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[2019] ZAKZPHC 78
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World Net Logistics (Pty) Ltd v Donsantel 133 CC and Another (AR 350/2018) [2019] ZAKZPHC 78; [2020] 1 All SA 593 (KZP); 2020 (3) SA 542 (KZP) (29 November 2019)
In
the High Court of South
Africa
REPORTABLE
KwaZulu-Natal
Division, Pietermaritzburg
Appeal
Case No. AR 350/2018
In
the matter between:
World
Net Logistics (Pty)
Ltd
Appellant
and
Donsantel
133
CC
First Respondent
Ahmed
Mulla
Second
Respondent
Judgment
Lopes J (Vahed J
concurring):
[1]
This is an appeal against a judgment of the learned magistrate in the
Durban Regional Court, handed
down on the 14
th
February
2018. The appeal concerns the admiralty jurisdiction of the
magistrates’ courts.
[2]
At stake in the court
a quo
, was the modest sum of
R213 837.05. It was said to be owed, jointly and severally, by
the first respondent (as principal)
and the second respondent (as
surety) for freight forwarding services rendered by the appellant to
the first respondent. But a
little more of the background is perhaps
necessary.
[3]
During September 2013 the appellant and the first respondent
concluded a written agreement (“the
service agreement”)
for the provision of freight forwarding services by the appellant to
the first respondent. At the same
time the second respondent bound
himself as surety and co-principal debtor (“the suretyship
agreement”) for all debts
due by the first respondent to the
appellant.
[4]
The service agreement contained the consent by the first respondent
to the jurisdiction
of the magistrates’ courts in the following
terms:
‘
The
customer consents to the jurisdiction of the Magistrates’ Court
in terms of Section 45 of the Magistrates’ Court
Act No. 32 of
1944 (as amended), to any Magistrates’ Court otherwise having
jurisdiction under Section 28 of the said Act,
notwithstanding that
the claim by the company exceeds the normal jurisdiction of the
Magistrates’ Court as to amount. The
company shall, in its
discretion, be entitled to proceed against the customer in any other
court of competent jurisdiction notwithstanding
the aforegoing.’
[5]
The appellant’s trading terms and conditions were also included
by reference into
the service agreement. These were contained in a
document titled “South African Association of Freight
Forwarders: Trading
Terms and Conditions” (“the T’s
and C’s”) which was annexed to the service agreement. The
first respondent
agreed to be bound by those. The T’s and C’s
contained a submission to jurisdiction by the first respondent in the
following terms:
‘
SUBMISSION
TO JURISDICTION
The parties agree
that any legal action or proceeding arising out of or in connection
with these trading terms and conditions shall
be brought in the
divisions of the Supreme Court of South Africa where the company’s
head office is situated at the commencement
of the proceedings, and
the customer irrevocably submits to the non-exclusive jurisdiction of
such court.’
[6]
In a similar vein, the suretyship agreement contained the following
provisions:
‘
12.
I hereby agree and consent that the creditor shall, at its option, be
entitled to institute any legal proceedings which may
arise out of or
in connection with this deed of suretyship, at the election of the
creditor, in:-
12.1.
any magistrate’s court having jurisdiction, notwithstanding the
fact that the claim or value of the matter might exceed
the
jurisdiction of such magistrate’s court; or
12.2.
the [insert relevant high court ie: South Gauteng] (sic) High Court
of South Africa to which jurisdiction I hereby consent.’
[7]
The action began in the court below during May or June 2014. A year
later, during May 2015, the respondents delivered their joint plea.
It contained a mere five terse paragraphs. That delay is perhaps
explained by paragraph 4 of the joint plea which said that ‘…the
First and Second Defendants incorporates paragraphs
6 to 38 of the
Defendants (sic) Affidavit in support to (sic) its application for
recession (sic)’.
[8]
The affidavit does not form part of the appeal record. Indeed,
none of the documents delivered within that year, (May 2014 –
May 2015), and no information as to what happened during that
year,
has been placed before us.
[9]
The record then reveals that during February and March 2017 the
second
respondent delivered a notice of intention to amend his plea
by the introduction of two special pleas. The actual amendments took
effect towards the end of April 2017 when the second respondent
delivered the amended pleadings.
[10]
The first special plea contended that the court
a quo
did not
have jurisdiction to entertain the suit on the basis that the claim
was a maritime claim as defined in s 1 of the Admiralty
Jurisdiction
Regulation Act, 1983 (‘the Act’) and that only the high
court exercising its admiralty jurisdiction could
determine the
dispute. The second special plea related to a contention that the
appellant was obliged to register as a credit provider
in terms of
the relevant provisions of the
National Credit Act, 2005
and that its
failure to do so precluded it from recovering any debt alleged to be
due to it where such debt arose from the provision
of credit by it.
[11]
The special pleas were enrolled before the court
a quo
on 6
December 2017 and argued on that date. On 14 February 2018 the
learned magistrate delivered a written judgment dealing only
with the
first special plea which he upheld. He did not deal with the second
special plea because, he said, there was no need to,
and, in any
event, his conclusion that he lacked jurisdiction meant that he also
lacked jurisdiction to consider the second special
plea. This appeal
is against the upholding of that first special plea.
[12]
What occurred between the delivery of the initial joint plea (2015)
and the
delivery of the special pleas (2017) does not form part of
the appeal record. Indeed, none, if any, of the documents delivered
within that period (2015-2017), and no information as to what
happened during that period, has been placed before us. However, a
transcript of a portion of the argument before the court
a quo
concerning the special pleas has been included in the record.
From there one notes a singular reference to the fact that at the
time argument unfolded before the court below the first respondent
was by then in liquidation. It was also noted that counsel for
the
respondents’ initial heads of argument contained an indication
that the first respondent was in liquidation. The record
contains no
indication as to what was done about that fact, if anything, and
whether the trial (on the special pleas) unfolded
with the knowledge
and consent of the first respondent’s liquidator is unknown.
[13]
The appeal was originally enrolled before Vahed and Olsen JJ on 24
May 2019.
Prior thereto, in preparation for the hearing of the
appeal, they had requested counsel to address, firstly, the question
of the
liquidation of the first respondent and the impact that had on
the appeal continuing and, secondly, the implication of the divers
consents or submissions to jurisdiction alluded to earlier in this
judgment.
