Minister of Law and Order v Patterson (3/84) [1984] ZASCA 6; [1984] 2 All SA 134 (A) ; 1984 (2) SA 739 (A) (2 March 1984)

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION) In the matter between :THE MINISTER OF LAW AND ORDER AppellantandSTUART DREW PATTERSON RespondentCoram : RABIE, CJ , CORBETT, KOTZE, TRENGOVE etVTLJOEN, JJA.Heard : Delivered :18 November 1983

JUDGMENT

RABIE/

2 RABIE, CJ,

The respondent in this appeal institutedan action against the appellant in the magistrate'scourt in Cape Town in which he claimed damages in theamount of Rl 500 on the ground that he had beenassaulted in Hermanns by a member of the South AfricanPolice. The appellant raised a special plea to theeffect that the magistrate's court in Cape Town hadno jurisdiction to hear the action because the respondent'scause of action, as set out in his summons, arose inthe area of jurisdiction of the magistrate's court atHermanus, and because the appellant, who was cited in hisofficial capacity as a representative of the Government

of/ 3 of the Republic of South Africa in terms of sec. 2 of the State Liability Act No. 20 of 1957, did not in that capacity reside or carry on business, within the meaning of sec. 28(1) (a) of the Magistrats' Courts Act No, 32 of 1944, in the area of jurisdiction of the"magistrate's court in Cape Town. The appellant also pleaded over on the merits of the case and denied that the respondent had been assaulted as alleged by him. By agreement between the parties the magistrate was asked first to consider only the question of the special plea and to give his judgment thereon. The magistrate did so and held that the magistrate's court in Cape Town

had/ 4 had jurisdiction to hear the action. The special plea was accordingly dismissed with costs. The basis of the magistrate's finding was that Cape Town and Pretoria were "joint capitals" of the Republic of South Africa; that the Minister, in his representative capacity, had his domicilium in both Cape Town and Pretoria, and that he could therefore be sued in the magistrate's court in either Cape Town or Pretoria. The appellant appealed to the Cape Provincial Division, which dismissed the appeal but granted him leave to appeal to this court.

In its judgment (per German, A.J.,

with/ 5 with whom Van Heerden, J., agreed) the Cape Provincial Division held that the magistrate's court in Cape Town had jurisdiction to entertain the respondent's claim by virtue of the provisions of sec. 28(1)(a) of the Magistrates' Courts Act No. 32 of 1944 in that the State, the real defendant in the action, carried on business everywhere in South Africa and that it could therefore be sued in any magistrate's court in the country, provided only that the claim in issue was one which a magistrate's court was entitled to consider.Before proceeding to discuss the appeal, I should say that it was common cause between counsel in this court that the State was the real

defendant/....

6

defendant in the action instituted by the respondent,and, also, that the State is a Legal persona.

Sec. 28 of the Magistrates' Courts ActNo. 32 of 1944 reads as follows :

"(1) Saving any other jurisdiction

assigned to a court by this Act or by any other law, the persons in respect of whom the court shall have jurisdiction shall be the following and no other -(a) any person who resides, carries on business or is employed within the district;

(b) any partnership which has businesspremises situated or any memberwhereof resides within the district;

(c) any person whatever, in respect ofany proceedings incidental to anyaction or proceeding instituted inthe court by such person himself;

(d) any person, whether or not he residescarries on business or is employed

within/....

7

within the district, if the cause of action arose wholly within the district; (e) any party to interpleader proceedings if - (i) the execution creditor and

every claimant to the subject-matter of the proceedings reside carry on business, or are employed within the district; or (ii) the subject-matter of the

proceedings has been attached by process of the court; or (iii) such proceedings are taken under sub-section (2) of section sixty-nine and the person therein referred to as the 'third party' resides, carries on business, or is employed within the district; or (iv) all the parties consent to

the jurisdiction of the court;

(f) any defendant (whether in convention or reconvention) who appears and takes no objection to the jurisdiction of the court;

(g)/

8

(g) any person who owns immovable property within the district in actions in respect of such property or in respect of mortgage bonds thereon. (2) 'Person' and 'defendant' in this section include the State."

