About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2013
>>
[2013] ZAECMHC 33
|
|
Matsapa Trading 562 CC v Constance and Others (2795/11) [2013] ZAECMHC 33 (26 September 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION : MTHATHA
REPORTABLE
CASE NO. 2795/11
In the matter between:
MATSAPA TRADING 562 CC
........................................................
Applicant
and
GEBUZA BAITSHEOHI CONSTANCE
................................
1
st
Respondent
GEBUZA BAITSHEOHI CONSTANCE N.O.
.....................
2
nd
Respondent
MATELA SIBANYONI & ASSOCIATES
............................
3
rd
Respondent
JOLWANA MGIDLANA INC.
...............................................
4
th
Respondent
JUDGMENT
GRIFFITHS, J.:
[1] On 29 November 2012, Cossie AJ delivered a judgment
in motion proceedings in favour of the first respondent who was the
applicant
in those proceedings. I shall refer to those proceedings as
"the main application". Paragraph 4 of the order which she
made consequent upon her judgment, being the ultimate paragraph
thereof, reads as follows:
“
4. If the applicant (the present first
respondent) does not institute action in respect of the dispute
regarding the ownership of
the property in question within 30 days of
this judgment. (sic) The orders under paragraphs 1 and 2 above will
fall away, and the
applicant will pay costs of this application.”
[2] The orders under paragraphs 1 and 2 which were
referred to in paragraph 4 of her judgment in turn read as follows:
“
1. The application to strike out is
dismissed with costs.
2. An order is granted restraining the first (the present applicant),
second, third and fourth respondents pending an action to
be
instituted by the applicant from:
2.1. dealing, transferring, and/or encumbering the property in any
way or form excluding payment of municipal services and taxes;
2.2. further destroying and demolishing the remaining building
situated within the property;
2.3. ejecting, evicting and expelling from the property any of the
tenants who were in occupation prior to the alleged transfer
of the
property to the first respondent;
2.4. collecting or accepting monthly rental payments from tenants,
should first and fourth respondents receive rental payments
from
tenants or any other party, such rentals and any other rental not
paid to the first and fourth respondents, including rental
paid to
the applicant must be paid into the trust account of Messrs Jolwana
Mgidlana Incorporated Attorneys, details of which must
be made
available to all parties within 5 days of the issue of this order,
pending finalisation of the action to be instituted
by the
applicant.”
[3] In passing, it appears that whilst she referred in
paragraph 4 to paragraphs 1 and 2 of the order, she clearly intended
to refer
to paragraphs 2 and 3 as paragraph 1 of the order referred
to the dismissal of an interlocutory application to strike out.
Paragraph
3, in turn, reads as follows;
“
3. The costs of this application are
ordered to be costs in the action to be instituted by the applicant,
subject to 4 below.”
[4] It is common cause that in attempted compliance with
paragraph 4 of the order, the first and second respondents issued
summons
out of this court on 11 January 2013 within the time period
stipulated, the date by which they had to institute action being 16
January 2013. However, service of the summons was not effected on the
defendants until 18 January 2013, that is, some two days
after the
expiry of the 30 day period stipulated in paragraph 4 of the order.
[5] Because of this, the applicant in this matter (who
was the first respondent in the main application) launched this
application
under the same case number in terms of which it seeks a
declarator as follows
“
1. An order declaring that the First and/or
Second Respondent have failed to institute action in respect of the
dispute regarding
the ownership of the property known as and
described as Erf 86, Main Street, Herschel situated in the Senqu
Municipality within
30 days of the judgment granted and handed down
under case number 2795/11 in this Honourable Court on or about the
29
th
of November 2012.”
[6] The effect of this order, if granted, would be to
completely negate the orders granted by Cossie AJ and result,
inter
alia
, in the applicant becoming entitled to payment of all monies
collected as rental, which the applicant seeks as ancillary relief
consequent upon the declarator mentioned earlier.
