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[2014] ZAWCHC 165
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Minister of Police v Regional Magistrate, Outshoorn and Others (15587/2013) [2014] ZAWCHC 165 (6 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 15587/2013
DATE:
06 NOVEMBER 2014
Before:
The Hon. Mrs Justice Traverso
Deputy
Judge President
And
The
Hon. Mr Justice Binns-Ward
In
the matter between:
THE
MINISTER OF
POLICE
.............................................................................
Applicant
And
THE
REGIONAL CIVIL MAGISTRATE, OUDTSHOORN
...............
First
Respondent
AND
THREE
OTHERS
......................................................
Second
to Fourth Respondents
JUDGMENT
DELIVERED: 6 NOVEMBER 2014
BINNS-WARD
J:
[1]
The Minister of Police has applied for the
review and setting aside of a decision by the first respondent, who
is the civil court
regional magistrate at Oudtshoorn, to dismiss his
special plea of lack of jurisdiction in an action for compensation
for delictual
damages instituted by the second respondent. The
summons, in terms of which the second respondent claimed the sum of
R100 000
against the applicant for unlawful arrest and detention
and R20 000 for malicious prosecution against the Minister of
Justice
and Constitutional Development, was issued in July 2012.
The applicant gave notice of his intention to defend the case on
or
about 22 August 2012. He delivered a plea on 22 October 2012,
in terms of which he denied liability and prayed for the
dismissal of
the claim. The plea raised no objection to the jurisdiction of
the regional court at Oudtshoorn to determine
the matter.
[2]
On 26 March 2013, the applicant gave notice
of his intention to amend his plea by introducing a special plea of
jurisdiction.
The special plea read as follows (in translation
from the original which is in Afrikaans):
First
Defendant pleads that the Regional Court does not have jurisdiction
to try the abovementioned case seeing that the monetary
value of the
Plaintiff’s claim against the First Respondent in the amount of
R100 000 falls within the jurisdiction
of the Oudtshoorn
Magistrate’s Court.
The
amount of the Plaintiff’s claim of R100 000
thus does
not exceed the monetary jurisdiction of the Magistrates’ Court
in consequence of which the Plaintiff should have instituted his
claim in the Magistrate’s Court.
(My
underlining, for emphasis.)
Notwithstanding
its patent excipiability,
[1]
the
amendment was effected, apparently without objection by the second
respondent, and the applicant thereafter set down the special
plea
for hearing on 10 September 2013 as a separate and preliminary issue.
[3]
The magistrate dismissed the special plea
and held that the costs of the hearing should be costs in the cause.
In his extemporary
judgment dismissing the special plea, the
magistrate reasoned as follows:
The
situation is very simple. The Act provides that the minister
may fix maximum levels of jurisdiction…The notice
in which the
regulations were issued is in conflict with the Act itself in that it
provides a minimum as well as a maximum amount.
…
.
The
problem, however, is that the minister when issuing these regulations
was bound by the Act and insofar as these regulations
conflict with
the Act they are
ultra vires
and of no force and effect.
And
therefore the court cannot find that the fact that the sums claimed
for below R100 000 excludes them from the jurisdiction
of the
court. And bound by the Act, the minister was only able to fix
a maximum amount.
[4]
A
finding by a magistrate’s court that it has or does not have
jurisdiction is a ruling of law that has the effect of a final
judgment in the sense meant by s 83(b) of the Magistrates' Courts Act
32 of 1944.
[2]
A challenge to
such a finding thus falls to be made by way of appeal, not review.
[3]
[5]
Determining
whether or not a matter lies within its jurisdiction is undoubtedly
within the magistrates’ court jurisdiction;
the applicant did
not contend otherwise. It is trite that an appeal lies against
a judgment, not the reasons for it.
[4]
If the judgment is right, the appeal will fail even if the
result was arrived at for the wrong reasons. The application
for
review brought by the applicant is directed at the magistrate’s
reasons. There is no point in it if the judgment
was right.
