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[2016] ZAGPPHC 916
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Nedbank Limited v Rossouw NO and Others (47553/2016) [2016] ZAGPPHC 916 (24 October 2016)
IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,PRETORIA)
47553/2016
24/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
NEDBANK
LIMITED APPLICANT/PLAINTIFF
and
PETRUS
STEYN ROSSOUW N.O
(Trustee
for Doornpoort Trust
-IT7663/0S)
1
ST
RESPONDENT
THERESA
LORINDA ROSSOUW N.O
(Trustee
for Doornpoort
Trust-IT7663/05)
2
ND
RESPONDENT
PETRUS
STEYN
ROSSSOW
3
RD
RESPONDENT
THERESA
LORINDA
ROSSOUW 4
TH
RESPONDENT
JUDGMENT
KHUMALO
J
[1]
The Applicant, Nedbank Limited, is applying for summary judgment in
an action it instituted on 15 June 2016 against P N Rossouw
and T L
Rossouw, the 1
st
and
2
nd
Respondents
respectively, in their representative capacity as the trustees of
Doornpoort Trust ("Trust"). The action is
founded on the
Trust's alleged breach of the terms of loan agreements secured by
mortgage bonds and a suretyship signed by 1
st
and 2
nd
Respondent
in their personal capacities as a result of which they are cited as
the 3
rd
and 4
th
Respondent, respectively.
[2]
The order sought by the Applicant is for payment of the amount
outstanding on the bonds, plus interest thereon and declaration
of
the mortgaged properties to be especially executable.
[3]
The Respondents object to the court's jurisdiction to entertain the
matter, a point they have raised
in limine,
without pleading
to the merits. As a result the Respondents' opposition is only based
on a technical point. However they prayed
for the dismissal of the
summary Judgment Application. Applicant's on the other hand moved for
the point
in limine
to be dismissed and the order for Summary
Judgment to be granted.
[4]
The Respondents by not dealing with the merits in the alternative, in
case their technical defence fails, ran a risk of a Summary
Judgment
being granted against it if a proper case is found to have been made
for the relief sought by the Applicant. On the other
hand if it is
found that the court has no jurisdiction, the action cannot be
sustained in this court, the matter would have to
be struck off; see
Viljoen v Federated Trust Ltd
(1) SA 750 (0) at 759H.
[5]
The Respondents allege that neither their residential addresses are
situated, nor were any of the agreements referred to in
the
particulars of claim concluded within this court's area of
jurisdiction. According to them they reside almost on the border
of
Witbank in Middleburg and all the agreements were concluded in
Middleburg, which is where they were also advised of the Applicant's
acceptance of their offer to take up the loan. The suretyship was
however concluded at Witbank .. Furthermore, none of the mortgage
bonds registered over the properties sought to be declared especially
executable were registered within this court's area of jurisdiction
but in the Mbombela Deeds Office (Nelspruit).
[6]
The Doornpoort Trust and the Trustees are in accordance with the
summons domiciled at Plaas Doornpoort, in Witbank, which place
is in
accordance with the Applicant's s 129 letter in Middleburg. The said
Plaas is also reflected as a domicillium address of
the Trust in the
latest Bond registered in 2014 whilst the earlier Bond registered in
2012 reflects 18 Olifant Street, Middleburg
as the trust's domicile.
The Respondents allege the principal address of the trust to be that
of its trustees from where it is
administered by the trustees,
located within the district of Middleburg. The properties mortgaged
and sought to be declared executable
are described as:
[6.1] Pin 8 (a portion of
portion 2) of the Farm De Goede Hoop 532, Registration Division J.T,
the Province of Mpumalanga, measuring
1643, 7269 hectares, held under
the Deed of Transfer No. T005838/2009.
[6.2] Remaining Extent of
Portion 2 of the Farm De Goede Hoop 532, Registration Division J.T.,
the Province of Mpumalanga, measuring
1643, 7269 hectares, held under
Deed of Transfer No. T005838/2009
And
situated at Farm De Goede Hoop 532, Ngodwana, Nelspruit, now called
Mbombela.
[7]
In its particulars of claim the Applicant has alleged that the
Trust's performance in terms of the loan agreements would take
place
at the Plaintiff's Menlyn Maine branch, in Waterkloof Glen,
Extension 2 and all payments made
in terms of
the agreement would be made at that branch, consequently the Gauteng
Division, Pretoria has jurisdiction to hear
the matter.
[8]
During argument, the Respondents' Counsel submitted that in terms of
clause 2.1 of the Practice Directive issued in terms of
s 7 (1) of
the Superior Court Act 10 of 2013 ("the Superior Court Act")
by the learned Judge President Mlambo ("JP")
of the High
Court Gauteng Division, Pretoria on 29 January 2016, the Middleburg
Circuit Court would be the relevant court vested
with the
jurisdiction to entertain this action. Also referring to the decision
by
Legodi J in First National Bank v Lukhele and Seven Others
cases
unreported case no's: 01/16- 107/16) [2016] ZAGPPHC 616 (16
May 2016) .
