Dusheiko v Milburn

• Jurisdiction: South Africa
• Judge: Beyers JA, Ogilvie Thompson JA, Rumpff JA, Williamson JA and Van Winsen AJA
• Judgment Date: 14 September 1964
• Citation: 1964 (4) SA 648 (A)
• Hearing Date: 31 August 1964
• Court: Appellate Division

Ogilvie Thompson, J.A.:

Appellant, a resident of Johannesburg, issued a summons in the magistrate's court for the district of Johannesburg against respondent - described in the summons as a 'femme sole and H property owner' of Port Elizabeth - for R652 damages allegedly sustained by appellant in consequence of breach by respondent of a contract of lease. In the circumstances summarised below, respondent ultimately successfully excepted to appellant's summons, and

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an appeal against that decision was dismissed by the Transvaal Provincial Division (vide 1964 (2) SA 329). Leave to appeal to this Court was refused by the Provincial Division, but was subsequently granted in terms of the proviso to sec. 21 (2) (a) of the Supreme Court Act, 59 of 1959. For greater clarity, I shall refer to appellant and A respondent as plaintiff and defendant respectively.

The contract of lease is averred in plaintiff's summons in the following terms:

'1.

During or about the month of January, 1963, the defendant acting through her duly authorised agents, Messrs. G. F. Kennedy & Company, agreed to lease to the plaintiff a certain house situate at 5, Elray Street, Raedene, Johannesburg, for a period of 18 months at a rental of R65 per month.'

B Para. 5 of the summons reads:

'5.

The whole cause of action arose within the jurisdiction of the magistrate's court of Johannesburg.'

Defendant requested particulars of the summons, inter alia, as follows:

'1. Ad para. 1 of the particulars to the summons.

(a)

Who is it alleged of the firm of Messrs. G. F. Kennedy and Co. acted on behalf of defendant?

(b)

Was the lease verbal or in writing?

C If in writing a copy is required. If verbal the terms and conditions of the lease are required.

4. Ad para. 5.

Full details are required of the facts on which the plaintiff relies in his allegation that the whole cause of action arose within the jurisdiction of the Magistrate's Court, Johannesburg.'

The reply, dated 21st June, 1963, to these requests was that the lease D was a verbal one; that 'Mr. Kennedy and/or Mrs. Lavery and/or other members of the firm G. F. Kennedy and Co.' had acted on behalf of defendant in the conclusion of the lease; that 'the said G. F. Kennedy and Co.' had acted on behalf of defendant in repudiating the contract; and that the material terms of the lease 'necessary for the defendant to E plead appear from the summons'. Plaintiff's reply to the particulars requested in relation to para. 5 of the summons was:

'4.

The lease was entered into at Johannesburg and the premises were situated in Johannesburg. Cancellation was effected at Johannesburg.'

By notice dated 19th July, 1963, defendant lodged an application to compel plaintiff to furnish 'further and better particulars'. These related mainly to the particulars of damage furnished in plaintiff's reply of the 21st June, 1963, but para. 2 of defendant's said notice of F the 19th July, 1963 read:

'2. Ad para. 4.

The defendant wishes to know whether in using the term 'entered into' the plaintiff intends to allege that both offer and acceptance were made at Johannesburg.'

This application for 'further and better particulars' was resisted on behalf of plaintiff and was dismissed with costs, but thereafter G defendant, having been granted leave so to do, filed the following exception, viz:

'Defendant hereby excepts to the plaintiff's summons on the grounds that it does not comply with the requirements of Rule 10 (8) (vi) of the Magistrates' Courts Act in that the plaintiff after being required to do so by the defendant in the manner prescribed in Rule 18 failed to set out all the particulars in support of its averment that the whole cause of action arose within the district of this honourable court.'

H Before this Court it was contended by counsel for appellant that what admittedly in reality constitutes a challenge by defendant of the jurisdiction of the magistrate's court for the district of Johannesburg (i) cannot competently be raised on exception; and that (ii) in any

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event, on the facts of this case, defendant's challenge is bad in law.

Rule 20 (2) of the Magistrates' Courts Act prescribes as 'the only exceptions that may be taken by a defendant', a list of five exceptions, none of which in terms relates to jurisdiction; and Rule 20 (3) states that 'any other defence shall be raised by means of plea in accordance A with the provisions of Rule 22'. The defence that the magistrate's court sued in has no jurisdiction - which could previously be raised by way of the now abolished procedure of objection: see Malherbe v Britstown Municipality, 1948 (1) SA 676 (C) at p. 678 - must, therefore, ordinarily be raised by a special plea. One of the exceptions permitted by Rule 20 (2) is, however, that 'the summons does not comply with the requirements of Rule 9 or 10' (vide Rule 20 (2) (iii)) and, B as appears from the terms of defendant's exception cited above, it is upon that provision that defendant relies. The first question for decision is whether, on the facts of this case, that reliance is warranted.

Sec. 28 (1) (d) of the Act provides that a magistrate's court shall have jurisdiction in respect of

'any person, whether or not he resides, carries on business or is C employed within the district, if the cause of action arose wholly within the district'.

Rule 10 (8) (vi) reads that:

'(vi)

Where the defendant is cited under the jurisdiction conferred upon the court by sec. 28 (1) (d) of the Act the summons shall contain an averment that the whole cause of action arose within the district but need set out no further particulars in support of such averment; provided, however, that the defendant may in manner prescribed in Rule 18 require the delivery of such particulars.'

D Rule 18 is, of course, the well-known and so often abused provision relating to the acquisition of

'such further information as is reasonably necessary to enable such party (i.e. the party requesting the information) to plead'.

It was argued by counsel for appellant that the proviso to Rule 10 (8) (vi) was enacted merely to preserve the right to ask for particulars E which otherwise might have been thought to be excluded by reason of the wording of the earlier portion of the Rule; and, further, that failure to supply particulars requested in terms of the proviso merely constitutes failure to comply with a notice and is not a...