Nongovu NO v Road Accident Fund

• Jurisdiction: South Africa
• Citation: 2007 (1) SA 59 (T)

Nongovu NO v Road Accident Fund
2007 (1) SA 59 (T)

2007 (1) SA p59

Citation	2007 (1) SA 59 (T)
Case No	12629/05
Court	Transvaal Provincial Division
Judge	Patel J
Heard	July 6, 2006
Judgment	August 21, 2006
Counsel	J de Beer for the plaintiff.; No appearance for the defendant.

Flynote : Sleutelwoorde F

Motor vehicle accidents — Compensation — Claim for in terms of Road Accident Fund Act 56 of 1996 — 'Competent court' G as intended in s 15 of Act — Semble: Fund not having 'principal place of business' at each of its various branch offices.

Practice — Trial — Removal of to another Division — When permitted — Section 9(1) of Supreme Court Act 59 of 1959 read with s 3 of Interim Rationalisation of Jurisdiction of High Courts Act 41 of 2001 — Semble: Section 3 of Interim H Rationalisation Act superseding, without expressly repealing, s 9 of Supreme Court Act — New Act providing additional ground for removal, viz that 'proceedings should have been instituted in another High Court'.

Practice — Trial — Removal of to another Division — When permitted — Section 9(1) of I Supreme Court Act 59 of 1959 — Court must itself have jurisdiction before it can transfer proceedings to another Division — Balance of convenience must favour removal of matter.

Practice — Trial — Removal of to another Division — When permitted — Section 9(1) of Supreme Court Act 59 of 1959 — Part-heard matters — Whether, in action for damages, issue of quantum may be transferred J

2007 (1) SA p60

after merits disposed of — Where, as is usual, issues on merits and A quantum separated even before merits adjudicated, transferral desirable if justified by considerations of justice and good sense.

Headnote : Kopnota

The plaintiff, acting on behalf of her minor son, sought the removal of her action for damages for personal injury arising out of a motor vehicle accident from the Transvaal Provincial Division of the High Court (TPD) to the Cape Provincial Division of the High Court B (CPD). The defendant had admitted liability, the only issue outstanding being quantum. The basis upon which she sought the removal of the matter to the CPD was that, although the accident had occurred within the area of jurisdiction of the TPD, she had lodged her claim against the defendant at the latter's Cape Town office; her attorney of record was based in Cape Town; her son had consulted C medical experts in the Western Cape; it would be more convenient and less expensive for him to consult the defendant's experts in Cape Town than in Pretoria; and, in the circumstances, the conduct of the trial would be more convenient and less expensive in the CPD than in the TPD.

Held, that under s 19 of the Supreme Court Act 59 of 1959 the CPD had jurisdiction to try the plaintiff's action either if the D accident had occurred within its area of jurisdiction or if the defendant resided within its area of jurisdiction. A defendant resided in the area of jurisdiction in which it had either its principal place of business or its registered office. (Paragraph [4] at 62D - G.)

Held, further, that the defendant did not, however, reside within the area of jurisdiction of the CPD because it did not have its principal place of business at its Cape Town office, where the E plaintiff had lodged her claim. (Paragraph [7] at 63D.)

Held, further, that s 9 of the Supreme Court Act, which dealt with the removal of proceedings from one Division of the High Court to another, had probably been superseded by s 3 of the Interim Rationalisation of Jurisdiction of High Courts Act 41 of 2001. (Paragraph [10] at 64B.) F

Held, further, that s 3 of the Interim Rationalisation of Jurisdiction of High Courts Act permitted the removal of proceedings from one Division to another, even though the Division to which they were removed originally had no jurisdiction in the matter. (Paragraph [11] at 64C.)

Held, further, that in determining an application for removal of a matter from one Division to another, the Court had to G consider the convenience of the parties, the convenience of the Court and the general disposition of the litigation, although the convenience of the parties was paramount. The balance of convenience had to favour the removal of the proceedings. Furthermore, the Court itself had to have jurisdiction before it was competent to remove them to another Division. (Paragraph [13] at 64H - I.) H

Held, further, that the parties' convenience in the present matter favoured the removal of the proceedings to the CPD. Another consideration was what would happen after the order had been granted. In the present case the plaintiff and her son would continue residing in the Western Cape. (Paragraph [14] at 65B - F.)

Held, further, that the fact that the matter was part-heard was not an obstacle to its being removed to the CPD. Removal was I permissible in terms of s 9(1) of the Supreme Court Act and was consistent with the purpose of separation of the merits and quantum in terms of Rule 33(4) of the Uniform Rules of Court. Furthermore, considerations of justice and good sense justified removal of an action on the issue of quantum to another Division. (Paragraph [15] at 65H - 66A.) J

2007 (1) SA p61

Held, further, that it was desirable that an application for removal be brought only after close of pleadings, as was the case in A the present matter. (Paragraph [16] at 66A/B.)

Held, further, that it was therefore convenient that the matter be removed from the TPD to the CPD. (Paragraph [16] at 66B/C.) So ordered.

Cases Considered

Annotations B

Reported cases

Desai v Engar and Engar 1965 (4) SA 81 (W): dictum at 85 applied

Ex parte Kajee 2004 (2) SA 534 (C): distinguished and not followed

Goode, Durrant & Murray (SA) Ltd and Another v Lawrence 1961 (4) SA 329 (W): applied C

Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D): dictum at 363D applied

Nel v Road Accident Fund 2000 (1) SA 931 (T): distinguished and not followed

Radloff and Another v Union & South West Africa Insurance Co Ltd 1972 (4) SA 634 (E): applied D

Tudoric-Ghemo v Tudoric-Ghemo 1997 (2) SA 246 (W): dictum at 251B applied

Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A): dictum at 887F - 888C applied

Walters Brick Industries Ltd v Henkes 1938 WLD 4: applied

Welgemoed and Another NNO v The Master and Another 1976 (1) SA 513 (T): applied. E

Statutes Considered

Statutes

The Interim Rationalisation of Jurisdiction of High Courts Act 41 of 2001, s 3: see Juta's Statutes of South Africa 2004/5 vol 1 at 1-222

The Supreme...