Mills v Starwell Finance (Pty) Ltd

JurisdictionSouth Africa
JudgeShearer J and Thirion J
Judgment Date14 August 1980
Citation1981 (3) SA 84 (N)
Hearing Date24 March 1980
CourtNatal Provincial Division

Thirion, J.:

The appellant appeals against the dismissal by the magistrate for the district of Pinetown of appellant's special plea to the jurisdiction of that court in respect of appellant's person.

By a summons issued out of the magistrate's court for the district of Pinetown on 21 February 1978 the respondent instituted an action in that B court against the appellant for the recovery of a sum of money. The summons was served on 24 February 1978. In answer to the respondent's claim appellant filed a special plea denying that the Pinetown magistrate's court had jurisdiction in terms of s 28 of the Magistrates' Courts Act 32 of 1944 in respect of the appellant. The only ground on which the respondent relied for its claim that the Pinetown magistrate's C court had jurisdiction in respect of the appellant is that stated in s 28 (1) (a) of Act 32 of 1944, namely the appellant's employment within the court's area of jurisdiction. It seems to have been common cause in the D court below that the appellant had been employed within the district of Pinetown up to and including 21 February 1978, ie the date when the summons was issued, but that on that very date his employment within that district had terminated and that he has not been employed in that district since that date. Therefore as at the date of service of the summons the appellant was no longer employed within the Pinetown district.

On the facts as stated above the parties submitted in terms of Rule 29 E (5) of the Magistrates' Courts Rules, for the court's adjudication, a question of law which they framed as follows:

"Is the date of issue of the summons or the date of service thereof the date when the incidence of jurisdiction is determined in terms of s 28 (1) (a) of Act 32 of 1944, as amended, in respect of whether the F defendant is employed within the jurisdiction?"

The magistrate answered the point of law in favour of the respondent and consequently dismissed the special plea with costs. It is against that decision that the appellant now appeals.

G Section 28 (1) (a) of Act 32 of 1944 in so far as it is relevant to the present enquiry reads:

"(T)he persons in respect of whom the court shall have jurisdiction, shall be the following and no other:

(a)

Any person who resides, carries on business or is employed within the district."

It is trite law that a court, once it is seized with jurisdiction, retains H that jurisdiction until the suit is concluded. Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) at 301.

The question which falls to be decided in this appeal is what the proper time or stage of the proceedings is, as at which the question whether the court has jurisdiction under s 28 of Act 32 of 1944 is to be determined. It is frequently stated that an action is commenced with the issue of summons. See Marine and Trade Insurance Co Ltd v Workmen's Compensation Commissioner 1972 (1) SA 535 (N) at 539.

Thirion J

Then again it is said with reference to the time for determining jurisdiction of the court that it is the time of the "commencement of the action". Thus Pollak says in SA Law of Jurisdiction at 193:

A "The crucial time for determining the jurisdiction of a court to entertain an action or other legal proceeding is, as has been pointed out, the time of the commencement of the action or proceeding."

It would however be fallacious to conclude merely from these pronouncements that the time for determining the court's jurisdiction is the time of the issue of the summons, because the expression B "commencement of the proceedings" when used in this wide sense does not necessarily have reference to the stage of the issue of summons. That Pollak does not use it in this sense is clear from the fact that, despite what he has said in the passage referred to above, he states at 38 of the same work on jurisdiction:

"It is submitted that an action commences when the summons has been issued and duly served"

C To my mind the enquiry must therefore proceed along different lines. At the outset it must be pointed out that, both in the Supreme Court and in the magistrate's court, proceedings are frequently instituted not by way of a summons but by way of application on notice to any other person D affected by the order which is sought in the application In the case of proceedings commenced on notice of motion there is no provision for the issuing of the notice of motion or application by the Registrar in the case of proceedings in the Supreme Court, or by the clerk of the court in the case of proceedings in the magistrate's court. Frequently the notice E of motion and the supporting affidavits are served on the interested parties before they are filed with the Registrar, or clerk of the court, as the case may be. For the practice in this regard reference may be made to Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) and particularly at 780 where RUMPFF JA F says:

