Du Preez v Philip-King

• Jurisdiction: South Africa
• Judge: Vieyra AJ
• Judgment Date: 11 September 1962
• Citation: 1963 (1) SA 801 (W)
• Court: Witwatersrand Local Division

Vieyra, A.J.:

The plaintiff in this matter instituted proceedings for the recovery of damages which it is alleged he sustained consequent

Vieyra AJ

upon a collision which occurred at Bryanston, Johannesburg, between a motor-car held by the plaintiff in terms of certain hire-purchase agreement and a motor-car driven by the defendant. The summons was A issued on the 2nd March, 1962, and served on the defendant personally at an address within the area of jurisdiction of this Court. Appearance having been entered the defendant's attorneys wrote to the plaintiff's attorneys a letter on the 11th April, 1962, in the following terms:

'We take this opportunity of advising you that an appearance to defend was entered by us on behalf of the defendant of the 5th instant.

B Entirely without prejudice we request that you kindly let us have full details of the damages sustained by your client before further costs are incurred.'

Thereafter on the 7th May, 1962, the plaintiff filed and served his declaration. On the 9th May, 1962, a request for further particulars was served on behalf of the defendant as follows:

'Before pleading and in order to enable the defendant to plead, C defendant requires the following further particulars:

Ad para. 11.

Full and precise details are required showing how the sum of R530 (five hundred and thirty rand) is arrived at.'

The particulars requested were provided on the 15th May, 1962. On the D 1st June, 1962, the plea was served. This consisted of a special plea and of a plea to the merits, the latter being made dependent on the special plea not being upheld. This special plea raised the defence that the Court has no jurisdiction, because it is alleged that the defendant is neither domiciled nor resident in the Republic of South Africa, but is domiciled and resident in England. The plaintiff replicated to the defendant's special plea in the following terms:

(a)

E The summons was served upon the defendant personally at Johannesburg on the 3rd April, 1962.

(b)

On the 11th April, 1962, the defendant's attorneys wrote a letter to the plaintiff's attorneys and a copy of the said letter is hereunto annexed marked 'A'.

(c)

The said letter was not written in the course of negotiations for a settlement and was accordingly not properly marked 'without prejudice'.

(d)

On the 9th May, 1962, the defendant's attorneys filed a request F for further particulars to the plaintiff's declaration, the original of the said request being filed of record in the pleadings in the present matter.

(e)

On the 15th May, 1962, the plaintiff's attorneys furnished the defendant's attorneys with the particulars sought and the original of the said particulars is similarly filed of record.

(f)

In acting as aforesaid the defendant's attorneys were acting in the course and scope of their authority.

(g)

G In writing the said letter and requesting the said particulars, the defendant submitted to the jurisdiction of the Court..

At the hearing, the defendant's counsel having consented thereto, this replication was amended by the insertion of a new para. (e) bis reading.

'The defendant has pleaded to the merits of the plaintiff's claim.'

H I should add that the reference in para. (b) of the replication to annexure 'A' is a reference to the letter the material contents of which have been set out above.

Exception was taken to the replication to the defendant's special plea

'as being bad in law and disclosing no reply to the defendant's special plea'.

It is this exception which is now before the Court for decision.

The basis of the exception is that assuming the correctness of the allegations in the replication to the special plea such allegations are not sufficient in law to justify the inference that the defendant has submitted to the jurisdiction of this Court.

Vieyra AJ

It is clear, as stated by ROPER, A.J., in Centner N.O v Griffin N.O., 1960 (4) SA 798 (W) at p. 799 C, that

'in our modern practice a submission to the jurisdiction by a peregrinus is sufficient to give the Court jurisdiction without an attachment of property ad fundandam jurisdictionem.'.

A Such a submission may be in consequence of an agreement between the parties to that effect: Voet, 2.1.18. But it may also arise consequent upon unilateral conduct following upon citation...