King Price Insurance Company (Pty) Ltd v Serakwane (A354/2018) [2019] ZAGPPHC 392 (16 August 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: No

(2) OF INTEREST TO OTHER JUDGES: No

CASE NO: A354/2018

16/8/2019

In the matter between:

KING PRICE INSURANCE COMPANY (PTY) LTD

Appellant

and

KHOMOTJO GODFREY SERAKWANE

Respondent

JUDGMENT

MALUNGANA AJ:

[1] This appeal is against the judgment of the Regional Magistrate sitting in the Regional Division of Gauteng, Pretoria, in which she ordered the appellant to pay damages to the respondent in the sum of R310 000,00 plus costs. The background facts are set out hereafter.

[2] During April 2016 the appellant and the respondent concluded an agreement of insurance in terms of which the appellant, an insurance company undertook to insure the respondent's motor vehicle. The terms and conditions of the agreement are embodied in a standard contract (insurance policy) and annexed to the particulars of claim as 'KGS4'. The agreement provides that it is a condition of cover to install an approved security device as specified and approved by the appellant. It further provides that the respondent would have no cover for theft or hi-jack if the requirement is not adhered to. However, during the telephone discussion which took place on the day of the conclusion of the contract, the appellant's employee agreed to provide the respondent with details of the tracking company which had to install the tracking device. but failed to do so. The employee further advised the respondent that if he did not hear from the said company, it remained his responsibility to install the tracking device. The respondent's motor vehicle was subsequently hi-jacked. The appellant repudiated his claim on the basis that the he failed to install the tracking device as stipulated in the contract.

[3] Dissatisfied with the repudiation of his claim, the respondent instituted action for damages against the appellant in the regional magistrates' court sitting in Pretoria. On 20 July 2018 the court a quo granted the judgment in favor of the respondent in the sum of R310 000 plus costs.

[4] Aggrieved by the decision of the court a quo, the appellant launched this appeal. At the outset I must point out that it appears from the papers placed before us that on 28 July 2017, prior to the judgment at the heart of this appeal, the court below dismissed the respondent's claim with costs. Consequently the appellant raised the point in limine at the commencement of the trial to the effect that the court a quo was functus officio in that the action was previously dismissed, and no application was instituted for the re­enrollment of the matter in accordance with the provisions of the magistrates' court rules.

The magistrate, relying on Rule 32(3) of the Magistrates' Court rules, dismissed the appellant's point in limine. It further appears from the record that according to the court a quo the application contemplated under sub rule 32(3} need not be served upon the appellant, but only to the court.

[5] The logical starting point in adjudicating this appeal is whether the court a quo correctly applied Rule 32(3), and whether there was an application contemplated in the said sub rule.

[6] I pause to quote the provisions of Rule 32 of the Magistrates Court Rules. Rule 32(1) of the Magistrates' Court rules provides that:

"If a plaintiff or applicant does not appear at the time appointed for trial of an action or hearing of an application, the action or application may be dismissed with costs."

[7] Similarly, in terms of Rule 32(2) judgment may be given against the defendant or the respondent who fails to appear at the time appointed for hearing or trial.

[8] Sub-rule (3) provides that:

"The withdrawal or dismissal of an action or decree of absolution from the instance shall not be a defence to any subsequent action, but if subsequent action is brought for the same or substantially the same cause of action before payment of costs awarded on such withdrawal, dismissal or decree of absolution, the court may on application, if it deems fit and if the said costs have been taxed and payment thereof has been demanded, order a stay of such subsequent until such costs shall be paid and that the plaintiff shall pay the costs of such application.”

[9] There is yet a further conundrum in the judgment. As appears in the record there is no application for the enrollment of the matter. Counsel for the respondent in answering this question submitted that there was a letter addressed to the court a quo to this effect. In my reading of the papers there is no such letter in the papers.

[10] In terms of Rule 55(1) (a). every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief. Sub rule (1)(b) provides that the notice of motion must be addressed to the party or parties against whom relief is claimed and to the registrar or clerk of the court.

[11] ln the absence of the application I find myself in disagreement with the approach adopted by the court below, when she dismissed the point in limine raised concerning her jurisdiction. The court a quo should not have proceeded to hear the matter without an application setting aside the initial court order dismissing the respondent's claim on 28 July 2017. In terms of Rule 55 the appellant ought to have been notified of such application, if any. As I shall try to explain, the approach adopted by the court below fly against the Rule 55(1)(b) and is Incongruent with the principles of natural justice (audi alteram partem.)

[12] In terms of section 34 of our Constitution, "Everyone has the right to have any dispute that can be resolved by the court application of law decided in a fair public hearing before a court or, where appropriate, another independent and Impartial tribunal or forum." Therefore "audi alteram partem" is a fundamental principle of our law which is enshrined under the bill of rights in the Constitution of our Republic.

[13] The guiding principle of the common law is certainly of judgments. Once a judgment is given in a matter it is final. It may not thereafter be altered by the judge who delivered it. He becomes functus officio and may not ordinarily vary or rescind his own judgment. See Firestone SA (Pty) v Gentiruco A.G 1977 (4) SA 298(A) 306-G. That is the function of the appeal court. There are, however, exceptions. Rescissions are permissible only in limited cases if the judgment was obtained by fraud, or justus error. If judgment was taken by default on sufficient cause shown by the applicant. The court is also allowed to clarify its judgment or

correct a clerical error, arithmetical in order to give effect to its true Intention. The court can also recall its order immediately after having given it within a reasonable time. See Seatle v Protea Assurance Co Ltd 1984 (2) 537 (C ) 542 at H-543 A. The order or judgment may be recalled meru motu or on application of a party, which need not be formal ( First National bank of SA Ltd v Jurgens, 1993(1) SA 245 (W) 246.1. This procedure is not applicable and has no bearing in the case served before the court below.

