 March 2021 the matter proceeded in
respect of the special plea only. The judgment of the
court
a quo
was handed down on 16 April 2021
wherein the magistrate ordered that the defendant’s special
peal is upheld with costs. Aggrieved
by this ruling, the plaintiff
launched this appeal.
[13]
The issue for determination as I see it is
crisp. Is whether the matter having been settled in respect of
negligence when the particulars
of claim reflected a quantum of R255
856.00 which was subsequently increased by an amendment to R531
255.02, has such an increase
ousted the jurisdiction of the
magistrate.
[14]
A
point of departure is the statutory provision which governs the
aspect of jurisdiction in respect of causes of action in the
magistrate’s courts which is Section 29 of the Magistrate Court
Act
[1]
(the Act), it provides:
“
29
Jurisdiction in respect of causes of action
(1)
Subject to the provisions of this
Act and the National Credit Act 2005 (Act 34 of 2005), a court, in
respect of causes of action
shall have jurisdiction in -...
(g)
actions, other than those already
mentioned in this section where the claim or the value of the matter
in dispute does not exceed
the amount determined by the Minister from
time to time by notice in the gazette. Section (1A) provides that the
Minister may determine
different amounts contemplated in subsections
(1) (a), (b), (d), (f) and in respect of costs for districts and
counts for regional
divisions ….”
[15]
The
amount referred to in section 29 (1) (g) of the Act has been
determined by the Minister as being above R200 000.00 and
up to
R400 000.00 in respect of a Regional Court
[2]
.
It is common cause that at the commencement of the action the claim
of the plaintiff was less than R400 000.00 and was within
the
amount determined by the Minister for regional courts. It should
therefore follow that an objection to the jurisdiction of
the court
could not have arisen at that stage. Nor could it have been competent
for the issue of jurisdiction to have arisen at
the stage of the
court
a quo’s
judgment of 16 April 2016. The appellant contends that a defendant
who pleads to the plaintiff’s claim without objecting
to
jurisdiction must be considered to have bound himself irrevocably to
accept the jurisdiction of the court, even where the failure
to raise
the question of jurisdiction might have been due to some mistake. In
support of its contention the appellant relies on
William
Spilhaus & Co (MB) (Pty) Ltd Marx
[3]
and
Purser
v Sales; Purser and Another v Sales and Another
[4]
.
[16]
In
Purser
[5]
it was held
“
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 that 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 claims 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 further support of its contention the appellant referred to
Zwelibanzi
Utilities (Pty) Ltd t/a Adam Mission Services Centre v TP Electrical
Contractors CC
in which the court with reference to William Spilhaus & Co
[6]
noted that if the defendant was aware of the facts upon which a plea
to the jurisdiction could have been founded, and he was so
aware that
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.
[17]
The
court further held 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”
.
[7]
In light of the failure by the respondent to raise the issue of
jurisdiction in its revised plea of 21 January 2021 so the appellant
argued, the respondent is precluded from raising the issue of
jurisdiction as it did, by way of its special plea.
[18]
Whilst conceding the legal position which
is advanced in the authorities referred to by the appellant, the
defendant submitted that
those authorities dealt with section 28 of
the Act, which relates to jurisdiction over persons and did not deal
with causes of
action inter alia monetary jurisdiction which is
governed by section 29 of the Act.
[19]
I turn to agree with the respondent that
the authorities above which the appellant sought to rely on are not
applicable to the case
at hand.
[20]
Even if the court were to apply by parity
of reasoning, the principles derived from the common law and which
have been restated
in the authorities above, more particularly the
effect of a special plea to the jurisdiction of a magistrate’s
court which
was first raised after
litis
contestatio.
It has to be borne in mind that in
casu,
at
initio litis
the claim of the plaintiff fell within the jurisdiction of the court
a quo
, the
issue of jurisdiction came to the fore only when the appellant
delivered its amended particulars of claim which resulted in
the
claim being increased beyond the court’s jurisdiction.
[21]
Whilst there is merit on the point made by
the appellant that jurisdiction having once been established,
continues to exist to the
end of the action in keeping with ‘the
principle of continuance’, in
casu
the circumstances are quite different in that it cannot be said that
the respondent was from the outset aware of the monetary claim
that
changed later and the effect it brought to bear on the court’s
jurisdiction. I therefore do not agree with the proposition
that the
respondent having submitted itself to the jurisdiction of the court
a
quo
at the commencement of the matter,
had by so doing, effectively bound itself to the subsequent increased
claim amount.
[22]
Furthermore, with the issue of jurisdiction
being a legal issue, nothing would preclude the court to have raised
it on its own,
since it is a critical issue in establishing whether
the court has the competence to deal with the issue or it is the
correct forum
to entertain it. In light thereof the materiality of
the special plea having been filed after the raised plea of 21
January 2021
is not fatal so as to detract from the central issue
whether the court is conferred with the necessary jurisdiction to
adjudicate
upon a claim which is beyond its monetary jurisdiction as
determined by the Minister. Put differently, it would be an absurdity
to expect the court to turn a blind eye on the issue of jurisdiction
well aware that it has a bearing on its competence to deal
with such
[a] matter.
[23]
The appellant further argued that section
37 (2) of the Act finds application since matters incidental to the
prayer sought do not
oust the jurisdiction of the magistrate albeit
the finding to be made is beyond the jurisdiction of the court.
Section 37 of the
Act provides as follows: -
“
(2)
Where the amount claimed or other relief sought is within the
jurisdiction, such jurisdiction shall not be
ousted merely because it
is necessary for the court, in order to arrive at a decision, to give
a finding upon a matter beyond the
jurisdiction.”.
