IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
SUBTROPICO ONLINE (PTY) LTD
and
TRI-LOGISTICS (PTY) LTD
1
Not reportable
Case no: 2675/2025
APPLICANT
RESPONDENT
Neutral citation: Subtropico Online (Pty) Ltd v Tri-Logistics (Pty) Ltd (2675/2025)
[2026] ZAFSHC 113 (25 March 2026)
Coram: CRONJEAJ
Heard: 19 February 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 9h30 on 25 March 2026.
Summary: Summary judgment - bona fide defence - jurisdiction - s 23 of the
Companies Act 71 of 2008 - no substantive application for condonation - defense on the
merits bona fide - application dismissed.
2
ORDER
1 The summary application is dismissed with costs, counsel's fees to be taxed on
scale B.
JUDGMENT
Cronje AJ
[1] The applicant seeks summary judgment against the respondent for payment of
R917 315.00 plus interest and costs. The respondent raises two points in limine. It firstly
states that since the decision in Sibakhulu Construction (Ply) Ltd v Wedgewood Village
Golf Country Estate (Pty) Ltd1 (Sibakhu/u), a court's jurisdiction is determined only by the
registered address of a company and no longer by its principal place of business. It
secondly states that the applicant failed to seek condonation for the late filing of the
summary judgment application.
[2] In respect of the cause of action, it pleaded a defence, which in the applicant's
view is but a shadow of the comprehensive denials in the opposing affidavit and which
does not raise a bona fide defence. Although I only need to determine whether the
respondent's defences are bona fide, the question of jurisdiction must be considered as
it may be decisive for the applicants' entire claim.
Jurisdiction
[3] The summons states that the principal place of business of the respondent is at
15 Kraalkop Street, Kroonstad, Free State Province. In paragraph 2 of the particulars of
claim, this address is repeated. In paragraph 3, it is stated that the registered place of
business is in the Free State Province. It can be accepted that this is not the case, as the
Windeed search document indicates that the registered and postal addresses in
Christiana, North West Province.
1 Sibakhu/u Construction (Ply) Ltd v Wedgewood Village Golf Country Estate (Ply) Ltd (2011] ZAWCHC
439.
3
[4] The applicant attached various documents to its particulars of claim, in which the
defendant's postal address is indicated as Stellenbosch, Western Cape Province, not
Kroonstad. Some of the documents display registration numbers for vehicles that
transported the goods, all of which are from the Free State. Some products were loaded
at Reitz in the Free State and others in Vryburg in the North West. In a WhatsApp trail,
reference is made to a delivery of products at Cape Town. The applicant relies on a
webpage e-mail contact form with the name, email address of heste@trilogistics.co.za,
and telephone numbers of Heste and Francois. The form indicates: 'Address 1, 15
Kraalkop, Kroonstad, 9500' and 'Address 2, Po. Box 12611, Die Boord, Stellenbosch,
7613'.
[5] The postal address of one Hester de Beer, a director of the respondent, is
indicated as Bethlehem in the Free State, whereas her residential address is at
Christiana, incorrectly stated as being in the Free State, as the town is in fact in the North
West Province. There is no reference to Kroonstad in the Windeed. The only reference
to Stellenbosch in the Windeed is the address of Francois van der Merwe Uys, which
matches the postal address on the webpage e-mail contact form. It can therefore be
accepted that both the directors listed on the webpage's email contact form at least
purport to represent the respondent at the respective addresses.
[6] The applicant served a letter of demand via the Sheriff on Ms Hestie de Beer, a
responsible person, apparently not less than 16 years of age, and apparently residing/in
charge of the premises at 15 Kraalkop, Kroonstad. I believe that it can reasonably be
accepted that Heste, Hester, and Hestie are the same person. The respondent's
contention that the applicant only relies on the registered address is therefore incorrect.
The applicant states that the respondent's denial of the principal place of business is a
The applicant states that the respondent's denial of the principal place of business is a
cat-and-mouse game and ignores that the cause of action arose partly in Vryburg, North
West Province, and that the respondent's registered office falls within the Free State, this
Court's jurisdiction. This is incorrect as these addresses are not in the Free State. It further
bemoans the fact that the respondent does not plead facts to substantiate the defence of
jurisdiction, and if its address is not as per the Companies and Intellectual Property
Commission (CIPC) records, it must tell this Court where it is.
