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[2013] ZAFSHC 191
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Van Rensburg Pathologists Incorporated v Rampana (A70/2013) [2013] ZAFSHC 191 (19 December 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Number : A70/2013
In the
appeal between:-
VAN
RENSBURG PATHOLOGISTS INCORPORATED
…......................
Appellant
and
D.E.
RAMPANA
..............................................................................
Respondent
CORAM:
EBRAHIM,
J,
et
VAN
ZYL, J
JUDGMENT
BY:
VAN
ZYL, J
DELIVERED
ON:
19
DECEMBER 2013
[1]
The appellant approached the Magistrate’s Court for the
district of Bloemfontein on 12 November 2012 by means of an urgent
application for an order in the following terms:
“
1. The
applicant’s failure to adhere to this Court’s rules
relating to time periods and service be condoned, and that
the
application be heard as an urgent application.
2. Respondent be
ordered - in specific performance of the employment contract
concluded between the parties – to render her
services as
technologist to the applicant until 30 November 2012.
3. Alternatively to prayer 2 above,
that the respondent be ordered to effect payment to the applicant in
the amount of R15 569-90,
as damages suffered by applicant due
to the respondent’s breach of contract.
4. In the further alternative to
prayers 2 and 3 above that leave be given to the applicant to
institute an action for the aforementioned
damages within thirty days
after the date of the granting of this order.
5. That the respondent be ordered to
pay the costs of the application on the scale as between attorney and
client.
6.
Further and/or alternative relief.”
[2]
For reasons which will become evident later in this judgment, I do
not consider it necessary to deal in detail with the respective
factual averments made by the parties in the three sets of
affidavits. I deem it apposite to only give a broad outline of the
facts that underpin the appellant’s claim.
[3]
The appellant renders pathologist services. The respondent was
employed by the appellant as a technologist and the parties
concluded
a written employment agreement on 26 August 2011, attached to the
founding affidavit as Annexure “JM1”. In
terms of clause
17.1 of the employment contract, the respondent was required to give
two calendar months’ notice of her termination
of service to
the appellant should she wish to resign. On 27 September 2012
the respondent gave written notice of her resignation
by means of a
letter attached to the founding affidavit as Annexure “JM2”.
In the said letter she intimated that
she would not be able to serve
out her two months’ notice period for the reasons stated in the
letter. She therefore
only gave one calendar month’s
notice, starting from 1 October 2012 to 31 October 2012.
Although the appellant accepted
her resignation, it indicated in a
letter dated 28 September 2012, attached to the founding affidavit as
Annexure “JM3”,
that the respondent would be required to
in fact work her two months’ calendar notice period. On
26 October 2012 a
further letter of demand was addressed to the
respondent, attached to the founding affidavit as Annexure “JM4”.
The respondent however indicated in an e-mail dated 31 October 2012,
attached to the founding affidavit as Annexure “JM5”,
that the matter was no longer in her hands and that the appellant
would be contacted by her attorney or union official. On
1
November 2012 the respondent did not report for duty and had not
reported subsequently prior to the bringing of the application.
The
appellant therefore contended that the respondent breached the
employment contract concluded between the parties and that the
appellant is consequently entitled to an order for specific
performance of the employment contract concluded between the
parties.
In the alternative and should the Court not be willing
to order specific performance of the employment contract, the
appellant
requested that the respondent be ordered to pay the amount
claimed to the applicant as damages
in lieu
.
[4]
The respondent in her answering affidavit raised two points
in
limine
in addition to her response on the merits of the
application. These points were the following:
4.1
Firstly, the respondent contended that the relationship between the
parties is governed by the Labour Relations Act and other
labour
related legislation, as is evident from the contract of employment
concluded between the parties, Annexure “JM1”.
