TW Beckett & Co Ltd v H Kroomer Ltd

• Jurisdiction: South Africa
• Judge: Coram Lord De Villiers CJ, Innes J and Solomon J
• Judgment Date: 10 July 1912
• Citation: 1912 AD 324
• Hearing Date: 18 June 1912
• Court: Appellate Division

Lord De Villiers, C.J.:

In this case I have had the opportunity of reading the judgment of my brother INNES, with which I agree.

Judgment

Innes, J.:

This appeal has originated in the course of an action to recover damages for breach of contract. The plaintiff company trades on the Witwatersrand; the de-

Innes, J.

fendant is a corporation having its registered head office and central business at Pretoria, but with an extensive branch at Johannesburg, which is under the control of three "joint managers," who are responsible and subservient, to the Company. These managers hold a power of attorney from the managing director, which, among other things, authorises them to prosecute or defend actions in any of the Courts of the Transvaal, and in the name of the Company to choose domicilium citandi. The dispute is in connection with a purchase by the plaintiff from the defendant of a certain consignment of sugar to be delivered free on rail at Lourenco Marques. The agreement was concluded by the plaintiff at Johannesburg; but it was made not with the joint managers of the local branch, but with a representative of the Pretoria head office. The plaintiff, alleging that the bulk of the sugar delivered was damp and of inferior quality, commenced an action for damages in the Witwatersrand Local Division. The summons was served on one of the joint managers at the Johannesburg office. The defendant, before pleading to the merits, objected to the competency of the Court, on the ground that the cause did not arise, and that the defendant (lid not reside, within its territorial jurisdiction. The special plea embodying this defence was disallowed, and the present appeal is the result. Now, the authority of the Local Division is derived from Section 27 of the Transvaal Administration of Justice Proclamation, which confers upon it within certain territorial limits previously defined, the right "to have and exercise concurrently with the Supreme Court all such and the same jurisdiction, powers and authority, as are by this Proclamation vested in the last-mentioned Court," - subject to certain restrictions which, though important in themselves, do not affect the present dispute. To ascertain the extent of the jurisdiction thus conferred, we turn to Section 16 of the same Statute, which enacts that the Supreme Court (now the Provincial Division) "shall have cognizance of all pleas and jurisdiction in all civil causes and proceedings arising. . . within the said Colony, with jurisdiction over His Majesty's

Innes, J.

subjects and all other persons whomsoever residing or being within the said Colony." It was somewhat subtly argued by the plaintiff's Counsel that there was a special virtue in this form of legislation. That because the jurisdiction of the smaller tribunal was expressed in terms of that of the larger one, therefore the Local Division stood in exactly the same position to the remainder of the Transvaal as the Provincial Division stood to the outside world. And that consequently it could assert its own jurisdiction over Transvaal residents outside its territorial area, to the same extent as the Provincial Division could do over foreigners. Upon the face of it that argument would seem to run counter to the decision in Steytler v Fitzgerald (1911 AD 315, 4 Buch. App. Cases, p. 479), where it was held that the Eastern Districts Local Division had no power to acquire jurisdiction over a resident in the Cape Province outside its territorial limits by attaching his property and issuing an edictal citation. Mr. Stratford endeavoured to distinguish between the wording of the Statute (Act No. 35, 1896, sec. 13), which gives to the Eastern Districts Division "a jurisdiction concurrent with the Supreme Court in and over all causes arising and persons residing and being" within a certain defined area, and the terms of the Transvaal Proclamation already quoted. But I confess that I can see no substantial difference. To my mind the Witwatersrand Local Division (subject to the special limitation already referred to) stands in the same position to that portion of the Transvaal outside the Witwatersrand, as the Eastern Districts Local Division stands to the portion of the Cape Province outside the Eastern Districts. I agree with BRISTOWE, J., in thinking that the causes over which the Witwatersrand...