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[2021] ZALMPPHC 69
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HL Matlala Properties CC t.a Goragang Hire v Kulasisebenze Trading & Projects (Pty) Ltd (HCA01/2021) [2021] ZALMPPHC 69 (7 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCA01/2021
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
HL
MATLALA PROPERTIES CC t/a GORAGANG PLANT HIRE
APPELLANT
And
KULASISEBENZE
TRADING & PROJECTS (PTY) LTD
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On 26
th
June 2014 in Dennilton the appellant
sub-contracted the respondent for the supply and installation of
concrete block paving for
the rehabilitation and maintenance of R25
road from Groblersdal towards Verena for an estimated amount of R998
641-00. According
to the respondent, it completed the agreed work
during December. During February 2016 the respondent and other
contractors approached
the appellant in Polokwane demanding payment.
[2]
On 25
th
February 2016 in Polokwane the appellant signed an
acknowledgement of debt undertaking to effect payment to the
respondent on or
before the 15
th
March 2016. The appellant
failed to pay the respondent on the due date, and the respondent
issued summons in the regional court
of Groblersdal against the
appellant. On its summons the respondent had attached the
acknowledgement of debt that was signed in
Polokwane.
[3]
The appellant had defended the respondent’s action. The
appellant in pleading to the respondent’s
particulars of claim
has raised a special plea of jurisdiction. The appellant in its
special plea had stated that its registered
office and principal
place of business is situated in Pretoria outside the area of
jurisdiction of Groblersdal, and further that
the acknowledgment of
debt, which the respondent relies on for its claim, was concluded in
Polokwane outside the area of jurisdiction
of Groblersdal.
[4]
The matter came before magistrate Mogotlane G who dismissed the
appellant’s special plea
of lack of jurisdiction. The appellant
had appealed against the whole judgment and orders of magistrate
Mogotlane who dismissed
their special plea.
[5]
In this court the appellant argued that the acknowledgment of debt
upon which the respondent’s
claim is based was concluded in
Polokwane, and that the regional court Groblersdal does not have
jurisdiction over Polokwane. It
is the appellant’s submission
that the court a quo does not have jurisdiction to entertain the
respondent’s claim within
the meaning of section 28(1)(d) of
the Magistrates’ Courts Act. The respondent submitted that the
respondent’s claim
is based on breach of contract by the
appellant and that when the respondent went to Polokwane to go and
demand money, the breach
was already committed. The respondent
further submitted that all that it needs to show is where the
contract was concluded, and
also where the breach occurred.
[6]
It is common cause that the sub-contract agreement was signed in
Dennilton within the area of
jurisdiction of Groblersdal regional
court, whilst the acknowledgment of debt was signed in Polokwane
outside the area of jurisdiction
of Groblersdal regional court. The
actual work that led to the alleged claim of respondent which led to
the signing of the acknowledgment
of debt was done within the area of
jurisdiction of Groblersdal regional court. What this court must
determine is whether the court
a quo was correct in dismissing the
appellant’s special plea of lack of jurisdiction to entertain
the parties’ dispute.
[7]
Section 28 of the
Magistrates’
Courts Act
[1]
read as follows:
“
(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 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;
(e) any party to
interpleader proceedings,…
(f) any
defendant (whether in convention or reconvention) who appears and
takes no objection to the jurisdiction of
the court;
(g) any person who owns
immovable property within the district or regional division in
respect of such property or in respect of
mortgage bonds thereon.
(1A) For the
purposes of section 29(1B) a court for a regional division shall have
jurisdiction if the parties are or if either
of the parties is-
(i) domiciled in
the area of jurisdiction of the court on the date on which
proceedings are instituted; or
(ii)ordinarily
resident in the area of jurisdiction of the court on the said date
and has or have been ordinarily resident in the
Republic for a period
of not less than one year immediately prior to that date.
(2) ‘Person’
and ‘defendant’ in this section include the State.”
[8]
In
Cordiant
Trading CC v Daimler Chrysler Financial Services
[2]
Jafta JA said:
“…’
causes
arising’ does not refer to causes of action but to all factors
giving rise to a jurisdiction under the common law.