[14] To hold as the magistrate did in this case, that Rule 32(3) does not require the application to be served on the appellant would be illogical and irregular in the circumstances. The Magistrates courts are the creation of statutes. Rule 32(3) Is confined by its wording and context. There must be an application brought in terms of Rule 55 of the Magistrates' Court Rules. The respondent was in default of appearance in court at the time appointed for trial, and the order for the dismissal of the claim was granted in terms of Rule 32(1). In my view a procedural irregularity has been committed in this case, and the respondent in casu cannot avail himself of the provisions of Rule 32(3) as no proper application has been made to the court below for the re-enrollment of the action leading to the judgment at the heart of this appeal. The most perplexing feature is the apparent absence of the application which the learned magistrate based her reasoning upon. I am not aware of any precedent that has considered and settled the issue in the present context.

[15] Turning to the pleadings. In Minister of Safety and Security v Slabbert {2009] 'ZASCA 1[2009] ZASCA 1; ; 2009 (2) SA 277 (SCA): 2009 (1) SACR 361 (SCA} paras 15 and 19 the court said the following:

“A party has a duty to allege in the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case.”

[16] Counsel for the appellant submitted in argument that no fictional fulfilment of the condition precedent set out in the agreement has been pleaded in the particulars of claim, and that no evidence was led at the trial as to the value of the vehicle. It is therefore, surprising how the learned magistrate came to the conclusion that the respondent has proven its case on the balance of probabilities. I agree with counsel for the appellant.

[17] The court a quo also found that the appellant was at fault in failing to provide the respondent with the contact details of the tracking company and that there was no duty on the respondent to prove the quantum of its claim. I find myself in complete disagreement with the judgment of the court below. Even if I overlook the fact that she incorrectly adjudicated over the trial, it is clear from the facts placed before me that the sole responsibility to ensure that the vehicle is fitted with the tracking device rests upon the respondent Notwithstanding the representation made by the appellant's employee the vehicle would not be covered in the event of theft and hi-jacking. The writen part of this exclusion was embodied ln the document attached to the particulars of claim. The technique of interpretation of a written contractual documents consistently adopted by our courts was summarized by Joubert JA in Coopers & Lybrand v Bryant, [1995] ZASCA 64; 1995 (3) SA 761 (A) as follows:

“According to the 'golden rule' of interpretation the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistence with the rest of the instrument...

The mode of construction should never be to interpret the particular word or phrase in isolation (in vacuo) by itself...

The correct approach to the application of the 'golden rule' of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly speaking, to have regard:

(1) to the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract ...;

(2) to the background circumstances which explain the genesis and purpose of the contract, i.e to matters probably present to the minds of the parties when they contracted..;

(3) to apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on face of it ambiguous, by considering previous negotiations and correspondence between the parties, subsequent; conduct of the parties showing the sense in which they acted on the document, save direct evidence of their own intentions."

[18] Accordingly, in the examination of the circumstances prevailing at the time of the conclusion of the contract and the context in which the words of the provisions of the details of the 'tracking company' were used including the purpose of the contract as whole, to my mind, it is improbable that the appellant would have meant to excuse the respondent from fulfilling its obligation to install the anti-hijacking device. Moreover, the respondent was fully aware that he had to call the appellant should he not be contacted by the tracking company.

[19] Returning to the dismissal of the action. It is necessary to quote the following passage from the decision of the Full Court In The Minister of Home Affairs v Mukhatar Ahmed and Others A102/17 ZAGPPHC (14 February 2019) paras 27 to 28 seems to reflect the approach that this court also takes to the matter:

"... We therefore conclude that this court has inherent jurisdiction to look at the judgment of Collis AJ in order to establish whether she had jurisdiction to entertain the proceeding placed before her as Part B of the proceedings that were dealt with by Kgomo J.

We are unanimous in our view that Collis AJ had no jurisdiction to hear what was considered to be Part B of the application that had served before, and was dismissed by, Kgomo Jon 4 September 2012. The law regards the proceedings before Collis AJ as invalid and upon proof of invalidity, the order made by Collis may be disregarded." Also quoted in the judgment was Connor CJ in 1883 who had the following to say In GW Willis v LB Cauvin 4 NLR at 98-99:

"The general rule seems to be that a judgment, without jurisdiction in the Judge pronouncing it, is ineffectual and null."

[20] In the present case, we find that the magistrate completely misconstrued the application of Rule 32(3) in holding that the purported application could only be filed with the court without notifying the other appellant, and in so doing she incorrectly determined her jurisdiction. It follows that the magistrate did not have jurisdiction to adjudicate on the subsequent trial without a due process setting aside the impugned order of 28 July 2017.Consequently the judgment at the core of this appeal is a nullity, and of no effect.

[21] In the result the following order is made:

1. The appeal is upheld, with costs.

2. The order of the trial court is hereby set aside and in its place is substituted the following:

"The plaintiff's claim is dismissed with costs:

P H MALUNGANA

Acting Judge of the High Court

P M MABUSE

Judge of the High Court

Appearances:

Counsel for the Appellant: Adv. C. Richard

Instructed by:

Weavind & Weavind Attorneys

Counsel for the Respondent: Adv. Makhubele

Instructed by:

Mamokgalake Chuene Attorneys