[14]
At the hearing on 24 May 2019 the appeal was adjourned to 21 June
2019. This
was because:
(a)
Mr
Tobias
,
who then appeared for the second respondent, contended that the
appeal could not proceed in the absence of the involvement of
the
first respondent’s liquidators;
(b)
The court sought additional submissions on certain aspects of the
judgments (majority and minority) delivered in
The
Wave Dancer: Nel v Toron Screen Corporation
(Pty)
Ltd & another
1996 (4) SA 1167
(SCA);
(c)
By then it was probable that the two judges presiding would have
differing views on the appeal.
[15]
That was how, by direction of the Judge President, the full court was
constituted
at the resumed hearing of the appeal on 21 June 2019. At
the resumed hearing we were satisfied with the evidence contained in
an
affidavit deposed to by the second respondent’s attorney to
the effect that the liquidators of the first respondent had been
furnished with the record and that those liquidators had elected not
to participate in the appeal, but instead chose to abide our
decision.
[16]
The following facts are common cause:
(a)
The appellant’s claim is a maritime claim as defined in s 1 of
the Act.
(b) The
suretyship agreement provided for the jurisdiction of the
magistrates’ courts, notwithstanding that the
claim or value of
the matter in dispute might exceed the jurisdiction of the
magistrates’ courts. The jurisdiction clause
also provided for
the consent of the parties to the jurisdiction of the relevant high
court, if selected by the parties. No election
was made.
(c) Two
issues fall to be decided by this court:
(i)
Do the magistrates’ courts have jurisdiction to hear a maritime
claim, in circumstances
where the magistrates’ courts would
otherwise have jurisdiction to hear the action?
(ii)
Where an objection is raised to the magistrates’ courts’
jurisdiction,
does a magistrate have the authority to ignore the
objection, and proceed to hear the claim, if it is otherwise within
the magistrates’
courts’ jurisdiction?
(d) As
the second respondent was sued as surety, he was entitled to raise
any defence which would have been available
to the principal debtor.
[17]
Mr
Wallis
, who appeared for the appellant, submitted that:
(a) In
the 35 years since the passing of the Act, there are no reported
cases dealing with whether the magistrates’
courts have
jurisdiction to hear admiralty matters. He drew attention to the
rising ordinary jurisdiction of the magistrates’
courts. The
result is that an action based upon a maritime claim may be made in a
magistrate’s court, which is otherwise
competent to hear the
claim. However, it may not do so if admiralty jurisdiction is
reserved to the admiralty court. In this matter
the learned
magistrate incorrectly dismissed the action on the basis that the
appellant’s claim is a maritime claim, and
the magistrates’
court is precluded from hearing any matter that would qualify as a
maritime claim. That decision, if correctly
made, would deprive
litigants from access to justice because of the high costs involved
in high court litigation. It would also
place all maritime matters,
no matter how small, before the admiralty court.
(b)
Where no objection is raised to a maritime claim brought in a
magistrates’ court, and which claim is otherwise
within its
jurisdiction, a magistrate could simply continue to apply the
ordinary jurisdiction of that court.
See
:
The Wave
Dancer
, and the comments on that case in
Columbus Stainless
(Pty) Ltd v Kuehne & Nagel(Pty) Ltd & another, In Re:
National Ports Authority of South Africa v Kuehne
& Nagel (Pty)
Ltd & another
[2014] ZAKZDHC 19, para 25.
(c)
In the
The Wave Dancer
, Olivier JA dealt with the provisions
of s 7 of the Act, where two principles emerged:
(i)
That it is not peremptory that maritime claims be heard in an
admiralty court. An admiralty court
may decline its jurisdiction if
it is of the opinion that any other court in the Republic or any
other court or arbitrator, tribunal
or body elsewhere can more
appropriately hear the matter.
(ii)
If the question of jurisdiction is raised in proceedings before a
provincial or local division of the
high court, such court should
determine the issue, and if it decides that the matter relates to a
maritime claim, it shall order
that the matter be proceeded with in a
maritime court.
(d)
In
The Wave Dancer
, the matter of jurisdiction had not been
raised in the provincial division. Olivier JA was of the view that
where the question
of jurisdiction was not raised, and that court
failed to make a decision on jurisdiction, the provincial division
was not precluded
from exercising its ordinary jurisdiction, and the
jurisdiction issue could not be raised on appeal.
(e)
Although the minority judgment in
The Wave Dancer
has
no precedential authority, Scott JA agreed that the Act did not
expressly exclude maritime claims from the ordinary jurisdiction
of
the high court. The question whether a claim instituted in the high
courtigh Court, is a maritime claim may be raised, and the
decision
on that issue determines the court’s civil jurisdiction. If the
court decides that the claim is a maritime claim,
then it must
proceed in the admiralty court. This only applies, however, when the
high court determines that the claim is a maritime
claim.
(f)
On the authority of
The
Wave Dancer
,
the learned magistrate in the matter had no jurisdiction to conduct
an enquiry into whether the forwarding claim was a maritime
claim.
The exclusive jurisdiction of the admiralty court, when challenged,
could only be invoked once an enquiry in terms of s
7(2) of the Act
was completed in the high court (aside from admiralty claims made as
such). The Act falls to be interpreted along
the principles set out
in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA), and the article by DB Friedman entitled
‘Maritime Law in the Courts after 1 November 1983’
,
published
in
South
African Law Journal
,
volume 103, 1986, at page 678.
(g)
There is, however, a practical solution to a defendant in a
magistrate’s court raising a defence that the
plaintiff’s
claim is a maritime claim. The presiding magistrate should halt the
proceedings, and refer the matter to the
high court for a decision to
be made in terms of s 7 of the Act. The decision itself is not one
which a magistrate has the jurisdiction
to make. The dismissal of the
appellant’s claim in this matter was accordingly incorrectly
made by the learned magistrate.
This practical solution was an
alternative to the earlier submission that the learned magistrate had
no power to determine whether
a claim fell within the provisions of s
1 of the Act, because it was within his power to determine whether he
had jurisdiction
to determine any claim.
(h) This
court could only uphold the decision of the learned magistrate if the
Act removed the powers of magistrates
to decide admiralty matters. If
that was the intention of the legislature, it would have been very
simple for it to have stated
that explicitly in the Act. That it did
not do so indicates that it did not intend to do so.