It
was therefore contended by the respondent that
“
the
Labour Relations Act 66 of 1995
as amended has exclusive jurisdiction
to adjudicate Labour disputes and that the applicant ought to have
referred matters to either
the Commission for Conciliation, Mediation
and Arbitration or the Labour Court and that the Honourable
Magistrates Court lacks
the necessary jurisdiction to deal with the
matter”. (
sic)
See
Record, p. 44, para 4.1 – 4.3
4.2 Secondly, the
respondent contended that the Magistrate`s Court furthermore lacked
jurisdiction because the cause of action as
framed by the appellant
is for specific performance of an employment contract which falls
outside the Magistrate’s Court’s
statutory powers, which
leaves only the damages claim which ought to have been pursued by
means of an action and not application
proceedings.
See
Record, p. 44 - 45, para 5.
[5]
At the onset of the hearing it was agreed between the parties that
only the two points
in
limine
would be dealt with and that the success of the application would
depend entirely upon the determination of these two points.
In
other words, if any of the two points
in
limine
were to be upheld, the application was to be dismissed, but if the
two points
in
limine
were to be dismissed, the claim for specific performance was to be
granted.
[6]
On 19 November 2012 the Court
a
quo
upheld the respondent’s first and second points
in
limine
and therefore dismissed the application with costs. In response to a
request for reasons for the aforesaid order filed on 19 November
2012, the Court
a
quo
provided such reasons, dated 4 December 2012.
[7]
In his heads of argument and also at the onset of the hearing of the
appeal, Mr Grobler, on behalf of the appellant, spontaneously
conceded that it is no longer competent for the appellant to seek an
order for specific performance of the contract as the relevant
notice
period had already expired on 30 November 2012. In his heads of
argument Mr Grobler indicated that he would therefore request
that
should the appeal be successful, the respondent be ordered to pay the
damages that was initially claimed in prayer 3 of the
notice of
motion, together with costs, which costs are to include both the
costs of the application and the costs of the appeal.
However,
during the hearing of the appeal Mr Grobler contended that because
the Court
a
quo
never
ruled upon the damages as an alternative, he is compelled to request
that an order in terms of prayer 4 of the notice of motion
(hence
leave to institute an action for damages) be granted should the
appeal be successful, again together with costs.
THE
FIRST POINT
IN
LIMINE
:
[8]
In finding that the Magistrate’s Court has no jurisdiction to
deal with the appellant’s application, the Court
a quo
,
in the reasons for her order, referred to the fact that the
employment contract between the parties was subject to the
Labour
Relations Act and
furthermore referred to an extract (paragraphs 20
and 21) from the judgment in
WANNENBURG v MADAMU TECHNOLOGIES
(PTY) LTD
, Case number AR87/2012, delivered on 13 June 2012 in
the High Court, Pietermaritzburg. She then concluded that the first
point
in limine
should be upheld in favour of the respondent.
[9]
In his argument during the appeal Mr Grobler submitted that the
aforesaid judgment does not impact on the issue of jurisdiction
in
the current matter. However, in my view the said judgment
actually confirms the appellant’s stance in the current
matter
regarding the jurisdiction of the Magistrate’s Court. The
reliance of the Court
a quo
on the contents of,
inter alia
,
paragraph 21 of the said judgment, is in my view misplaced. It seems
that the remarks made in paragraph 21 of the said judgment
were not
only made
obiter
, but furthermore relates to a general
principle that the Labour Court should be preferred for labour
disputes because it is a specialist
court designed for disputes in
employment and furthermore because in the Labour Court there is no
risk of jurisdictional challenges
in employment disputes. But
the essence of the judgment actually related to the jurisdiction of
Magistrates’ Courts
to determine an employee’s claim for
remuneration. In this regard the Court made the following
findings which, in my
view, are in fact in favour of the appellant in
the current appeal:
“
[15] In
short, for this employee neither the LRA nor the BCEA provided
remedies that fell within the exclusive jurisdiction of the
Labour
Court.