[7] The first respondent in her personal capacity and
the second respondent, being the first respondent in her capacity as
executor
in her husband's deceased estate, have opposed the
application and have contented themselves with the filing of a notice
pursuant
to the provisions of Rule 6(5)(d)(i) and (iii). In that
notice they indicated that a legal point would be argued to the
effect
that the first and second respondents did indeed comply with
the above-mentioned order by instituting the relevant action
timeously
and that, accordingly, the applicant has not disclosed a
cause of action.
[8] It is accordingly common cause between the parties
that the only issue in this matter is whether or not the action was
indeed
instituted timeously. Narrowed further, the issue between the
parties is as to whether or not the injunction to "institute
action" in paragraph 4 of the order was complied with once the
respondents had issued the summons out of the registrar's office
or
whether, in addition, service had to be effected on the defendants.
[9] The answer to this question lies, in my view, in the
correct interpretation of the orders given by Cossie AJ. In this
regard:
"The court's intention has to be ascertained primarily from the
language of the judgment or order as construed according to
the usual
well known rules.… The judgment or order and the court’s
reasons for giving it must be read as a whole in
order to ascertain
its intention. If on such a reading the meaning of the judgment or
order is clear and unambiguous, no extrinsic
fact or evidence is
admissible to contradict, vary, qualify or supplement it. But if any
uncertainty in meaning emerges, the extrinsic
circumstances
surrounding or leading up to the court's grant of the judgment or
order may be investigated and taken into account
in order to clarify
it."
1
[10] In this regard, Mr. Snyman, who has appeared for
the applicant in this regard, has placed much reliance on the case of
Himmelsein v Super Rich CC and Another
2
.
He has submitted that in that case it was found, and I
quote from his heads of argument:
"… That for an action to be instituted against parties,
the summons commencing such action should at least be served
in terms
of the Rules of the honourable Court, upon such parties."
[11] Having read the judgment of Cameron J (as he then
was) I am of the view that this submission made by Mr. Snyman is not
entirely
accurate. In my view, this statement was, at best for the
applicant,
obiter dictum
. The learned judge in dealing with a
similar argument to that punted by the applicant in the present
matter stated as follows:
"I shall assume that Himmelsein’s contention that the
order automatically lapsed on 20 January in the absence of service
is
correct; and that the respondents' contention that "institute"
the action should be amended to read "commence
by issue of
summons" is wrong."
[12] The learned judge thereafter proceeded to find in
favour of the respondents on the basis that the court had the power
to, on
good cause shown, extend the relevant time period which it
proceeded to do. It was thus unnecessary for the court to make any
finding
with regard to the same matter in issue in this case as, even
if the court had found in favour of the applicant in that matter on
this issue, it was prepared to grant an extension of the relevant
time period. For some unknown reason, the first and second
respondents
in this matter have seen fit not to follow the same route
by applying for an extension of time in the event that I might find
against
them on the question in issue. However, be that as it may, it
is my view that Himmelsein's case provides no support for the
contention
of the applicant that the words "institute action"
as expressed in Cossie AJ’s judgment require that the first and
second respondents both issue and serve the summons on the
defendants.
[13] On the contrary, there is substantial support for
the contention that these words require no more than that the summons
should
be issued out of the office of the registrar within the time
period stipulated. In this regard Mr. Bodlani, who has appeared on
behalf of the respondents, has referred me to a number of relevant
cases such as
Labuschagne v Minister Van
Justisie
3
which dealt with the now notorious section 32 of the
Police Act
4
,
a section which limited actions against the police in that it
required that any civil action against the State pursuant to the
Act
was to be commenced within six months after the cause of action had
arisen. It furthermore required that at least one month’s
written notice of the action be given before the action was
commenced. The Appellate Division (as it then was) found that on a
correct interpretation of the section the action was commenced by the
issue of summons, and not by service thereon on the defendant.
[14] Mr. Snyman has argued that these decisions are of
little use in determining the intention Cossie AJ in framing the
order as
she did for the reason that those judgments dealt with
legislative intent in framing a legislative measure for the
protection of
the State by drastically limiting the prescriptive, or
expiry, period for actions against it and in other regards. There is
some
force in this argument in that Cossie AJ's purpose in granting
the order was very different. This is a matter to which I shall
return later but these cases do provide some guidance as to how the
courts have dealt with the words "shall be commenced".