The main argument of counsel for theappellant in this court was that although, accordingto sec. 28(2) of the aforesaid Act, the word "person"

in sec. 20(1) is said to include the State, the Statecan nevertheless not properly be said to carry onbusiness, as meant in sec. 28(1)(a). His alternativeargument was that if one is constrained to find thatthe legislature did intend to provide that the Stateshould, for jurisdictional purposes, be regarded as a

person capable of carrying on business, one should

hold/ 9 hold that the State carries on business only at its main administrative centre, i.e., Pretoria, and not everywhere in South Africa. The main argument of counsel for the respondent was that the Judgment of the court a quo was correct in that the State carries on business everywhere in South Africa in the sense found by the Court (a matter which will be discussed later in this judgment), and also in the sense in which the expression "to carry on business" is ordinarily used, i.e., in the sense of carrying on commercial activities. Counsel's second argument, advanced as an alternative to the first, was that the question with which we are

concerned/, 10 concerned in this case was dealt with by this court in the case of Du Plessis v. Union Government (Minister of Defence), 1916 A.D. 57, and that the majority decision in that case is decisive of the present dispute. The majority decision was, briefly put, that sec. 2 of the Crown Liabilities Act No. 1 of 1910 conferred jurisdiction upon all magistrates' courts in the Union of South Africa to hear actions against the Crown, provided only that the claim fell within the limits of such courts' jurisdiction. Counsel contended that sec. 1 of the State Liability Act No. 20 of 1957 (which Act repealed the Crown Liabilities Act No. 1 of 1910) is, save for alterations necessitated by changes in the constitution of the country since

1910/

11

1910, in virtually the same terms as sec. 2 of the Crown Liabilities Act No. 1 of 1910, and that the majority decision in the Du Plessis case, supra, is therefore still authority for the view that every magistrate's court in South Africa has jurisdiction to entertain an action against the State, no matter where the cause of action arose, provided only that the claim in issue falls within the jurisdiction of the court.The aforesaid argument that the majority decision in the Du Plessis case, supra, is decisive of the present dispute would, if sound, dispose of the appeal, and I accordingly propose to deal with it first.

In/

12 In Du Plessis 's case the appellant sued

the Minister of Defence, representing the Union Government, in the magistrate's court at Vryburg to recover £43 14s., being the balance of an account for certain articles which had been requisitioned by the military authorities. Before pleading, the defendant (the respondent in the appeal) took two exceptions. One of them - the only one with which we are here concerned - was that the magistrate's court at Vryburg did not have jurisdiction to hear the case. The magistrate overruled the exception, but his decision was reversed by the Cape Provincial Division. See Union Government (Minister of Defence)

v./ 13 v. Du Plessis, 1915 C.P.D. 650. On a further appeal, this court (consisting of Innes, C.J., Solomon, J.A., and De Villiers, A.J.A.) reversed the decision of the Cape Provincial Division, but Innes, C.J., and Solomon, J.A., did so on grounds that differed from those on which De Villiers, A.J.A. decided the matter. Innes, C.J., held that in terms of sec. 2 of the Crown Liabilities Act No. 1 of 1910 every magistrate's court in the country was a competent court to hear actions against the Crown, provided only that such court had jurisdiction over the subject-matter of the suit. The section read as follows :

"Any/

14

"Any claim against His Majesty in His

Government of the Union which would,

if that claim had arisen against a subject,

be the ground of an action in any competent

court, shall be cognizable by any such

court, whether the claim arises or

has arisen out of any contract lawfully

entered into on behalf of the Crown or

out of any wrong committed by any servant

of the Crown acting in his capacity

and within the scope of his authority

as such servant."

Innes, C.J., rejected the argument that, inasmuch as

resident magistrates' courts in the Cape Province could

only entertain suits against persons residing withintheir particular districts, they could only be competent

courts within the meaning of the section when the

element of residence was present. It was "jurisdiction

over/

15

over subject-matter", he said, "which was in the mindof the legislature as expressed in sec. 2 of the Actof 1910." He went on to say in this connection

(at p, 61) :

"Claims (or in other words the subject-matter of actions), against the Crown were being dealt with; and any Court competent to entertain any particular claim against a subject was given authority to entertain it against the Crown. So that 'any competent Court' meant any Court competent as to the subject-matter. The intention was to substitute the Crown for the resident subject, and therefore, so far as the Crown was concerned, to eliminate residence as an element of jurisdiction."

Concluding that "all magistrates' courts may entertainsuits against the Crown within the limits of theirjurisdiction as to subject-matter", the learned Chief

Justice/

16

Justice said (at p. 62) :

"This may not be a wholly desirable position, but it is the one created by the language of the legislature. The better provision would probably be to adopt the qualification inserted in the Cape Act of 1904, and to confine the jurisdiction of magistrates in Crown suits to cases in which the cause of action arose within their districts. That is a matter for future legislation, though the instances in which the Crown is sued in districts other than those in which the action arose would probably be few."

Solomon, J.A., like Innes, C.J., held

that the issue fell to be decided "upon the construction

of" sec. 2 of the Crown Liabilities Act No. 1 of 1910.

