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[2019] ZAGPPHC 242
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Trustco Group International (Pty) Ltd and Others v Hahn & Hahn Inc (78757/2014) [2019] ZAGPPHC 242; 2019 BIP 9 (GP) (26 June 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
Case number: 78757/2014
Heard on: 20 June 2019
Date of judgment: 26 June 2019
In
the matter between:
TRUSTCO
GROUP INTERNATIONAL (PTY) LTD
First Applicant
TRUSTCO
FINANCIAL SERVICES (PTY) LTD
Second Applicant
TRUSTCO
MOBILE MAURITIUS (PTY) LTD
Third Applicant
TRUSTCO
GROUP HOLDINGS LTD
Fourth Applicant
and
HAHN
& HAHN INC
Respondent
JUDGMENT
SWANEPOEL AJ:
INTRODUCTION
[1]
On 24 October 2014 applicants instituted
action against respondent (a firm of attorneys) for unspecified
damages arising from alleged
professional negligence. Applicants'
case is, simply put, that they contracted with respondent to ensure
that first applicant's
patent, which was alleged to have been of full
force and effect during 2011, would not lapse. In order to do so,
applicants allege,
respondent was obliged to pay annual renewal fees
timeously, and if the patent had lapsed, to see to its restoration.
Applicants
allege a number of grounds of negligence which, so they
say, resulted in the patent lapsing, and having lapsed, not being
restored.
[2]
The action was issued out of this court.
Respondent then excepted to the particulars of claim on two grounds,
the only one relevant
to this application being the complaint that
this court did not have jurisdiction over the matter, by virtue of
the provisions
of section 18 (1) of the Patents Act, Act 57 of 1978,
which reserves disputes" relating to any matter under this Act"
(the Patents Act) for determination by the commissioner of patents.
[3]
The exception was enrolled before De Vos
J, who ruled that the High Court had jurisdiction to hear the matter.
His view was that
the claim concerned issues of fact, in other words,
whether respondent had been negligent, and merely a patent was
peripherally
relevant, did not make it into a matter under the
Patents Act. The exception was therefore dismissed.
[4]
Respondent again raised the question of
jurisdiction in a special plea, alleging the exact same complaint,
that this Court did not
have jurisdiction to hear the matter by
virtue of the provisions of section 18 (1) of the Patents Act.
Applicant seeks in this
application:
4.1
To separate out for determination the
special plea;
4.2
An order dismissing the special plea;
4.3
Costs.
[5]
The parties have agreed to the
separation of the jurisdiction question, and that it be determined by
this Court separately as a
special plea. Applicants take the view
that the special plea is in essence the same issue that was raised by
respondent as an exception.
If that were the case, applicant argues,
then the matter has been decided and is
res
Judicata.
If respondent were to take
the jurisdiction point further, it would have to appeal the decision
of De Vos J. (I must add that both
parties agree that the decision of
De Vos J is appealable.)
[6]
Respondent has argued that the judgment
of De Vos J was a nullity. The argument is that this court does not
have jurisdiction to
hear matters relating to patents, and having
found that this court in fact has jurisdiction in the matter, De Vos
J usurped for
himself powers which he did not have.
[7]
I was referred to two matters wherein
the orders were found to be a nullity. The first,
The
Master of the High Court v Motala NO
2012 (3)
SA
325
(SCA)
concerned
an order granted in the North Gauteng High Court. The learned judge
made an order placing a company under provisional
judicial
management, and having done so, appointing specific persons as
judicial managers. Section 429 of the Companies Act, Act
61 of 1973
reserved the authority to appoint a judicial manager for the Master
of the High Court, and
Motala
held
that the court cannot appoint whomever it deems fit as judicial
manager. Ponnan JA held (at 333 B to C) that:
"The learned judge usurped
for himself a power that he did not have. That power had been
expressly left to the Master by the
Act. His order was therefore a
nullity. In acting as he did, Kruger AJ served to defeat the
provisions of a statutory enactment.
It is after all a fundamental
principle of our law that
a
thing done
contrary to a direct prohibition of law is void and of no force and
effect."
[8]
The second matter,
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and others
concerned
an eviction application by Changing Tides, for the eviction of a
number of residents from a building in the city. The
difficulty
facing the court a
quo
was
that it did not have sufficient information regarding the occupants
of the building, and it consequently made an order that
the sheriff
of court was to enter the building and was to compile a schedule of
information regarding the occupiers and their personal
circumstances.
[9]
The particular part of the order
directing the sheriff to prepare schedules was criticised on appeal
on the grounds that the functions
of the sheriff were specifically
prescribed by statute, and that making schedules of persons and of
their circumstances was not
one of the prescribed functions. Wallis
JA held that:
"That part of the order
was
accordingly
improvidently sought and erroneously granted. It
is
therefore
a
nullity."
[10]
The question is whether De Vos J usurped a power that he did not have
by deciding that this Court
had jurisdiction in this particular
matter.