[6]
The
applicant has, however, sought to justify the institution of review
proceedings on the grounds of a ‘gross irregularity
in the
proceedings’; see
s 22
of the
Superior Courts Act 10 of
2013
.
[5]
The alleged gross
irregularity is the magistrate’s reasoning in support of the
dismissal of the special plea; more
particularly, his remark that
‘insofar as these regulations conflict with the Act they are
ultra
vires
and
of no force and effect’. ‘Gross irregularity in the
proceedings’ within the meaning of s 24 of
the repealed
Supreme Court Act, 1959, which has been replicated in s 22 of
the currently applicable
Superior Courts Act,
[6
]
has been held to refer to incidents of the conduct of the proceedings
that are grossly irregular and prejudicial.
[7]
A range of examples of ‘gross irregularity’ is given in
Van
Loggerenberg et al (ed.),
Erasmus,
Superior Court Practice
at A1-72-74. It includes a category of cases in which the lower
court has exceeded its powers. That is the category
of
irregularity under which the applicant has purported to niche the
current application. It is not contended, however, correctly
so, that the magistrate did not have the power to dismiss the special
plea. He thus could not be said to have exceeded his
powers in
doing so, even if the formulation of his reasons for deciding the
issue might be susceptible to criticism. Moreover,
there could
be nothing cognisably prejudicial for review purposes in the
dismissal of the special plea if the magistrate acted
within his
powers in doing so.
[7]
The special plea was premised on an
interpretation of the wording of a determination published by the
Minister of Justice in terms
of s 29(1)(g) of the Magistrates’
Court Act 32 of 1944. Section 29(1)(g) provides as follows:
29
Jurisdiction in respect of causes of action
(1)
Subject to the provisions of this Act and
the National Credit Act, 2005 (Act 34 of 2005), a court in respect of
causes of action,
shall have jurisdiction in-
(g)
actions other than those already mentioned in this section, where the
claim or the value of the matter in dispute
does not exceed the
amount determined by the Minister from time to time by notice in the
Gazette
.
(My underling, for
emphasis.)
Notice
of the determination was given in GN 670 of 29 July 2010,
published in Government Gazette 33418 of 29 July 2010.
The
object sought to be achieved by the notice was set out in the heading
thereto as follows: ‘
Establishment
of courts for regional divisions for the adjudication of certain
civil disputes (designation of the seat of the said
court in each
regional division); the appointment of places within each regional
division for the holding of a court for the adjudication
of certain
civil disputes and the local limits within which such courts shall
have jurisdiction; and determination of monetary
jurisdiction for
causes of action in respect of courts for the regional divisions
The
notice read as follows in relevant part:
I,
Jeffrey Thamsanqa Radebe, Minister of Justice and Constitutional
Development….
(d)
determine amounts mentioned in Column B of Schedule 2 for
causes
of action contemplated in section 29 (a), (b), (d), (e), (f) and (g)
of the Act. listed under Column A of the said Schedule
in respect of
courts
for the regional divisions
.
SCHEDULE
2
Column A
Relevant
section of the
Magistrates' Courts Act No. 32 of 1944
as amended
Column B
Amount
Section
29(1)(g)
actions other than those already mentioned in 5ection
29(1)
Above R100 000
to R300 000
[8]
The applicant’s counsel submitted
that there had been a gross irregularity because the magistrate had
acted in conflict with
the constraints on his powers imposed in terms
of s 110 of the Magistrates’ Court Act. Section110
provides as
follows:
Pronouncements
on validity of law or conduct of President
(1)
A court shall not be competent to pronounce on the validity of any
law or conduct of the President.
