Premier: Northern Cape v Gaseemelwe and Others (1043/2007) [2007] ZANCHC 8 (14 December 2007)

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[2007] ZANCHC 8
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Premier: Northern Cape v Gaseemelwe and Others (1043/2007) [2007] ZANCHC 8 (14 December 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
no: 1043/2007
Date
heard: 2007-12-07
Date
delivered: 2007-12-14
In
the matter of
:
THE
PREMIER: NORTHERN CAPE FIRST APPLICANT
KGOSI KS
MOTSHWARAKGOLE SECOND APPLICANT
versus
LA GASEEMELWE FIRST
RESPONDENT
MM
GASEEMELWE SECOND RESPONDENT
SH
GABOREWE THIRD RESPONDENT
G
GABOREWE FOURTH RESPONDENT
R
GAOGATWE FIFTH RESPONDENT
P
GOREWANG SIXTH RESPONDENT
S
THIBOGANG SEVENTH RESPONDENT
MS
MOSALA EIGHTH RESPONDENT
L
BOIHANG NINTH RESPONDENT
DG
NTLHAILE TENTH RESPONDENT
Coram:
MAJIEDT
J
JUDGEMENT
MAJIEDT J:
This
is the return day of a
rule
nisi
which
was granted in this Court on 24 August 2007. The applicants ask for
confirmation of the interim interdict and the respondents
are
opposing the application for a final order. At issue is the
disputed chieftainship of the Batlhaping Ba Ga Phuduhudu.
Prior
to the commencement of the hearing, I had addressed a memorandum to
the legal representatives of the parties requesting them
to furnish
supplementary heads of argument regarding the question whether this
Court has the necessary jurisdiction to hear the
matter. At the
hearing, Counsel for the applicants, Mr Motloung (albeit initially
with great reluctance) and Mr Van Niekerk SC,
Counsel for the
respondents, conceded that this Court does not have jurisdiction to
hear the matter. This is so because of the
anomalous position that,
administratively and politically the areas where the second
applicant and the respondents are resident
and where the dispute had
arisen, fall within the Northern Cape Province, but judicially these
areas still fall in the North West
Province under the jurisdiction
of the Bophuthatswana General Division.
Mr
Motloung initially contended that the respondents have consented to
jurisdiction and that therefore this Court is clothed with
the
necessary jurisdiction. When pressed on this aspect, he conceded
that the submission is bad in law. It has been decided in
a long
line of cases that, even where parties consent to the jurisdiction
of a Court, in the absence of any other ground of jurisdiction,
it
is not sufficient cause to clothe a Court with the necessary
jurisdiction. See
inter
alia:
Ex
Parte Kajee 2004(2) SA 534 (C)
at
542 B-C.;
Daljosaphat
Restorations Pty (Ltd) v Kasteelhof CC 2006(6) SA 91 (C)
at
99 C-E (par 35).
It
is settled law further that a Court which has doubts as to its
jurisdiction may
mero
motu
raise the point, even where the respondents had not objected to
jurisdiction in their papers. See in this regard:
Runeli
v Minister of Home Affairs and Others 2000(2) SA 314 (TKHC)
at 317 B-C
Following
on his concession with regard to the lack of jurisdiction of this
Court, Mr Motloung then applied for the matter to be
transferred to
the Bophuthatswana General Division in terms of the provisions
contained in s3 of the Interim Rationalization of
Jurisdiction of
High Courts Act, 41 of 2001 (“
the
Act”
).
Mr Van Niekerk in response, has submitted that there has to be a
substantive application on Notice of Motion with supporting
affidavits before the Court in order to consider whether the matter
should be transferred.
Section 3 of the Act
reads as follows:
“
(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.”
The
only reported decision which I could find in which the
aforementioned s3 had been considered is
Nongovu
NO v Road Accident Fund 2007(1) SA 59 (T)
.
In that matter Patel J observed with regard to this particular
section:
“
It is probable that this section
has superseded, without expressly repealing, s 9 of the Supreme Court
Act.
”
at par 10 (64 B)
In the judgment Patel J
also held as follows at par13 (64 H):
“
A Court, in the
instant matter the TPD, must itself have jurisdiction before it can
transfer proceedings to another Court.”
