Northern Assurance Co Ltd v Somdaka

• Jurisdiction: South Africa
• Judge: Steyn CJ, Beyers JA, Ogilvie Thompson JA, Botha AJA and Holmes AJA
• Judgment Date: 27 November 1959
• Citation: 1960 (1) SA 588 (A)
• Hearing Date: 19 November 1959
• Court: Appellate Division

Northern Assurance Co Ltd v Somdaka
1960 (1) SA 588 (A)

1960 (1) SA p588

Citation	1960 (1) SA 588 (A)
Court	Appellate Division
Judge	Steyn CJ, Beyers JA, Ogilvie Thompson JA, Botha AJA and Holmes AJA
Heard	November 19, 1959
Judgment	November 27, 1959

Flynote : Sleutelwoorde D

Practice — Irregular proceedings — Condonation of — Court has discretion — Order VI Rule 54 (N) — Order VI Rule 1 (N) not imperative — Power of attorney not filed when summons issued — Summons issued to prevent claim being prescribed — Circumstances E justifying condonation.

Headnote : Kopnota

The last sentence of Order VI Rule 54 (N) confers a discretion on the Court in the matter of irregular or improper proceedings in an action. Once the Court has a discretion it was not intended that a breach of the Rules relating to actions should necessarily be visited with nullity.

Allan Pohl, Otto & Theron (Pty.) Ltd v Schoeman & Another, 1954 (3) SA 589 (T); Employer's Liability Assurance Corporation Ltd. v. F Potgieter, 1959 (1) SA 850 (W); Poligan v Rickagio, 1928 NPD 463, not approved.

Order VI Rule 1 (N) read with Order XI Rule 2 is not imperative.

Plaintiff (now respondent), who lived in Butterworth, Cape Province, had some months prior to 4th May, 1959, instructed her attorney in Durban to institute proceedings against the defendant (now appellant) for damages suffered by the plaintiff in a collision which had occurred on 4th May, 1957, in circumstances which rendered the defendant liable under Act 29 G of 1942. After receiving instructions the attorney wrote to the plaintiff asking her to come to Durban. She intended doing so but was prevented by the illness and death of her mother. On 13th April, 1959, the attorney had sent her a power of attorney for completion asking her to return it. The power was returned on 20th April, duly witnessed with the revenue stamp cancelled but the plaintiff had omitted to sign it. The attorney posted it to the plaintiff again on 24th April by registered airmail express post. This letter only reached the plaintiff H on 5th May. She signed the power, posted it on 6th and it was received by the attorney on 11th May. As the period of prescription was running against the plaintiff the attorney on 4th May interviewed the Registrar and explained the position to him. He assured that officer that he expected the power at any moment. In these circumstances the Registrar issued the summons on 4th May and it was served upon the defendant on the same day. The power was filed on 11th May. The defendant applied to have the summons set aside but the Court refused such application and condoned the irregularity. In an appeal,

Held, as the plaintiff had instructed the attorney to sue out the summons and as the summons was complete and regular and as all that was missing was

1960 (1) SA p589

the formal proof of evidence of the authority of the attorney to sue out the summons that the Court had properly condoned the irregularity.

The decision in the Durban and Coast Locad Division in Somdaka v Northern Assurance Co. Ltd., 1959 (3) SA 129, confirmed.

Case Information

Appeal from a decision in the Durban and Coast Local Division (KENNEDY, J). The facts appear from the judgment of HOLMES, A.J.A. A