[7] As stated above, Mr Pretorius, on behalf of the respondent, relies on Sibakhulu
4
to argue that a court's jurisdiction is determined solely by the company's registered
address and no longer by its principal place of business. In Sibakhulu, the court held:
'[21] The determination of where a company's principal place of business or principal office is
situated is a question of fact (cf. e.g. Payslip Investment Holdings CC v Y2K Tee Ltd 2001 (4) SA
781 (C) at 782A-H). It is thus possible to approach the interpretation of s 232 of the
2008 Companies Act holding that its requirement that a company's registered office be at the
place of its principal office does not exclude the possibility as a matter of fact that a company
may, in breach of the requirement, register as its registered office an address which is not the
address of its principal office; and that it would follow in such a case that the conclusions in Dairy
Board and Bisonboard would still hold true: The company would be legally and factually resident
at two places, notwithstanding the evident intention of the legislature that a company's legally
chosen place of residence should be the same as its factual place of residence for jurisdictional
purposes. It is, however, also possible to reason that to so hold would defeat the apparent object
of the provision, which appears to be to end the potential for a company to have more than one
place of residence for jurisdictional purposes and that the statute should not be interpreted in a
manner that would defeat its evident objects. Construed in the latter manner s 23 of the
2008 Companies Act provides a materially different statutory backdrop to that which applied
when Dairy Board and Bisonboard were decided.' (Own emphasis.)
[8] In Steytler N.O. v Fitzgera/cP (Steytler), the Court held:
'The Court has jurisdiction , concurrent with that of the Supreme Court, "in and over all causes
arising, and persons residing and being within the said districts." These words seem to be taken
and adopted, mutatis mutandis, from those in section 30 of the Charter of Justice, which gives
the Supreme Court "jurisdiction in all causes whether civil, criminal, or mixed, arising within the
Colony, with jurisdiction over the King's subjects, and all other persons whomsoever residing and
being within the said Colony." The words "and persons residing" in the Act of 1864 seem merely
2 Section 23(3) and (4) of the Companies Act 71 of 2008, provides:
'Each company or external company must- (a) continuously maintain at least one office in the Republic;
and (b) register the address of its office, or its principal office if it has more than one office- (i) initially in
the case of- (aa) a company, by providing the required information on its Notice of Incorporation ; or {bb) •
an external company, by providing the required information when filing its registration in terms of subsection
(1 ); and (ii) subsequently, by filing a notice of change of registered office, together with the prescribed fee.
(4) A change contemplated in subsection (3) (b) (ii) lakes effect as from the later of- (a) the date, if any,
stated in the notice; or (b) five business days after the date on which the notice was filed.' Section 1 of the
Act defines '"registered office" to mean the office of a company, or of an external company, that is registered
as required by section 23.'
3 Steyf/er N. 0 . v Fitzgerald 1911 AD 295.
5
to epitomize the last sentence of the above clause, which may possibly have been intended at
that date to prevent any foreigner from pleading that he was judiciable only by his own forum, as
in the case of certain consular Courts at the present day. I am not prepared to assent to the
suggestion of counsel that the necessary effect of the words used is to require r10t only that the
cause should arise, but that the person must reside there, before the jurisdiction can exist; but,
whatever may be the precise significance of the concluding words, it seems sufficient to say that
they do not assist the respondents in this case, and that they must rely on the allegation that this
is a cause arising in the district. Now, it seems clear, especially on comparing the fuller
phraseology of the Charter of Justice that some distinction must be drawn between "cause" and
"cause of action." "Cause" means a legal proceeding, a tis or causa, a process of some kind,
whether civil or criminal.'
'The question the Court has to determine is, whether the Court of the Eastern Districts has the
power under the circumstances of this case to issue the process of edictal citation at the suit of
the Plaintiffs to compel the appearance of the defendant, who resides at Cape Town, in the Court
of the Eastern Districts. The Jurisdiction of the Court is established by Act 35 of 1896, and within
the provision of that Act, and of any subsequent amending Statute, and Rules of Court made in
pursuance of the Act, we must look for the powers of the Court, and for the mode in which those
powers must be exercised. In the 13th section of the Act it is provided that: --- "The Court of the
Eastern Districts shall have a Jurisdiction concurrent with that of the Supreme Court in, and over
all causes arising, and persons residing and being within all districts of the Colony to the Eastward
of, and including the districts of Humansdorp, Uitenhage, Jansenville, Aberdeen, Murraysburg,
of, and including the districts of Humansdorp, Uitenhage, Jansenville, Aberdeen, Murraysburg,
Richmond, and Hope Town, and within the territories known as the Transkei, Tembuland proper,
Emigrant Tembuland, Gcalekaland, Bomvanaland, Griqualand East, Pondoland and Port St.
John's." In order to ascertain the nature of the Jurisdiction of the Supreme Court we must turn to
section 30 of the Charter of Justice where it is enacted that: --- "The Supreme Court shall have
cognisance of all pleas, and Jurisdiction in all causes whether Civil, Criminal, or Mixed, arising
within the said Colony, with Jurisdiction over our subjects and all other persons whomsoever
residing and being within the said Colony in as full and ample a manner, and to all intents and
purposes as the Supreme Court of Justice now existing within the said Colony now hath, and,
can lawfully exercise the same".'4
[9] Section 21 of the Superior Courts Act 10 of 2013 (Superior Courts Act), embodies
similar provisions regarding jurisdiction, stating that a Division has jurisdiction over all
persons residing or present in its area, for all causes arising and offences triable within
4 Ibid at 330-331 and 333.
6
that area, and for all other matters it is legally authorised to consider.