[11]
This Court's jurisdiction is derived
from section 21 of the Superior Courts Act, Act 10 of 2013:
"21
Persons over whom and matters in relation to which Divisions have
jurisdiction
(1)
A Division
has
jurisdiction over all persons
residing or being in, and in relation to all
causes
of action arising and all offences
triable within, its area of jurisdiction and all other matters of
which it may according to the
law take cognisance, and
has
the power-
(a)
....
. ...
(b)
.........
(c) In
its discretion, and at the instance of any interested person, to
enquire into and determine any existing,
future or contingent right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.
"
[12]
The meaning of this section (and its
forebears for that matter), has been interpreted as intending only to
convey that the jurisdiction
of the High Court is to be found in the
common law.
(See: Gallo Africa Ltd
and others v Sting Music (Pty) Ltd and others
2010 (6) SA 329
(SCA))
It is also trite that a High
Court has the inherent power to regulate its own process. These
courts have on numerous occasions been
called upon to determine
whether they have jurisdiction in a matter. Therefore, when De Vos J
ruled that this Court has jurisdiction
to hear the matter, he was
exercising an authority that these Courts have been clothed with by
virtue not only of the
Superior Courts Act, 2013
, but also by virtue
of the common law.
[13]
In contrast, in the
Motala
and
Changing
Tides
matters
(supra),
the presiding officer was clothing
himself with authority that he did not have, on the one hand by
appointing a judicial manager
when it was the Master's prerogative to
do so, and on the other hand ordering the sheriff to do things
outside of his legislated
authority.
[14]
The further question, whether the
judgment of De Vos J was sound or not, is not for this Court to
decide. The parties agree that
the decision is appealable, and should
respondent take issue with the judgment, it should appeal.
[15]
Having found that De Vos J's judgment
was not a nullity, it falls to be decided whether the judgment was in
fact appealable, and
whether it is
res
judicata.
The general rule is that
the dismissal of an exception is not appealable. In
Blaauwbosch
Diamonds Ltd v Union Government (Minister of Finance)
1915 AD 599
at
601
it was stated that the test
was whether the final word had been spoken on the particular point.
In order for a judgment or order
to be appealable it requires three
attributes:
15.1
The
order should be final in effect and not susceptible to alteration by
the court of first instance;
15.2
The
order should be definitive of the rights of the parties;
15.3
The
order should have the effect of disposing of at least a substantial
portion of the relief claimed.
(See:
Guardian
National Insurance
Co
Ltd v Searle
NO 1999 (3)
SA
296 (SCA))
[16]
I was pointed to the
dictum
by Nienaber JA in
Minister
of Safety and Security and another v Hamilton
2001 (3) SA 50
(SCA) at
55 G
that:
"The rule
is
that the
dismissal of an exception
is
not appealable to
this Court, save perhaps in that rare category of case(of which this
case, on any reading
is
not one) where
the
issue
in
question
is
presented in form
as
an
exception but the procedure in substance and effect
is
a stated
case."
[17]
In
Du
Toit v Ackerman
1962 (2) SA 581
(A)
while
relying on the authority of
Steytler
NO v Fitzgerald
1911 AD 295
the
dismissal of an exception on the grounds that the court did not have
jurisdiction was found to be a final judgment and consequently
appealable:
"Na my mening moet die
afwysing van hierdie eksepsie volgens ans geldende reg
as
'n finale
uitspraak oar die betrokke geskilpunt in die geding beskou te word."
[18]
The dismissal of an exception based on
lack of jurisdiction is therefore appealable. This particular case
also has to be distinguished
from cases where, for example, exception
is taken based upon prescription, where later evidence may cure what
seems initially to
be a stumbling block. In this matter the pleadings
are what they are, and this court either has jurisdiction on the
papers as they
stand, or it does not. Later developments in the case
cannot affect the outcome of the matter in regard to jurisdiction.
[19]
For the aforegoing reasons I am of the view that the judgment of De
Vos J was final in respect
of the jurisdiction point, was definitive
of the parties rights as to the forum in which the matter is to be
decided, and resolved
a substantial part of the matter, being the
special plea.
[20]
This matter seems to be one of those, as counsel for applicant
correctly, in my view argued,
where the point
in limine
was
presented as an exception, whilst in truth it was a stated case on
the jurisdiction of the Court. In my view therefore, the
judgment of
De Vos J was final, appealable and renders the jurisdiction point
res
iudicata.
[21]
In the
circumstances I make the following order:
21.1
In terms of
rule 33
(4) the special plea
is separated from the remainder of the issues by agreement between
the parties;
21.2
Respondent's special plea is dismissed;
21.3
Respondent shall pay the costs of the
application, including the costs of two counsel.
J.J.C.
Swanepoel
Acting
Judge of the High Court,
Gauteng
Division , Pretoria
Counsel
for Applicants:
Adv K W Luderitz SC
Adv K lles
Attorney for Applicants:
Adams & Adams
Counsel
for Respondent:
Adv
R Michau SC
Adv M Du Plessis
Attorney
for Respondent :
VDT Attorneys