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[2015] ZAECMHC 66
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Mehlwempi v Unit Insurance Limited (CA & R27/15, 1530/12) [2015] ZAECMHC 66 (15 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION – MTHATHA)
APPEAL CASE NO: CA &
R27/15
LOWER COURT CASE NO:
1530/12
DATE: 15 SEPTEMBER 2015
Reportable
In the matter between:
VUYANI
MEHLWEMPI
..........................................................................................................
Appellant
And
UNITY INSURANCE
LIMITED
.........................................................................................
Respondent
CORAM : Nhlangulela ADJP et MJALI J
APPEAL JUDGMENT
Heard on : 11/09/15
Delivered on : 15/09/15
NHLANGULELA ADJP:
[1] The nature of this appeal makes it
necessary to re-state the meaning of s 28 (1)(d) of the Magistrates’
Court Act 32 of
1944, (the Act), which reads as follows:
“(1) Saving any other
jurisdiction assigned to a court by this Act or by any other law, the
persons in respect of whom the
court shall, subject to subsection
(1A), have jurisdiction shall be the following and no other:
…
(d) any person, whether or not he or
she resides, carries on business or is employed within the district
or regional division, if
the cause of action arose wholly within the
district or regional division.”
(Underlining is mine for emphasisi).
[2] Following upon theft of the
appellant’s motor vehicle he instituted an action against the
respondent in the magistrates’
court of Mthatha for payment of
damages arising from an alleged breach, or repudiation, of a written
insurance contract intended
by the parties to serve as cover in the
event of appellant’s motor vehicle being stolen. At the trial
the respondent raised
a special plea that the magistrate did not have
jurisdiction to entertain such a dispute as the appellant, a
permanent resident
of Mthatha, had concluded the insurance contract
with the respondent, a permanent resident of Port Elizabeth, and the
claim for
compensation made by the appellant on that contract was
repudiated by the respondent in Port Elizabeth. The parties informed
the
magistrate that the contract of insurance was made on 23 July
2009 partly in Mthatha and partly in Port Elizabeth. This concession
had origin in paragraph 3 of the special plea; and it was accepted by
the parties in as much as that the offer and acceptance
of the
terms of the contract did not take place in Mthatha. On these bases,
it was contended on behalf of the respondent before
the magistrate
that the whole cause of action brought by the appellant did not arise
within the jurisdiction of the magistrate
of Mthatha as is envisaged
in s 28 (1)(d) of the Act.
[3] It was contended on behalf of the
appellant before the magistrate, and in this Court, that since the
contract of insurance was
made in Mthatha and the appellant was
domiciled in Mthatha the magistrate had jurisdiction to entertain the
action.
[4] Although the magistrate accepted
that the insurance contract “came to existence” in his
jurisdiction, and the appellant
was ordinarily resident in Mthatha,
he held that since the breach/repudiation of the appellant’s
claim for compensation took
place in Port Elizabeth he did not have
jurisdiction to entertain the appellant’s action. The special
plea was upheld.
It is against that decision that the appellant
noted the appeal to this Court.
[5] The first ground of appeal refers
to the decision the magistrate had made, on the same day of hearing
of the special plea, granting
the respondent’s application for
rescission of judgment on the same matter. For present purposes, if
the magistrate did
not have jurisdiction to entertain the matter, it
will not be necessary to deal with that decision. The other grounds
relate to
the jurisdiction issue, prefaced in the preceding
paragraphs, which I proceed to deal with below.
[6] In Dusheiko v Milburn
1964 (4) SA
648
(A) Ogilvie-Thompson JA said the following at 656 G:
“As is well known, the phrase,
“if the cause of action arose wholly within the district”,
occurring in sec. 28
(1) (b) (sic) of the Act, was authoritatively
defined by the Court as far back as 1921 in McKenzie v Farmers’
Co-operative
Meat Industries Ltd.,
1922 A.D. 16
at p. 23, by adopting
the definition given by LORD ESHER in Read v Brown,
22 Q.B. 128
at p.
131, in these terms, viz.:
‘What is the real meaning of the
phrase ‘cause of action arising in city’?. It has been
defined in Cook v Gill,
L.R., 8 C.P. 107
, to be this: ‘every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right
to the judgment of the
Court.’ It does not comprise every piece of evidence which is
necessary to prove each fact but every
fact which is necessary to be
proved. It has been suggested to-day in argument that this
definition is too broad, but I cannot
assent to this, and I think the
definition is right.’”
[7] The learned Judge of Appeal,
analysing the statement of Maasdorp JA in McKenzie’s case,
supra, at page 20 that:
“Now that fact is not a fact
material to the cause of action. The question is not where the
application was signed, but where
the application was made to the
plaintiff’s company”,
said at 658A:
“I venture to think that most
difficulties will in practice be resolved if, in applying the
definition stated in McKenzie
v Farmers’ Co-operative Meat
Industries Ltd., supra, to any given case, it is borne in mind that
the definition relates only
to “material facts”, and if
at the same time due regard be paid to the distinction between the
facta probanda and the
facta probantia.”
[8] The definition of the phrase, “if
the cause of action arose wholly with the district” contained
in s 28 (1)(d) of
the Act has been applied by the courts consistently
ever since it was formulated in 1922 in the case of McKenzie, supra.
On contracts,
the court in Erasmus v Unieversekerings Adviseurs
(Edms) Bpk
1962 (4) SA 646
(T) said the following at 648A –
649A:
“Different considerations arise
when a contract is sued upon as distinct from a delictual one. In the
former case the place
of conclusion and terms of the contract are
important. In addition the plaintiff must prove that the breach took
place in the
district in question and the first enquiry in the
present matter is where were the offer and acceptance made? At the
same time
the distinction between the facta probanda, that is the
facts which must be established in order to disclose the cause of
action,
and the facta probantia or facts which establish them.”
[9] In this case the facts which must
be established in order to disclose the cause of action are inter
alia, the place where the
offer and acceptance were made, the place
where the claim would be lodged, the place where payment of
compensation would be made.
These factors, the facta probanta, had
to be established by the appellant in order to disclose the cause of
action arising wholly
within the district of Mthatha. The material
facts required to be established to disclose the cause of action
prove the contrary
because the insurance cover was offered by the
respondent in Port Elizabeth, and accepted by the appellant in
Mthatha; the claim
was made in Port Elizabeth where it was considered
and repudiated there, with the appellant being informed of such
repudiation
in Mthatha; and the respondent had at all material times
relevant to the making, performance and repudiation of the contract
been
permanently resident in Port Elizabeth. The contention advanced
by Mr Zilwa, with reference to the case of Wolmer v Rees And Others
1935 TPD 319
at 324, that the insurance contract was made in Port
Elizabeth and accepted in Mthatha is not a decisive factor for the
purposes
of s 28 (1)(d). In other words the cause of action did not
arise arose wholly within the district of Mthatha. Therefore, the
magistrate was correct in upholding the special plea.
[10] In the result the following order
is made:
1. The appeal be and is hereby
dismissed.
2. The appellant to pay costs of the
appeal, including the costs of litigation in the magistrates’
court.
Z. M. NHLANGULELA
ACTING DEPUTY JUDGE PRESIDENT
I agree:
G.N.Z. MJALI
JUDGE OF THE HIGH COURT
Attorney for the applicant : Mr H
Zilwa
c/o X M Petse Inc
MTHATHA.
Counsel for the respondent : Adv. J.
F. Heunis
Instructed by : Messrs Goldberg &
De
Villiers Inc
c/o JF Heunis & Ass MTHATHA.