He was of the view that a wide meaning should be given

to/

17

to the word "competent" as used in this section (as

in its predecessor in the Transvaal, viz. the CrownLiabilities Ordinance of the Transvaal No. 51 of

1903), and that it should not be made to depend onconsiderations of residence. He said in this connection

(at p. 65) :

"The Crown was made in the statutes amenable to Courts of Law without regard to the question of where the Sovereign resided. Such an idea indeed does not enter into the abstract conception of sovereignty. For it is with the King in his Colonial Government that we are concerned in these suits, and not with the person of the Minister, who is merely the nominal defendant in the case. It never could have been intended that

the/

18

the residence of the particular Minister, who is made the defendant in the action should be a factor in determining the competency of the Court; nor can, I think, the idea of the Crown residing in any place in the Union have entered into the mind of the legislature. In my opinion, no such consideration was present to the legislature in enacting the clause in question : the only matter with which it was concerned being the competency of the Court in regard to the extent of the claim. If the claim against the Crown was one which fell within the jurisdiction of the resident magistrate, the intention, in my opinion, was to enable any magistrate's court to deal with the case without regard to the locality of the particular district."

The learned Judge rejected the argument that "just

as a corporation or company must for the purposes of

determining/

19

determining jurisdiction be taken to reside at the

place where its business is being carried on, soalso the King must be deemed to reside at the seat ofGovernment of the Union at Pretoria", and said (atp. 66) :

".... the cases are scarcely analogous.

For in the case of a company, unless

some artificial residence is devised

for it, the result would be that it

would be entirely exempt from the

jurisdiction of a court which, as in

the case of the resident magistrate's

courts in the Cape Colony, can be exercised

only over persons resident within the

district. And it is to avoid absurd

conclusions of that nature that it was

imperative to fix upon some place as

the residence of a corporate body;

and that could only be where its business

is being carried on. In the case of

20

the King, however, there is not only the difficulty that he cannot be said to carry on business, but there is the further fact that there is no necessity to devise any residence for him for the purpose of jurisdiction, if the construction already indicated is given to the provisions of sec. 2 of Act 1 of 1910."

The learned Judge went on to say (at p. 66 i.f.) that if one were, in spite of the views expressed by him in the passage quoted above, "forced to the conclusion that the King must be deemed to reside at the seat of the capital", it would lead to the "anomaly" that the only resident magistrate's court in the Union which would have jurisdiction in suits against the Crown would be that in Pretoria, no matter where

21

the cause of action arose.

De Villiers, A.J.A., held that the

legislature, in passing the Crown Liabilities Act No.

1 of 1910, intended to confer jurisdiction on allcompetent courts to entertain suits against the Crown,but that it did not intend to confer jurisdiction upona magistrate's court "which it would not have had inthe case of a subject." It was clear, he said (at p.70) -

"that the legislation was introduced

to put suitors in a position as favourable

as they would have been in had the

suit been against a subject, but there

is nothing in the language to show

that it was the intention to put them

in/

22

in any more favourable position, or to put the Crown in a less favourable position than the subject."

That being so, the learned Judge continued, his

conclusion was -

"that a magistrate's court may be a competent Court, but whether it is so must be determind in the light of the laws conferring jurisdiction upon magistrates' courts . "

In the Cape Province, the learned Judge said, thematter was regulated by sec. 8 of Act No. 20 of 1856and by sec. 5 of Act No. 35 of 1904, and the lattersection extended the operation of the earlier Act

so as the confer jurisdiction upon the courts of

resident/..

23

resident magistrates "if the subject-matter is situated

or arose within the jurisdiction of such Courts."

The learned Judge held in conclusion that the magistrate's

court at Vryburg had jurisdiction to hear the matter

in issue by virtue of the provisions of sec. 5 of

Act No. 35 of 1904 in that the subject-matter of the

suit (i.e., the cause of action) had arisen withinthe area of jurisdiction of that court.In dealing with Du Plessis's case, counsel for the appellant contended (a) that, because of the difference in wording between sec. 1 of the State Liability Act No. 20 of 1957 and sec. 2 of the Crown Liabilities Act No. .1 of 1910 ( quoted above), the former section cannot be given the meaning that was

given/....

24

given to the latter section by the majority of themembers of the court in Du Plessis's case, and (b)that, in so far as the majority of the court held thatthe Crown could be sued in any magistrate's courtin the country, provided only that the subject-matter ofthe suit in issue was within the jurisdiction ofsuch court, that finding was obiter.

Sec. 1 of the State Liability Act No.