William Spilhaus & Co (MB) (Pty) Ltd v Marx

• Jurisdiction: South Africa
• Judge: van Winsen J and Theron J
• Judgment Date: 23 October 1963
• Citation: 1963 (4) SA 994 (C)
• Hearing Date: 19 September 1963
• Court: Cape Provincial Division

Van Winsen, J.:

Appellant (plaintiff in the court below) sues the respondent (defendant in the court below), namely, the Magistrate's Court, Mossel Bay, for a sum of R290.39 in respect of work done for, and H material supplied to, the defendant, plus interest on that sum, and for an amount advanced by plaintiff on defendant's behalf to the Trust Bank. For the sake of convenience I shall continue to refer in this judgment to the parties as plaintiff and defendant.

The appeal does not concern the merits of the dispute between the parties. It turns upon the correctness of the decision by the presiding magistrate to allow the defendant to file a special plea putting in issue the jurisdiction of the Magistrate's Court, Mossel Bay, to try plaintiff's claim, and upon the correctness of his decision to uphold such plea.

Van Winsen J

The only issue raised by the defendant in his plea to the merits concerns the question of whether or not he had instructed the plaintiff to do the work and supply the material in question. The defendant denied that he had ever given any such instructions. When the case opened in A the Magistrate's Court at Mossel Bay this was the only issue before the court. The plaintiff then proceeded to lead evidence from which it appeared that the defendant had purchased a lorry on hire-purchase agreement from the plaintiff. He later sold this lorry to one Strydom, who, with plaintiff's consent, was substituted as the purchaser under B the aforementioned hire-purchase agreement. The lorry having been delivered to Strydom, he drove it to Calitzdorp, where the Police stopped him on the ground that the lorry was not in a roadworthy condition. The traffic inspector, who there examined the lorry, handed Strydom a list of the defects which he found in the lorry. Strydom stated in evidence that he informed the defendant of these defects but, having got no satisfaction from him, went to see the plaintiff. He C interviewed a Mr. Duminy, who is the manager of the Mossel Bay branch of the plaintiff company, and the latter undertook to telephone the defendant and obtain from him his consent to the plaintiff company effecting the repairs called for in the traffic inspector's report. It appears from the evidence of a Mr. Ludolph, also an employee of the D Mossel Bay branch of the plaintiff company, that after several unsuccessful attempts to make contact by telephone with the defendant he eventually succeeded in establishing telephonic communication with the defendant on the latter's farm, which is situated in the Uniondale district. Ludolph said that on that occasion the defendant gave him instructions to repair the lorry. It was in furtherance of these E instructions that the work was done and the material supplied, and it was these instructions which formed the basis of the plaintiff's claim.

The above evidence given by Strydom, Ludolph and Duminy was recorded on the 22nd November, 1962; all these witnesses were examined, F cross-examined and re-examined, and at the end of the day the case was postponed to a date to be arranged with the presiding magistrate. On the 6th December, 1962, the defendant filed with the magistrate a special plea alleging that the defendant neither lived nor worked in the district of Mossel Bay, but in fact lived in the district of Uniondale, and that the whole cause of action in the present claim had not arisen G in the district of Mossel Bay, since the instructions alleged to have been given by the defendant were given in the district of Uniondale and not in the district of Mossel Bay.

When the trial was resumed on the 5th February, 1963, the defendant asked leave to file the special plea. The application was opposed on the H plaintiff's behalf, but despite this opposition was granted by the magistrate. The hearing was then further postponed until the 8th April, 1963. On that date the plaintiff's attorney made the admission that when the defendant gave Ludolph telephonic instructions (opdrag) to repair the car the defendant was in the district of Uniondale. From the brief minute of what took place thereafter, it would appear that the parties then argued whether, in the light of the evidence given by Ludolph, the special plea was established. The magistrate held that it

Van Winsen J

was so established, and dismissed the plaintiff's claim with costs. The appeal is brought both against the granting of leave to introduce the special plea, as well as against the decision upholding that plea.

A A number of grounds were advanced in the notice of appeal in support of the appeal, but Mr. Fagan, for the appellant, argued only three grounds. Firstly, he contended that the terms of sec. 28 (1) (f) of the Magistrates' Courts Act, 32 of 1944, precluded an objection to the jurisdiction being made for the first time during the course of the trial. He contended that the section meant that if at the outset of the trial no objection had been made to the court's jurisdiction, then, in a B case such as the present, the defendant must be regarded as having submitted himself to that jurisdiction. Secondly, he argued that even if a plea to the jurisdiction could rightly be taken during the trial, the defendant, in the circumstances of the present case, had, before filing the special plea, already in fact submitted himself to the jurisdiction C of the court. Finally, he contended that the special plea was in any event bad, since on the facts proved the whole cause of action had arisen within the district of Mossel Bay.

Adumbrating the first ground of appeal Mr. Fagan referred to a number of D authorities from which it is clear that a party not ordinarily amenable to the jurisdiction of a particular tribunal may, provided that such tribunal is not in law prohibited from hearing the suit, by consent, given expressly or tacitly, submit himself to the jurisdiction of that tribunal, According to Voet, 2.1.18, where a party has consented to such a tribunal's jurisdiction and thereafter litis contestatio has taken E place, the court in question is seized with the litigation, and it must be carried to its conclusion before that court. He goes so far as to say that this applies even where the party consenting to the jurisdiction has done so under a mistake. He lays it down loc. cit.:

'It is surely undoubted that once litis contestatio has taken place the jurisdiction of him before whom the proceeding was in this way started can no longer be declined by one of the litigants. Where a suit had its F beginning, there also it must receive its end. The authority of the laws has decreed that without any distinction being drawn between those with knowledge and those in error even dilatory exceptions, including the very exception to jurisdiction, must be put forward before litis contestatio at the origin and among the very preliminaries of the suit.'

Voet, at 2.1.20, says further that if the defendant inter alia pleads to G plaintiff's main claim he must by a quasi-contract be regarded as having submitted to the court's jurisdiction. To the same effect are Wassenaar, Pract. Judic., Cap. 1, Note 10 in fine and 73; van Leeuwen, Roman Dutch Law, 5.8.4; Merula Manier van Proceduren, 4.14.4 and 5; van Zutphen, Pract. der Ned. Recht s.v. rechter, note 5. This view of the Roman Dutch authorities as to the extension of a court's jurisdiction by way of H submission on the part of the defendant has been applied in our Courts in a number of cases; see, for instance: Oxland v Key, 15 S.C. 315; Usikwata v Dekker, 30 N.L.R. 508; Irving & Co v Dreyer, 1921 CPD 185; Brecher v Brecher, 1947 (3) SA 225 (SWA), and Lubbe v Bosman, 1948 (3) SA 909 (O).

It is against this background that it is necessary to consider the introduction in the Magistrates' Courts Act, 32 of 1917, of sec. 28 (1) (f), which, in terms, recognises the common law principle that a defendant may by acquiescing in the jurisdiction of the court confer on it a power

Van Winsen J

which it would not otherwise...