SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 16025 /2021
In the matter between:
ABSA BANK LIMITED Plaintiff/ Applicant
and
LINDA BOLTMAN First Defendant/Resp ondent
FREDERIK HENDRICUS BOLTMAN Second Defendant /Respondent
Coram: Justice J Cloete
Heard: 29 November 2024
Delivered electronically: 13 February 2025
JUDGMENT
CLOETE J :
[1] This is an opposed application in terms of s 27(1)(b) of the Superior Courts
Act1 in which the applicant (plaintiff) seeks the removal (transfer) of the main
action pending in this Division under the above case number to the North
Gauteng High Court, Pretoria. For convenience I will refer to the parties as
they are in the main action.
[2] On 17 September 2021 the plaintiff issued summons against the defendants,
jointly and severally, for payment of R3 706 192.44 plus interest and co sts on
the attorney and client scale, as well as for an order declaring a certain
immovable property, which is registered in the name of the first defendant and
situated at 2 […] M[…] Avenue, Farm T […] (the “Pretoria address”) specially
executable. The plaintiff’s claim arises out of the alleged breach by the first
defendant of a written overdraft facility agreement and whose indebtedness
thereunder was secured by three mortgage bonds registered in favour of the
plaintiff over the Pretoria address, as well a s a written deed of suretyship in
which the second defendant bound himself as surety and co -principal debtor
for all amounts owed by the first defendant to the plaintiff.
[3] Prior to the institution of action the plaintiff obtained a tracer report whic h
reflected that the defendants’ ‘home address’ was The Farm L […] (Portion 26
of the Farm Doornrivier 98), Herold, George (the “George address”). In
paragraph 2 of the plaintiff’s particulars of claim it was alleged that both
defendants were residing at the George address. The summons was served
on the defendants by the Sheriff at the George address on 23 September
2021 (personally on the second defendant, and on the second defendant on
behalf of the first defendant ). On 6 October 2021, they entered an appearance
to defend in which their attorney (b ased in Limpopo ) notified the plaintiff that
their ‘full residential address' is the Pretoria address.
[4] A mediation process followed, which was unsuccessful. On 17 January 2023
the defendants delivered their plea. In regard to paragraph 2 of the plaintiff’s
1 No 10 of 2013.
particulars of claim they made identical allegations, and I thus quote only
those made by the first defendant:
‘Save to admit the name and identity number of the first defendant, the
remainder of the contents of this paragraph, relating to the first
defendant’s place of residence are denied. It is pleaded that the first
defendant alternates her residency between her primary residence
situated at [the Pretoria address] and [the George address] which she
looks after on behalf of the owner.’
[5] On 3 March 2023 the plaintiff served a notice of intention to amend its
particulars of claim but in respect of allegations other than those pertaining to
paragraph 2 thereof. The defendants did not object to that notice, and on
15 March 2023 the plaintiff delivered the am ended pages of its particulars of
claim. On 4 April 2023 the defendants appointed new attorneys based in
Pretoria, and on 24 April 2023 they delivered their consequentially amended
plea. In regard to paragraph 2 of the plaintiff's particulars of claim, eac h
alleged in identical terms (and again I thus quote only that portion pertaining
to the first defendant) that:
‘2.1 Save to admit the name and identity number of the first
defendant, the remainder of the content of this paragraph,
relating to the first defendant’s place of residence are denied.
2.2 The first defendant specifically pleads that her primary residence
is situated at [the Pretoria address] and that merely for
employment purposes she acts as a caretaker of an immovable
property in George [the George address]. Due to the aforesaid
the first defendant is duty bound to occupy the immovable
property in George for a period of time.
2.3 The first defendant however further specifically pleads that this
does not detract from the fact that the property situated at [the
Pretoria address] remains her primary residence.’
[6] On 16 May 2023 the plaintiff delivered application s for summary judgment and
for a special execution order in terms of rule 46 and 46A (the capital sum
claimed in the summary judgment application was reduced to R2 682 427.52).
In the affidavit filed in support of the application for summary judgment, the
deponent alleged that:
‘ 4.
From the Respondents’ plea it is evident that the following are common
cause between the parties alternatively not seriously disputed : …
4.3
The identity of the Respondents, (note paragraphs 2 and 3 of the plea
read with paragraph 2 of the part iculars of claim). Save that the
Respondents deny that the George address cited is their permanent
residential address. Pleading that the said address is only resided in on
a temporary basis, whilst the encumbered property is their permanent
residence…’
[7] After delivering notices of opposition to both applications, the defendants
served a notice of intention to amend their plea to introduce a special plea of
lack of jurisdiction. After pleading that the facility agreement was concluded at
or near Pretoria; t he Pretoria address is situated within Pretoria; the mortgage
bonds pertaining thereto are registered in the Pretoria Deeds Office; and that
both defendants chose the Pretoria address as their domicilium in terms of the
agreement s with the plaintiff, they alleged that:
‘A.7 The Defendants specifically plead that in terms of Section 21 of
the Superior Court’s Act 10 of 2013 jurisdiction of this Court to
adjudicate the matter in casu will be established by either the
cause of action relied upon by the Plaintiff having arisen within
this Honourable Court’s area of jurisdiction (or a portion thereof )
or the Defendants to be regarded as a person over whom the
Court has jurisdiction and as such being persons residing within
the Court’s area of jurisdiction .