[16] In applying the precedent set in
Fedlife and Makhanya it was confirmed that the High Court and the
Labour Court both have the
power to enforce common law contractual
and constitutional rights insofar as their infringement arises from
employment.”
And
then furthermore, very importantly, in paragraph 19 of the judgment:
“
[19]
What
is in issue in this appeal is whether the Magistrates’ Court
had jurisdiction to enforce a claim arising from contract.
The fact that the employee did not specify whether he accepted the
repudiation and claimed damages or whether he rejected the
repudiation and sought to enforce his claim, is immaterial in the
circumstances of this case. …If it was material,
the
employer could have inferred that the employee sought specific
performance....Any doubt the employer had about the employee’s
claim could have been clarified in either an exception to the
particulars of claim or by a request for further particulars.
Deficiencies
in the pleading therefore did not impact on the Magistrates’
Courts having jurisdiction
.”
(Own emphasis)
[10]
The aforesaid judgment therefore, in my view, does not
substantiate the finding
of the Court
a
quo -
to
the contrary.
[11]
Mr Qwelane, on behalf of the respondent, submitted that it is evident
from the contents of the employment contract concluded
between the
parties that it was their intention that their relationship and
therefore any dispute between them should be dealt
with in terms of
the relevant different labour legislation in that paragraph 1.2 of
the said contract reads as follows:
“
This
Agreement shall be subject to the
Labour Relations Act 66 of 1995
,
legislation regulating minimum conditions of employment as well as
the General Conditions of Employment and Quality Control Measures
of
the Employer.”
He
furthermore relied on the judgment in
CHIRWA
v TRANSNET LTD AND OTHERS
(2008) 29 (ILJ) 73 (CC), and more specifically paragraph 41 thereof
in which the following is stated:
“
[41] It is
my view that the existence of a purpose-built employment framework in
the form of the LRA and associated legislation
infers that labour
processes and forums should take precedence over non-purpose-built
processes and forums in situations
involving employment related
matters. At the least, litigation in terms of the LRA should be
seen as the more appropriate
route to pursue. Where an alternative
cause of action can be sustained in matters arising out of an
employment relationship, in
which the employee alleges unfair
dismissal or an unfair labour practice by the employer, it is in the
first instance through the
mechanisms established by the LRA that the
employee should pursue her or his claims.”
[12]
Mr Qwelane consequently submitted that the subject matter of the
appellant’s application, regardless of how it is formulated,
arises out of an employment relationship in which the appellant,
hence the employer, alleges a breach of the employment contract
by
means of an unfair resignation or an unfair labour practice and the
appellant should therefore have pursued its claim in terms
of the
mechanisms established by labour related legislation.
[13]
I cannot agree with the aforesaid submissions of Mr Qwelane.
His submissions are not supported by the relevant case law
of the
recent years, some of which I will refer to now.
[14]
In
FEDLIFE ASSURANCE LTD v WOLFAARDT
2002 (1) SA 49
(SCA) the
respondent had claimed damages in the High Court resulting from the
premature termination of his fixed-term contract
of service.
The appellant claimed that the High Court lacked jurisdiction because
the matter should have been referred as
an unfair dismissal to the
Labour Court. The following relevant findings are to be found in the
majority judgment as from paragraph
22 and further:
“
[22] In my
view chapter 8 of the 1995 Act is not exhaustive of the rights and
remedies that accrue to an employee upon the termination
of a
contract of employment. Whether approached from the perspective
of the constitutional dispensation and the common law
or merely from
a construction of the 1995 Act itself I do not think the Respondent
has been deprived of the common-law right that
he now seeks to
enforce. A contract of employment for a fixed term is
enforceable in accordance with its terms and the employer
is liable
for damages if it is breached on ordinary principles of the common
law.
[23] There remains the question
whether the respondent’s action for contractual damages is
nevertheless a matter that falls
within the exclusive jurisdiction of
the Labour Court in terms of s 157(1). The appellant’s
counsel submitted in the
alternative that it does.
