Thomas v BMW South Africa (Pty) Ltd

• Jurisdiction: South Africa
• Judgment Date: 10 October 1995
• Citation: 1996 (2) SA 106 (C)

Thomas v BMW South Africa (Pty) Ltd
1996 (2) SA 106 (C)

1996 (2) SA p106

Citation	1996 (2) SA 106 (C)
Case No	2787/94
Court	Cape Provincial Division
Judge	Van Reenen J
Heard	October 10, 1995
Judgment	October 10, 1995
Counsel	M Seligson SC (with him I J Muller) for the plaintiff.; A I S Redding for the respondent.

Flynote : Sleutelwoorde F

Court — Jurisdiction — Of Supreme Court — Jurisdiction in terms of s 19(1)(a) of Supreme Court Act 59 of 1959 — Cruise-control in motor vehicle G malfunctioning, causing driver to lose control and crash into fence — Driver instituting delictual claim for damages in Cape Provincial Division (CPD) of Supreme Court against manufacturer and/or distributor of motor vehicle with registered office and principal place of business in Gauteng and branch office in Cape Town through which vehicle sold — Malfunctioning of cruise-control H system, collision and injuries sustained occurring within area of jurisdiction of CPD — Installation of cruise-control system, failure to inspect and test it, as well as failure to discover defects, occurring outside jurisdiction of CPD — Locus of delict for jurisdictional purposes to be determined with reference to materiality of and number of ingredients thereof occurring in Court's area of jurisdiction — I Notion that all elements of delict should occur in Court's area of jurisdiction for it to assume jurisdiction rejected — CPD having jurisdiction.

Headnote : Kopnota

The locus of a delict for jurisdictional purposes should be determined with reference to the materiality of and the number of the ingredients thereof which have occurred in a Court's area of jurisdiction. (At 125G-H.) J

1996 (2) SA p107

A The Court rejected the notion that all elements of a delict must have occurred in a Court's area of jurisdiction for it to be able to assume jurisdiction. (At 125H.)

The plaintiff issued summons in the Cape Provincial Division against the defendant for damages suffered by him as a result of personal injuries sustained when a BMW 535i motor vehicle, of which he was the driver, suddenly and unexpectedly accelerated, left the road as a result of the fact that it went out of control and crashed into a fence at the side of the road. The plaintiff averred that the cause of the surge of acceleration B was the malfunctioning of the motor vehicle's cruise-control system. The defendant, the manufacturer and/or distributor of new BMW motor vehicles in South Africa, with its registered office and principal place of business in Gauteng and a branch office in Cape Town, filed a special plea in which it challenged the jurisdiction of the Cape Provincial Division. The parties agreed for the purposes of the adjudication of the special plea that the collision was occasioned by the defendant's negligence which C had been set out in the plaintiff's particulars of claim as follows: 'the defendant . . . 8.1 negligently fitted or had fitted a defective cruise-control system to the plaintiff's vehicle containing the defects in design, quality and/or manufacture . . .; and/or 8.2 negligently failed to inspect or test the said cruise-control system and/or its circuit board adequately or at all; and/or 8.3 negligently failed to discover potential defects or dangerous propensities in the said cruise-control system and/or its circuit board; and/or 8.4 supplied and distributed through its dealership in Cape Town a vehicle D fitted with a defective cruise-control system capable of self-actuating and producing a sudden unexpected surge of acceleration and which in fact did produce a sudden unexpected surge of acceleration on the occasion . . .'. The plaintiff based his contention that the Cape Provincial Division had jurisdiction on averments that the following occurrences took place within the Court's area of jurisdiction: (a) the cruise-control system of his motor vehicle malfunctioned there; (b) the ensuing collision took place there; (c) the injuries sustained by him were suffered there; and (d) the defendant through its dealership in Cape Town supplied a vehicle with a E defective cruise-control system. It was further submitted by the plaintiff that: (a) until such time as the cruise-control system of the plaintiff's motor vehicle malfunctioned and bodily injuries were suffered as a result thereof, no wrongful act had been committed and accordingly no delict had come into existence; (b) as the malfunction, collision, and the injuries suffered by the plaintiff occurred within the area of jurisdiction of the Court his cause of action, within the meaning of s 19(1)(a) of the Supreme Court Act 59 of 1959, arose there; and (c) it was sufficient if one or more F of the significant res gestae of the delict occurred within the Court's area of jurisdiction. The defendant submitted that for the Court to have jurisdiction all the elements of the plaintiff's cause of action - in the sense of every fact which is material to be proved to entitle the plaintiff to succeed in his claim - had to take place within its area of jurisdiction.

