Chinese Association, Gauteng (TCA) v Henning and Others (EQ2/2017) [2019] ZAGPJHC 145 (20 March 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: EQ2/2017

In the matter between:

THE CHINESE ASSOCIATION, GAUTENG (TCA) Complainant

And

ALICE HENNING (Also known as Alice Pretorius) First Respondent

ANJA LOCK Second Respondent

CYNTHIA JEANETTE LE ROUX Third Respondent

DAVID CLIVE HORNE Fourth Respondent

DAWN REEVE Fifth Respondent

JOY TERMORSHUIZEN Sixth Respondent

LANA BERGER Seven Respondent

MARIETTE VAN DER LINDE DE KLERK Eighth Respondent

REGINA RICHARDSON Ninth Respondent

RYAN VAN DER WALT Tenth Respondent

SHANA MARKRAM Eleventh Respondent

TRACY TERINK Twelfth Respondent

JUDGMENT ON APPLICATION RE: JURISDICTION

MAKUME, J:

[1] This is an application by the fourth Respondent Mr David Clive Horne in which he seeks an order declaring that this court sitting at Johannesburg has no jurisdiction over him on the following basis:

1.1 He does not reside, work or carry on business within the jurisdiction of the above honourable court.

1.2 That none of the other recognised grounds of jurisdiction are present in this matter.

[2] Mr Hitchcock appearing for the fourth Respondent made oral submissions supported by fourth Respondent’s heads of argument that it is not disputed that the fourth Respondent resides and worked in Cape Town. Mr Hitchcock submitted further that this court could have jurisdiction if there is evidence that the cause of action arose within the jurisdiction of this court. He went on to refer to a decision of this division in Tsichlas and Another v Touch Line Media (Pty) Ltd 2004 (2) SA 112 (W). Whilst maintaining that he has no difficulty with the outcome and the reasons for judgment in that case he argues that the facts therein are not similar to the facts in this matter.

[3] Secondly Mr Hitchcock submitted that fourth Respondent denies that he is the author of the statement posted on the Carte Blanch facebook because his attorney checked the activity log for postings on that day and could not find anything referring to the fourth Respondent.

[4] In conclusion he argues that the case of Makhanya v University of Zululand 2010 (1) SA 62 (SCA) on which the complainant relies is of no relevance to the argument raised by the complainant.

[5] Finally in the heads of argument Mr Hitchcock submitted that absent existence of the posting by the fourth Respondent no grounds exists for this court to find that it has jurisdiction over the fourth Respondent and prays that the complaint be dismissed with costs.

[6] Counsel for the complainant dealt with the issues raised by the fourth Respondent in the complainant’s heads of argument and also made oral submissions that this court does in fact have jurisdiction over the person of the fourth Respondent on the basis that the cause of action arose within the jurisdiction of this court.

FACTUAL BACKGROUND

[7] A brief factual background leading to this application is helpful. The complainant instituted proceedings against the fourth Respondent and eleven others on the 5th May 2017 pursuant to comments posted on the facebook page of Carte Blanche. In particular it is alleged that the fourth Respondent posted the following words: “Personally I say wipe them out I’d be the first to be there” It is these words that the complainant seek a final order against the fourth Respondent that the words constitute unfair discrimination, hate speech and harassments.

[8] On the 14th November 2018 and the 15th November 2018 Mr Horne the fourth Respondent filed his special plea of lack of jurisdiction and on the 15th November 2018filed his answer on the merits. On the 12th March 2019 Mr Horne filed a second affidavit in which he repeated the same contentions raised in respect of the special plea. He however did not stop there but for the first time under oath said that he did not make the impugned statement. He further said that he was mistaken when he previously under oath admitted that he had indeed made the impugned statement.

THIS COURT’S JURISDICTION

[9] Section 21 (1) of the Superior Court Act No 10 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 and all other matters of which it may according to law take cognisance”.

[10] Section 21 (2) of the same act reads as followings “A Division also has jurisdiction over any person residing or being outside its area of jurisdiction who is joined as a party to any cause of action in relation to which such court has jurisdiction or who in terms of a third party notice becomes a party to such a cause if the said person resides or is within the area of jurisdiction of any other Division.”

[11] The two sections are clear and unequivocal. There is no ambiguity. It is not surprising that counsel for the fourth Respondent did not deal with the provisions of Section 21 both in the heads of argument and in his oral submissions.

[12] His Lordship Kuny AJ in the Tsichlas matter dealt with a similar objection raised as to jurisdiction of this court under almost similar circumstances. The Respondent in that case had argued that its principal plea of business was in Cape Town and that this court did not have jurisdiction. At page 119 the court said the following: “Jurisdiction in this matter does not however rest solely on this ground. Applicant appears to have founded jurisdiction in this court principally on the basis that the cause of action arose within the area of this court’s jurisdiction. In this regard it is alleged that the applicant’s attorneys accessed the Respondent’s website in Sandton in January of this year and in so doing came upon various statements in the discussion forum web pages which he drew to the attention of the Applicant …. I am of the view that the statements were published of and concerning the Applicant within the area of jurisdiction of this court. Once they had been accessed by and thereby published to the attorney there was in my view publication as a requisite element of defamation.”

[13] The complainant chairperson deposed to an affidavit confirming that he as well as several members of the complainant who reside in Gauteng specifically in Johannesburg accessed the facebook page of Carte Blanche. Accordingly following the reasons in Tschilas the cause of action arose in this court.

[14] It is perhaps the provision of Section 21 (2) that seals the fate of this application. The fourth Respondent is joined with several other in relation to the same cause of action. Despite misgivings by counsel for the fourth Respondent in connection with the decision in Tsichlas was cited with approval by the High Court Free State in the matter of Neil Fichardt vs Phillip Potgieter and 5 Others Case No. 797/2018 a judgment by Loubser J delivered on the 7th June 2014.

[15] The lack of jurisdiction ought to be raised by the fourth Respondent is in my view flawed and lacks any basis. It is nothing but a technical attempt to avoid the truth being told in this enquiry. Regulation 10 of the Regulations Promulgated in terms of the Equality Act contains provisions regulating the powers and functions of an Equality Court and specifically provides amongst others that when conducting an enquiry:-

- The court must do so in an expeditious and informal manner which facilitate and promotes participation by the parties

- The law of evidence, including the law relating to competency and compellability as applicable in civil proceedings applies in respect of an enquiry. Provided that in the application of the law of evidence, fairness, the right to equality and the interest of justice should as far as possible, prevail over mere technicalities.

[16] Having considered the purpose, object as well as the guiding principle in the Equality Act and the salient facts in this matter I have come to the conclusion that this court does have jurisdiction to hear this matter and in the result I make the following order:

ORDER

a) The application is dismissed.

b) The Fourth Respondent is ordered to pay costs of the application which shall include costs of 2 counsel.

________________________________________

M A MAKUME

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG