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[2007] ZASCA 148
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Road Accident Fund v Rampukar, Road Accident Fund v Gumede (543/06, 314/07) [2007] ZASCA 148; [2007] SCA 148 (RSA); 2008 (2) SA 534 (SCA) (28 November 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
In
the matter between :
Case
No: 543/06
1)
ROAD ACCIDENT FUND APPELLANT
and
ISHWARDUTT RAMPUKAR RESPONDENT
Case No: 314/07
2) ROAD ACCIDENT FUND APPELLANT
and
JENNIFER BUSIE GUMEDE RESPONDENT
CORAM : SCOTT, BRAND, MAYA JJA HURT
et
MHLANTLA AJJA
HEARD : 8 NOVEMBER 2007
DELIVERED : 28 NOVEMBER 2007
Summary
: Section 3(1)(a) of
Act 41 of 2001 – jurisdiction under s 19 of Supreme Court
Act 59 of 1959 on part of transferring court
not a requirement –
operation of section not limited to areas affected by change of
jurisdiction under s 2 of the Act.
Neutral citation
: This
judgment may be referred to as
Road Accident
Fund v Rampukar/Road Accident Fund v Gumede
[2007]
SCA 148 (RSA)
JUDGMENT
BRAND JA
/
BRAND JA
:
[1] These two appeals were heard together because the
issues they raise are substantially the same. In essence they turn on
the interpretation
of s 3(1)(a) of the Interim Rationalisation
of Jurisdiction of High Courts Act 41 of 2001. By the nature of
things, I am bound
to return to the provisions of the Act in more
detail when evaluating the opposing contentions. Broadly stated for
introductory purposes,
however, s 3(1)(a) affords a High Court
the authority to order the removal of civil proceedings instituted in
that court to
another High Court if it appears to the former that
such proceedings should have been instituted in the latter.
[2] The appellant in both matters is the Road Accident
Fund (‘the RAF’) which has its principal place of
business for
purposes of s 19(1) of the Supreme Court Act 59 of
1959 (in the sense contemplated, eg in
K
Bisonboard Ltd v K Braun Woodworking Machinery (Pty)
Ltd
[1990] ZASCA 86
;
1991 (1) SA 482
(A) at 496A-C) within the
area of jurisdiction of the Pretoria High Court. Another feature
common to both matters is that the motor
vehicle accidents that gave
rise to the respondents’ claims against the RAF occurred in the
province of KwaZulu-Natal. Yet,
the respondents did not institute
their actions against the RAF in the Pretoria High Court or in the
High Courts of KwaZulu-Natal,
which would appear to be the options
indicated by s 19(1) of the Supreme Court Act. While Mr
Rampukar’s action was launched
in the Johannesburg High Court,
Mrs Gumede brought hers in the Cape. In each case the RAF raised the
special plea that the court
had no jurisdiction, whereupon both the
respondents conceded the validity of this special defence.
[3] After making the concession that the Johannesburg
High Court had no jurisdiction, Mr Rampukar brought an application in
that court,
based on s 3(1)(a) of the Act, for an order that his
action be transferred to the Pretoria High Court where the RAF has
its
principal place of business. Despite opposition by the RAF, the
application was granted by Willis J. Mrs Gumede brought the same
application in the Cape High Court, save that she wanted her action
to be transferred to the Pietermaritzburg High Court within whose
area of jurisdiction the accident giving rise to her claim occurred.
Relying
inter alia,
on
the judgment of Willis J in
Rampukar,
Van
Reenen J granted her application as well. The appeals against these
two judgments are with the leave of the court
a
quo
in each case.
[4] I think the issues that arose on appeal will best be
understood against the background and the relevant provisions of the
Act.
The background appears from the comprehensive preamble to the
Act. In essence it amounts to this: by virtue of item 16(4)(a)(1) of
Schedule 6 to the Constitution, Act 108 of 1996, all provincial and
local divisions of the erstwhile Supreme Court of South Africa
as
well as the superior courts of former homelands, became High Courts
under the Constitution without any alteration in their areas
of
jurisdiction. Item 16(6)(a) of the same Schedule 6 provided, however,
that there should be a comprehensive rationalisation of
various
matters concerning these newly created High Courts, including their
areas of jurisdiction, as soon as possible after the
Constitution
took effect. But the legislature foresaw that the finalisation of the
comprehensive rationalisation process would require
considerable
time. In the meantime, interim changes to the areas of jurisdiction
of some High Courts were urgently necessary. Consequently,
so the
preamble to the Act explains, the legislature decided to promulgate
the Act in order to facilitate these interim changes.
[5] The relevant provisions of the Act are contained in
ss 2, 3 and 4. They read as follows:
‘
2
Minister may alter
area of jurisdiction of any High Court
(1) Notwithstanding the
provisions of any other law, the Minister [of Justice] may, after
consultation with the Judicial Service Commission,
by notice in the
Gazette
-
(a) alter the area of jurisdiction for
which a High Court has been established by including therein or
excising therefrom any [magisterial]
district or part thereof;
(b) amend or withdraw any notice issued
in terms of this section.
(2) Any notice referred to
in subsection (1) must be approved by Parliament before publication
thereof in the
Gazette
.
(3) The publication of a notice referred
to in subsection (1) does not affect any proceedings which have been
instituted but not yet
completed at the time of such publication.
3
Transfer
of proceedings from one High Court to another
(1) If any civil proceedings have been
instituted in any High Court, and it appears to the Court concerned
that such proceedings -
(a) should have been instituted in
another High Court; or
(b) would be more conveniently or more
appropriately heard or determined in another High Court,
the Court may, upon application by any
party thereto and after hearing all other parties thereto, order such
proceedings to be removed
to that other High Court.
(2) An order for removal under subsection
(1) must be transmitted to the registrar of the High Court to which
the removal is ordered,
and upon receipt of such order that Court may
hear and determine the proceedings in question.
4
Repeal
of laws and saving
(1) Subsections (1) and (4) of section 6
of, and the First Schedule to, the Supreme Court Act, 1959, are
hereby repealed.
(2) Notwithstanding the repeal of the
laws referred to in subsection (1), the seats and the areas of
jurisdiction of the High Courts
referred to in the said First
Schedule shall, subject to any alteration under section 2, remain as
they were immediately before the
commencement of this Act.’
[6] To complete the picture: the provisions of the
Supreme Court Act which are repealed by s 4(1) and saved by
s 4(2) of
the Act, are those defining the geographical areas of
jurisdiction of the divisions of the Supreme Court. After the Act
came into
operation on 5 December 2001, the Minister of Justice on
more than one occasion, effected alterations to the areas of
jurisdiction
of different High Courts by way of notices in the
Government Gazette as contemplated in s 2. These alterations are
conveniently
set out in Erasmus,
Superior
Court Practice
, at A1-106B to A1-106C.
Suffice it to say for present purposes, however, that neither
Pretoria – where the RAF’s principal
place of business is
situated – nor any of the areas in KwaZulu-Natal – where
the two accidents in question occurred
– were affected by any
of these alterations. Conversely stated, the Johannesburg High Court
and the Cape High Court, where
the present matters were instituted,
never had jurisdiction to entertain these cases.
[7] In the
Rampukar
appeal,
the RAF limited itself to the contention that, on a proper
interpretation of s 3(1)(a) of the Act, the court
a
quo
was not authorised to transfer the
proceedings to another High Court. In
Gumede
it raised the same argument, but contended, in the
alternative, that even if the court
a quo
had
the power to do so, it should not have exercised the discretion it
derives from the section in favour of the respondent.
[8] The RAF’s first argument in support of its
main contention raised in both matters departed from the premise
that, as a matter
of basic principle, a court that has no
jurisdiction to decide a particular case, also has no jurisdiction to
deal with that case
by transferring it to another court. And, so the
RAF’s argument proceeded, there is nothing in s 3(1)(a)
which is indicative
of an intention to change that basic principle.
For the proposed basic principle pivotal to this argument, the RAF
sought to rely
on a long line of cases relating to s 9(1) of the
Supreme Court Act and the similarly worded predecessors to that
section in
earlier legislation (see eg
Van
Dijk v Van Dijk
1911 WLD 203
at 204;
Ying
Woon v Secretary for Transport
1964 (1) SA
103
(N) at 108C-F;
Welgemoed and another NNO v
The Master
1976 (1) SA 513
(T) at 523A-D).
[9] The wording of s 9(1) of the Supreme Court Act
closely resembles s 3(1)(b) of the Act. In fact, the provisions
of these
two enactments are so similar that it gives rise to the
suggestion that the latter had superseded the former without express
repeal
(see eg
Nongovu NO v Road Accident Fund
2007 (1) SA 59
(T) para 10; L T C Harms,
Civil Procedure in the Supreme Court
,
A-34). Whether this is so or not, is not necessary to decide. Of
significance for present purposes, however, are two things. First,
s 3(1)(a) of the Act is new. It has no counterpart in the
Supreme Court Act or any of its predecessors. Secondly, s 3(1)(a)
and s 3(1)(b) deal with completely disparate situations.