[18]
Mr
Harpur
SC
, who appeared for the second respondent,
submitted that:
(a)
There were only two issues to be decided by this court:
(i)
Does a magistrate have jurisdiction to deal with maritime claims
under the Act?
(ii)
Can a magistrate, if an objection to jurisdiction is raised on the
basis that the claim is a maritime
claim, ignore that fact, and
decide the case using the magistrates’ courts’ ordinary
jurisdiction (on the basis that
the matter otherwise falls within the
magistrates’ courts’ jurisdiction)?
(b)
It is common cause that the answer to the first question is that the
magistrates’ courts do not have the power
to exercise admiralty
jurisdiction. If the issue of a claim being a maritime claim is not
raised before the magistrate, the action
may clearly proceed in the
exercise of the magistrates’ courts’ ordinary
jurisdiction. In that instance there would
be no question of the
magistrate exercising admiralty jurisdiction. The magistrates’
courts have no inherent original jurisdiction.
The jurisdiction of
the magistrates’ courts is to be found in the statute creating
it.
The Wave Dancer
does not assist the appellant, because it
dealt with a claim in the high court - a court of original
jurisdiction.
(c)
Where a defendant raises before a magistrate the fact that a claim is
a maritime claim, the plaintiff may still
wish to proceed in an
admiralty court in order to secure the benefits available in that
jurisdiction, which are not available in
the magistrates’
courts’ ordinary jurisdiction. Should such a litigant be
deprived of those benefits? To do so would
be to breach the
litigant’s rights of access to court and the equality
provisions of the Constitution.
(d)
It is undesirable to allow plaintiffs to choose the forum which best
suits them, which would happen if they could
simply elect the court
in which they wished to proceed. The high court has exclusive
jurisdiction to hear matters in admiralty
because it is a court of
unlimited jurisdiction. In
Admiralty Jurisdiction Law and Practice
in South Africa
(2006) by Gys Hofmeyr, at page 19, the learned
author states:
‘
Prior
to the commencement of the Act, a Magistrate’s Court did not
have admiralty jurisdiction. The Colonial Courts of Admiralty
Act of
1890 conferred admiralty jurisdiction only on courts of law having
unlimited jurisdiction. The preamble to the Act records
that the Act
was “to provide for the vesting of the powers of the admiralty
courts of the Republic in the provincial and
local divisions of the
Supreme Court of South Africa . . . .” (now the High
Court). Moreover s 2 of the Act provides
that the Supreme Court shall
have jurisdiction to enforce maritime claims which are enforceable
either
in
rem
or
in
personam
.
There is no statutory provision authorising the Magistrate’s
Court to entertain proceedings
in
rem
or to exercise the other powers vested in courts exercising admiralty
jurisdiction. It is accordingly submitted that a Magistrate’s
Court does not enjoy admiralty jurisdiction. This view appears to
derive some support from the fact that the Act specifically preserves
the jurisdiction which a Magistrate’s Court has under sections
131, 136 and 151 of the Merchant Shipping Act of 1951.’
(Footnotes
omitted).
The
learned author then makes the point that a magistrate’s
court may hear a maritime claim falling within
its ordinary
jurisdiction, but the court would not be exercising admiralty
jurisdiction. Should such a procedure result ‘in
“undue
expense or inconvenience”, a magistrate’s court would be
empowered in terms of s 35 of the Magistrates’
Court’s
Act, to transfer the proceedings to “any other court”’.
Mr
Harpur
submitted that Hofmeyr misread the Magistrates’
Courts Act in this regard.
[19]
During my research of the matter, my brother Olsen J drew my
attention to a
thesis submitted by Mr Pré Prinsloo in partial
fulfilment of the requirements for the degree of Master of Laws in
the Faculty
of Law, Natal University (Durban) 1998-2000. The
thesis is entitled ‘The Jurisdiction of the Magistrate’s
Court
over Maritime Claims’. In his thesis, Mr Prinsloo deals
extensively with the problem which existed prior to the enactment
of
the Act (that claims could be pursued in more than one court, with
possibly different outcomes), and he cites a number of cases
dealt
with in the various magistrates’ courts prior to the Act. All
the cases were the subject matter of appeals. Counsel
were referred
to those cases, and the thesis, and invited to make further written
submissions. They both did so.
[20]
Mr
Wallis
submitted that:
(a)
The cases would all have qualified to be heard pursuant to the
Colonial Courts of Admiralty Act, 1890.
(b)
Notwithstanding that fact, the magistrates’ courts exercised
jurisdiction and heard the matters.
(c)
The matter of jurisdiction was not raised by any of the appeal
courts. That was because the jurisdiction of
the two courts
overlapped at the time.
(d)
The position, which was regarded as unsatisfactory, was the subject
matter of the decision in
Crooks & Co v Agricultural
Co-Operative Union Ltd
1922 AD 423.
(e)
The problem arose because the magistrates’ courts’
jurisdiction was not limited by the Colonial
Courts of Admiralty, and
consequently, no jurisdictional points were raised on appeal.
(f)
Accordingly, there is nothing in the preamble to the Act which shows
an intention by the legislature to revoke
the jurisdiction of the
magistrates’ courts which had hitherto been exercised.
[21]
Mr
Harpur
submitted that:
(a)
None of the cases cited refer to the question whether the
magistrates’ courts had the jurisdiction to decide
admiralty
claims.
(b)
The cases concerned claims which would have fallen within the
definition of maritime claims in terms of the Act.
However, when the
cases were heard on appeal, no reference was made to the fact they
involved maritime claims.
(c)
The thesis submits that no admiralty jurisdiction was ever accorded
to the magistrates’ courts.
(d)
The thesis concludes that the effect of
The Wave Dancer
is
that the concern of overlapping jurisdictions was not resolved by the
introduction of the Act. Consequently the problem would
persist. This
is an overstatement of the case which did no more than apply a
practical solution to a problem which only arose on
appeal because
the parties in the provincial division had failed to identify the
problem.
(e)
The Wave Dancer
created an exception which accorded with the
inherent jurisdiction of the high court – ie. if no dispute is
raised, the high
court may proceed with a claim which qualifies as a
maritime claim, although the high court would exercise its ordinary
jurisdiction.
