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[2021] ZAMPMBHC 35
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Advent Oil (Pty) Ltd v Vuletjeni Trading and Projects (Pty) Ltd (4262/2019) [2021] ZAMPMBHC 35 (21 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NO: 4262/2019
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
21
JUNE 2021
In
the matter between:
ADVENT
OIL (PTY)
LTD
APPLICANT
AND
VULETJENI
TRADING & PROJECTS (PTY) LTD
RESPONDENT
JUDGMENT
Sigogo
AJ:
[1]
A
period of more than 2 years has elapsed since the Minister of Justice
and Constitutional Development had, on 26 April 2019, determined
the
areas under the jurisdiction (territorial jurisdiction) of the
Mpumalanga Division of the High Court
[1]
.
By now it should have been settled how territorial
jurisdiction
of
this
Division
operates.
In
the
contrary
this
case
is
a living example that many litigants still approach territorial
jurisdiction
of
the High Court in the manner it was under the Supreme Court Act 59 of
1959 (the Supreme Court Act).
[2]
Out of habit, without giving attention to
the proclaimed jurisdictional boundaries of this Division the
applicant issued court process,
falling under the Middelburg area of
jurisdiction, in the Main Seat on the wrong belief that the Main
Seat, like is the position
in other Divisions, exercises
concurrent jurisdiction with the Local
Seats. This is not a separate
incident.
Discussion with other colleagues revealed that this practice is
common place within the division. This judgement is aimed
at
addressing this notion.
[3]
The
Superior
Courts
Act
10
of
2013
(the
Superior
Courts
Act)
ushered
in
a
whole
new
dispensation
in
as
far
as
territorial
jurisdiction
of
the
High
Court is concerned. The circumstances under which the
High
Court
may exercise its jurisdiction to hear any matter is provided for
under
section 21
of the
Superior Courts Act. The
relevant part of
this section reads thus:
“
Persons
over whom and matters in relation to which Divisions have
jurisdiction
21. (1) A Division has
jurisdiction over all persons
residing
or being in
,
and in relation to all causes arising and all offences triable
within
, its area of jurisdiction
and all other matters of
which it may according to law take cognisance, and has the power—
…”
(Emphasis supplied)
[4]
When
section 21
deals with circumstances
which give a Division of High
Court
jurisdiction over any person residing or being in its area of
jurisdiction determination of Division’s area of jurisdiction
is dealt with under
section 6(3)
of the
Superior Courts Act. The
relevant part of this section reads as follows:
6(3)(a). The Minister
must, after consultation with the Judicial Service Commission, by
notice in the Gazette, determine the area
under the jurisdiction of a
Division, and may in the same manner amend or withdraw such a notice.
…
(c) The Minister may,
after consultation with the Judicial Service Commission, by notice in
the Gazette established one or more
local seats referred to in
subsection (1)
and determine the area under the
jurisdiction
of such a local seat,
and may in the same manner amend or
withdraw such notice. (My emphasis).
…
(4) If a Division has
one or more local seats –
(a)
The main seat
of that Division
has concurrent
appeal jurisdiction
on the area of
jurisdiction of any local seat
of
that Division
…”
. (Emphasis
supplied).
[5]
Section
6
(3) of the
Superior Courts Act is
couched differently from
section
6(2)
of the repealed Supreme Court Act. Under the Supreme Court Act
the provincial divisions of the Transvaal, Natal and Eastern Cape
were given concurrent jurisdiction with their local divisions. Under
the
Superior Courts Act whether
the Main Seat of a Division
will
exercise territorial jurisdiction over the entire Province is left in
the
hands
of the Minister who in consultation with the Judicial Service
Commission
will determine the
necessary
jurisdictional boundaries of the High Courts. The Main Seat is only
guaranteed of concurrent jurisdiction with the Local
Seat of the same
Division on issues of appeals
[2]
.
Put differently, the
Superior Courts Act shifted
the authority to
determine territorial jurisdiction of Divisions of the High Court
from the legislature to the executive.
[3]
[6]
The
areas of jurisdiction of the two seats of this Division are as
captured
in
the hereunder Schedule
[4]
:
“
Schedule
Item
Name of
Division
Main Seat
Area under jurisdiction of the Division
Local Seat
Area of jurisdiction of the local seat
1
Mpumalanga
Mbombela
The following magisterial districts and sub-districts within
Mpumalanga Province as described in Government Notice No. 39961 of
29 April 2016:
Bushbuckridge (including Mhala sub- district); Chief Albert
Luthuli (including Carolina sub-district) Emgwenya sub- district
of eMakhazeni district incorporating the adjacent farms listed in
the footnote below; Mbombela (including White River and
Nsikazi
sub-districts); Nkomazi (including Komatipoort sub- district);
Thaba Cheu (including Graskop and Sabie sub-districts)
and
Umjindi.
