FORM A FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

Transcription

1 1 FORM A FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT PARTIES: JEREMY DAVIS and KENNETH JAMES DENTON APPLICANT RESPONDENT (b) Case Number: 630/2008 (c) High Court: EASTERN CAPE DIVISION (d) DATE HEARD: 31/7/08 DATE DELIVERED: 7/8/08 JUDGE(S): PLASKET J LEGAL REPRESENTATIVES Appearances: (b) For the Applicant(s): Mr J. Eksteen SC (c) for the Respondent(s): Mr D. De La Harpe Instructing attorneys: Appellant(s): Whitesides, Grahamstown Respondent(s): Wheeldon, Rushmere and Cole CASE INFORMATION - (b) Nature of proceedings: (c) Topic: (d) Key Words:

2 2 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION) CASE NO: 630/2008 DATE HEARD: 31/7/08 DATE DELIVERED: 7/8/08 NOT REPORTABLE In the matter between JEREMY DAVIS APPLICANT and KENNETH JAMES DENTON RESPONDENT In an application for a trial to be transferred to the South Eastern Cape Local Division, it was held that, on the facts, the balance of convenience was in favour of the applicant. While he, his witnesses and the respondent all lived in Port Elizabeth and the causes of action arose in Port Elizabeth, the respondent s three reasons for opposing the transfer of the matter, respectively, was not a proper reason, was not established factually and was irrelevant. The application succeeded with costs. JUDGMENT PLASKET J: [1] In this application, the applicant seeks an order removing a trial, in which he and the respondent are parties, from this court to the South Eastern Cape Local Division. He also seeks his costs in the event of opposition to this application, which there has been. [2] The material facts are not in dispute. They are that the respondent issued summons out of this court against the applicant for damages arising from an

3 3 incident that occurred in Central, Port Elizabeth in which the applicant is alleged to have defamed the respondent. The applicant counter-claimed. He alleged that he had suffered damages as a result of the respondent assaulting him at the South End Fire Station in Port Elizabeth. [3] Both the applicant and the respondent are permanently resident in Port Elizabeth. While the respondent intends to give evidence, he does not intend to call any witnesses. The applicant, apart from testifying himself, intends to call a number of witnesses, including a doctor with whom he consulted after he was allegedly assaulted. All of the witnesses that he intends to call reside permanently in Port Elizabeth. He has instructed attorneys in Port Elizabeth. The respondent is represented by attorneys from Grahamstown. [4] As stated above, the applicant seeks an order removing the action from this court to the South Eastern Cape Local Division. I am vested with a discretion to make such an order by s 9(1) of the Supreme Court Act 59 of 1959, which reads: If any civil cause, proceeding or matter has been instituted in any provincial or local division, and it is made to appear to the court concerned that the same may be more conveniently or more fitly heard or determined in another division, that court may, upon application by any party thereto and after hearing all other parties thereto, order such cause, proceeding or matter to be removed to that other division. [5] The proper way to exercise this discretion was set out by Bristowe J in Ogilvie v Bettini and Co, 1 a matter involving whether an action that had been initiated in the Transvaal Supreme Court, with its seat in Pretoria, should be transferred to the Transvaal High Court, with its seat in Johannesburg. The court s power to transfer the matter was founded in s 29 of Proclamation 14 of 1902 of the Transvaal Colony, 2 which, much like s 9(1) of the Supreme Court TS The power to transfer cases from one court to another appears to have had its genesis in this country in the Charter of Justice of the Cape Colony (which created the Supreme Court of that Colony). See Rothman v Woodrow and Co (1884) 4 EDC 32, 34; Sapiero v Lipschitz and Tooch 1909 CPD 493,

4 4 Act, allowed for the transfer of a matter where it appeared that it may be more conveniently heard in another court. Having rejected the argument that the most convenient court was, of necessity, the court within which jurisdiction the defendant resided, Bristowe J proceeded to say: 3 It seems to me that under the Proclamation the plaintiff has the choice of two courts either the Supreme Court or the High Court and prima facie it seems to me he may choose whichever court he likes. Now if there was something to show that an action could be tried in Johannesburg more conveniently, having regard to the expense to which the parties would be put and the places where their witnesses were living or any other circumstances, an application of this kind very probably would be granted. [6] As Kotze JP held, in Morgan v Erskine, EDL 94, 95 there is usually in matters of this kind something to be said on both sides but because the court cannot decide in favour of both parties it must go by the ordinary rule, which is, that after looking at the circumstances on the one side and on the other we should put to ourselves the question: On which side is the balance of convenience? [7] It is clear from the case law that the convenience of the parties and of witnesses are of importance in determining the balance of convenience. So, for instance, in Rothman v Woodrow and Co, 5 Buchanan J held that the balance of convenience favoured transferring a matter to a Circuit Court sitting in Graaf Reinet where all of the defendant s witnesses resided there while neither of the two witnesses to be called by the plaintiff resided in Grahamstown. By way of contrast, in Ogilvie v Bettini and Co, 6 in which one party s witnesses lived in Pretoria and the other party s witnesses lived in Johannesburg, Bristowe J was not able to find that the balance of convenience favoured one or the other, concluding that therefore I do not 3 At EDL 94, Note 2. 6 Note 1, 748.

5 5 think that I should deprive the plaintiff of the right given to him by the law to have the action tried in whichever court he pleases. [8] A party s choice of legal representatives is not a factor that is ordinarily relevant to the exercise of the discretion. In Swanepoel v De Klerk, 7 Maasdorp JP attached no weight to the fact that a party wished to engage counsel in Cape Town when it would have been more convenient for the other party and his witnesses that the matter be heard in Kimberley. He held in this respect: 8 A Court is provided in Kimberley for the convenience of suitors in that district, and there are practitioners there who can conduct the work there, and if the Court is to be allowed to be influenced by the fact that there is a preference of counsel down here, then it would follow that no case would ever be heard there under similar circumstances. [9] I turn now to apply the law to the facts. As stated above, the parties and all of the applicant s witnesses reside in Port Elizabeth, where the alleged defamation and assault were committed. If the trial is to be heard in Grahamstown the applicant and his witnesses would have to travel to Grahamstown and probably be accommodated here too, at significant expense to the applicant and to the inconvenience of him and his witnesses. [10] The respondent s reasons for wanting the matter to be heard in Grahamstown are that he fears media attention, which he says the applicant encourages, if the matter is heard in Port Elizabeth, he would struggle to find competent attorneys in Port Elizabeth and he is represented by legal representatives from Grahamstown. [11] None of these reasons carry weight. The first is not a proper reason. If there is media interest in the trial, the media will cover it whether it is in Grahamstown or Port Elizabeth. That will especially be the case if, as he alleges, the applicant is behind the media interest. The second reason has no CPD At 510.

6 6 factual foundation in his papers. The third, as I have indicated above, is an irrelevant factor. [12] I find that that balance of convenience is overwhelmingly in favour of the applicant and that an order removing the trial to Port Elizabeth is justified. [13] I consequently make the following order: (a) The action in the case of Kenneth James Denton v Jeremy Davis, case number 630/2008, is removed from this court to the South Eastern Cape Local Division of the High Court for hearing and determination. (b) The respondent is directed to pay the applicant s costs of this application. C. PLASKET JUDGE OF THE HIGH COURT APPEARANCES: For the applicant: Mr J. Eksteen SC, instructed by Whitesides, Grahamstown. For the respondent: Mr D. De La Harpe, instructed by Wheeldon, Rushmere and Cole, Grahamstown