African Guarantee and Indemnity Co Ltd v Van Schalkwyk and Others

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Reynolds JA, De Villiers JA, Brink JA and Hall JA
• Judgment Date: 15 November 1955
• Citation: 1956 (1) SA 326 (A)
• Hearing Date: 15 November 1955
• Court: Appellate Division

Centlivres, C.J.:

A summons was issued by the respondents against the applicant in the Durban and Coast Local Division. The return of service, made by the Deputy Sheriff, reads as follows:

C 'I certify that on this 22nd day of March, 1955, I served a copy of this summons upon the within-named The African Guarantee and Indemnity Company Limited, by handing in same at their place of business viz.: African Life Buildings, West Street, Durban, to the person I found in charge there 'R. B. Singleton': (Chief Clerk), to whom I explained the nature and exigency thereof.

I further certify that the said Mr. R. B. Singleton informed me that the defendant's Durban office was only a branch office and that the defendant's head office was at Johannesburg. He further informed me that D the Durban branch office had no authority to accept a copy of the summons in this matter.'

On March 25th, 1955, the applicant granted a power of attorney to solicitors in Durban

'to be our lawful attorney . . . to defend the action'

instituted by the respondents

'and particularly to take exception or objection to the service of the E summons and to make such application as may be requisite to set aside such service.'

Thereafter the applicant lodged an application with the Local Division for an order setting aside the service of the summons. Immediately after the lodging of the application, the applicant's attorneys entered appearance to defend the action

'without prejudice to our client's rights to prosecute the application F for setting aside the service of the summons.'

It was common cause throughout the proceedings that the Local Division had jurisdiction in respect of the claim made by the respondents, in that the declaration of insurance, issued by the applicant in terms of sec. 3 (2) of the Motor Vehicle Insurance Act, 29 of 1942, and on which G the claim was made, was issued in Durban and the accident which gave rise to the claim occured within the area of jurisdiction of the Local Division. The sole contention before that Division was that the summons should have been served upon the applicant's head office in Johannesburg and not upon the applicant's branch office in Durban. The Local Division did not uphold this contention and dismissed the application with costs. It granted leave to appeal.

H The appeal was heard by the Natal Provincial Division and was dismissed with costs. [*] In refusing an application for leave to appeal, which...