[24] ….
[25] Furthermore s 157(1) does not
purport to confer exclusive jurisdiction upon the Labour Court
generally in relation to matters
concerning the relationship between
employer and employee. Some of the implications were recently
discussed by Zondo JP in
LANGEVELDT v VRYBURG TRANSITIONAL LOCAL
COUNCIL AND OTHERS
(2001) 5 ILJ 1116 (LAC). Its exclusive
jurisdiction arises only in respect of ‘matters that elsewhere
in terms of this
Act or in terms of any law are to be determined by
the Labour Court’. Various provisions of the 1995 Act
identified
particular disputes or issues that may arise between
employers and employees and provide for such disputes and issues to
be referred
to the Labour Court for resolution, usually after
attempts at conciliation have failed…. In my view, those are
the ‘matters’
that are contemplated by s 157(1) and to
which the Labour Court’s exclusive jurisdiction is confined….
[26] ….
[27] Whether a particular dispute
falls within the terms of s 191 depends on what is in dispute, and
the fact that an unlawful dismissal
might also be unfair… is
irrelevant to that enquiry. ….The dispute in the present case
is not about the fairness
of the termination of the respondent’s
contract but about its unlawfulness and for that reason alone it does
not fall within
the terms of the section….
In those
circumstances the respondent’s action is not a ‘matter’
that is required to be adjudicated by the Labour
Court as
contemplated by s 157(1) and a special plea was correctly set aside
.”
(Own emphasis)
Also
see
BOXER
SUPERSTORES MTHATHA AND ANOTHER v MBENYA
2007 (5) SA 450
(SCA)
[14]
In the very same
CHIRWA
-decision
to which Mr Qwelane referred, Skweyiya J in his judgment, paragraph
60, quoted
FEDLIFE
,
supra
,
with apparent approval:
“
It
is apparent from the provisions of s 157(1) that it does not confer
‘exclusive jurisdiction upon the Labour Court generally
in
relation to matters concerning the relationship between employer and
employee’ .
It
seems implicit from the provisions of this section that the
jurisdiction of the High Court is not ousted simply because a dispute
is one that falls within the overall sphere of employment relations.
The jurisdiction of the High Court will only be ousted
in respect of
matters that, in the word of s157(1) ‘are to be determined by
the Labour Court
….”
(Own emphasis)
[15]
In
UNIVERSITY
OF THE NORTH v FRANKS AND OTHERS
(2002) 23 ILJ 1252 (LAC) the Labour Appeal Court dismissed a
challenge to the jurisdiction of the Labour Court to adjudicate a
dispute regarding the interpretation of an employment contract with
the following finding:
“
The
dispute therefore concerns a contract of employment any breach of
which would vest the civil courts with jurisdiction to adjudicate
it
and, as the statute provides, so does the Labour Court concurrently
have jurisdiction.”
[16] It in fact appears
from the judgment in N
EWU v CCMA & OTHERS
(2007) 28 ILJ
1223 (LAC) that had the appellant in this instance claimed damages
from the respondent in the CCMA or the Labour
Court, it would have
been non-suited because there is no provision in the LRA which
permits employers to pursue claims against
their employees or former
employees.
[17]
In the judgment of
TSIKA
v BUFFALO CITY MUNICIPALITY
(2009) 30 ILJ 131 (E) Grogan, AJ as he then was, specifically dealt
with the effect of the
CHIRWA
-decision.
In the said judgement he did a detailed analysis of the relevant case
law pertaining to the issue in the current
appeal, specifically also
with reference to the effect of the
CHIRWA
-decision.
He then concluded that the state of the law after the
CHIRWA
-decision
is,
inter
alia
,
the following (at 130 B of the judgment):
“
This
Court and other civil courts retain their common-law jurisdiction to
entertain claims for damages arising from alleged breaches
of
contracts of employment and the acts or omissions of either party
after the termination of the employment, and the Labour Court
has
concurrent jurisdiction to determine such matters
.”