[10] In Malvern Trading CC v Absa Bank Ltd5 (Malvern), the Court considered s 23 of
the Companies Act 71 of 2008 (the Companies Act) and case law, including Sibakhulu,
which arose from the interpretation thereof regarding the courts' jurisdiction over
companies, and distinguished the fact that Malvern was a close corporation and thats 23
does not apply.
[11) Van Der Merwe v Duraline (Proprietary) Limited,6 dealt with the liquidation of a
company. The court did not follow Sibakhulu but also held that it is apparent that the
Legislature intends to introduce new and distinct legislation in the future to deal
specifically with the winding-up and liquidation of insolvent companies. When that
eventuates, efficient transitional provisions will be introduced to facilitate a changeover
from the Companies Act 61 of 1973, to the new legislation. The court held that such
transitional provisions would have to deal with the problems identified by Binns-Ward J in
Sibakhulu.
[12] In Burmeister and Another v Spitskop Village Properties Ltd and Others, 7 the Court
dealing with the Sibakhulu judgment, held:
'[9] The judgment in Sibakhulu was not followed in two subsequent High Court cases:
Lonsdale Commercial Corporation v Kimberley West Diamond Mining Corporation and Firstrand
Bank Ltd v PMG Motors Alberton and was impliedly overruled by the Supreme Court of Appeal
(the SCA) in PMG Motors Kyalami (Pty) Ltd and another v Firstrand Bank Ltd, Wesbank Division .
In Lonsdale, Lacock J said the following, with which I fully and respectfully agree:
"A finding that the legislature intended the provisions of s 23(3) of the 2008 Act to be construed
"for purposes of jurisdiction" (a phrase repeatedly used by Binns-Ward Jin Sibakhulu (Supra) is,
to my mind, tantamount to a finding that the legislature intended to limit or oust a local- and
provincial division's jurisdiction derived from the common law and/or section 29 of the Supreme
Court Act in respect of the liquidation and or business rescue proceedings of a company that
"resides" or has its principal place of business within that Court's area of jurisdiction, but not also
its registered address. I am not persuaded that the reasons advanced by the learned judge justify
such a drastic limitation of a Court's jurisdiction . Had the legislature intended to limit a Court's
5 Malvern Trading CC v Absa Bank Ltd [2023) ZAGPJHC 541; 2024 (1) SA 478 (GJ) para 55.
6 Van Der Merwe v Ouraline (Proprietary) Limited (2013) ZAWCHC 213 para 28. (Dealing with liquidation
of a company) .
7 Burmeister and Another v Spitskop Village Properties Ltd and Others (2015] ZAGPPHC 1094.
7
jurisdiction as suggested by Binns-Ward, I would have expected the legislature to have made
provision for such drastic limitation in clear and unambiguous terms. This was not expressly done
when the 2008 Act was promulgated or since." (Own emphasis.)
[1 OJ The SCA also had occasion to deal with a similar argument in the PMG Motors case,
which was an appeal against the judgment in the Firstrand matter (above). Although neither of
the Sibakhulu nor Lonsdale matters were specifically considered by the SCA, it is clear from its
reasoning that the judgment in Sibakhulu was not approved. The SCA concluded that the
jurisdiction of a court arising from the location of the principal place of business of a company is
unaffected by its liquidation. The principal place of business remains unchanged by liquidation
and affords the basis for jurisdiction in respect of the applications, such as business rescue. The
conclusion is therefore that this Court has the necessary jurisdiction to determine this application.'
[13] In Firstrand Bank Ltd, Wesbank Division v PMG Motors Alberton (Ply) Ltd and
Others,6 the Court referred to Sibakhu/u and held:
'[33] In terms of section 23(3) of the 2008 Act, a company's registered address can only be
located at an office maintained by the said company, and not the office of a third party. As such,
the company's registered office must be located at its only office or, if it has more than one office,
then the registered office must be located at the place of its principal office. The transitional
provisions in terms of Schedule 5 of the 2008 Act do not deal with pre-existing companies in terms
of the 1973 Act. However, it may be mentioned in this context that rule 4(1 )(a)(v) of the Uniform
Rules of Court relating to service of proceedings against a company still permits service on an
employee of the company at its registered address or its principal place of business, as
contemplated in section 12(1) of the 1973 Act. Be that as it may, as already indicated, in the
contemplated in section 12(1) of the 1973 Act. Be that as it may, as already indicated, in the
recent case of Sibakhulu (supra), Binns-Ward J considered the amendments in the statutory
framework in this regard in the context of a court's jurisdiction in relation to a winding-up
application. Specifically, in the matter before the court in that case, there was an application for
winding-up a company in a division of the High Court and another applicat~on to place the same
company under supervision for the purposes of business rescue in terms of section of 131(1) of
the 2008 Act in another division of the High Court. It is well known in this regard that business
rescue proceedings relating to financially distressed companies were not contemplated in terms
of the 1973 Act, and accordingly constitutes an innovation introduced by the 2008 Act.
