United Dominions Corporation (SA) Ltd v Tyrer

• Jurisdiction: South Africa
• Judge: Roper AJ and Roberts AJ
• Judgment Date: 31 March 1960
• Court: Transvaal Provincial Division
• Hearing Date: 31 March 1960
• Citation: 1960 (3) SA 321 (T)

Roper, A.J.:

This is an appeal against a decision of a magistrate at Rustenburg given in a case in which the present appellant was the F plaintiff and the present respondent was the defendant. I shall refer to the parties as the plaintiff and the defendant.

The plaintiff is a company whose business, or part of whose business, is to lend money to traders who sell goods under hire purchase agreements and it appears to have had a standing arrangement with the defendant, G who carries on a motor business in Rustenburg, under which agreements made by the defendant with buyers of vehicles would be ceded to the plaintiff in return for financial assistance enabling the defendant to carry on this type of business. So far as can be gathered from a slovenly summons, as supplemented by amendments and further particulars, it appears that in August, 1957, the defendant sold a motor vehicle to H one Korb under the usual hire purchase agreement and then ceded the agreement to the plaintiff in accordance with the standing arrangement between the parties. The plaintiff sued the defendant on the basis of a suretyship agreement which was part of the standing arrangement and in which the defendant bound himself as surety for the payment of the amounts due from buyers of vehicles.

Roper AJ

It appears that the buyer of the vehicle fell into arrears and that the plaintiff then instituted action against the defendant for recovery of the amount of the arrears after allowing some items on contra account, the basis of the action being the defendant's liability as a surety.

A A plea was filed, the first portion of which was a plea to the jurisdiction. This plea was that by virtue of sec. 19 of Act 36 of 1942 the magistrate's court, Rustenburg, had no jurisdiction because the buyer was not resident or employed nor carried on business within the jurisdiction of the magistrate. It was agreed that this plea to B jurisdiction should be heard and decided by the magistrate and that if the plea went against the defendant so that the magistrate held that he had jurisdiction to hear the case, there would be no further defence to the action and a ruling on the question of jurisdiction would decide the whole issue. If the ruling had gone against the defendant therefore C in the magistrate's court the plaintiff would have been entitled to have judgment in the sum claimed. The magistrate came to the conclusion on the terms of the section relied upon that his...