[15] Mr. Snyman has sought to distinguish between the
words "commencement of the action" and the words "institute
action". In my view there is no difference in this regard in
interpreting the words "institute action" as they appear
in
the judgment. Much the same argument was advanced in the case of
Mati
v Minister of Justice, Police and Prisons, Ciskei
5
in dealing with a similar provision to section 32
mentioned earlier which appeared in the Police Act No. 32 of 1980
(CK). This section
provided that no civil proceedings could be
"brought" against the Minister if a period of six calendar
months had elapsed
from the date on which the cause of action arose.
The argument was advanced on behalf of the defendant in that matter
that the
word "brought" was only satisfied when the summons
had been issued and served on the defendant. In other words, the mere
issue of the summons would not suffice to satisfy the section.
Classen J dismissed this argument after a thorough examination of
the
wording of the section and a number of relevant cases. He then
concluded at page 754B – E:
"The Shorter Oxford English Dictionary gives as a meaning of the
verb 'bring' 'to set on foot (an action at law)'. The same
dictionary
states 'to set on foot' to mean 'to originate or start, to set
going'. One of the meanings of the verb 'institute' is
given as 'to
set on foot, initiate, start'. The verb 'commence' has the same
meaning. In the literary sense then use of any one
of these words can
convey the identical meaning. In the context of s 48, and in the
legal sense, I can see no reason to differentiate
between the meaning
of the words 'commence', 'institute' or 'bring'. If the commencement
or institution of an action is the issue
of summons, so must the
bringing of an action be the issue of summons. The section provides
that civil proceedings shall be brought
against the State or against
a member of the Force within a stated period. On an ordinary
understanding of the words used they
mean nothing more than that the
first procedural step to redress, by way of civil proceedings, a
wrong as envisaged in the section,
must be taken within the stated
period and the first procedural step is undoubtedly the issue of
summons. It cannot, in my view,
be read from or into the section that
proceedings already commenced or instituted must be brought to the
attention of a cited defendant
(that is by way of service of the
summons upon him) in the stated period."
[16] Whilst Mati’s case dealt with the
Legislature’s intent in creating a prohibition of actions after
a limited period,
which, as I have indicated, is different to the
present matter, it does in my view provide fairly persuasive guidance
as to how
the relevant words are to be construed in their ordinary
sense.
[17] Mr. Snyman has referred me to the case of
Msomi
V Eagle Insurance Co. Ltd.
6
which involved interpretation of the words "if the
claim in question has not been instituted by the claimant" as
contained
in section 23(d) of the Compulsory Motor Vehicle Insurance
Act
7
.
The issue involved was whether or not the plaintiff had indeed
instituted a claim in accordance with the relevant subsection in
that
an agent, and not the plaintiff personally, had prepared the
necessary claim form and delivered it to the defendant. In dealing
with the question of what was meant by this section Leon J stated the
following:
"The phrase "institute a claim" is not a happy one: it
would be more correct to say that one makes a claim or institutes
an
action. In this context the reference to "claim" must refer
to the liability of the authorized insurer under section
21 to
compensate the person referred to in the section. And a "claim"
is a "claim for compensation"…"
[18] Read in this context, it apparently became common
cause between counsel in that matter that the claim could not be
instituted
unless the relevant claim form was in fact lodged with the
insurance company. Mr. Snyman has pointed to this as support for his
submission that service of the summons is required. In my view, this
does not assist in the present matter. Leon J referred to
a
distinction between "making a claim" and "instituting
an action" and concluded that the making of a claim
must, of
necessity, require that the claim form come to the attention of the
entity from whom the claim is made (in that instance
the insurance
company) as, as stated by Leon J:
"
In general the "claim" is the
assertion of the right to something. One cannot assert a right to
claim something in the
air."