[34] Binns-Ward J concluded in relation to the facts before him that as section 12(1) of the
1973 Act had been repealed, and there was no equivalent provision in the 2008 Act, jurisdiction
in respect of matters arising from the 2008 Act, fell to be determined on common law grounds,
unless the 2008 Act reflected a different intention. The court considered it relevant in this context
8 Firstrand Bank Ltd, Wesbank Division v PMG Motors Alberton (Pty) Ltd and Others [2013] ZAGPJHC 203;
(2013) 4 All SA 117 (GSJ).
8
that the stated objectives of 2008 Act included providing for the efficient rescue of financially
distressed companies. The court also considered the unprecedented prescription in section 23(3)
of the 2008 Act to be relevant in the circumstances. The learned Judge, accordingly, found that
for the purposes of jurisdiction, at least in relation to matters involving applications for a change
of status of a company, a local company resided only at its registered office (which is the same
as its principal office in terms of the 2008 Act.). Therefore, the court held that the only High Court
having territorial jurisdiction in respect of an application for winding-up a company or placing a
company under supervision for business rescue purposes, is the court where the registered office
of the said company is located.' (Own emphasis.) (Footnotes omitted.)
[14] In PMG Motors Kya/ami (Pty) Ltd (in liquidation) and Another v Firstrand Bank Ltd,
Wesbank Division9 (PMG) it was held:
'[9] It has long been recognised as trite that artificial persons such as companies have no
bodies and therefore cannot reside in a particular area. They do, however, have directing minds
and "the residence of a corporation will be determined by the periodic, usual or habitual location
of the directing mind". This has been held to be the company's "seat of its central management
and control, from where the general superintendence of its affairs takes place, and where,
consequently, it is said that it carries on its real or principal business". To say that a company
resides at its principal place of business is simply a convenient way of ensuring that the nerve
centre of the operations of a company founds jurisdiction in proceedings taken against it.
Although section 12 of the Companies Act refers to "the main place of business", this amounts to
the same thing for jurisdictional purposes. The dealerships accepted that, on the above basis,
the same thing for jurisdictional purposes. The dealerships accepted that, on the above basis,
the court below had jurisdiction over PMG Kyalami and PMG Alberton prior to their liquidation.
[10] The dealerships submitted, however, that, after liquidation, they could no longer be
considered to have a principal place of business. As a result, neither this nor any other ground
of jurisdiction applied. For this submission, the dealerships relied on s 1 of the Companies Act.
This defines a "place of business" as "any place where the company transacts or holds itself out
as transacting business". They pointed out that "transacts" and "holds itself out as transacting
business" are used in the present tense. Therefore, they submitted, because the concursus
creditorum brought about by liquidation "freezes all trading and suspends all other civil
proceedings" after liquidation, a company no longer transacts or holds itself out as transacting
business and, therefore, no longer has a "place of business". No case was made out, it was
submitted, that the dealerships continued to transact or hold themselves out as transacting
business because the liquidators had not carried on any part of the business.
Therefore jurisdiction could not be founded on the dealerships "residing" within the area
9 PMG Motors Kya/ami (Ply) Ltd (in liquidation) and Another v Firstrand Bank Ltd, Wesbank Division [2014]
ZASCA 180 (SCA); [2015] JOL 32558 (SCA); 2015 (2) SA 634 (SCA).
9
of jurisdiction of the court below because they had no principal place of business.
(11] The dealerships could cite no authority for this proposition and I could not find any. The
approach of a company having a place of residence is based on a convenient fiction. The
reasoning underlying the fiction concerning the principal place of business being regarded as the
residence of a company takes cognisance of at least the following factors. The company has
established a physical presence there, it has located its senior management there, records
relating to its business dealings with others (which are likely to be relevant to litigation arising from
those dealings) are located there and, in many cases, the majority of the employees of the
company are stationed there. All of these factors would make the court within whose jurisdiction
the company has its principal place of business a convenient one in which to litigate. In most
cases it would mean that decisions can be taken concerning the litigation, documents can be
readily accessed, authority to litigate and instructions relating to the litigation can be obtained,
and persons with knowledge of the transaction in question would be available to consult with legal
representatives and attend court with minimal disruption and expense. Many of these factors,
which make a principal place of business a practical place to regard as the place of residence of
a company, are unaffected by the liquidation of that company.
[12]
[13] The response of the dealerships to these possibilities was that, immediately on liquidation,
the company ceases to have a place of business. If any of these scenarios were to ensue, it would
once again obtain a principal place of business because only then would the definition of "place
of business" in section 1 of the Companies Act be satisfied. Apart from the fact that this Court had
determined the question of residence without reference to the definition of "place of business" in
the Companies Act, this seems to me to be a highly artificial approach. It relies only on a strict
linguistic approach without taking into account the use of the words in the context of the
Companies Act as a whole and, in particular, the context of the practical exigencies in its
provisions concerning companies in liquidation ... .' (Own emphasis.)
