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[2008] ZASCA 120
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Botha v Andrade and Others (578/2007) [2008] ZASCA 120; 2009 (1) SA 259 (SCA) ; [2009] 1 All SA 436 (SCA) (26 September 2008)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case
No: 578/2007
NICO
BOTHA Appellant
and
ESMERELDA
ANDRADE 1
ST
Respondent
JOSE
ANDRADE 2
ND
Respondent
PALTIMCO
CC 3
RD
Respondent
VICTON
BRICK & BLOCK
MANUFACTURING
CC 4
TH
Respondent
Neutral citation:
Botha v Andrade
(578/2007)
[2008]
ZASCA 120
(26 September 2008)
Coram:
CAMERON, MTHIYANE, LEWIS JJA, BORUCHOWITZ and KGOMO
AJJA
Heard:
9
SEPTEMBER 2008
Delivered:
26
SEPTEMBER 2008
Summary:
M
agistrates’ courts’
jurisdiction to grant an interdict under s 30(1) of the Magistrates’
Courts Act 32 of 1944
(‘the Act’) is limited by s
29(1)(g) of the Act which sets a monetary limit on the value of the
matter in dispute.
_____________________________________________________________________
ORDER
On appeal from:
High Court, Eastern Cape (Goosen AJ and
Pickering J sitting as a court of appeal)
The appeal succeeds with costs and the orders granted by the
magistrate are reinstated. The order of the court a quo is set aside
and replaced with an order that the appeal is dismissed with costs.
JUDGMENT
MTHIYANE JA (CAMERON, LEWIS JJA, BORUCHOWITZ and KGOMO AJJA
concurring):
[1] This appeal is concerned with the extent to which the
jurisdiction of the magistrates’ court to grant an interdict
under
30(1) of the Magistrates’ Court Act 32 of 1944 (‘the
Act’) is limited by s 29(1)(g) of the Act, which sets a
monetary limit on the value of the subject in dispute.
[2] The appellant, an owner of a small farm in Twee Rivieren in the
district of Joubertina, obtained a prohibitory interdict in
the
magistrates’ court restraining the first two respondents,
owners of a neighbouring farm and two close corporations which
they
control and which conduct industrial operations on it, from
committing certain unlawful activities associated with the conduct
of
a sawmill business and a brick making business on their property. The
appellant’s complaint was in relation to an alleged
nuisance
and the usage of the farm contrary to the municipal zoning of the
property under the town planning scheme.
[3] The appellant purchased the farm intending that he and his fiancé
would retire there to conduct a small farming operation.
The farm was
chosen not only because of its location in a peaceful and tranquil
area but also because it had rights to water drawn
from a water
furrow that traverses it and that of the individual respondents’
property (which I shall refer to as the respondents’
farm).
[4] Shortly after taking occupation the appellant’s dream of a
peaceful retirement was dissipated (according to his affidavits)
when
he and his fiancé found themselves afflicted by constant noise
from a sawmill operating on the respondents’ farm.
The noise
came from industrial wood saws that were operated from early in the
morning until 9pm on weekdays and even on Saturdays
and Sundays. In
addition, heavy vehicles delivering and moving logs also added their
share of constant noise disturbance. Sawdust
and wood waste from the
sawmill operation were being stockpiled on the respondents’
farm resulting in dust pollution onto
the appellant’s farm,
thus creating a potential fire hazard.
[5] The appellant’s further complaint related to the
respondents’ failure to maintain the water furrow resulting in
the pollution of the water which the appellant draws from the furrow.
[6] The appellant’s pleas for assistance to the Koukamma
Municipality yielded no meaningful response. The local authority
advised him that the first respondent had applied for the rezoning of
the property in order to operate the sawmill business and
that the
application had been conditionally approved. The approval was subject
to conditions that included (i) the erection of
a 2.4m fence; (ii)
the limitation of industrial activity on the western side of the
property; and (iii) the submission of an environmental
and health
assessment report to the local authority. None of these conditions
were complied with, yet the unlawful activities continued
unabated.
The appellant consequently applied for a prohibitory interdict in the
magistrates’ court.
[7] In their opposition the respondents raised two points in limine.
First, they pleaded non-joinder of the parties who have a
substantial
interest in the matter such as the municipality and employees of the
sawmill business and the brick-making business.
