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[2018] ZAFSHC 218
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Visser N.O and Others v Van Niekerk and Others (5937/16) [2018] ZAFSHC 218 (9 November 2018)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 5937/16
In
the matter between:
M
VISSER
N.O.
1
st
Plaintiff
CF
VAN DER LINDE
N.O.
2
nd
Plaintiff
R
KOLVER
N.O.
3
rd
Plaintiff
R
OOSTHUIZEN
N.O.
4
th
Plaintiff
(In
their capacities as trustees: Trust IT 938/09
[1]
)
and
JA VAN
NIEKERK
1
st
Defendant
HC
PRETORIUS
2
nd
Defendant
A A ROBERTS
N.O.
3
rd
Defendant
THE MASTER: HIGH
COURT, BLOEMFONTEIN
4
th
Defendant
HEARD
ON:
23-24 OCTOBER 2018
CORAM:
M OPPERMAN, J
DELIVERED
ON:
9
NOVEMBER 2018
INTRODUCTION
[1] The
matter serves before this court as a special plea. The issue is
jurisdiction.
[2]
The first and second defendants pleaded that they are not resident in
the jurisdiction of the
court and that the cause of action did not
arise here.
[2]
The third
defendant did not take issue with the authority of this court to hear
the matter but challenged the vagueness of paragraph
90 of the
plaintiff`s plea in that it does not state the foundation for the
jurisdiction of this court; it is incomplete.
[3]
THE
PLEA-ISSUE
[4]
[3]
Paragraph 90 of the Particulars of Claim
[5]
reads:
The
Court has jurisdiction to adjudicate this matter.
[4]
First and second defendants made an issue of the fact that the
Particulars of Claim did not set out
the grounds upon which
jurisdiction was founded. I refer to their Heads of Arguments.
Ironically, did they not plead this in the
first instance. It was the
third defendant that took the point.
[5]
If a pleading does not comply with the required specified particulars
to be set out, then prejudice
to the opposite party must be
prima
facie
established.
The pleader will bear the onus of showing that the opponent is not in
fact prejudiced.
[6]
[6]
A summons which does not set forth particulars showing that the court
has jurisdiction is bad and liable
to be dismissed. (
Girdwood
v Theron
1913
CPD 859)
[7]
Marais
v Munro & Co Ltd
1957
(4) SA 53 (E)
confirmed
dictum that t
he
Court is entitled to overlook, in proper cases, any irregularity of
procedure which does not work any substantial prejudice to
the other
party. Further; was it stated in
Trans-African
Insurance Co. Ltd v Maluleka
1956
(2) SA 273
(AD)
that;
“technical objections to less than perfect procedural steps
should not be permitted in the absence of prejudice, to
interfere
with the expeditious and if possible inexpensive decision of cases on
their real merits.”
[8]
There has not been any prejudice alleged, proved or disproved in
relation to the defendants
in
casu.
I
will allow the plea to stand in the interest of justice.
JURISDICTION
[9]
Jurisdiction is the power or competence that a particular court has
to adjudicate a dispute. A person
who has decided to litigate must
select the proper court in which to proceed. Several courts may have
jurisdiction in one instance.
The plaintiff is
dominis litis
in
this regard. The onus is on the plaintiff to proof jurisdiction.
[10] It is
trite that section 34 of the
Constitution
of the Republic of South Africa,
1996
rules
that 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.
[11] A fair
public hearing pertaining to jurisdiction in this matter, would
suggest due process, effective judgement,
convenience and expense.
The mosaic of evidence and rights and law must be weighed and the
ultimate aim is the fair administration
of justice.
[12]
The doctrine of effectiveness
[7]
is one factor to consider. The court must be empowered to give the
most effective and proper judgement. Prevention
of the destruction of the
consistency of the cause, avoidance of duplication of proceedings,
conflicting decisions in the same matter
and the expeditious
finalization of cases are vital factors.
[8]
[13]
Another factor is the
actor
sequitur forum rei.
In
Sciacero
& Co v Central SA Railways
1910 TS 119
at 121 and
Cabinet
of the Transitional Government of SWA v Dagnin
1990
NR 14
(HC) at 17E–G the general rule was stated to be that the
plaintiff ascertains where the defendant resides, goes to his forum,
and serves him with the summons there. Jurisdiction to hear an action
does not rest exclusively upon the fact that the defendant
is
resident within the area over which it has jurisdiction. Its right
and power to adjudicate proceedings may rest upon other grounds
that
will be discussed hereunder.
The principle underlying
the rule 'actor sequitur forum rei'
was
almost certainly effectiveness,
but,
today, the rule serves an
important
consumer protection purpose
in that the consumer who is a defendant must be sued in the
jurisdiction of the court where he or she resides unless there is a
ground which gives the court of another area jurisdiction.
