MILLS v STARWELL FINANCE (PTY) LTD 1981 (3) SA 84 (N)

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MILLS v STARWELL FINANCE (PTY) LTD 1981 (3) SA 84 (N)

1981 (3) SA p84

Citation

1981 (3) SA 84 (N) Natal Provincial Division Shearer J and Thirion J March 24, 1980 August 14, 1980 Link to Case Annotations

Court

Judge

Heard

Judgment

Annotations

Flynote : Sleutelwoorde
Jurisdiction - When court before which defendant is summoned is a court of competent jurisdiction Must be so at time summons served.
F

Magistrate's court - Civil proceedings - Jurisdiction - Over persons - Act 32 of 1944 s 28 (1) (a) - If employment within jurisdiction relied on then defendant must be in such employment at time summons actually served, not merely when issued. G

Headnote : Kopnota The time of service of summons is the time as at which to determine whether the court before which the defendant is summoned is a court of competent jurisdiction. The date of service of summons (and not the date of issue thereof) is therefore the date when the incidence of jurisdiction is determined in H terms of s 28 (1) (a) of Act 32 of 1944, as amended, in respect of whether the defendant was employed within the jurisdiction. Consequently, even though he may have been employed within the jurisdiction when summons was issued, the court has no jurisdiction over him in terms of the sub-section if he was not still employed there when summons was served. Case Information Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment. K Booyens for the appellant. P Levinsohn for the respondent.
1981 (3) SA p85

THIRION J Cur adv vult. Postea (August 14). Judgment THIRION J: The appellant appeals against the dismissal by the magistrate for the district of Pinetown of appellant's special plea to the jurisdiction of that court in respect of appellant's person. By a summons issued out of the magistrate's court for the district of Pinetown on 21 February 1978 the respondent instituted an action in that B court against the appellant for the recovery of a sum of money. The summons was served on 24 February 1978. In answer to the respondent's claim appellant filed a special plea denying that the Pinetown magistrate's court had jurisdiction in terms of s 28 of the Magistrates' Courts Act 32 of 1944 in respect of the appellant. The only ground on which the respondent relied for its claim that the Pinetown magistrate's C court had jurisdiction in respect of the appellant is that stated in s 28 (1) (a) of
A

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Act 32 of 1944, namely the appellant's employment within the court's area of jurisdiction. It seems to have been common cause in the D court below that the appellant had been employed within the district of Pinetown up to and including 21 February 1978, ie the date when the summons was issued, but that on that very date his employment within that district had terminated and that he has not been employed in that district since that date. Therefore as at the date of service of the summons the appellant was no longer employed within the Pinetown district. On the facts as stated above the parties submitted in terms of Rule 29 E (5) of the Magistrates' Courts Rules, for the court's adjudication, a question of law which they framed as follows:
"Is the date of issue of the summons or the date of service thereof the date when the incidence of jurisdiction is determined in terms of s 28 (1) (a) of Act 32 of 1944, as amended, in respect of whether the F defendant is employed within the jurisdiction?"

The magistrate answered the point of law in favour of the respondent and consequently dismissed the special plea with costs. It is against that decision that the appellant now appeals.
G Section

28 (1) (a) of Act 32 of 1944 in so far as it is relevant to the present enquiry reads:

"(T)he persons in respect of whom the court shall have jurisdiction, shall be the following and no other: (a) Any person who resides, carries on business or is employed within the district."

It is trite law that a court, once it is seized with jurisdiction, retains H that jurisdiction until the suit is concluded. Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd1969 (2) SA 295 (A) at 301. The question which falls to be decided in this appeal is what the proper time or stage of the proceedings is, as at which the question whether the court has jurisdiction under s 28 of Act 32 of 1944 is to be determined. It is frequently stated that an action is commenced with the issue of summons. See Marine and Trade Insurance Co Ltd v Workmen's Compensation Commissioner1972 (1) SA 535 (N) at 539.
1981 (3) SA p86

THIRION J Then again it is said with reference to the time for determining jurisdiction of the court that it is the time of the "commencement of the action". Thus Pollak says in SA Law of Jurisdiction at 193:
A "The crucial time for determining the jurisdiction of a court to entertain an action or other legal proceeding is, as has been pointed out, the time of the commencement of the action or proceeding."