[15] In Apleni v African Process Solutions (Pty) Ltd and Another, 10 the Court, inter alia,
referred to Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others, 11 where the
Supreme Court of Appeal (SCA) considered the wording of the predecessor of s 21 of the
Superior Courts Act, where Harms DP found:
'However, our courts have for more than a century interpreted it to mean no more than that the
jurisdiction of the High Court is to be found in the common law. For the purposes of effectiveness
the defendant must be or reside within the area of jurisdiction of the court .. . Although
10 Apleni v African Process Solutions (Ply) Ltd and Another[2018) ZAWCHC 160 para 18 (Aplem).
11 Ga/lo Africa Ltd and Others v Sting Music (Pty) Ltd and Others [201 OJ ZASCA 96; 2010 (6) SA 329 (SCA)
[2011] 1 All SA 449 (SCA); 2010 BIP 256 (SCA).
10
effectiveness "lies at the root of jurisdiction" and is the rationale for jurisdiction, "it is not
necessarily the criterion for its existence". What is further required is a ratio jurisdictionis. The
ratio in turn, may, for instance, be domicile, contract, delict and, relevant for present purposes,
ratione rei sitae. It depends on the nature of the right or claim whether the one ground or the other
provides a ground for jurisdiction. Domicile on its own. for instance, may not be enough.'
(Emphasis in original.)
[16] Reference was also made to Veneta Mineraria Spa v Carolina Collieries (Pty)
Ud,12 where the then Appellate Division quoted, with approval, a particular passage from
the decision 9f an earlier case of 1912 of the same division, where it was said:
'The presence of a contemplated defendant would of course be an important element in the
enquiry; but the question in each instance would be whether a particular "cause" was one of which
the court concerned could, according to the principles of law, rightly take cognisance ... The claim
being based upon tort and the Provincial Division being neither the forum loci delicti nor the forum
rei, it is clear that, apart from the machinery of arrest, the enquiry would have to be answered in
the negative . .,3 (Emphasis in original.)
[17] In Wild & Marr (Pty) Limited v lntratrek Properties (Pty) Limited, 14 the Court
considered Sibakhulu and provided an overview of the case law as it stood when it
delivered its judgment:
'[7] Other than this decision, there is no support for the proposition that the court exercising
ju_risdiction over the registered address has sole jurisdiction .
[8] In the Gauteng Division, in the decision in Burmeister & Another v Spitskop Village
Properties & Others [2015] ZAPPHC 1094 (21/09/2015) , Makgoka J disapproved the decision
in Sibakhulu. At [8] - [1 O] of the judgment, the issue is addressed, not by countering the reasoning
in Sibakhulu, but by referring to, and relying on, several other decisions said to disapprove
the decision in Sibakhulu ...
[9] In my view these decisions relied on in Burmeister, save for that of Lacock J, are not
dispositive of the proposition that duality has been preserved. The post liquidation phase in the
PMG Motors cases is a clear basis for distinguishing them.
To argue thus that these decisions disapprove or overrule the Sibakhulu decision is, with respect,
doubtful.
[1 O] The SCA's dictum in PMG Motors does not address the duality issue expressly, and I am
hesitant to read into those remarks that the court contemplated disposing of that thesis.
12 Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd. [1987) ZASCA 87; (1987] 2 All SA 447 (A).
13 Apleni para 19.
14 Wild & Marr (Pty) Limited v lntratrek Properties (Ply) Limited (2019] ZAGPPHC 613.
11
[11] The notion of the court's jurisdiction being ousted in Lonsdale, is in my view, an
exaggerated proposition with which I cannot agree. The jurisdiction of the court is conferred by
statute in respect of a juristic entity which, by a fiction. is said to be at a place; if the reforming
statute creates a different arrangement that is merely more restrictive about the place where the
fiction resides, it does seem obvious to me that the re-arrangement infringes on the court's
jurisdiction or inhibits reasonable access to a court by any litigant. No threat is created by this
procedural provision to the courts' basic functioning nor to litigants' constitutional rights of access
to justice.
[12] Accordingly, what remains is one decision in the Gauteng Division, which does not
interrogate the reasoning in Sebakhulu, against the proposition, and one distinguishable decision,
supposedly against the proposition.
[13] However, Sibakhulu was expressly disapproved in the Cape Division in Van der Merwe v
Duraline (Pty) .. .' (Own emphasis.)
[18] In Mfwethu Investments CC t.a Recharger Prepaid Meters v Citiq Meter Solutions
(Pty) Ltd tla Citiq Prepaid (Mfwethu), 15 the Court was inclined to follow Sibakhulu:
'[9] For purposes of s 21 (1) of the Superior Courts Act 10 of 2013 (formerly s 19(1 )(a) of the
Supreme Court Act 59 of 1959), the question whether a cause 'arises' within a court's area of
jurisdiction is determined by common law. The provision that the court has Jurisdiction 'over all
persons residing or being in' such area does not enlarge the Jurisdiction endowed by the words
'causes arising'. At common law, however, the residence (but not the mere physical presence) of
a defendant or respondent within the court's area of jurisdiction is, in most types of claims, a
circumstance which enables one to say that the cause 'arises' within the court's area of jurisdiction
(Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd [1990) ZASCA 86; 1991 (1) SA
(Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd [1990) ZASCA 86; 1991 (1) SA
482 (A) at 490 H-492I; Bid Industrial Holdings (Pty) Ltd v Strang & others [2007] ZASCA
144; 2008 (3) SA 355 (SCA) para 53).