[9]
Applicant's Counsel's counter-argument was that the directive vested
the Mbombela and Middleburg courts with the jurisdiction
to hear all
matters in any area in Mpumalanga, at the same time the Gauteng High
Court in Pretoria, remained the main court (alleging
that the
Directive did not take away the latter's jurisdiction). Therefore
matters from those areas can still be issued in the
Gauteng Division,
in Pretoria which according to him, now has concurrent jurisdiction
with the 2 circuit courts in respect of the
Mpumalanga matters.
[10]
Counsel further argued that in accordance with the determination by
the Minister of Justice and Correctional Services ("the
Minister") in Government Notice no 1226 published in the
Government Gazette No. 39601 dated 15 January 2016, Emalahleni
(Witbank)
and Mbombela are 2 of the few areas in the magisterial
district within the Mpumalanga Province, that with effect from 25
January
2016 were determined to fall under the jurisdiction of the
Gauteng Division of the High Court in Pretoria. The Notice further
provided
that the areas under the jurisdiction
of
the
outstanding Divisions of the High Court will be determined gradually
concomitant with the rationalization process in the province.
There
hasn't been a further determination of the areas under Mpumalanga
Province which the Minister reckoned was an ongoing process.
[11]
Clause 2.1
of
the Judge President's practice directive
provides that:
"All action and
motion proceedings including urgent applications
in any area in
the Mpumalanga Province shall,
with effect from 1 February 2016,
be issued through designated officials and at the offices situated at
the Mbombela and Middleburg
courts specified in clause 4 below which
shall operate as the Registrar's office of the circuit court."
(my emphasis)
[12]
Notably the J P's directive was published two weeks later, exercising
the power conferred upon him by s 7 (1) of the Superior
Court Act in
terms of which he could establish Circuit Courts for the adjudication
of Civil or Criminal matters and
alter the
existing
boundaries
of any such district. He established the 2 Civil
Circuit Courts, Mbombela and Middleburg. They are referred to as the
Gauteng Division
functioning as Mpumalanga Division of the High Court
and are going to operate until the Minister has determined in terms
of s 6
(3) of the Act, the areas under the jurisdiction of the
Mpumalanga Division and its Local Division.
[13]
It seems Middleburg is not so affected by this confusion which
according to the determination was not put under the Gauteng
Division, Pretoria, but only Emalahleni and Mbombela. The rationale
of the Minister's inclusion of Mbombela in his determination
is
inexplicable. The question which arises from the argument on behalf
of Applicant necessary to clarify is whether the determination
by the
Minister and the JP's directive confer on the Gauteng Division,
Pretoria concurrent jurisdiction over the 2 circuit courts.
[14]
Legodi J inferred that matters in the whole of Mpumalanga Province
will continue to be serviced by the Gauteng Division. He
also
recognized that s 6 (3) (a) is silent on the concurrent jurisdiction
of the main seat over the local seats or the Circuit
Courts. What
does that then make of the Minister's determination, in terms of
which the areas of Mbombela and Witbank fall under
the Gauteng
Division, Pretoria as against the JP's directive. Does that mean that
for matters from the areas of Witbank and Mbombela
litigants could
choose to issue their processes either as per JP's directive or per
Minister's determination, concurrency inferred
now applies.
[15]
Now if assessed in that context, the case of Lukhele and Others is
different in that the issue that arose in those matters
was whether
or not the JP's directive presented an option to a litigant to issue
proceedings in either of the two circuit courts,
creating concurrent
jurisdiction. In
casu,
the Respondents are arguing that the
directive takes away the jurisdictional power that is vested upon the
Gauteng High Court to
hear the Mpumalanga matters whilst Applicant
argues that it confers concurrent jurisdiction in respect of the
areas which fall
under the Mpumalanga Province but determined by the
Minister in terms of s 6 (3) of the Superior Courts Act 1O of 2013.to
fall
under the Pretoria Gauteng Division.
[16]
The answer lies in the phrasing or wording of the JP's directive. It
is actually notable when reading clause 2.1 of the directive
that he
used the word "shall" and also determined the effective
date. So in terms of the language used, the directive
is mandatory
and not discretionary or optional. The Judge President of the Court
determines practicality and manages the functionary
of the courts
through the powers vested upon him by the Act. It is therefore
reasonable that his directives would be mandatory.