If the
learned judge meant that this was the position under s9 of the
Supreme Court Act, 59 of 1959, that statement is correct. Section 3
of the Act, however, introduces a new ground for transfer namely, if
it appears to a High Court that the proceedings should have
been
instituted in another High Court. It is quite obvious that a court
which does not have jurisdiction may effect such transfer
in terms of
the aforementioned s3(1)(a). The purpose of this legislation, as the
name suggests, is to rationalise in the interim
the areas of
jurisdiction of the High Courts. It was quite clearly intended to
deal with matters such as the present, where parties
approach the
wrong forum in the mistaken belief that, because the political and
administrative boundaries had been redemarcated in
terms of other
legislation, the areas of jurisdiction of the High Court had been
redemarcated accordingly. Authorities such as the
one referred to by
Patel J in the aforementioned
Nongovu
case, which hold that a case can be transferred to another Court only
if the transferring Court itself has jurisdiction to hear the
case in
the first place, must therefore be read in the context that such
transfer occurs under the provisions of s9 of the Supreme
Court Act
and on the grounds of convenience. See in this regard:
Welgemoed
and Another NNO v The Master and Another 1976(1) SA 513 (T)
at
523 C-D;
Ex parte Benjamin
1962(4) SA 32 (W);
Van der Sandt v Van
der Sandt 1947(1) SA 259 (T).
Section
3 of the Act, quoted above, envisages that the Court may order
transfer on application by a party. There is no authority,
nor has
any been relied upon, for the proposition advanced by Mr Van Niekerk
on behalf of the Respondents, that a substantive application
is
required in the circumstances. I do not, in any event, see the need
for such an application in these circumstances. It is
clear to all
concerned that this Court does not have the necessary jurisdiction
and that the matter should be transferred to the
Bophuthatswana
General Division. A substantive application will not elucidate
matters any further; on the contrary, such a course
of action would
merely delay the matter unnecessarily. In the circumstances I am
satisfied that the oral application brought by
Mr Motloung is
sufficient. In addition thereto, I have given Mr Van Niekerk
adequate opportunity to address the matter of transfer
to another
High Court in his oral argument. I am accordingly satisfied that I
can order transfer of the matter in terms of s3
of the Act to the
Bophuthatswana General Division.
The
next question that arises is the effect of the lack of jurisdiction
and the consequent transfer of the matter on the
rule
nisi
which
had been issued and also the matter of costs. With regard to the
rule
nisi,
this
Court’s lack of jurisdiction obviously also prevailed at the time
that the
rule
nisi
had
been issued. It is clear that this aspect was never considered by
the parties or by my colleague who had issued the interim
order. In
the premises, therefore, the
rule
nisi
should
be discharged, in my view. With regard to costs, the applicants who
are
dominii
litis
clearly
erred in approaching the wrong forum. Mr Motloung argued that this
was a
bona
fide
mistake,
given the anomaly that exists and which I had alluded to earlier.
While this is so, a litigant must choose his/her/its
forum and must
do so diligently and conscientiously. It surprises me that the
State Attorney, who is the instructing attorney
for the applicant in
this matter, was not aware of this position regarding jurisdiction.
In any event, I believe that in the exercise
of my discretion with
regard to costs it would not be equitable and fair towards the
respondents if a costs order is not made in
their favour. On the
other hand, however, the respondents also failed to appreciate this
fact, admitted the averments regarding
to this Court’s
jurisdiction and opposed the matter fully, including the issuing of
instructions to Counsel. My
prima
facie
view
was that costs should be ordered on an unopposed basis, given the
fact that the respondents also failed to raise this point.
I agree,
however, with Mr Van Niekerk, that the applicants are supported
by State machinery, whereas the respondents are
ordinary citizens
and that it would be inequitable to mulct them in costs.
Consequently I am of the view that the applicants should
be ordered
to pay the costs on an opposed basis.
Disputes
relating to chieftainships are, at best of times, highly emotive
affairs. The present matter is no exception. I would
urge the
parties, more particularly the second applicant and the respondents,
to exercise restraint in the interim while the matter
awaits a
hearing date in the Mafikeng High Court.
The following order is
issued:
The
rule
nisi
issued
on 24 August 2007 is discharged.
In terms of the
provisions contained in Section 3 of the Interim
Rationalisation of Jurisdiction of High Courts Act, 41 of
2001,
this matter is transferred to the Bophuthatswana General Division
of the High Court.
The applicants are
ordered, jointly and severally, the one paying the other to be
absolved, to pay the costs incurred by the respondents
with regard
to the proceedings in this Court up to and including the costs of
the hearing on an opposed basis.
A copy of this order
must be transmitted by the Registrar of this Court to the Registrar
of the High Court, Bophuthatswana General
Division.
_____________
SA MAJIEDT
JUDGE
ADVOCATE
FOR THE PLAINTIFF : ADV MOTLOUNG
ADVOCATE
FOR THE DEFENDANT : ADV J VAN NIEKERK SC
ATTORNEY
FOR THE PLAINTIFF : STATE ATTORNEY
ATTORNEY
FOR THE DEFENDANT : HAARHOFFS
DATE
OF HEARING : 7 DECEMBER 2007
DATE
OF JUDGEMENT :
14
DECEMBER 2007