[10) It follows that, to the extent that Recharger's argument is that the court has jurisdiction
merely because Recharger's office in Cape Town causes it to be physically present within the
court's territory, the argument is unsound and must be rejected. The court will only have
jurisdiction - or to put it differently, the cause at issue in the present case could only be said to
be one arising within this court's territory - if Citiq resides in this court's territory.
[11] Recharger's counsel made extensive reference to the recent judgment in Apleni v African
Process Solutions (Pty) Ltd & another [2018) ZAWCHC 160. He emphasised passages in the
judgment which referred to effectiveness. However, and as the cases cited by the learned judge
in that matter show, effectiveness, while it may lie at the root of, or be the rationale for, the
15 Mfwethu Investments CC t.a Recharger Prepaid Meters v Citiq Meter Solutions (Pty) Ltd t/a Citiq Prepaid
[2020] ZAWCHC 40; 2020 (6) SA 578 (WCC).
12
common law grounds of jurisdiction, is not itself an independent ground of jurisdiction ( Gallo Africa
Ltd & others v Sting Music (Pty) Ltd & others [201 0] ZASCA 96; 2010 (6) SA 329 (SCA) para
10). The writ of a division of the High Court runs throughout South Africa (s 42(2) of the Superior
Courts Act), so that in principle any division could give an effective judgment against an incola of
South Africa who is a peregrinus in that division's territory, yet it is clearly not the law that every
division in South Africa has jurisdiction over any person who is resident somewhere in South
Africa.
(26] In my view, third parties are better served by treating the registered office as dispositive.
In order to know in which court to sue, third parties need only consult the information registered
with the CIPC. If they could not place complete reliance on the registration, the company might
notionally object to jurisdiction on the basis that its principal office is in fact in the territory of some
other court. Third parties cannot be expected to know, and may have no means of finding out,
where the general administration of a company is centred.
[27) However, and even if I were to assume that Sibakhulu Construction is wrong, and that a
company may for purposes of jurisdiction be regarded as resident at its principal place of business
in South Africa, even though that is not its registered office, it was for Recharger to establish facts
to show that Citiq's Cape Town office, rather than its Midrand office, is its principal place of
business in South Africa, and that this court thus has jurisdiction (Mayne v Main 2001 (2) SA
1239 (SCA) para 1).' (Own emphasis.)
Commentaries on jurisdiction
[19] Harms16 opines that merely having an office at a place does not change the fact
that both the principal place and the registered place of business should be the same. An
address at a principal place suffices only for service of process:
address at a principal place suffices only for service of process:
'A domestic corporation or legal person is resident both at the place where its registered office is
located and where its principal place of business is. In other words, it may have a dual
residence. It is not resident at a place where it simply has a place of business that is not its
principal place of business. There is a vast difference between a corporation's principal place of
business and its principal place of business within the court's jurisdiction: the first may establish
jurisdiction, while the second a place where service of process may take place ... '
[20] Van Loggerenberg, 17 opines:
'In general, a court is bound to entertain proceedings that fall within its jurisdiction . This is known
16 D Harms Civil Procedure in the Superior Courts (2019) at A-20.
17 DE van Loggerenberg Erasmus: Superior Court Practi ce, (2025) at D-186.
13
as the mandatory jurisdiction principle. The principle is, however, not absolute. In Commissioner,
South African Revenue Service v Richards Bay Coal Terminal (Ply) Ltd the Constitutional Court
held that it was important to recognize at a conceptual level why a court that is assigned
jurisdiction is entitled to decline to exercise it in certain circumstances. Those reasons lie in a
mixture of policy considerations that seek to protect the integrity of the administration of justice,
such as abuse of process, and practical matters relating to the proper, efficient and economical
use of judicial resources and the right of access to courts. If the mandatory jurisdiction principle
was regarded as absolute, courts would be obliged to consider and adjudicate all matters, even
those whose consideration would stand in conflict with the interests of justice. Abuse of process
and vexatious litigation were some exceptions to the general rule. It could not be argued that in
such instances the right of access to court had to prevail, and courts had no discretion to regulate
their own processes. Such a proposition would offend section 173 of the Constitution and also
stood as a threat to the integrity and the proper functioning of the administration of justice. A
division of the High Court having jurisdiction in respect of a cause may also, in certain
circumstances, decline to exercise that jurisdiction in favour of some other court or tribunal which
also has jurisdiction to deal with it. This occurs in the case of, for example, submissions to
arbitration, contracts vesting jurisdiction in some other court (or tribunal), /is alibi pendens, forum
non conveniens and comity.' (Footnotes omitted.) (Own emphasis.)