(2)
If in any proceedings before a court it is alleged that —
(a)
any law or any conduct of the President is invalid on the grounds of
its inconsistency with a provision of the Constitution; or
(b)
any law is invalid on any ground other than its constitutionality,
the court shall decide the matter on the assumption that such
law or
conduct is valid: Provided that the party which alleges that a law or
conduct of the President is invalid, may adduce evidence
regarding
the invalidity of the law or conduct in question.
The
submission was misplaced. The magistrate was not seized with
determining a question comprehended by s 110.
No conduct
of the President was involved, and the notice of determination by the
Minister was neither a ‘regulation’,
as the magistrate
loosely referred to it, nor any other form of ‘law’.
The notice was merely the manifestation
of an administrative act that
fell to be taken into account in giving effect to s 29(1)(g) of
the Act. The question
the magistrate had to ask himself in
deciding the special plea was whether the claim fell within his
monetary jurisdiction.
The Act requires the Minister to
determine the upper limit of that jurisdiction. The notice
published by the Minister fell
to be read sensibly and purposively to
ascertain what the upper limit was that he had determined; i.e. the
monetary amount which
claims in the regional court might not
exceed
(save with the parties’ consent).
[8]
[9]
The
wording of the relevant part of column B of Schedule 2 of the notice
was unfortunate. In determining the extent of his
monetary
jurisdiction in terms of s 29(1)(g) of the Act, the magistrate
was entitled to disregard the words ‘Above R100
000 to’
as of no operative effect, for they plainly had no sensible bearing
on the question before him, or, indeed, the exercise
of the
Minister’s power of determination under the relevant statutory
provision.
[9]
The wording ‘Above
R100 000 to’ does not sensibly fit into a determination in
terms of s 29(1)(g).
The notice was published as part of
the exercise that first extended civil jurisdiction to the regional
magistrates’ courts.
The apparently incongruous words
appear to have been inspired by the fact that the regional courts
were being afforded a jurisdiction
above the maximum monetary
jurisdiction of the other courts regulated by the Act, which was
R100 000. When read with
s 29(1)(g), however, it is
plain that the problematic words have no practical effect on the
determination of the regional
courts’ monetary jurisdiction.
Section 29(1)(g) has nothing whatsoever to do with the
determination of a lower
limit to the magistrates’ courts’
jurisdiction. The determination by the Minister was not
ultra
vires
.
Properly interpreted, with appropriate regard to its context
and purpose, the notice in terms of which he published that
determination fixed the upper limit of the regional courts’
civil jurisdiction at R300 000. The wording does not
exclude the second respondent’s claim because his claim
does
not exceed the amount
of
R300 000 determined by the Minister. The magistrate’s
decision to that effect was correct and did not constitute
a gross
irregularity, even if the reasons given in support of the conclusion
in his extemporary judgment were to some slight degree
ineptly
expressed.
[10]
Construing
the notice in the manner contended for by the applicant’s
counsel, on the other hand, would lead to the most absurd
results.
It would imply the introduction of a novel and peculiarly dichotomous
concept of jurisdiction; one entirely foreign
to the hierarchical
structuring of our court system in respect of the monetary
jurisdiction of first instance courts. It
would mean that a
regional court could not try a claim pleaded in an amount within the
monetary jurisdiction of the district magistrates’
courts, but
it could give judgments within the district courts’ monetary
jurisdiction. The alternative would be that
the regional court,
upon determining that a claim instituted for over a R100 000
fell to be quantified at less than that figure,
would have to refuse
to give judgment because the amount that fell to be awarded fell
below its jurisdiction. It would also
imply that if a claim
exceeding R100 000 were instituted in a regional court and it
were subsequently decided to amend the
amount claimed to below
R100 000, the court would lose the jurisdiction it had had to
entertain the claim when summons had
been issued. In a case
like this it would also potentially require the two claims involved,
which fall sensibly to be tried
together, to be pursued and tried in
separate courts. It is a well-established canon of statutory
interpretation ‘that
the lawgiver must not be imputed with the
intention to enact irrational, arbitrary or unjust
consequences’.