(Own emphasis)
[18]
Mr Grobler in his argument heavily relied on the judgment in
GCABA
v MINISTER FOR SAFETY AND SECURITY AND OTHERS
2010 (1) SA 238
(CC). He submitted that no reliance was placed by the appellant on
any rights given to the employer generally in labour legislation
or
anything alike. The appellant’s claim, according to his
contention, was simply one for contractual relief.
Van
der Westhuizen J on behalf of the unanimous court held as follows in
paragraph 73 and further of the judgment:
“
[73]
Furthermore, the LRA does not intend to destroy causes of action or
remedies and s 157 should not be interpreted to do so.
Where a
remedy lies in the High Court, s 157(2) cannot be read to mean that
it no longer lies there and should not be read to mean
as much.
Where the judgment of Ngcobo J in Chirwa speaks of a Court for labour
employment disputes, it refers to labour-
and employment-related
disputes for which the LRA creates specific remedies.
It
does not mean that all other remedies which might lie in other
courts, like the High Court and Equality Court, can no longer
be
adjudicated by those courts
.
If only the Labour Court could deal with disputes arising out of all
employment relations, remedies would be wiped out,
because
the
Labour Court (being a creature of statute with only selected remedies
and powers) does not have the power to deal with a common-law
other
statutory remedies
.
[74] ….
[75]
Jurisdiction is determined on
the basis of the pleadings
, as Langa CJ held in Chirwa, and not
the substantive merits of the case. ….
In the event of the
Court’s jurisdiction being challenged at the outset (
in
limine
), the applicant’s pleadings are the
determining factor
. They contain the legal basis of the
claim under which the applicant has chosen to invoke the Court’s
competence. …”
(Own emphasis)
[19]
In the current instance it is in my view very evident from the
contents of the founding affidavit that the appellant’s
claim
is for specific performance of a contract, with the alternative of
contractual damages for the breach of the said contract.
The
mere fact that this contract is in fact an employment contract
concluded between the parties, does not detract from the fact
that
the appellant’s claim is for contractual relief under the
common law. No remedy has been provided for an employer
such as
the appellant in this instance in the LRA and furthermore the relief
sought was not in any manner entrenched in any relevant
labour
legislation to fall under the exclusive jurisdiction of the CCMA
and/or the Labour Court.
[20]
In the premises I find that the Court
a
quo
as
a civil court did have jurisdiction to entertain the application of
the appellant (subject to the findings regarding the
second
point
in
limine
).
[21]
I consequently find that the Court
a
quo
erred in upholding the first point
in
limine
.
THE
SECOND POINT
IN
LIMINE
:
[22]
Mr Grobler submitted that the Court
a quo
confused the general
discretion conferred upon a civil court to order specific performance
of a contract with the question of whether
or not that court has
jurisdiction to issue such an order. He therefore contended
that the Court
a quo
failed to properly have regard to the
nature of the second point
in limine
and erred in dismissing
the appellant’s claim for specific performance in the exercise
of her discretion.
[23]
Upon a proper reading of the reasons for the order it is evident that
the Court
a
quo
did
in fact not consider the real issue raised by means of the point
in
limine
,
but adjudicated it on the basis of a court’s discretion to
refuse an order for specific performance. See Record, p. 127
–
128.
[24]
In his argument during the hearing of the appeal, Mr Qwelane also
spontaneously conceded that the Court
a quo
misunderstood the
true nature of the second point
in limine
and that she
therefore misdirected herself in that regard. He however
submitted that the outcome of having upheld the second
point
in
limine
, was still correct, although based of the wrong reasons.
[25]
From the formulation of the second point
in
limine
in the answering affidavit, considered in conjunction with the
arguments presented by the two legal representatives in the Court
a
quo
and again during the hearing of the appeal, it is evident that the
Court
a
quo
in fact misdirected herself regarding the true nature of the second
point
in
limine
.
