IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN) CASE NO.: 2306/2017 In the matter between: HUMANSDORP CO-OPERATIVE LIMITED Applicant And DAVID RAMOLEBELI MONGOATO Respondent JUDGMENT BESHE J: [1] This is an application for summary judgment wherein the applicant seeks judgment against the respondent for: (a) payment in the amount of R236, 507.61; (b) interest thereon calculated at the prime rate of overdraft applied by Absa Bank plus 6.5%, compounded monthly in arrears from the 1 st May 2017 to date of final payment; (c) costs of suit on the scale as between Attorney and Client together with interest thereon calculated at the legal rate of interest from a date 14 (fourteen) days after allocator to date of payment. [2] Respondent was the sole member of Morning Dew Trading 314 CC which has since been deregistered. He is sued on the basis, so is alleged of having bound himself, in terms of a Deed of Suretyship as surety and co-principal debtor with the said close corporation, in favour of the applicant for payment of all and any indebtedness owed by the close corporation to the plaintiff. The deed of suretyship is alleged to have been
entered into in Matatiele. The Close Corporation remains indebted to the applicant for the amount claimed in the summons. [3] Respondent s nominated domicilium citandi et executandi is Hanover Farm, Cedarville Matatiele and his residential address is St Paul Location, Ramolakoane, in Matatiele, the same place where he bound himself as surety for the close corporation s debts. [4] The application is opposed by the respondent who claims that he is possessed of a bona fide defence, essentially assailing the validity of the suretyship agreement. In addition thereto, he raised the question of lack of jurisdiction by this court to entertain the matter. This on the basis that he resides in Matatiele and carries on farming operations in Cedarville, both which fall within the jurisdiction of the KwaZulu Natal Division of the High Court. [5] It is trite that jurisdiction is determined by: 1. The place where the cause of action arose. (in this case it would appear that place is Matatiele). 2. The place of residence of the defendant, the respondent in this case, which is Matatiele. Section 21 (1) of the Superior Courts Act of 2013 provides that: A Division has jurisdiction over all persons residing or being in, and in relation to all causes of action arising and all offences triable within its area of jurisdiction [6] The areas of jurisdiction of the former High Courts at the date of commencement of the Act were as follows: (I will mention the ones that are relevant for purposes of this judgment:) 2
Eastern Cape High Court, Mthatha: The area of the former Republic of Transkei and the magisterial districts of Barkly East, Elliot, Indwe, Maclear and Ugie but excluding the magisterial district of Umzimkulu and Matatiele (Maluti), and excluding the land mentioned inproclamations R141 of 30 September 1983 and 43 of 26 April 1985 and the farms Drumleary 130 and Stanford 127. KwaZulu-Natal High Court, Durban: The magisterial districts of Alfred, Port Shepstone, Umzinto, Umlazi, Ubumbulu, Durban, Pinetown, Chatsworth, Inanda, Ndwendwe, Mapumulo, Lower Tugela, Mtunzini, Eshowe, Nkandhla, Entonjaneni, Lower Umfolozi, Mahlabatini, Hlabisa, Nongoma, Ubombo, Ingwavuma (including the magisterial areas of Pongola and Simdlangentsha, as described in Schedule 1 to the repealed Constitution of the Republic of South Africa, 1993), Umzimkulu and Matatiele (Maluti) including the land mentioned in Proclamations R141 of 30 September 1983 and 43 of 26 April 1985 and the farms Drumleary 130 and Stanford 127. KwaZulu-Natal High Court, Pietermaritzburg: The (former) province of KwaZulu- Natal and the magisterial districts of Umzimkulu and Matatiele (Maluti) including the land mentioned in Proclamations R141 of 30 September 1983 and 43 of 26 April 1985 and the farms Drumleary 130 and Stanford 127. [7] The commentary in this regard, in Erasmus, Superior Court Practice, 2 nd Edition Vol. 1 Service 1 2016 A2-120A the authors make the following observations: Section 6(1) of the (now repealed) Supreme Court Act 59 of 1959 provided that the respective High Courts shall have jurisdiction in the area specified in respect of each High Court in the third column of the First Schedule to that Act. Section 6(1) and the first Schedule were repealed with effect from 5 December 2001 by s 4 of the Interim Rationalisation of Jurisdiction of High Courts Act 41 of 2001 which provided that, notwithstanding the repeal, the areas of jurisdiction of the High Courts referred to in the First Schedule would, subject to any alterations in terms of s 2 of that Act, remain as they were immediately before the commencement of the said Act. The Minister of Justice and Constitutional Development subsequently altered certain areas of jurisdiction with effect from 1 August 2003 (by GN R937 of 27 June 2003) by 3
including/excising certain districts from the areas of jurisdiction of a number of High Courts. By GN 1650 of 14 November 2003 certain other areas of jurisdiction were altered with effect from 1 January 2004. By GN 3440 of 23 December 2003 the aforesaid implementation date iro the Eastern Cape, Ciskei and Transkei Divisions was postponed until further notice, provided, however that the districts of Umzimkulu and Matatiele (Maluti) as reflected under the Transkei Division in the Schedule, were still excised therefrom and including in the Natal Provincial Division and the Durban and Coast Local Division with effect from 1 January 2004. Consequently, and by virtue of the provisions of s 50(1) of the Act, the KwaZulu-Natal Division of the Hgh Court (Pietermaritzburg) and its local seat (Durban) have concurrent jurisdiction in respect of the magisterial districts of Umzimkulu and Matatiele (Maluti). [8] This was also affirmed in Minister of Rural Development v Tsuputse 2015 (5) SA 537 at 539 paragraph [10] where it was stated: [10] The Superior Courts Act 10 of 2013 repealed both the Supreme Court Act 1959 and the Interim Rationalization of Jurisdiction of High Courts Act 2001, but s 50(1) provided that at the commencement of the Act, namely 23 August 2013, the area of jurisdiction of each of [the High Courts] becomes the area of jurisdiction or part of the area of jurisdiction, as the case may be, of the Division in question. Thus, this court presently retains the concurrent jurisdiction that it previously had with KwaZulu- Natal Division, Pietermaritzburg, in respect of the area of the Matatiele (Maluti) magisterial district. [9] From what is stated above, it is clear that this court does not have jurisdiction to entertain this matter. [10] Accordingly the point in limine raised by the respondent that this court lacks jurisdiction falls to be upheld. Accordingly the point in limine raised by the respondent is upheld. 4
[11] The application for summary judgment is dismissed with costs. NG BESHE JUDGE OF THE HIGH COURT 5
APPEARANCES For the Applicants : Adv: DH De La Harpe Instructed by : DE JAGER & LORDAN INC. 2 Allen Street GRAHAMSTOWN Tel.: 046 622 2799 Ref.: M Von Wildemann/H294 For the Respondents : Adv: Mgidlana Instructed by : S MOKOTJO & ASSOCIATES C/o CAPS PANGWA & ASSOCIATES 110 High Street Eskom Building GRAHAMSTOWN Tel.: 046 622 3147 Ref.: Mr Pangwa Date Heard : 11 July 2017 Date Reserved : 11 July 2017 Date Delivered : 13 July 2017 6