Second, they
challenged the jurisdiction of the magistrates’ court to
determine the matter. Only the latter issue is relevant
to the
present appeal. The respondents contended that the magistrate had no
jurisdiction to grant the interdict in that the value
of the matter
in dispute was in excess of the R100 000 jurisdictional limit of the
magistrates’ court. The respondents contended
that section
29(1)(g) of the Act, which sets the jurisdictional limit at R100 000,
was applicable and adduced evidence which established
that the
sawmill business generated a net annual profit of more than R180 000,
and that the brick-making business had a monthly
turnover of
approximately R100 000.
[8] The points in limine were dismissed by the magistrate at
Joubertina who held that s 29(1)(g) was not applicable to an
application
for an interdict under s 30(1) of the Act because s
29(1)(g) referred to ‘actions’ and not ‘applications’.
Consequently, the magistrate concluded that he had jurisdiction in
the matter and granted the application for a prohibitory interdict
in
the appellant’s favour.
[9] The respondents appealed successfully to the Eastern Cape High
Court. The court held that s 29(1)(g) was applicable to an
application for an interdict under s 30. The court held that since
the value of the matter in dispute was in excess of R100 000,
the
plea of lack of jurisdiction was sound and ought properly to have
been upheld by the magistrate. The order granting the interdict
was
set aside and replaced with an order dismissing the application with
costs.
[10] The appellant now appeals to this court with the leave of the
court a quo. The central issue for decision is the inter-relation
between the magistrate’s jurisdiction to grant an interdict
under s 30(1) and s 29(1)(g) of the Act. The respondents were
not
represented in argument before us.
[11] It is convenient to quote the relevant sections at the outset.
Section 30 of the Act provides as follows:
‘
30 Arrests and Interdicts
Subject to the limits of jurisdiction prescribed by
this Act
, the court may grant against
persons and things orders for arrest
tanquam
suspectus de fuga
, attachments, interdicts
and
mandamenten van spolie
.’
(Emphasis added)
[12] Section 29(1)(g) provides as follows:
‘
29 Jurisdiction in respect of causes of action
Subject to the provisions of this Act and the
National
Credit Act, 2005
, the court in respect of causes of action, shall
have jurisdiction in –
. . .
actions other than those already mentioned in this
section, where the claim
or the value of the
matter in dispute does not exceed the amount determined by the
Minister from time to time by notice in the
Gazette
.’
[ie R100 000] (Emphasis added)
[13] The wording of the two sections is clear and unambiguous and the
ordinary meaning of the words ought to be given effect. On
a proper
reading of s 30(1) of the Act it is clear, I think, that the
magistrate’s power to grant the interdict is circumscribed.
The
section provides that a magistrate may grant certain orders including
interdicts, subject to the limits of jurisdiction prescribed
by the
Act. The search for the ‘limits’ referred to in s 30(1)
leads one inevitably to ss 28 and 29 of the Act and
the conclusion
is, to my mind, unavoidable that the qualification ‘subject to
the limits of jurisdiction prescribed’
by the Act is a
reference to s 29 (relating to the limits of jurisdiction in respect
of matters referred to in the section). (See
Mans v Marais
;
1
Sellars NO v Grobler NO
;
2
Badenhorst v Theophanous
.
3
)
We are not concerned in this case with s 28 of the Act which relates
to jurisdiction in relation to persons.
[14] The approach adopted by Goosen AJ in the court below, where he
discusses the interrelationship between ss 28, 29 and 30, cannot
be
faulted. The magistrate’s conclusion that s 29 was inapplicable
to the grant of an interdict under s 30(1) because s 29(1)(g)
refers
to ‘actions’, is clearly incorrect. It seems to me that
the two sections (30 and 29) complement each other and
where the
limit of the magistrate’s jurisdiction are required to be
determined in interdict proceedings, in so far as the
value of the
matter in dispute is concerned, the two sections ought to be read
together. Section 29 speaks to the value of the
matter in dispute and
s 30 limits the jurisdiction of the magistrate’s court to the
limit set out in s 29, which at the present
moment by regulation is
fixed at R100 000. In my view, this accords with the limitation
placed on the magistrates’ courts’
jurisdiction as a
creature of statute. To follow the approach adopted by the
magistrate, which in effect places no jurisdictional
limit at all on
interdict orders granted in that court, cannot be correct, and would
result in the magistrates’ court exercising
parallel
jurisdiction with the high court, a consequence which could never
have been contemplated by the legislature.
