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[2011] ZAFSHC 185
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Bukula v Clientele Legal (4434/2011) [2011] ZAFSHC 185 (17 November 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 4434/2011
In
the matter between:
SIVUYILE
BUKULA
….....................................
PLAINTIFF/APPLICANT
and
CLIENTELE
LEGAL
…............................
DEFENDANT/RESPONDENT
_____________________________________________________
CORAM:
NAIDOO, AJ
_____________________________________________________
JUDGMENT BY:
NAIDOO, AJ
HEARD ON:
10 NOVEMBER 2011
DELIVERED ON:
17 NOVEMBER 2011
_____________________________________________________
NAIDOO AJ
[1] This is an
application for Summary Judgment. The Plaintiff, who is
unrepresented, issued summons against the defendant for “285
Million” (presumably R285 million), which appears to be a claim
for damages arising out of the defendant’s repudiation
of an
insurance contract that the plaintiff had entered into with the
defendant. In order to place the matter in context, it is
perhaps
useful to set out briefly the facts in this matter before dealing
with the application before court. In terms of the insurance
contract, the defendant was to have provided legal assistance to the
plaintiff, once the relevant conditions were fulfilled, in
this case
being, amongst other conditions, the mandatory “waiting period”
before the insurance cover would take effect.
[2] The plaintiff who was
at the time, employed by the Western Cape Education Department, was
charged with several counts of misconduct
by his employer. A
disciplinary hearing ensued, which the plaintiff refused to attend.
The hearing was held in his absence and
he was dismissed from his
employment. Prior to that, he had requested the defendant for legal
assistance, in terms of the insurance
policy, in relation to a
referral of an unfair labour practise dispute against his employer to
the Labour Court. The defendant
denied any liability under the
insurance contract as the labour dispute pre-existed the insurance
policy. With regard to the disciplinary
hearing, the defendant’s
repudiation was based on the premise that it was not liable to
provide assistance in terms of the
policy, as the plaintiff had not
exhausted all his internal remedies. The Plaintiff initially enrolled
this matter in this Division
for various remedies not allowed in
terms of the Rules of Court. The applications were dismissed with
costs. The plaintiff approached
the Supreme Court of Appeal and the
Constitutional Court for leave to appeal the ruling of this Division
and was unsuccessful on
both occasions.
[3] The Plaintiff
referred the matter to the Ombudsman for Short Term Insurance, which
agreed with the approach adopted by the defendant.
The plaintiff
subsequently instituted action again in this court.
[4] The defendant served
a notice in terms of Section 30(2)(b) of the Uniform Rules of Court
pointing out that the plaintiff’s
Particulars of Claim do not
comply with Rule 18 of the Rules in the respects set out in the
Notice. The defendant was in effect
unable to plead to the summons.
The plaintiff did not respond to the Rule 30 Notice until 9 November
2011(a day before the matter
was set down for hearing). The plaintiff
in any event set the matter down for the hearing of the Summary
Judgment application before
the defendant filed its opposing
affidavit. The latter was filed on 8 November 2011.
[5] When the matter came
before this court on 10 November 2011, the court was at pains to
convince the plaintiff that he should
consider obtaining legal
representation, especially in view of the technical legal points
raised by the defendant, but he was adamant
that he would represent
himself.
The defendant raised four
points
in limine,
in its Opposing Affidavit as follows:
5.1 firstly, the
plaintiff’s claim is not based on a liquid document, is not for
a liquidated amount in money, is not a claim
for the delivery of
specified movable property and is not a claim for ejectment.
5.2 secondly, the
affidavit accompanying the application for Summary Judgment does not
comply with Rule 32(2) of the Uniform rules
of court in that it does
not verify the amount claimed and does not state that in his opinion
the defendant has no bona fide defence
to the action
5.3 thirdly, the
defendant’s Particulars of Claim constitute an irregular step
as pointed out in Defendant’s Notice
in terms of Rule 30(2)(b),
and therefore the plaintiff has not verified a perfected or complete
cause of action, and
5.4 fourthly, this court
does not have jurisdiction to hear this matter, as the defendant’s
place of business is in Johannesburg,
which is outside this court’s
jurisdiction, the contract of insurance was concluded in the Western
Cape, which is outside
this court’s jurisdiction, the alleged
repudiation of the contract took place outside this court’s
jurisdiction and
any damages the plaintiff might have suffered arose
from incidents which occurred in the Western Cape, which is outside
this court’s
jurisdiction.
