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[2019] ZAGPPHC 171
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Doringkloof Primary School v Tshiguvho and Another (A383/2018) [2019] ZAGPPHC 171 (30 May 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO: A383/2018
30/5/2019
In
the matter between:
DORINGKLOOF
PRIMARY SCHOOL
APPELLANT
And
AQWITAMISI
JOSEPH TSHIGUVHO
FIRST RESPONDENT
TSHILIVHALI
OLGA NDSKIOZWI
SECOND RESPONDENT
JUDGMENT
STRIJDOM
AJ
[1]
In this matter the appellant sought
default judgment against the respondents on 11 July 2018 in the
Magistrates Court for payment
of an amount of R11,100.00.
[2]
The Appellants request for default
judgment was refused for two reasons, firstly on the basis that the
provisions of Rule 5(6) were
not compiled with and secondly on the
basis that the court
a quo
is
not vested with jurisdiction to adjudicate the action.
[3]
The grounds for appeal is set out in the
Notice of Appeal and may be summarised as follows:
3.1
The
Learned Magistrate erred in finding that the Appellant had to adduce
evidence pertaining to jurisdiction in the absence of a
dispute
between the parties.
3.2
The
Learned Magistrate erred in finding that the Court a quo did not have
jurisdiction and;
3.3
The
Learned Magistrate erred in finding that failure to comply with the
provisions of Rule 5(6) of the Magistrate Court Rules are
grounds for
the refusal of the application.
[4]
Section 28(1)(d) of the Magistrates'
Court Act, Act 32 of 1944 as amended reads as follows:
"4.1 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:-
(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" .
[5]
Rule 6(4) of the Magistrates Court Rules
provides that:
"Every pleading
shall contain a clear and concise statement of the material facts
upon which the pleader relies for his or
her claim, defence or answer
to, any pleading, as the case may be, with sufficient particularly to
enable the opposite party to
reply thereto".
[6]
All that was required of the appellant,
in its particulars of claim, was to make the necessary factual
allegations which would support
its claim that the court a quo had
jurisdiction, based thereon that the cause of action wholly arose
within the Court a quos' area
of jurisdiction.
[7]
The Appellants' claim was premised on
the respondents' breach of an agreement to pay school fees
alternatively the respondent's
obligation to make payment of school
fees in terms of Sections 39 and 40(1) of the South African School
Act, Act 84 of 1996 (as
Amended).
[8]
In order to be successful in its claim
based on the contract, the appellant thereof had to allege and prove
the following;
8.1
The agreement and its terms;
8.2
That it complied with its obligations in
terms of the agreement;
8.3
Breach of the agreement by the
respondents and;
8.4
Its claim for specific performance.
[9]
In order to be successful in its
alternative claim based on the provisions of the South African
Schools Act ("the Act"),
the appellant has to allege and
prove the following:
9.1
The
jurisdictional requirements of Section 40(1) of the Act i.e. A parent
is liable to pay the school fees determined in terms of
section 39
unless or to the extent that he or she has been exempted from payment
in terms of this Act,
9.2
That school fees was determined in terms
of section 39;
9.3
Failure to make payment of the said
school fees.
[10] In paragraph
3 of the particulars of claim, the appellant alleges that the parties
entered into
an agreement at Centurion, in terms of which the
appellant would render certain services pertaining to the education
of the respondents
and the respondents would make payment to the
appellant in exchange for the services rendered.
[11]
In paragraph 6 of the particulars of
claim, the appellant alleges that it had rendered the required
services and seeks payment of
specifically tuition fees.
[12]
In paragraph 7 of the particulars of
claim, the appellant alleges that it made demand to the respondents
and the respondents acknowledged
receipt of the demand at
Doringkloof, at the school, and the respondents were warned that
their failure to make payment of school
fees constitute failure to
comply with a statutory obligation.
[13]
In paragraph 2 and 3 of the affidavit in
support of the application for default judgment, the chairperson of
the appellants Governing
Body, confirmed that the school fees were
determined as provided for in, section 39 of the Act, at the
appellants' premises. In
paragraph 4 of the affidavit, the
Chairperson of the appellants Governing Body further confirms that
payment of the amount claimed
was not made and that the respondents
were indebted to the appellant as claimed.
[14]
It appears that the Court a
quo
took issue with the fact there is no
agreement as to the place where payment was to be made. The Court a
quo, relying on the matter
of
Buys v
Roodt (now Atto) 2000(1) SA 535, (OPA)
found
that in the circumstances it is not vested with jurisdiction.
[15]
In my view the facts in
Buys
v Roodt
are distinguishable from the
facts
in casu.
In
that matter two payments were made by cheque, one payment of which
was made in Hermanus (as opposed to Kroonstad where the matter
was
heard.)
[16]
There were no facts before the Court to
suggest that any payment was made or received from outside the area
of jurisdiction of the
court, and there was thus no basis to justify
the departure from the norm- that where place of payment is not
agreed, payment is
to be made at the place where the agreement was
entered into.
[17]
The Court a
quo
found that because the parties did
not agree where performance had to take place, it could not be said
that breach occurred within
a specific district.