The second point
in
limine
partly overlaps with the first point
in
limine
,
in that, in my understanding, it actually consists of two elements.
The first is whether the Magistrate’s Court has
jurisdiction to
order specific performance where the Court is requested to direct an
employee to return to work, in which regard
Mr Qwelane contended that
this type of specific performance which the appellant claimed in the
Court
a
quo
is
not of the class that falls within the statutory powers contained in
the Magistrates’ Courts Act, 32 of 1944 (hereinafter
referred
to as “the Act”). The second and more prominent
element is that the respondent contends that a claim
for damages in
the alternative to specific performance in any event ought to have
been instituted by means of action proceedings
and not by means of
motion/application proceedings, which, according to his argument, is
confirmed by the appellant`s claim in
prayer 4 of the notice of
motion.
[26]
Considering the Court
a
quo’s
misdirection regarding the real issue raised in the second point
in
limine
,
we are at liberty to decide the said point
in
limine
afresh.
[27]
With regard to the first element of this point, one must firstly
consider section 46(2)(c) of the Act, the relevant part of
which
reads as follows:
“
46
Matters beyond the jurisdiction
(1)
….
(2)
A court shall have no jurisdiction in matters -
(a)
….
(b)
….
(c) in which is sought specific
performance without an alternative of payment of damages except in
…..”
It
is essential to realise that section 46 is prohibitive in nature,
prohibiting Magistrates’ Courts from hearing claims and
granting orders in those matters set out in the said section. See
BADENHORST
v THEOPHANOUS
1988
(1) SA 793
(C) at 796 E. It is not an enabling or empowering section.
[28]
Section 29 of the Act, on the other hand, is in fact the section
bestowing jurisdiction upon Magistrates’ Courts in respect
of
causes of action, subject to monetary limits. It lays down what
matters can be entertained in Magistrates’ Courts. Section
29(1)(g) of the Act reads as follows:
“
29
Jurisdiction in respect of causes of action
(1) Subject to the provisions of this
Act and the National Credit Act, 2005 (Act 34 of 2005), a Court, in
respect of causes of action,
shall have jurisdiction in –
(a)
….
(b)
….
(c)
….
(d)
…..
(e)
….
(f)
…..
(fA)
….
(g) actions other than those already
mentioned in this section where the claim or the value of the money
in dispute does not exceed
the amount determined by the Minister from
time to time by notice in the Gazette.” (Own emphasis)
[29]
Magistrates’ Courts’ entitlement to entertain a claim for
specific performance of a contractual obligation with
an alternative
claim for damages, therefore emanates from section 29 (1)(g) of the
Act and not from section 46 (2)(c).
[30]
That the Magistrate’s Court has the jurisdiction to entertain a
claim for specific performance, albeit with the alternative
for
damages, is evident from the following passage in
JONES
& BUCKLE, THE CIVIL PRACTICE OF THE MAGISTRATES’ COURTS IN
SOUTH AFRICA
,
Van Loggerenberg, 10
th
Edition (loose leaf edition), Vol 1, at Act 306:
“
A
plaintiff has a common-law right to demand specific performance of a
contract, but the court has a discretion to refuse it.
Magistrates’ Courts have the ordinary common-law jurisdiction
to grant orders for specific performance, but this jurisdiction
is
fettered to the extent laid down in the Act, in that in certain cases
the court cannot grant an order without an alternative
order for
damages. In addition, the court may, in a proper case, exercise
its discretion by refusing to grant an order which
the Act allows it
to grant. This discretion is vested in the High Courts and
there is nothing to suggest that it is not also
exercisable by the
Magistrates’ Courts.”