[6] It is my view that
the fourth point
in limine,
dealing with the jurisdiction of
this court is fundamental to the present application and falls to be
dealt with before any of the
other points
in limine
raised by
the defendant can be considered.
[7] Section 19(1)(a) of
the Supreme Court Act 59 of 1959, as amended provides that “
A
provincial or local division shall have jurisdiction over all persons
residing or being in and in relation to all causes arising
and all
offences triable within its area of jurisdiction and all other
matters of which it may according to law take cognisance…”
In the commentary to
section 19(1)(a), the learned author Erasmus in the work “Superior
Court Practice”, at page A1-23
states what is the practice in
our courts, namely that the
dominis litis
(in this case the
plaintiff) must, in suing a person residing in the Republic, select
the court in whose area such a person resides
or is in (at the time
of issue of summons), or the court where the cause (of action)
arises. In the case where a company or juristic
person is the
defendant, the place where it has its registered office or its
principal place of business will determine which court
has
jurisdiction. It is clear that it is the
defendant’s
,
and not the plaintiff’s, place of residence or the place where
the cause of action arose which will be taken into account
to
determine which court has jurisdiction to hear the matter. This was
confirmed in a number of decided cases over the years and
is well
established in our law. In the case of
John Meinert (Pty) (Ltd) v
Reprich and Another 1981(3) SA 272 (SWA),
the applicant, a
publishing company based in Windhoek, (then)South West Africa,
entered into a restraint of trade agreement with
the first respondent
in Johannesburg, South Africa. The first respondent was resident in
Bryanston, Johannesburg in the Republic
of South Africa and the
second respondent was a company registered in South Africa, with its
address in Bryanston, South Africa.
The applicant alleged that the
first respondent breached the restraint of trade agreement and
brought an application for an interdict
against him in the High Court
in South West Africa. The court held that the applicant had failed to
establish that that court had
jurisdiction. See also
Mdeysha v
Minister of Safety and Security and others
[2008] 2 All SA 450
(SE)
and Roberts Construction Co Ltd v Wilcox Brothers (Pty) (Ltd) 1962(4)
SA 326 (A).
[8] In the present matter
the plaintiff was asked to address the court on whether this court
has jurisdiction and his response was
that prior to issuing summons
he communicated with the defendant and informed them that he intends
suing out of this Division and
asked if it had any objection. He
received no response and proceeded with his action. Clearly this does
not confer jurisdiction
upon this court.
[9] . It is therefore
clear that this court does not have jurisdiction to hear this matter,
which is a claim sounding in money.
In the circumstances, I do not
consider it necessary to deal with the rest of the points in limine
raised by the defendant.
[10] The defendant has
indicated that the plaintiff is indebted to it in the amount of R51
466.73, being its taxed costs under the
first application which was
dismissed by this court. It has further asked that this application
be dismissed with costs on an attorney
and client scale, and that the
plaintiff be barred from proceeding with the main action until such
costs have been paid. The scale
on which a court awards costs is
discretionary and is usually determined by the circumstances of each
case. The grant of costs
on the scale of attorney and client is
usually punitive and designed to indicate the displeasure of the
court. The conduct of the
plaintiff in this matter may well be viewed
as vexatious, but the court is very mindful of the fact that he is
unrepresented and
seems to be pursuing this action in the genuine
belief that he has the right to do so. While it is unfortunate that
he chooses
to ignore the court’s recommendation that he engage
legal representation, I am of the view that it would be unfair to
visit
him with costs on an attorney and client scale. I am equally of
the view, however, that the defendant should not be visited with
the
obvious prejudice that it is suffering as a result of the plaintiff’s
relentless and misguided pursuit of his action,
and that it should at
least enjoy the prospect of being able to recover its costs to date
without having to incur further costs
as a result of the plaintiff’s
pursuit of the defendant.
[11] I, accordingly, make
the following order:
The application for
Summary Judgement is dismissed with costs;
The defendant is given
leave to defend the action;
The plaintiff is barred
from proceeding with the main action until the costs of the
application have been paid.
____________
NAIDOO, AJ
Plaintiff:
In
Person
Counsel for the
Respondent: Adv D. De Kock
Instructed by:
Honey Attorneys
Honey Chambers
Northridge Mall
Eufees Road
Bloemfontein