Middleburg
The following magisterial districts and sub-districts within
Mpumalanga Province as described in Government Notice No. 39961 of
29
April 2016:
Dipaleseng; Dr JS Moroka (including Mbibana sub-district);
eMakhazeni (excluding Emgweya sub-district and the adjacent farms
listed in the footnote below; eMalahleni (including Ga-Nala and
Vosman sub-districts); Dr Pixley ka Isaka Seme (including
Amersfoort and Wakkerstroom sub- districts); Govan Mbeki
(including Bethal and Secunda sub-districts); Lekwa; Mkhondo
(including Amsterdam sub-district), Steve Tshwete (including
Hendrina sub- district); Thembisile Hani (including
kwaMhlanga sub-district) and Victor
Khanye.
Footnote: Driekop 387
JT; Dalmanutha 401 JT; Dalmanutha 376 JT; Willem 372 JT;
Driefontein 377 JT;
Rietvlei 375 JT; Schoongezicht 364 JT; Button 576 JT; Rietfontein 365
JT; Geluk 348 JT; Geluk 1002 JT; Black
Eagle 994 JT; De Kroon 363 JT;
De Goedenhoop 515 JT; De Goedenhoop 362 JT; De Goedenhoop 352 JT;
Goedwater 359 JT; Waterval 1007
JT Portion of the Farm Groenvlei 353
JT Waterval 351 JT; Winnaarsport 350 JT; Portion 2, Remainder of
Portion 4 and Portion 8 of
the farm Elandsfontein 322 JT;
Farrefontein 349 JT; River Cottage 1012 JT; Vlakfontein 325 JT;
Vlakfontein 323 JT; Tabolt 575 JT;
Portion 26 of Farm Elandskloof 321
JT; Wagenbietjieshoek 991 JT; Remainder of Portion 1 and Portion 12
of the Farm Roodekrans 133
JT; Doornhoek 324 JT; Donkerhoek 138 JT;
Wachteenbeetjeshoek 327 JT; Wilgekraal 141 JT; Mooiplaats 328 JT;
Zwartkop 329 JT; Waterval
331 JT; Vluchtfontein 330 JT; Boschrand
Height 148 JT; Boschrand Heights 146 JT; Zondagskraal 145 JT;
Hartebeestfontein 333 JT;
Boschrand Heights 149 JT; Goedeverwachting
334 JT; Goedeverwachting 335 JT; Loopfontein 298 JT; Mooiplaats 147
JT; Somerset 150
JT; Doornhoek 113 JT; Sterkdoorn 110 JT;
Bruintjieslaagte 499 JT; and Elangeni No 979 JT.”
[7]
In
the instances where the provincial division has concurrent
jurisdiction with the local division it remains in the hands of the
plaintiff or the applicant, guided by convenience and expense, to
choose the forum to litigate from. This position is stated by
Herbstein & Van Winsen
[5]
as
follows:-
“
Secondly,
if the matter is a proper one for a superior Court, the plaintiff
as dominus litis must select the
division that has jurisdiction since, as has been pointed out, there
are a number of superior courts,
each having original jurisdiction
only within a defined area and none of them exercising jurisdiction
over the whole of the Republic.
In choosing a forum, the plaintiff
may find in a particular case that several divisions (for example a
Provincial Division, a permanent
local division
and circuit local division) have
jurisdiction, in which event the plaintiff’s
selection will have to be governed
by considerations of
convenience
and expense”.
(Emphasis
supplied).
[8]
Consideration of convenience and expense in
these circumstances inevitably will, in the main, be practised in
favour of the
dominus litis
much
to
the
inconvenience
and
expense
of
the
respondent/defendant. The superior Courts
Act aims to correct this situation. This is
the position because it resonates well with
section 34 of the Constitution of the Republic of South Africa, 1996.
The promise of
the right of access to
justice as enshrined section 34 of the
Constitution is a promise that will be realized if litigants are
given access to courts in
their locality. Otherwise, the right of
access to justice would not worth the paper it is written on if
dominus litis
will
continue be allowed to choose to litigate in a court far away from
the respondent’s/defendant’s residence in the
name of
concurrency of the court’s jurisdiction, in the process making
access to justice for the respondents or defendants
unattainable
dream.
