Mabuda v Minister of Co-Operation and Development

• Jurisdiction: South Africa
• Judge: Pickard J
• Judgment Date: 19 October 1983
• Citation: 1984 (2) SA 49 (CkS)
• Hearing Date: 22 August 1983
• Court: Ciskei Supreme Court

Pickard J:

This is a trial action wherein the plaintiff, a resident of the Republic of Ciskei, domiciled in the area of jurisdiction of this Court, claims damages from the defendant in an amount of R8 682 arising from personal injuries sustained in a collision between himself (a pedestrian at the time) and a motor vehicle owned by the defendant and, at the time, being B driven by an employee of the defendant, acting within the course and scope of his employment.

The defendant is cited herein in his official capacity in terms of the provisions of s 2 of the State Liability Act 20 of 1957 as representing the Government of South Africa or South African State. The collision occurred on 26 October 1980 at Mdantsane C within the area of jurisdiction of this Court and the parties are at idem that the cause of action arose within the said area. It is further common cause that at no stage was any attachment or application made to attach property of the defendant in order to either found or confirm jurisdiction of this Court.

In terms of the plaintiff's particulars of claim it is alleged that:

"9.

D At the date of the said collision, the said panel van was:

(a)

duly registered within the Republic of South Africa;

(b)

not insured under the provisions of ss 12, 13 and 14 of the said Act, the defendant being at the said date the holder of a certificate of exemption issued in terms of s 29 of the said Act.

10.

E By virtue of the provisions of s 3 of the said Act, the defendant is liable mutatis mutandis in accordance with the provisions of ss 21 - 26 (inclusive) thereof to compensate the plaintiff for his said loss and damage caused by or arising out of the driving of the said panel van."

F Defendant has filed a special plea to plaintiff's claim which reads as follows:

"1.

Neither plaintiff nor defendant is resident or domiciled within the area of jurisdiction of this honourable Court.

2.

Plaintiff has not made any attachment of defendant's person or property to found or confirm jurisdiction.

3.

G In the premises this honourable Court has no jurisdiction to try these proceedings, and plaintiff's claims are accordingly unenforceable.

Wherefore defendant prays that plaintiff's claims be dismissed and that judgment be given in defendant's favour with costs."

H When the matter came before me, it was agreed by the parties that I be requested to decide the special plea in limine before any evidence is tendered in order to resolve at the outset the question as to whether or not this Court has jurisdiction to adjudicate upon this dispute in the absence of an attachment to found or confirm jurisdiction. Argument was addressed to me by counsel for both parties on this issue only, at which stage it had become common cause that plaintiff was at all relevant times domiciled within Ciskei.

Pickard J

In order to decide the issue it is necessary to briefly deal with the history of this Court and the Republic of Ciskei as an independent state.

When this area became a "self-governing territory" on its path to independence, the State President of the Republic of South A Africa, by virtue of the powers vested in him by s 34 of the National States Constitution Act 21 of 1971, established, with effect from 1 October 1981, "a High Court of Ciskei" for this area "to replace any Provincial Division of the Supreme Court of South Africa... which had jurisdiction in the said area". B Vide Proc R151 of 1981 published on 21 August 1981.

Subsequently, on 4 December 1981, Ciskei became an independent state and the Republic of Ciskei Constitution Act became operative and, in terms of s 53 thereof, this Court was established.

C Section 74 thereof provides as follows:

"74 (1)

Notwithstanding the provisions of s 82 (1), the High Court established under s 34 of the Black States Constitution Act 21 of 1971, shall, as constituted immediately prior to the commencement of this constitution, be deemed to be the Supreme Court of Ciskei and to have been established and constituted as such by s 53."

Subsection (1) of s 53 aforementioned, reads as follows:

"53 (1)

There is hereby established a Supreme Court of Ciskei D in which shall be vested the judicial power of the Republic and which shall consist of the Chief Justice and such number of other Judges as may be determined by the President from time to time."

Furthermore, s 36 (1) of Proc 151 supra provides that:

"36 (1)

Any reference to the Supreme Court or a Division of that Court or an appeal Court for commissioners' E courts contained in any law in force in the area shall, subject to the provisions of these regulations, be construed as a reference to the Court."

Accordingly it seems clear that prior to the date of independence the jurisdiction of the High Court of Ciskei (being tantamount to a Provincial Division of the Supreme Court of South Africa) was to be determined on exactly the same basis F as that of any Provincial Division of South Africa.

It follows therefore that in view of the provisions of s 1 of the State Liability Act 20 of 1957 (RSA) the High Court of Ciskei had jurisdiction to hear and adjudicate upon actions of the nature of this action against the Government of the G Republic of South Africa.

Section 1 of Act 20 of 1957 reads...