Gumede v Road Accident Fund (9765/03) [2007] ZAWCHC 19; 2007 (6) SA 304 (C) (8 May 2007)

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[2007] ZAWCHC 19
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Gumede v Road Accident Fund (9765/03) [2007] ZAWCHC 19; 2007 (6) SA 304 (C) (8 May 2007)

IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 9765/03
In
the matter between:
JENNIFER
BUSIE GUMEDE
Applicant
and
THE
ROAD ACCIDENT FUND
R
espondent
JUDGMENT:
8/05/007
VAN
REENEN, J:
1] The
applicant is seeking an order that the action instituted by her
against the respondent in this court under Case NO 9007/2003
be
transferred to the Natal Provincial Division of the High Court of
South Africa, in terms of the provisions of section 3(1)(a)
of the
Interim Rationalisation of Jurisdiction of High Courts Act, 41 of
2001 (the Act) together with ancillary relief. The case
number, as
is conceded in paragraph 19.3 of the respondent’s answering
affidavit is incorrect and should be 9765/03.
2] The
applicant in her personal capacity and in her capacity as the mother
and guardian of her two minor children is suing the respondent
in
terms of Section 17(1)(a) of the Road Accident Funds Act, No 56 of
1996 for damages in an amount of R286 336 as well as interest
and
costs as a result of the death of Gregory Ervin Hastibeer (the
deceased) to whom she had been married in terms of a customary
union
from which the said children have been born.
3] The
deceased was a passenger in motor vehicle NRB 21543 driven by one
Shannon Ekovamana which on 11 December 1998 and on Riverview
road,
Matubatuba collided with motor vehicle NRB 19115 which she alleges
was driven negligently by one Michael Pryor. The deceased
passed
away on 24 December 1998 as a result of the injuries sustained in the
collision. The claim is for loss of support and maintenance
as the
applicant and her two minor children were legally dependent on the
deceased for such support and maintenance and have been
deprived
thereof as a result of his death.
4] The
respondent who is opposing the said action, has delivered and filed a
special plea and a plea. This court’s jurisdiction
to entertain
the action is being challenged in the special plea on two bases. The
first is that the collision did not occur within
its area of
jurisdiction. The second is that the respondent’s principal place
of business is outside its area of jurisdiction
namely, at 36 Ida
Street, Menlo Park, Pretoria, Gauteng.
5] The
filing of the special plea resulted in the present application being
launched. When the application came up for hearing before
Le Grange,
AJ on 22 March 2006, he by agreement between the parties, postponed
it and determined a time-table for the filing of answering-
and
replying affidavits and also directed that heads of argument be filed
in accordance with the provisions of the rules of court.
6] The
applicant delivered and filed a replying affidavit on 31 October 2006
instead of on or before 14 July 2006 as was directed
by the court and
simultaneously therewith delivered and filed an application for the
condonation of the late filing thereof. Although
the respondent’s
counsel Me Williams SC contends that the condonation application is
unconvincing and lacking in merits she did
not actively oppose the
granting thereof but intimated that her client would abide the
decision of this court thereanent.
7] Condonation
of the non-observance of court orders and rules is not a mere
formality. A party seeking condonation must satisfy
the court that
there is sufficient cause for excusing the non-compliance. Whether
condonation should be granted or not is a matter
of discretion that
has to be exercised having regard to all the circumstances of the
particular case (See:
Torwood
Properties (Pty) Ltd v South African Reserve Bank
1996(1) SA 215 (W) at 228 B – F). The following factors
identified by Holmes JA in
United
Plant Hire (Pty) Ltd v Hills
1976(1) SA 717 (A) at 720 E – G) are in the context of an appeal
to be taken into account in the exercise of such a discretion
-
a)
the degree of non-compliance; b) the adequacy of the explanation
for such failure; c) the prospects of success; d) the
importance
of the case e) the respondent’s interest in the finality of the
judgment; f) convenience of the court; and g)
the avoidance of
delays in the administration of justice. The list is not exhaustive.
Those factors are not individually decisive
but are interrelated and
the one is weighted against the other so that the strength of one or
more may compensate for the weakness
of one or more of the others.
The fact that a party chooses not to oppose the granting of
condonation is a relevant but by no means
overriding consideration
(See:
Salojee
and Another NNO v Minister of Community Development
1965(2) SA 135 (A) at 138 E).