[18]
The court a quo did not deal with the
appellants' alternative claim based on the provisions of the South
African Schools' Act, Act
84 of 1996. (As amended).
[19]
If regard is had to the provisions of
Section 39 to 41 of the Act it is patent that the statutory
obligations arise within the area
of the jurisdiction of the court a
quo. As the statutory obligations arose within the area of
jurisdiction of the Court a quo,
it follows that failure to comply
with the statutory obligations similarly arose with the area of
jurisdiction of the court a quo.
[20]
In the matter of
Dusheika
vs Millburn
1964 (4) SA 648
(AD),
the Appellate Division (as it then was) considered what was meant
with "cause of action arose wholly' and found that "Cause
of action has been held to mean every fact which is material to be
proved to entitle the plaintiff to succeed- every fact which
the
defendant would have the right to traverse."
[21]
In
Venter
v Venter 1949(1) SA 768 (A)
it was
held that payment must be made in place in which the obligation is
contracted unless another place has been expressly or
tacitly fixed
for the fulfilment of the contract. The court continues to consider
whether it is necessary for a creditor to seek
out his debtor or
whether a debtor is obliged to seek out his creditor in order to
perform. The court distinguishes between situations
where a debtor
has to be placed in mora and where a debtor is in mora by virtue of
the terms of the agreement. In the present matter,
the respondents
were in mora the moment their obligation fell due and same was not
paid-it was thus not necessary for the appellant
to seek out the
respondents- the respondents were obliged to seek out the appellant
and tender performance.
[22]
The court in the Venter matter concludes
that a debtor is entitled to perform at any place where it may
legally perform its obligations.
The question which must thus be
answered is this: Where were the respondents entitled to perform? The
answer must be, in the modern
age, be that the respondents were
entitled to perform from anywhere in the world, provided that the
appellant received their performance,
as it is trite that payment is
made when same is received by the creditor.
[23]
In the matter of
Goldfields
Confectionary and Bakery (Pty) Ltd v Norman Adam (Pty) Ltd
[1]
it was held that payment is made
only once payment is in fact received, unless there is an agreement
to the contrary. It therefore
follows that in the present matter, the
place of performance by the respondents would be the place where the
appellant would receive
payment.
[24]
The Court
a
quo
found that as the parties had
not agreed on a place for performance, performance could arguably not
have taken place within the
area of jurisdiction of the court a
quo.
The court a
quo
disregards the question as to where
performance was to be received. There were no facts before the court
a
quo
which
would suggest that the place of the performance was anywhere but
where the appellant was situated.
[25]
The final issue that must be considered
is whether or not it was necessary for the appellant to plead that,
through operation of
law, performance was to take place where the
appellant is situated.
[26]
If the particulars of claim are read as
a whole, the allegation in paragraph 8 must be read against the
backdrop of the preceding
paragraphs. The particulars of claim,
properly interpreted thus states, that all of the
facta
probanda
(which includes place of
performance) took place within the area of jurisdiction of the court
a quo.
Rule
5(6) of the Magistrate Court Rules.
[27]
Rule 5(6) of the Magistrates Court Rules
provide that where a party relies on section 28(1) (d) of the
Magistrates Court Act, a
party must in the summons set out
particulars of support of such an allegation. The facts upon which
the appellant relied was set
out in the particulars of claim which
was served with the summons there could thus be no prejudice to
the respondents.
[28]
Rule 60(1) of the Magistrates Court
Rules reads as follows: Except where otherwise provided in these
rules, failure to comply with
these rules, or with any requests made
in pursuance thereof shall not be ground for the giving of judgment
against the party in
default.
[29]
It therefore follows that any finding in
relation to want of compliance with the provisions of rule 5(6) was
not on its own sufficient
for the application for default judgment to
be refused.
[30]
In my view the court a quo erred in
finding that it did not have jurisdiction. he court
a
quo
further erred in dismissing the
application for default judgment.
[31]
In the result the following order is
made;
31.1
That the appeal is upheld;
31.2
That the order of the Magistrates Court
dismissing the application for default judgment is set aside and
replaced with the following
order:
"2.1
Default judgment is granted against First and Second Defendant,
jointly and severally, the one paying the other to be absolved;
2.2
Payment of the sum of R11,100.00;
2.3
Interest at a rate of 10.5% per annum
a
temporae morae
to date of final
payment;
2.4
Costs of suit on a scale as between
attorney and client.
JJ STRIJDOM
ACTING JUDGE OF THE HIGH COURT
I
agree, and is so ordered.
TUCHTEN J
JUDGE OF THE HIGH COURT
MATTER
HEARD:
28 May 2019
Judgment
delivered:
30 MAY 2019
COUNSEL FOR APPELLANT:
ADV M Riley
Instructed
by:
GROENKLOOFCHAMBERS PTA
MP KOEKEMOER ATTORNEYS
COUNSEL FOR RESPONDENT:
NO APPEARANCE
Instructed
by:
NO APPEARANCE
[1]
1950(2)SA 763 (T0 at 771 See also Stabilphave (Pty) Ltd vs South
African Revenue Services 2014 (l )SA 350 (SCA).