[17]
According to the Superior Court Act preamble it is provided that:
"Since the
Constitution provides that the judicial authority is vested in all
the courts, it is desirable to provide
for a uniform
framework for
judicial management, by the judiciary, of the
judicial functions of all courts;
And recognizing that the
rationalization envisaged by item 16 (6) (a) of Schedule 6 to the
Constitution is an ongoing process that
is likely to result in
further legislative and other measures in order to establish a
judicial system suited to the requirements
of the Constitution."
[18]
Constitutionally the management of the judicial functions of all
court lies with the Judiciary. The legislature just provide
a
framework within which such authority is to be exercised. To that
end, s 7 (1) of the Superior Court Act confers such authority/
power
which include
altering the existing boundaries
of any district
or circuit court so created.
[19]
The Respondent also argued on the other hand that for the sake of
fair play and access to justice, personal jurisdiction requires
facts
to exist that makes it fair for High Court Pretoria to entertain the
matter, making reference to
FNB v Lukhele supra,
wherein
Legodi J held that
"In the present
proceedings, such facts for this court at Mbombela, to exercise
jurisdiction over the Defendants who are residing
at Middleburg or
closer to Middleburg circuit court, have not been established."
Have
those facts been established by the Applicant in
casu?
[20]
In its particulars of claim the Applicant allege that jurisdiction is
bestowed upon the Gauteng Division by a provision in
the loan
agreements that performance (payment of instalments) would take place
at its Menlyn branch in Pretoria.
[21]
Furthermore it was argued on its behalf that over and above that the
Respondents are domiciled in Witbank and the signing of
the surety
agreement took place in Witbank, therefore the Gauteng High Court in
Pretoria has jurisdiction over the Respondents
as according to the
Minister's determination, Witbank falls under it.
[22]
Section 21 Chapter 6 of the Act makes provision for 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 other matters of
which it
may according to law take cognisance, ...-
(a) …
(b) …
[23]
The position under this section does not mention domicile.
Jurisdiction is therefore not determined by domicile but by
residence,
as it is also under common law. see
Ex parte Minister
of Native Affairs
1941 AD 53
at 59;
Mayne v Main
2001 (2)
SA 1239
(SCA) 12438. A choice of a
domicilium citandi et
executandi
within the area of jurisdiction of the High Court is
said not to confer jurisdiction upon that court; see
Geyser v
Nedbank Ltd
: In re
Nedbank Ltd v Geyser
2006 (5) SA 355
0/11) at 360 E. A person may have a domicile at one place whilst
residing at another.
[24]
With regard to the argument of the
causa
arising partly in the
area of jurisdiction of Middleburg being a place where the
Respondents signed the loan agreements and reside,
even though the
suretyship was signed in nearby Witbank, and the alleged provision by
the loan agreements for a place where performance
is to be effected
to confer jurisdiction, considerations of convenience, justice and
good sense justify proceedings being conducted
from the court nearest
to where the Respondents are resident and the property located. So as
a matter of expediency as well, the
exercising of jurisdiction by the
Middleburg Circuit Court would be just and fair.
[25]
Moreover, the Applicant's contention about the place of performance
by the Trust which is the only jurisdictional fact that
is stated in
the particulars of claim, is unpersuasive. The Respondent has alleged
that the loan agreements were granted and accepted
at the Applicant's
Middleburg branch. Whilst the Applicant says the loan agreement
provides that performance
would be effected
at its Menlyn branch in Pretoria. The clause
10.2 referred to in the loan
agreement dated October 2014 reads:
"All payments in
terms of this agreement will be made in South African currency, ...,
at the branch of the Bank that has granted
the Loan or wherever else
Nedbank may at any time in writing direct."
[26]
The current document constituting the loan agreement granting the
loan to the Respondents is from Nedbank branch, 35 Rivonia
Road,
Sandton and signed on 24 October 2014. The details of the Applicant
in all the loan agreement is set out as 6 Press Avenue,
Crown Mines
Selby. The Applicant does not allege that the Pretoria branch granted
the loan, whilst the Respondent make the necessary
allegation that
the loan was granted and accepted in Middleburg. The allegations as
countered by the Respondents assertion are
therefore not sufficient
to found the alleged jurisdiction.
[27]
The Applicant therefore fails on both its argument on the areas of
jurisdiction of the Divisions of the High Court as determined
by the
statue or by personal facts.
[28]
I therefore make the following order:
[28.1] The matter is
struck off the roll with costs.
_________________
N
V KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
For
the Applicant:
M RILEY
Instructed
by:
Baloyi,Swart & Associates Attorneys
Tel: 0861298 008/298 007
Ref: Mr Swartl Kobrin
For
the Respondent:
H. P. van NIEUWENHUIZEN
Instructed
by
Eugene Marais Attorneys
Tel: 011 704 4831
Ref: MR E MARAIS/MS N DO
REGO/R405