[9]
(Accentuation added)
[14] It is
the duty of all courts in South Africa to prevent vexatious and
disruptive litigation. I have often stated
this in past judgments;
our
courts
must jealously protect the virtue of the justice system and
litigation must be with the utmost honor and responsibility.
It must
not be for the mere sake of litigation. Superfluous litigation in one
matter obstructs the genuine want for access to and
justice in courts
for another.
The
use of courts to settle disputes must be in good faith and is not
absolute. Counsel are
the
guardians of the dignity and integrity of the nation. They need
to make sure that they give effect to what the Constitution
expects
of them and their customers want to be served with integrity. Lawyers
are not hired guns but the foot soldiers of the Constitution,
whose
ultimate role it is to administer justice and they need to do it with
the highest standard of integrity.
[15] Section
169 of the Constitution provides that a High Court may decide:
(a)
any constitutional matter except a matter that —
(i)
only the Constitutional Court may decide; or
(ii) is
assigned by an Act of Parliament to another court of a status similar
to a High Court; and
(b) any
other matter not assigned to another court by an Act of Parliament.
(Accentuation
added)
[16] The Act
of Parliament that takes the pivotal position in this case is the
Superior Courts 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 arising and all offences triable
within, its area of
jurisdiction and all other matters of which it may according to law
take cognisance, and has the power—
(2) A Division also has
jurisdiction over any person residing or being outside its area of
jurisdiction who is joined as a party
to any cause in relation to
which such court has jurisdiction or who in terms of a third-party
notice becomes a party to such a
cause, if the said person resides or
is within the area of jurisdiction of any other Division.
[17] It is
common cause that the first defendant resides in Dana Bay, Western
Cape Province, the second defendant resides
in Kleinbrakrivier,
Mossel Bay, Western Cape Province and with his place of business in
Dana Bay, Western Cape Province. All indications
are that the third
defendant resides in Bloemfontein. Service on her was effected at
Webbers Attorneys, Bloemfontein.
[10]
The fourth defendant, that was joined on demand of the second
defendant,
[11]
is the Master
of the High Court, Bloemfontein. The Master of the High Court,
Bloemfontein has jurisdiction over the first and second
defendants as
trustees
ex
officio
its
custody over the trust. The applicants chose their
domicilium
to be in Bloemfontein for purpose of the application. Only two out of
the eight parties to the disputes is domiciled in the Western
Cape.
[18] Second
defendant argued that the nature of the cause of action is a delict.
First defendant claimed it to be
sui
generis
.
One must be careful not to conflate the “nature of the cause of
action” and “causes of action arising.”
[12]
[19] The
first defendant also brought joinder into play in his Heads of
Arguments.
[13]
Misjoinder
is not the special plea here. In tolerant accommodation of the
argument and for completeness sake is it adjudicated,
as far as it is
relevant to the cause of action, that the questions of law and fact
are in the main and in their principal essentials,
essentially the
same in this case.
[20] The
matter is based on the trustee`s breach of trust and resorts under
the
action
legis Aquiliae
.
The plaintiff must first show that the trustees performed a wrongful
act, secondly, that the trustees breach of trust is ascribable
to
fault, be it in the form of intentional wrongdoing or negligence;
thirdly, that the conduct must have caused damage which is
both
factually and legally not too remote; and; finally, that he suffered
patrimonial loss.
Where a claim is in
delict, the court of the area where the wrongful act was committed
will generally have jurisdiction. In
Thomas v BMW South
Africa (Pty) Ltd
Van Reenen J held that the locus of a
delict for jurisdictional purposes should be determined with
reference to the materiality
of and the number of the ingredients
thereof which have occurred in a court's area of jurisdiction and
rejected the notion that
all elements of a delict must have occurred
in a court's area for it to be able to assume jurisdiction.
Where
the court has jurisdiction in respect of some claims, but not others,
it may apply the
causae
continentia
doctrine,
which is designed to avoid a multiplicity of processes and the
possibility of conflicting judgments on the same
cause of action, and
to provide for the convenient disposition of suits. In terms of this
doctrine if a court has jurisdiction
in respect of one claim it can
assume jurisdiction in respect of other claims in the same action
which are based on different causes
of action.
[14]
[21] The
action emanates from the administration in the estate of the late
Alette Danore Blignaut. The will of the said
deceased is registered
and was accepted by the fourth defendant. The deceased estate was
under the supervision of the fourth defendant
that is situated in
Bloemfontein. The trust was registered at the office of the fourth
defendant and still is under its supervision
that, as stated, is
situated in Bloemfontein. Mentioned Alette Danore Blignaut resided in
Parys in the Free State Province.