8] The
explanation put forward by the applicant for the late filing of the
replying affidavit is relatively detailed and reveals regrettable
disorganisation and slackness on the part of those to whom the
applicant had entrusted the matter. As the applicant resides in
Matubatuba,
KwaZulu, Natal, and her local attorney enlisted the
services of attorneys practising in Randburg and they in turn made
use of attorneys
practising in Cape Town, and there on the papers is
no basis upon which knowledge of and blame for the delays in the
filing of the
replying affidavit (which was deposed to by one of her
attorneys) could be attributed to her, this, in my view, is an
instance where
she should not be prejudiced by any lack of
application displayed by the attorneys representing her and in all
probability, are unknown
to her (Cf:
Ferreira
v Ntshingila
1990(4) SA 271 (A) at 281 C – H). In the circumstances the fate
of the condonation application will be dependent on the applicant’s
chances of success in the main application.
9] Section
3(1) of the Act, which came into operation on 5 December 2001,
provides as follows: -
“
(1) If any civil
proceedings have been instituted in any High Court, and it appears to
the Court concerned that such proceedings –
should have been
instituted in another High Court; or
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.”
10] As
is apparent from the preamble to the Act, its purpose is the interim
rationalisation, as a matter of urgency, of the areas
of jurisdiction
“of certain High Courts” pending the rationalisation process
contemplated in Item 16(6) of Schedule 6 to the
Constitution which,
as specifically stated, will require a considerable period of time to
bring to a conclusion. The mechanism whereby
such rationalisation is
to be achieved is embodied in section 2 of the Act which provides as
follows: -
“
(1) Notwithstanding
the provisions of any other law, the Minister may, after consultation
with the Judicial Service Commission, by
notice in the Gazette –
alter the area of
jurisdiction for which a High Court has been established by
including therein or excising therefrom any district
or part
thereof;
amend or withdraw any
notice issued in terms of this section.”
11] The
steps that have already been taken in terms of Section 2 of the Act
to rationalise the areas of jurisdiction of certain High
Courts have
been fully set out in
Erasmus:
Superior Court Practice,
P.J.
Farlam et al, page A1 – 106, footnote 1, and accordingly are not
repeated herein.
12] The
only commentator who, to the best of my knowledge, has expressed any
view on the rationale for the passing of the Act namely,
Professor
Elison Kahn, says the following at page 872 of the 2001 Annual
Survey: -
“
This is an interim
measure pending the rationalization of the superior courts. The
present territorial jurisdiction of the High Courts
is based on the
old Republican cum TBVC structure, which has resulted in certain
serious inconsistencies.”
As
item 4(a) of the Sixth Schedule to the Constitution of South Africa
1996 provides that
“
A provincial or
local division of the Supreme Court of South Africa or a supreme
court of a homeland or a general division of such
a court, becomes a
High Court under the new Constitution without any alternation in its
area of jurisdiction, subject to any rationalisation
contemplated in
subitem (6).”
and
the legislation in terms of which the supreme courts and general
divisions of the homelands, that is,
“a
part of the Republic which before the previous Constitution took
effect, was dealt with in South African legislation as an independent
or self-governmenting territory” were created
apply to clearly delineated territorial areas (See: The Republic of
Transkei Constitution act 1976; Republic of Bophuthatswana
Constitution Act 1977; Republic of Venda Constitution Act, 1979;
and Republic of Ciskei Constitution Act 1998) the serious
inconsistencies
to which the learned author alludes are not
self-evident.
13] The
word “any”, unless restricted by the subject-matter or the
context, is prima facie a word of wide and unqualified generality
that includes all things to which it relates (See eg:
Arprint
Ltd v Gerber Goldschmidt Group South Africa (Pty) Ltd
1983(1) SA 254 (A) at 261 B – D;
Commissioner
for Inland Revenue v Ocean Manufacturing Ltd
1990(3) SA 89 610 A at 618 H). Accordingly the use thereof in
Section 3(1) of the Act in conjunction with “civil proceedings”
and “High court” clearly signifies an intention on the part of
the legislature that its provisions are to apply to all forms
of
civil proceedings and
all
High Courts without exclusion. Subsection 3(1) of the Act provides
that courts “may” upon application order any civil proceedings
to be removed to another High Court if it appears to it that either
of the following circumstances are present:
a) that
the proceedings before it should have been instituted in another High
Court; or
b) that
such proceedings would be more conveniently or more appropriately
heard or determined by another High Court.
In
the context of that subsection the word “may” does not appear
to have been intended to serve a “purely predictive function”

(per Brand JA in
Minister of Environmental Affairs and Tourism v Pepper Bay Fishing
2004(1) SA 308 (SCA) at 322 B) but used rather in a permissive sense
consistent with an intention to confer High Courts with a discretion

(See:
Dawood,
Shalabi, Thomas and Another v Minister of Home Affairs
2001(1) SA 997 (C) at 1022 J – 1023 A) in the sense of the power
or competence to hear and determine issues between parties (See:
Graaff-Reinet
Municipality v Van Ryneveld’s Pass Irrigation Board
1950(2)
SA 420 (A) at 424), to transfer civil proceedings to other High
Courts if it appears to them that such circumstances are present.