It would however be fallacious to conclude merely from these pronouncements that the time for determining the court's jurisdiction is the time of the issue of the summons, because the expression B "commencement of the proceedings" when used in this wide sense does not necessarily have reference to the stage of the issue of summons. That Pollak does not use it in this sense is clear from the fact that, despite what he has said in the passage referred to above, he states at 38 of the same work on jurisdiction:
"It is submitted that an action commences when the summons has been issued and duly served"
C To my mind the enquiry must therefore proceed along different lines. At the outset it must be pointed out that, both in the Supreme Court and in the magistrate's court, proceedings are frequently instituted not by way of a summons but by way of application on notice to any other person D affected by the order which is sought in the application In the case of proceedings commenced on notice of motion there is no provision for the issuing of the notice of motion or application by the Registrar in the case of proceedings in the Supreme Court, or by the clerk of the court in the case of proceedings in the magistrate's court. Frequently the notice E of motion and the supporting affidavits are served on the interested parties before they are filed with the Registrar, or clerk of the court, as the case may be. For the practice in this regard reference may be made to Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk1972 (1) SA 773 (A) and particularly at 780 where RUMPFF JA F says: "Hoewel 'n dagvaarding eers deur die Griffier uitgereik word voordat dit beteken word (Rel 17 (1) en (3)), word dit nie in die Rels vereis dat 'n kennisgewing van mosie deur die Griffier uitgereik moet word of by hom ingelewer moet word voordat dit aan die respondent beteken kan word nie. Dit blyk ook uit die stukke in die onderhawige geval dat, in die praktyk van die Afdeling vanwaar hierdie appl kom, die kennisgewing van mosie eers beteken word en daarna by die Griffier ingelewer word. Daar G is ook geen vasgestelde tyd waarin die kennisgewing van mosie by die Griffier ingelewer moet word na betekening daarvan aan die respondent nie. Die doel van 'n dagvaarding en kennisgewing van mosie is natuurlik om die verweerder of respondent by 'n geding te betrek, en hom betref, word hy eers dan betrek wanneer 'n betekening van die dagvaarding of kennisgewing H van mosie plaasgevind het. So word in Marine and Trade Insurance Co Ltd v Reddinger 1966 (2) SA 407 deur hierdie Hof te 413 verklaar:

'Although an action is commenced when the summons is issued the defendant is not involved in litigation until service has been effected, because it is only at that stage that a formal claim is made upon him.'"

Therefore, whereas in the case of a summons issued out of the office of the Registrar or clerk of

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the court there is a formal act marking the issue, there is no such formal act involving the Registrar or clerk in the case of an application. Furthermore, whereas in the case of a summons the issue of the summons will always precede the service thereof, in the case of an application service will usually precede the
1981 (3) SA p87

THIRION J filing of the paper with the Registrar or clerk. The jurisdictional provisions of s 28 of Act 32 of 1944 apply equally to applications and actions; a fact which is relevant to the present enquiry. In the present case the enquiry must of course be directed to A ascertaining the intention of the Legislature in enacting s 28 of Act 32 of 1944, as to the time as at which the jurisdiction of that court is to be determined. I can find no clear indication in s 28 itself, or in any other provision of the Act, of the Legislature's intention in this regard. B The magistrate placed reliance on the provisions of s 115 (2) of the Act as being indicative of the Legislature's intention. I cannot agree. Section 115 is a mere transitional provision and ss (2) thereof expressly confined its operation to that section only. I therefore turn to the common law, for it is a sound rule to construe a statute in conformity with the common law, save where and insofar as the statute itself evidences a plain intention on the part of the Legislature to alter the C common law. In the latter case the presumption is that the Legislature did not intend to modify the common law to any greater extent than is provided in express terms or is a necessary inference from the provisions of the enactment. Johannesburg Municipality v Cohen's Trustees 1909 TS 811 at 818 and 823; Van Heerden v Muir1955 (2) SA 376 (A). Especially would D this be so in the case of a provision such as s 28 which in certain respects restates the common law and in other respects plainly alters the common law relating to jurisdiction. Beedle & Co v Bowley (1895) 12 SC 401. Merula in Manier van Procederen 1741 ed at 4.24.11 enumerates the effects of service of a summons rather cryptically as follows:
E

"(1) Citatie gedaan zynde opereert praeventie.

(2) Perpetueert jurisdictie. (3) Interrumpeert praescriptionem longissimi temporis . (4) Induceerd litispendentie.""Citatie" is defined by the author at 4.24.2:
F "Citatie of daging is anders niet, dan een judicieel werk, door welk de schuldenaar of beklaagde, door bevel van den Rechter, geroepen word, om te compareren; en geprepareerd zynde, den aanlegger of klager op zynen eisch antwoord te geven, en op 't zelve wat recht is te hooren wysen."

Voet 2.4.1 defines a summons to law (in jus vocatio) as follows:

"Summons to law rests on the highest equity. Its object is to prevent a person's being condemned unheard. To summon to law is 'to call an G opponent before one who has control of jurisdiction in order to test his right'."