[9]
The
full court of the Gauteng Province Pretoria High Court (as it was
then called), in 13 various matters brought by the banks
[6]
on the issue of
competing
rights of the plaintiffs against
those
of the defendants in as far as the choice of court and access to
justice is concern, had the following to say:
“
[42
Our Courts have also long recognised that, where more than one court
has jurisdiction in a matter, the plaintiff, as dominus
litus, has
the right to choose the Court it wants to institute its action. This
principle was recently reaffirmed in Moosa NO v
Moosa. In our view,
however, the access to court should also take into consideration the
rights of defendants or respondents. The
plaintiff’s rights
should not dictate the choice of court at the expense of access to
justice.”
[10]
There is no doubt that the shift in
terminology from “provincial division” and “local
division” in the Supreme
Court Act to the “main seat”
and “local seat” in the
Superior Courts Act is
an
indication that the main seat
does
not,
as
a
matter
of
fact, exercise
jurisdiction throughout the Province.
The
new
dispensation
is
aimed
at
addressing
issues
of
access to both courts and justice.
[11]
Government Gazette No. 42420 unequivocally
makes it clear that the Main Seat of this Division does not have
concurrent jurisdiction
with the Middelburg Local Division to hear
matters other than matters of appeal. The clear intention of the
Minister in this regard
is demonstrated by the fact that even in
respect to the border magisterial district between the two seats of
the Division (eMakhazeni
District) the two
seats do not have concurrent jurisdiction
instead the district is shared between the two seats of the Division.
[12]
In
now turn to deal with the relevant facts of this case. The applicant
seeks an order that the respondent be placed under final
winding-up
in the hands of the Master of this Court. The applicant’s
application is brought in terms of
section 344
(f) and section 345(1)
of the Companies Act 61 of 1973 (the 1973 Companies Act or the Old
Act), read with item 9 of Schedule 5
of the same Act on the ground
that the respondent is deemed to be unable to pay its debts.
Winding-up of corporations is done either
in terms of the provisions
of the Companies Act 61 of 1973 (the Old Companies Act) or the
Companies Act 71 of 2008 (the New
Companies Act). The
choice of the
applicable Act will primarily depend on the reason for winding-up
[7]
.
[13]
During June of 2018 the parties concluded
an oral agreement for supply
of
diesel products on a cash on delivery basis. The agreement was later
varied to allow payment within 14 days of
delivery.
[14]
The respondent fell in arrears. On 25
September 2019 the applicant issued a letter of demand in terms of
section 345 of the Old
Companies against the respondent claiming an
amount of R907 777.18 (Nine Hundred and Seven Thousand Seven Hundred
and Seventy-Seven
Rand
and Eighteen Cents). The said letter of demand was delivered by
Sheriff at the respondent’s previous registered address
at
stand no: 3315, EXT 10, Barberton (falling under the Main Seat in
Mbombela) on the 30
th
day September 2019.
[15]
On 14 October 2019 the applicant prepared
the Notice of Motion
for
final winding-up of the respondent. On the 15
th
of November 2019 the respondent’s registered address was
changed at the Companies and Intellectual Property Commission (CIPC)
from Barberton to Emalahleni, falling under the local seat in
Middelburg. Thereafter, on 18 November 2019 the applicant’s
Notice of Motion was issued by the Registrar of Court at the Main
Seat in Mbombela.
[16]
This
matter
first
appeared
before
me
on
the
4
th
day
of
May
2021.
On
that
date the matter did not proceed because the respondent had not filed
its answering affidavit. Counsel for the respondent, from
the bar,
indicated that the respondent had on the previous day served its
answering affidavit including a condonation application
for the late
filing of the answering affidavit on the applicant’s attorneys
and had emailed same to the registrar of court.
[17]
The respondent applied for postponement of
the matter. That necessitated that the matter be case managed for the
second time as
it had
already
been
case
managed
for
the
first
time
after
the
respondent
had entered its notice of intention to oppose. The case was then
postponed to 09 June 2021 and the parties were directed
to further
attend to the matter as follows: -
“
1.1.1
The respondent shall file its answering affidavit on 05 May 2021;
1.1.2
The
applicant to file its replaying affidavit, if any, on 12 May 2021.