15] It
is clear upon even a cursory reading of subsections 3(1) (a) and (b)
of the Act that the circumstances referred to therein
are disparate.
The reference in subsection 3(1)(a) to another High Court in which
the proceedings should have been instituted, in
my view, is clearly
intended to be a reference to the court which enjoys jurisdiction in
terms of the provisions of Section 19(1)(a)
of the Supreme Court Act,
No 59 of 1959 (the Supreme Court Act) and implies that the High
Court in which proceedings have been instituted
does not have
jurisdiction.
16] Subsection
3(1)(a) of the Act, unlike subsection 3(1)(b) thereof, has no
equivalent in the Supreme Court Act, the similarly worded
Section
9(1) whereof provides as follows: -
“
If any civil cause,
proceeding or matter has been instituted in any provincial or local
division, and it is made to appear to the
court concerned that the
same may be more conveniently or more fitly heard or determined in
another division, that court may, upon
application by any party
thereto and after hearing all other parties thereto, order such
cause, proceeding or matter to be removed
to that other division.”
PJ
Farlam et al (op cit) at A1 – 9 express the view that the reasons
for the overlap between subsections 3(1)(b) and 9(1) is not
clear.
LTC
Harms: Civil Procedure in the Superior Courts
at A – 34, expresses the view that the provisions of Section 9(1)
were “superseded without express repeal” by Section 3(1)(b).

That a court may order the removal of a matter to another court only
if the former court itself has jurisdiction to hear the matter
has
been held in a long line of decided cases (See: eg
Ying
Woon and Another v Secretary for Transport and Others
1964(1) SA 103 (N) at 108 D – E and the cases there cited) and
espoused by text book writers;
PJ
Farlam
et al (op cit) at A – 9;
LTC
Harms
(op cit) paragraph A4 – 26;
Herbstein
& Van Winsen: the Civil Practice of the Supreme Court of South
Africa,
Ed Mervyn Dendy, at 577). It has been held that, unlike the court
which orders the removal, the court to which the matter is removed
does not need to have jurisdiction (See:
Mulder
and Another v Beacon Island Shareblock Ltd
1999(2) SA 274 (C) at 277 A) and that there is a firmly established
practice that jurisdiction can in that manner be conferred
on the
court to which the matter has been removed (See:
Veneta
Mineraria Spa v Carolina Collierees (Pty) Ltd
(in liquidation) 1987(4) SA 883 (A) at 888 A). Although I fail to
see any reason why the requirement that the court transferring
a
matter to another court should itself have jurisdiction should not
find application in the case of subsection 3(1)(b) it is unnecessary
to make any firm findings thereanent because, although the deponent
in the founding affidavit appears to have vacillated between
the two
circumstances mentioned in subsection 3(1) in having contended that
“equity” and “convenience” dictate that the
proceedings be
transferred, it is clear from the manner in which prayer 1 of the
notice of motion has been formulated that the basis
of the
application is restricted to the provisions of Section 3(1)(a) of the
Act.
16] Is
it necessary, as was contended by the respondent’s counsel, that
for a court to transfer civil proceedings to another court
in terms
of Section 3(1)(a) of the Act that such court itself should have
jurisdiction? The line of decided cases commencing with
Johnston
v Byrne and Lamport,
1
Searle, 157
and
Webb v Roux
1903
TS 358
, which appear to have served as the foundation of the finding
in later cases to the effect that the court exercising powers of
removal
in terms of the provisions of Section 9(1) must itself have
jurisdiction, were based on an interpretation of then extant
statutory
provisions which permitted a transfer from one court to
another in not dissimilar terminology. (See:
Van
Dijk v Van Dijk
1911 WLD 203
at 204;
Van
der Sandt v Van der Sandt
1946 TPD 259
at 263;
Ex
Parte Benjamin
1962(4) SA 32 (W) at 33 D – C). Such considerations however, do
not apply in the case of subsection 3(1)(a).