[10] As I see it, s 3(1)(a), on its own wording,
deals with the situation where the proceedings should have been
instituted in
‘the other court’, ie the transferee court.
This can only mean that they should not have been instituted in the
court
where they were in fact instituted, ie the transferring court.
Admittedly the section suggests no reason why they should not have
been so instituted. But, in the context of an act dealing with
jurisdiction, the only reason I can think of is that the transferring
court lacked jurisdiction to determine the dispute between the
parties under s 19(1) of the Supreme Court Act. In these
circumstances,
s 3(1)(a) does not bestow the transferring court
with jurisdiction to entertain and decide the main dispute; all the
section
does is to afford the transferring court the limited
jurisdiction – which otherwise it would not have had – to
transfer
the matter to the ‘right’ court, ie the court
with proper jurisdiction to determine the dispute under s 19(1)
of
the Supreme Court Act. Thus understood, I think the situation that
s 3(1)(a) seeks to address is obvious. It is the one where
a
plaintiff has wrongly instituted proceedings in the transferring
court instead of the transferee court and now seeks a transfer
from
the former to the latter.
[11] Stated somewhat differently; if both s 3(1)(a)
and s 3(1)(b) require original jurisdiction on the part of the
transferring
court – as the RAF will have it – I cannot
see what purpose s 3(1)(a) could possibly serve in addition to
s 3(1)(b).
Why would a court with jurisdiction to determine the
matter transfer that matter to another court, unless it is convenient
or appropriate
to do so, as contemplated in s 3(1)(b)? As I
understand s 3(1)(a), it complements s 3(1)(b) in that the
two sections
provide for what are, in a sense, converse situations.
According to the interpretation previously given to s 9(1) of
the Supreme
Court Act – which must as a logical necessity apply
to s 3(1)(b) as well – this section deals with the
situation
where the transferring court has jurisdiction to determine
the main dispute. Yet it is asked to transfer the matter to the
transferee
court for the sake of convenience and it matters not
whether the transferee court has original jurisdiction or not (see eg
Veneta Mineraria Spa v Carolina Collieries
(Pty) Ltd (in liquidation)
1987 (4) SA 883
(A) at 888A-B). In s 3(1)(a), on the other hand, it is the
transferee court that must have original jurisdiction and not the
transferring court. In this light, the RAF’s first contention
as to why the courts
a quo
could
not transfer the proceedings under s 3(1)(a), ie because they
had no original jurisdiction under s 19(1) of the Supreme
Court
Act to determine the main disputes, is in my view unsustainable.
[12] I turn to the RAF’s second contention as to
why s 3(1)(a) did not empower the courts
a
quo
to transfer the proceedings. According to
this contention the section is only available to parties in matters
which are affected by
changes in jurisdiction under s 2 of the
Act. Since the matters under consideration were not so affected, the
RAF contends,
s 3(1)(a) found no application at all. In broad
outline, the argument in support of this contention proceeds as
follows: the
whole Act was intended as a temporary measure to
facilitate the interim rationalisation of the areas of jurisdiction
of the High
Courts, pending finalisation of the more comprehensive
rationalisation process contemplated by the Constitution. That much
appears
from the preamble. The mechanism for realising this goal is
created in s 2. Read in this context, s 3 constitutes no
more
than an ancillary provision. It deals with the transfer of
matters in the affected areas as part of the alteration process. The
interpretation
of s 3(1)(a) contended for by the respondents and
endorsed by the courts
a quo,
so
the argument goes,
is far too wide. It would
result in the negation of s 19(1) of the Supreme Court Act which
specifically bestows territorial jurisdiction
on the different High
Courts in respect of prescribed geographical areas. It will enable
litigants to choose the court in which they
wish to institute
proceedings, in total disregard of the defined and extant areas of
jurisdiction. Having regard to the limited and
temporary nature of
the act, so the argument concludes, it is highly unlikely that the
legislature would have intended s 3(1)(a)
to have these drastic
and far reaching consequences.
[13] I do not agree that the wider interpretation of
s 3(1)(a) adopted by the courts
a quo
results in a negation of s 19(1) of the
Supreme Court Act. On the contrary, I believe that the wider
interpretation is premised
on a recognition of the generally accepted
principles of territorial jurisdiction underlying s 19(1). As I
have said before,
in accordance with the wider interpretation,
s 3(1)(a) does not bestow jurisdiction on a court which has no
jurisdiction under
s 19(1) of the Supreme Court Act to decide
the case on its merits. All it does is to afford the ‘wrong’
court –
ie the transferring court – limited jurisdiction
to transfer the case to the ‘right’ court which does have
jurisdiction
under s 19(1).