A. B. Harcourt, Q.C., (with him J. A. Howard), for the appellant: The summons is an irregular or improper proceeding as envisaged by Order XI, Rule 54 of the Natal Rules of Court, because no power of attorney in favour of respondent's attorney was filed with the Registrar before the B issue of the summons. A proper decision of the matter involves a decision of the question whether Order VI, Rule I is peremptory (imperative) or merely directory. Order VI, Rule I is clearly couched in imperative terms. It is free from ambiguity, and it deals with the manner in which persons are to be cited to appear which is fundamental to civil actions and must be strictly observed; cf. Frost, Muligan & C Routledge v Rising, N.O., 1905 T.S. at pp. 446 - 7. There is direct authority for the view that the Rule is peremptory and that a failure to comply with it renders the summons a nullity; see Poligan v Rickagio, 1928 NPD at pp. 464, 466 - 7. The view held by MATTHEWS, J., in Poligan's case to the effect that Order VI, Rule I is peremptory has never been dissented from, although there have been dicta to the effect D that Rule 2 is merely directory and thus failure to comply with either Rule does not render the summons a nullity; see Gerber & Co., Ltd v Peerless Clothing Factory, 1950 (3) SA at p. 780; Distin's Seed Cleaning & Packing Co. (Pty.), Ltd v Stuart Wholesalers, 1954 (1) SA at p. 285; Simms Service Station v Ebony Passenger Service, 1958 (1) SA at pp. 716 - 7. It is doubtful (to say the least) that HATHORN, E J.P., was correct in holding in the case of Gerber & Co., supra, that Order VI, Rule 2 is directory in effect; cf. Allan Pohl, Otto & Theron (Pty.), Ltd v Schoeman and Another, 1954 (3) SA at pp. 591, 592, 593. Further support for the proposition that Order VI, Rule I is peremptory is to be found in cases interpreting the corresponding F Transvaal Rule 10, which is in terms almost identical with Natal, Order VI, Rules I and 2 combined. The Transvaal Court has held that Rule 10 is imperative; see Allan Pohl case supra at pp. 591 - 2; 593, Kempff and Others v Visse, 1958 (1) SA at pp. 379 - 80; Employers' Liability Assurance Corporation, Ltd v Potgieter, 1959 (1) SA at pp. 851 - 2. In the light of the foregoing authorities, Order VI, Rule I is G imperative and must be strictly complied with, and the failure to comply therewith rendered the summons in the present case a nullity, with no basis whatsoever in law; see Poligan's case supra at p. 464; Employers' Liability Assurance case supra at p. 852. The dictum of SHAW, J. in Distin's case, supra at p. 285, to the effect that a proceeding which is irregular for failure to comply with Rule I of Order VI is not H a nullity, is obiter, and with respect, wrong. The Transvaal Court has taken the stand that it cannot condone a failure to comply with Rule 10 by exercising its discretion under its Rule 37 (which corresponds to Natal Order XI, Rule 54). The ratio for this stand appears to be simply that the provisions of Rule 10 are imperative; see Allan Pohl case, supra, at p. 593; Employers' Liability Assurance case, supra at pp. 851 - 2. In so far as the

1960 (1) SA p590

stand rests upon the sole ground that Rule 10 is imperative, it runs counter to decisions such as Foster v Carlis and Houthakker, 1924 T.P.D. at pp. 251 - 2, and Distin's Seed, etc., Co. case, supra at p. 825, both of which cases were quoted with apparent approval by this Court in Trans-African Insurance Co., Ltd v Maluleka, 1956 (2) SA at A p. 276. The Allan Pohl case and those following it were correctly decided for the reasons therein set forth. Alternatively, they correctly decided that a failure to comply with Rule 10 cannot be condoned because the Rule is peremptory, and, more importantly as Rule 10 is fundamental to civil actions, it must be strictly complied with and the failure to B do so, renders the summons a nullity; cf. Frosts' case, supra. Even if Transvaal Rule 37 or Natal Order XI, Rule 54 empower the Court to condone a failure to comply with peremptory Rules, they cannot have been intended to authorise the condonation of the failure to observe so fundamental a Rule as Transvaal Rule 10 or Natal Order VI, Rule I. Alternatively, if the Judge a quo had the power to condone the C irregularity, this Court, it is submitted, can and should, in the circumstances of the present case, interfere with his decision, despite the fact that it springs from the exercise of a judicial discretion. As to the general approach of this Court in matters of discretion, cf. Ex parte Neethling and Others, 1951 (4) SA at p. 335. In the present D case, however, appellant need go no further than show that, in exercising its discretion as it did, the Judge a quo was clearly wrong. The discretion involved here is akin to that in Mahomed v Kazi's Agencies (Pty.), Ltd. and Others, 1949 (1) SA at pp. 1168 - 9, the reasoning of which is applicable. It is clear from the cases cited that in exercising its discretion under Order XI, Rule 54 (or Transvaal Rule E 37) the Court regards the question of...