1.1.3
The respondent to file its
duplicating (in reply only to the issues of
application for condonation) for the
late filing of the answering affidavit by not later than 17 May 2021,
if necessary.”
[18]
On
9
June
2021
the
matter
appeared
before
me
once
more.
On
this
date
the respondent had filed its answering affidavit and the applicant
had filed its replying affidavit. In its answering affidavit
the
respondent averred that its registered offices are not in Barberton
but
in
Emalahleni
[8]
.
Other than making this factual averment no issue was taken in respect
of the court’s jurisdiction.
[19]
It is upon this basis that I called upon
the parties to address the Court in
respect
to jurisdiction of the Mbombela Main Seat to hear this matter. In
response to this invitation counsel for the applicant,
Mr Masombuka,
argued
that
this
Court
has
jurisdiction
to
entertain
the
matter
on
the
basis that Emalahleni is within Mpumalanga
Province and that the Mbombela Main Seat of the Mpumalanga Division
of the High Court
has
jurisdiction
on the whole of the Province. After I had drawn the counsel’s
attention to Government Gazette number
42420 dated 26 April 2019 he then presented an alternative argument.
He argued that this
Court has jurisdiction
because
the
respondent
did
not
object
to
the
court’s jurisdiction,
as
such
it
has
subjected
itself
to
the
court’s
area
of
jurisdiction, contends the applicant’s
counsel.
[20]
Counsel for the respondent, Mr Mathiba, on
the other hand argued that since jurisdiction of court is a legal
matter the court either
have jurisdiction
or
not.
If
courts
are
allowed,
developed
the
argument,
to
cloth themselves with territorial
jurisdiction in the circumstance where they do not have such
jurisdiction that would result in
courts’ encroachment into the
lanes of both the legislature and the executive. The respondent’s
counsel concluded his
address by urging the Court to dismiss the
applicant’s application for lack of jurisdiction.
[21]
In reply to the respondent’s
submission the applicant’s counsel urged the Court, in the
interest of justice and not
placing form over substance, to continue
to hear the matter despite the fact that the court does not have the
necessary territorial
jurisdiction over the respondent. Failing
which, he argued, the Court should invoke the provisions of section
27(1) of the Superior
Courts Act No. 10 of 2013 (the
Superior Courts
Act).
[22
]
First, I will deal with the argument that
the respondent subjected itself to
this
Court’s area jurisdiction. Having regard to the fact that both
counsel did not appear to appreciate that this Court lacked
jurisdiction to hear this matter I am not satisfied that the
respondent could be said to have subjected itself to the jurisdiction
of this court. For a litigant to subject himself to a court’s
jurisdiction such a litigant must take a conscious decision
to so
subject itself. This means
that
the respondent litigant must
firstly
know
that
the
court
does
not
have
jurisdiction
over
him
but nonetheless elect to subject himself in
that court’s jurisdiction. He must
consent to the court’s jurisdiction.
[23]
The respondent’s argument that the
applicant’s application must be dismissed for court’s
lack of jurisdiction
was opportunistic. I hold this view because the
respondent’s counsel like the applicant’s counsel did not
seem to know
that the Mbombela Main Seat lacked jurisdiction to hear
this matter. Both in his papers and in court counsel for the
respondent
did not challenge the issue of court’s jurisdiction.
It was only
after
the court’s invitation to parties’ counsel that the issue
was argued.
[24]
It
is trite that litigation is not a game.
[9]
The parties must plead their cases
fully
in their papers for their respective opponents to know and fully
appreciate what they are going to meet in court. Litigants
must not
be encouraged to take tactical steps which do not assist the course
of litigation but rather just postpone the unavoidable
and in the
process accumulate unnecessary legal costs. To dismiss this matter
for lack of jurisdiction will not take away the dispute
between the
parties. I did not find the dismissal of this matter to be an answer
to the issue of jurisdiction. On the other hand,
to proceed with the
hearing of the matter
as
submitted by counsel for the applicant was going to perpetuate the
wrong practice where the parties issue processes without firstly
determining the correct forum having jurisdiction to hear the matter.
Having taken this approach, I arrived at the conclusion that
the
solution of this matter rested in
section 27
of the
Superior Courts
Act.