[14] In this light the RAF’s suggestion that the
wider interpretation of s 3(1)(a) would enable litigants to
institute
their actions in the courts of their choice, is difficult
to understand. It begs the question why litigants would knowingly
institute
proceedings in a court with no original jurisdiction when
at best for these perverse litigants the section would enable them to
seek
a transfer to the right court. This could only result in an
expensive, wasteful exercise for the litigant who will receive no
perceivable
benefit in return. What is more, under s 3(1)(a) a
transfer is not just for the asking. The transferring court has a
discretion
to refuse the application and will presumably do so if the
applicant had chosen the wrong court for no acceptable reason.
[15] What also seems clear to me is that s 3(1)(a)
was not intended for the situation where a party instituted
proceedings in
a court which had jurisdiction at the time of
institution but then lost that jurisdiction due to an alteration of
its area of jurisdiction
under s 2 of the Act. This situation is
adequately covered by s 2(3) which specifically provides that
the publication of
a notice under s 2(1) does not affect any
proceedings which were instituted prior to the publication of that
notice.
[16] Hence it can, in my view, be accepted with
confidence that s 3(1)(a) was intended to alleviate the
predicament of a litigant
who mistakenly instituted proceedings in
the wrong court. Once this is appreciated, an analysis of the RAF’s
argument seems
to show that the essential difference between the
wider and the narrower interpretation of s 3(1)(a) turns on the
reason
for the
mistake. According to the narrower interpretation, there must be some
link between the reason for the mistake and a change
in jurisdiction
under s 2 of the Act. Consequently, on the narrower
interpretation, s 3(1)(a) only applies where the litigant
mistakenly instituted proceedings in a court which at one time had
territorial jurisdiction to decide the case, but which at the
time of
institution no longer had jurisdiction due to an alteration under
s 2(1). By contrast, the wider interpretation imposes
no
restriction on the reason for the mistake. If a litigant had
mistakenly instituted action in the wrong court, that court has a
discretion to come to his or her aid and it matters not why the
mistake was made.
[17] An appropriate starting point in deciding between
these divergent interpretations is, in my view, that as a matter of
everyday
language, the plain meaning of the section imposes no
limitation on the type of mistake. On the contrary, the language
seems to be
as wide as it can possibly be. Yet, the RAF contended
that such limitation is indicated by the context of the preamble and
the other
provisions of the Act as a whole. Read in this context, so
the RAF argues, the words ‘any High Court’ in the
introductory
part of s 3(1)(a) should therefore be understood as
if they were notionally qualified by the phrase ‘which had
jurisdiction
prior to an alteration under s 2(1)’. This
argument, of course, immediately gives rise to the question why, if
this was
indeed the legislature’s intention, it failed to take
the relatively simple step of introducing the restricting phrase.
[18] Apart from this, I have a twofold problem with the
qualification contended for by the RAF. On the one hand, it will only
provide
assistance to litigants whose mistake was that they did not
realise that they had been affected by a change in jurisdiction.
Litigants
who made the same type of mistake by thinking that they
were affected by a change in jurisdiction while they were not, will
derive
no assistance from the section, simply because the court never
had any jurisdiction to hear the case. Conversely, the section would,
upon acceptance of the RAF’s qualification, provide relief to
litigants who were affected by a change in jurisdiction, even
when
their mistake did not relate to the change in jurisdiction at all, ie
where they realised there had been a change in jurisdiction
but for
some other reason made the mistake of initiating proceedings in the
wrong court.
[19] In the end it becomes apparent, in my view, that
the narrower interpretation of s 3(1)(a) would lead to arbitrary
–
and sometimes even absurd – differentiations between
situations which are indistinguishable in principle. It would permit
a
litigant who mistakenly instituted proceedings in the wrong court
to have the matter transferred to the right court if the mistake
is
excusable and of a particular kind. But if the mistake was brought
about by some other equally excusable reason, a transfer would
not be
possible. More often than not this will have the result – as in
the present matters – that litigants who have
made one type of
mistake may lose their claims through prescription while the claims
of other litigants who made some other mistake
may be saved. I can
find no indication in s 3(1)(a) that the legislature intended to
bring about this irrational discrimination
between different
litigants in the same predicament.