[21] In respect of the residence of a domestic company, Van Loggerenberg 18 notes:
'In Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country Estate (Ply) Ltd (Nedbank
Ltd Intervening) Binns-Ward J, with reference to winding-up and business rescue proceedings,
Ltd Intervening) Binns-Ward J, with reference to winding-up and business rescue proceedings,
held that under the Companies Act 71 of 2008 a company resides for purposes of jurisdiction as
contemplated in s 19(1)(a) of the (now repealed) Supreme Court Act 59 of 1959, only at its
registered office which, for jurisdictional purposes, is under the Companies Act 71 of
2008 required to be one and the same as its principal place of business. Binns-Ward J held that
on a proper interpretation of s 23(3) of the Companies Act 71 of 2008:
(i) the company itself is obliged to maintain its registered office;
(ii) the registered office and principal place of business of the company are required to be at one
and same place;
(iii) the requirement that the company register its principal office is clearly intended for the benefit
of third parties, who might wish to obtain information about it, communicate with it, or in any
manner formally transact with or in connection with it;
(iv) the registered office (alias the principal place of business) of the company is the address at
which the world at large can transact with the company effectively.
18 Ibid at 0-185-186.
14
The decision in the Sibakhulu case, in so far as it concerns jurisdiction in winding-up matters (as
distinct from business-rescue proceedings), was made obiter and was, in the context of the
jurisdiction of the High Court to determine an application for the winding-up of a company, not
followed in Van der Merwe v Duraline (Pty) Ltd and Wild & Marr (Ply) Ltd v lntratek Properties
(Ply) Ltd, in both of which it was held that the dual-jurisdiction regime was not abolished by the
Companies Act 71 of 2008 (i e that the High Court within the area of jurisdiction in which the
registered office of the company or the main place of business of the company is situate has
jurisdiction in respect of the company as contemplated ins 12(1) of the Companies Act 61 of
1973). In Mfwethu Investments CC v Citiq Meter Solutions (Ply) Ltd it was held, in the context of
a delictual claim (where it is well established that the court will have authority over a defendant
who is resident in its area of jurisdiction), that the Companies Act 71 of 2008 abolished dual
corporate residence and that the registered address of the respondent company was dispositive
of the company's place of residence.
Although, generally speaking, the principal office of a company is not necessarily equivalent to its
principal place of business, it is submitted that for purposes of jurisdiction based on residence
under the Companies Act 71 of 2008, it is. In other words, the 'principal office' of a company as
contemplated in s 23(3) of the Companies Act 71 of 2008 constitutes, for jurisdictional purposes,
its statutory home where it is to perform its corporate functions and where it is regarded as at all
times present and ready to conduct and control its administrative affairs. Viewed in this context,
the required notional connection with a court's area within which the principal office is located, is
present.' (Footnotes omitted.) (Own emphasis.)
Discussion
present.' (Footnotes omitted.) (Own emphasis.)
Discussion
[22] The jurisdiction of the High Court is determined by the Supreme Court Act and the
common law. Its jurisdiction is explicitly limited by a number of specific pieces of
legislation that confer jurisdiction on specific courts and tribunals. In Minister of Law and
Order and Others v Hurley and Another, 19 it was stated that:
'It is a well recognised rule in the interpretation of statutes, it has been stated by this Court, "that
the curtailment of the powers of a court of law is, in the absence of an express or clear implication
to the contrary, not to be presumed.'"
This finds expression in Lonsdale Commercial Corporation v Kimberly West Diamond
Mining20 where the Court held that it would constitute a drastic limitation of a Court's
jurisdiction, and had the legislature intended to limit a Court's jurisdiction as suggested
19 Minister of Law and Order and Others v Hurley and Another [1986] 2 All SA 428 (A); 1986 (3) SA 568
(A) at 584A.
20 Lonsdale Commercial Corporation v Kimberly West Diamond Mining (2013] ZANCHC 11 para 6.
15
by Binns-Ward, it would have expected the legislature to have made provision for such
drastic limitation in clear and unambiguous terms. Legislation that limits the Courts'
jurisdiction is always explicit.
[23] In Steytler,21 it was held that jurisdiction is inter alia established by statute.
Sections 1 and 23 of the Companies Act do not define a court for purposes of jurisdiction.
The purpose of s 23 is, in my view, more administrative.
[24] Sibakhulu and those that followed thereafter, in my view, do not support an
absolute ousting of the High Court's jurisdiction. Most of the cases that refer to Sibakhulu
were decided against the same backdrop of liquidation and business rescue
proceedings.22 Those matters relate to status. I believe that it can be accepted that, for
that purpose too, s 23 has an objective to ensure that the central office knows what it
needs to meet. Sibakhu/u, in any event, provides that the principal place can be
established as a fact. If it were merely the registered address, establishing such a fact
would be unnecessary. The dual residence of a company is not excluded.