G Held, that the grounds of negligence enumerated in paras 8.1-8.4 of the plaintiff's particulars of claim had been joined by the 'bastard conjunction' 'and/or'; accordingly, they were capable of being read either conjunctively or disjunctively: if those grounds of negligence were read (a) disjunctively, there were four independent grounds of negligence; (b) conjunctively, there was a single composite ground of negligence. (At 117I/J-118B.)

Held, further, that it was common cause that the acts and/or omissions in paras 8.1-8.3 occurred outside the Court's area of jurisdiction and those in para 8.4 H occurred within the Court's area of jurisdiction: accordingly the acts and/or omissions of one of the four independent grounds of negligence or one of the elements of the composite ground of negligence arose within the Court's area of jurisdiction. (At 118B/C-D.)

Held, further, that the plaintiff's contentions (a) that, in the absence of a wrongful act, no delict had been committed; (b) that, until the cruise-control system had I malfunctioned and the plaintiff had sustained bodily injuries, no wrongful act and consequently no delict had been committed; (c) that by virtue of the fact that the cruise-control had self-actuated, the collision had taken place, the injuries had been sustained and the damages had been suffered within the Court's area of jurisdiction; and (d) that the delict had occurred there and his cause of action had arisen there within the meaning of s 19(1)(a) of the Supreme Court Act 59 of 1959, were appealing: there could be no delict in the absence of a wrongful act or omission on J

1996 (2) SA p108

the part of the wrongdoer and an act or omission could be characterised as wrongful only if it resulted in damnum. Until A that happened, an act or omission constituted no more than negligence in the air: wrongfulness was not simply an attribute of a wrongdoer's conduct, but a function of that conduct together with its consequences in relation to a particular person. (At 119H/I-J read with 120C-D.)

Held, further, that the collision and injuries suffered by the plaintiff within the Court's B area of jurisdiction not only constituted the element of damnum required for the plaintiff's cause of action, but in addition characterised the acts and omissions attributed to the defendant as wrongful: as regards the remaining element, namely fault, in the sense of culpa, the plaintiff had made the necessary factual allegations in support of an averment that the defendant owed him a duty of care and provided particulars of the manner in which that duty has been breached. (At 126D-F.)

Held, further, that the duty of care the defendant was alleged to have owed the plaintiff was the duty to lawful users of vehicles manufactured and/or distributed by C the defendant to take all reasonable steps to ensure that such vehicles and their component parts were free from defects in design, quality and/or manufacture that might cause serious injury or death to such users in the event of their malfunctioning whilst being used: that duty, save that it was limited to lawful users, had been formulated without any restriction as regards territory, time or the identity of the persons to whom it had been owed. (At 126F-G/H.)

Held, further, that it was apparent from the admitted documentation and the evidence D that, although the defendant manufactured vehicles in Gauteng, they were intended for distribution throughout the Republic of South Africa, Botswana, the kingdoms of Lesotho and Swaziland as well as Namibia, and in the circumstances it was likely to have been in the reasonable contemplation of the defendant that defectively manufactured vehicles would be supplied and/or used, inter alia, in the jurisdiction of the Court and that mishaps and injuries resulting from such defects might occur and result in damages there: accordingly the defendant owed the plaintiff a duty of care in E the Court's area of jurisdiction and that such duty had been breached. (At 126H-I/J, read with 127G.)

The dictum in Moran et al v Pyle National (Canada) Ltd 43 DLR (3d) 239 at 248 approved and applied.

Held, further, that, if the plaintiff's grounds of negligence were read conjunctively, the F material as well as the majority of the ingredients of the plaintiff's cause of action occurred within the Court's area of jurisdiction. (At 127H.)

Held, further, that, if the plaintiff's grounds of negligence were read disjunctively, all the facta probanda of the ground of negligence that the defendant, through its dealership in Cape Town, supplied and distributed a vehicle fitted with a defective cruise-control system occurred within the Court's area of jurisdiction, and that being the case, considerations of convenience and common...