[20] The further consideration relied upon by the RAF in
support of the narrower interpretation is that the Act was intended
to be
of limited duration only. I find this proposition equally
unconvincing. The mere fact that it is an interim measure cannot, in
my
view, make any difference as to how it should be understood. While
it is in operation, effect must be given to it. What will happen
if
and when it is repealed, is not for us to divine. The end result is
that I am not persuaded by any of the arguments advanced by
the RAF
that the courts
a quo
were
wrong in adopting the wider interpretation of s 3(1)(a).
[21] This brings me to the alternative argument raised
by the RAF in
Gumede,
namely
that the court
a quo
should
not have exercised the discretion bestowed upon it by s 3(1)(a)
in favour of the respondent. The evaluation of this argument
requires
a somewhat more detailed account of the background facts. Mrs
Gumede’s claims against the RAF, in her personal capacity
and
on behalf of her two minor children, are for the loss of support that
they suffered when their breadwinner died as a result of
the injuries
he sustained when the motor vehicle, in which he travelled as a
passenger, was involved in an accident with another
vehicle. The
accident occurred in Mtubatuba, KwaZulu-Natal on 11 December 1998. It
is common cause that, if she has to institute
action anew in the
Pietermaritzburg High Court, the claim in her personal capacity –
which is by far the largest of her claims
– would be lost
through prescription, though the claims of her two minor children
will probably survive.
[22] In an affidavit filed in support of Mrs Gumede’s
application for the transfer of the matter, her attorney gives the
reason
why her action was instituted in the Cape High Court. It
appears that the reason flows directly from a directive issued by the
RAF,
which was published in the June 1997 edition of
De
Rebus
(at 383). According to the directive,
claimants were invited to lodge their claims at any of the three
offices of the RAF in Pretoria,
Randburg or Cape Town. In addition,
it informed claimants that a claim would normally be administered at
the office where it was
lodged and that, if legal proceedings were to
follow, these should be instituted in the High Court with
jurisdiction over the area
in which the administering office is
situated. This invitation was confirmed in a newsletter distributed
by the legal advice department
of the RAF in October 1997. Though Mrs
Gumede’s claim had been lodged at the Randburg office of the
RAF, it was, for reasons
unknown, administered by its Cape Town
office. That was the sole reason, Mrs Gumede’s attorney
explained, why her action was
instituted in the
Cape High Court. In fact, the attorney stated, it would
be far more convenient for her and her legal advisors to institute
the action
in Pietermaritzburg.
[23] Prior to the close of pleadings in the matter,
judgment was handed down by the Cape High Court in the case of
Ex
Parte Kajee
2004 (2) SA 534
(C) where it was
held,
inter alia
(at
542B), that the RAF is not entitled to consent to jurisdiction in
respect of a court which has no jurisdiction to entertain the
action
in accordance with s 19 of the Supreme Court Act. Since the
present appeals were argued on the basis that
Kajee
was correctly decided, I specifically refrain from
expressing any view as to whether this is so. Of relevance, however,
is that it
was the decision in
Kajee
which
led to the filing of the RAF’s special plea – which
eventually proved to be successful – that the Cape High
Court
had no jurisdiction to entertain Mrs Gumede’s claims.
[24] The main reason advanced by the RAF as to why the
court
a quo
should, in
the exercise of its discretion, have refused to transfer the matter,
is that, in the event, the RAF will be deprived of
the opportunity to
plead prescription in respect of Mrs Gumede’s personal claim.
It appears, however, that, in the present
context, the issue of
prescription is a two edged sword. It raises the question whether in
the circumstances it would be fair that
Mrs Gumede should lose her
personal claim. I think not. It is clear that the confusion with
regard to jurisdiction which led to the
institution of her action in
the wrong court, was induced by the RAF’s own conduct. In these
circumstances, I believe, it does
the RAF no credit to rely on that
very confusion to avoid Mrs Gumede’s claim. What is more, with
regard to the claims of Mrs
Gumede’s minor children, a refusal
to transfer the proceedings will require a re-institution of the
action in the Pietermaritzburg
High Court with the consequent waste
of time and money, from which no one – including the RAF –
will derive any
perceivable benefit. I therefore believe that the
court
a quo
cannot be
criticised for the way in which its discretion was exercised. On the
contrary, I think in its position I would have done
exactly the same.
[25] In the result, both appeals are dismissed with
costs.
………………
.
F D J BRAND
JUDGE OF
APPEAL
Concur
:
SCOTT JA
MAYA JA
HURT AJA
MHLANTLA AJA