A.8 It is patently clear that the cause of action or simply a portion
thereof has not arisen within this Honourable Court’s area of
jurisdiction.
A.9 The Defendants specifically plead that they are not resident
within the Honourable Court’s area of jurisdic tion and that they
are resident in the Gauteng Province with their specific address
being that of the mortgaged property. The Defendants further
plead that they have always regarded the mortgaged property as
their primary residence. The address utilised by the Plaintiff in
order to attempt to establish jurisdiction in this Honourable Court
is not a residential address of the Defendants and has at no
stage whatsoever been regarded by the Defendants as their
residential address or address of perman ent residence .
A.10 In extrapolation of the aforesaid the Defendants specifically
plead that the address utilised by the Plaintiff is simply an
address of a property at which the Defendants, from time to time
and on an ad hoc basis attend to as caregivers. The Defendants
specifically plead that the fact that they attend to the aforesaid
property on an ad hoc basis from time to time to effect and
oversee maintenance and that same is indeed maintained in no
way constitute residence for the purpose of establis hing
jurisdiction in the abovementioned Honourable court.
WHEREFORE the First and Second Defendants pray that the Plaintiff’s
action be dismissed with costs , alternatively that the action be
transferred to the North Gauteng High Court .’
(emphasis supplied)
[8] The defendants annexed their notice of intention to amend to the affidavit filed
in opposition to the summary judgment application. However no mention was
made in the affidavit itself of the alternative prayer that the action be
transferred to t he North Gauteng High Court. Instead the defendants adopted
the stance that the issue of lack of jurisdiction of this court was one that
entitled them to leave to defend ‘in order to ventilate’ it at trial (along with 4
other defences raised which have no bearing on the s 27 application before
me – these will be dealt with by the court hearing the summary judgment
application in due course). The special plea was subsequently delivered on
24 July 2023.
[9] On 25 July 2023 the plaintiff’s attorney wrote to the d efendants’ attorney and
the relevant portion thereof reads as follows:
‘3. Secondly, in respect of the procedural continuation of the matter:
3.1 Our client will not at the moment be amenable to grant leave
to defend.
3.2 It was noted that your client’s special plea (inserted by way
of amendment) alludes to the possibility that the matter be
transferred from the Western Cape, Cape Town Division of
the High Court to the Gauteng, Pretoria Division of the High
Court. Our client is desirous to institute an ap plication for the
transfer of the matter. In light of the fact that your client also
alludes to the possibility of transfer and to avoid the
incurrence of costs, will your client be amenable to consent
to the transfer of the matter?’
[10] In her response dated 7 August 2023, the defendants’ attorney strongly
condemned the plaintiff for not being amenable to grant leave to defend the
action ‘notwithstanding the patent lack of jurisdiction’ of this court, which the
plaintiff was alleged to have conceded (clearly not the case); of having made
‘false and incorrect’ allegations under oath on this score in the summary
judgment application; and of being ‘highly opportunistic’ in making such a
request. She even threatened the plaintiff with a punitive costs order after
informing its attorney that any such application brought by the plaintiff would
be opposed unless the plaintiff agreed to the defendants being given leave to
defend.
[11] The current application was launched on 19 March 2024 in terms of s 27(1)(b)
of the Superior Courts Act which reads as follows:
‘27 Removal of proceedings from one Division to another or from
one seat to another in same Division
(1) If any proceedings have been instituted in a Division or at a
seat of a Division, and it appears to the court that such
proceedings --- …
(b) would be more conveniently or more appropriately heard or
determined ---
(i) at another seat of that Division; or
(ii) by another Division;
that court may, upon application by any party thereto and after
hearing all other parties thereto, order such proceedings to be
removed to that other Division or seat, as the case may be…’
[12] Given the contents of the (amended) particulars of claim read with the
defendants’ special plea, there can be little doubt that it would be b oth
appropriate and convenient for the action to be transferred to the North
Gauteng High Court, Pretoria. The defendants themselves allege they are
primarily resident within that court’s area of jurisdiction; the agreements were
concluded there; the overdraft facility which is the subject matter of the main
action is operated from one of the plaintiff's Pretoria branch es, the relevant
witnesses for all the parties will be located in Pretoria including the defen dants
who can quite easily travel there on their own version ; the immovable property
(the Pretoria address) in respect of which the plaintiff seeks a special
execution order is also situated within that court’s area of jurisdiction ; and
both sets of instru cting attorneys , as well as counsel who appeared before
me, are based there.
