Marais v Munro & Co Ltd

• Jurisdiction: South Africa
• Judge: van der Riet J
• Judgment Date: 18 July 1957
• Hearing Date: 11 July 1957
• Court: Eastern Districts Local Division

G Van der Riet, J.:

This is an application to set aside a summons on notice of motion under Rule of Court 33, or alternatively under the Court's inherent jurisdiction, on the ground that ex facie the summons it does not appear that this Court has jurisdiction in the cause.

The summons commands A. Munro & Co. Ltd., a duly incorporated company, carrying on business with its registered office at Cyprus House, 6 Plein H Street, Johannesburg, to answer the claim of T. J. E. Marais, a farmer, of the farm 'Klipfontein' in the District of Alexandria, Cape Province. In terms of this summons the defendant is therefore a peregrinus, while the plaintiff resides within the jurisdiction of this Court.

The summons claims: -

Van der Riet J

1.

An order that defendant delivers to plaintiff forthwith: -

(a)

the sub-divisional diagrams of the under-mentioned property sold by plaintiff to defendant;

(b)

an acceptable guarantee to the plaintiff for: -

(i)

Payment by defendant to plaintiff of the sum of £19,125 being the purchase price of portion of: -

1.

A 'n Gedeelte van deel van die plaas Klipfontein. Groot 910 morge 466 vierkant roede.

2.

Die restant van Berthaville. Groot soos per restant 109.512 morge.

3.

Die restant van gedeelte van die plaas Klipfontein. Groot soos per restant 494.5686 morge,

sold by plaintiff to defendant in terms of a written deed of B sale signed by the plaintiff on the 15th November 1954 and by the defendant on the 7th January 1955;

(ii)

Payment by defendant of interest on the said sum of £19,125 at the rate of 51/2% per annum from the 1st February 1957 to date of payment of the said sum of £19,125 in terms of the said written deed of sale;

both payable as against transfer of the said property to defendant or C alternatively and at the option of defendant payment of the said sum of £19,125 plus the said interest against which plaintiff tenders to transfer the said property to defendant.

Alternatively

2. (i)

Cancellation of the said written deed of sale;

(ii)

Payment by defendant to plaintiff of damages in the sum of £8,500 for breach of contract;

3.

Alternative relief; and

4.

Costs of suit.

D Upon the terms of this summons the defendant, now applicant, requests that the summons be set aside.

Mr. Cloete, for the applicant, refers to the case of Girdwood v Theron, 1913 CPD 859, in which GARDINER, A.J., as he then was discussed the requisites of a summons in respect of jurisdiction, and came to the E conclusion that a summons directed against a person resident outside the jurisdiction of the Court should state the ground on which the Court has jurisdiction.

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