[15] To hold, as the magistrate did in this case, that s 29 of the
Act is not applicable to interdict orders granted under s 30
because
s 29 refers to ‘actions’ displays a lack of appreciation
of the interplay between the two sections (ie 29 and
30). In
Mans
v Marais
the interplay between the two sections and how they
complement each other was neatly illustrated by Gardiner JP, where he
rejected
a contention similar to the approach adopted by the
magistrate to the effect that s 29 applied only to actions. The
learned judge
said (at 357):
‘
It is contended that as this section refers
throughout to actions, one of the limits upon the magistrate’s
jurisdiction is
that he can try only actions, or matters connected
with actions. But is seems to me a fair construction to apply is to
say that
the “limits” provided by sec. 29 are limits of
amount. Actions are not limits, but are the things to which the
limits
are to be applied. By sec. 29 the limits are applied as
actions; by sec. 30 they are applied to arrests, attachments,
interdicts
and
mandamenten van spolie
.
A writ of spoliation cannot be granted by a magistrate’s court
where the value of property seized exceeds £200; that
is the
limit by which the magistrate’s jurisdiction is confined,
whether he is hearing an application for a spoliation order,
or is
trying an action.’
It follows that s 29(1)(g) is applicable to interdicts granted by the
magistrate under s 30, and the section operates to set the
jurisdictional limit of the value of the subject matter in dispute
and other specific matters referred to in s 29.
[16] The central question this case raises, however, is how to
determine ‘the value of the matter in dispute’. The
issue
in dispute between the parties is the alleged nuisance emanating from
the respondents’ unlawful activities. The abatement
of the
nuisance is capable of quantification and so the jurisdictional
limits of the magistrates’ court can be determined
without
difficulty. Although the court below correctly identified the issue
as being the ‘alleged nuisance’, it attached
value to the
businesses rather than the subject matter in dispute, which was the
abatement of the unlawful activities. In this
regard the court erred.
It is that conduct or the cost of the abatement of the unlawful
activities to which value had to be attached
and not the businesses
per se. If the cost of abating the nuisance was in excess of R100 000
the magistrate would clearly have
had no jurisdiction in the matter.
The respondents simply provided evidence of the yearly profit and
monthly turnover of their
businesses, which the high court accepted
as conclusive in relation to the jurisdictional limits. That was in
my view wrong. The
question was not, what was the turnover and profit
of the businesses creating the offending nuisance? It was, what would
be the
cost to the respondents of complying with the conditions
attached to the provisional municipal permission, so as to abate the
nuisance?
On this they led no evidence at all.
[17] The difficulties that might arise if the value of the subject
matter in dispute is misallocated, as happened in the present
matter,
are illustrated by Williamson J in
Le Roux v Le Roux
.
4
The learned judge gives an example of a dispute in relation to a
domestic helper’s room in a block of flats. The judge points
out that it would be illogical in those circumstances, and it might
lead to absurd results, to determine jurisdiction by reference
to the
value of the entire block of flats when the dispute relates only to
one room. By parity of reasoning the matter in dispute
in the present
case relates to that component of the case which bears on the
unlawful activities giving rise to the nuisance and
not the lawful
conduct of the business. As already indicated, the abatement of the
nuisance was capable of quantification and (as
I shall now show) it
was incumbent upon the respondents to prove the cost of abating the
nuisance.
[18] The onus was on the respondents to prove that the matter fell
beyond the jurisdiction of the magistrates’ court. The
substantive plea challenging the jurisdiction (
exceptio fori
declinatoria
) was raised by the respondents and they accordingly
bore the onus of proving the facts upon which their plea was based
(
Munsamy v Govender
5
).
What the respondents were required to do in order to abate the
nuisance was to erect a 2.4m wall, to limit industrial activity
on
the western side of the property and to cause an environmental and
health assessment report to be compiled and submitted to
the local
authority. No evidence was placed before the magistrate as to what
these steps would cost. Had the respondents proved
that it would have
cost them more than the jurisdictional limit of R100 000 they might
have been able to create a jurisdictional
obstacle for the appellant.
They failed to do this.
[19] It follows that the appeal must succeed with costs and the order
granted by the magistrate reinstated. The order of the court
a quo is
set aside and replaced with an order that the appeal is dismissed
with costs.
________________________
KK MTHIYANE
JUDGE OF APPEAL
Appearances:
For Appellant: P E Jooste
Instructed by:
Nel Mentz Inc Humansdorp
Honey Attorneys Bloemfontein
For Respondents: No Appearance
Landman Steyn & Ellis Humansdorp
Lovius Block Bloemfontein
1
1932 CPD 352
at 357.
2
1961 (3) SA 583
(T) at 585A-H.
3
1988 (1) SA 793
(C) at 797A.
4
1980 (2) SA 632
(C) at 635A.
5
1950 (2) SA 622
(N) at 624.