Where the claim is identified as a maritime claim, it
is necessary for it to be decided in an admiralty court. It is this
exception
which proves that the admiralty court has exclusive
jurisdiction to determine maritime claims.
(f)
Accordingly, the learned magistrate had no alternative but to
classify the claim as a maritime claim, and
dismiss the action.
Unlike
The Wave Dancer
, in this matter, the jurisdictional
objection was raised and the decision was correctly made.
(g)
It would have been bizarre for the learned magistrate to have found
that the claim was a maritime claim, but nevertheless
continued to
hear the matter in the exercise of the magistrates’ courts’
ordinary jurisdiction. The fact that a claim
is classified as a
maritime claim precludes the hearing of that claim as a ordinary
claim.
Reasoning:
[22]
The Act provides:
‘
2
Admiralty jurisdiction of Supreme Court
(1) Subject to the
provisions of this Act each provincial and local division, including
a circuit local division, of the Supreme
Court of South Africa shall
have jurisdiction (hereinafter referred to as admiralty jurisdiction)
to hear and determine any maritime
claim (including, in the case of
salvage, claims in respect of ships, cargo or goods found on land),
irrespective of the place
where it arose, of the place of
registration of the ship concerned or of the residence, domicile or
nationality of its owner.
(2) For the purposes
of this Act, the area of jurisdiction of a court referred to in
subsection (1) shall be deemed to include that
portion of the
territorial waters of the Republic adjacent to the coastline of its
area of jurisdiction.
…
7 Disputes as to
venue or jurisdiction
(1)(
a)
A
court may decline to exercise its admiralty jurisdiction in any
proceedings instituted or to be instituted, if it is of the opinion
that any other court in the Republic or any other court or any
arbitrator, tribunal or body elsewhere will exercise jurisdiction
in
respect of the said proceedings and that it is more appropriate that
the proceedings be adjudicated upon by such other court
or by any
such arbitrator, tribunal or body.
. . .
(2)
When in any proceedings before a provincial or local division,
including a circuit
local division, of the Supreme Court of South
Africa the question arises as to whether a matter pending or
proceeding before that
court is one relating to a maritime claim, the
court shall forthwith decide that question, and if the court decides
that-
(
a)
the matter is one relating to a maritime claim, it shall be proceeded
with in a court
competent to exercise its admiralty jurisdiction, . .
.
(b)
the
matter is not one relating to a maritime claim, the action shall
proceed in the division having jurisdiction in respect of the
matter:
. . .’
[23]
The following
factors support the argument that the magistrates’
courts have
no jurisdiction to decide maritime claims:
(a)
The provisions of the
Magistrates’ Courts Act, 1944
prescribe
the jurisdiction of the magistrates’ courts. It makes no
express or implied provision for the exercise of admiralty
jurisdiction.
(b)
The introduction to the Act provides:
‘
To
provide for the vesting of the powers of the admiralty courts of the
Republic in the provincial and local divisions of the Supreme
Court
of South Africa, and for the extension of those powers; for the law
to be applied by, and the procedures applicable in, those
divisions;
for the repeal of the Colonial Courts of Admiralty Act, 1890, of the
United Kingdom, in so far as it applies in relation
to the Republic;
and for incidental matters.’
(c)
Section 14 of the Act provides for the retention of
jurisdiction by the magistrates’ court, to deal with certain
matters formerly covered by the Merchant Shipping Act, 1951. Those
provisions relate to a very limited area of jurisdiction which
existed prior to the commencement of the Act, and deal with the
speedy treatment of seafarers’ wages. This specific inclusion
in the Act appears to indicate that the Act did not, otherwise,
intend to extend admiralty jurisdiction to the magistrates’
court.
(d)
There are various aspects of admiralty practice which
are not available in the ordinary jurisdiction of the magistrates’
courts. These include: the ability of the admiralty court to give
security for ‘any claim’ (s 5(2)(
b
) of the Act);
the referral of a matter to arbitration (s 5(2)(
e
) of the
Act); actions
in rem
; provisions for security arrests; and
procedural aspects such as the admission of hearsay evidence, the
gathering of evidence,
etc.
(e)
The fact that the Colonial Courts of Admiralty
Act, 1890 sought to extend the jurisdiction of the admiralty
courts
to only courts of original unlimited civil jurisdiction – which
does not apply to the magistrates’ courts. In
Admiralty
Jurisdiction and Practice in South Africa
(1987) DJ Shaw QC
records that after the enactment of the Colonial Courts of Admiralty
Act, 1890, South African courts, in the exercise
of their ordinary
jurisdiction, heard cases which could have been brought before the
Colonial Courts of Admiralty. Thus, two courts
could apply different
systems of law, with both subject to local statutory law. This could
affect both the result of the matter
and the ranking afforded to
claimants. With the introduction of the Act, admiralty jurisdiction
was set out in s 2, by referring
to the hearing and determination of
maritime claims. Shaw also states that s 7 of the Act provides for
the final determination
of disputes of jurisdiction, a decision which
cannot be appealed (see s 7(4) of the Act). I am unable to find any
reference by
the learned author that it was envisaged that
magistrates’ courts would have the right to exercise
admiralty jurisdiction.
(f)
It would appear from literature at the time of
commencement of the Act that it was never envisaged that the
magistrates’ courts would have jurisdiction to hear admiralty
matters. This is in accordance with the views of Hofmeyr. John
Hare
in his work
Shipping Law & Admiralty Jurisdiction in South
Africa
, 2ed (2009) expressed a seemingly contrary view, and
opined that
s 35(1)
of the
Magistrates’ Courts Act, 1944
enables that court to transfer matters to the high court. Counsel for
both parties before us viewed this as a misinterpretation
of that
section. Hare’s analysis of the provisions of s 7(2) of the
Act, allows for a magistrate to decide whether a claim
is a maritime
claim in terms of the Act. This approach ignores the provisions of s
2 of the Act leading to the interpretation that
s 7 of the Act refers
only to a high court.
(g)
There is no real prejudice to be suffered by litigants
being deprived of having access to justice or of equality,
or of
being heard, by having to proceed in the high court at added expense.