(Gane's trans.) It is clear that both Merula and Voet in their definitions of a summons have in mind a summons in the Superior Court of Holland where a plaintiff H wishing to obtain the issue of a summons had to present a petition to the Judge giving a short account of the matter in dispute and ask for and obtain from the Judge a written order by which permission was granted to him to call on his opponent to appear. This order or "summons to law", if one was issued, was then served on the defendant. Voet 2.4.13. In the inferior courts the summons was obtained much more informally. I shall return later to the importance which was attached to the service of a summons but for the moment it is enough to point out that the "citatie" referred to by Merula is a summons and that the phrase "citatie gedaan zynde" means "sum1981 (3) SA p88

THIRION J mons having been served". Kersteman Hollandsch Rechtsgeleert Woordeboek A sv "citatie". It is also clear from the use of the word "gedaan" by Van der Linden in his Judicieele Practijcq 2.2.5 with reference to a summons that it means "served". When Merula says that service of the summons perpetuates jurisdiction he obviously has in mind that jurisdiction is fixed as from that date, and not before, in accordance with the rule that jurisdiction once established is retained to the end of the action. Huber in Heedendaegse Rechtsgeleertheyt (1742) 5.1.30 is to the same effect as Merula although B he states the position in somewhat greater detail when he says:

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"30. The effects of citation duly made (de effecten van citatien wel gedaan)are according to law as follows: (1) They have a preventive effect on a person who is subject to more than one jurisdiction, so as to oblige him to appear where he is first C summoned. (2) They make the jurisdiction permanent, in case the person summoned gets after receiving notice into another jurisdiction, whether full or of first instance. For example, DS had got CRH summoned on 29 September 1681, when he was still a magistrate at Sneek, and so subject in the first instance to the jurisdiction of the court. The case was returnable on 17 and 18 January 1682; and at New Year he had ceased to be magistrate; he took a declinatory exception, but it was rejected on 16 February 1682. (3) In action in rem they make the property litigious, that is, not saleable, as being the subject of a suit.
D (4) All prescriptions and limitations are interrupted by summons, provided that it has been brought into court, but by no means when nothing has ensued on a bare summons, which the plaintiff on the return day has allowed to lapse; as was held on 27 October 1724; Anne Hilles , appellant; Gertie Jans, respondent."

(Gane's trans.) I could find no passage in Wassenaer Maniere van Procederen which is directly in point save that at 1.1.10 the author concludes:
E

"So word dan een Rechter competent door het bedingen en litis-contesteren, maar niet door citatie, hoewel dat iemand voor zyn competenten Rechter geciteert zynde, en naderhand zyn domicilie verander, niet mag van de F eerste afwyken als zynde geprevenieert." Once again it is significant that the author states the prohibition against a change from a competent Judge as conditional on the defendant's having been cited before that Judge, ie that the summons has been served.

Voet deals with the question in 5.1.64. After referring to the general rule, actor sequitur forum rei, he says:
G "It is however enough for the defendant to find his competent forum at the outset of the case (initio litis ) in the place where he is sued (in eo loco in quo convenitur). A judicial proceeding ought to receive its finish at the spot where once it was taken up (ubi acceptum est semel judicium) so that the defendant cannot claim the removal of the suit to another Judge because perchance the reason, which had made him amenable H to the original Judge as a competent Judge, starts to cease applying during the pendency of the suit (lite pendente) as when he changes his domicile, or enlists in the army or is discharged from it, or a ward or a widow ceases to be such through marriage or majority."

(Gane's trans.) Reference may also be made to Voet 2.1.46. The above passage raises the question as to what Voet has in mind when using expressions such as "at the outset of the case" and "where once the judicial proceeding was taken up". Having regard to the importance which Voet attaches to the summons as a means of calling the defendant before the court, I think he must have in mind the stage of
1981 (3) SA p89

THIRION J service and not the issue of the summons which was ordinarily obtained on petition to the Judge in the case of a Superior Court and in an informal A manner in the inferior courts. There are other passages from Voet which support this conclusion. At 2.1.23 Voet says that a plaintiff, after a summons to law has been served, but issue not yet having been joined by the defendant (post factam in jus vocationem, lite necdum per reum contestata) may not change his mind and forsake the Judge whom he first B approached and summon the defendant before another Judge. Voet denies plaintiff the right to change his mind only after summons has been served. Having regard to the importance which such of the authorities as I have been able to consult attach to the service of the summons and to the right of a defendant to be proceeded against in the court of his "daily Judge" C and the rule that the plaintiff must follow the defendant to his forum, I am of the view that they regard service of the summons as the time as at which jurisdiction over the person of the defendant is determined. Turning now to the decisions in our Courts, I have, with the exception of one case to which I shall refer presently, not been able to find any D decided case in which the Court had to decide whether, at common law, the stage as at which to determine the Court's jurisdiction over a defendant is the stage of service of the summons or issue of the summons. In a number of decisions however it was stated obiter or assumed that the relevant date is the date of service of the summons. See Ex parte E Minister of Native Affairs 1941 AD 53 at 59; Blom v Swart (1894) 8 EDC 105; Buck v Parker 1908 TS 1100; Langerman v Alport 1911 CPD 376; Hogsett v Buys 1913 CPD 200; Becker v Forster 1913 CPD 962. But see R v Bradshaw 1925 CPD 53; Nicholl NO v SAR & H 1917 WLD 95. The one decision which I could find which bears directly on the question here in issue is Glen v F Glen 1971 (3) SA 238 (R). In that case, which was an action for divorce, it was decided that the Court within the jurisdiction of which the parties were domiciled at the time of the issue of summons was the Court which had jurisdiction to entertain the action. (The judgment in Glen's case was criticised by Ellison Kahn in an article in

