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[2016] ZAECMHC 34
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Maquba v Minister of Police (45/2012) [2016] ZAECMHC 34 (23 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO 45/2012
In
the matter between:
NKOSINATHI
REGINALD MAQUBA
PLAINTIFF
And
MINISTER
OF POLICE
DEFENDANT
JUDGEMENT
MGXAJI
AJ
[1]
This matter comes before the court for adjudication only of the
special plea filed on behalf of the defendant to the plaintiff’s
particulars of claim. The plaintiff instituted by way of summons
issued on the 12 January 2012 these proceedings foreshadowing
his
claim therein as follows:
“
3.
On
or about July 2009 plaintiff’s salary was stopped or terminated
at the instance of the defendant or his department and
was
re-instated on the 12
th
August 2010.The defendant was not
in receipt of his salary for a period of thirteen (13) months. The
plaintiff was receiving his
salary through his bank account opened at
Butterworth.
4.
At
the time the plaintiff’s salary was stopped or terminated, the
plaintiff was having a salary notch of R238 872.00
with a gross
salary of R20406.00 and net salary of R13505.47.
5.
On
12
th
August 2010 and upon re-instatement of plaintiff’s
salary, the defendant or his department effected a back pay in the
gross
salary of R94021.76 and a net salary of R64314.22 and such
payment was effected in the plaintiff’s bank account opened in
Butterworth.
6.
The
plaintiff was short paid by the defendant or his department in the
gross salary an amount of R171256.24 and in the net salary
of
R111256.89. The defendant is therefore liable in the aforesaid
amounts.
7.
The
administrative action of the defendant or his department and its
consequences are experienced and having effect at Butterworth
where
the plaintiff is staying. This honourable court has jurisdiction to
entertain this matter.”
[3]
The defendant filed its amended special plea dated 22
nd
day September 2015 as follows:
“
1.
SPECIAL
PLEA
1.1
The
defendant pleads that this Honourable court lacks jurisdiction on the
ground that the plaintiff is in the employ of the South
African
Police Services (“the services”) stationed at Zwelitsha
and at the time of institution of these proceedings
he was stationed
at Zwelitsha, which is under the jurisdiction of the Bisho High
Court, the Bisho High Court has jurisdiction to
entertain the above
matter;
1.2
The
alleged termination and/or discontinuing of plaintiff’s salary
took place in Zwelitsha where he is stationed; “the
plaintiff
did not reside in, and was not, in the area of jurisdiction of this
court within the meaning of section 19(1) of the
Supreme Court Act,
1959”.
1.3
Wherefore
the defendant prays for dismissal of plaintiff’s claim with
costs.”
[4]
The only question to be determined relates to the defendant’s
contention that the plaintiff at the date of the alleged
withholding
of his salary was stationed in Zwelitsha. Mr Singqumba, on behalf of
the defendant, argued that it is not where the
plaintiff resided that
should be the determining factor in this matter but where the
defendant was stationed and the court within
whose area of
jurisdiction he was so stationed at the time that must be considered.
[4]
Mr Zono appearing on behalf of the plaintiff argued that the
plaintiff receives his salary payment through his bank account
held
in Butterworth and even at the time of the breach of his right he had
been paid his salary through the same branch. The nature
of the
relief and where the breach occurred vests this court with
territorial jurisdiction over this matter, so submitted Mr Zono.
[5]
The matter was argued on the basis of the pleadings filed with both
Mr Zono and Mr Singqumba agreeing on the employment contractual
basis
of the parties’ relationship and the fact of the plaintiff’s
salary termination or withholding by the defendant’s
personnel.
From the pleadings the plaintiff’s salary which had been
withheld or terminated was subsequently paid but underpaid.
It is
this underpayment that gave rise to these proceedings against the
defendant.
[6]
The defendant in these proceedings is the Minister of the Police and
therefore a Minister of the State as defined in Section
1 of Act 20
of 1957 which provides: “Any claim against the State which
would, if that claim had arisen against a person,
be the ground of an
action in any competent court, shall be cognisable by such court,
whether the claim arises out of any contract
lawfully entered into on
behalf of the State or out of any wrong committed by any servant of
the State acting in his capacity and
within the scope of his
authority as such servant”.
[7]
In
RAMPHELE
V MINISTER OF POLICE
[1]
it was held to be the position that the essence of what the above
quoted section
[2]
means and
conveys as its correct interpretation is that “any competent
court” means any court competent as to the subject
matter the
intention recognised being the substitution of the State for the
resident subject thereby eliminating ‘residence’
in so
far as the State is concerned as an element of jurisdiction.
[8]
From the foregoing it is remarkable that if the breach in the case of
a contract as in this matter before me or a delictual
wrong took
place within the area of the jurisdiction of any Division of the High
Court such Division would have jurisdiction against
the State.
[9]
It follows that a Court can only be said to have jurisdiction in a
matter if such Court has the power not only of taking cognisance
of
the suit but also of giving effect to its judgement. This in my
view is the alternative apt expression of the definitive
criteria for
determining jurisdiction in terms of
Section 21(1)
of the
Superior
Courts Act 10 of 2013
as being dependent on the nature of the
proceedings and the nature of the relief sought. In some cases
jurisdiction would depend
on both aspects as could be gleaned from
the pleadings in those proceedings.