17] A
high court’s jurisdiction under Section 19(1)(a) of the Supreme
Court Act is determined with reference to the common law,
any
relevant statutes and its inherent jurisdiction (See eg:
Bisonboard
Ltd v Braun Woodworking Machinery (Pty) Ltd
1991(1) SA 482 (A) at 486 H – J). It, in my view, is apparent
from the wording of subsection 3(1)(a) of the Act that it envisages
the removal of civil proceedings which have been instituted in a
court other than one in which it should have been instituted (ie.
one
without jurisdiction) to another court where it should have been
instituted (ie. one with jurisdiction). In my view that subsection,
at least by clear implication, empowers a High Court which does not
enjoy jurisdiction to order the removal of any civil proceedings
before it to another court which enjoys jurisdiction and in that
manner brought about a pro tanto statutory amplification of the
jurisdiction of High Courts.
18] I
accordingly incline to the view, contrary to the conclusion arrived
at by me in
Design
Holdings (Pty) Limited t/a Design Products Enterprises v Xantium
Trading 377 (Pty) Limited t/a Design Products Cape and
2 Others
,
Case No 4512/2003, but in conformity with the unreported decision of
Willis J in
Ranpukar
Ishwardutt
Case No 2001/19263 in the Witwatersrand Local Division on 15 August
2006, that this court does have jurisdiction to grant the relief
sought in prayer 1 of the application if satisfied, on all the
relevant facts, that it should exercise its discretion in the
applicant’s
favour.
19] I
am in full agreement with the submissions of Mr Bremridge, who
appeared for the applicant, that the reference to the High Court
in
which the proceedings should have been instituted in Section 3(1)(a)
of the Act is consistent with a recognition by the legislature
of the
generally accepted precepts of jurisdiction rather than a negation
thereof and that any fears that the construction favoured
by this
court may lead to abuse by litigants by knowingly and deliberately
instituting civil proceedings in courts that lack jurisdiction
are
allayed by the fact that any malpractices that might manifest
themselves could be taken into account by courts in exercising
their
discretion whether to transfer or not.
20] The
unconventionality of the amplification of the jurisdiction of High
Courts by means of an act promulgated for a specific and
limited
purpose and intended to operate merely on an interim basis, must be
immediately conceded. However, the language used in
Section 3(1)(a)
of the Act is so unambiguous and unrestricted that it is difficult to
arrive at a conclusion other than that is exactly
what the
legislature intended (See:
Rampukara
Ishwardutt
(supra)
at page 3).
21] Should
this court exercise its discretion in favour of the applicant? The
collision from which the applicant’s cause of action
arises took
place on 11 December 1998 ie. approximately 8½ years ago. If
proceedings were to be instituted anew in the Natal Provincial
Division, costs additional to those that have already been incurred
in these proceedings will have to be incurred. It will furthermore
not only result in further delays in the finalization of the matter
but, as has already been foreshadowed by the respondent, it intends
availing itself of the opportunity of assailing the applicant’s
claim in respect of the damages suffered by her personally on the
basis that it has become prescribed. The applicant’s claim was duly
lodged with the respondent on 13 August 2001. All that is
in dispute
is whether it was lodged with the respondent’s Randburg or Cape
Town office, and if the former, whether or not the claim
had been
administered by the last-mentioned office. Be that as it may, the
respondent is unable to join issue with the averment
of the
applicant’s Cape Town attorney that the action was instituted in
this court on the strength of the notice published in the
June 1997
addition of “De Rebus” to the effect that legal proceedings
could be instituted in the High Court within whose area
of
jurisdiction the office of the respondent which administers a claim
is situated. That notice purports to be issued by one Herman
Karberg, Manager, Legal Advice, Road Accident Fund, Pretoria. The
publication and contents of that notice as well as the authority
of
the person under whose name it was published have not been placed in
issue by the respondent. The respondent’s attitude is
that such
notice could not endow this court with jurisdiction and that the
applicant, in any event, failed to comply with its contents.
That
stance is of little assistance as the issue is whether that notice
served as the catalyst for the action having been instituted
in this
court and not whether it endowed it with jurisdiction. Having regard
to the absence of any blame on the part of the applicant
personally
as regards the court in which the proceedings were instituted; that
the respondent has had adequate notification of the
claim; that it
is not improbable that the applicant’s attorneys had been misled by
the said notice; the substantial prejudice
the applicant will suffer
if her claim for personal damages is disallowed on the basis of
prescription; the further delays that
will result and the costs that
would have been incurred abortively and the further costs that would
result if this application were
to be refused; and the absence of
any material prejudice to the respondent should it be granted, I am
inclined to exercise my discretion
in the applicant’s favour and
grant the order sought.
22] Accordingly
the application for condonation is granted and an order is made in
terms of prayers 1 (save that the case number
should be 9765/03), 2
and 3 of the notice of motion.
_____________
D.
VAN REENEN