Nohaji v MEC for Transport, Eastern Cape and Another (385/2020) [2021] ZAECBHC 14 (17 September 2021)

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[2021] ZAECBHC 14
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Nohaji v MEC for Transport, Eastern Cape and Another (385/2020) [2021] ZAECBHC 14 (17 September 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
LOCAL DIVISION, BHISHO)
Case
No: 385/2020
In
the matter between:
SABELO
NOHAJI

Plaintiff
And
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR
TRANSPORT, EASTERN CAPE

First
Defendant
HEAD OF
DEPARTMENT, DEPARTMENT OF
TRANSPORT,
EASTERN CAPE
Second Defendant
JUDGMENT
BESHE
J:
[1]
Plaintiff is suing the defendants for damages he alleges he suffered
as a result of an unlawful decision/s
taken by them, which resulted
in his application for a Professional Driving Permit being rejected.
This in turn cost him his job.
[2]
In their plea, the defendants raised a special plea alleging that
this court does not have jurisdiction
to deal with the matter, based
on what is alleged by the plaintiff in his particulars of claim.
Apparently, because the plaintiff
states that the address of the
defendants is in King William’s Town.
[3]
The plaintiff in turn raised an exception to the special plea on the
basis that it lacks the necessary
averments that are necessary to
sustain a defence and or is vague and embarrassing.
[4]
As I gather following a court order in this regard, defendants filed
an amended special plea and plea
over. In the said amended special
plea in respect of lack of jurisdiction, the following averments are
made:
“
The
plaintiff states in his particulars of claim that the defendants’
addresses are at 32 Cowan Close, Stellenbosch Park, Schornville,
King
William’s Town. The above Honourable Court does not have
jurisdiction to entertain this matter as it does not fall within
the
area of jurisdiction of this court.
The Court with
competence is the Grahamstown Division of the Eastern Cape High
Court. The plaintiff has not alleged facts which support
his
assertion that the whole cause of action arose within the
jurisdiction of this court. The plaintiff makes reference to King
William’s
Town and to Buffalo City Metropolitan Municipality which
both do not fall within the jurisdiction of this court.
The defendants
have not consented to the jurisdiction of this court.”
[5]
Even though this is not raised in
plaintiff’s notice of exception, in argument plaintiff submitted
that the exception was also premised on the ground that a complaint
regarding lack of jurisdiction should be raised by means of an
exception and not a special plea. In this regard, reliance was placed
on the decision in
Makhanya
v University of Zululand
[1]
.
In that matter it was stated that jurisdictional challenges will be
raised by an exception or by a special plea. Later, the court
states
that “
in
other cases the existence or otherwise of jurisdiction to consider,
the case will appear from the particulars of claim and in those
cases
the challenge will be raised by an exception
”.
[6]
It is however trite that an objection that a
court lacks jurisdiction is ordinarily raised by way of
a special
plea, but that if the lack of jurisdiction appears from the summons,
the defendant is entitled to raise an exception to
the summons on the
basis that no cause of action is disclosed.
[2]
A reading of the
Makhanya
decision referred to above shows that the issue was whether it was
the High Court or the Labour Court / Commission for Conciliation
Mediation and Arbitration that had jurisdiction to adjudicate the
matter. This was depended on the nature of the claim as formulated
on
the particulars of claim. In other words, at play was the issue of
whether based on the nature of the appellant’s claim it was
justifiable in an ordinary High Court or the Commission for
Conciliation Mediation and Arbitration. This is the scenario that the
court envisaged would be conveniently raised in an exception to the
particulars of claim as opposed to a special plea. That is not
the
case in the matter under consideration. A special plea in my view is
the correct way to complain about lack of jurisdiction in
this
matter.
[7]
There is also no merit in the complaint that defendants’ plea in
this regard lacks the necessary averment
and or is vague and
embarrassing.
[8]
Accordingly, the exception is dismissed with costs.
N G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For the Plaintiff
:

Adv: Y Ndamase
Instructed
by                :
CINGA NOHAJI INC.
29 Gladstone Street
Office 7 & 8
Central Square Building
EASTLONDON
Ref:
CN/sn/0299/sp
For the Defendants
:
Adv: D V Pitt
THE
STATE ATTORNEY
17
Fleet Street
Old
Spoornet Building
EAST
LONDON
Ref:
901/20-P13 (Mrs Tyani)
Date
Heard
:
16
September 2021
Date
Reserved
:
16
September 2021
Date
Delivered
:
17
September 2021
[1]
2010
(1) SA 62
SCA at 71 paragraph 29 – 31.
[2]
See
Erasmus Superior Court Practise 2n Edition Van Loggerenberg Volume 2
D1-278.