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[2019] ZAGPPHC 373
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November and Another v Muller & Partners (A343/2017) [2019] ZAGPPHC 373 (7 August 2019)
REPUBLIC OF SOUTH AFRICA
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 NUMBER: A343/2017
7/8/2019
In
the matter between:
MOLONYANE
EVA NOVEMBER
1
st
Appellant
(1
st
Plaintiff in
Court
a quo)
NOZILILO
GLORIA
NOVEMBER
2
nd
Appellant
(2
nd
Plaintiff in
Court
a quo)
and
MULLER
& PARTNERS
Respondent
(2
nd
Defendant in Court
a
quo)
JUDGMENT
WRIGHT
J
1.
On
13 November 2002 Mr Zilindile November was, it is alleged, driving a
tractor on a public road in the Free State when the tractor
collided
with another vehicle. Mr November was killed. His wife and three
daughters are said to have suffered loss of support as
a result of
his death. The Fund, after the institution of the action relevant to
this appeal and on 10 February 2016 settled the
claims of the two
younger daughters. The claims of Ms Moloinyana November, the widow of
Mr November and that of Ms Nozililo November,
the elder daughter
remain the subject of dispute, the cause of action being against
Muller and Partners, the present respondent.
2.
In
the action forming the subject of this appeal, Ms Moloinyana November
sued as first plaintiff and tier elder daughter, Ms Nozililo
November
sued as second plaintiff. The Fund was cited as first defendant and
attorneys Muller and Partners were cited as second
defendant.
3.
The
cause of action against the Fund was based at least partly on the
alleged negligent driving of the driver of the vehicle not
driven by
Mr November and on the consequent alleged loss of support suffered by
the plaintiffs, namely Ms November senior and her
daughters.
4.
The
Fund was alleged to be liable for the claims of the two younger
daughters and it is these claims which have been settled by
the Fund.
5.
The
particulars of claim allege that Muller and Partners were engaged by
the appellants to prosecute the claims and that they negligently
allowed the claims of the appellants namely Ms November and her elder
daughter to prescribe.
6.
Muller
and Partners raised a special plea of lack of jurisdiction, pleading
that the cause of action did not arise within the jurisdiction
of
this court. The action was instituted in the High Court, Gauteng
Division, Tshwc;1ne, being where the Fund resides. The collision
occurred in the Free State and Muller and Partners practice in the
Free State.
7.
In
the cause of action against Muller and Partners, the appellants will
need to prove the alleged dependants' action they would
have needed
to prove against the Fund and in addition, the mandate, or continuing
mandate to Muller and Partners and their alleged
negligence in not
prosecuting the claims timeously if in fact the claims were not
prosecuted timeously.
8.
The
plea of lack of jurisdiction came before Baqwa J. The matter appears
to have been argued on the common cause facts set out above
and no
evidence was led. The learned judge upheld the plea but granted leave
to appeal to the present appellants, Ms Moloinyane
November and her
elder daughter to a Full Court of this Division.
9.
When
the action was instituted, three plaintiffs were cited. Firstly, Ms
Moloinyane November, who sued in her personal capacity
(this claim
being against Muller and Partners) and as guardian and legal
representative of her youngest daughter (this claim being
against the
Fund). The second and third plaintiffs were cited as adult daughters
of Mr November with their own claims against the
Fund.
10.
Summons was issued on 17 September 2010.
It was served on the Fund, in Tshwane on 20 September 2010 and on
Muller and Partners,
in Welkom on 27 September 2010.
11.
The
Superior Courts Act 10 of 2013
came into operation on 23 August 2013.
It repealed the Supreme Court Act 59 of 1959. Under section 19(1) of
the repealed Act "
A provincial
or local division shall have jurisdiction in and over all persons
residing or being in and all causes arising and all
offences triable
within its area of Jurisdiction and in all other matters of which it
may according to law take cognizance
...
" The new Act repeats this provision in section 21(1). Under
section 52(1) of the new Act,
"Subject
to section 27, proceedings pending in any court at the commencement
of this Act must be continued and concluded as
if this Act had not
been passed".
I read this
latter provision, not as one stultifying the law on jurisdiction as
at 23 August 2013 but rather as one allowing actions
begun prior to
the commencement of the new Act to continue without interruption.
That said, and applying section 19(1) of the old
Act, subject to one
important observation, I am of the view that the appeal must succeed.
12.
It
was in my view, sensible to bring all claims in one action. This
choice limited the number of trials to one rather than two,
it allows
the witnesses who would testify regarding the claim as it would have
been against the Fund to testify once rather than
twice and it limits
legal costs and valuable judicial time and court officials' time to
one rather than two trials. One trial rather
than two does away with
the undesirable possibility of conflicting judgments on the questions
of negligent driving and quantum
of loss. Court efficiency in
deciding disputes is an important part of modern litigation.
13.
It
may be that the present action could have been instituted in the Free
State with the court there having jurisdiction over the
Fund at least
for the same reason now sought by Ms November and her elder daughter
for the Gauteng Division to have jurisdiction
over Muller and
Partners. In my view, it matters not which coursewas adopted by the
Novembers. At the end of the day, the efficient
determination of the
matter is an important consideration.
14.
In
my view to decline jurisdiction over Muller and Partners
I
would be to follow too narrow a
reading of section 19(1) of the old Act when a slightly wider reading
gives better effect to the
section particularly with reference to the
significant strides forward our law has taken since 1959.
15.
The
observation to which I referred above is that under section 173 of
the Constitution the court has the power to develop the common
law in
the interests of justice. See
Ngxuza
v Permanent Secretary, Dept of Welfare, Eastern Cape 2001(2) SA609 E
at 626 H-629 C.
16.
Under
Uniform Rule 10(3), different defendants may be joined where the
determination of the disputes depends substantially on the
same
questions of law or fact.
17.
The
judgment of Fourie J in
Dlamini v RAF
on 21 May 2019 under case number
7658/08 in this division is support for my conclusion.
18.
The
Fund settled the claims of the younger daughters well after the
present action had been instituted. Accordingly, despite the
fact
that the Fund Is now out of the picture this court had jurisdiction
over Muller and Partners when the action was instituted
and it
continues to have this jurisdiction.
19.
In the result the following order is
made.
ORDER
1.
The
appeal is upheld with costs, including those of senior counsel.
2.
The
order upholding the plea of lack jurisdiction, and its costs order
are set aside and replaced with an order reading
'The
plea of lack of jurisdiction is dismissed with costs including the
wasted costs of 10 February 2016 and 16 August 2016."
WRIGHT
J
MOTHLE
J
I
agree
LOUW
J
I
agree
APPEARANCES
For
the Appellants:
Adv J O
Williams SC
For
the Respondent:
No
appearance
Date
of hearing:
7 August 2019
Date
of judgment:
7 August 2019