[31]
The mere fact that in the current instance it was the specific
performance of an employment contract which the appellant claimed
(with the alternative of damages), does not detract from the
Magistrate’s Court’s jurisdiction to entertain such an
application and to order specific performance. There is no
restriction in the Act, other than the monetary limit, to the nature
of specific performance orders which the Magistrate’s’
Court may order. To the contrary, it is evident from the
case
law I have already dealt with under the first point
in
limine
that
the Magistrate’s Court in fact has such jurisdiction.
[32]
The only remaining issue is the question whether the appellant was
entitled to have made use of application proceedings as
opposed to
action proceedings.
[33]
Mr Grobler submitted that there is no restriction in the Act or any
other reason why the appellant was compelled to have instituted
action proceedings. He also referred to the operative word “matters”
contained in section 46 and submitted that it
includes both
applications and actions.
[34]
As already indicated, section 46 is not the empowering section.
Although I agree with the interpretation of the word “matters”,
that only means that the
prohibitions
contained in section 46
pertains to both applications and actions. The operative word that
was used by the Legislature in the
empowering
section 29 is
“actions”, which has previously already been construed as
to have the restrictive meaning of action proceedings
as such, not
including application proceedings. In
IN RE
:
PENNINGTON HEALTH COMMITTEE
1980 (4) SA 243
(NPD) at 247 H and
further, the following
dicta
appear:
“
A perusal
of all the sections shows that the Legislature drew a clear
distinction between actions and applications. Procedure
by way
of application is recognised, but the intention appears to have been
to confer jurisdiction generally in actions (in a narrow
sense) while
authorising application proceedings only in specific cases. My
conclusion that the word ‘actions in s
29(1) means proceedings
initiated by summons is supported by the case of
WOLMAN
v BLOCK
(2)
1928 OPD 119.
….It follows that the decision in
WOLMAN
v BLOCK
(
supra
)
is still applicable notwithstanding that it dealt with legislation
which has since been repealed.”
[35]
That the use of application procedure to initiate proceedings in
Magistrates’ Courts finds very limited application and
that it
may not be used if not specifically sanctioned, is very clear from
the following respective extracts
:
“
The
Magistrates’ Courts Act and
Rules provide only for applications
in certain limited circumstances. Other legislation may also
expressly or implicitly empower
applications in the Magistrates’
Courts. ….Although, in the Magistrates’ Courts,
the only applications
that are strictly speaking capable of being
independent proceedings are interdicts and spoliation orders……
If
application proceedings are not sanctioned by the Act or rules or
other legislation it is not competent to launch proceedings
by way of
application. When proceedings are launched by application not
sanctioned in the rules or Act, they are a nullity
in terms of the
Act and Rules
.
(Own emphasis)
See
CIVIL
PROCEDURE IN MAGISTRATES’ COURTS
,
LTC Harms, at B 485 - B 486.
“
Die aansoek
of mosie kan slegs in gevalle waarvoor uitdruklik voorsiening gemaak
is, gebruik word om gedinge in te stel. Word
dit gebruik in
gevalle waarvoor daar nie voorsiening gemaak is nie, kom geen
geding binne die raamwerk van die Wet op Landdroshowe
32 van 1944 tot
stand nie. Dit word aan die hand gedoen dat die enigste gevalle
waar van die aansoek as middel tot die instel
van ‘n
selfstandige geding ingevolge die Wet op Landdroshowe 32 van 1944
gebruik gemaak kan word, is wanneer ‘n finale
interdik en die
mandament van spolie aangevra word.”
