Ndlovu v Santam Ltd

• Jurisdiction: South Africa
• Judge: Zulman JA, Cameron JA, Mthiyane JA, Lewis JA and Comrie AJA
• Judgment Date: 13 May 2005
• Citation: 2006 (2) SA 239 (SCA)
• Docket Number: 550/2003
• Hearing Date: 18 March 2005
• Counsel: E F Serfontein for the appellant. C Acker for the respondent.
• Court: Supreme Court of Appeal

Mthiyane JA:

[1] The appellant's private residence in Witpoortjie, Roodepoort was broken into on 17 October 1997 and his household G contents and personal effects (household goods) to the value of R101 986 were stolen. At the time of the incident the appellant had a policy of insurance with the respondent, an insurer, to cover his household goods against the risks mentioned in the policy, one of which was theft. The appellant claimed indemnity under the policy but the respondent did not pay, for reasons that are not relevant for H present purposes. Consequently the appellant instituted action in the magistrate's court for the district of Roodepoort for payment of R100 000. The respondent filed a special plea objecting to the court's jurisdiction. It contended that it did not have a registered office or principal place of business within the district of Roodepoort and that the appellant's cause of action had not arisen within that I district as contemplated in s 28(1)(d) of the Magistrates' Courts Act 32 of 1944 (the Act). [1]

Mthiyane JA

[2] At the request of the parties the jurisdiction point raised in the first special plea was adjudicated upon separately in terms of A Rule 19(12) [2] of the Magistrates Courts' Rules (the Rules). A special plea of prescription taken by the respondent stood over for determination at a later stage. The appellant was called to give evidence to prove that his cause of action had arisen within the magisterial district of Roodepoort. He testified that at the relevant time there was a policy of insurance with the respondent; B that the policy had been taken out in Roodepoort; and that the break-in and theft and the subsequent loss of his household goods had occurred at his residence in Witpoortjie, Roodepoort. The respondent did not dispute the appellant's evidence and did not lead any evidence. After hearing evidence and argument the magistrate reserved judgment. On C 23 March 2002 the special plea was dismissed and reasons therefor were handed down on 28 March 2002.

[3] The respondent successfully appealed to the Johannesburg High Court (Schwartzman J and Masipa J). The Court upheld the special plea, set aside the magistrate's order and replaced it with an order D dismissing the appellant's action with costs. The question of the appealability of the magistrate's order was not raised initially in the Court a quo and Masipa J, who wrote for the Court, dealt only with the appeal as to jurisdiction. Appealability was raised for the first time during the hearing of the application for leave to appeal. Schwartzman J held that the magistrate's order that he had E jurisdiction was clearly appealable. The point was disposed of, so everybody thought, at that stage when the application for leave to appeal was refused. However, at the commencement of argument in the appeal before us (leave for which this Court granted), the point was revived when counsel for the appellant indicated that appealability had F been incorrectly conceded before Schwartzman J. Counsel submitted that since making the concession he had become aware of a judgment of the Cape High Court in Robbetze en 'n Ander v Garden Route Resort Services BK. [3] In Robbetze Thring J (Meer J concurring) held that the dismissal of the special plea by a magistrate was not appealable as it was not a rule or order G having the effect of a final judgment as contemplated in s 83(b) of the Act.

[4] The concession made was one of law, which counsel was entitled to withdraw as it was made on a mistaken view of the law. We accordingly H

Mthiyane JA

heard argument on the point. There was no objection by the respondent and we allowed both counsel to A present written argument on appealability.

[5] In this Court there are now two issues to be considered: the question of the appealability of the order dismissing the special plea and whether the appellant's cause of action arose within the magisterial district of Roodepoort. I deal with the two points in turn. B

[6] First, appealability: relying on the decision of this court in Steenkamp v South African Broadcasting Corporation [5] counsel for the appellant submitted that the order made by the magistrate was not appealable as it was not a rule or order having the effect of a final judgment as C contemplated in s 83(b) of the Act. This argument was rejected by Schwartzman J who found that the decision in Steenkamp did not assist. After considering Steenkamp and Durban's Water Wonderland (Pty) Ltd v Botha and Another [6] (to which reference is made in Steenkamp), the learned Judge concluded that the defence raised in the special plea existed independently of the D appellant's case. The Judge reasoned that if the defence stood alone, and if it had been dismissed, the magistrate would have granted judgment for the appellant. Consequently, he held that the special plea had every hallmark of a final judgment and was therefore appealable. E

[7] In this Court counsel for the respondent also relied on the decision in Robbetze. In that case the defendants raised a special plea in a civil trial before a magistrate's court that the particular court did not have jurisdiction to adjudicate the matter. After hearing evidence and argument the magistrate dismissed the special plea. After discussing Steenkamp amongst others, F Thring J held that the decision of a magistrate dismissing a special plea was not appealable as it was not a rule or order having the effect of a final judgment within the meaning of s 83 [7] of the Act. The learned Judge held that the magistrate's order was nothing more than a ruling of a mere procedural nature and the real issues between the parties relating to G the merits of the plaintiff's case were not influenced by it. Thring J held further that the position was analogous to the situation in a delictual claim for damages where the defendant's liability towards the plaintiff was dealt with separately and prior to the H

Mthiyane JA

issue of quantum in terms of Rule 29(4). [8] In such a case, this court held in Steenkamp, the A magistrate's ruling on liability is not appealable.

[8] In my view Thring J went further than Steenkamp and the correctness of the decision in Robbetze cannot be accepted. In Steenkamp the Court dealt with an appeal from a decision of a magistrate in a delictual claim for damages where the issues of liability and quantum had been separated in terms B of Rule 29(4). Steenkamp did not deal with a defence raised entirely outside the claim. The defence raised in the present matter is independent of the appellant's claim. It concerns not the...