Lochrenberg v Sululu

• Jurisdiction: South Africa
• Judge: De Villiers JP and Jennett J
• Judgment Date: 01 March 1960
• Citation: 1960 (2) SA 502 (E)
• Hearing Date: 01 March 1960
• Court: Eastern Cape Division

De Villiers, J.P.:

It is not necessary to hear Mr. Kannemeyer. The appellant, who was the plaintiff in the court below, instituted action against the respondent for the recovery of two amounts, namely, £170 together with interest and £130 4s. also together with interest

De Villiers JP

at the legal rate. The claim is based on an alleged sale by the plaintiff to the defendant of a motor-car for the sum of £370 4s. It is alleged in the summons that the car has been delivered to the defendant and that the plaintiff has performed all his obligations under the contract of sale. The purchase price of £370 4s. had to be paid in A monthly instalments of £20 each and a final instalment of £30 4s., the first instalment being payable on the 30th of September, 1956, and thereafter on the last day of each succeeding month. The summons then proceeds:

'By the 31st day of August 1957 defendant should have paid the sum of £240 to plaintiff but to date defendant has paid an amount of only £70 in respect of the instalments due during the period 30th September 1956 B to 31st August 1957, and is in arrear with his instalments for that period to the extent of £170 . . .'.

Then there is a claim for £170. Then there is a second claim which alleges a failure on the part of the defendant to pay instalments due on the last days of the months of September 1957 to February 1958 amounting C in all to the sum of £130 4s., and there is a claim for that amount. The claim for interest referred to in the summons does not appear to be repeated in the prayers to the summons.

To this summons the defendant filed, inter alia, a special plea in bar to the effect that there had been an irregular splitting of claims with the sole object of bringing the amount within the jurisdiction of the D magistrate's court, that the claim is outside his jurisdiction, and that the plaintiff cannot bring it within the jurisdiction by arbitrarily splitting it up into two claims each of which by itself is within the jurisdiction.

Now, as Mr. Traub has pointed out, it is difficult to see what is the E significance of the date 31st August, 1957. The plaintiff could very well have set out his cause of action and set out that the purchase price was payable in instalments, and that as each and every last day of the month arrived the defendant was in default, and he could have claimed for the whole amount to which these monthly instalments totalled. It is also perfectly clear that...