A plaintiff has the right to elect the court in which
to prosecute
the claim made against the defendant. If the plaintiff chooses the
magistrates’ court, and the defendant objects
on the basis that
that the matter is an admiralty claim, that is a consequence of the
legislation – the claim will then have
to be heard in the
admiralty court which will retain a discretion with regard to costs
where a defendant has unreasonably resorted
to the admiralty court
for tactical reasons. The same logic would apply to a plaintiff who
sues in the first instance in the admiralty
court when the ordinary
jurisdiction of a lower court would have sufficed.
(h)
The provisions of s 6 of the Act provide that maritime
claims which existed under the Colonial Courts of Admiralty
Act,
1890, and which still existed in 1983 at the commencement of the Act,
are to be decided according to English Admiralty Law.
This ‘is
not the ordinary municipal law of the country, but it is the law
which the English Court of Admiralty, either by
Act of Parliament or
by reiterated decisions and traditions and principles, has adopted as
the English maritime law . . .’
See:
Crooks & Co v
Agricultural Co-operative Union Ltd
,447. These have been
referred to by some authors as the old maritime claims. Those (new)
maritime heads of jurisdiction which
came into existence upon the
passing of the Act are to be decided according to Roman Dutch Law.
All claims however, are to be viewed
in the light of the
Constitution. Courts are enjoined to interpret legislation, where
possible, as being constitutionally valid.
(i)
In
Pollak on Jurisdiction
2ed (1993) by David
Pistorius, the learned author deals with cases where the jurisdiction
of certain courts is excluded. At page
14, he states:
‘
Complete
exclusion is usually, but not exclusively, as the result of statutory
intervention. The legislature establishes a separate
and distinct
jurisdiction to deal with a class of cases and within the limits of
that jurisdiction the ordinary courts are precluded
from
interfering.’
He
then cites examples such as: the Water Act, 1956 which provides
the water court with jurisdiction to deal with certain
matters
specified in s 40 and no other court may do so. The high court and
the water court share concurrent jurisdiction with regard
to
interdicts in intended proceedings; the
Patents Act, 1978
, where a
high court judge (the Commissioner of Patents) is given exclusive
jurisdiction; the Maintenance and Promotion of Competition
Act, 1979;
the Income Tax Act, 1962; the Workmen’s Compensation Act, 1941;
and the Labour Relations Act, 1956
.
(Some of these acts have
been amended or repealed).
The
learned author also deals with the Act, and refers to the fact that
the ordinary jurisdiction of the high court is excluded
in admiralty
matters, and even, in some cases from the application of the common
law. Similarly, non-admiralty matters may not
proceed in the
admiralty court.
(j)
The South African Law Commission published ‘Project
32 Report on the Review of the Law of Admiralty’
on the 15
th
September 1982. It made no recommendation on the aspect of the
magistrates’ courts exercising admiralty jurisdiction. No
reference to the magistrates’ court exercising admiralty
jurisdiction is made by the Commission in setting out the history
of
the admiralty jurisdiction. The Bill itself refers only to the
precursor of the present s 14 of the Act. In the precursor to
the
present s 7 (s 8(3) of the Bill), the following paragraph was
included:
‘
Any
claim heard and decided as a maritime claim shall for all purposes be
deemed to have been a maritime claim and any claim heard
and decided
as a non-maritime claim shall for all purposes be deemed to have been
a non-maritime claim, and no appeal shall lie
against any decision or
order made under subsection (1).’
The
present subsection 7(1) was s 8(1) of the Bill.
(k)
The decision in
The Wave Dancer
finds no
application in the present matter. The case does not deal with the
jurisdiction of the magistrates’ courts, and
s 7 of the Act was
designed to deal only with a conflict between the jurisdictions of
the high court, and the admiralty court.
[24]
The following factors suggest that the magistrates’ courts
have
jurisdiction to decide maritime claims otherwise falling within its
jurisdiction:
(a)
The parties agree that, absent a complaint
from the second respondent, the learned magistrate could
have
continued with the present claim (despite it being a maritime claim)
in the exercise of the magistrates’ courts’
ordinary
jurisdiction, on the basis that the claim otherwise fell within that
court’s jurisdiction. This carries with it
the proviso that the
procedures available in the exercise of the magistrates’
courts’ ordinary jurisdiction enable
those court to hear such
matters. One can envisage many claims where this would be the case,
and there would be no need to hear
the matter in the high court. Such
a course would have beneficial time and cost implications for both
parties. It was also, seemingly,
contemplated in the Bill, but
omitted from the Act.
(b)
The magistrates’ courts were previously considered to have
jurisdiction, as is evident from the
cases cited in Mr Prinsloo’s
thesis.
(c)
Why should the objection of the second respondent be sufficient to
cause the proceedings to be
stopped and force the applicant to
proceed in a far more expensive forum? The ordinary jurisdiction of
the high court is not excluded
where the matter of the definition of
a ‘maritime claim’ is not raised. What factors would then
require the exclusion
of the magistrates’ courts?
(d)
The fact that the magistrates’ courts are perfectly adequately
equipped to deal with most maritime
claims which are otherwise within
its jurisdiction, would seem to suggest that it was intended to be
allowed to do so. The occasions
when a challenge is made to a
magistrate’s jurisdiction seem to arise when a wholly
unnecessary objection is made because
it would suit a defendant to
make use of a tactic probably suggested by his legal representative.
This should not be tolerated,
notwithstanding the abovementioned
remedies for costs. The situations where a magistrate is faced with a
claim in admiralty where
the amount in dispute is within the
magistrates’ courts’ jurisdiction, but the procedural
advantages to a defendant
would not be available, are surely few and
far between. The same applies to claims where the required machinery
to prosecute the
claim is just not available to a magistrate. To deny
litigants an expeditious and inexpensive method of recovery seems
unwarranted.
(e)
There is nothing in the language of s 7 of the Act to suggest that
magistrates’ courts’
are not included in the phrase ‘…
any other court in the Republic….’ If the
legislature had intended
admiralty jurisdiction to be the exclusive
province of the high court (and the high court sitting in admiralty)
it would surely
have used more limiting language.
(f)
The approach of the Appellate Division in
The Wave Dancer
was
that maritime claims were not excluded from the ordinary jurisdiction
of the high court. The court held that a decision that
a claim is a
maritime claim deprives the high court of its ordinary civil
jurisdiction. Where the matter is not raised the court
is not
precluded from exercising its ordinary jurisdiction.