[25
]
Apart from the fact that the respondent did
not on its own take an issue with this Court’s jurisdiction I
find that when the
legislature enacted
section 27
in its current form
it had in sight situations like this. In the circumstances I am of
the view that in deserving cases, like the
present case,
section 27
is capable of resolving issues of jurisdiction without resorting to
harsh measures like dismissal of the case. In this case it
make more
sense to follow this route because this issue concerns two seats of
the same Division. The provisions of this section
read thus: -
“
Removal
of proceeding from one division to another or from one seat to
another in the same Division
27.(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 that Divisions or
(b).
…
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) An order for
removal under subsection (1) must be transmitted to the registrar of
the Court to which the removal is ordered,
and upon the receipt of
such order that court may hear and determine the proceedings in
question.”
[26]
In light of the provisions of Government
Gazette No 42420 read with
section 27
of the
Superior Courts Act it
became clear to me that these proceedings were supposed to have been
issued in the Middleburg Local Seat. Hence, I called upon
the parties
to address me in this regard.
Having
heard
counsel
for
both
parties
in
this
regard
I
was
persuaded
that
it
will
be
in
the
interest
of
justice
that
this
matter
be
removed to the court having jurisdiction.
[27]
As a result, I made the following order: -
1.
The Mbombela Seat of the Mpumalanga
Division of the High Court of South Africa does not have jurisdiction
to entertain this matter.
2.
The Seat having jurisdiction to hear
this matter is the Middleburg Local division of the Mpumalanga
Division of the High Court of
South Africa.
3.
In the circumstance the proceedings
herein are removed to the Middleburg Local Division.
4.
The Registrar of the main seat,
Mbombela is ordered to forthwith transfer the Court file in this
matter together with this order
to the Registrar at the local seat
Middleburg.
5.
Reasons for the order shall be made
available to the parties in due course.
6.
There is no order as to costs.
[28]
I did not make cost order because the
respondent is not with clean hands. When this matter was postponed on
the 04
th
day of May 2021 it was at the instance of the respondent which
delayed filing its answering affidavit. On the other hand, the
applicant could not be blamed
as
having been negligent by issuing court
processes in the wrong court. The applicant did a “company
search” with CIPC
on 20 September 2019
and on that date the respondent’s
registered address was within this Court’s area of
jurisdiction. The registered address,
as I have indicated above
already, was changed on the 15
th
of November 2019 and at this time the applicant’s papers had
already been prepared but were not yet
issued.
[29]
On this aspect, I could not blame the
respondent for changing its registered address. It appears to me that
the change of address
was both a matter of coincidence and an
innocent move. If this was a
calculated
malicious tactical move it was going to unashamedly expose itself
when the respondent takes an issue with the court’s
lack of
jurisdiction. This did not happen. In the circumstances it was
justified that I make no cost order
[30]
It is on this basis that I granted the
order on the 9
th
day of June 2021 as quoted in paragraph [27] above.
Sigogo
AJ
Acting
Judge of the High Court Mpumalanga Division, Mbombela
DATE
OF HEARING:
09
JUNE 2021
DATE
OF JUDGMENT:
21
JUNE 2021
APPEARANCES
FOR
THE APPLICANT
ADV
ES MASOMMBUKA
INSTRUCTED
BY:
MADLELA
GWEBU MASHAMBA INC
C/O
SR NKUNA ATTORNEYS
jabu@mgminc.co.za
FOR
THE RESPONDENT:
ADV
S MATHIBA
INSTRUCTED
BY:
MBOWENI
MALULLEKA ATTORNEYS
mminc@gmail.com
[1]
Government
Gazette No. 42420 dated 26 April 2019
[2]
Section
6(4)(a)
of the
Superior Courts Act.
[3]
Section
6(3)(a)
of the
Superior Courts Act.
[4
]
Schedule
to the Government Gazette No. 42420
supra
.
[5]
The
civil practise of the Supreme Court of South Africa (now the High
Court and Supreme Court of Appeal ) by Van Winsen
et
al,
4th
edition, Juta & Co LTD, Kenwyn, 1997 at page 36.
[6]
ZAGPPHC/2018/692
[7]
The
New
Companies Act prescribes
the procedure for the winding-up of
solvent companies, whereas the Old
Companies Act, still
largely regulates the
winding-up procedure
of insolvent companies.
[8]
Page
104 of the court bundle at paras 69, 70 and 71.
[9]
Tumileng
Trading CC v National Security and Fire (Pty) Ltd; E and D Security
Systems CC v National Security and Fire (Pty) Ltd
(3670/2019)
[2020]
ZAWCHC 28
;
2020 (6) SA 624
(WCC) (30 April 2020) at para 14.