[13] However, ignoring their own alternative prayer in the special plea, t he
defendants now contend that this court has no jurisdiction to entertain the
present application since it h as no jurisdiction in the main action. In my view
the defendants misconstrue the legal position. Section 21(1) of the Superior
Courts Act provides that a Division has jurisdiction ‘over all persons residing
or being in ’ its area of jurisdiction (my emphasi s). No mention is made in the
subsection of “primary residence” or “permanent residence”. It is well -
established that: (a) the question is not one of domicile but of residence; a
person may have his or her domicile at one place and temporary residence at
another; and (b) a person may have more than one residence; and where that
is the case , this jurisdictional requirement is met if he (or she) is sued in the
court having jurisdiction at the place where he (or she) is residing at the time
when the summons i s served: Mayne v Main2 where it was also stated,
referring to the previous equivalent s 19(1)(a) of the now repealed Supreme
Court Act3:
‘[5] Amongst the more appropriate and apt definitions of residence (in
the sense of “residing”) are those in Hogsett v Buys 1913 CPD 200 at
205 (quoted with approval in Ex parte Minister of Native Affairs (supra
at 59 )), namely there must be “some good reason f or regarding it as his
place of ordinary habitation at the date of service” and Beedle & Co v
Bowley (1895) 12 SC 401 at 403 to the effect that
2 2001 (2) SA 1239 (SCA) at para [3].
3 No 59 of 1959.
“(w)hen it is said of an individual that he resides at a place it is
obviously meant that it is his home, his p lace of abode, the place where
he generally sleeps after the work of the day is done” .
In Tick v Broude and Another 1973 (1) SA 462 (T) at 469 F -G it was
said that residence is a concept which conveys “some sense of stability
or something of a settled nature”. A presence which is merely fleeting
or transient would not satisfy the requirement for residence; some
greater degree of permanence is necessary.
[6] Without detracting from the principles enunciated, one needs, in my
view, to adopt a com mon-sense and realistic approach when deciding
whether, having regard to all the relevant circumstances, a person can
be said to be residing at a particular place for the purpose of s 19(1)(a).
This is all the more so because of modern -day conditions and a ttitudes
and the tendency towards a more itinerant lifestyle, particularly
amongst business people, of whom the respondent, as will presently
be apparent, is a striking example. Not to do so might allow certain
persons habitually to avoid the jurisdictiona l nets of the courts and
thereby escape legal accountability for their wrongful actions. ’
[14] Applying these principles to the facts relevant to this issue, on the defendants’
own version: (a) they alternate their residency between the Pretoria and
George addr esses (as set out in their initial plea); (b) in terms of s 21 of the
Superior Courts Act this court has jurisdiction over persons residing within its
area of jurisdiction (as contained in their special plea) and (c) they are
caretakers of the George addre ss and are thus ‘duty bound’ to occupy it ‘for a
period of time’ (as set out in their first consequentially amended plea). This all
supports residency by the defendants at the George address which is neither
‘fleeting’ nor ‘transient’ . In any event s 27(1) (b) makes provision, not only for
‘residing’ , but also for ‘being’ in this court’s area of jurisdiction at the time
when the summons was served. It follows that their attempt to escape the
‘jurisdictional net’ of this court must fail.
[15] Of course, this finding in no way detracts from the other, separate defences
raised by them in both their plea and affidavits filed in opposition to the
summary judgment and rule 46A applications. They profess to have great
confid ence in those defences. That being the case, the court hearing them
may grant leave to defend , and the trial will thereafter take place in that
Division as well .
[16] The plaintiff asks for costs on the attorney and client scale. I have given this
careful consi deration, but notwithstanding the quite unnecessarily dramatic,
ad hominem attacks made on the plaintiff, it seems to me more appropriate
that at this stage, I should order that costs be costs in the cause. The court
dealing with the summary judgment and r ule 46A applications, or the trial, will
be better placed to determine whether a punitive costs order is warranted. Put
differently, although the costs of this application will follow the result in the
main proceedings, that court will nonetheless retain t he discretion as to the
scale of costs and/or whether they should be awarded on a punitive basis.
[17] The following order is made:
1. The action instituted under the abovementioned case number (and
including the pending applications for summary judgment and in
terms of uniform rule s 46 and 46A) are removed from this Division
and transferred to the North Gauteng High Court, Pretoria;
2. The Registrar of this Court is directed to give effect to the Order at
paragraph 1 above; and
3. The costs of this application shall be costs in the main action.
_________________
J I CLOETE
For applicant : Adv C L Markram -Jooste
Instructed by : VZLR Inc. (Ms E Niemand) c/o Brink De Beer Potgieter Inc. (Ms R
Lategan)
For first and second respondent s: Adv C Sevenster
Instructed by : LLR Inc (Ms M Le Roux) c/o Ashersons Attorneys (Mr A Goldschmidt)