The
commentary on this section by Jones and Buckle
[8]
is that the sole test is the amount claimed, or the relief sought,
[9]
that is, where the decision of a particular issue falls outside the
jurisdiction of the court but the amount claimed or relief
sought
falls within the jurisdiction of the court, this subsection confers
incidental jurisdiction on the court. The learned author
also
referred to
Tshisa
v Premier of the Free State
[10]
where the following was stated ‘
A
reading of this section makes it clear that a finding on the matter
that is beyond the jurisdiction of the court must be necessary
in
order for the court to reach a decision on the main matter before it,
which is within the jurisdiction…. What s37(2)
envisages is an
issue that is central to a determination of the merits of the case
before the court, but which is beyond the jurisdiction.
’
In its attempt to make section 37 (2) applicable the appellant
advanced the argument that its claim is not for R531 225.02,
but only
seeks an amount of R398 418.77. However, sight must not be lost
as to how the latter quantum was arrived at, which
was only after the
application of the apportionment of 75%.
[24]
The
hurdle the appellant has to overcome is the application of the
apportionment before its proven damages. On this point, counsel
for
the appellant conceded before us that the apportionment that has been
applied and effected by the appellant can be seen as
to usurp the
court’s function. The upshot hereof was for the appellant to
first prove its damages and only thereafter will
the apportionment be
applied. That being the case, the claim of the appellant pursuant the
amendment of the particulars of claim
increased to R531 225.02,an
amount which undoubtedly falls beyond the jurisdiction of the
magistrate. What the magistrate
was effectively required to do by the
appellant is to adjudicate her claim which by all accounts fell
beyond the magistrate’s
jurisdiction. The contention that the
claim the magistrate was required to adjudicate upon is R398 418.77,
but in so doing
should consider ‘incidental’ factors to
the extent of R531 225.02 is in my view not sustainable if regard is
had to
the principle that if a portion of an indivisible claim is
beyond the jurisdiction, the whole of the claim is beyond it
[11]
.
I therefore do not agree that section 37 (2) finds application on the
facts of this matter. Instead I find that the appellant’s
claim
as per her amended particulars of claim is R531 225.02.
[25]
It was also submitted on behalf of
the appellant further that section 39 of the Act, entitled it to take
into account such apportionment
in calculating her damages which
according to its calculations brings the claim to fall within the
jurisdiction of the court
a quo
.
[26]
Section 39 of the Act provides:
“
In
order to bring a claim within the jurisdiction a plaintiff may, in
his summons, or at any time after the issue thereof, deduct
from his
claim, whether liquidated or unliquidated, any amount admitted by him
to be done by himself to the defendant.”
There
is an important
distinction
between sections 38 and 39 of the Act. In terms of s 38 the plaintiff
is required to explicitly abandon part of its
claim. Whereas in s 39
the plaintiff is allowed a deduction of a liquidated or unliquidated
‘amount’ which has been
admitted by him. I find myself
constrained to agree with the submission of the respondent that the
appropriate remedy that was
available to the appellant following the
special plea that was raised, is to abandon part of her claim in
terms of section 38 in
order to bring it within the jurisdiction of
the court. This remedy remained available for the appellant to invoke
at any time
before final judgment.
[12]
.However,
the appellant chose not to avail itself that opportunity.
[27]
The difficulty facing the appellant’s
reliance on section 39 of the Act, is not only because the respondent
did not admit
to any amount but a percentage of negligence that is an
apportionment on a “
proven
”
not a “
specific
”
amount. As already alluded the appellant’s damages were yet to
be proven and its only thereafter will the apportionment
be applied.
I am constrained to agree with the respondent that the remedy that
was available to the appellant is to abandon part
of its claim in
terms of section 38.
[28]
For all the reasons above, I do not find
that the magistrate erred in making an order which upheld the special
plea to the effect
that pursuant the amended particulars of claim
which increased the appellant’s claim, her jurisdiction to
adjudicate the
matter was ousted. It follows therefore that the
appeal cannot succeed.
[29]
Accordingly, the following order will issue.
ORDER
[30]
The appeal is dismissed with costs.
V.M
NQUMSE
Acting Judge of the High
Court
I agree
G.
N. Z MJALI
Judge of the High Court
APPEARANCES
DATE
OF HEARRING
: 25 February 2022
DATE
OF JUDGMENT
: 17 May 2022
Counsel
for the Appellant
: N.M. Paterson
Instructed
by
: Palm & Hollander Attorneys
C/o De Jager &
Lordan Inc.
2 Allen
Street
Makhanda
Counsel
for the Respondent
: A. White
Instructed
by
: Raymond Bojanic & Associates
C/o Carinus Jagga
Inc.
67 African Street
Makhanda
[1]
Act 32 of 1944
[2]
Government Gazette 37477, Notice GN 216 of 27 March 2014
[3]
1963 (4) SA 994
(c)
[4]
2001 (3) SA 453 (SCA)
[5]
Para
[6]
(160/10)
[2011] ZASCA 33
(25 March 2011)
[7]
Ibid at para 20
[8]
The Civil Practice of the Magistrates’ Courts in South Africa
Vol. 1
[9]
Van Der Merwe NO Van Der Merwe
1973 (1) SA 436
(c) at 440
[10]
2010 (2) SA 153
(FB) at 156I - 157B
[11]
Jones v Williams
1911 TPD 536
[12]
Hahndiek NO v Raath
1977 (3) SA 947
(C)