[10]
Analogous principles are applied in respect of the construction of
written contracts; courts approach deficiencies and ineptness
in
their wording to make them work rather than fail, and they sensibly
incline to giving the apparent intention of the contracting
parties
businesslike effect in preference to inappropriate adherence to
lexical semantics.
[11]
Subsidiary legislation falls to be construed to give effect to the
purposes and objects of the principal legislation from
which it
derives.
[12]
The same
contextually sensitive and purposive approach to interpretation is
indicated when construing an administrative notice
intended to give
effect to a legislative provision.
[11]
The
construction of the notice propounded on the applicant’s behalf
flies hard in the face of these tenets. It was nothing
short of
extraordinary in the circumstances to hear the applicant’s
counsel submit that the belated objection to the regional
court’s
jurisdiction had been raised because of ‘rule of law’
considerations. It hardly needs stating that
the rule of law
and patent irrationality do not make for good bedfellows. The
irrationality in the approach propounded on
the applicant’s
behalf in the current matter is compounded when it is considered that
the legal costs entailed in its fruitless
pursuit have already
exceeded the amount of the claim in issue, while the trial on the
merits has yet to take place.
[13]
[12]
There
is, in any event, another reason why the special plea and the
challenge to its dismissal have no merit. The objection
to the
court’s jurisdiction was raised only after
litis
contestatio
.
The nature of the claim was not outside the court’s material
jurisdiction. The claim was not of a type in respect
of which a
regional magistrates’ court cannot exercise jurisdiction even
with the consent of the parties; cf. s 46 of
the Magistrates’
Court Act. In
Purser
v
Sales
;
Purser
and Another v Sales and Another
[2000] ZASCA 135
;
2001 (3) SA 445
(SCA)
at
para 17-18, the Supreme Court of Appeal endorsed the observations of
Voet
[14]
that a litigant may
not, in general, raise a point of jurisdiction after
litis
contestatio
.
[15]
.
By failing to take the point before pleadings had closed, the
applicant was taken to have submitted to the court’s
jurisdiction.
[13]
It
remains to deal with the costs of the application. The
litigation at the instance of the applicant in the current matter
has
been so wholly unmeritorious as to border on the vexatious. It
has also unnecessarily delayed the trial of the real issue
between
the parties and, in consequence, impacted adversely on the
administration of justice and the second respondent’s
human
rights under s 34 of the Constitution. All of this, at the
instance of the state, is to be strongly deprecated.
[16]
That the second respondent, who was the only respondent who took an
active role in the application, is likely, at least to
some degree,
to be left out of pocket in consequence of the exceptionally
ill-advised course taken by the applicant only adds to
the
injustice. As a mark of the court’s disapproval, costs
against the applicant will be awarded on the attorney and
client
scale.
[14]
The application is dismissed with costs on
the attorney and client scale.
A.G. BINNS-WARD
Judge of the High
Court
TRAVERSO
DJP:
I
concur.
J.M.H.
TRAVERSO
Deputy Judge
President
[1]
There is no requirement in law that a litigant must sue in a lower
court if his claim falls within its monetary jurisdiction,
and the
implication to the contrary in the special plea was therefore bad in
law. Claims are often brought in the High
Court that might
have been instituted in the magistrates’ courts. The
appropriate means of discouraging the burdening
of higher courts
with claims that could have been instituted in lower courts is by
way of orders limiting the costs to those
that could have been
recovered in the lower court.
[2]
Section 83(b) of Act 32 of 1944 provides: ‘Subject to the
provisions of section 82, a party to any civil suit or proceeding
in
a court may appeal to the provincial or local division of the
Supreme Court having jurisdiction to hear the appeal, against-
…
.
(b)
any rule or order made in such suit or proceeding and having the
effect of a final judgment, including any order under Chapter IX
and
any order as to costs;…’.