[10]
According to
ERASMUS
SUPERIOR COURT PRACTICE
[3]
,
the term jurisdiction in
Section 21
(1) of the
Superior Courts Act 10
of 2013
as used therein means ‘
the
power vested in a Division of the High Court to hear, adjudicate
upon, determine and dispose of the disputes between parties
in a
matter brought before it.’
In this matter indisputable the plaintiff receives his salary through
his bank account in Butterworth and any breach by the defendant
which
gave rise to these proceedings was realisable and it prejudicially
affected him in Butterworth being where his right to receive
his
salary vests.
[11]
Contrary to the submissions by Mr Singqumba during the hearing of
this matter that only the High Court, Bisho has jurisdiction
over
this matter because the plaintiff was stationed in Zwelitsha, King
Williams Town, it seems to me the pertinent issue is whether
this
court has the power to give an effective judgement as an integral
aspect of the
rationes jurisdictionis
for this Division of the
High Court against the defendant as the State which committed the
contractual breach of terminating or
withholding or underpaying the
plaintiff’s salary as the subject matter of these proceedings.
It is noteworthy that the defendant
paid the plaintiff but less than
what the plaintiff alleges was due to him.
[12]
In view of the contractual nature of the issue on which these
proceedings by the plaintiff are based and the relief the plaintiff
seeks of having declared unlawful the defendant’s underpayment
of his salary for the period during which his salary had been
withheld by the defendant, and an order directing the payment of such
salary shortage, this court, in my view, has jurisdiction
on both
grounds. See:
ZOKUFA
V COMPUSCAN
[4]
where it was held “
Generally,
a breach of a right occurs at the place where the right vests. The
act of setting the breach in motion may occur somewhere
else, but the
breach usually takes place where the rights vests”.
This legal position finds application on the facts before me.
[13]
It seems in this matter the principle of effectiveness remains
cardinal and decisive in the sense that not only this Court
has the
power to grant the order declaring unlawful the withholding of the
plaintiff’s salary and directing also that the
underpayment
that subsequently resulted when the withheld salary was paid be
settled, this Court can as well ensure an effective
enforcement
within its area of jurisdiction for such payment of the shortage by
which the plaintiff was underpaid by the defendant.
See:
ESTATE
AGENTS BOARD v LEK
[5]
.
[14]
Needless to mention that section 19(1) of the Supreme Court Act 59 of
1959 was still applicable when the ESTATE AGENTS BOARD
case was
decided until its repeal by the
Superior Courts Act 10 of 2013
.
Section 21
of the
Superior Courts Act 10 of 2013
remains the same as
the provisions of
Section 1
9 of the repealed Act 59 of 1959 and the
applicable legal considerations on jurisdiction from the case law are
thus far still undeveloped
or unchanged.
[15]
It is remarkable that in this matter one is dealing with the State as
the defendant unlike in the case of Zokufa quoted above
as well as
the Estate Agents Board case both in which the issue of the applicant
being or not an incola of the Division of the
Court though of the
republic of South Africa or the respondent being or not a peregrinus
became central in the Court’s considerations
of the issue of
jurisdiction in those matters. As indicated above
Section 1
of the
State Liability Act 20 of 1957
eliminated residence as an element of
jurisdiction and the effect thereof is that the State has since been
substituted for the
resident subject in legal proceedings. See:
HAKO
v MINISTER OF SAFETY AND SECURITY AND ANOTHER
[6]
.
[16]
Accordingly the breach by the defendant having been committed where
the plaintiff’s right to his salary was denied in
Butterworth
and also being where the prejudicial act of denying his salary
adversely affected him, in my view the jurisdictional
connecting
factors exist for this court to adjudicate this matter.
[17]
From the pleadings and during the hearing of this matter there has
not been any counter argument that the withheld salary,
subsequently
settled though less than what was due, was paid anywhere else other
than in Butterworth where the plaintiff contends
the right to it
vests and the breach of such right by the defendant has occurred.
[18]
On these reasons I am fortified in my view that this Court has
jurisdiction given the subject matter of these proceedings as
also
the nature of the relief and its effectiveness with the defendant
being the State.
[19]
I therefore make the following order:
1.
That the Defendant’s Special Plea is dismissed.
2.
The Defendant is ordered to pay costs relating to the determination
of the Special Plea.
By
Court
-----------------------------
MGXAJI
AJ
ACTING
JUDGE OF THE HIGH COURT
MTHATHA
DATE
HEARD:
22 JUNE 2016
JUDGMENT
DELIVERED:
23 AUGUST 2016
FOR
THE PLAINTIFF:
MR ZONO
PLAINTIFF’S
ATTORNEYS:
A. S. ZONO
& ASSCOIATES
SUITE
153- 1
ST
FLOOR ECDC
MTHATHA
FOR
THE DEFENDANT:
MR SINGQUMBA
DEFENDANT’S
ATTORNEYS:
STATE ATTORNEY
REF:
29/12A6 (MR BEMBE)
C/O
SINGQUMBA INC
OFFICE
209, 2
ND
FLOOR
METROPOLITAN
BUILDING
MTHATHA
DRS
00/CIV/13
[1]
1979 (4) SA 902
[2]
Section 1
of Act 20 of 1957
[3]
ERASMUS SUPERIOR COURT PRACTICE volume 1, 3rd
edition,
[4]
2011 (1) SA 272
at 280 paragraph 44
[5]
1979 (3) SA 1048
at 1063F-H
[6]
1996 (2) SA 891
at 895E