[19] Mati’s case is strong authority for the
conclusion that the words "institute action", in their
ordinary sense,
mean that the first and second respondents were to
issue summons in the contemplated action within the 30 day period. It
is necessary
however to measure this as against the reasoning of
Cossie AJ in her judgment to determine whether or not she might have
intended
otherwise.
[20] Mr. Snyman has urged me to find that, on a reading
of her judgment, Cossie AJ did indeed intend by these words that
service
on the defendant, or defendants, was required. In support of
this submission he has argued that if service were not a requirement,
this could have had the result that the plaintiff might merely have
issued summons out of the registrar’s office, placed
it in a
drawer and forgotten about the matter in order to keep the interdict
alive in perpetuity. This, so he has contended, could
never have been
the intention of the learned acting judge.
[21] Mr. Bodlani has countered this submission by
arguing that the fact that the summons was served two days after the
expiry of
the 30 day period is a clear indication that the first and
second respondents did not intend to issue summons with the sole
purpose
of perpetuating the interdict. However, as I pointed out to
Mr. Bodlani, the judgment must be interpreted as it stands and I am
not entitled to take into account
ex post facto
events such as
this.
[22] There are, however, a number of factors which
militate against this argument of Mr. Snyman. Firstly, if Cossie AJ
indeed intended
service to be an element of the act of instituting
the action, one would have expected her to have expressed this in her
order.
Secondly, if this had been her intention, a similar argument
could be used against the applicant in that the applicant, as a
defendant
in the action, might well have evaded service until such
time as the 30 day period had expired, thereby causing the interdict
to
lapse which is clearly favourable to the applicant. Thirdly,
Cossie AJ did not deal with this particular question in her judgment
and there is nothing therein to indicate that she intended service on
the defendant to be a component of the words "institute
action".
Finally, the main dispute involves the alleged unlawful transfer of
certain fixed property out of the first respondent's
deceased
husband’s estate which she seeks to have returned to the
estate. Despite the arguments to the contrary by Mr. Snyman,
I am of
the view that her clear intent throughout was to ensure that this
property reverts to the estate. This she seeks to do
by way of the
action. There is, accordingly, no reason whatsoever as to why she
would wish to delay service of the summons and
thereby delay action
for such relief.
[23] I am accordingly of the view that not only is the
ordinary meaning of the words in question to the effect that issue of
summons
out of the registrar's office without service is sufficient,
but that that there is nothing in the judgment of Cossie AJ which
might militate against this. Indeed, in my view, her judgment is
supportive of this conclusion in that her obvious intent was that
the
interdict was not to remain extant in perpetuity but that it should
only remain extant until such time as the first and second
respondents had exhausted their avenues of relief by way of action.
She thus required some act of faith on the part of these respondents
which she determined to be the institution of an action by way of
issue of summons.
[24] In the circumstances, I find that the intention of
Cossie AJ's order was that the respondents were to institute action
by way
of the issue of summons within 30 days of her judgment and
that, as it is common cause that this was done, the applicant is not
entitled to the declarator it seeks.
Accordingly, the application is dismissed with costs.
JUDGE OF THE HIGH COURT
HEARD ON : 30 AUGUST 2013
DELIVERED ON : 26 SEPTEMBER 2013
COUNSEL FOR APPLICANT : Mr Snyman
: Malherbe Saayman &
: Smith Attorneys
: c/o V. V. Msindo AttorneyS
COUNSEL FOR RESPONDENTS : Mr Bodlani
INSTRUCTED BY : Matela Sibanyoni & Associates
: c/o Jolwana Mgidlana Inc
1
Herbstein
& van Winsen (fifth edition) at page 936
2
1998
(1) SA 929
(W)
3
1967
(2) SA 575
(A). The Appellate Division in this matter approved the
earlier decision of Nxumalo v Minister of Justice and Others
1961
(3) SA 663
(WLD) which also dealt with the provisions of section 32
of the Police Act, 7 of 1958.
4
No.
7 of 1958
5
1988
(3) SA 750
(CkGD)
6
1983
(4) 592 (D&CLD)
7
No.
56 of 972