[25] I do not understand the SCA to hold in PMG23 that concurrent or dual residence
is abolished. The Court considered several factors in determining the principal place of
business. That would be the presence of a director at an address indicated as the first
address on the contact form, who also accepted service. It would not be inconvenient for
the respondent to litigate in Bloemfontein, as Kroonstad is a mere 200 km from
Bloemfontein. The respondent designated the director by email address, too. The
applicant relies on the contract, and this Court can take cognisance of the cause.
[26] It should be noted that Mfwethu did not rule out the possibility that another court
may have jurisdiction if a cause of action, not strictly arising from the Companies Act,
occurs outside the jurisdiction of the court with jurisdiction under s 23. Therefore, the
occurs outside the jurisdiction of the court with jurisdiction under s 23. Therefore, the
determination of jurisdiction still requires a factual investigation, and the fact that the
registered address is in another court's jurisdiction remains, in my view, at best a prima
facie impression.24
21 Op cit fn 3 at 333.
22 Op cit fn 9 paras 33, 34 and 44.
23 Op cit fn 10 para 11.
24 Op cit fn 18 para 32.
16
Condonation
[27] It is accepted that the summary judgment was filed out of time. Mr Van Niekerk,
for the applicant, relies on rule 27(3) of the Uniform Rules of Court, which provides that a
court may, if good cause is shown, condone any non-compliance with the rules. In
Zealand v Milborough,25 Jones J remarked: 'a measure of flexibility is required in the
exercise of the Court's discretion. An apparently good defence may compensate for a
poor explanation ... '.
[28] Whilst his reference to McGill v Vlakplaats Brickworks (Pty) Ltd26 is relevant to
the principle; it should not be elevated to cater for all cases. In McGill, the plaintiff did not
comply with the provisions of rule 17(4)(b), in that the summons did not set out the full
names and occupation of the plaintiff. Condonation was granted.
[29] Pareto Ltd and Another v Kotze27 provides an elucidating overview of cases in
which the question of condonation in summary judgment proceedings was addressed. It
did not detract from the provisions of the rules and the principles that condonation can
only be granted when there is an explanation for the delay and good cause shown.
[30] My appreciation of the applicant's case is that many things went wrong in getting
the claim in court. Importantly, though, there is no condonation application, and I do not
have enough facts and explanations to grant condonation for the late prosecution of the
application. Compliance with the rules for condonation and time frames within which the
application must be launched also constitute requisites for jurisdiction.
Bona fide defence
[31] Summary judgment can only be granted in exceptional circumstances where the
applicant's case is unanswerable, and no real defence is raised. In Gel/secure Monitoring
and Response (Ply) Ltd and Others v South African Securitisation Programme (RF)
Limited,26 the full bench held that subrule 32(3) requires defendants resisting summary
25 Zealand v Mi/borough 1991 (4) SA 836 (SE) at 838D.
25 Zealand v Mi/borough 1991 (4) SA 836 (SE) at 838D.
26 McGill v Vlakplaats Brickworks (Pty) Ltd [1981] 1 All SA 44 (W); 1981 (1) SA 637 (W) at 643C.
27 Pareto Ltd and Another v Kotze [2025] ZAWCHC 338; [2025] 4 All SA 450 (WCC) paras 8-17.
26 Gel/secure Monitoring and Response (Pty) Ltd and Others v South African Securitisation Programme
(RF) Limited [2025) ZAGPPHC 98 para 26.
17
judgment to set out the nature, grounds, and material facts of their defence fully. Bald or
bare denials are inadequate. Defendants must provide sufficient particularity to disclose
a bona fide defence. While exhaustive detail is unnecessary, the facts and grounds must
be coherent and plausible to establish a reasonable prospect of success at trial.
[32] Although not called on to determine the merits, I anticipate that when the
arguments on the merits are heard, the respondent may be found to have raised just
enough to show that it may ·have a bona fide defence. This view does not impede the
parties from arguing the application on the merits at all, and it should not be deemed that
this is binding on me or another court when hearing the application.
[33] Considering the plea and the respondent's answering affidavit before me, it can
be said that the defence is thin, but raising the issue of jurisdiction and the lack of a
condonation application does raise a bona fide defence. The last word has not been
spoken on the implications for claims in jurisdictions other than where the registered office
and principal place of business are situated. Summary judgment is not denied because I
make a definitive finding on jurisdiction, but because that issue can be finally determined
at trial. It suffices as a bona fide defence for present purposes. The lack of a condonation
should be added to the denial of summary judgment.
Costs
[34] There is no reason why costs should not follow the result, and the applicant has
to pay the costs of the application.
Order
(35] In the result, the following order is made:
1 The summary application is dismissed with costs, counsel's fees to be taxed on
scale B.
PR CRONJe
~ -HIGH COURT
Appearances
For the applicant:
Instructed by:
For the respondent:
Instructed by:
X T Van Nierkerk
M L Schoeman Attorneys,
Pretoria
c/o Honey Attorneys,
Bloemfontein
W Pretorius
Hannes Pretorius Bock & Bryant,
Cape Town
c/o Van Wyk Preller Attorneys ,
Bloemfontein.
18