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1971 Annual Survey of SA Law at 457.) The reasoning which led the Court in Glen's case to the conclusion stated above does not appeal to me as being convincing. The G learned Judge commences his reasoning by saying that it is a well established rule that the Court which has jurisdiction to entertain an action for divorce is the Court within the jurisdiction of which the parties are domiciled at the time of the institution of the action. He then invokes the decision in Nxumalo v Minister of Justice and Others1961 (3) SA 663 (W) H and Marine and Trade Insurance Co Ltd v Reddinger1966 (2) SA 407 (A) as authority for the "broad proposition" that an action is commenced when the summons is issued and he concludes that since it is well established that the Court which has jurisdiction in a divorce action is the Court of domicile of the parties when the action is commenced - therefore jurisdiction has to be determined as at the date of issue of the summons. I cannot accept this reasoning. It proceeds from the premise that the Court's jurisdiction is determined as at the
1981 (3) SA p90

THIRION J date of institution of the action. It is often said that jurisdiction is determined as at the date of institution of the action but this still leaves undecided when, for the purposes of jurisdiction, an action is A regarded as having been instituted. The learned Judge found the answer in Nxumalo's and Reddinger's cases both of which were cases dealing with the interpretation of the term "commencement of the action" in statutory provisions. In deciding the meaning of the term "institution of an B action" in relation to jurisdiction (see Voet 5.1.64 supra) one is not dealing with a statutory provision but with a condensed statement of a rule of common law. In any event I do not think that the reliance placed by the learned Judge on Reddinger's case was justified. What was decided in Reddinger's case was that the mischief aimed at in s 11 bis (2) of Act 29 of 1942 is the service of a summons prior to the expiration of the C period of grace provided for in the section; that, though the section renders null and void the service of a summons before the expiration of the period of grace, such invalid service does not have the further effect of invalidating the issue of the summons itself, and that the issue of the summons remains valid despite the fact that after issue a premature D attempt was made to serve the summons. With Reddinger's case should be compared the case of Santam Insurance Co Ltd v Vilakasi1967 (1) SA 246 (A) in which it was held that it is not the issue of a summons but its service which involves the defendant in litigation and that therefore a plaintiff may validly have a summons issued but cannot have it validly served before the period of 60 days provided for in s 11 bis (2) of Act 29 E of 1942 has expired. The reasoning in these two cases thus supports the consideration put forward by Ellison Kahn at the conclusion of the article mentioned above in favour of the view that service of the summons is the more appropriate time as at which to test the jurisdictional competency of the Court. He said:
F "Service establishes the jurisdictional criterion, the connecting factor - the defendant's residence or domicile or submission to jurisdiction, the situation or attachment of the property or whatever it be - at a time when the disputants are actually locked together in the litigious process. Mere issue of the summons is effected before this and, it is felt, is a less appropriate time at which to test the competency of the tribunal."

The summons, as we have seen from Voet 2.4.1 and Merula 4.24.2, serves G the dual purpose of preventing a defendant from being condemned unheard and of calling the defendant before a competent court to answer the plaintiff's claim. It is the service which gives efficacy to the summons. Against a "qualyk en t'onrechte geciteerd zynde" defendant the service is ineffectual. Merula 4.24.11.6. The service of the summons locks the H parties in the process of litigation and calls on the defendant to answer in a particular court the plaintiff's claim against him. In my judgment the time of service is the time as at which to determine whether the court before which the defendant is summoned is a court of competent jurisdiction. The appeal is allowed with costs. The magistrate's judgment is set aside and in its place is substituted the following order: The special plea is upheld and plaintiff's claim is dismissed with costs. SHEARER J concurred.
1981 (3) SA p91

Appellant's Attorneys: James, Becker & Power. Respondent's Attorneys: Lesley Weinberg & Co.

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2005 Juta and Company, Ltd.

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