[3]
See
Van Loggerenberg et al
Erasmus,
Superior Court Practice
at A1-71, at which
Ex parte
Kent
1907 TS 325
;
Freemantle
v McKenzie
1915 CPD 568
;
Karro
& Dansky v Van der Spuy
1919 CPD 293
;
Malherbe
v Britstown Municipality
1948 (1) SA 676
(C);
Nankan
v H Lewis & Co (Natal) Ltd
1959 (1) SA 157
(N);
Tuckers
Land and Development Corporation (Pty) Ltd v Perpellief
1978 (2) SA 11
(T);
Strydom
v Chiloane
[2007] ZAGPHC 234
;
2008 (2) SA 247
(T) at 249C–D are cited in support of the
proposition.
[4]
See
e.g.
Tecmed
Africa (Pty) Ltd v Minister of Health and Another
[2012]
ZASCA 64
;
[2012] 4 All SA 149
(SCA) at para 17.
[5]
Section
22 of Act 10 of 2013 provides:
Grounds
for review of proceedings of Magistrates' Court
(1)
The grounds upon which the proceedings of any Magistrates' Court may
be brought under review before a court of a Division
are-
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
(2)
This section does not affect the provisions of any other law
relating to the review of proceedings in Magistrates' Courts.
[6]
The applicant, misdirectedly, purported to bring the current review
in terms s 24 of the repealed Supreme Court Act.
[7]
Judicial review is a discretionary remedy that is ordinarily granted
only if the irregularity concerned is shown to be material.
Absent demonstrable prejudice to a party, an irregularity will lack
materiality.
[8]
Cf.
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) ([2012]
2 All SA 262)
at para 18-19.
[9]
cf
Majola
v Ibhayi City Council
1990 (3) SA 540
(E) at 542D–545A.
[10]
S
v Mhlungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC) at para 36 (per Mohamed J, citing
R
v Venter
1907 TS 910
at 914-15 and 921,
Hleka
v Johannesburg City Council
1949 (1) SA 842
(A) at 852;
R
v Sachs
1953 (1) SA 392
(A) at 399; and
Lister
v Incorporated Law Society, Natal
1969 (1) SA 431
(N) at 434).
[11]
Cf.
e.g.
Picardi
Hotels Ltd v Thekwini Properties (Pty) Ltd
[2008] ZASCA 128
;
2009 (1) SA 493
(SCA) at para 5 and
Lloyds
of London Underwriting Syndicates 969, 48, 1183 and 2183 v Skilya
Property Investments (Pty) Ltd
[2004]
1 All SA 386 (SCA) at para 14.
[12]
Cf.
South
African Reserve Bank v Khumalo
2010 (5) SA 449
(SCA) ([2011]
1 All SA 26)
at para 12.
[13]
On enquiry from the bench, the applicant’s counsel indicated
that the applicant had incurred costs in respect of the hearing
of
the special plea in the regional court in the amount of
approximately R30 000. It would be reasonable to assume
that the applicant’s costs in the review application would at
least equal that and that the second respondent would have
incurred
equivalent costs for which the applicant will be liable.
[14]
Commentarius
ad Pandectas
at 2.1.18-20. As Mpati AJA noted at para 17 of
Purser
,
‘
Voet
,
at 2.1.18, asserts that “once
litis
contestatio
has taken place the jurisdiction of him before whom the proceeding
was in this way started can no longer be declined by one of
the
litigants”. And further that an objection to jurisdiction
“must be put forward before
litis
contestatio
at the origin and among the very preliminaries of the suit”.
(
Gane's
translation.) It does not matter, says
Voet
at 2.1.19 (
Gane's
translation), whether or not
litis
contestatio
took place in error (of either party) the result is the same’.
[15]
Cf.
also
Zwelibanzi
Utilities (Pty) Ltd Adam Mission Services Centre v TP Electrical
Contractors CC
[2011] ZASCA 33
(25 March 2011).
[16]
See
s 7(2) of the Constitution.