"Hoewel 'n dagvaarding eers deur die Griffier uitgereik word voordat dit beteken word (Reël 17 (1) en (3)), word dit nie in die Reëls vereis dat 'n kennisgewing van mosie deur die Griffier uitgereik moet word of by hom ingelewer moet word voordat dit aan die respondent beteken kan word nie. Dit blyk ook uit die stukke in die onderhawige geval dat, in die praktyk van die Afdeling vanwaar hierdie appèl kom, die kennisgewing van mosie eers beteken word en daarna by die Griffier ingelewer word. Daar G is ook...

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18 practice notes
  • Nedbank Ltd and Others v National Credit Regulator and Another
    • South Africa
    • Invalid date
    ...referred to Meyer v Catwalk Investments 354 (Pty) Ltd en Andere 2004 (6) SA 107 (T): B referred to Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N): dictum at 87B – D Minister of the Interior and Another v Harris and Others 1952 (4) SA 769 (A): referred to Naidoo v Absa Bank Ltd 2010 (......
  • MV v CV
    • South Africa
    • Invalid date
    ...Others v Jamieson and Others 1996 (4) SA 348 (A) ([1996] 3 All SA 669; [1996] ZASCA 58): referred to Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N): dictum at 87B applied Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) ([2002] 4 All SA 384): referred to F R v Debele ......
  • Terblanche NO and Others v Damji and Another
    • South Africa
    • Invalid date
    ...Mayne v Main 2001 (2) SA 1239 (SCA): dicta at 1242H, 1243A - I, 1248I - J and 1249B applied D Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N): referred Ozinsky NO v Lloyd and Others 1992 (3) SA 396 (C): compared Philotex (Pty) Ltd and Others v Snyman and Others; Braitex (Pty) Ltd and ......
  • Kleynhans v Wessels NO
    • South Africa
    • Invalid date
    ...genoem word, ten tyde van die betekening van A die dagvaarding deur die geregsbode bestaan het. Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N) op 90H. Die uitgangspunt is dat 'n eiser moet aantoon dat die hof waarin hy as dominus litis 'n aksie aanhangig gemaak het, oor jurisdiksie b......
  • Request a trial to view additional results
18 cases
  • Nedbank Ltd and Others v National Credit Regulator and Another
    • South Africa
    • Invalid date
    ...referred to Meyer v Catwalk Investments 354 (Pty) Ltd en Andere 2004 (6) SA 107 (T): B referred to Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N): dictum at 87B – D Minister of the Interior and Another v Harris and Others 1952 (4) SA 769 (A): referred to Naidoo v Absa Bank Ltd 2010 (......
  • MV v CV
    • South Africa
    • Invalid date
    ...Others v Jamieson and Others 1996 (4) SA 348 (A) ([1996] 3 All SA 669; [1996] ZASCA 58): referred to Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N): dictum at 87B applied Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) ([2002] 4 All SA 384): referred to F R v Debele ......
  • Terblanche NO and Others v Damji and Another
    • South Africa
    • Invalid date
    ...Mayne v Main 2001 (2) SA 1239 (SCA): dicta at 1242H, 1243A - I, 1248I - J and 1249B applied D Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N): referred Ozinsky NO v Lloyd and Others 1992 (3) SA 396 (C): compared Philotex (Pty) Ltd and Others v Snyman and Others; Braitex (Pty) Ltd and ......
  • Kleynhans v Wessels NO
    • South Africa
    • Invalid date
    ...genoem word, ten tyde van die betekening van A die dagvaarding deur die geregsbode bestaan het. Mills v Starwell Finance (Pty) Ltd 1981 (3) SA 84 (N) op 90H. Die uitgangspunt is dat 'n eiser moet aantoon dat die hof waarin hy as dominus litis 'n aksie aanhangig gemaak het, oor jurisdiksie b......
  • Request a trial to view additional results

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