See
BURGERLIKE
PROSESREG IN DIE LANDDROSHOWE
,
H M Pretorius,
Vol
2, at p. 687. Also see
WOLMAN
v BLOCK
(2)
1928 OPD 119.
In
BURGERLIKE
PROSESREG IN DIE LANDDROSHOWE
,
(loose leaf) H Daniels, at AFD L-3 tot AFD L-4, the following is
stated:
“
Nie alle
gedinge in die Landdroshof hoef deur middel van’ n dagvaarding
ingestel te word nie; ‘n beperkte aantal kan
deur middel van
die aansoekprosedure aanhangig gemaak word. Die aansoek of
mosie kan slegs in gevalle waarvoor uitdruklik
voorsiening gemaak is,
gebruik word om gedinge in te stel. As dit gebruik word in
gevalle waarvoor nie voorsiening gemaak
is nie, kom geen geding binne
die raamwerk van die Wet tot stand nie. Dit word aan die hand
gedoen dat die enigste gevalle
waar van die aansoek as middel tot die
instel van ‘n selfstandige geding ingevolge die Wet gebruik
gemaak kan word , is wanneer
‘n finale interdik, die mandament
van spolie, arrestasies en sommige beslagleggings, aangevra word.”
In
E.
CASTIGNANI (PTY) LTD v CLAUDE NEON LIGHTS (SA)
LIMITED
1969 (4) SA 462
(O) at 465 A – C it was stated as follows:
“
Die
tipe
bevele
of vonnisse waarvoor aansoek gedoen kan word by wyse van kennisgewing
van mosie word egter bepaal deur die Wet op Landdroshowe
self.
Kyk
WOLMAN
v BLOCK
1928 OPD 119
te 122-3. ‘n Volledige lys van hierdie
vonnisse en bevele word uiteengesit op bladsy 618 en 619 van The
Civil Practice
of the Magistrates’ Courts in South Africa deur
Jones & Buckle. Die tipe bevel wat die Landdros in die
onderhawige
geval gemaak het, is nie een van die bevele wat ‘n
Landdros bevoeg is om by wyse van kennisgewing van mosie te verleen
nie.
Indien die respondent in die onderhawige geval by wyse van
kennisgewing van mosie geprosedeer het, het dit geen siviele geding
of verrigting binne die raamwerk van die Wet op Landdroshowe tot
stand gebring nie.”
See
further
BURGERLIKE
PROSESREG IN DIE LANDDROSHOWE,
H M Pretorius,
supra
Vol 1, at p. 30
[36]
A list of examples of proceedings which may be brought by way of
application in terms of the
Magistrates’ Courts Act and
the
Rules are set out in
CIVIL
PROCEDURE IN MAGISTRATES’ COURTS
,
LTC Harms, at B 487 – 489 and in
BURGERLIKE
PROSESREG IN DIE LANDDROSHOWE
,
(loose leaf) H Daniels, at p. AFD L-5.
[37]
In the premises it is very clear that the appellant was not entitled
to have made use of application proceedings in claiming
its relief in
the Magistrate’s Court. The application therefore has to be
considered to be null and void as if no proceedings
have been
instituted at all. The appellant should have instituted action
proceedings and if that would have meant that
claiming an order
for specific performance would not have been possible, so be it –
then it should have claimed damages.
Alternatively the appellant
should have instituted urgent application proceedings in the High
Court.
[38]
Mr Grobler`s request that we grant an order in terms of prayer 4 of
the notice of motion can also not be successful; firstly,
because the
appellant’s application should is to be considered to be null
and void and secondly, because the appellant at
no stage needed any
permission to institute action proceedings for the recovery of
damages– it was and still is entitled
to do so in terms of the
Act.
[39]
In my view the second point
in limine
was therefore correctly
upheld by the Court
a quo,
although based on the wrong
reasons.
COSTS:
[40]
Although the appellant is successful with some of the issues it took
on appeal, the substantive outcome and result of the appeal
is no
different than what the outcome of the hearing in the Court a
quo
was. Therefore I deem it appropriate that the appellant be
ordered to pay the costs of the appeal.
[41]
The appeal is dismissed with costs.
C.
VAN ZYL, J
I
concur:
S.
EBRAHIM, J
On
behalf of the Appellant: Adv S. Grobler
On
Instructions of:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent: Mr D Qwelane
On
Instructions of:
Qwelane
Theron & Van Niekerk
BLOEMFONTEIN