[25]
In my view those arguments favouring a conclusion that
the
magistrates’ courts have no jurisdiction outweigh those
suggestive of the opposite conclusion. The learned magistrate
correctly found that the claim was a maritime claim. Had he been
sitting in the high court, he would have referred the matter to
the
admiralty court. Sitting in a magistrates’ court, however, he
could not do so, and was obliged to hear the action, or
dismiss the
action. If he had not dismissed the action, and had subsequently
heard the matter to completion, he may not have had
to apply the
provisions of the Act. That however, was not a discretion which he
was empowered to exercise at that stage. Once his
jurisdiction was
challenged, he was compelled to decide whether the matter was a
maritime claim. Having found that it was, it fell
to be dealt with in
terms of the Act, which he could not do.
[26]
I have read the dissenting judgment of my brother Olsen J. I regret
that I am unable to agree with his conclusion, because s 7 of the
Act, in my view, is intended to deal only with matters in the
high
court. It does not follow that because the Act does not preclude
maritime claims being heard in the high court, it does not
preclude
maritime claims being heard in the magistrates’ courts. Once it
is accepted that the magistrates’ courts have
no jurisdiction
to apply the Act, the same referral as would occur from the high
court to the admiralty court cannot apply in the
case of the
magistrates’ courts. This is because the magistrates’
courts have no jurisdiction to apply the provisions
of the Act, and
there is no provision in the
Magistrates’ Courts Act, 1944
, to
transfer the matter to the high court exercising its admiralty
jurisdiction. There are many instances where the high court
is able
to exercise a jurisdiction which the magistrates’ courts may
not. The exclusion of a maritime matter only arises
where a challenge
is raised to a magistrate’s jurisdiction. This does not, in my
view, raise objection to the exclusivity
of the high court exercising
its admiralty jurisdiction, any more than a claim otherwise in excess
of the jurisdiction of the magistrates’
courts, would raise
such an objection.
[27]
I conclude that the learned Magistrate correctly dismissed the claim,
because once the objection was raised, and the learned Magistrate
(correctly) held that the matter was a maritime claim, he had
no
option but to dismiss the action. The conclusion is, for some of the
reasons set forth above, an unfortunate one. This is a
matter which
may easily be resolved by the legislature to remove any doubt.
Perhaps the time has come for that to be done.
[28]
In an attempt to avoid any confusion, I summarise what I have
intended
to convey in this judgment:
(a)
In the magistrates’ courts, if nothing at all is raised
concerning the jurisdiction of the court on the basis
that a
plaintiff’s claim is a maritime claim as defined by the Act,
the magistrate may continue to hear the matter if it
is otherwise
within the court’s jurisdiction.
(b)
If the defendant objects to the jurisdiction of the court on the
basis that a plaintiff’s claim is a maritime
claim (or if the
magistrate
mero
motu
raises the question), then the magistrate must determine whether the
claim is based on a maritime claim, and, if so, the action
must be
dismissed for want of jurisdiction.
(c)
If no objection is raised (and the magistrate does not raise the
question), on the basis that the plaintiff’s
claim is a
maritime claim, that issue may not later be raised on appeal by
either of the parties.
[29]
With regard to costs, although this matter is unusual, involving
as
it does matters of substantive law and procedure, the costs should
follow the result.
[30]
The appeal is accordingly
dismissed with costs.
Lopes,
J
Vahed,
J
OLSEN J
(Dissenting)
[31] I
have considered the majority judgment of my brother Lopes J. I
regret that I cannot support the conclusion
it reaches. As this
is a minority judgment I will state my reasons for disagreement as
briefly as possible, attempting to
avoid unnecessary repetition.
[32]
I commence with some explanations of terms I use in this judgment,
and one or two preliminary
observations.
(a)
Merely
because it is convenient, I refer to the ordinary civil jurisdiction
of our courts as “parochial jurisdiction”.
I intend
the term to convey and involve not only the concept of “jurisdiction”
in the narrow sense, but also the determination
of issues by the
application of South African law.
(b)
When I
use the term “maritime claim” I intend to convey nothing
more than that the claim features in the list which
comprises the
definition of “maritime claim” appearing in s 1 of the
Admiralty Jurisdiction Regulation Act, 105 of
1983 (the “Admiralty
Act”).
(c)
This
case does not concern the question as to whether the Magistrates’
Courts have the admiralty jurisdiction created and
defined by the
Admiralty Act. The Magistrates’ Courts clearly have no
such jurisdiction. It is conferred only
on the High Court.
(d)
This
case concerns the question as to whether a Magistrates’ Court
has the power to decide a maritime claim when the requirements
for
the engagement of the court’s jurisdiction set out in the
Magistrates’ Courts Act are
met, and the claim as pleaded
engages the court’s parochial jurisdiction.
[33] The
claim made by the appellant in the regional court, which that court
decided it had no jurisdiction to entertain,
was for payment of a
little over R200 000 in respect of freight forwarding services
rendered by the appellant. It was
accepted before us that the
claim fell within paragraph (p) of the definition of “maritime
claim” appearing in s 1
of the Admiralty Act. The
question in this case is whether, merely by reason of its presence on
the list of maritime claims,
a claim for services rendered by a
clearing and forwarding agent is put beyond the parochial
jurisdiction of the Magistrates’
Courts. As will be seen,
I take the view that the answer to that question must be the same
answer as is properly given to
the question as to whether a claim
which appears on the list is by that reason alone put beyond the
parochial jurisdiction of the
High Court.
[34] A
consideration of the Admiralty Act as a whole reveals that the list
of maritime claims in s 1 is there not for
the purpose of excluding
them from the parochial jurisdiction of our courts, but for the
purpose of defining the ambit of matters
in respect of which the High
Court may exercise the admiralty jurisdiction conferred upon it by
the Admiralty Act. Section
2 of the Act confers admiralty
jurisdiction upon the High Court
‘
to hear and
determine any maritime claim … irrespective of the place where
it arose, of the place of registration of the
ship concerned or of
the residence, domicile or nationality of its owner’.
Section 5(2)(a) of
the Admiralty Act permits a court also to exercise its admiralty
jurisdiction to
‘
consider and
decide any matter arising in connection with any maritime claim,
notwithstanding that any such matter may not be one
which would give
rise to a maritime claim’.
