Murphy v Dallas

• Jurisdiction: South Africa
• Judge: Leon J
• Judgment Date: 28 November 1973
• Citation: 1974 (1) SA 793 (D)
• Hearing Date: 16 November 1973
• Court: Durban and Coast Local Division

Leon, J.:

The applicant seeks leave to institute proceedings by way of edictal citation against the respondent and for an order that the edictal citation be served on the respondent and her husband personally in Rhodesia.

On 11th January, 1973, the applicant caused a summons to be H issued in the magistrate's court for the district of Durban against the respondent duly assisted by her husband insofar as may be necessary. In that summons the amount of R956 and costs was claimed as damages alleged to have been suffered by the applicant as a result of the negligent driving of the respondent at Durban on 20th August, 1971.

The messenger of the court was unable to effect service upon the respondent with the result that the applicant caused a firm of tracing agents

Leon J

to be instructed in order to ascertain the present address of the respondent. Mrs. Riddle, a tracing agent, has deposed to an affidavit in which she says that as a result of her enquiries she has ascertained that the respondent is now living in Salisbury, Rhodesia.

A The applicant contends in her affidavit that it is clear from the summons that the whole cause of action arose within the jurisdiction of the court. She adds, however, that she has been advised that, as the respondent is no longer living within the Republic of South Africa, the magistrate's court no longer has jurisdiction in the matter and that her attorneys have B withdrawn the action in that Court by notice dated 2nd May 1973. The applicant has further been advised that her only remedy is to seek the relief which is claimed in the order prayed herein in order that she may pursue her claim against the respondent.

Mr. Findlay, who appeared for the applicant, very properly drew my attention to the case of Hotel Ansonia (Pty.) Ltd. v. C Townsend, 1959 (2) SA 245 (N), which was against him but counsel submitted that it had been wrongly decided.

In that case the applicant sought an order granting it leave to sue the respondent in the magistrate's court, Pietermaritzburg, by edictal citation, for the sum of 200 as damages for breach of conract. The order prayed further asked that it be directed D that the summons be served upon the respondent personally. In the alternative leave was sought by the applicant to sue the respondent in the Supreme Court by edictal citation. MILNE, J. (as he then was), declined to make an order. The learned Judge held that the language of Rule 8 (12) of the Magistrates' Courts Act Rules is quite wide enough to entitle the magistrate E to make an order directing that service shall be by way of edictal citation in such manner as it further prescribes. It was held that there was nothing in the Magistrates' Courts Act which prevented the magistrate from exercising jurisdiction over a person residing outside the borders of South Africa if he had jurisdiction in terms of sec. 28 of Act 32 of 1944. The ratio of the decision is that

F "if the cause of action arose wholly within the district"

the magistrate's court has jurisdiction under sec. 28 (1) (d) and that Rule 8 (12) permits service

"in such manner as the court might direct".

In Van Blerck v Roscoe, 1961 (4) SA 105 (C), the question of G the correctness of the decision in the Hotel Ansonia case was left open, the learned Judge there observing that

"that matter might, at a later stage, have to be dealt with on appeal".

It is suggested in the Annual Survey of South African Law, 1959, pp. 277 - 9, in (1962) 79 S.A.L.J. pp. 80 - 3 and in Herbstein and van Winsen, Civil Practice of the Superior Courts H of South Africa, 2nd ed., p. 223, note 24, that the Hotel Ansonia case was wrongly decided. It was so held to be by MARAIS, J., in Pretoria - Noordse Stadsraad v Stander, 1964 (3) SA 210 (T) at p. 213D - F.

In Hajaree v Ismail, 1905 T.S. 451, the Full Bench of the Transvaal Supreme Court held that the jurisdiction conferred on magistrates by sec. 12 (a) (2) of Proc. 21 of 1902 over persons...