[22]
Jurisdiction on the elements of the delict must be ruled to lie in
both the Free State Province and the Western
Cape Province. On the
facts it will be nearly impossible to ascertain where the wrongful
act, fault, causal connection and patrimonial
loss is exactly
situated. There exists no exclusivity for one or the other division.
[23] The
Supreme Court of Appeal has held that the words “causes
arising” do not refer to causes of action
but to all factors
giving rise to jurisdiction under common law (which may include a
cause of action) and has found that a court
will have jurisdiction if
the facts show a sufficient connection to the court's area of
jurisdiction.
[15]
[24] The
arguments on the monetary value of the claims and the liability or
absence of liability of some defendants
in paragraph 19 of the first
defendants Heads of Arguments does not convince. It is rejected.
FINDING
[25] It
follows from the above that this court has jurisdiction over the
parties and the matters arising from the cause
of action in terms of
section 21
of the
Superior
Courts Act 10 of 2013
[26] As to
costs; the fourth defendant did not join the dispute. The third
defendant came to be joined because her husband
Daniel Gerhardus
Roberts passed away and she was appointed as executrix after the
alleged delicts were transgressed. The plaintiff
is indeed correct in
his submission that; for the purpose of establishment of
jurisdiction, the first and second defendants are
the cause for
litigation. I am therefor enjoined to make the costs order against
them.
[27]
ORDER
1.
The special
plea is dismissed.
2.
First and
second defendants to carry the costs of this application.
M. OPPERMAN, J
On
behalf of the plaintiffs:
Adv. P. J. Heymans
Instructed by:
EG Cooper Majiedt Inc
BLOEMFONTEIN
On
behalf of the 1
st
defendant: Adv.
I. J. Joubert
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the 2
nd
defendant: Adv. J van
der Merwe
Instructed by:
Phatshoane Henney
Attorneys
BLOEMFONTEIN
On
behalf of the 3
rd
defendant: Me
Koller
Instructed by:
Webbers Attorneys
BLOEMFONTEIN
[1]
Alette
Blignaut Trust.
[2]
Bundle: Return of
Services and Pleadings, pages 134-135, par. 1-3 and pages 167-168,
par. 1-3.
[3]
Bundle: Return of
Services and Pleadings, page 207, par. 2.
[4]
Subruless18(4) and (5)
provide as follows:
18(4) Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim,
defence or answer
to any pleading, as the case may be, with sufficient particularity
to enable the opposite party to reply thereto.
18(5)
When in any pleading a party denies
an allegation of fact in the previous pleading of the opposite
party, he shall not do so evasively,
but shall answer the point of
substance.
[5]
Bundle: Return of
Services and Pleadings, page 58.
[6]
Sasol Industries
(Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a
L H Marthinusen
1992 (4)
SA 466
(W) at 470H–471B;
Sterling
Consumer Products v Cohen and other related cases
[2002]
4 All SA 221
(W) at 238.
[7]
Herbstein and Van
Winsen: Civil Practice of the High Courts and the Supreme Court of
Appeal of
South Africa (5th Edition) Internet:
ISSN 2224-7319 Jutastat e-publications 5th Ed, 2009 ch2-p64.
[8]
Harms, Civil procedure
in the Supreme Court, A-29 to A4.19.
[9]
Herbstein and Van
Winsen: Civil Practice of the High Courts and the Supreme Court of
Appeal of
South Africa (5th Edition) Internet:
ISSN 2224-7319 Jutastat e-publications 5th Ed, 2009 ch2-p67.
[10]
Index: Bundle: Return of Services and
Pleadings, page 6.
[11]
Bundle: Return of Services and
Pleadings, page 169.
[12]
Dreyer v Tuckers Land and
Development Corporation (Pty) Ltd
1981 (1) SA 1219
(T) at 1224F–1225B
;
Dendy v University of the Witwatersrand
[2005] ZAGPHC 39
;
2005 (5) SA 357
(W) at 386D–E.
[13]
Pages 5-9.
[14]
Herbstein and Van Winsen:
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa (5th Edition)
Internet: ISSN 2224-7319 Jutastat e-publications 5th Ed, 2009
ch2-p76.
[15]
Herbstein and Van Winsen:
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa (5th Edition) Internet:
ISSN 2224-7319 Jutastat
e-publications 5
th
Ed, 2009 ch2-p78
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005 (6) SA 205
(SCA) para 11;
Geyser
v Nedbank Ltd: In re Nedbank Ltd v Geyser
[2006] ZAGPHC 24
;
2006 (4) SA 548
(W) at 547B.