[35]
Whilst the Admiralty Act thus employs the list of maritime claims to
identify the matters with respect to which
admiralty jurisdiction may
be employed, it does not otherwise refer to that list negatively,
stating that the listed claims may
not otherwise be adjudicated
upon. On the contrary, s 7(1)(a) of the Admiralty Act provides
that a High Court may decline
to exercise its admiralty jurisdiction
if it is of the opinion that
‘
any other
court in the Republic … will exercise jurisdiction in respect
of the said proceedings and that it is more appropriate
that the
proceedings be adjudicated upon by any such other court …’.
In my view it is
wrong to interpret the term “any other court in the Republic”
as meaning any other court in the Republic
besides the two courts
which are the backbone of our judicial system, that is to say the
High Court and the Magistrates’
Courts. The word “any”
is used twice in the section.
‘
In
its natural and ordinary sense "any" --- unless restricted
by the context --- is an indefinite term which includes
all of the
things to which it relates.’
(Per
Innes JA in
Hayne
& Co v Kaffrarian Steam Mill Co Ltd
1914
AD 363
at 371.)
Nothing in the
context of s 7(1)(a) suggests that the word “any” should
be restricted in its meaning.
[36]
What the judgments in
The
Wave Dancer
:
Nel v Toron
Screen Corporation (Pty) Limited and Another
1996 (4) SA 1167
(A)
illustrate is that certainly in the case of a High Court parochial
jurisdiction over maritime claims is maintained. Concerning
s
7(1)(a) of the Admiralty Act, Olivier JA (writing the majority
judgment) held (at 1188 – 1189) that it is not peremptory
that
maritime actions be heard by an admiralty court.
[37] The
Wave Dancer
had more to do with s 7(2) of the Admiralty Act
which provides that when the question arises in proceedings before a
High Court
as to whether a matter pending or proceeding is a maritime
claim, that question must be decided first. An affirmative
answer
renders it compulsory that the matter should be proceeded with
in a court competent to exercise admiralty jurisdiction. The
case in the
The
Wave Dancer
proceeded to judgment
before the Supreme Court exercising its parochial jurisdiction
without the question as to whether the claim
was a maritime claim
ever being raised. The majority judgment of the Appellate
Division (at 1189B) held that
‘
if the
question of jurisdiction is not raised before such court, and it
therefore fails to make a decision, it is not precluded
from
exercising its ordinary jurisdiction.’
In the minority
judgment of Scott JA the following appears on the same subject at
1176 – 1177.
‘
But the
peremptory provisions of section 7(2) become applicable only once the
court decides that the claim is a maritime claim.
It is the
decision which has the effect of depriving the court of its ordinary
civil jurisdiction to hear the matter. I can
see no
justification for construing the section otherwise.’
[38]
Section 7(2) of the Admiralty Act appears to me to be the only
provision in the Act which compels the engagement
of the High Court’s
admiralty jurisdiction. It is worth observing that in terms of
s 7(4) the decision made by a Judge
hearing a matter in which the
High Court’s parochial jurisdiction has been engaged, as to
whether in fact the claim before
the court is a maritime claim, is
not appealable. Accordingly, an erroneous decision that a claim
is not a maritime claim
will result in a maritime claim being
determined in the exercise of the High Court’s parochial
jurisdiction. In a sense
then, the only provision in the
Admiralty Act which compels the engagement of admiralty jurisdiction
turns not on the question
as to whether the claim is actually a
maritime claim, but on the decision of a single Judge as to whether
it is or is not a maritime
claim. The two things may not
necessarily be the same in every case.
[39]
Both the majority and minority judgments in
The
Wave Dancer
hold that the effect of s 7 of the Admiralty Act is that the
parochial jurisdiction of the High Court may legitimately be employed
to decide a maritime claim. The fact that s 7(2) is a peculiar
provision which relates to the High Court only should not
be
permitted to obscure the fact that what the Admiralty Act has brought
about is the continued availability of parochial jurisdiction
to
determine maritime claims. That jurisdiction in civil
litigation is shared between the High Court and the Magistrates’
Courts, subject to the restrictions on the exercise of jurisdiction
imposed by the
Magistrates’ Courts Act, 1944
. Just as the
Admiralty Act does not expressly (or impliedly) exclude the parochial
jurisdiction of the High Court to hear
maritime claims, so too is it
silent on excluding that jurisdiction from the Magistrates’
Courts when the requirements for
the engagement of the jurisdiction
of those courts are otherwise satisfied, as is the case here.
[40] In
my view there is no answer to the proposition that if it had been
intended by the legislature when enacting
the Admiralty Act to deny
the magistrates jurisdiction in respect of maritime claims, that
would have been done expressly.
The argument that the position
with regard to the Magistrates’ Courts was simply overlooked is
of no assistance to the respondents
in this case. If it was
overlooked then it must be so that the retention of parochial
jurisdiction over maritime claims in
the High Court means that the
magistrates’ parochial jurisdiction also survived the Admiralty
Act.
[41] Of
course, the Magistrates’ Courts were not overlooked in the
Admiralty Act. Section 14 provides that
the Act shall not
derogate from the jurisdiction the Magistrates’ Courts have
under sections 131, 136 and 151 of the Merchant
Shipping Act, 1951.
It was argued that the fact that the magistrates’ parochial
jurisdiction in respect of maritime
claims generally was not also
saved under s 14 indicates that the Admiralty Act should be construed
to exclude the jurisdiction
of magistrates. However the
sections of the Merchant Shipping Act in question exist because the
claims they deal with do
not fall within the ordinary jurisdiction of
the Magistrates’ Courts. That is self-evident from the
contents of the
sections.
[1]
The purpose of s 14 is to convey that the conferral only on the High
Court of the special jurisdiction and powers which are
the
characteristics of admiralty jurisdiction should not be taken
impliedly to have repealed the special jurisdiction and powers
given
to the Magistrates’ Courts in respect of the maritime claims
dealt with in those sections of the Merchant Shipping
Act. If
the parochial jurisdiction of the Magistrates’ Courts was not
disturbed by the Admiralty Act, there was no
need similarly to
provide that the provisions of the Admiralty Act should not derogate
from the ordinary jurisdiction of the Magistrates’
Courts to
determine maritime claims.