Of course, such
factors do not exclude a cause of action. It is by now well
established that, in appropriate cases, a court which
has
jurisdiction over the area within which a cause of action arose is
competent to decide a matter on that basis alone.”
[9]
In the case at hand, the place where
the acknowledgement of debt was signed will ordinarily be
the basis
to determine the place where the cause of action arose. However, that
is not the only factor to be taken into consideration
in determining
where the cause of action arose. During February 2016 the respondent
and other contractors had to approached the
appellant in
Polokwane demanding for payment for work done in Dennilton emanating
from the sub-contract that was signed in Dennilton. That resulted in
the appellant signing the acknowledgment of debt. The sources
of the
acknowledgement of debt are the work done in Dennilton and
sub-contract signed in Dennilton. Had the sub-contract
not been
signed and the work not performed, the acknowledgment of debt would
not have come into existence. Therefore, in my view,
the
acknowledgment of debt, the sub-contract and the work done cannot be
separated. Those are the other factors to be taken into
consideration
in determining where the cause of action arose.
[10]
In
Sonia
(Pty) Ltd v Wheeler
[3]
Price AJA said:
“…
It is
argued that if the money claims stood alone and there were no claim
for cancellation, the court would have jurisdiction. Assuming
this to
be so, assuming that the Eastern District Court could not entertain a
claim for a refund of the purchase price if that
claim stood alone,
it nevertheless seems to me that every consideration of convenience
and common sense indicates that where such
a money claim is closely
associated with the a claim for cancellation of the contract, as is
in the case, and it is a consequential
claim, following on the
cancellation, the same court which has jurisdiction to decree
cancellation should have jurisdiction to
hear the money claim for a
refund of the purchase price, and to order costs.”
[11]
The sub-contract was signed in Dennilton, the work
was performed in Dennilton, whilst the appellant head
office is in
Pretoria. Any dispute arising out of the sub-contract agreement if
within the jurisdiction of the regional court,
the respondent would
have had the option of instituting action in Groblersdal or Pretoria.
The claim, which is arising from the
acknowledgment of debt, is
closely associated to any claim arising out of the sub-contract, and
therefore a consequential claim
following the work done in Dennilton.
The appellant is raising a technical defence but has failed to show
what prejudice it will
suffer if this matter was to be adjudicated by
Groblersdal regional court.
[12]
In
Trans-African
Insurance Co Ltd v Maluleka
[4]
the court held that technical objections to less than perfect
procedural steps should not be permitted, in the absence of
prejudice,
to interfere with the expeditious and, if possible,
inexpensive decision of cases on their real merits. The appellant
does not
dispute that it had signed a sub-contract with the
respondent in Denniltion and that the respondent has performed the
work contracted
for in Dennilton, and that the appellant following
the work signed the acknowledgment of debt performed in Dennilton.
The appellant
has failed to show what prejudice it will suffer if
this matter was to be adjudicated by the Groblersdal regional court.
Since
the claim as per the acknowledgment of debt is closely
associated to any dispute arising out of the sub-contract agreement,
the
court a quo cannot be faulted in dismissing the appellants
special plea of the court a quo lack of jurisdiction to entertain the
respondent’s claim. Whether the respondent will succeed with
its claim is not an issue to be determined by this court at
this
stage. It therefore follows that the appellant’s appeal stand
to fail.
[13]
In the result I make the following order
13.1 The appellant’s
appeal is dismissed with costs
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I
AGREE
KGOMO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the appellant
:
Adv Nel EJJ
Instructed
by
:
Barnard INC Attorneys
Counsel
for the respondent
:
Adv Motlatle TP
Instructed
by
:
Tsheoga INC
Date
heard
:
27
th
August 2021
Electronically
delivered on
:
7
th
October 2021
[1]
32 of 1944
[2]
2005 (6) SA 205
(SCA) at 211 D-E
[3]
1958 (1) SA 555
(A) at 562F-G
[4]
1956 (2) SA 273
(A) at 278F