[2]
[42] In
my view the conclusion I reach, that Magistrates’ Courts
continue to be available to exercise parochial
jurisdiction in order
to decide maritime claims, accords with the provisions of the
Constitution. Section 34 of the Constitution
provides as
follows.
‘
Everyone has
the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.’
Section 166 of the
Constitution lists the Magistrates’ Courts amongst those
recognised as part of our judicial system.
It is essential that
for the determination of smaller claims plaintiffs should have the
right of access to courts which are governed
by a lower costs regime
than the High Court. To employ a perhaps extreme but
nevertheless real example provided by counsel
for the appellant in
argument, it is ridiculous to suppose that the Admiralty Act has the
effect that a hardware supplier who sells
a tin of paint on credit
for the stores of a yachtsman should have to issue a summons out of
the High Court exercising its admiralty
jurisdiction in order to
recover the unpaid price of a few hundred Rands from the defaulting
buyer.
[43] I
suggest that for the same reason it would have been inappropriate to
render the provisions of s 7(2) of the Admiralty
Act applicable also
to the Magistrates’ Courts.
[44]
It was argued before us that the position is (or might be) that a
magistrate may hear a maritime claim
unless an objection to
jurisdiction is raised, in which case it must be upheld.
However that cannot be so if a statute removes
the court’s
jurisdiction over such a claim, as it is argued the Admiralty Act has
done. In that case the court could
no more hear a maritime
claim than it could, for instance in the case of the district court,
hear a divorce case. The position
was put as follows in
Ueckermann v Feinstein
1909 TS 913
at 920.
‘
Apart
from statute, the common law of Holland undoubtedly recognised the
doctrine of the prorogation of jurisdiction --- that is,
that
jurisdiction might be conferred or extended by consent of parties so
as to enable the court to deal with a dispute which,
apart from such
consent, it would have had no jurisdiction to entertain. And that
prorogation of jurisdiction might take place
in regard to inferior as
well as superior courts is clear from what Voet says at 2, 1, 15.
Some of the authorities favoured a very
wide application being given
to this doctrine of prorogation. But I think it must be recognised as
settled law in South Africa
that there can be no prorogation in
regard to cases where the court has no authority at all to adjudicate
upon the subject-matter
of the dispute; because in such cases, the
matter at issue being by law outside the cognisance of the court, the
consent of parties
cannot confer a coercive jurisdiction upon the
court, which the law expressly denies to it. And any judgment
pronounced upon such
a matter would be
ab
initio
void;
neither prior consent nor subsequent ratification could make it
valid.’
[45]
There is no middle ground. Either maritime claims are
susceptable to the parochial jurisdiction of
the Magistrates’
Courts, or they are not. If they are not, no consent to
jurisdiction, expressed or implied, can render
matters otherwise.
If a maritime claim can be heard in those courts, the magistrate
cannot decline to exercise jurisdiction.
[46] For
these reasons I would have upheld the appeal with costs and remitted
the matter to the magistrate to determine
the remaining issues in the
case.
OLSEN
J
Case
Information:
Date
of hearings
: 24
May
2019 (Full Bench)
:
21
June
2019 (Full Court)
Additional
Heads of
:
Argument
furnished on
: 12
July 2019
Date
of Judgment
:
29
November
2019
For
Appellant
: P J Wallis
Instructed
by
: Harris Billings
Attorneys
Fourways,
Johannesburg
Locally
represented by: Stowell & Co
295
Pietermaritzburg Street
Pietermaritzburg
Ref:
C RAW/HAR592/0001
Tel:
033 845 0500
For
2
nd
Respondent
:
D G Tobias (up until 24
May 2019)
:
G D Harpur SC (thereafter)
Instructed
by
: Omar and Associates
343
Stephen Dlamini Road
Essenwood,
Durban
Ref:
Mr Omar/sh/Donsantel
Tel:
031 100 1281
[1]
[1]
131.
Right of suing on allotment notes.
-(1)
The person in whose favour an allotment note under this Act has been
made may, unless the seafarer has forfeited or ceased
to be entitled
to the wages out of which the allotment is to be paid, recover the
sums allotted when and as the same are made
payable, with costs,
from the owner of the ship in respect of which the seafarer was
engaged or from any agent of the owner who
has authorized the
allotment, and the provisions of section one hundred and thirty-six
shall,
mutatis
mutandis
,
apply to any proceedings for such recovery: Provided that the wife
of a seafarer, if she deserts her children or so misconducts
herself
as to be undeserving of support from her husband shall forfeit all
rights to further payments under any allotment made
in her favour.
(2)
In any proceedings mentioned in subsection (1) it shall be
sufficient
for the claimant to prove that he is the person mentioned
in the allotment note and that the note was given by the owner or by
the master or the authorized agent of the owner or master, and the
seafarer shall be presumed to be duly earning his wages unless
the
contrary is shown to the satisfaction of the court-
(a)
in
the case of a seafarer serving on a foreign-going ship, by the
official statement of the change in the crew caused by the
seafarer’s absence, made and signed by the master in terms of
section 104;
(b)
by
a certified copy of some entry in the official log-book, or by a
letter from the master, to the effect that the seafarer has
left the
ship; or
(c)
by
such other evidence as the court in its discretion considers
sufficient to show that the seafarer has ceased to be entitled
to
the wages out of which the allotment is to be paid.
136.
Proceedings for wages.
-
(1) A seafarer, or a person duly authorized by him, may as
soon as wages due to him by reason of his engagement in a South
African ship become payable sue for the same before any magistrate’s
court within whose area of jurisdiction the place
at which his
service has been terminated is situated, or which by reason of any
other fact has jurisdiction in the matter; and
no appeal shall lie
from any judgment given or order made by the court in the matter.
(2)
Nothing in subsection (1) contained shall increase the jurisdiction
of any magistrate’s court as regards the amount which may be
claimed in any proceeding tried by the court.
151.
Property of deceased seafarer may be recovered as wages.
-The
provisions of section one hundred and thirty-six shall apply,
mutatis
mutandis
,
in respect of the property of a deceased seafarer.
[2]
If the position
were otherwise it would have been a simple matter to provide in s 14
as follows:
‘
Save
as provided under sections 131, 136 and 151 of the Merchant Shipping
Act, 1951, the Magistrates’ Courts shall have
no jurisdiction
to determine any maritime claim.’